Stephenson College v Jackson

A redundancy dismissal may be unfair where an employer rejects a volunteer for redundancy and instead dismisses a closely comparable employee, but only if the decision falls outside the range of reasonable responses. A tribunal must not substitute its own view. It may nevertheless find the decision unreasonable where the evidence shows no material basis for preferring the volunteer, whose skills and performance were substantially similar.

Events after the redundancy exercise, including a co-worker’s later resignation, are irrelevant to the fairness decision. A tribunal does not err, however, where it refers to that event only as confirming a finding about circumstances known to the employer at the material time.

The claimant, a brickwork trainer, was selected for compulsory redundancy after scoring one point worse than Mr Cooper. Mr Cooper, who was next in line for selection, had applied for voluntary redundancy. The Employment Tribunal held that the employer’s refusal of that application, followed by the claimant’s dismissal, was a decision no reasonable employer would have made.

The employer appealed. It contended that the Tribunal had failed to assess the redundancy process as a whole, had impermissibly relied on Mr Cooper’s subsequent resignation, and had made unsustainable factual findings. The central issue was whether the Tribunal was entitled to find the dismissal unfair despite accepting the scoring process.

1. Appeal dismissed. The Employment Tribunal was entitled to distinguish between the fairness of the scoring process and the substantive decision to retain Mr Cooper while dismissing the claimant. It had not found any defect in the scoring. Its finding concerned the separate decision not to accept the voluntary redundancy application.

2. The Tribunal had correctly recognised that an employer may reasonably reject a volunteer where the volunteer has skills it cannot lose or is a more satisfactory employee. It had also directed itself to avoid substituting its own view. On the facts found, however, Mr Cooper was next in line for redundancy; the relevant witnesses identified little material difference between him and the claimant; the manager had no input into, and no explanation for, the rejection; and there was no evidence that the employer attached practical value to Mr Cooper’s qualification. The conclusion that no reasonable employer would have preferred compulsory dismissal of the claimant was therefore open to the Tribunal.

3. Mr Cooper’s resignation after the exercise was irrelevant to fairness and reliance on it would have been an error of law. Read fairly, the Tribunal had not relied on it. It had found that the employer already knew that Mr Cooper was unhappy and struggling in his role. The later resignation was merely confirmatory narrative.

4. The remaining grounds impermissibly challenged findings of fact without alleging perversity. The Tribunal’s conclusion was unchallengeable on the evidence.

• Employment Appeal Tribunal: Dismissed Stephenson College’s appeal and upheld the Employment Tribunal’s finding that the redundancy dismissal was unfair.
• Employment Tribunal (Nottingham): Employment Judge Evans held that the claimant’s dismissal for redundancy was unfair. The decision was sent to the parties on 9 October 2012.