Although tribunals are not required to consider fairness as an issue in redundancy situations if the claimant has not raised it as a concern, the EAT held in Osinuga v BPP University Ltd that case law has established that tribunals must consider issues of fair selection, fair consultation and alternative employment, unless the parties themselves have made clear that they are not relevant.
Ms Osinuga had worked for BPP University Ltd in a number of roles since 2011, most recently as international commercial manager. In March 2017, she agreed to take on an additional sales role with the title of interim director international sales. On 21 August 2017, she asked for a salary increase to reflect the fact that she was doing two full-time jobs, but her request was refused.
By this time, the university had acquired new owners who ordered a restructure of the international team after it became apparent that they had missed their target revenue by a considerable sum. After a series of consultation meetings, Ms Osinuga was made redundant in January 2018.
She claimed unfair dismissal (among other things), arguing that her employment had been terminated because she had asked for a pay rise.
Section 139(1)(b)(i) of the Employment Rights Act 1996 (ERA) states that there is a redundancy if the requirements of the business “for employees to carry out work of a particular kind” has diminished.
The tribunal found as a fact that the redundancy process was motivated by a clear business strategy and was not implemented to target individual roles or individuals. It also found that Ms Osinuga’s redundancy was not related to her request for a salary increase.
Although it did not refer to section 139 ERA, the tribunal concluded that the reason for her dismissal was redundancy and the university had acted reasonably in treating that as a sufficient reason for dismissal. In addition, it held that the procedure was fair, but even if it was not, a fair procedure would have resulted in the same outcome at the same time.
Ms Osinuga appealed against the tribunal’s conclusion on three main grounds:
- That it was wrong to conclude that the reason for her dismissal was redundancy.
- That it failed to give sufficient reasons for its decision.
- That it did not adequately consider whether BPP had acted fairly in dismissing her for redundancy.
Rejecting ground one of the appeal, the EAT held that the tribunal was correct to conclude that there was a redundancy as defined in section 139(1)(b). It also rejected ground two, finding that the tribunal had given sufficient reasons for its conclusion, even though it was not always easy to identify the logic or structure it had used in getting there.
With regard to ground three, the EAT held that as Ms Osinuga had not raised the issue of fairness before the tribunal, it was not required to explore the matter. However, there was a limited exception to this rule as set out in the decision of Langston v Cranfield University, in which it was established that a tribunal in a redundancy case should automatically consider specific issues, such as fair selection, fair consultation and alternative employment, unless the parties themselves have made clear that they were not relevant in any way.
In this case, the tribunal had failed to consider whether BPP had carried out a reasonable consultation; had adopted a fair basis for redundancy; and/or had taken reasonable steps to seek alternative employment for employees threatened with redundancy. The EAT, therefore, remitted the case to a different tribunal to reconsider those issues.
This case highlights that Langston remains the correct approach for tribunals in claims relating to dismissal for redundancy. Even if a claimant does not expressly raise the issue of procedural fairness at a tribunal hearing, the tribunal should consider it anyway because the employer has an obligation to consult with employees, adopt a fair selection process, and consider alternative employment opportunities.