Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Our Employment Appeal Tribunal case of the week this week (in fairness, there haven’t been many released this week) is Mental Health Care (UK) Ltd v Biluan & Anor – a case concerning the fairness of a redundancy dismissal and whether the employer used fair criteria in assessing their staff, as there were concerns as to why the staff’s experience hadn’t been used as one of the criteria

Summary: The Employment Appeal Tribunal upheld the Employment Tribunal’s ruling that the dismissal of the Claimants was unfair, principally because the criteria that had been used to assess the employees’ capabilities was based on a recruitment exercise and didn’t take into account their past experience; the employer hadn’t consulted with the employees’ managers as to their views on the potential redundancy candidates; and that the process hadn’t been reviewed even though severe criticism had been made of it because of the fact that some “very good workers” had been selected.

The facts in Mental Health Care (UK) Ltd v Biluan & Anor

In late 2010 Mental Health Care (UK) Ltd decided that redundancies needed to be made because the Dinorben ward at the Plas Coch hospital was being closed. 19 redundancies were required and all the staff who worked in the Dinorben ward were placed in the redunancy pool and put at risk of redundancy. The selection criteria used were drawn up with reference to three criteria: a competency assessment (which accounted for 60% of the score); the staff’s disciplinary record (20%); and their sickness asbsence (also 20%). The work experience of the staff were not taken into account and their present and former managers were not consulted on their views on the staff (which is normal in such redundancy situations). This led to two staff who were described as “very good workers” (Mr Makati and Ms Biluan) being selected for redundancy. However, although the redundancy process was criticised for its failure to take experience or the managers’ views into account, the Respondent failed to revisit the process to determine whether it was unfair or not. Mr Makati and Ms Biluan were subsequently made redundant and made claims to the Employment Tribunal for unfair dismissal and discrimination. They were successful in the Employment Tribunal in their unfair dismissal claim and the Respondent appealed on the grounds that the selection criteria used was fair, the way those criteria were applied were fair, there was proper consultation, and the appeal process was fair. The primary reason for the challenging of these issues was that the Employment Tribunal had “substituted” its own views for that of the employer (which is an error of law).

The law relating to redundancy dismissals

Employers have a duty not to unfairly dismiss (qualifying) employees under the Employment Rights Act 1996. Under the ERA 1996 the employer must identify one of three reasons for making the redundancy and must make a reasonable decision to dismiss (based on a fair and adequate procedure) employees.

In order to make a fair decision to dismiss for redundancy an employer must generally do the following things (as identified in the Employment Tribunal judgment):

  1. Identify a reason for the dismissal
  2. Create the correct pool for redundancy
  3. Draw up fair selection criteria
  4. Apply the selection criteria fairly
  5. Consult adequately and properly with the employees
  6. Determine whether there were any suitable alternative vacancies for the employees
  7. Give the dismissed employees a fair appeal process
  8. Make a decision to dismiss that was within the reasonable range of responses; and
  9. Act reasonably in treating the decision to dismiss as a fair and proportionate one in the circumstances

If an employer fails to satisfy the above an employee has a good chance in succeeding in a claim for unfair dismissal.

The Employment Appeal Tribunal’s decision in Mental Health Care (UK) Ltd v Biluan & Anor

The Employment Appeal Tribunal held that the Employment Tribunal’s decision was not based on an error of law – they had not substituted their own views for that of the employer and the Tribunal’s decision was not a perverse one in the circumstances. However, the Tribunal was subject to slight criticism due to its failure to address certain points in its judgment (such as the substitution issue) and to summarise the relevant law on unfair dismissal.

Our employment solicitors’ thoughts on Mental Health Care (UK) Ltd v Biluan & Anor

Chris Hadrill, an employment law solicitor at Redmans, stated that “employers have a great deal of discretion in choosing whether to make redunancies and which staff to make redundant. However, this decision demonstrates that they should also take care to formulate the selection criteria for their staff fairly and that they should also listen to and respond to criticism of the procedure, if there is such.



Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Share →

Our awards

Request a callback

    Your first name (required)

    Your last name (required)

    Your email (required)

    Your telephone number (required)

    Brief details of your enquiry

    Contact us

    Please feel free to discuss your own position and concerns. Contact your nearest office on:

    T: 020 3397 3603
    E: enquiries@redmans.co.uk
    W: www.redmans.co.uk


    4.78 Average

    218 Reviews


    I would like to thank Chris Hadrill, in particular who handled my case, for all his hard work, expertise and dedication. He listened with empathy and offered suitable advice, which made me feel valued and confident through a difficult time. I would highly recommend Chris and the team at Redmans Solicitors. Thank you.

    Posted 3 hours ago

    Yann G

    Yann Guezennec / Chris Hadrill - Thanks for the detailed, informed and professional advice for my settlement. When comprise is the rule I felt we could have been maybe a bit more aggressive from the start. However an acceptable outcome considering the situation. Thank you

    Posted 1 day ago

    Valentina D

    Great service from Mel, she was very good at explaining every part of the settlement agreement and very efficient dealing with the HR team. Very professional team, I would definitely use them again in future if the opportunity came up.

    Posted 2 days ago

    Olaf S

    I was very happy with the service that I have received. Thank You Regards

    Posted 2 days ago

    Rebecca A

    I had a wonderful solicitor called Caroline who was so helpful and gave me all the information I need and explained everything in detail so I was crystal clear. Would highly recommend if you are in need of a solicitor!

    Posted 4 days ago

    Gareth J

    Very efficient, helpful and pragmatic support from Caroline. Happy to work with my requirements / suggestions but also made some very good points which helped to achieve a higher settlement amount. Would highly recommend Caroline and Chris.

    Posted 4 days ago

    Ellen S

    Excellent, professional, timely. Friendly when I needed it most. Would recommend to anyone.

    Posted 5 days ago

    Ellen S

    Excellent, professional, timely. Friendly when I needed it most. Would recommend to anyone.

    Posted 5 days ago

    Cristina G

    Very professional and reliable. Timely answers, clear and to the point. Always looking for the best for their customers.

    Posted 6 days ago

    Rob T

    Very professional and on target - highly recommended.

    Posted 1 week ago


    Very efficient service and knowledgeable solicitors.

    Posted 1 week ago


    Excellent response time from first contact. Quick and easy completion of documents required. Fast response to any queries I made.

    Posted 1 week ago


    Redmans Solicitors did a great job and were very professional at all times. Would definitely recommend.

    Posted 3 weeks ago

    Gary P

    All good advice, prompt and efficient

    Posted 2 months ago


    Excellent advice and customer service.

    Posted 3 months ago

    Aneet G

    I would definitely recommend Redmans. Very impressed with service provided. They were extremely proactive in handling my case which made things easier for me. Provided sound advice and resolution. Special credit for this goes to Chris who dealt with my case with great determination and consideration.

    Posted 3 months ago

    Fern M

    Very efficient and friendly

    Posted 3 months ago

    Neville S

    A professional and friendly service, which I would highly recommend.

    Posted 3 months ago

    Daniel T

    Extremely helpful and made a bad situation much more manageable. Where other solicitors seemed disinterested in my situation Redmans immediately made me feel like it was a team effort to achieve a more favourable outcome

    Posted 3 months ago

    Paul T

    Excellent, quick and informative. Chris was a real star and gave me confidence during the uncertainty if a redundancy settlement.

    Posted 3 months ago

    Marina E

    Felt in very capable hands was listened to and given excellent advice. Would not hesitate to recomend and use again if needed.

    Posted 3 months ago