Brunel University v Killen

A reorganisation does not of itself establish a redundancy dismissal. The question under section 139 is whether the employer’s requirements for employees to perform work of a particular kind have ceased or diminished. That is ordinarily a question of fact for the Employment Tribunal.

In assessing fairness under section 98(4), the Tribunal must assess the employer’s actions. A comparative advantage in a selection process does not itself make the dismissal unfair unless the employer knew of the disadvantage and unreasonably failed to address it.

An employer’s accepted explanation that the successful candidate performed better at interview cannot support a finding of age discrimination unless there is evidence capable of linking that explanation or the treatment to age.

The Claimant was a senior conferences manager. Following a successful in-house bid, the University restructured its department. Her former role was redistributed among new posts. She was ringfenced and interviewed for a lower-grade deputy conferences post, but another candidate was appointed. The University then dismissed her, describing the dismissal as redundancy.

The Employment Tribunal held that there was no redundancy because the business’s need for work of the relevant kind had not diminished. It held that the restructuring was nevertheless some other substantial reason, and found the dismissal unfair and the Claimant subject to age discrimination.

The University appealed. The central issues were whether the Tribunal’s conclusion on the reason for dismissal was open to it, whether its fairness reasoning was legally sound, and whether its age-discrimination conclusion had an evidential basis.

1. Appeal allowed in part. The Tribunal was entitled to find that the dismissal was for some other substantial reason rather than redundancy. It correctly directed itself to the statutory question under Employment Rights Act 1996 section 139. Its references to the Claimant’s own work had to be read in context. Its findings that the employer’s requirements for employees generally to perform work of the relevant kinds had not diminished were open to it.

2. The Tribunal’s conclusion that the Claimant should have been assimilated to the deputy post could not stand. Its finding that the roles were substantially similar was inconsistent with its separate finding that the employer sought a major new selling emphasis. It had assessed only part of the evidence and gave no adequate explanation for the inconsistency.

3. The alternative fairness reasoning was also inadequate. The statutory inquiry under section 98(4) concerns whether the employer acted reasonably in treating the stated reason as sufficient for dismissal. A candidate’s advantage arising from greater knowledge or preparation does not establish unfair conduct by the employer unless the employer knew of the disadvantage and unreasonably failed to remedy it. The Tribunal made no such finding.

4. The age-discrimination finding was reversed. Although the Tribunal could require an explanation where the Claimant appeared better qualified, it accepted that the successful candidate had performed better at interview. The matters relied upon to reject that explanation did not connect the appointment, interview performance, or any employer conduct to age. The Tribunal had also found no necessary age-related meaning in the comment concerning “old people”.

5. The unfair-dismissal issue was remitted to an Employment Tribunal for a fresh assessment under section 98(4). The Tribunal could not substitute its own conclusion on fairness.

• Employment Appeal Tribunal: allowed the University’s appeal against the age-discrimination finding, upheld the conclusion that the dismissal was for some other substantial reason, set aside the unfair-dismissal reasoning, and remitted fairness for redetermination: [2014] UKEAT 0403_13_1403.
• Employment Tribunal at Watford: held that the Claimant had been unfairly dismissed and less favourably treated because of age. No citation for its decision is stated in the judgment.