Osinuga v BPP University Ltd Legal Team

The Employment Appeal Tribunal allowed the appeal in part. The Tribunal found that the Employment Tribunal erred by failing to consider whether the employer carried out a reasonable consultation, adopted a fair basis for selection for redundancy, and took reasonable steps to seek alternative employment for employees at risk of redundancy, in circumstances where those issues had not been expressly or impliedly excluded (applying Langston v Cranfield University [1998] IRLR 172 and the Williams/Polkey principles). However, the Employment Tribunal did not err in law in concluding that a redundancy occurred within the meaning of section 139(1)(b) of the Employment Rights Act 1996 and gave adequate reasons for that particular finding.

This was an appeal from an Employment Tribunal decision of 16 July 2019 which dismissed the claimant's unfair dismissal and sex discrimination claims arising from a reorganisation of the respondent's International Team. The claimant had been performing an interim senior role and her original middle-management role; both posts were deleted in a restructure implemented after a review of international admissions and perceived duplication of functions.

The claimant argued before the Employment Tribunal that her dismissal was not a true redundancy but was pre-determined, that she was targeted after asking for a pay rise, and that the process was discriminatory. The Employment Tribunal found the reason for dismissal to be redundancy, accepted the employer's evidence of a legitimate business reorganisation and concluded there was no discrimination; it did not, however, expressly determine the wider Polkey/Williams issues of consultation, selection criteria and reasonable search for alternative employment.

The EAT framed the issues as (i) whether the Employment Tribunal correctly applied the statutory definition of redundancy in section 139 ERA 1996, (ii) whether the Tribunal gave sufficient reasons under Meek, and (iii) whether the Employment Tribunal was required to address the Polkey/Williams triad (consultation, selection and alternative employment) even where the parties had not expressly raised those issues. The EAT held that the Employment Tribunal had adequately found a redundancy under section 139(1)(b) after analysing the factual findings about diminished need for management functions for international students, but erred in not considering the Polkey/Williams issues (following Langston) because there was no record that those issues had been excluded by agreement, the claimant was unrepresented and the Case Management Summary did not show implicit agreement to exclude them. The matter was remitted to a differently constituted Employment Tribunal to determine consultation, selection and alternative employment (with liberty to both parties to adduce further evidence), while the discrimination claim was left as decided because a fresh Polkey-based complaint would amount to a new discrimination plea not pleaded originally.

Appeal allowed in part. The EAT held that the Employment Tribunal was correct to find that the dismissal was by reason of redundancy under section 139(1)(b) ERA 1996, but erred in law by failing to consider whether the employer had carried out reasonable consultation, adopted a fair basis for selecting employees for redundancy, and taken reasonable steps to find alternative employment (the Polkey/Williams matters) where those issues were not shown to have been excluded by agreement. The EAT remitted those issues to a differently constituted Employment Tribunal for reconsideration.

The Employment Tribunal (Central London) dismissed the claimant's claims in a decision dated 16 July 2019; an application for reconsideration was dismissed on 7 November 2019. Permission to appeal to the Employment Appeal Tribunal was granted under rule 3(10) on 24 March 2021. The EAT heard the appeal on 8 March 2022 and handed down judgment on 21 June 2022 ([2022] EAT 53).