The Claimant was dismissed on grounds of redundancy. The ET dismissed his unfair dismissal claim, accepting the Respondent's case that there was no suitable alternative employment at the time of the Claimant's dismissal. It was the Claimant's case on appeal that there were posts which constituted suitable alternative employment, that he ought to have been considered for them under the redeployment policy, that he was not considered for them under that policy, that his dismissal was unfair for that reason and that the Employment Tribunal had not addressed this issue.

The EAT allowed the appeal. It was plain that the Claimant's argument concerning the positions advertised, the redeployment procedure and the foreshortening of the notice period was an issue for the Employment Tribunal to consider when it resolved the unfair dismissal claim. The point had been sufficiently taken in the claim form and was set out in the issues agreed by the parties and quoted by the Employment Tribunal. There was evidence on the question. When the Employment Tribunal came to prepare its conclusions, it did not return to the list of issues, preferring to summarise the contentions of the parties. In this way it overlooked a significant point with which it was required to deal.

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Appeal No. UKEAT/0038/15/LA

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 16 May 2016

Before

HIS HONOUR JUDGE DAVID RICHARDSON

(SITTING ALONE)

MISSIRLIS (APPELLANT)

**

**

QUEEN MARY UNIVERSITY OF LONDON (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR DAVID E GRANT (of Counsel)
Bar Pro Bono Scheme

For the Respondent
MR TIMOTHY ADKIN (of Counsel)
Instructed by:
Eversheds LLP
Kett House
Station Road
Cambridge
CB1 2JY

UNFAIR DISMISSAL - Reasonableness of dismissal

PRACTICE AND PROCEDURE - Appellate jurisdiction/reasons/Burns-Barke

The Employment Tribunal omitted to deal with issues 1.2.5 and 1.1.3 of the agreed list of issues. These issues raised the question whether the Respondent, by dismissing the Claimant without his entitlement to three months' notice, had deprived him of the benefit of a redeployment procedure in respect of appointments two weeks after his dismissal; and if so whether applying section 98(4) the dismissal was fair. The Employment Appeal Tribunal was not in a position to say that there was only one possible outcome - remission was therefore required (see Jafri v Lincoln College [2014] ICR 920 CA) - remitted to the same Employment Tribunal if available.

1. By a Judgment dated 19 March 2014 the Employment Tribunal sitting in East London - Employment Judge Foxwell, Ms Houzer and Mr King - dismissed claims brought by Dr Missirlis ("the Claimant") against Queen Mary University of London ("the Respondent"). The Claimant has appealed against that Judgment. Many grounds of appeal were disposed of at a hearing under rule 3(10) before Lewis J as long ago as January 2015. The remaining ground relates to the Claimant's unfair dismissal claim. This appeal has been listed well over a year after the rule 3(10) Hearing because the Claimant sought unsuccessfully to pursue other grounds to the Court of Appeal.

1. Put shortly, the Claimant was dismissed on grounds of redundancy. He says that he advanced a particular argument concerning alternative employment relating to lecturing posts advertised in July 2012 and that the Employment Tribunal has not addressed that argument. Lewis J identified that the issues for appeal were: (1) whether the argument in question was advanced, and (2) whether the Employment Tribunal failed to address it or failed to give adequate reasons.

1. On 1 September 2007 the Claimant was employed by the Respondent as a Lecturer in Cell Biology at its School of Biological and Chemical Sciences ("SCBS"). In 2010 academic consultants conducted a review of the School and recommended steps to increase its research profile so as to further the Respondent's ambition of becoming a prominent research led institution. A new Head of School, Professor Evans, was appointed in 2011. He prepared a proposal for restructuring.

1. This proposal identified four broad disciplines within the School. It planned for a reduction in posts within two of those disciplines and an increase in two others. The Claimant was considered to belong to one of the disciplines where a reduction in posts was envisaged. In due course the Respondent approved the proposal, and Professor Evans suggested criteria for selection for redundancy. There was a period of consultation, there were some modifications to the criteria, and there was a selection process. On 25 June 2012 the Chair of the Redundancy Committee wrote to the Respondent's Principal, Professor Gaskell, recommending the Claimant's dismissal by reason of redundancy and advising that the Claimant be provided with "appropriate support" in an endeavour to find suitable redeployment for him within the College.

