Barot v London Borough of Brent (Redundancy)

A business reorganisation does not itself establish redundancy. It may do so where it causes, or is expected to cause, a diminished requirement for employees to carry out work of a particular kind. The inquiry concerns the business’s overall requirement for that work, rather than changes to individual jobs or a mere redistribution of unchanged work.

An employer may advance some other substantial reason late in a hearing where it relies on the same material facts and the employee has a fair opportunity to answer the point. A procedural irregularity will not justify appellate intervention without substantial unfairness. In a redundancy process, disclosure of exact assessment scores is unnecessary if the employee receives sufficient information to understand and challenge the selection decision.

The claimant, a Senior Accountant in the respondent council’s Children and Families Directorate, was dismissed following a restructuring exercise. The restructuring introduced more strategic and higher-level financial work. The Employment Tribunal found that the respondent had a diminished need for work of the particular kind previously undertaken by employees at the claimant’s grade, and that the dismissal for redundancy was fair.

The Tribunal also allowed the respondent, late in the hearing, to advance an alternative case of dismissal for some other substantial reason. It found that the claimant suffered no prejudice because the alternative case relied on the same facts.

The claimant appealed on grounds of perversity as to redundancy, procedural unfairness concerning the late SOSR point, and error of law concerning information and the statutory dismissal procedure.

1. Appeal dismissed. The Employment Tribunal was entitled to find a redundancy situation under Employment Rights Act 1996, section 139. A reorganisation which merely reshuffles a workforce does not necessarily create redundancy. However, the Tribunal had accepted evidence that the respondent required less of the claimant’s existing, process-driven senior-accountancy work and more strategic, higher-level work requiring different skills.

2. The absence of any reduction in the total number of employees did not prevent a redundancy finding. The relevant requirement was for employees to undertake work of the particular kind formerly performed by the claimant. The 38% match between the old and new roles, together with the evidence of changed functions and skills, supported the Tribunal’s conclusion. Its decision was not perverse.

3. The Tribunal’s decision to entertain the alternative SOSR case was a discretionary case-management decision. The SOSR case depended on substantially the same facts as the pleaded redundancy and unfair-dismissal cases. The claimant had time to prepare written submissions, did so, and neither sought an adjournment nor identified additional evidence, witnesses, documents, or materially different cross-examination that would have affected the result.

4. Applying the approach in Hannan, the late point was substantially one of labelling. There was no prejudice, still less substantial unfairness. The case was unlike Land Rover v Short, where uncertainty as to an issue prevented a party from seeking an adjournment and presenting further evidence. In any event, a procedural impropriety without substantial unfairness could not succeed on appeal.

5. The Tribunal was also entitled to reject the complaint about the statutory dismissal procedure. Exact assessment scores need not be supplied in every redundancy exercise. The employee must instead receive sufficient information to understand and challenge the basis of selection. The claimant had the job descriptions, the 38% matching assessment, feedback about her non-appointment, and an unused opportunity for further feedback.

• Employment Appeal Tribunal: Appeal dismissed: [2013] UKEAT 0539_11_1701 .
• Employment Tribunal at Watford: Held that the claimant had been fairly dismissed by reason of redundancy. The decision was sent to the parties on 24 March 2011.