Redundancy – the duty to look for alternative employment

21st September 2020

Redundancy – the duty to look for alternative employment

In order for a dismissal on grounds of redundancy to be fair, an employer must, in addition to following a fair selection process and consulting with the employee(s) at risk, take reasonable steps to look for a way of avoiding redundancy – including giving the employee(s) the opportunity to be considered for any suitable vacancies which may exist elsewhere in the employer’s organisation.

In Aramark (UK) Ltd v Fernandes, Mr Fernandes was informed that he was at risk of dismissal on grounds of redundancy. In addition to its regular workforce, Aramark maintained a pool of casual workers from which it drew upon from time to time to cover any absences or other shortages. Some of these workers were contracted to work for extended periods. Mr Fernandes argued that Aramark should have given him a place in this pool. The Employment Tribunal agreed. The Tribunal held that Aramark’s failure to add him to the pool of workers rendered his dismissal unfair.

Aramark appealed and the Employment Appeal Tribunal held that Mr Fernandes’ dismissal had been fair. The Employment Tribunal’s role is to decide whether  it was reasonable for the employer to conclude that redundancy was a sufficient reason for dismissing the employee. Putting Mr Fernandes in the pool of casual workers would not have avoided his dismissal. This was not the same as an alternative role that would have meant that there was no need to dismiss Mr Fernandes. Whether reasonable or not – and no conclusion was reached on this point – Aramark’s decision not to place him in the pool was therefore irrelevant to the question of whether or not it was reasonable for Aramark to dismiss him.

For further information regarding employers’ obligations in a redundancy situation, please contact Marie Allen, Employment Partner on 01473 298133 or marie.allen@gotelee.co.uk

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