Wood v Lloyds TSB Bank Plc

In a redundancy dismissal appeal, the Employment Appeal Tribunal will not overturn an Employment Tribunal’s factual findings merely because the employee advances a competing view of the evidence. A perversity challenge must meet the applicable high threshold.

Fairness requires an employer to consider a potentially redundant employee for available suitable vacancies. Whether the employee was informed of, and appropriately considered for, particular roles is ordinarily a factual issue. Where the Tribunal has made sustainable findings on evidence and no error of law is shown, the appeal will be dismissed.

The claimant, employed by the respondent until her redundancy dismissal on 31 December 2011, alleged unfair selection for redundancy. Her remaining complaint concerned the respondent’s consideration of alternative employment, particularly business operational analyst and group IT officer roles.

Following a three-day hearing, Employment Judge Gumbiti-Zimuto found that the claimant had been notified of the relevant roles and that the respondent had not acted unfairly. The claimant appealed. At the preliminary hearing she abandoned allegations concerning the Employment Judge’s fitness to hear the case.

The central issue was whether the Tribunal’s findings about the claimant’s awareness of, and the respondent’s treatment of, alternative vacancies could be impugned on an error-of-law or perversity basis.

1. Appeal dismissed. The Employment Judge had made findings, on contested evidence, that the claimant was aware of the business operational analyst and group IT officer roles. The challenge to those findings did not meet the perversity standard stated in Yeboah v Crofton, [2002] IRLR 634.

2. It is for the Employment Tribunal, rather than the Employment Appeal Tribunal, to determine disputed facts and make the necessary evaluative decisions on the evidence. The claimant’s different account of her knowledge of the vacancies did not establish a basis for appellate intervention.

3. The Tribunal had sufficient evidence concerning the availability of the roles, the claimant’s awareness of them, and the respondent’s treatment of the vacancies. The applicable fairness principle was that an employer should consider a potentially redundant employee for an available vacancy, consistently with Vokes v Bear Ltd, [1974] ICR 1, and Williams v Compair Maxam, [1982] IRLR 83.

4. Redundancy-selection criteria and processes are commonly difficult to overturn on appeal because they depend on factual findings and evaluative judgments. No question of law arose which entitled the EAT to interfere or send the case to a full hearing.

• Employment Appeal Tribunal: dismissed the claimant’s appeal at a preliminary hearing: [2013] UKEAT 0120_13_2706.
• Employment Tribunal: Employment Judge Gumbiti-Zimuto, sitting at Reading, rejected the unfair-dismissal complaint after a three-day hearing. Reasons were sent on 6 December 2012.