King v Royal Bank Of Canada Europe Ltd

An employment tribunal finding unfair dismissal must explain the possible remedies of reinstatement and re-engagement and ask whether the claimant seeks such an order. It must address re-engagement by reference to practicability at the time of the hearing, not merely alternative employment available when dismissal occurred.

When assessing compensation after a peremptory redundancy dismissal, the tribunal must consider the chance of suitable vacancies arising throughout the period during which fair consultation should have taken place. The employer should provide evidence of vacancies within that period, while both parties may address suitability.

A tribunal must resolve factual disputes which are important to its conclusions. Failure by a litigant in person to cross-examine on an issue does not necessarily remove it from the case.

Ms King was dismissed by Royal Bank of Canada Europe Ltd in July 2008. The employer accepted that the dismissal was automatically unfair because the statutory dismissal and disciplinary procedure had not been followed, but maintained that redundancy was the genuine reason and that no suitable alternative employment existed.

The Employment Tribunal upheld unfair dismissal, rejected sex discrimination, and awarded a basic award and two months’ net pay. It did not address the claimant’s request for reinstatement or re-engagement, failed to determine an important dispute about what was said at the dismissal meeting, and considered only an August vacancy list when assessing compensation.

The central issues before the Employment Appeal Tribunal were whether those omissions were errors of law, whether permission to amend the grounds of appeal should be granted, and what matters had to be reconsidered on remission.

1. Appeal allowed in part. The Employment Tribunal erred in law by failing to comply with section 112(2) of the Employment Rights Act 1996 and by failing to address re-engagement. The relevant question was practicability at the time of the hearing. The absence of suitable employment at dismissal did not answer that question. The issue was remitted for proper findings.
2. The Tribunal also erred by failing to resolve the important dispute about what Mr Fleming said at the dismissal meeting. The claimant had raised the issue clearly in her claim form and witness statement and maintained her account in evidence. A failure to cross-examine, particularly by a litigant in person, did not necessarily mean that the issue was abandoned. The Tribunal could decide the issue against either party, but it had to make findings and observe fairness if relying on a point not put in cross-examination.
3. In assessing compensation, the Tribunal correctly accepted that the dismissal would have occurred after a two-month fair process. However, it unlawfully restricted its consideration of alternative employment to vacancies existing on 11 August. It had to consider the chance of suitable vacancies arising throughout the appropriate consultation period. The employer was expected to produce evidence of vacancies during that period, after which both parties could address suitability.
4. The Tribunal did not err in applying the principles in Polkey v A E Dayton Services or in rejecting the bonus claim on the contractual findings. The compensation and, if necessary, discrimination issues were remitted to a differently constituted Tribunal, which was also to reconsider the genuine reason for dismissal if the factual findings about the dismissal meeting warranted it.

• Employment Appeal Tribunal: allowed the appeal in part against the Employment Tribunal sitting in London Central, dated 8 February 2010. The case was remitted to a differently constituted Tribunal.
• Employment Tribunal, London Central: found the dismissal unfair, rejected sex discrimination, and awarded compensation limited to a basic award and two months’ net pay.