Court of Appeal
The employment tribunal had been entitled to conclude on the evidence available to it that whilst the process of selection for redundancy and the absence of consultation was unfair, the appellant would not have found alternative employment with the respondent or any of its associated companies. The appellant would not have been entitled to recover compensation in excess of seven weeks' salary, even if reasonable consultation had taken place.
The appellant employee (L) appealed against a decision made at a preliminary hearing of the Employment Appeal Tribunal dismissing L's appeal from the employment tribunal's (the tribunal) decision that despite being unfairly dismissed by the respondent (K), he had been fairly selected for redundancy and against other adverse findings made by the tribunal. L had been employed as an accountant by K. In January 2002, L was told that if he wanted to remain working for K he would have to change roles and transfer into another department. An employee from that other department would be and was transferred into L's job. Three days after L was initially informed of the transfer arrangements, L refused to transfer on the basis that his background and experience would make it impossible for him to undertake the work required. L was told there was no longer a role for him in his original department. L asked to be reinstated but was formally made redundant on February 8, 2004. L left K and claimed unfair dismissal arguing that his role was not actually redundant. The employment tribunal found that L's dismissal had been procedurally unfair as K had failed to allow adequate time for consultation before making L redundant. The tribunal concluded that a further seven weeks' consultation would have been appropriate but that the outcome at the end of that period would have been the same, as L would not have found an alternative post with K. L's compensation, apart from the basic award was limited to seven weeks' pay. L contended that (1) the redundancy process had been defective both substantially and procedurally; (2) there had been an absence of any consultation, criteria for selection or any proper consideration of those criteria by K; (3) L had been misled by K over his loss of pension rights; (4) the Court of Appeal should hear the appeal from the preliminary hearing of the EAT rather than it being remitted to the EAT.
HELD: (1) L had genuinely been made redundant. The facts of the case amounted to a redundancy for the purpose of the Employment Rights Act 1996 s.139(1)(b). K had been downsizing the department and had notified the Department of Trade and Industry in respect of potential redundancies. Additionally, it had not been K's intention to dismiss L as they had wanted to transfer him so he was not included in the initial redundancy processes. It was only when L declined to transfer that he was dismissed. (2) The tribunal had been entitled to conclude on the evidence available to it that whilst the process of selection for redundancy and the absence of consultation were unfair, it was unlikely that L would have found alternative employment with K or its associated companies. The tribunal had been entitled to find that L had wanted his job back and was not willing to consider the alternative offered by K which the tribunal had found was a promotion. The tribunal was entitled to come to the conclusion that an extended period of consultation should have taken place, but that at the end of it, L would still have left K's employment, Polkey v AE Dayton Services Ltd (1988) AC 344 considered, O'Dea v ISC Chemicals (1995) IRLR 599 and King v Eaton Ltd (No 2) (1998) IRLR 689 applied. (3) The tribunal had neither identified nor addressed the issue of whether L had been misled in respect of his pension entitlement, Meek v City of Birmingham District Council (1987) IRLR 251 applied. Any loss of pension entitlement attributable to the unfair dismissal would fall within s.123(1) of the 1996 Act. The pension issue would be remitted to the employment tribunal. (4) The EAT had exhausted its jurisdiction and the proper course was for the appeal to proceed on its merits in the Court of Appeal. The circumstances in which the Court of Appeal would remit an appeal to the EAT were limited. Under the preliminary hearing procedure where the EAT dismissed an appeal on the basis that none of the grounds of appeal raised a point of law which gave the appeal a reasonable prospect of success at a full hearing and the unsuccessful party obtained permission of the Court of Appeal to appeal to the Court of Appeal, the Court of Appeal would hear the appeal in the normal way and either dismiss or allow it. If it allowed it, changing the tribunal's decision, it could either impose its own order or remit the decision to the employment tribunal for reconsideration, Vincent v MJ Gallagher Contractors Ltd (2003) ICR 1244 and Sukul-Lennard v Croydon Primary Care Trust (2003) distinguished.
Appeal allowed in part.
 EWCA Civ 1045,  ICR 307
EMPLOYMENT, LOSS OF PENSION, PROCEDURE, REDUNDANCY SELECTION, UNFAIR DISMISSAL
William Meade (Senior Clerk)