Even in a redundancy situation vacancies must be considered throughout the consultation period

Amending the Notice of Appeal was fair in light of the ET failures

King v Royal Bank Of Canada Europe Ltd ( Unfair Dismissal )

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• A genuine redundancy does not mean that alternative employment should not be considered throughout the consultation period
• In allowing the Notice of Appeal to be amended the overriding objective of doing justice and the ruling in Khudados v Leggate [2005] IRLR 540 were considered.
• The case was remitted to a fresh tribunal to decide amongst other things whether the redundancy was genuine

In a case of unfair dismissal and sex discrimination, the EAT ( HHJ DAVID RICHARDSON ) has decided in King v Royal Bank of Canada that even where a dismissal is genuinely on grounds of redundancy, remedies of reinstatement and re-engagement must still be engaged.

Ms King's dismissal was according to the now repealed Statutory DDP procedures ruled automatically unfair although the tribunal found however that this was a case of a legitimate situation of redundancy without any alternative job existing.

Ms King was compensated for her financial loss but the issue of reinstatement or re-engagementin that she asked for in the ET1 was not dealt with by the ET.

Although reinstatement was not included in the Notice of Appeal to the EAT the claimant was allowed to amend the Notice to include this after the ET's failure to consider it after having been included in the ET1 and the witness statement.

Regarding remedies of reinstatement and re-engagement the EAT ruled that the tribunal was wrong to consider only those vacancies existing at the time of Ms King's dismissal. It should have also considered vacancies that may have emerged after the date of dismissal and during the period where a followed fair procedure might have been expected to have been followed.

• failing to apply section 112 of the Employment Rights Act 1996 and in particular through not considering re-engagement
• considering only vacancies existing at the time of the Claimant’s peremptory dismissal and not vacancies whilst the Respondent ought to have carried out fair procedures such as consultation about alternative employment
• failing to resolve a key dispute as to what was said at a dismissal meeting.

The EAT referred to the the overriding objective and the ruling in Khudados v Leggate [2005] IRLR 540 when allowing the Notice of Appeal to be amended.

The strict principles regarding extensions of time for presenting notices of appeal as applied by the Court of Appeal in Jurkowska v Hlmad [2008] IRLR 430) were considered not relevant in this case.

The Claimant's submission (para 91) that the Employment Tribunal erred by applying Polkey v A E Dayton Services [1987] IRLR 503 was rejected by the EAT (after the ET had decided that this was a genuine redundancy situation)

The Claimant's claim that the Employment Tribunal should considered her entitlement to a bonus when assessing the compensation (relying on Rutherford v Seymour Pierce [2010] IRLR 606) was also rejected as unlike the contract under discussion in Rutherford, the Claimant’s contract expressly stated that in order to receive a bonus employees must be in employment on the payment date. After Commerzbank AG v Keen [2007] IRLR 132 paragraph 73 if the Claimant was fairly dismissed no entitlement to a bonus existed.

As to whether the dismissal was only unfair on procedural grounds and not an act of sex discrimination and whether questions of remedy and compensation will revisiting.

The case of Sinclair Roche & Temperley v Heard [2004] IRLR 763 was followed when remitting this case to a different Tribunal.

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