United Kingdom Employment Appeal Tribunal

Introduction

“5. As the parties were in agreement that the Claimant had been dismissed and that it was for a potentially fair reason of redundancy the issues for the Tribunal were:

5.1 Was the dismissal procedurally fair and;

5.2 Was the dismissal within the range of reasonable responses open to the employer and;

5.3 If the dismissal was not procedurally fair then the Tribunal had to decide what was the percentage chance of the Claimant being fairly dismissed?

Those issues were outlined at the outset of the hearing on both 18 and 19 February 2010.

6. The relevant law is found at section 98(2)(c) of the Employment Rights Act 1996.  It was accepted that the Claimant was dismissed and that the potentially fair reasons for dismissal was redundancy.

“6. The issue for the Tribunal was to assess the Claimant’s losses flowing from his unfair dismissal in terms of his compensatory award pursuant to section 123 of the Employment Rights Act 1996.  In particular one of the principal issues for the Tribunal was whether to adopt the simplified or the substantial loss approach to pension loss.

7. Certain heads of compensation were agreed between the parties and the issues for the Tribunal to determine were in relation to future loss of earnings and pension loss.

8. The Claimant also sought either reinstatement or reengagement with the Respondent and this was resisted by the Respondent so it was an issue for the Tribunal to determine this question under sections 114‑116 of the Employment Rights Act 1996.”

“I am here concerned with the Claimant’s appeal against the liability judgment of the Tribunal dated 11 March 2010.  The question is whether there are reasonable grounds for saying that the Tribunal erred in law.

Grounds (i) to (iii).  I do not think the Tribunal erred in law in its conclusions.  In this case the Respondent was not choosing which of several people holding the same position it should make redundant.  It was re‑organising, dispensing with two grade 5 posts and replacing them with a single grade 4 post.  Once granted that this was genuinely the position (disputed by the Claimant but accepted by the Tribunal as set out in paragraph 17 of its reasons), the Respondent was not engaging in a selection process.  It did not have to place storemen in the same pool or apply some additional objective test.  It was entitled to make the two people holding the grade 5 posts redundant.

Ground (iv).  This was a question of fact for the Tribunal.  I do not see any real prospect of establishing perversity.  I see that the ET1 said only that the consultation process, agreed by the unions, was ‘inadequately applied’.  The ET3 said it was the first step in the consultation process.  The Tribunal had material on which it could reach the conclusion it did.

Ground (v)-(vi). Once the Tribunal found the dismissal unfair on the ground that the Respondent failed to offer the Claimant alternative work it was obliged to make an assessment of how likely it was he would have accepted that work.  This would be the case whether the Tribunal called the failure procedural or substantive.  The Tribunal’s assessment of 25% is a question of fact, not a question of law.  There were reasons for that assessment and I am not persuaded that there is any realistic chance of establishing that it was perverse or unreasoned.

Ground (vii).  I do not think the Tribunal intended in paragraph 16 to say that the appeal hearing’s conclusions were correct; merely that the appeal hearing addressed the main issues.  In any event, the Tribunal found the dismissal unfair by reason of the failure to offer the Claimant the alternative work, so this ground on its own would make no difference to the outcome.

For these reasons I consider that the Notice of Appeal contains no reasonable grounds for appealing.”

“’Pool of one’.  As I understand the position, there were 2 grade 5 posts which were replaced by one grade 4 post.  But his colleague Julie Flude applied for and took the grade 4 post.  He did not.  So although two posts were redundant he was the only one left to be dismissed.  I think this is all the Tribunal mean when they use the phrase ‘pool of one’.

Fairness in selection and Lack of objectivity in selection.  Please see what I have already said about the question of selection when considering the previous Notice of Appeal at (i)‑(iii) set out in the Appeal Tribunal’s letter dated 3 February 2010.  I do not think the Tribunal erred in law in its consideration of this part of the case.

Substitution.  The Tribunal was fully entitled to conclude that a manager against whom a complaint has been dismissed may continue to carry out his duties as manager in respect of the employee who made the complaint.  There is no error of law or impermissible substitution involved in reaching this conclusion.

Bad faith.  Whether the Respondent was motivated by bad faith was a question of fact for the Tribunal to determine.  There is no prospect of establishing that the Tribunal’s finding was perverse.

Consultation, including consultation about savings and appeal.  The Notice of Appeal sets out a range of arguments about consultation.  But the Tribunal directed itself correctly in law, having the principles in Williams well in mind.  The Tribunal found that the Claimant chose not to attend the meeting on 20 March 2009: see paragraph 14 of the reasons.  I cannot see any error of law in the Tribunal’s reasoning.

Polkey/Redeployment.  I see no error of law in the way in which the Tribunal has dealt with these matters.”

“Although the Claimant has now ably furnished his grounds with legal references, I can detect no error of law in the reasoning of the Tribunal and no point with reasonable prospects of success.