1. Throughout this period the proposals had been controversial. The Claimant was only one among many who opposed either the proposals themselves or the criteria for redundancy selection. The Claimant was, however, considered to have overstepped the mark in two respects. First, in December 2011 he forwarded to students as well as other staff a report that was marked on every page as "confidential". Secondly, he wrote a letter to the Lancet, published on 4 May 2012, that was wrong and misleading about Professor Evans' own ability to meet the selection criteria. By June 2012 the Claimant was subject to disciplinary proceedings relating to those matters.

1. The reference to redeployment in the redundancy committee's letter and in Professor Gaskell's letter to the Claimant must be seen in the context of the Respondent's redeployment procedure. This applied to: "… employees who have been advised that they are at risk of redundancy at the end of a period of formal consultation regarding organisational change." It contained a definition of "suitable alternative role". It normally gave a redeployee the first interview in any selection process and the first evaluation in interviews and selection tests.

1. On 28 June 2012 Professor Gaskell wrote to the Claimant informing him that he had accepted the Redundancy Committee's recommendation of dismissal. The Claimant was entitled to three months' notice. Professor Gaskell, however, said that the Claimant would be paid in lieu of notice so that his last day in employment would be 29 June 2012. He said that there were "support mechanisms available to you in respect of seeking alternative employment (through the College's redeployment procedure and outplacement services)."

1. The Employment Tribunal was told and accepted in the course of dealing with public interest disclosure and detriment issues that the decision to dismiss the Claimant with pay in lieu of notice was that of Professor Evans and that he took it because of the Claimant's emails and disruptive behaviour over preceding months, which he thought would continue if the Claimant remained an employee during his notice period. The Claimant was the only person subject to compulsory redundancy, but the Respondent had offered enhanced terms to employees who were at risk of redundancy if they agreed to go, subject to a compromise agreement. Approximately eight employees accepted these terms.

1. On 11 July 2012, two weeks following the Claimant's dismissal, the Respondent advertised for up to seven posts for Lecturers in Cell and Molecular Biology. It is the Claimant's case on appeal that these posts constituted suitable alternative employment, that he ought to have been considered for them under the redeployment policy, that he was not considered for them under that policy, that his dismissal was unfair for that reason and that the Employment Tribunal had not addressed this issue.

1. There are no findings in the Employment Tribunal's Reasons concerning this advertisement or its aftermath, but it is common ground that the Claimant made an application in response to the advertisement, was not short listed and was told that due to the high number of applications no specific feedback could be provided. On 27 September Professor Gaskell wrote to him as follows:

"I considered the advice from the redundancy committee in respect of providing you with support to find suitable redeployment in the College. However, I made the decision to terminate your employment with effect from 29 June 2012 and that you would receive payment in lieu of notice. As your employment ended, the obligation to find suitable alternative employment for you ceased."

1. It is not entirely easy to reconcile this letter, which says that there was no obligation to find suitable alternative employment, with the earlier promise of the availability of the redeployment procedure. The letter does not suggest that no suitable alternative employment was available. It would have been easy enough to say so if this had been the case.

1. The Claimant continued to respond to advertisements for jobs from the Respondent. Two Lectureships in Cell and Molecular Biology were advertised in February 2013. I am told, although the Employment Tribunal makes no finding to this effect, that these were posts unfilled from the July advertisement. The Claimant applied for them but was not short listed. He eventually obtained an academic post in Mexico.

1. The issues before the Employment Tribunal were quite broad. It was alleged by the Claimant that he had been subjected to detriment and dismissed by reason of public interest disclosures (whistle blowing). His claim for unfair dismissal also challenged every aspect of the dismissal decision. Any reference to the posts advertised in July 2012 was therefore only one aspect of a much wider overall case.

1. The ET1 claim form provided as follows:

"3. Dismissal was brought forward in time (i.e. 1-day notice was given on 28th June 2012), interfering with proper appeal process, which is ongoing when this claim is being filed. The claimant was paid-in-lieu of notice.

