MRS BUKOLA OSINUGA v BPP UNIVERSITY LIMITED

Where redundancy is alleged under section 139(1)(b) of the Employment Rights Act 1996, the tribunal must identify the relevant work and decide whether the employer’s requirement for employees to perform work of that kind diminished. A reorganisation or reduction in headcount alone does not establish redundancy.

In a redundancy unfair-dismissal claim, fair consultation, fair selection and reasonable steps to seek alternative employment are ordinarily implicit issues. The tribunal must address them unless the parties expressly or impliedly agree that they are excluded. A carefully managed, complex case may show such an implied agreement.

The claimant was dismissed following a restructuring of the respondent university’s international team. The Central London Employment Tribunal dismissed her claims for unfair dismissal, sex discrimination and unlawful deductions. It found that both her interim and substantive roles were redundant, that the dismissal was unrelated to her request for increased pay, and that there was no sex discrimination.

On appeal, she challenged the finding that there was a redundancy within section 139 of the Employment Rights Act 1996, the adequacy of the Tribunal’s reasons, and its failure to determine whether consultation, selection and alternative-employment steps were fair. The central issue was whether those procedural fairness matters remained implicit in her redundancy unfair-dismissal claim despite their omission from the list of issues.

1. Appeal allowed in part. The Employment Tribunal did not err in finding that the claimant was dismissed by reason of redundancy within section 139(1)(b) of the Employment Rights Act 1996. Its reasons were close to inadequate, because they did not clearly structure the statutory inquiry, but its findings established a reduced need for employees to carry out management functions relating to international students.

2. Under section 139(1)(b), the tribunal must ask whether the employer’s requirements for employees to carry out work of a particular kind have diminished and whether the dismissal was wholly or mainly attributable to that state of affairs. A business reorganisation does not itself prove redundancy. The tribunal should identify the statutory limb relied upon, the relevant work, and preferably the employees undertaking it before and after the asserted diminution. The Tribunal’s findings that roles were removed, their duties absorbed, international applications had fallen, and functions were duplicated sufficed on the facts.

3. The Tribunal’s reasons nonetheless met the standard in Meek on the redundancy issue. They adequately explained why the claimant’s original role was also at risk, and did not require a separate finding about continuing admissions to one course.

4. Applying Langston, a tribunal deciding a redundancy unfair-dismissal claim should consider fair consultation, fair selection and reasonable efforts to find alternative employment, unless the parties expressly or implicitly exclude one or more of those issues. These are particulars of the existing unfair-dismissal claim, not a new cause of action. Remploy did not displace that principle; its exceptional, extensively managed and professionally represented multi-party litigation justified treating omitted issues as excluded by implicit agreement.

5. Here, the unrepresented claimant had not agreed to exclude those issues, and the case-management record did not show that they had been considered. The Tribunal therefore erred by failing to determine them and gave insufficient reasons about them. Those unfair-dismissal issues were remitted to a differently constituted Employment Tribunal, with permission for further evidence. The dismissed sex-discrimination claim was not remitted, since a discrimination allegation based on breaches of the redundancy-procedure requirements would be a new unpleaded claim.

• Employment Appeal Tribunal: Allowed the appeal in part and remitted the issues of consultation, selection and alternative employment to a differently constituted Employment Tribunal: [2022] EAT 53.

• Central London Employment Tribunal: Dismissed the claims for unfair dismissal, sex discrimination and unlawful deductions on 16 July 2019. It refused reconsideration on 7 November 2019.