M Birkett v Integral UK Ltd

In determining the fairness of a redundancy dismissal under section 98(4) of the Employment Rights Act 1996, an Employment Tribunal must make sufficient findings about the employer’s search for suitable alternative employment and, where relevant, the fairness of recruitment for a particular vacancy. A bare conclusion that there were no suitable vacancies, or that an employee received an interview, will not suffice.

An employer need not appoint a potentially redundant employee over other candidates. However, the Tribunal must assess the relevant process rather than assume it was fair because evidence explaining the non-appointment was absent. It may be open to draw adverse inferences from missing evidence.

The claimant appealed against the Employment Tribunal’s dismissal of his unfair-dismissal and discrimination claims. He pursued only unfair dismissal in the Employment Appeal Tribunal.

The Tribunal had found that the dismissal was by reason of redundancy and had rejected the discrimination claims. It also concluded that the respondent had done its best to provide opportunities for alternative employment, including arranging an interview for an engineering vacancy in Manchester. It made no findings explaining why the claimant was not appointed.

Permission was granted on two grounds: whether the Tribunal had made adequate findings about its search for suitable alternative vacancies, and whether it had made adequate findings about the recruitment process for the Manchester vacancy. The central issue was whether those deficiencies prevented a proper assessment of fairness under section 98(4) of the Employment Rights Act 1996.

1. Appeal allowed. The Employment Tribunal erred in law by making insufficient findings on two matters material to fairness under section 98(4) of the Employment Rights Act 1996: the respondent’s search for alternative employment and the process by which the claimant was unsuccessful for the Manchester vacancy.

2. A Tribunal must identify the underlying facts supporting its conclusion on a disputed issue. A conclusion that there were no vacancies, without analysis and findings about the employer’s enquiries, does not enable the parties to understand why the issue was decided as it was.

3. Likewise, the fact that the claimant was interviewed for a vacancy did not by itself justify a conclusion that the recruitment process was within the band of reasonable responses. Although an employer is not generally required to recruit a potentially redundant employee in preference to other candidates, the Tribunal had to assess the basic fairness of the process. It was open in principle to draw an adverse inference from the absence of evidence that might readily have been available, though the EAT expressed no view whether that was appropriate on these facts.

4. The findings that redundancy was the sole reason for dismissal and that the dismissal was not discriminatory were preserved. Remaking was remitted, if possible, to the same Tribunal, limited to the alternative-job search and the Manchester-vacancy process under section 98(4).

• Employment Appeal Tribunal: allowed the appeal on the adequacy of findings concerning fairness under section 98(4) of the Employment Rights Act 1996, and remitted those limited issues to the same Employment Tribunal if possible.
• Employment Tribunal, Mold: decision sent to the parties on 6 April 2022. It dismissed the claims for unfair dismissal and discrimination, finding that the claimant was dismissed by reason of redundancy.