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Unfair Dismissal and Redundancy

Unfair Dismissal and Redundancy

Redundancies and offering alternative work

An employer making an employee redundant will not normally be acting reasonably unless it considers whether there is any alternative work that may be offered.

Aramark (UK) Ltd v Fernandes

In Aramark (UK) Ltd v Fernandes however, the employee argued that the employer should also have considered placing him in a bank of casual workers after his redundancy had taken effect.

Casual work and redundancy

The employer maintained a list of workers who they would call upon to perform ad hoc assignments from time to time. They did so frequently with the result that those on the list, while not having the security of employment, had a reasonable expectation of future earnings.

When Mr Fernandes was placed at risk of redundancy he asked to be placed on the list as that would help him offset his lost income. The employer refused and a Tribunal subsequently held that this rendered the dismissal unfair.

When is redundancy unfair?

The EAT overturned this decision. In an unfair dismissal case, the question is whether the employer has acted reasonably in treating the reason for dismissal – redundancy in this case – as a sufficient reason for dismissing the employee.

Placing Mr Fernandes in the bank of casual workers would not have altered the fact that he had been dismissed – it was not a way of avoiding dismissal as an offer of alternative work would have been.

It was therefore not a relevant consideration in deciding whether or not redundancy was a sufficient reason for dismissal. Whether the employer had granted the employee’s request or not, he would have been dismissed all the same. Since this was the only ground on which the Tribunal upheld his claim, the EAT ruled that the dismissal was fair.

A specialist employment solicitor's view

Paul Burton, Head of Employment at Frettens says: "This case joins several cases over the years which have broadly favoured employers in arguments about fairness in dismissals. An employer is only obliged to be fair in all its decision-making processes which result in a dismissal including in redundancy situations. The consideration of reasonable alternative roles is particular to redundancy situations and may go to the fairness of the redundancy itself but not the resultant dismissal."

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