Mirab v Mentor Graphics (UK) Ltd

In a redundancy dismissal, whether an employer should consider redeployment into a subordinate role, including by bumping another employee, is a fact-sensitive question under the range of reasonable responses. There is no general rule that the employer need consider bumping only if the employee raises it. The tribunal must also make findings that fairly engage with evidence that the employee indicated willingness to accept such a role.

An internal appeal forms part of the overall process when fairness is assessed under section 98(4) of the Employment Rights Act 1996. A tribunal errs if it excludes a defective appeal merely because it has found the original process fair. A defective appeal does not inevitably make the dismissal unfair, but it must be evaluated with all other circumstances.

The Claimant, a Sales Director, was dismissed after the Respondent decided that his role in its General Embedded Systems sales division was no longer required. The Watford Employment Tribunal found that this was a genuine redundancy, that a pool of one was reasonable, and that the dismissal was fair.

The Tribunal found that the internal appeal was superficial and lacked independent judgment. It nevertheless treated the appeal as relevant only if the original process was unfair. It also held that the Respondent need not consider bumping an Account Manager because the Claimant had not suggested it.

The Claimant appealed against the assessment of the appeal process, the finding concerning bumping and alternative employment, and the adequacy of the Tribunal’s reasons.

1. Appeal allowed in part. The Employment Tribunal erred in law by treating the internal appeal as relevant only if the original dismissal process was already unfair. The appeal was part of the overall process required to be assessed for fairness under section 98(4) of the Employment Rights Act 1996. Its superficial character and absence of independent judgment were therefore relevant. A deficient appeal will not inevitably render a dismissal unfair, but it cannot simply be excluded from the assessment.

2. The Tribunal also erred in its approach to alternative employment and bumping. Barratt Construction Ltd v Dalrymple did not establish a rigid rule that an employer need consider a junior role only if the redundant employee first raises it. Whether an employer reasonably should consider creating a vacancy by displacing another employee remains a fact-sensitive application of the range of reasonable responses.

3. The Tribunal’s finding that there was “no sign” that the Claimant would accept an Account Manager role was perverse. There was at least one indication during consultation that he might be prepared to do so, and other statements required consideration. The Tribunal could ultimately have found that the Respondent reasonably rejected the possibility, including because it would have required dismissal of another employee or involved a substantial reduction in pay. It had, however, failed to assess that question.

4. The challenges based on the Respondent’s size and resources, and on the adequacy of the Tribunal’s reasons, failed. The Tribunal had referred to those matters and was not required to address individually every authority advanced by the Claimant.

5. The issues of the internal appeal and alternative employment were remitted to the same Employment Judge, if practicable, for reconsideration.

• Employment Appeal Tribunal: appeal allowed in part. The findings on the fairness of the internal appeal and on consideration of an Account Manager role were remitted.
• Watford Employment Tribunal: on 21 March 2017, dismissed the Claimant’s unfair-dismissal complaint.