4. The respondent also failed to take reasonable mitigating steps to avoid the redundancy as exemplified by their refusal to enact QMUL redeployment procedure even after the claimant applied for the Lectureship in Cell and Molecular Biology on 13th August 2012."

1. The ET3 responded (paragraph 22):

"22. … The Claimant was advised that a recommendation would be made to the Redundancy Committee that his post should be made redundant in accordance with the College's HR Code of Practice - Managing Redundancy."

1. The agreed issues for the Employment Tribunal, which it set out in paragraph 5 of its Reasons, included two that are of potential relevance to this appeal. Under an overall heading "Whether the reason for dismissal was redundancy …", an issue was (paragraph 1.1.3):

"Whether the job description of the new post in the School "Lecturer in Cell and Molecular Biology" (Reference: QMUL0973) - advertised by the Respondent on July 11th 2012 - was substantially similar to the Claimant's Lectureship in Cell Biology."

1. Under an overall heading "… did the Respondent follow a fair procedure in dismissing the Claimant?", the following issue was included (paragraph 1.2.5):

"Whether the Respondent considered the Claimant for suitable alternative employment and whether the Respondent's decision to pay the Claimant in lieu of his notice period deprived the Claimant of his redeployment rights."

1. The Respondent's closing submissions addressed these issues. The Respondent submitted that the advertised roles were not "substantially similar" but conceded that there was overlap and that the Claimant could teach the topics at an undergraduate level. The Respondent submitted that there was no alternative employment "given realignment of research focus and the more stringent requirements for research quality".

1. The Employment Tribunal's reasons, after stating the issues, continued with a summary of the applicable law, which made reference to Williams v Compare Maxam Ltd [1982] IRLR 83 EAT for well known principles relating to the fairness of redundancy processes, including the principle that the employer will seek to see whether instead of dismissing the employee he could offer him alternative employment.

1. The Employment Tribunal then made findings of fact over some 15 close typed pages. There are no findings of direct relevance to the posts advertised in July 2012. It is, however, relevant to mention that the Employment Tribunal made findings concerning the two vacancies for Lectureships in Cell and Molecular Biology in February 2013:

"130. On 22 February 2013, the University advertised two vacancies for Lectureships in cell and molecular biology within SBCS (page 1053). The Claimant applied for these posts on 15 March 2013 (page 1056). On 29 May 2013, the Claimant was notified that he had not been shortlisted for either vacancy. The Respondent's case in respect of this is, firstly, that these vacancies did not arise during any redeployment period and, secondly, that applications were assessed by reference to similar quality and quantity criteria as were used in the restructure process (although the University used a measure known as the 'H index' on this occasion) so the Claimant was unlikely to meet the selection criteria in any event. The Respondent also pointed to the fact that the specialisms within the cell and molecular biology division in the new structure were photosynthesis and biomedical science. It acknowledged that the latter had some connection with the Claimant's work but said that this connection was not as significant as that of other applicants.

131. The Claimant compared himself in evidence to one of the successful candidates for the new posts, saying that this candidate had fewer published papers than him. It was clear from the evidence, however, that the successful candidate was a post-doctoral fellow taking up his first lectureship and we find, therefore, that he was not a true comparator with the Claimant who had a number of years [sic] experience as a lecturer and who had therefore had a greater opportunity to build a body of research."

1. Following its findings of fact the Employment Tribunal summarised the case for the parties. It then set out its conclusions. In its concluding section the Employment Tribunal did not specifically return to the agreed issues that it had listed. It did not mention the posts advertised in July 2012. On the question of alternative employment it said (paragraph 183):

"183. We accept the Respondent's case that there was no suitable alternative employment at the time of the Claimant's dismissal. The posts to which he referred in evidence were advertised eight months later and focused on other areas to his specialism within the field of biology. They also required a level of research quality and output which the Claimant did not meet. The Claimant argued that one of the successful candidates for this post had fewer publications than himself: whilst we accept that this is correct in absolute terms, the evidence showed that the publications of the successful candidate were in areas the School were seeking to develop and that the candidate was at a much earlier stage in his career so an absolute comparison in numbers could not be made."

