Parfums Givenchy Ltd v Finch

In a redundancy dismissal, an employer within a group of companies must consider whether assistance or alternative work may be available elsewhere in the group. It must consider applications properly and in good faith, and must not unfairly influence the appointing officers of another group company. That duty does not ordinarily entitle an employer or group controller to allocate an employee to a position in an autonomous subsidiary.

An Employment Appeal Tribunal may remit where fundamental factual mistakes mean that the decision cannot be regarded as unarguably correct. An award under Employment Act 2002, section 38, was unavailable where employment began before the statutory qualifying date.

The claimant, employed by Parfums Givenchy Ltd since 1984, was dismissed after the closure of the respondent’s Selfridges beauty counter. The respondent formed part of a group including other perfume companies and Louis Vuitton. The claimant alleged that suitable vacancies existed within the group but that her applications had been unfairly rejected.

The Employment Tribunal upheld her unfair dismissal claim and awarded compensation under section 38 of the Employment Act 2002 for inadequate written particulars. It rejected her contractual holiday-pay claim. The respondent appealed, challenging factual findings, the section 38 award and mitigation issues. The claimant cross-appealed on holiday pay.

1. Appeal allowed; cross-appeal dismissed. The unfair dismissal claim was remitted to a fresh Employment Tribunal. The section 38 and holiday-pay issues were not remitted.
2. The Employment Tribunal had made fundamental factual mistakes by repeatedly treating line managers from separate companies as HR managers and by failing to reflect evidence that the group companies operated autonomously. Those mistakes affected the central question whether Sophy Brown could influence the selection process and meant that the decision could not be regarded as unarguably correct. The judgment was therefore perverse in those respects.
3. In a redundancy situation, the duty is to consider whether assistance can be given and whether alternative work may be available elsewhere in the employer’s group. If employees are invited to apply for vacancies, the applications must be properly considered and the process must be conducted in good faith. The employer must not unfairly influence the appointing officers of subsidiary companies. The duty does not require the employer to allocate an employee to a position in an autonomous group company where the evidence does not establish that it has power to do so.
4. The claimant’s employment began in 1984. Section 1 of the Employment Rights Act 1996 applied only to employment beginning after 13 November 1993. The claimant therefore could not rely on section 38 of the Employment Act 2002, and that award was set aside without remission.
5. The holiday-pay claim was contractual. The claimant accepted that the contract contained no provision for carrying over holidays, so the claim could not succeed. A new suspension-related contractual argument could not be raised on appeal because it had not been advanced below.
6. The EAT did not determine the mitigation grounds. It observed that, if an Employment Tribunal relies on its own knowledge of the local labour market, it should identify that knowledge so that the parties can make submissions. Applying Sinclair Roche & Temperley v Heard, and having regard to the narrow appellate role emphasised in Woodhouse School v Webster, remission to a differently constituted tribunal was fair and appropriate.

• Employment Tribunal, London Central — upheld the unfair dismissal claim, made an award for inadequate written particulars under section 38 of the Employment Act 2002, and rejected the contractual holiday-pay claim.
• Employment Appeal Tribunal — allowed the respondent’s appeal on the factual and section 38 grounds, dismissed the claimant’s cross-appeal, and remitted only the unfair dismissal claim to a differently constituted tribunal.