Cartwright v King's College, London

The Court of Appeal allowed the appeal only on the ground that the respondent employer, King’s College, had failed to comply with Step 1 of the statutory "Standard Procedure" in Chapter I of Schedule 2 to the Employment Act 2002, with the consequence that the dismissal was automatically unfair. The court applied the statutory tests in the Employment Rights Act 1996 (notably sections 98 and 139) and recent authorities concerning the content of a valid Step 1 statement. It held that the employer must set out in writing the minimum headline information that dismissal is being contemplated and the reason for that risk, and that oral statements could not be relied upon to supply what the written statement omitted.

Subsidiary findings, which the court did not disturb, were that the respondent's decision to terminate arose from a cessation of the work on which the appellant was engaged and therefore fell within the statutory definition of redundancy under section 139; and that, apart from the Step 1 defect, King’s had acted within the band of reasonable responses and had engaged in consultation and redeployment efforts. The Court of Appeal set aside the tribunals' decisions on the Step 1 point and remitted the matter to the employment tribunal for a remedy hearing.

Background and parties:

• The appellant, Mr Douglas Cartwright, a Non-Clinical Teaching Fellow, was dismissed by King's College, London following the running down of a Certificate course and the abandonment of a proposed Graduate Diploma which reduced the work on which he was employed.
• He brought an unfair dismissal claim to the employment tribunal, which dismissed it; the Employment Appeal Tribunal dismissed his appeal; he then sought and obtained permission to appeal to the Court of Appeal on multiple grounds.

Nature of the claim and relief sought:

• Mr Cartwright claimed unfair dismissal and, in the alternative, automatic unfair dismissal on the basis that King’s had failed to comply with the statutory Step 1 requirement of Schedule 2 to the Employment Act 2002. He sought a finding of unfair dismissal and remedy.

Issues framed by the court:

1. Whether the dismissal was by reason of redundancy within section 139 of the Employment Rights Act 1996.
2. Whether the dismissal was fair under section 98 of the 1996 Act, having regard to the size and administrative resources of the employer and the band of reasonable responses.
3. Whether King’s had complied with Step 1 of the "Standard Procedure" in Schedule 2 to the Employment Act 2002, namely whether it had given a written statement setting out the circumstances leading it to contemplate dismissal and invited attendance at a meeting to discuss the matter.

Court’s reasoning and outcome on the issues:

• On redundancy (s139): the court accepted the tribunals’ factual findings that the need for employees to carry out the particular work had ceased and that the dismissal was attributable to that state of affairs, so the dismissal was by reason of redundancy.
• On fairness (s98): the tribunals’ assessment that King’s acted within the band of reasonable responses was not impeached; the employer had engaged in consultation and attempted redeployment, and those factual conclusions were upheld.
• On Step 1 compliance (Schedule 2): the Court of Appeal undertook a legal analysis of what a Step 1 statement must contain, drawing on authorities such as Alexander v Bridgen, Homeserve v Dixon and Zimmer v Brezan. It held that the letter relied upon by King’s (9 July 2007) did not itself set out in writing that dismissal for redundancy was being contemplated and that it was impermissible to supply that omission by referring to prior oral communications or the employee’s own emails. On that legal basis the court concluded there had been a failure to comply with the written Step 1 requirement, rendering the dismissal automatically unfair.

Disposition:

• The Court of Appeal allowed the appeal on the Step 1 point, set aside both tribunals’ decisions and remitted the case to the employment tribunal for a remedy hearing. Other grounds of appeal were dismissed.

Contextual note:

• The judgment emphasises the statutory requirement that the minimum warning be given in writing and records judicial caution about treating as "implicit" matters that are not explicitly stated in the employer's Step 1 communication.

Appeal allowed (in part). The court allowed the appeal on the single ground that King’s had failed to comply with Step 1 of the statutory Standard Procedure in Schedule 2 to the Employment Act 2002 because the employer did not give the required written statement that dismissal for redundancy was being contemplated; that failure rendered the dismissal automatically unfair. The court upheld the tribunals’ factual findings that the dismissal was attributable to redundancy and that, apart from the Step 1 defect, King’s had acted within the band of reasonable responses; it set aside the tribunals’ orders and remitted the case to the employment tribunal for a remedy hearing.

Employment Tribunal (London South) dismissed appellant's unfair dismissal claim (reserved judgment sent 30 December 2008). Employment Appeal Tribunal dismissed the appeal (judgment 24 June 2009) and refused a review (30 July 2009). Appellant filed late notice for appeal to the Court of Appeal; Maurice Kay LJ extended time but refused permission on the papers (18 December 2009). Permission was renewed and granted by the full court; hearing in the Court of Appeal took place on 19 May 2010; judgment delivered 27 October 2010 allowing the appeal on the Step 1 point and remitting the remedy issue to the employment tribunal.