The tribunal had found the employee claimant to have been unfairly dismissed when the employer dismissed for redundancy or reorganisation. Although there was a redundancy situation they were not satisfied that the employee was dismissed for that reason rather than that being a pretext for dismissing for another reason, namely his performance.
Browne-Wilkinson J said: ‘First, it is submitted that since the Industrial Tribunal had found that there was a redundancy situation (or alternatively that there had been a re-organisation of the managerial structure) they should have found that the reason for dismissal was either redundancy or some other substantial reason of a kind such as to justify dismissal. The submission was that the evidence of redundancy being clear, in the absence of compelling proof or some other reason, the Industrial Tribunal ought to have found that the redundancy or re-organisation was the reason. It was urged that since the employers had tendered the evidence as to Mr Thomson’s alleged unsatisfactory performance in his job as evidence of the reason why he, rather than others, was selected for redundancy, it was not open to the Industrial Tribunal to look at such evidence as suggesting that it was the incapacity not the redundancy that was the reason for dismissal. We reject this submission. In our view, there is no such presumption as it is suggested. Even where there is a redundancy situation, it is possible for an employer to use such situation as a pretext for getting rid of an employer he wishes to dismiss. In such circumstances the reason for the dismissal will not necessarily be redundancy. It is for the Industrial Tribunal in each case to see whether, on all the evidence, the employer has shown them what the reason for the dismissal, that being the burden cast on the employer by s.57(1) of the Act. The evidence in this case, even though possibly tendered for some other purpose, certainly raised the possibility that redundancy was used as a pretext for getting rid of Mr Thomson. The Industrial Tribunal was entitled to hold that they were not satisfied as to the reason for dismissal. On that basis the employers’ defence to the claim failed at the first hurdle and a finding of unfair dismissal followed as of course.’
Judges: Browne-Wilkinson J
References:  IRLR 522,
- Associated Society of Locomotive Engineers & Firemen -v- Brady, EAT, Cited, (Bailii,  UKEAT 0057_06_3103, EATn, UKEAT/0057/06 & UKEAT/0130/06,  IRLR 576)