Asif v Elmbridge Borough Council (Redundancy : Fairness)

In an unfair redundancy appeal, it was reasonably arguable that an employee should have been retained where another employee in the same team was leaving, and that the employer’s redundancy policy required consideration of a trial appointment. Those grounds were permitted to proceed to a full hearing.

In an equal pay claim, a genuine material factor may be established by contemporaneous appraisals and evidence of the work actually performed by the claimant and comparator. Evidence relating to proposed new work may be considered, but must not replace comparison of the work already done. The Employment Appeal Tribunal will not interfere with factual assessments or the weight given to evidence absent an error of law.

The claimant appealed against the dismissal of her claims by an Employment Tribunal sitting at London South, whose judgment was registered on 23 May 2011. The dispute concerned her selection for redundancy following a reorganisation and an equal pay claim against a male comparator, Mr Wray.

At a preliminary hearing, the Employment Appeal Tribunal considered whether the redundancy grounds were reasonably arguable and whether the Employment Tribunal had erred in accepting the respondent’s genuine material factor defence to the equal pay claim. The redundancy challenge focused on the claimant’s contention that another employee, Mrs White, was leaving and that the claimant should have been considered for the resulting work, including under the respondent’s people policy.

1. Redundancy appeal. The grounds concerning the claimant’s selection when Mrs White was leaving, and the alleged failure to consider her for a trial appointment under the respondent’s policy, were reasonably arguable. Those grounds, together with the related arithmetic and pass-mark arguments, were permitted to proceed to a full hearing on amended grounds. The Tribunal expressed no concluded view that the arithmetic point was independently reasonably arguable.
2. The Employment Appeal Tribunal observed that it does not reassess the scores awarded by individual managers in a redundancy exercise. Its jurisdiction is confined to questions of law. It may intervene only where the process was not dealt with fairly or involved an obvious error.
3. Equal pay appeal. The claimant had established like work with Mr Wray, so the respondent’s genuine material factor defence required examination. The Employment Tribunal was entitled to rely on contemporaneous appraisals made during the period when the claimant and comparator performed their work, including evidence that the claimant was still developing her skills, and on interview notes reflecting their presentation of the work already undertaken.
4. Material relating to how the employees might perform new work could be considered, but it could not by itself determine the equal pay comparison. There was sufficient evidence for the Employment Tribunal to find that Mr Wray’s greater previous experience, knowledge and skills constituted a genuine material factor explaining the pay difference. The appeal on that ground was dismissed.

• Employment Tribunal, London South: dismissed the claimant’s claims in a judgment with reasons registered on 23 May 2011.
• Employment Appeal Tribunal: at a preliminary hearing, permitted amended redundancy grounds to proceed to a full hearing and dismissed the equal pay ground of appeal.