Green v London Borough of Barking & Dagenham

In a redundancy dismissal, the governing question is always whether the employer acted reasonably under section 98(4) of the Employment Rights Act 1996. An Employment Tribunal must review the employer's decisions and process at each material stage against the range of reasonable responses. It must not treat Morgan-type restructuring as a separate legal rule that displaces that statutory assessment.

The Williams guidance is not prescriptive. A forward-looking assessment and interview process may be reasonable, even where jobs are reduced or reorganised, but its fairness remains for assessment under section 98(4). Matters relevant only to remedy should not affect the liability decision.

The Claimant, a senior regeneration professional and trade union steward, was dismissed following a restructuring in which three existing PO6 roles became two. She unsuccessfully competed for one of the remaining roles through a written assessment and interview. She also complained about assimilation into another role, consultation, the selection pool, the absence of an effective appeal, and an alleged advantage held by a competing candidate.

The London East Employment Tribunal dismissed her claims for ordinary unfair dismissal and automatic unfair dismissal for trade union activities. The Claimant appealed. The central issue was whether the Tribunal had applied the statutory fairness assessment required by section 98(4) of the Employment Rights Act 1996 to the redundancy process as a whole.

1. Appeal allowed in part. The appeal against dismissal of the automatic-unfair-dismissal claim under section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992 was dismissed. Read as a whole, the Tribunal had found that the Claimant's trade union activities did not play on the Respondent's mind when it decided to dismiss her. Its reference to bad faith did not show that it had applied an unlawfully narrow test.

2. The Tribunal had not expressly found the reason for dismissal, as it should have done. Its reasoning nevertheless permitted the inference that it had accepted redundancy as the reason, which was capable of being fair under the Employment Rights Act 1996.

3. The unfair-dismissal decision was unsafe. The Tribunal had treated Morgan v Welsh Rugby Union as if it created a distinct legal rule for restructurings involving appointment to roles. Morgan instead directs a tribunal back to the unqualified statutory question under section 98(4).

4. A restructuring may properly involve a forward-looking assessment of candidates' abilities, and an assessment and interview process may fall within the range of reasonable responses. The Tribunal must nevertheless examine the employer's decisions and process at every material stage. It must not substitute its own view for that of the employer.

5. The Tribunal had failed adequately to address the selection pool, the early assimilation process, the fairness of the handling of the Claimant's appeal, and collective and individual consultation. Its apparent regard to matters relevant to a possible Polkey remedy assessment further reinforced the conclusion that its liability decision was unsafe.

6. The ordinary unfair-dismissal claim was remitted for a complete rehearing before a freshly constituted Employment Tribunal. The constitution of that Tribunal was left to the Regional Employment Judge.

• Employment Appeal Tribunal: Allowed the appeal concerning ordinary unfair dismissal, dismissed the appeal concerning automatic unfair dismissal under section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992, and remitted the ordinary unfair-dismissal claim for a fresh hearing: [2017] UKEAT 0157_16_1003.

• London East Employment Tribunal: Dismissed the claims for unfair dismissal under the Employment Rights Act 1996 and automatic unfair dismissal.