Bascetta v Santander UK Plc

In redundancy selection cases, an employment tribunal must assess whether the employer’s selection process was fairly designed and administered. It must not substitute its own scores or reassess the candidates. A finding based on an important allegation against a witness is procedurally unfair when the allegation was not put to that witness, particularly where it alleges improper conduct. For victimisation, the tribunal must ask why the decision-maker acted as he did, identifying the real reason and subjective intention. A possibility that the protected act was a factor is not enough. Each dismissal is assessed separately; evidence about employees retained is ordinarily relevant only exceptionally.

Ms Bascetta was selected for redundancy after a reorganisation reduced the number of IT team leaders from two to one. The employment tribunal found a genuine redundancy but concluded that the selection exercise was unfairly conducted and that the dismissal amounted to victimisation because of an earlier discrimination claim.

The Employment Appeal Tribunal allowed Santander’s appeal. It held that the employment tribunal had relied materially on the SOX issue without giving the relevant witness a proper opportunity to address the allegation, and had erred in its assessment of the evidence. The matter was remitted for rehearing on unfair dismissal and victimisation. The central issues before the Court of Appeal were procedural fairness, the proper causation inquiry in victimisation, and the limits of tribunal reassessment of redundancy scores.

The Court of Appeal unanimously dismissed the appeal and upheld the remittal to a differently constituted employment tribunal.

1. An employment tribunal must put an important allegation of fact to the relevant witness in cross-examination so that the witness can respond. This requirement is especially important where the allegation concerns improper conduct. The tribunal was not entitled to make the SOX finding, which was central to both unfair dismissal and victimisation, without giving Mr Sheridan that opportunity. The omission amounted to procedural unfairness and an error of law: paras [21]–[24], [33]–[38].
2. For victimisation, the tribunal must ask why the alleged discriminator acted as he did. It must identify the real or core reason, including the decision-maker’s subjective intention and what he sought to achieve. This approach was drawn from Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830 and the similar statement in St Helens MBC v Derbyshire [2007] ICR 841. The tribunal’s statement that the protected act could have been a factor did not answer the required question. Its evidential analysis did not justify the finding of victimisation: paras [18]–[19], [27]–[29].
3. The detailed assessment did not show that Mr Sheridan had relied on the short period during which Miss Watkins had actually undertaken SOX work. The references to SOX were examples of relevant skills and included an acknowledgement that she would need to demonstrate those skills in future. The proposed reduction of her score to zero was rejected: paras [25]–[26].
4. As additional guidance, the tribunal must not substitute its own judgment for the employer’s or embark on a reassessment of the selection exercise. Ordinarily, it is sufficient for the employer to show that it established a sound selection system and administered it fairly; it need not justify every assessment. The fairness of the applicant’s dismissal must be considered separately, and evidence concerning retained employees is ordinarily relevant only in exceptional circumstances. The Court referred to British Aerospace Plc v Green [1995] ICR 1006 and approved the observations in Eaton Ltd v King [1995] IRLR 75: paras [29]–[31].

Moore-Bick LJ agreed with Pill LJ, and Sir David Keene agreed with both judgments. The order was: appeal dismissed.

• Court of Appeal (Civil Division) [2010] EWCA Civ 351: dismissed Ms Bascetta’s appeal and upheld the remittal for rehearing.
• Employment Appeal Tribunal: allowed Santander’s appeal against the employment tribunal’s findings of unfair dismissal and victimisation, holding that the tribunal’s approach was procedurally unfair and erroneous on the merits. The matters were remitted to a differently constituted tribunal.
• Employment Tribunal: found a genuine redundancy but held that the selection exercise was outside the range of reasonable responses and that the dismissal involved victimisation. Other complaints were dismissed.