Maguire v London Borough Of Brent

In a redundancy dismissal, the statutory question is whether the employer acted reasonably in treating redundancy as sufficient reason for dismissal at the time it occurred. The assessment under section 98(4) of the Employment Rights Act 1996 is broad and requires consideration of reasonable steps to avoid or minimise dismissal through redeployment.

An Employment Tribunal errs if it treats the question as confined to whether a post was formally a vacant post. Where a potentially suitable post is under review, the Tribunal must determine the matters bearing on its availability and on the overall reasonableness of dismissing the employee, rather than treating the review itself as decisive.

The Claimant was compulsorily dismissed for redundancy after his post was deleted in a local-authority restructuring. He alleged that the Respondent had failed to offer him suitable alternative employment in a post whose holder had resigned and which was under review.

The Watford Employment Tribunal dismissed the unfair-dismissal claim. It held that the post was not a vacancy because it remained under review. The Claimant appealed, contending that this approach failed to address the overall reasonableness of the dismissal and the Respondent's redeployment efforts.

1. Appeal allowed. The Employment Tribunal applied the wrong approach to the issue of redeployment. The governing question was whether the Respondent acted reasonably in treating redundancy as a sufficient reason for dismissal under section 98(4) of the Employment Rights Act 1996, assessed when the dismissal occurred.

2. The principles in Williams v Compair Maxam Ltd [1982] ICR 156, and Lord Bridge's formulation in Polkey v AE Dayton Services [1987] IRLR 503, require reasonable steps to avoid or minimise redundancy by redeployment. Suitable alternative employment will often be a suitable vacant post, but the statutory reasonableness inquiry cannot be replaced by the narrower question whether a post is labelled vacant.

3. The post became vacant in its ordinary and natural sense when its existing holder left before the Claimant's departure date. The fact that it was under review did not answer whether it was reasonable to dismiss the Claimant without offering, matching, or considering him for it. The Tribunal had to resolve material matters, including why the review was unfinished, whether the post could be occupied pending review, and whether dismissal could reasonably have been deferred.

4. The Tribunal gave no findings or reasoned conclusions on those matters. Its finding that there was no improper motive did not cure that substantial gap. The appellate court could not substitute a finding that dismissal was necessarily unfair because the required factual evaluation had not been undertaken.

5. The unfair-dismissal claim was remitted for a complete rehearing before a freshly constituted Tribunal. Applying the considerations in Sinclair Roche Temperley v Heard [2004] IRLR 763, delay and the risk that the original Tribunal might repeat its earlier conclusion favoured a fresh Tribunal.

• Employment Appeal Tribunal: Allowed the appeal and remitted the unfair-dismissal claim for a fresh hearing before a newly constituted Employment Tribunal.
• Watford Employment Tribunal: On 11 June 2012 dismissed the claims of unfair dismissal and indirect age discrimination. Only the unfair-dismissal dismissal was appealed.