Sinead Campbell v Tesco Personal Finance PLC

In deciding whether a dismissal was by reason of redundancy, an employment tribunal must apply the statutory question in Employment Rights Act 1996, section 139. It must determine whether the employer’s requirements for employees to carry out work of a particular kind have ceased or diminished. A reorganisation, the deletion of a post, or a reduction in the number of teams does not itself answer that question.

Redundancy may exist without a reduction in headcount or in the volume of work, including where the same work can be done by fewer employees or in fewer hours. The tribunal must nevertheless make findings which connect the facts to the statutory test.

The appellant, a Risk Manager, was dismissed following a restructuring in which three risk teams became two. She and another Risk Manager were placed in a selection pool. The new structure contained a Lead Risk Manager post and a Risk Manager post. The respondent selected the other employee after a scoring exercise.

The Glasgow Employment Tribunal dismissed claims for unfair dismissal and discrimination. On appeal, only two unfair-dismissal grounds proceeded. The principal issue was whether the Tribunal had lawfully found a genuine redundancy situation under section 139 of the Employment Rights Act 1996. A further ground alleged unfairness in the selection scoring process.

1. Appeal allowed. The Tribunal’s dismissal of the unfair-dismissal claim was set aside and that claim was remitted to a differently constituted tribunal for rehearing.

2. The respondent bore the burden, under section 98 of the Employment Rights Act 1996, of establishing the asserted potentially fair reason. Since the appellant had maintained that there was no genuine redundancy situation, the existence of such a situation was not an agreed fact.

3. Section 139 required the Tribunal to decide whether the respondent’s requirements for employees to carry out risk-management work, or work of a particular kind, had ceased or diminished. The Tribunal did not undertake that statutory analysis. Its reliance on the consolidation of three teams into two, and on the disappearance of the appellant’s former post, did not establish the required diminution.

4. A reorganisation can, but need not, produce redundancy. Nor is a reduction in headcount essential: a reduced requirement for working hours, or an ability to perform the same work with fewer employees, may suffice. The Tribunal must, however, make findings which match the facts to the language of the statute.

5. On the Tribunal’s own findings, two former Risk Manager posts appeared to have been replaced by a Risk Manager post and a Lead Risk Manager post. The added leadership function was not directly relevant to the statutory question. The Tribunal made no finding that the respondent’s requirement for risk-management work had diminished. The first appeal ground therefore succeeded. The second ground would not, standing alone, have succeeded.

• Employment Appeal Tribunal: allowed the appeal against the unfair-dismissal decision, set aside that part of the Tribunal’s judgment, and remitted it to a differently constituted tribunal for rehearing: [2023] EAT 68.
• Employment Tribunal, Glasgow: on 29 January 2021 dismissed the appellant’s claims for unfair dismissal, direct discrimination and indirect discrimination.