Bond v. Urmet Domus Communication & Security UK Ltd

For the statutory dismissal procedure, an employer must provide sufficient information to enable an employee to make an informed response to a proposed redundancy dismissal. It is insufficient merely to identify the selection criteria and the employees at risk. The employer must also explain how the criteria were applied to the individual employee and why that employee was selected rather than another. The information must be provided in time to permit a meaningful response. The obligation applies equally to small and large employers and is not displaced because only two employees are being compared. The employee’s duty to attend and participate arises only after the necessary information has been supplied.

The Employment Tribunal found that the employer had complied with the statutory dismissal procedure during a redundancy process. The employee knew the selection criteria and that he or another employee would be selected, but was not told how the criteria had been applied to him or why he had been selected. The Tribunal concluded that he could have deduced the reason and had opportunities to raise questions.

The appeal concerned whether that conclusion satisfied Step 2 of the standard procedure in Part 1 of Schedule 2 to the Employment Act 2002, with the consequence prescribed by section 98A(1) of the Employment Rights Act 1996.

1. Appeal allowed. The Tribunal erred in treating Alexander v Bridgen as inconsistent with the present case. The principles in that decision were derived from the statutory provisions and were of general application.
2. Step 2 required the employer to provide information about both the redundancy situation and the employee’s individual selection. In a comparative selection exercise, that included the selection criteria used, the employee’s own assessment against them, and the information showing why he, rather than the other employee, had been selected.
3. The employer need not invariably disclose precise numerical marks. Under Davies v Farnborough College of Technology, the information must nevertheless be sufficient to enable the employee to understand, challenge, correct or supplement the matters relied upon in applying the criteria. The employee must have a meaningful opportunity to respond, rather than an opportunity to speculate or respond in a vacuum.
4. The obligation applied despite the employer’s small size, informal practices and the fact that only two employees were being compared. The employee’s failure to attend a later meeting did not cure the employer’s prior failure to provide the necessary information. The duty to engage with the process could not be fulfilled until that information had been supplied.
5. On the Tribunal’s findings, the employer had not explained how the criteria were applied to the employee personally or why he was selected. The statutory procedure was therefore incomplete, and section 98A(1) rendered the dismissal automatically unfair.
6. The EAT substituted a finding of automatic unfair dismissal and remitted the case to a fresh Tribunal to determine remedy and any other outstanding matters, including issues such as Polkey.

• Employment Appeal Tribunal: Allowed the appeal, substituted a finding of automatic unfair dismissal and remitted the case to a fresh Employment Tribunal for determination of remedy and other outstanding matters.
• Employment Tribunal: Found that the statutory procedure had been complied with and rejected the claims of automatic and ordinary unfair dismissal. No citation for that decision is stated in the judgment.