Case round-up: Bradford & Bingley v McCarthy, EAT

During a reorganisation of the respondent’s business, two positions were merged creating a new single role.

Both employees were considered eligible for the new position, but the respondent showed a clear preference towards one employee. The new position was offered to the preferred employee and the other employee (the claimant) was dismissed.

The tribunal decided the respondent acted unreasonably, the process of selection was not conducted objectively and the claimant’s dismissal was unfair.

On appeal, the respondent raised four matters:

  • The tribunal failed to consider s98A(2) Employment Rights Act, which states that an employer’s failure to follow a dismissal procedure shall not be regarded as unreasonable if the employer can show that they would have dismissed the employee if they had followed the procedure. The EAT allowed the appeal on this point and remitted this aspect of the case to the tribunal.

  • The tribunal had made an error in imposing a burden of proof on the respondent to prove that the dismissal was fair. The EAT did not uphold this point, finding that the tribunal had merely pointed to the evidence that showed the selection process was potentially unfair and asked the respondent whether it was able to rebut the potential unfairness.

  • The tribunal effectively put a burden on the respondent to call particular witnesses to give evidence. The EAT stated that there was such a clear case of potential bias that the tribunal was right to consider the respondent’s failure to call other persons to rebut the potential bias.

  • The respondent had to prove that the interview process was objective, as opposed to one that a reasonable employer would have adopted. The EAT held that the selection process appeared to be inherently flawed and the respondent had not been able to show otherwise.

Key points

  • In an unfair dismissal case, where the claimant puts forward evidence that points strongly to the dismissal being unfair, the tribunal will take a common sense approach and will expect the respondent to call the relevant evidence to rebut the strong case of unfairness. This does not necessarily mean that the tribunal has placed a burden of proof on the respondent.

  • An employer should always ask whether it can demonstrate that any redundancy/dismissal process it took was fair and whether it could rebut any evidence of unfairness.

What you should do

  • This case is a reminder that an employer should conduct a fair process when dismissing employees. The employer should have placed both employees in a redundancy ‘selection pool’ and applied objective selection criteria.

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