Samels v The University For The Creative Arts (Redundancy : Suitable alternative employment)

In a redundancy unfair-dismissal case, an Employment Tribunal may find procedural unfairness because suitable alternative work was not offered, even where other aspects of the redundancy process were reasonable. Once procedural unfairness is established, the Tribunal must assess under Polkey the chance that the employee would have been fairly dismissed or would have accepted the available work. The percentage assessment is a question of fact, provided it is reasoned and supported by the evidence. On remedy, forward-loss calculations and the practicability of reinstatement or re-engagement are also primarily matters for the Tribunal. An appellate tribunal should intervene only for an error of law, perversity or inadequate reasons.

The Claimant appealed against Employment Tribunal decisions on liability and remedy. The Tribunal found that a redundancy situation existed and that the Claimant was properly in a pool of one, but held the dismissal procedurally unfair because the Respondent had failed to offer him a suitable vacant post. It awarded compensation under section 123 of the Employment Rights Act 1996, applying a 75 per cent Polkey reduction to reflect the assessed chance that he would not have accepted the post.

The Claimant challenged the findings on selection, consultation, alternative employment, the reduction, pension and future-loss calculations, and the refusal of reinstatement or re-engagement. The central issues were whether the Tribunal had erred in law and whether its factual assessments were perverse or inadequately reasoned.

The application was dismissed and permission to appeal was refused.

1. The Tribunal had correctly applied the principles in Williams. Where the Claimant was the only person occupying the relevant grade 5 role at Farnham, he was properly treated as being in a pool of one. Selection criteria therefore did not arise. The employer’s managerial decision identifying the post for redundancy was not for the Tribunal to substitute with its own view.
2. The employer’s obligation included considering whether other jobs were available. The Tribunal was entitled to find that the failure to offer the vacant post previously occupied by Mr Lamer fell below the standard of a reasonable employer and made the dismissal unfair. The Claimant could not challenge that finding on his own appeal.
3. Because the unfairness was procedural, the Tribunal was required to consider the Polkey issue. It had to assess, on the evidence and as best it could, the chance that the Claimant would have accepted the alternative work. The 25 per cent chance of acceptance, producing a 75 per cent reduction, was a question of fact. It was neither perverse nor unreasoned.
4. The Tribunal was entitled to refuse reinstatement or re-engagement because the future employment relationship lacked sufficient trust and confidence. Re-engagement was described as an unusual remedy, and practicability was a matter of fact.
5. Future-loss, pension and other compensation calculations were matters for the Tribunal where supported by evidence and reasons. The Tribunal was entitled to project loss using the principles in Bwllfa and Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co.

1. Employment Tribunal: found the dismissal unfair because suitable alternative employment had not been offered and awarded compensation of £4,629.37.
2. Employment Appeal Tribunal: dismissed the Claimant’s appeals against liability and remedy. The Tribunal’s findings were upheld as lawful, reasoned and not perverse. Permission to appeal was refused.