Patel v South Tyneside Council & Ors (Redundancy : Definition)

A dismissal is properly characterised as redundancy where the employer reasonably expects a diminution in the need for employees to perform work of a particular kind, within Employment Rights Act 1996 section 139. An Employment Tribunal may reach that conclusion from the employer’s financial position, declining demand and consequent staffing needs.

An unpleaded redeployment complaint need not be introduced by the Tribunal in complex represented proceedings. A procedural feature of an internal appeal is not necessarily unfair merely because an appeal member had earlier participated in adopting redundancy criteria. In discrimination and victimisation claims, an imprecise reference to motive does not vitiate the decision where the Tribunal applies the correct inquiry: whether the treatment was because of race or protected acts.

The claimant, an Indian teacher at a school for children with learning difficulties, was dismissed following a reduction in the school’s roll and financial pressures. He brought unfair dismissal, race discrimination and victimisation complaints, including complaints concerning grievances, redundancy selection, redeployment, the internal appeal and redundancy payments.

After a 22-day hearing, the Employment Tribunal dismissed all claims. It found that the true reason for dismissal was redundancy and that none of the challenged conduct was discriminatory or victimising. The claimant appealed after an initial paper rejection and a subsequent Burns/Barke reference to the Employment Judge. The central issues were whether there was a statutory redundancy situation, whether the procedure was unfair, and whether the Tribunal had applied the correct discrimination and victimisation analysis.

1. Appeal dismissed. The Employment Tribunal was entitled to find a redundancy situation. The school’s falling roll, finances and anticipated reduced requirement for teachers supported the conclusion that the conditions in section 139 of the Employment Rights Act 1996 were met. Later use of temporary or supply teachers did not undermine that conclusion, particularly as the work was different and they were not engaged immediately after the claimant’s dismissal.

2. The redeployment complaint failed because it had not been pleaded and was not a live issue before the Employment Tribunal. In a lengthy, represented case, the Tribunal was not obliged to add a further allegation to the claimant’s case.

3. The involvement of a governor who had voted to adopt redundancy criteria did not make the subsequent appeal unfair. The Tribunal had considered the circumstances, including that the claimant had invited the governor to resume sitting on the appeal panel. Its evaluative conclusion on workplace fairness disclosed no error of principle.

4. The Tribunal’s reference to the decision-maker’s motivation when considering unresolved grievances was not helpful terminology. It did not, however, amount to a legal error. Read as a whole, the Tribunal had asked and answered the correct question: whether the failure to deal with the grievances was because of race or protected acts. It accepted the non-discriminatory explanation that substantially overlapping issues were already being dealt with in litigation.

5. The Employment Judge’s response to the Burns/Barke questions was within the permissible remit. There had been no objection to the substance or framing of those questions.

• Employment Appeal Tribunal: dismissed the claimant’s appeal from the Employment Tribunal.
• Employment Tribunal: dismissed the claimant’s unfair dismissal, race discrimination and victimisation complaints in a judgment sent with reasons on 9 April 2011.