Jones v BT Facility Services Ltd

For unfair-dismissal purposes, whether a redundancy situation exists under section 139 is an objective factual question. A genuine belief by the employer, or a reorganisation labelled as redundancy, does not determine it. The tribunal must decide whether the employer’s requirement for employees to perform work of the relevant kind has ceased or diminished.

A tribunal need not address every argument. It must, however, give sufficient reasons on a critical and distinct issue. An employer’s redundancy policy cannot replace the statutory test in the Employment Rights Act 1996, although it may be relevant to the fairness assessment.

The claimant, a Customer Improvement Coach, was dismissed after a reorganisation replaced seven Customer Improvement Coach roles with eight Customer Improvement/Customer Experience Lead roles. He unsuccessfully applied for the new roles and brought an unfair-dismissal claim.

The Employment Tribunal at Nottingham rejected his contention that the exercise was a sham and held that the dismissal was fair. It also stated, without substantive explanation, that the circumstances fell within section 139(1)(b) of the Employment Rights Act 1996.

On appeal, the claimant contended that the Tribunal had failed to determine whether the old and new roles involved work of the same kind, and alternatively that its redundancy conclusion was perverse.

1. Appeal allowed on the first ground; second ground dismissed. The Employment Tribunal’s conclusion that the dismissal was by reason of redundancy was set aside. The case was remitted to a differently constituted Employment Tribunal for a rehearing limited to whether there was a genuine redundancy situation under section 139(1)(b).

2. The question under section 139(1)(b)(i) of the Employment Rights Act 1996 is whether the employer’s requirements for employees to perform work of a particular kind ceased or diminished. It is an objective question of fact. It is also a question of fact and degree whether a newly titled role is truly different work, requiring assessment of the nature and quality of the tasks.

3. The Tribunal had adequately determined the separate issues of alleged sham and the fairness of the dismissal. But it had not adequately addressed the distinct issue whether, despite the employer’s good faith, the CI/CE Lead role was essentially the same work as the former CI Coach role. Its bare conclusion that section 139(1)(b) was satisfied gave neither the parties nor the Appeal Tribunal sufficient reasons for that conclusion.

4. The absence of a reduction in overall headcount did not itself preclude redundancy. Nor was commercial wisdom or cost saving required. Conversely, the employer’s redundancy policy was irrelevant to the prior statutory question, because the applicable test was section 139, not the policy. The policy could be relevant to fairness under section 98(4).

5. The perversity challenge failed. The evidence permitted either conclusion on whether the requirement for work of the relevant kind had diminished; it could not be said that only one answer was open to a reasonable tribunal. A fresh rehearing was required because the omission concerned a fundamental issue, making a request for elaborated reasons inappropriate.

• Employment Appeal Tribunal: Allowed the appeal on the inadequate-reasons ground, dismissed the perversity ground, set aside the redundancy conclusion, and remitted the limited statutory-redundancy issue to a different Employment Tribunal.
• Employment Tribunal at Nottingham: By a reserved judgment sent to the parties on 21 March 2019, dismissed the claimant’s unfair-dismissal claim. It rejected the sham allegation, found a redundancy situation, and held the dismissal fair.