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Accountant informed she couldn’t breastfeed in racecourse workplace

An accountant who was made redundant after being told she couldn’t breastfeed in her Ascot racecourse office has won a legal battle in her discrimination claim.

Helen Ballerino was told it would be ‘inappropriate’ for her to feed her baby while in the office for days during her maternity leave, an employment tribunal heard.

The 38-year-old was then made redundant. When she previously sued bosses, claiming pregnancy discrimination, her complaints were dismissed.

The employment judge ruled bosses were ‘under no obligation’ to offer her a new role which had replaced hers.

But now, she has won the chance to have her case re-heard – by the same panel – after an appeal judge found the original tribunal had ‘failed to demonstrate that it has engaged’ in the question at the heart of the case.

Seen is Helen Ballerino, who was a former accountant for the Racecourse Association Ltd

Seen is Helen Ballerino, who was a former accountant for the Racecourse Association Ltd

Runners pass the the grandstand with a circuit to go in The Queen Alexandra Stakes on day five during Royal Ascot 2024

Runners pass the the grandstand with a circuit to go in The Queen Alexandra Stakes on day five during Royal Ascot 2024

The Reading tribunal heard she started working at The Racecourse Association in Ascot when she was pregnant in August 2018.

In December 2018 she started her maternity leave, but agreed to several ‘keeping in touch days’ at the offices, in which she would bring her baby.

Ms Ballerino claimed that during a conversation with boss Caroline Davies, she was told it would be ‘inappropriate’ for her to breastfeed her baby in the office.

However, the original tribunal rejected this and found Ms Davies’ concerns were about caring for the baby and working at the same time.

They said: ‘We find that this discussion in February was about the idea of Miss Ballerino bringing her baby into the office for a full work day, rather than the concept of breastfeeding her baby at work.

‘Bringing her baby into the office for a full work day was plainly something that (by that time) she wanted to do.

‘If the discussion in February had been simply about breastfeeding her baby when necessary then it would also have had to include ideas as to how her baby was to be cared for at other times during the working day, and no-one has suggested to us that any plans for that were discussed in the conversation at the end of February.

‘Ms Davies’s objection was to the idea of [Miss Ballerino] simultaneously caring for her baby and working across a full work day, not to her breastfeeding at work.’

In February 2019, new management started advertising for jobs which originally had not intended to take the place of Miss Ballerino.

However, by June 2019, this had changed and now included her responsibilities.

During this time, she was contacted and told at a meeting that her role was ‘at risk of redundancy as a result of the decision to amalgamate her role with the new role’.

Uxmal ridden by Dylan Browne McMonagle wins the Queen Alexandra Stakes during day five of Royal Ascot this year

Uxmal ridden by Dylan Browne McMonagle wins the Queen Alexandra Stakes during day five of Royal Ascot this year

Unequal Love ridden by Tom Marquand wins the Wokingham Stakes during Royal Ascot

Unequal Love ridden by Tom Marquand wins the Wokingham Stakes during Royal Ascot 

The tribunal heard she was provided with a job description for the new role and invited to apply for it, but at the same time given a draft settlement agreement, with instructions that if she wished to accept it she should do so within five days.

Miss Ballerino didn’t apply – and claimed the redundancy process was a ‘sham’ and had been subject of maternity discrimination.

The original tribunal concluded: ‘[She] alleges that the new job (in its revised form) amounted to a suitable available vacancy that she should have been offered as an alternative to redundancy.

‘We accept [the Racecourse Association]’s submission that this is to be assessed by an employer on an objective basis.

‘It is clear that the new role encompassed her previous role, but in every other respect it was completely different.

‘In those circumstances we have no hesitation in finding that [the Racecourse Association] was under no obligation to offer it as a ‘suitable available vacancy’.

‘It was an entirely different role, on terms (as to hours and location) that were less favourable to [Miss Ballerino].’

At the appeal hearing, The Honourable Mrs Justice Eady said the panel should have made more of the lack of documentation available to either version of the new role.

She said: ‘The ET thus accepted that there had been a plan for recruiting for one role, but, after the first round of interviews, it was considered that [Miss Ballerino]’s tasks should be subsumed within that role, which was, nevertheless, ‘almost entirely different.

She found that although the original panel accepted bosses evidence as to the business re-organisation, it ‘did not engage’ with the requirements of the employment test.

She continued: ‘The ET had, more generally, dismissed her argument that [the Racecourse Association]’s explanation – that her position was redundant – was a sham, without actually determining whether or not there had really been a redundancy.

‘In the circumstances, we consider that this is a case where the ET’s reasoning fails to demonstrate that it has engaged with what is agreed to be the relevant question at the heart of the claims before it.

‘We therefore allow the appeal and, accepting that the question of redundancy is one of fact for the ET to determine, must remit this matter for reconsideration.’

The judge added that the same panel was ‘best placed’ to revisit the case.

She added: ‘This remission does not provide the ET with a ‘second bite at the cherry’, but with the opportunity to complete the exercise required, by asking whether there was in fact a genuine redundancy.’