1. The Claimant's representative, a lay representative, Professor Fradkin, applied to the Employment Tribunal for reconsideration, mentioning, among numerous other points, that the Employment Tribunal had omitted to refer to the advertisement on 11 July 2012 "two weeks after the Claimant's dismissal without consideration of redeployment". The Employment Judge rejected the application in succinct terms. He did not look at individual grounds. It is fair to say that Professor Fradkin had not specifically drawn his attention to the agreed list of issues.

1. On behalf of the Claimant Mr David Grant submits that the Employment Tribunal erred in law in failing to address issue 1.2.5 in the list of issues, which plainly encompassed the failure to consider the Claimant for the position of Lecturer in Cell and Molecular Biology notwithstanding the redeployment procedure. He refers also to issue 1.1.3, which required the Employment Tribunal to consider whether the post was "substantially similar" to the post that the Claimant had held.

1. Mr Grant further submits that if the Employment Tribunal had considered the point it would have been bound to resolve it in the Claimant's favour. The Claimant was entitled to three months' notice. Dismissal with a day's notice was a fundamental breach of contract that did not on its own terminate the contract (see Geys v Societe Generale [2013] 1 AC 523). The Claimant was entitled to and was in any event promised the benefit of the redeployment procedure. As Professor Gaskell's later letter indicated, the effect of dismissing him was to deprive him of that benefit. Mr Grant points out that the Employment Tribunal itself held that immediate dismissal was a detriment not least because "such a person might also feel that his or her chances of redeployment were diminished by this".

1. Mr Grant has taken me to evidence concerning the question whether the advertised lectureships were suitable alternative employment. Such evidence exists, especially in the statements of Professor Allen and Dr Curran, two witnesses of the Claimant. Mr Grant accepts that the Claimant had not met the criteria of the Respondents' redundancy exercise but submits that the failure to do so was by a relatively narrow margin. He submits that the Lectureships constituted suitable alternative employment for him and that the Respondent's own appointments indicated a degree of flexibility in the application of the requirements.

1. As to the outcome of the appeal, Mr Grant therefore submits that since a finding of unfair dismissal was inevitable the Employment Appeal Tribunal could and should substitute its own decision to this effect (see Jafri v Lincoln College [2014] ICR 920 CA). Alternatively, he submits that the issue should be remitted to a differently constituted Employment Tribunal, having regard to the criteria in Sinclair Roche & Temperley v Heard and Anor [2004] IRLR 763 EAT. He relied on the passage of time and the fact that the Employment Tribunal had already been asked to reconsider the matter once but had not done so. Therefore, the Employment Appeal Tribunal should have no confidence that it would look at the matter properly a third time around. He said another Employment Tribunal would be able to consider the limited evidence on this point against the underlying legal principles.

1. On behalf of the Respondent, Mr Timothy Adkin realistically accepts, in the light of the issues agreed for the Employment Tribunal, that the Claimant's argument concerning the redeployment procedure and the posts advertised in July was one with which the Employment Tribunal was required to deal. He submits, however, that the Employment Tribunal's view can clearly be discerned from its findings about the 2013 advertisements, which I have already quoted. The 2012 and 2013 advertisements all related to new posts in Cell and Molecular Biology given the restructure. Since the Employment Tribunal determined that the specialisms in the new structure were different to those of the Claimant, there is no reason to suppose that the Employment Tribunal would have come to different conclusions if it had expressly considered the recruitment round in 2012. The redeployment procedure, he submitted, cannot have been intended to apply in respect of the July posts since the Respondent was recruiting essentially on the very same criteria that the Claimant had not met. He submits that the Employment Tribunal's Reasons are compliant with Meek v City of Birmingham District Council [1987] IRLR 250 CA and in particular satisfy Rule 62(5) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

1. As to outcome, Mr Adkin submits that if, contrary to his primary submission, the Employment Tribunal has not sufficiently dealt with the issue it can and should be remitted to the same Employment Tribunal. This is, he says, not a case where the Employment Tribunal's wider reasoning lacks cogency or whether an allegation of bias could be made.

