Colquhoun v Independent Living Support Ltd

In a redundancy dismissal, suitable alternative employment must be considered at the material time. A dismissal is not rendered unfair by procedural failures where the tribunal permissibly finds that no suitable alternative post was then available and that consultation or an appeal could not have affected the outcome.

An employer is not ordinarily required to dismiss an employee already appointed to an available role in order to redeploy an employee whose post is redundant.

The claimant, an IT Support Worker employed by a charity, was dismissed for redundancy after the employer decided to outsource its IT function. The Employment Tribunal found that redundancy was the reason for dismissal. Although the employer conceded procedural unfairness, it held the dismissal fair because consultation and an appeal would have made no difference.

The claimant appealed on the sole remaining ground that the Tribunal had failed to consider alternative front-line work. Three front-line employees had been recruited shortly before the redundancy decision. The central issue was whether suitable alternative employment was available when the redundancy situation crystallised.

1. Appeal dismissed. The Employment Appeal Tribunal held that the Employment Tribunal’s decision, read as a whole, permitted the inference that no suitable alternative employment was available at the material time.

2. The relevant time was when the trustees decided, in May 2016, to implement the cost-saving plan and dismiss the claimant. By then the three front-line posts had already been filled. The termination letter’s assertion that no vacancy existed was therefore accurate at that date, although potentially misleading because it did not disclose the earlier recruitment.

3. The Tribunal had considered the claimant’s capacity for front-line work and the possibility of redeployment. Its findings showed that any future alternative work depended on further referrals and vacancies. The employer was not required to dismiss existing employees to create a role for the claimant: [2012] EWCA Civ 1152.

4. The Tribunal’s findings that consultation, selection representations and an internal appeal could not have changed the redundancy decision were supported by its reasoning. Its unchallenged findings on credibility and the confidentiality concerns formed part of that factual assessment. The procedural failures therefore did not establish unfair dismissal in the circumstances.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal’s conclusion that no suitable alternative employment was available at the material time was upheld.
• Employment Tribunal: In a judgment dated 22 May 2017, sent to the parties on 26 May 2017, the claimant’s unfair-dismissal claim was unsuccessful. The Tribunal found redundancy to be the reason for dismissal and held the dismissal fair despite conceded procedural shortcomings.