M Birkett v Integral UK Ltd

The Employment Appeal Tribunal found that the Employment Tribunal erred in law by making insufficient findings of fact for the purposes of section 98(4) of the Employment Rights Act 1996 when assessing the reasonableness of the employer’s searches for suitable alternative employment and the fairness of the recruitment process for a specific vacancy for which the claimant was interviewed. The EAT held that the ET’s conclusions that searches were adequate and that the claimant had been given an opportunity (an interview) did not amount to sufficient findings about the quality and depth of the employer’s enquiries or the reasons why the claimant was not appointed.

The EAT remitted remaking on those narrow issues to the same Employment Tribunal where possible, preserving the ET’s findings that the dismissal was for redundancy and that the discrimination claims were dismissed. The decision emphasises the need for clear findings so parties know why they won or lost and notes that an ET may draw adverse inferences from the absence of evidence.

Background and parties: The claimant appealed the Employment Tribunal (Mold) decision dated 6 April 2022 which dismissed his claims of unfair dismissal and discrimination. The appellant pursued only the unfair dismissal ground. Permission to appeal was initially refused on the papers but granted at a rule 3(10) hearing before Deputy High Court Judge Crowther KC on two specified grounds.

Nature of the application: The appeal challenged the adequacy of the ET’s factual findings for the purposes of section 98(4) Employment Rights Act 1996, specifically (i) whether the ET had made sufficient findings about the respondent’s searches for suitable alternative vacancies at the time of dismissal, and (ii) whether adequate findings were made about why the claimant was unsuccessful for a particular vacancy for which he had been interviewed. The appellant sought remaking of those findings; the respondent resisted and argued the ET’s reasoning was adequate and that the correct standard was the band of reasonable responses.

Issues framed by the court:

• Did the ET make adequate findings about the employer’s process and efforts in searching for suitable alternative employment (including geographical scope and the quality of searches) for the purposes of section 98(4) ERA?
• Did the ET make adequate findings about the recruitment process and reasons why the claimant was not appointed to the specific vacancy for which he was interviewed?

Reasoning and decision: Judge Keith accepted the appellant’s challenge but limited it to the adequacy of findings under section 98(4) ERA. The ET’s statement that there were no vacancies in certain areas and that the claimant had been interviewed were conclusions insufficiently supported by factual findings concerning what steps were taken, why vacancies were or were not considered, and why the claimant was not appointed. The EAT emphasised that tribunals must make clear the underlying facts that support conclusions so parties understand the basis of the decision, and that an ET may draw adverse inferences from absence of evidence. The EAT did not disturb the ET’s findings that the dismissal was for redundancy and that the discrimination claims failed. Considering proportionality and the limited scope of the remaining issues, the EAT remitted remaking to the same Employment Tribunal if practicable, preserving other findings.

Appeal allowed in part and remitted to the Employment Tribunal for remaking on narrow issues because the ET made insufficient findings under section 98(4) Employment Rights Act 1996 about the employer’s searches for alternative roles and about the fairness/reasons for the claimant’s non-appointment to a specific vacancy; other findings (that dismissal was for redundancy and that discrimination claims failed) were preserved.

Employment Tribunal sitting in Mold: decision sent to parties 6 April 2022 dismissing unfair dismissal and discrimination claims. Permission to appeal initially refused on the papers; permission granted at a rule 3(10) hearing before Deputy High Court Judge Crowther KC on two specified grounds. Appeal to the Employment Appeal Tribunal, reported as [2024] EAT 107.