Asif v Elmbridge Borough Council

An appellate tribunal will ordinarily refuse to permit a party to withdraw a clear concession and raise a new point which would require further factual investigation. The fact that the party was unrepresented does not itself create exceptional circumstances. A concession may be revisited where it was not clear, unequivocal and unambiguous.

In a redundancy reorganisation involving genuinely new roles, fairness under section 98(4) of the Employment Rights Act 1996 permits a forward-looking assessment of candidates’ ability to perform those roles. An Employment Tribunal should not substitute its own assessment for a good-faith employer’s assessment. It may find it reasonable not to offer a vacant role, including on a trial basis, to a candidate found not to meet its essential criteria.

The claimant was dismissed following a restructuring in which four employees competed for three new, higher-graded customer-services posts. The selection process and scoring criteria had been agreed with the trade union. The claimant obtained the lowest score and was found not appointable to any new post.

During her notice period, one successful candidate resigned. The Employment Tribunal dismissed the claimant’s unfair-dismissal claim. It held that the new posts were materially different, that the selection process was fair, and that it was not appropriate to offer the claimant the vacated post.

On appeal, the claimant sought to withdraw her concession that redundancy was the reason for dismissal. She also argued that the Tribunal had failed properly to consider the agreed redeployment procedure and its provision for a three-month trial period.

1. Appeal dismissed. The claimant could not withdraw her concession that redundancy was the reason for her dismissal. The concession had been made consistently at case-management and throughout the hearing. It was clear, unequivocal and unambiguous. Her unrepresented status did not justify reopening it.

2. The proposed new issue would have required a fuller factual investigation into the differences between the former and new posts. That was precisely the circumstance in which an appellate tribunal should not permit a new point to be raised. There were no exceptional circumstances.

3. In any event, the Employment Tribunal had made sufficient findings to support a continuing redundancy situation. The new posts required greater expertise, more proactive work, less supervision and carried a higher grade. The resignation of one successful candidate did not undo the cessation or diminution in the requirement for employees to carry out the former work.

4. On fairness under section 98(4) of the Employment Rights Act 1996, the Tribunal was entitled to uphold the agreed assessment process. The claimant’s score was substantially lower than those of the successful candidates. There was no remaining challenge based on bad faith, obvious error or perversity. The employer could reasonably conclude that she was not appointable to the new posts, notwithstanding the absence of a formal pass mark.

5. The redeployment policy did not make a trial period compulsory. The Tribunal had considered the policy and the vacancy created by the resignation. Once it found that the claimant did not meet the essential criteria for the new role, it was entitled to conclude that it was not unreasonable to withhold an offer, whether on a trial basis or otherwise. The appeal invited an impermissible re-evaluation of the Tribunal’s factual assessment.

• Employment Appeal Tribunal: appeal dismissed; the Employment Tribunal’s dismissal of the unfair-dismissal claim was upheld.
• Employment Tribunal, London South: dismissed the claimant’s claims for unfair dismissal, disability discrimination and equal pay. The latter two claims were not pursued on this appeal.