The Council Of The City Of Newcastle Upon Tyne v Ford & Ors

In determining fairness under section 98(4), an Employment Tribunal must not substitute its own assessment for the employer’s. It may nevertheless find a redundancy dismissal unfair where a flawed recruitment process deprived employees of a fair opportunity to retain employment.

A tribunal may determine an issue which emerged from the evidence where it was argued by both parties. An appeal court must not overturn that evaluative conclusion merely because it might have reached a different view. It must identify legal perversity or an impermissible re-marking of the employer’s assessment.

The Council restructured its Youth Service and required existing staff to apply for new posts. Ms Ford and Mr Khan applied unsuccessfully for Youth Development Worker posts and were dismissed for redundancy.

The Employment Tribunal found the dismissals unfair. It held that the Council had not told internal candidates that the interview panel would disregard both their written expressions of interest and its previous knowledge of them unless the candidates raised the material in interview. It made Polkey reductions to compensation.

The Council appealed, contending that the Tribunal had decided an unpleaded point and had substituted its own view for that of the employer. The central issue was whether the Tribunal’s conclusion on the fairness of the recruitment process was legally permissible under ERA 1996, section 98(4).

1. Appeal dismissed. The Employment Tribunal was entitled to find the redundancy dismissals unfair.

2. An Employment Tribunal adjudicates disputes of fact and law between the parties; it does not conduct a free-standing inquiry. That principle did not assist the Council. The factual basis of the Tribunal’s finding emerged principally from the Council’s own witness. Mr Khan’s representative advanced the point in closing submissions, and the Council answered it. The Tribunal therefore decided an issue fairly before it. There was no procedural unfairness.

3. The Tribunal had correctly directed itself that it must not substitute its judgment for the employer’s when applying section 98(4) of ERA 1996. The assessment was fact-sensitive. The Tribunal did not decide that either claimant should have been appointed, nor did it re-mark the interview scores. Its concern was the procedural flaw: internal candidates had not been informed that only material expressly stated at interview would count, despite the panel’s previous knowledge of them and the existence of their written expressions of interest.

4. The Tribunal could treat the exceptionally poor scores, also regarded by the Council’s manager as surprising, as reinforcing its conclusion that the candidates had not been given a fair opportunity to save their employment. Its Polkey findings confirmed that it recognised only a chance, rather than a certainty, that a proper process would have preserved their jobs.

5. Although the Appeal Tribunal might itself have reached a different conclusion, it could not say that the Tribunal’s conclusion was perverse or involved an impermissible substitution of view. The process flaws could lawfully amount to unfairness under section 98(4).

• Employment Appeal Tribunal: the Council’s appeal against the unfair-dismissal findings was dismissed.
• Employment Tribunal: in reasons promulgated on 27 February 2013, it found Ms Ford’s and Mr Khan’s redundancy dismissals unfair and made Polkey reductions to their compensatory awards.