Asif v Elmbridge Borough Council (Unfair Dismissal ) [2012]

Asif v Elmbridge Borough Council (Unfair Dismissal : no sub-topic) [2012] UKEAT 0395_11_2609 (26 September 2012): The Claimant was dismissed, following a redundancy exercise in which three employees had to be selected from a pool of four to fill three new posts which replaced five old posts (one of which was vacant). The selection process was agreed with trade unions. The Claimant scored substantially less well than the other three and was given notice of dismissal. She conceded that she had been dismissed for redundancy but contended that she had been set-up to fail and that one of the four employees should have been excluded from the group.



During the Employment Tribunal hearing, it emerged that in the course of the Claimant’s notice period, one of the three selected employees had resigned. The Claimant was permitted to run the point that she should have been given that employee’s post. The Tribunal rejected her original case and the new point; they found that, although the exercise included no formal passmark, the employers were entitled to treat the Claimant as unsuitable to be appointed to any of the new posts.

On appeal the Claimant put forward three arguments; they were:-

(1) On the resignation of the selected employee there was no redundancy situation; and she should be permitted to withdraw her concession that she had been dismissed for redundancy.

(2) The ET failed to consider fairness in the light of the agreed procedure.

(3) The ET failed to consider the provision in that procedure for a 3-month trial period and that it was unfair to dismiss the Claimant without giving her such a trial.

Held:

(1) (a) On the authorities – Langston, Kumchyk, Jones v Burdett-Coutts – the Claimant should not be permitted to withdraw her concession.  Segor v Goodrich distinguished.

(b) In any event the ET considered in sufficient detail whether the new posts were different from the old posts; on their findings they were different; and the redundancy situation continued despite the resignation.

(2) The ET had considered the point and were entitled to conclude that the Claimant was reasonably regarded as unappointable to any of the new posts.

(3) The ET had considered the trial period; their assessment was not open to criticism on appeal in the absence of perversity.

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