1. It is plain that the Claimant's argument concerning the positions advertised in July, the redeployment procedure and the foreshortening of the notice period was an issue for the Employment Tribunal to consider when it resolved the unfair dismissal claim. The point had been sufficiently taken in the claim form and was set out in the issues agreed by the parties and quoted by the Employment Tribunal. There was evidence on the question. When the Employment Tribunal came to prepare its conclusions, it did not return to the list of issues, preferring to summarise the contentions of the parties. In this way, in my judgment, it overlooked a significant point with which it was required to deal.

1. I do not agree with Mr Adkin's submission that the Employment Tribunal's Reasons sufficiently appear from its findings concerning the round of advertisements in 2013 or that the outcome of the issue is plain beyond argument from those findings. The Employment Tribunal itself remarked in paragraph 130 that part of the Respondent's case for not appointing to the February 2013 posts was that the vacancies "did not arise during any redeployment period", and it said itself in paragraph 183 that the posts in 2013 "were advertised eight months later". I do not think it can be said that the Employment Tribunal's findings would necessarily have been the same if it had remembered to address the earlier posts, about which it had made no specific finding. Nor do the Employment Tribunal's findings concerning February 2013 rule out the possibility that it would have considered, pursuant to the redeployment procedure, which did not apply in 2013, that the Respondent should have applied a degree of flexibility to its requirements.

1. It is one thing to foreshorten the notice period for an employee when there is no potential alternative work for him, another altogether to do so where there is potential alternative work for which he could be considered in accordance with a redeployment policy. The Employment Tribunal made no finding as to whether when the notice period was foreshortened Professor Evans and Professor Gaskell were aware that Lectureships were to be advertised just two weeks later. It is difficult to escape the conclusion that Professor Evans at least must have been aware of it. The Employment Tribunal made no finding as to whether having regard to the redeployment procedure the Claimant ought to have been given priority in the selection for these posts on the basis that they were suitable alternative employment and that a failure to meet selection criteria from the redundancy did not necessarily foreclose the question. The Employment Tribunal, when considering whether the dismissal was fair having regard to the test in section 98(4), will need to consider whether the Respondent acted reasonably having regard to its own redeployment procedure and, if so, why.

1. I do not, however, accept Mr Grant's submission that there would be only one possible answer on this question. It is for the Employment Tribunal to make the requisite findings of fact and then to apply section 98(4) in order to decide whether it was reasonable to dismiss the Claimant as the Respondent did, having regard to its duty to consider alternative employment, the redeployment procedure and the nature of the posts to be advertised.

1. It follows that the question of unfair dismissal must be remitted to the Employment Tribunal to decide the section 98(4) question in the light of the agreed issues with which it has not dealt; issue 1.2.5 being central, issue 1.1.3 highly relevant.

1. The question arises whether remission should be to the same or to a differently constituted Employment Tribunal. I consider, applying the criteria in Heard, that remission should be to the same constitution of the Employment Tribunal if it is available. I see no reason to lack confidence in the Employment Tribunal's ability to approach this question afresh as it must do. Although it is true that the application for reconsideration had mentioned the matter, it did so only as one of a considerable catalogue of reasons for reconsideration. Now that the Employment Tribunal appreciates it has not dealt with and must deal with this issue, I am sure it will approach the matter afresh. The practical advantages of the Employment Tribunal considering the matter are substantial. It was steeped in evidence for some seven days. It saw and heard the witnesses.

1. My only concern in remitting the matter to the same Employment Tribunal is the delay since it reached its decision. This is in large measure due to the pursuit by the Claimant of unsuccessful grounds on appeal, but I am conscious that it may to some extent impact on the Employment Tribunal's fresh consideration. Generally speaking, the Employment Appeal Tribunal expects issues remitted to the same Employment Tribunal to be dealt with on documents, Notes of Evidence, the Employment Tribunal's recollection of the proceedings and submissions. In this case, given the lapse of time, the Employment Tribunal is not debarred from hearing further evidence if the parties ask it to do so and if it thinks that it is appropriate to do so. I shall direct that if a party wishes the Employment Tribunal to hear further evidence it should lodge any such evidence with a brief application within 21 days. The opposite party may respond within 14 days thereafter. The Employment Judge will then consider whether to direct a Preliminary Hearing on the issue or whether to proceed straightaway to a Full Hearing.