The facts

Mr. Fernandes was employed by Aramark (UK) Ltd but had been made redundant. He claimed unfair dismissal. Sections 98(1/2) of the Employment Rights Act 1996 require that a dismissal must be because of one of 4 specified reasons (redundancy being one of them) or ‘some other substantial reason’, otherwise it shall be unfair.

It was accepted that Mr. Fernandes was dismissed because of redundancy, so sections 98(1/2) were not an issue. However, S98(4) also requires that a dismissal be ‘reasonable’. Mr. Fernandes argued that because he had not been included on a list of bank workers that his employer had created in the event they required extra work (these workers having a reasonable chance of securing work, having done so in the past), his dismissal was unreasonable. The Employment Tribunal agreed with him, and considered it unreasonable that he was not included on the list and therefore rendered his dismissal unfair. His employers appealed the decision.

The decision

In the Employment Appeal Tribunal, Lord Summers made it clear that S98(4) (i.e. the requirement that dismissal be reasonable) attempts specifically to prevent dismissal wherever possible by outlawing those which are unreasonable. As being put on the list of bank workers would not have prevented Mr. Fernandes’ dismissal, but rather would have opened up the opportunity to have secured further work in the future, his employers’ failure to do so could not have rendered them in breach of the reasonableness requirement of S98(4).

In other words, because whether or not he was put on the list had no bearing as to whether or not he would be dismissed, it could not be considered when determining whether dismissal itself was reasonable. In the words of the judge, “If placing him on the list did not entail the provision of alternative employment then failing to place him on the list did not involve a breach of S98(4).”

Takeaway point

This judgement makes clear the point that an employers obligation to an employee once dismissal has (fairly) occurred does not generally extend beyond a consideration of whether alternative employment could have been offered, as if this was considered at the time and the answer was in the negative, then the decision shall be considered reasonable under S98(4) and therefore valid.