Today's EAT review concerns the case of Evechen Bleakley v Omniplex Holdings Limited (UD 1026/2010), an HR employee dismissed for redundancy whilst pregnant. Readers may wish to compare this case with Ann Marie Cuddihy v DSV Solutions Limited which was reviewed last week.

Case Name: Evechen Bleakley v Omniplex Holdings Limited (UD 1026/2010)

Legislation: Unfair Dismissals Acts 1977-2007

Jurisdictions/Subject Matter: Selection for Redundancy; Pregnancy Related Dismissal


Facts

The claimant commenced employment with the respondent company in 2005 as a HR Manager whose role it was to travel between the various company sites to deal with HR matters that arose. As the workload of the company increased the respondent appointed two Regional Managers who were each given responsibility for five sites around the country. As the Regional Managers were visiting each site, they became a point of contact for the managers of those sites and it soon became apparent that they had assumed many of the duties of the HR Manager. As a consequence of the changing operations of the company, a decision was made to make the HR Manager role redundant. The company had also considered other alternatives and it was clear that the decision to make the claimant redundant was given careful consideration.

The claimant was informed that her role was being made redundant on 22nd January 2010. Discussions took place regarding the terms of the redundancy package soon after and the company offered her a redundancy payment of €15,000, which the claimant rejected. The company had also offered to give her time to find a new position elsewhere. The company then received a letter from her solicitor alleging that she was being dismissed because she was pregnant. The company denied that they had knowledge that the claimant was in fact pregnant prior to the decision and that the selection was in no way connected with her pregnancy.


Determination

The tribunal found that the claimant was dismissed by reason of redundancy. The tribunal was satisfied that when the respondent created the two Regional Manager posts, they were not to know that the economic circumstances of the company would change so quickly. It was also accepted that the decision to make the claimant redundant was taken prior to her notifying the respondent of her pregnancy. The tribunal concluded that the offer of €15,000 was fair and reasonable in the circumstances.


Legal Review

This decision can be contrasted to the decision in Ann Marie Cuddihy v DSV Solutions Limited which was reviewed last week. In that decision, the tribunal found that the dismissal was mainly due to the pregnancy of the claimant under section 6(2)(f) of the Unfair Dismissal Acts 1977-2007 and awarded the claimant compensation of €24,750. In that decision it was clear that the tribunal attributed weight to the fact that the employer had bought out the claimant’s contract from the recruitment agency she had previously worked for and had intended that she would take up a permanent position with the company. On those grounds the tribunal decided that the respondent’s arguments that the claimant’s dismissal was unconnected with her pregnancy failed to discharge the burden of proof.

In the present case, by contrast, the tribunal was satisfied that the respondent had acted fair and reasonably in deciding to make the claimant redundant. In particular it referred to the ex gratia payment offered to the employee and seems to have considered the amount of compensation offered, when coming to its determination on “fairness”. This suggests that a payment of enough compensation could make a decision “fair” or alternatively and more likely, that a redundancy with correct procedures could still be rendered unfair if the compensation offered was not “fair and reasonable” in the Tribunal’s eyes. This seems to us to be a step too far. The decision shows the importance for employers to act fairly and reasonably in dealing with redundancy situations. The Tribunal were clearly influenced by the fact that the respondent had considered the alternatives and arrived at their decision after having carried out a detailed analysis.


Conclusion

This case could conceivably represent a new departure, in which the compensation offered becomes relevant in deciding the fairness of the dismissal in related cases.