Grounds 19‑22.  On the re‑engagement issue, the Tribunal applied well known legal principles and made no error of law.  The references which the Claimant provides in paragraphs 19‑21 of his grounds set out no principles of law of relevance to the case.

Grounds 23 and 24.  I have not understood the relevance of these issues, given that the question was what compensation the Claimant should receive for not being offered alternative part time employment when his position was redundant.  I do not see why the Tribunal was obliged to consider these issues.

Grounds 25 and 26 and 28.  I see nothing perverse about the Tribunal’s careful consideration of the pension issue.  The Tribunal did consider his career prospects (unless ground 26 makes the same point as ground 24, in which case see above).

Ground 27 and 29‑32.  The Tribunal’s finding that he would find suitable employment is not perverse or unreasoned.  Nor are its findings relating to use of facilities, etc.  The relevance of tax was only to the question whether any such benefits as the Claimant said existed would be taxable in law.  That is related to taxation statutes, not to section 123 - paragraph 31 is misconceived.  The Tribunal did not misdirect itself in paragraph 29 as the Claimant suggests - it referred to a policy not to a contractual document.

Ground 33 and 34.  I have some sympathy with the Claimant if, as appears to be the case from his Notice of Appeal, he agreed figures which wrongly gave credit for some earnings which he would have had even if he had been employed part‑time by the Respondent.  The Tribunal, I will accept, had a discretion to allow him to withdraw his agreement.  But there is only an appeal if the Tribunal erred in law in the exercise of its discretion.  I cannot see why it did, if the Claimant first sought to withdraw his concession in final submissions.”

The legislation

The facts

“8. The Claimant’s post was at grade 5 and his colleague Julie Flude was also a grade 5 and the two posts were amalgamated to create a new grade 4 post.

9. We felt that there was some confusion on the part of both parties as to the difference between a rationale for redundancy and selection criteria.  We saw the document at page 657 of the bundle as a rationale for redundancy as to why the post or posts were proposed for redundancy.

10. In our judgment selection criteria come into focus when there is more than one individual in a particular post.  Our finding of fact is that the Claimant was the only person at Farnham occupying the role of a grade 5 equipment technician.  He was alone in that category and therefore in a pool of one.

11. The Tribunal cannot go behind the managerial reasons for redundancy.  It is not for us to tell the Respondent how they should manage their business or which posts should or should not be identified for redundancy.  What we are concerned with is the fairness of the process and the reason for the dismissal.”

“18. We now turn to the issue of suitable alternative employment.  There were three posts identified:

(i) Workshop Technician at Canterbury.  The Claimant understandably turned this down as it was a very difficult commute and only a part‑time post.

(ii) Metal Foundry role which the Claimant rejected.  He described this as similar to a ‘blacksmith’s role’ and we find that although the Respondent, as a higher education establishment, was prepared to offer training for this, we equally accept that the Claimant was not suited for the role.

(iii) As a result of the disestablishment of the Claimant’s role and his colleague Julie Flude’s role both of which were at grade 5, a new grade 4 role was created of EHD support.  The Claimant was given the opportunity to apply for this post.  He said he regarded it as Julie’s post and out of loyalty to her he did not apply for it.  Nevertheless that was a matter of his choice and by not applying for it he increased his risk of being made redundant.  He explained that it was a lower grade post but it was also accepted that there was pay protection available.  However it was a term‑time only post and this had not been the Claimant’s work pattern to date and it would have resulted in an overall lower salary.

In our view we do not believe that the Claimant was unreasonable in refusing these roles but we do find that he increased his risk of becoming redundant by not applying for the grade 4 position.

19. We considered in detail the fact that a stores person Mr Craig Lamer left his employment on 23 February 2009.  He was on a job share with Mr Scott Shortland and we have noted from document C1 that Mr Lamer had a 0.4 post and Mr Shortland had a 0.7 post.  They were both on a lower grade post of grade 4 and the Claimant was full‑time.  We have considered whether there was a failure to offer suitable or alternative employment in this respect and we also take into account the Respondent’s policy at page 27 of the bundle which states methods of avoiding redundancy which include restrictions placed on recruitment and also holding other vacancies for redeployment opportunities.”

“20. The judgment of this Tribunal therefore is that there was a failure to offer this suitable alternative employment and for that reason we find that there was procedural unfairness and therefore the Claimant was unfairly dismissed.”

Discussion and conclusions

“In the case of redundancy the employer will normally not act reasonably unless he warns and consults any employees affected or their representatives, adopts a fair decision which to select for redundancy and takes such steps as may be reasonable to minimise a redundancy or redeployment within his own organisation.”

“Ultimately the pool from which the selection will be made is for the employer to determine and, in the absence of a customary arrangement or procedure, it will be difficult for an employee to challenge where the employer can show that he has acted reasonably.”