Simpson v Kensington Housing Trust

For an employee on maternity leave, the statutory right to a suitable available vacancy in a redundancy situation applies only where the vacancy is suitable. A higher-graded post involving promotion is not a suitable alternative vacancy for automatic deployment. An employment tribunal need not cite the provision expressly if it had it in mind and its findings make the provision inapplicable. The Court of Appeal will not revisit factual findings absent an error of law. Permission to appeal is refused where the proposed grounds have no real prospect of success.

The appellant, a Tenant Services Officer on maternity leave, resigned after a reorganisation removed her post and offered automatic deployment to a lower-graded role. She had not applied for promotion to Senior Customer Services Officer or Housing Officer posts. An Employment Tribunal found constructive and unfair dismissal and sex discrimination, but held that the higher-graded posts were not suitable alternative employment. It rejected race discrimination and awarded compensation.

The Employment Appeal Tribunal upheld that approach. It held that the tribunal had not been asked to decide whether the Housing Officer post was suitable and that section 77 of the Employment Rights Act 1996 did not arise. The appellant sought permission to appeal, arguing that the vacancy should have been offered directly and that the treatment was discriminatory. The central issue was whether the findings disclosed an arguable error of law.

Lord Justice Keene refused permission to appeal.

1. The entitlement under section 77 of the Employment Rights Act 1996 depends on there being a suitable available vacancy. The Employment Tribunal found that the Senior Customer Services Officer and Housing Officer posts were higher-grade promotion posts. Those findings meant that neither post was a suitable alternative for automatic redeployment, particularly as the appellant had not applied for either.
2. The findings were findings of fact for the Employment Tribunal. The Court of Appeal is not essentially a fact-finding tribunal and its role is limited to determining issues of law arising from the findings below. The relevant findings could not be disturbed.
3. The absence of an express quotation of section 77 did not demonstrate that the tribunals had failed to apply it. The Employment Appeal Tribunal had expressly referred to the provision, and the Employment Tribunal had it in mind. The factual findings meant that section 77 had no operative role.
4. The Employment Tribunal had considered the different treatment of other employees and found the relevant roles materially different. Its conclusions that requiring application or interview for the senior posts was not discriminatory disclosed no error of law.
5. The proposed grounds concerning race and sex discrimination, and the alleged failure to apply section 77, had no real prospect of success. Application for permission to appeal refused.

• Employment Tribunal: Found constructive and unfair dismissal and unlawful sex discrimination, rejected race discrimination, and awarded compensation. It held that the higher-graded posts were promotions rather than suitable alternative employment.
• Employment Appeal Tribunal: Upheld the Employment Tribunal’s approach and concluded that section 77 of the Employment Rights Act 1996 did not arise on the findings.
• Court of Appeal (Civil Division): Refused permission to appeal.