Mefful v Merton and Lambeth Citizens Advice Bureau

An employer must prove both the reason for dismissal and that it is a potentially fair reason under section 98 of the Employment Rights Act 1996. A finding that a restructuring or redundancy situation existed does not, without more, establish that a particular dismissal was by reason of redundancy.

The tribunal must determine what was in the mind of the relevant decision-maker at the relevant time. It must test whether the statutory definition of redundancy is met, including whether the need for employees to perform work of the particular kind done by the employee had ceased or diminished. A failure to consider whether an alternative post substantially comprised that work, and why it was not offered on a trial basis, may also prevent proper determination of alleged prohibited reasons for dismissal.

The Claimant, a disabled Specialist Services Manager, was dismissed purportedly for redundancy following a financial restructuring. He had made a protected disclosure and a protected act in a grievance concerning the Respondent's chief executive. He contended that the redundancy was a sham because his work continued in a new Business Manager role, which he should have been allowed to try.

The Employment Tribunal upheld his ordinary unfair-dismissal complaint but held that redundancy was the reason for dismissal. It dismissed his whistleblowing, victimisation and disability-discrimination complaints. The Claimant appealed, principally contending that the Tribunal had failed to make necessary findings and had not applied the statutory definition of redundancy.

1. Appeal allowed. The Employment Tribunal's finding that redundancy was the reason for dismissal could not stand. It had not engaged with the Claimant's case that the redundancy exercise was a sham, nor demonstrated that it had tested the Respondent's case against the statutory definition in section 139 of the Employment Rights Act 1996.

2. The existence of a genuine need to restructure, and the deletion of the Claimant's existing post, did not determine the distinct question whether he was dismissed wholly or principally because the requirement for employees to perform work of the particular kind he did had ceased or diminished. The Tribunal had to decide what was in the mind of the relevant decision-maker at the relevant time.

3. The Tribunal made no adequate finding as to who made the final dismissal decision after the Claimant failed to secure the Business Manager role, or when that decision was made. It also had to address whether that role was substantially similar to the Claimant's former work. A different job title alone would not establish a reduction in the need for employees to perform work of that kind.

4. The Respondent's concession that the Claimant should have been permitted to try the Business Manager role was not confined to the procedural fairness of the redundancy process. Even if a redundancy situation existed, the Tribunal had to determine why that opportunity was withheld, including whether the reason was the protected act, protected disclosure, disability, or something arising from disability.

5. The Claimant's failure to cross-examine two witnesses did not relieve the Respondent of its burden to establish the reason for dismissal under section 98. Its apparent relevance was especially unclear because the Tribunal had rejected, expressly or by implication, their evidence concerning knowledge of the protected matters and disability.

6. The case was remitted to the same Employment Tribunal to determine the real reason for dismissal within the defined scope. The Tribunal was not to revisit its other findings of fact.

• Employment Appeal Tribunal: Appeal allowed and the outstanding issues remitted to the same Employment Tribunal.
• Employment Tribunal (London South): In a judgment sent to the parties on 25 October 2017, upheld ordinary unfair dismissal but dismissed the claims for automatic unfair dismissal, victimisation and disability discrimination. The citation is not stated in the judgment.
• Earlier Employment Appeal Tribunal proceedings: Two earlier appeals concerning whether the Claimant was disabled were recorded, but their citations and outcomes are not stated.