EAT Redundancy – The Claimant claimed a redundancy payment when her secondment to the Brompton Hospital as Assistant Director of its Clinical Trials Evaluation Unit ended. She had been appointed to that post, but the needs of the College for her to work in it had ceased or were soon likely to cease or diminish. The College wished to keep her in its employment, and hoped to secure an agreement that she would perform another job which it considered would be suitable. It did not purport to exercise any contractual power under her existing contract to require her to do so. The alternative post was due to start in mid-June, after a period when the Claimant had been on leave, but the Claimant declined to accept it: it was held not to be suitable and that it had not been unreasonably refused. She was not instructed to return to work under her existing contract, nor was formal notice given under it, and indeed there was no work for her to perform as Assistant Director of the CTEU any longer. She resigned. The Employment Tribunal was in error to analyse the question whether this was a constructive dismissal by considering the implied term of trust and confidence rather than by asking whether the Respondent proposed any longer to fulfil its obligations under the contract. Had it done the latter, it would have concluded that the Respondent was proposing a breach of contract, which the Claimant was entitled to accept as terminating her own obligations under it.
A claim that a failure to pay the Claimant a redundancy payment amounted to age discrimination was rejected by the Employment Tribunal. However, in doing so it held the burden of proof to have shifted to the Respondent, yet held the burden discharged in part by rejecting an inference of discrimination to be drawn in favour of the Claimant on the basis there was no particularly compelling reason to make it. This apparently misplaced the burden of proof, and by use of the word ‘necessary’ in respect of the inference appeared in a prior paragraph to adopt too demanding a standard of proof. The appeal was allowed.
The matter was remitted to the same Tribunal.
Langstaff J
[2016] UKEAT 0288 – 15 – 1401
Bailii
England and Wales
Employment
Updated: 12 January 2022; Ref: scu.560975