Successful EAT appeal on fairness of dismissal for redundancy
Cloisters’ Emma Darlow Stearn
In Mr M Birkett v Integral UK Ltd [2024] EAT 107, Emma Darlow Stearn successfully acted unled for the Appellant/Claimant in his appeal against Employment Tribunal (“ET”) findings that his dismissal for redundancy was fair under s.98(4) Employment Rights Act 1996 (“ERA”).
The Law
In Williams and ors v Compair Maxam [1982] ICR 156, the EAT laid down guidelines that a reasonable employer is expected to follow when undertaking dismissal by reason of redundancy and against which fairness or unfairness under s.98(4) ERA is judged. The fifth principle, at [162F], is: ‘The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment.’
Where a redundant employee applies for an alternative position to avoid dismissal, the process by which they are considered for that alternative position and the reasonableness of that process should be considered when deciding whether the dismissal was fair under s.98(4) ERA, as per Morgan v The Welsh Rugby Union [2011] IRLR 376, at [36].
Background
At a hybrid hearing in April 2022, the ET dismissed the Claimant’s claims of discrimination and unfair dismissal.
The Claimant appealed the latter decision on the basis that the ET had failed to make adequate findings of fact to determine whether the Respondent had taken reasonable steps to find the Claimant suitable alternative employment instead of dismissing him.
The Appeal
In last month’s Employment Appeal Tribunal (“EAT”) hearing, the EAT adopted the Claimant’s submissions, as at [16] and [17]:
Ms Darlow Stearn reiterated that there was a step missing in the analysis. This was not a question of the Tribunal needing to produce ideal reasons, but was, instead, an error in stating conclusions, namely that there had been adequate job searches and that the claimant had been interviewed for an alternative role, but without an analysis of the fairness of those processes for the purposes of section 98(4).
I accept the claimant’s challenge that the ET erred in the adequacy of its findings for the purposes of section 98(4) ERA only. It is right to be cautious about inferring that the ET did not consider relevant facts, but that does not eclipse the requirement to make sufficient findings, so that the parties know why they won or lost on a particular point. Put another way, as Ms Darlow Stearn submitted, the basic underlying facts upon which a conclusion is reached need to be clear. Merely to state a conclusion on a disputed point that there were, for example, no vacancies, without any analysis of, and findings on, the respondent’s enquiries, is not sufficient.
Allowing both grounds of appeal, the EAT held that the ET had erred in law in two respects:
In making insufficient findings in respect of the Respondent’s process of searching for alternative jobs, at the time of the Claimant’s dismissal; and
In making insufficient findings in relation to the circumstances in which the Claimant was unsuccessful for a specific vacancy, for which he had been interviewed.
Both issues were relevant to the fairness of the Claimant’s dismissal for the purposes of s.98(4) ERA.
The case has been remitted to the same tribunal to make findings on both issues.
The full judgment can be found here.
Emma Darlow Stearn is a pupil barrister at Cloisters with a particular expertise in employment, equality and discrimination law.
