This was an appeal by Contract Bottling Ltd (“CBL”) against a Tribunal’s decision that it had unfairly dismissed the respondents. CBL had decided to make redundancies and used a redundancy “matrix” to compare employees in different jobs. The two Respondents were selected from this matrix and were made redundant.

The Employment Tribunal found that CBL did not identify the employees who carried out work of a particular kind that had ceased or diminished or was expected to cease or 48 diminish and therefore neither of the Respondents who were dismissed could be taken to be dismissed by reason of redundancy. CBL argued that the Tribunal should have applied the two stage test in in Murray v Foyle Meats Ltd to determine if the reason for the dismissals was redundancy.

The EAT agreed and found that this was the reason, but upheld the Tribunal’s finding that the dismissal was unfair in the circumstances, given the strange selection process. CBL then argued that had a fair procedure been followed the respondents would have been dismissed anyway and a Polkey reduction should have been applied. There was evidence that CBL had introduced accounting software which meant the respondents were no longer required in the business.

The EAT allowed this part of the appeal, but rather strangely referred the matter back to the original Tribunal for consideration. http://www.employmentappeals.gov.uk/Public/Upload/12_0525fhwwSBDM.doc