Prowes-Piper v Anglian Windows Ltd & Ors

A genuine redundancy situation does not prevent discrimination in how redundancy is implemented. The implementation may include the employer’s handling of suitable alternative employment. A tribunal may therefore find genuine redundancy but still need to decide whether discriminatory treatment affected the failure to offer suitable alternative work. Broad allegations of continuing discriminatory treatment can encompass that issue, even where the pleadings do not identify it in those precise words. Where the tribunal’s findings leave the issue unresolved, the Employment Appeal Tribunal may remit it as an error of law. The Court of Appeal will be slow to interfere with such a case-management decision by an expert appellate tribunal.

Ms A Prowes-Piper was dismissed by Anglian Windows Ltd following a restructuring and proposed redundancy. The employment tribunal found a genuine redundancy situation, unfair dismissal because suitable alternative employment had not been properly explored, and sex discrimination and harassment in other respects. It did not decide whether the failure to offer alternative employment was itself discriminatory.

The Employment Appeal Tribunal allowed the respondent’s appeal and remitted that issue, identifying a lacuna in the tribunal’s findings. The employer and individual appellants argued that the point had not been pleaded and amounted to a fresh case on appeal. The central issue was whether the EAT was entitled to remit the question whether sexual discrimination had infected the approach to alternative employment.

1. Appeal dismissed. Pill LJ gave the reasoned judgment. Hooper LJ and Pitchford LJ agreed.
2. A genuine redundancy situation does not exclude sex discrimination in the manner in which the redundancy is implemented. That may include the employer’s approach to offering suitable alternative employment. The conceptual distinction identified by Underhill J in London Borough of Hackney v Distant UKEAT 0487/08 between the reason for dismissal and the handling of alternative employment was accepted.
3. The employment tribunal’s findings left a material lacuna. It had found prolonged discriminatory treatment, a genuine redundancy process, and no serious effort to find suitable alternative employment. Its finding that the relevant manager had no particular desire to retain the respondent required consideration of whether the discriminatory treatment carried forward into the approach to alternative employment. Failure to determine that issue was an error of law.
4. The respondent’s case had included broad and persistent allegations that the dismissal formed part of a chain of discriminatory treatment and that the proposed alternative work failed to take account of her family responsibilities. In that context, the absence of a specifically pleaded allegation concerning alternative employment did not prevent the EAT from treating the issue as raised.
5. The decision to remit was a case-management decision within the EAT’s expertise. Such a decision should not readily be overturned. The issue was remitted to the employment tribunal for determination.

• Court of Appeal (Civil Division): In [2010] EWCA Civ 428, the appeal from the EAT was dismissed and the remittal was upheld.
• Employment Appeal Tribunal: Allowed the respondent’s appeal from the employment tribunal and remitted the issue whether the failure to offer alternative employment was discriminatory.
• Employment tribunal: Found a genuine redundancy situation, unfair dismissal, and sex discrimination and harassment in other respects, but left unresolved whether the failure to offer suitable alternative employment was discriminatory.