Hello again and welcome back to our case of the week. For those that missed our announcement, Philip and Oscar have launched Yoga HR. You can find the website here.

Last week’s case was on costs application in the case of Carroll-Cliffe v Pembrey and Burry Port Town Council.  Click here to read it.

This week’s case explores the fairness of dismissal for redundancy in Birkett v Integral UK Ltd.

Background

The Claimant was employed as an experienced gas engineer. The Respondent was a large employer in the business of facilities management.  The Respondent aimed to minimise redundancies by identifying employees who might be suitable for a voluntary redundancy offer.

The Claimant was the only North Wales engineer in his cohort that was offered voluntary redundancy.

The Claimant interviewed for a new position despite his redundancy offer with the Respondent but was unsuccessful.  The Claimant felt that he was more than qualified to take on the role being advertised.

The Claimant originally claimed unfair dismissal and discrimination at the Employment Tribunal (ET). Both claims were unsuccessful.

The Claimant appealed the unfair dismissal claim on the basis that the ET erred in inadequate findings when assessing the fairness of the dismissal.

The Appeal

The Claimant argued that the ET had failed to correctly apply s.98(4) ERA when considering whether the Respondent had been reasonable in failing to offer alternative employment to the Claimant.

Whilst the Respondent had offered the Claimant an interview, the ET had failed in determining the reasons why an alternative candidate was better suited for the role or why the Claimant was unsuccessful in their application from an objective assessment.  These findings were imperative in determining whether the Respondent applied a fair procedure in hiring anyone other than the Claimant.

The EAT remitted the case to the same tribunal for the ET to remake findings of the two identified issues.

Takeaway Points

Unfair redundancy dismissals can happen in the following ways:

  • Not establishing that the employee’s role was in fact and in law redundant.
  • A failure to consult either individually or collectively.
  • An unfair selection from a pool of employees carrying out similar roles.
  • Failure to take reasonable steps to find alternative employment for an employee identified or selected

It was the fourth way that was the issue here. Employers must make sure that employees identified as redundant are treated fairly when determining who is appointed to any alternative roles. Fair interviews and selection processes are critical as are documents and notes to support those processes.