Cartwright v King's College, London

Step 1 of the statutory dismissal procedure requires an employer to give a written statement setting out the circumstances leading it to contemplate dismissal. The statement must tell the employee, at least in broad terms, that dismissal is at risk and why. Prior knowledge or oral discussions cannot cure a material omission in the writing.

Redundancy is determined by the statutory circumstances and causal link, not by a separate contract or job-function test. In assessing fairness, an employment tribunal may consider the employer’s overall reasons and findings. Failure to comply with Step 1 makes the dismissal automatically unfair.

Mr Cartwright appealed against the dismissal of his unfair dismissal claim. The employment tribunal found that his dismissal by King’s was by reason of redundancy, fair, and compliant with Step 1 of the statutory procedure. The Employment Appeal Tribunal dismissed his appeal and later refused a review, under UKEAT/0103/09/ZT.

The issues before the Court of Appeal included redundancy, substantive fairness, consultation, compliance with King’s internal procedure, and whether King’s had supplied a valid written Step 1 statement before dismissal.

The appeal was allowed on the Step 1 issue. The decisions of the employment tribunal and the Employment Appeal Tribunal were set aside, Mr Cartwright was held to have been unfairly dismissed, and the claim was remitted to the employment tribunal for a remedy hearing. The remaining grounds were dismissed.

1. Step 1. The employer had to send a written statement setting out the circumstances leading it to contemplate dismissal and had to make clear, at least in broad terms, that dismissal was a risk and why. The approach in Alexander and another v Bridgen Enterprises Ltd [2006] IRLR 422, Homeserve Emergency Services Ltd v Dixon UKEAT/0127/07/CEA and Zimmer Ltd v Brezan UKEAT/0294/08/ZT was endorsed. A meeting invitation could be sent separately.
2. The letters and emails relied on by King’s did not themselves convey that redundancy dismissal was contemplated. Mr Cartwright’s prior knowledge and the oral discussion could not fill the material gap because the statutory information had to be supplied in writing. The 9 July letter was therefore not a valid Step 1 statement.
3. Redundancy. Under sections 139 and 235(3) of the Employment Rights Act 1996, the inquiry concerned whether a qualifying state of affairs existed and whether dismissal was wholly or mainly attributable to it. The separate contract and function tests associated with Nelson v British Broadcasting Corporation [1977] ICR 649 and Nelson v British Broadcasting Corporation (No 2) [1980] ICR 110 had been displaced by Murray and Another v Foyle Meats Ltd [2000] 1 AC 51.
4. Fairness and consultation. The tribunal had directed itself correctly under section 98(4). Although it could ideally have referred expressly to King’s size and administrative resources, its overall reasons showed that the statutory test had been applied. The work had ceased, redeployment had been considered, and Mr Cartwright had had a sufficient opportunity to respond. The consultation process was therefore reasonable, even though the separate written Step 1 requirement was not met.
5. New point. A litigant in person has no special entitlement to raise an alternative case for the first time on appeal. The ordinary rule is that the whole case must be advanced at first instance, especially where a new point would require factual investigation.

Lord Justice Patten agreed. Lord Justice Sedley also agreed with the reasoning and outcome, while cautioning that an omitted matter can be treated as implicit only where the document itself, read in context, clearly conveys it.

• Court of Appeal (Civil Division). Allowed the appeal on the statutory Step 1 ground, set aside the decisions below, held the dismissal unfair, and remitted the claim for a remedy hearing.
• Employment Appeal Tribunal. Dismissed the appeal under UKEAT/0103/09/ZT and subsequently refused an application for review.
• Employment Tribunal. Dismissed the unfair dismissal claim, finding that the dismissal was by reason of redundancy, fair, and compliant with the statutory procedure.