Zeff v Lewis Day Transport Plc

An employer need not devise selection criteria where the relevant business decision removes all posts within a discrete category and no choice is required between employees for dismissal. The tribunal must assess the employer’s proposed pool, but its factual conclusion will not be disturbed unless legally erroneous or perverse.

In a redundancy case, the employer must identify and take reasonable steps to secure suitable alternative employment. However, under Employment Rights Act 1996, section 98A(2), a procedural failure does not make dismissal unfair where the tribunal is satisfied, on the evidence as a whole, that the employee would have been dismissed anyway. No burden lies on the employee to identify alternative work.

The claimant, a chauffeur-desk manager, appealed against the Employment Tribunal’s dismissal of his unfair-dismissal claim. The employer had closed the chauffeur desk during a downturn. The tribunal found that the manager and two controllers’ roles had disappeared, while two administrators transferred to another desk and continued doing the same work.

The claimant argued that all five employees should have been in one selection pool, with criteria, consultation and consideration for subordinate employment. He also challenged the tribunal’s reliance on section 98A(2) concerning alternative employment and alleged perversity.

1. Appeal dismissed. The tribunal was entitled to find that the chauffeur desk’s closure ended the requirement for a manager and two controllers, while the administrators’ roles continued and transferred to the car desk. This was not a case of selecting three employees from five similar jobs.
2. Because the relevant posts were all redundant, no selection between candidates arose and no selection criteria or consultation about such criteria was required. Arguments based on authorities concerning selection criteria therefore fell away.
3. The tribunal made no error in rejecting the complaint about bumping. Bumping may be considered in a redundancy situation, but an employer is not obliged to adopt it. In some circumstances failure to consider it may fall outside the band of reasonable responses, but no sufficient reason for bumping was established here.
4. The employer had failed to take sufficient steps to secure suitable alternative employment. Nevertheless, section 98A(2) applied. The tribunal was entitled to consider the claimant’s actual conduct concerning vacancies of which he knew, rather than his general statement that he would take any job, and to conclude that he had no genuine interest in them.
5. The statutory burden is satisfied where, after considering all the evidence, the tribunal is satisfied on the balance of probabilities that the employer would still have dismissed the employee. The evidence need not have been advanced specifically by the employer.
6. The tribunal’s further observation that section 98A(2) would have applied to hypothetical defects concerning consultation, pooling or selection criteria was a postscript and not material to its decision. The finding was not perversely impermissible.

• Employment Tribunal, London (Central): dismissed the claim for unfair dismissal; decision promulgated 21 April 2010.
• Employment Appeal Tribunal: dismissed the appeal against that decision on 17 May 2011.