Richardson v HSBC Bank Plc

Where a dismissal is already unfair because a statutory dismissal procedure was not followed, the tribunal must still assess matters that could affect compensation. In a redundancy case, this includes whether the employer took reasonable steps to identify suitable alternative employment and whether the employee was fairly selected. The employer bears the evidential burden on matters within its knowledge, including the availability of alternative work. The tribunal must not treat the employee’s failure to suggest work as relieving the employer of that obligation. It must also examine the timing and adequacy of the employer’s search. A tribunal must consider the relevant selection pool and whether it was reasonable to train other employees to absorb the claimant’s work rather than consider her for related work or compare her with employees elsewhere in the business.

The Employment Tribunal upheld the claimant’s unfair-dismissal claim against HSBC Bank plc but awarded limited compensation. It found that the employer had failed to hold the meeting required by the Standard Dismissal and Disciplinary Procedure and that the dismissal was procedurally unfair in any event. It nevertheless concluded that the claimant would have been dismissed within about a month and assessed compensation on that basis.

On appeal, the claimant argued that the tribunal had failed to consider the employer’s efforts to find alternative employment and the fairness of her selection for redundancy. She also sought, unsuccessfully, to amend the Notice of Appeal to raise a further point concerning the statutory procedure.

1. Substantive appeal allowed and remitted. The tribunal’s assessment of compensation was unsafe because it had not adequately considered two matters which could affect the period of employment that would have followed a fair process.
2. First, the tribunal had to consider whether HSBC took reasonable steps to offer suitable alternative employment. The relevant principle in Compair Maxam was that an employer should seek to see whether it could offer alternative employment. Under Software 2000 and Seddington, the employer had to provide evidence about alternative work because that information was primarily within its knowledge. The claimant might then have to identify the work she said was available and show that she would have taken it, but the tribunal had to begin by examining the employer’s conduct.
3. The tribunal had wrongly approached the issue mainly by asking whether a later meeting would have made a difference. It should have considered the lengthy period during which redundancy was contemplated, the claimant’s experience and flexibility, the short period in which alternative work was considered, and her absence through illness. The vacancy list did not necessarily demonstrate that reasonable steps had been taken.
4. Secondly, the tribunal had to consider whether the claimant was fairly selected. It had not decided whether HSBC could reasonably treat the Desk as a separate pool, or whether it should have considered related CPE work, including work performed by a newly recruited temporary employee, rather than cross-training others to replace the claimant.
5. The interlocutory appeal was dismissed. Permission to amend the Notice of Appeal was properly refused because the application was late, involved additional evidence and authorities, and raised a point that was not plainly determinable from the existing findings.
6. The case was remitted to the same tribunal to reconsider the two identified issues and compensation, applying Software 2000.

• Employment Appeal Tribunal: The substantive appeal from the Employment Tribunal’s judgment dated 20 July 2009 was allowed and remitted for reconsideration of alternative employment, fair selection and compensation. The appeal against the Registrar’s refusal to permit amendment was dismissed.
• Employment Tribunal: The claimant’s discrimination claims were dismissed. Her unfair-dismissal claim succeeded, but compensation was limited.