The employee began working for the authority on 1 September 2005. He was employed as principal of the Northumberland 'Virtual CPD College' within the authority's children services directorate. Within the same directorate there was also a unit known as the 'Thinking for Learning Unit'. The director of that Unit was P. In July 2006, the authority undertook a review of the children services directorate. The review identified twelve posts, including that of the employee and P, which were at risk of redundancy. Their posts were at risk because the review proposed to merge the 'Virtual CPD College' with the 'Thinking for Learning Unit'. The proposal involved replacing their two posts with one and ring fencing them as applicants for that post. Beginning in October, a period of consultation took place with the union and with individuals. In the result, the authority decided to proceed with the proposal. The new post was to be entitled 'Head of School Workforce Development'. The employee and P both applied and were interviewed. The interviews were founded on a series of pre-set questions that were based on the job description and person specification of the new post, which had been supplied to the candidates in advance. The interview panel consisted of the employee and P's manager, about whom the employee had previously issued a grievance alleging bias and hostility, and two others. Each candidate was asked the same questions in the same order. Scoring was done at the end of the exercise. P scored substantially the higher and was appointed. No other suitable vacancy was identified for the employee and, on 5 April 2007, he was dismissed. The employee presented his originating application to the employment tribunal complaining of unfair dismissal. He argued that he had been unfairly selected for redundancy and that the interview had been unfair. The tribunal considered s 98 of the Employment Rights Act 1996 and Polkey v A E Dauton (or Dayton) Services Ltd[1987] 3 All ER 974, and dismissed the employee's claims. The employee appealed.

On appeal, he argued, for the first time, that the tribunal had failed to deal with the issue of automatic unfair dismissal, pursuant to s 98A(1) of the 1996 Act. He also submitted that the tribunal had failed to determine the criteria upon which he had been selected for redundancy, and had failed to consider whether those criteria were reasonable. Finally, he contended that the tribunal had failed to consider whether the consultation process had been fair, and ought to have found that it was unfair. It was not disputed that the standard disciplinary and dismissal procedure in the Employment Act 2002 (Dispute Resolution) Regulations 2004, SI 2004/752, applied.

The appeal would be dismissed.

(1) The Appeal Tribunal, in common with other appellate courts, would not generally permit a party to argue a new point on appeal that had not been taken below or that had been conceded below. The Appeal Tribunal expected a tribunal to address and deal with certain core issues and certain core statutory provisions in employment law unless the parties had agreed otherwise, or there had been an informed concession on the question. Section 98A(1) of the 1996 Act was part of the essential fabric of unfair dismissal law as presently enacted by Parliament; whether there was an applicable procedure, whether there had been 'non-completion' of that procedure, and whether that non-completion had been wholly or mainly attributable to failure by the employer to comply with its requirements, were matters that the tribunal should have in mind in every unfair dismissal case. It was not necessary for a claimant to raise s 98A(1) explicitly; the tribunal should have the matter in mind as an issue. In the absence of an informed concession on the question, the tribunal should regard s 98A(1) as an issue and deal with it in its reasons. It remained good practice for a tribunal to consider and give reasons upon the issue in every case unless there was an informed concession. It did not follow, however, that in every case where the tribunal had failed to give reasons in respect of s 98A(1) an appellant would be entitled to raise a specific legal argument that had not been raised before and to call for the remittance of the case for the purpose of resolving it (see [33], [35], [37], [38], and [40] of the judgments).

From the care with which the tribunal had dealt with the arguments put forward on behalf of the employee and from the review of the submissions of the parties it was clear that the tribunal had had s 98A(1) in mind but had not addressed it because, on the specific argument put forward by the employee, it had not arisen once the tribunal had found the true reason for the dismissal to be redundancy. The instant case was not one where it was appropriate to allow a new argument to be deployed. There were no exceptional reasons for permitting the employee's new argument to be considered (see [41] and [43] of the judgment).

Langston v Cranfield University [1998] IRLR 172 considered; Jones v Governing Body of Burdett Coutts School [1998] IRLR 521 considered; Venniri v Autodex Ltd [2007] All ER (D) 246 (Dec) considered.

(2) On the evidence, the tribunal had made proper findings as to the selection criteria. It had correctly applied the test in s 98(4) of the 1996 Act. The tribunal's reasons betrayed no error of law, it had made adequate findings as to the consultation process, and had dealt with the allegations of unfairness. In the circumstances, the employee had not established the basis of his appeal (see [46] and [50] of the judgment).

Gareth Williams Barrister.