Ms S Gonzales v Panache Lingerie Ltd Heard by CVP in Sheffield — 2021

Ms Gonzales worked for Panache Lingerie Ltd from 2008 and returned from maternity leave on 2 January 2020. The tribunal accepted the respondent's evidence that the Covid-19 pandemic caused a major downturn in sales, leading to furlough, reduced turnover and a restructuring exercise in autumn 2020. In that restructure the global sales director role was removed and the claimant's managerial post was placed at risk.

The tribunal held that there was a genuine redundancy situation and that it was within the range of reasonable responses to use a pool of one for the claimant rather than pool her with the two sales managers. It found that her role was support-based, that the business needed experienced sales people as trading recovered, and that the claimant's role could be absorbed in the new structure. However, the tribunal concluded that the dismissal was unfair because the respondent did not actively consider alternative employment for her.

In particular, the tribunal found that the respondent failed to give proper consideration to the sales merchandiser role held by Oriane Amin, even though Ms Amin had sought flexible working and had at one stage applied for voluntary redundancy. The tribunal accepted that the claimant was capable of doing that role and had recent experience of it. It also found that the respondent's handling of Ms Amin's requests lacked transparency and that the claimant's appeal and consultation correspondence did not show the issue had been properly addressed at the time.

The section 99 automatic unfair dismissal complaint failed. The tribunal found that pregnancy and anticipated maternity leave were not the principal reason for dismissal. It found that the decision makers were focused on securing the business's viability in difficult trading conditions and that the claimant's pregnancy and future maternity leave did not drive the redundancy decision. For the same reason, the section 18 and section 39(2)(c) Equality Act 2010 complaint failed: the tribunal was not satisfied that the dismissal was because of pregnancy or because she was seeking to take maternity leave.

On remedy for the successful ordinary unfair dismissal claim, the tribunal said there would be no basic award because the claimant had already received a statutory redundancy payment. It did not quantify the compensatory award at liability stage, but found there was a 75% chance that, had a fair procedure been followed, she would have remained in employment in the role of sales support merchandiser. The tribunal therefore directed a 25% Polkey reduction when the case returns for a remedy hearing.