• Robert Spicer

UNFAIR REDUNDANCY DISMISSAL: MORE CASES

Agreed procedures

Jackson v General Accident, Fire & Life Assurance Co Ltd [1976] IRLR 338, EAT:The meaning of agreed procedure, relating to agreement between employer and employee as to the method of selection for redundancy. Does not include mere expression of intent or hope as to employer’s future policy.

Henry v Ellerman City Lines Ltd [1984] IRLR 409, CA: An implied procedural agreement can be regarded as agreed procedure and need not be expressly agreed.

Suflex Ltd v Thomas [1987] IRLR 435, EAT: Redundancy procedure of “last in first out subject to exceptions” held too uncertain.

Cross International v Reid [1985] IRLR 387, CA: It is a matter for tribunal as to whether special reasons for departure from agreed procedure. Justification put forward by the employer must be within range of reasonable responses which a reasonable employer might make.

Rolls-Royce Motor Cars Ltd v Price [1993] IRLR 203, EAT: “Last in first out” selection process that can be a departure from agreement. An employer may depart from the agreed “last in first out” procedure where the agreement could prevent continuation of business in difficult circumstances.

International Paint Co Ltd v Cameron [1979] IRLR 62, EAT: “Last in first out” procedure and length of employment. Under “last in first out” agreed procedure, an employee is entitled to have length of employment counted in the same way as continuous service is normally assessed.

References:

Williams v Compare Maxam Ltd [1982] IRLR 83, EAT

Robinson v Carrickfergus BC [1983] IRLR 122, NICA

Thomas & Betts Manufacturing Ltd v Harding [1980] IRLR 255, CA

Fulcrum Pharma (Europe) Ltd v Bonasser and another UKEAT/0198/10

Bessenden Properties v Corness [1974] IRLR 338, HL

Paine and Moore v Grundy (Teddington) Ltd [1981] IRLR 267, EAT

Graham v ABF Ltd [1986] IRLR 90, EAT

Grant v BSS Group plc UKEAT/0832/02

E-Zec Medical Transport Service Ltd v Gregory UKEAT/0192/08

British Aerospace plc v Green and others [1995] IRLR 433, CA

FDR Ltd v Holloway [1995] IRLR 400, EAT

Mental Health Care (UK) Ltd v (1) Biluan (2) Makati UKEAT/0248/12

Green v A&I Fraser (Wholesale Fish Merchants) Ltd [1985] IRLR 55, EAT

Barbar Indian Restaurant v Rawat [1985] IRLR 57, EAT

Vokes Ltd v Bear [1973] IRLR 363, NIRC

Elliott v Richard Stump Ltd [1987] IRLR 215, EAT

Avonmouth Construction Co v Shipway [1979] IRLR 14, EAT

Bumping

This arises where an employer dismisses an employee who works in a non-redundant post to make way for a more suitable employee who works in a redundant post. The bumped employee may be able to complain of unfair dismissal. Unfairness, in the context of bumping, is a question of fact for the ET.

Barbar Indian Restaurant v Rawat (EAT 204/84

R was employed by B, a restaurant owner, as a kitchen assistant. B also owned a shop and it decided to close the shop and move shop workers to the restaurant. R was dismissed for redundancy. The EAT ruled that the business in which R was employed continued as before and there was no redundancy. The concept of bumping only applies within one business.

Failure to offer alternative employment

Employers have a duty to look for alternative employment and to offer suitable alternative vacancies. Vacancies with associated employers should also be considered. A trial period should be allowed. Failure to allow a trial period may make the dismissal unfair.

Case Examples:

George v London Borough of Brent UKEAT/0507/13/SM

G was employed as a library manager by B. She was made redundant and was offered an alternative role which was two pay grades lower than the previous role and required a change in location. B’s redundancy policy included the right to a four-week trial period. This was refused. G refused the new position. She was dismissed for redundancy and complained of unfair dismissal. The ET dismissed the claim on the basis that G had not refused the new job offer because the trial period had been refused. G appealed to the EAT, which has now considered the claim three times.

The appeal was allowed and the matter remitted to a fresh tribunal. Given that it was conceded that the failure to offer a trial period was unlawful, how could something unlawful be also fair and reasonable?

Reorganisation and new jobs

Asif v Elmbridge BC: A was employed by E as an IT administrative officer. Two other workers had the same job and another had a similar post. Another similar post was vacant. E decided to scrap these jobs and create three new positions of IT customer services officer. A redundancy selection procedure resulted in A scoring lowest and being given notice of redundancy. She complained of unfair dismissal. The ET rejected the complaint. It ruled that A was not appointable to the new post. This was upheld by the EAT which stated that it was open to E to conclude that an employee had done so badly in the assessment exercise that the employee could not be appointed to a new post with greater responsibilities.

References:

Asif v Elmbridge BC UKEAT/0395/11

Cumbria Partnership NHS Foundation Trust v Steel UKEAT/0635/11

Green v Barking & Dagenham LBC UKEAT/0157/16

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