Missirlis v Queen Mary University Of London

Where an agreed issue in an unfair-dismissal claim concerns whether an employer’s decision to end employment immediately deprived the employee of a redeployment opportunity, the Employment Tribunal must determine it. It cannot be treated as resolved by findings about later vacancies outside the redeployment period.

In applying section 98(4), the Tribunal must assess whether dismissal was reasonable in light of potential alternative employment, the employer’s redeployment procedure, the employee’s possible priority under it, and the employer’s knowledge of forthcoming vacancies. Where material findings are absent and more than one outcome is possible, the appellate court must remit rather than substitute a finding of unfair dismissal.

The Claimant was dismissed for redundancy with payment in lieu of his three-month notice period. Two weeks later, the Respondent advertised lecturing posts in cell and molecular biology. The Claimant contended that they were suitable alternative employment and that immediate dismissal had deprived him of rights under the Respondent’s redeployment procedure.

The Employment Tribunal dismissed the claims on 19 March 2014. Although its agreed issues included the similarity of the July 2012 posts and whether payment in lieu deprived the Claimant of redeployment rights, its Reasons did not address those posts. The appeal concerned whether that omission was an error of law and, if so, the appropriate disposal.

1. Appeal allowed and unfair-dismissal issue remitted. The Employment Tribunal erred in law by overlooking a significant agreed issue. The Claimant’s case about the July 2012 vacancies, the redeployment procedure and the shortened notice period had been sufficiently pleaded, identified in the agreed issues and supported by evidence.

2. The Tribunal’s findings about vacancies advertised in February 2013 did not answer the issue. Those later vacancies were outside any redeployment period and the Tribunal had made no specific findings about the July 2012 posts. The later findings did not necessarily establish that the earlier posts were unsuitable or that redeployment consideration could properly be withheld.

3. In determining fairness under section 98(4), the Tribunal must decide whether the Respondent acted reasonably in ending employment immediately, having regard to its own redeployment procedure, the potential alternative work, the nature of the anticipated posts and any appropriate flexibility in selection requirements. It must make findings on whether the decision-makers knew that posts would shortly be advertised and whether the Claimant should have received priority consideration for suitable alternative employment.

4. A finding that dismissal was unfair could not be substituted. The missing factual findings meant that more than one answer remained possible.

5. The issue was remitted to the same Employment Tribunal if available. Applying the remittal criteria, there was no reason to doubt its ability to approach the question afresh, and its familiarity with the seven-day hearing gave substantial practical advantages. Given the elapsed time, it could admit further evidence if appropriate following the directions made.

• Employment Appeal Tribunal: Allowed the remaining appeal against dismissal of the unfair-dismissal claim and remitted that issue to the same Employment Tribunal if available.
• Employment Tribunal, East London: On 19 March 2014, dismissed the Claimant’s claims.