Automatically unfair dismissal – Disciplinary procedures – Redundancy

Douglas Cartwright v King’s College London: CA (Civ Div) (Lords Justices Sedley, Rimer, Patten): 27 October 2010

The appellant former employee (C) appealed against a decision that his dismissal by the respondent university college (K) had not been unfair.

C had been employed as a non-clinical teaching fellow at K’s department of medical engineering. He was involved in developing a rehabilitation engineering diploma to be taught in the department. He reduced his working hours to 40% of full time during a delay in implementing the diploma. K later decided to cancel the diploma. In June 2007 C attended a meeting at which his possible redundancy was raised. C later indicated that he wanted to return to full-time work. K wrote to him on 3 July asking him to a meeting to update him on plans for the provision of rehabilitation engineering teaching and discuss the implications for his position. Following that meeting, on 9 July K wrote C a letter stating that there was insufficient work for him to work full time, so his hours would remain at 40%, and that redeployment and voluntary severance would be investigated. It sent a further letter in August calling C to a further meeting, at which he was told that, if redeployment could not be achieved, his employment would terminate in January 2008. In an email in October, K stated that C’s post was at risk. In December K wrote telling C that his employment would end in January. C claimed that his dismissal was automatically unfair as K had not complied with step 1 in schedule 2 of the Employment Act 2002. The employment tribunal found that K had complied with step 1 before the July and August meetings and that C had known that his job was at risk. Although the Employment Appeal Tribunal questioned the basis on which the tribunal made that finding, it upheld it on the basis that the 9 July letter had fulfilled step 1. C argued that K had failed to comply with step 1, and the EAT’s reliance on the 9 July letter had been unfair because there had been no warning that it would rely on it.

Held: The 3 July letter and earlier correspondence said nothing to the effect that there were circumstances leading K to contemplate C’s redundancy, so could not be step 1 statements. The October email could be interpreted as a step 1 statement, but there was no evidence that C had been invited to a subsequent meeting to discuss the possibility of redundancy. Further, the August letter said nothing to convey, either expressly or impliedly, that K was contemplating C’s redundancy (see paragraphs 57-58 and 73 of judgment). It was unnecessary to make a decision on the fairness of the EAT’s decision in relation to the 9 July letter. Although that was an additional finding of fact, whether a particular document constituted a step 1 statement was a decision turning on interpretation, which was a question of law (paragraph 60). The question before the court was therefore whether the 9 July letter was such a statement. The 9 July letter had not informed C that he was at risk of dismissal on redundancy grounds, Alexander v Bridgen Enterprises Ltd [2006] ICR 1277 EAT, Homeserve Emergency Services Ltd v Dixon, unreported, 27 June [2007] EAT, and Zimmer Ltd v Brezan, unreported, 24 October [2008] EAT applied. It mentioned his hours, redeployment and voluntary severance, but did not expressly say that if neither redeployment nor voluntary severance could be agreed, dismissal for redundancy might follow. If that had been implicit in the letter, step 1 would have been fulfilled. That was a possible inference from the letter, but another possible inference was that K had not yet formed any view as to what it might do in such circumstances. Any prior oral discussion of redundancy could not be used to support the former inference, as schedule 2 mandatorily required a statement of the minimum information in writing. The prior discussion was being invoked to add to the letter a meaning it did not itself convey. C had been automatically unfairly dismissed (paragraphs 65 and 68-71).

Appeal allowed.

In person for the appellant; Thomas Coghlin (instructed by Pinsent Masons) for the respondent.