Greater Glasgow Health Board v Lamont

A dismissal on expiry of a fixed-term contract is not, without more, a redundancy dismissal. The tribunal must determine, on all the facts, whether the reason for dismissal falls within the statutory definition in Employment Rights Act 1996, section 139.

The presumption in section 163(2) creates no formal evidential burden on the employer. It is displaced where the agreed or proved facts show a non-redundancy reason. Where a worker engaged solely to cover an employee’s secondment is dismissed on that employee’s return to a single-employee post, and the requirement for that work remains unchanged, there is no redundancy.

The claimant had continuous employment with the Health Board from 2006. In 2009 she accepted a two-year fixed-term variation to cover a colleague’s secondment in a single-employee post. Her contract ended when the colleague returned.

The Employment Tribunal at Glasgow awarded a contractual redundancy payment. It relied on the presumption that a dismissed employee was dismissed by reason of redundancy and considered that the employer had not rebutted it.

The employer appealed. The central issue was whether the agreed facts showed a redundancy within section 139 of the Employment Rights Act 1996, notwithstanding expiry of the fixed-term contract.

1. Appeal allowed. The Employment Tribunal erred by failing to decide the decisive question: whether the actual reason for dismissal fell within the statutory definition of redundancy in section 139 of the Employment Rights Act 1996.

2. The section 163(2) presumption does not impose a formal onus on the employer. The tribunal must decide the issue from all the evidence and agreed facts, regardless of its source. If those facts establish that the reason was not redundancy as defined by section 139, the presumption has no operation.

3. The Employment Judge wrongly treated the absence of an unfair-dismissal claim as preventing consideration of the substance of the employer’s stated reason. Although the label “some other substantial reason” was inapt to the contractual redundancy claim, the underlying facts remained directly relevant.

4. Expiry of a fixed-term contract constitutes dismissal for redundancy-payment purposes under section 136(1)(b), but does not itself establish redundancy. The proper inquiry, consistent with Pfaffinger [1997] ICR 142, is why the contract was not renewed.

5. Here the claimant was engaged only to cover a two-year secondment. The original employee returned to resume a post which always required one employee. The employer required one employee before and after the claimant’s dismissal. Its requirement for employees to carry out that work had therefore neither ceased nor diminished. The dismissal was plainly not by reason of redundancy. The EAT substituted a judgment to that effect.

• Employment Appeal Tribunal: allowed the employer’s appeal and substituted a judgment that the claimant was not dismissed by reason of redundancy.
• Employment Tribunal, Glasgow: judgment registered on 23 January 2012 awarded the claimant a contractual redundancy payment.