Normally in employment tribunal cases, the tribunal will only make decisions about issues that are raised in the pleadings (the ET1 and ET3) and/or those agreed between the parties during the case management process. The recent case of Osinuga v BPP University showed that there are exceptions to this general rule. The employee brought claims for unfair dismissal and discrimination. She said she had been targeted for redundancy due to complaints she had made about her pay. At a preliminary hearing, the tribunal identified various issues for the tribunal to decide, including the reason for dismissal. The list of issues did not include a complaint by the employee about the lack of any fair redundancy procedure (fair consultation, selection and a search for suitable alternative employment).
The employment tribunal said that redundancy was the reason for the dismissal which was reasonable overall. They said that the procedure had been fair, but even if it had not been fair, the employee would have been dismissed anyway had a fair procedure been followed. The employee appealed, saying the tribunal had failed to address the issue of whether a fair redundancy procedure had been followed.
The EAT said that some legal principles are so well established that an employment tribunal must consider them as a matter of course. In a redundancy case, that includes whether a fair process has been followed – fair consultation, fair selection and a reasonable search for alternative employment – even if the parties have not raised it themselves. The EAT said there may be an exception to this rule in complex cases – for example mass litigation – where parties are legally represented, cases are heavily case managed, and issues agreed long before a hearing. In such cases, the absence of any argument about an unfair procedure may be taken as implicit agreement that it is not a live issue in the case. But this case was different. The employee was not legally represented and the issue of a fair procedure was not raised in case management at all. Therefore she could not be regarded as having implicitly agreed that they were not relevant. The case was sent back to a newly constituted tribunal panel to decide the issues of fair consultation, selection and suitable alternative employment.
This case shows that a fair process will almost always be relevant in redundancy cases even if the issue is not specifically pleaded by the employee. Employers should ensure that matters are clarified at the case management stage, including any arguments about a redundancy process, in order to ensure that the final hearing disposes of the complaint once and for all.
Adrian Fryer, Partner & Head of Employment
t: 0151 224 0539