economic dismissal

Question 1

redundancy

Answer 1

potentially fair reason for dismissal

s98(2)(c)

Question 2

statutory redundancy payment

Answer 2

fair/ unfair redundancy

Question 3

definition of redundancy

Answer 3

s139 ERA

Question 4

s139

Answer 4

the employer ceases to do business:
for which the employee was taken on
in the location where the employee was taken on

the employer’s business changed so that the need for employees to carry out WOPK ceased or diminished

Question 5

step 1: Qualification to claim

Answer 5

s155- redundancy 2 years

Question 6

is there a dismissal?

Answer 6

s95A

Question 7

High Table v Horst- the factual test usually applies to location

Answer 7

waitresses had mobility clause in their contract where the employer could require them to work in various locations. employer stopped doing business where they worked and instead of moving them to another location= made them redundant. HELD- factual test- not contractual

Question 8

Exol Lubricants v Birch

Answer 8

contract still relevant. where employee works in various locations, the contact can be looked at to determine the relevant location.
lorry drivers, contracted to work out of a Wednesbury depot, but the employer allowed them to park their vehicles in Stockport near where they lived. no redundancy as work had not ceased in Wednesbury although it had stopped in stockport.

Question 9

Murray v Foyle Meats- 2 Qs of fact- has WOPK ceased/ diminished?

Answer 9

1. what was the employee required to do?

2. was the reduction in the need for employees to carry out that work?

Question 10

Safeway Stores v Burrel

Answer 10

approved Murray v Foyle meats
a mere change in job specification is not redundancy.the Q is whether WOPK has diminished, not whether C’s job details have changed. this mans that a restricting that significantly changes a worker’s job does not necessarily mean that they are redundant because their old hob is gone

Question 11

North riding garages v Butterwick

Answer 11

employee failed to learn how to use computer system to manage garage. could not claim redundancy. invoked implied flexibility clause- the employee is required to adapt to development/ duty to learn new techniques

Question 12

Murphy v Epson College

Answer 12

redundancy does not require number of employees to diminish- only WOPK.
heating updated= plumbers no longer needed. replaced with heating technicians

Question 13

s98(2)(c)

Answer 13

redundancy is a potentially fair reason to dismiss

Question 14

fairness on redundancy:

Answer 14

a) unfair selection procedure
b) automatically unfair redundancy
c) failure to warn/ consult
d) failure to consider redeployment
e) redundancy compensation

Question 15

a) unfair selection procedure

Williams v Compair Maxim checklist by Browne-Wilkinson J

Answer 15

1) warning- give as much as possible
2) consultation- seek to agree to selection criteria
3) objective selection criteria
4) selection criteria applied fairly
5) consideration of suitable alternative employment

Question 16

British Aerospace v Green

Answer 16

the system of redundancy selection adopted by an employer must be fair and reasonable and applied as such between employees

Question 17

King v Eaton

Answer 17

consultation must be meaningful- so not after decision already made.

Question 18

the Williams criteria can be departed from where

Answer 18

redundancy arose from reorganisation. new role is at a high level involving promotion. redundancy selection does not trump managerial prerogative

Question 19

Morgan v welsh Rugby Union

Answer 19

c complained of unfair dismissal on the basis that the selection process was flawed and based on subjective views of the selection panel. it was contended that Williams criteria should apply- objective
HELD: in the absence of evidence of bias= not unfair

Question 20

b) automatically unfair redundancy

Answer 20

s105 ERA 1996 listed grounds

Question 21

c) failure to warn/consult

williams v compare maxim

Answer 21

where the employer recognises a union the necessary consultations will normally be with that union.
selection criteria should be objectively applied- on the basis of matters such as length of service, experience, efficiency

Question 22

Polkey v AE Dayton Services

Answer 22

procedural fairness. all employers should consult with affected employees. consultation means not only proving information but considering suggestions for avoiding or minimising job loss

Question 23

notice should not be given until the necessary consultation period is completed

Answer 23

Directive 98/59

Question 24

Junk v Kuhnel- ‘collective redundancies’

Answer 24

requires declaration by an employer of his intention to terminate the K as soon as redundancies are considered as a possibility

Question 25

d) failure to consider redeployment

Voakes v Bear-

Answer 25

failure to make a reasonable attempt at redeployment could be regarded as unreasonable behaviour in respect of the decision to dismiss

Question 26

e) redundancy compensation s135(1)

Answer 26

if an employee is made redundant, even if it was found to be a fair redundancy, the employee is entitled to a payment based on the number of years of service

Question 27

Taylor v Kent CC

Answer 27

alternative employment must be ‘suitable’- conditions must be substantially equivalent to the employment which has ceased

Question 28

strict formula- s162 ERA

Answer 28

limited to the employee’s weekly pay, length of service and age

Question 29

Kraft Foods v Hastie

Answer 29

often employers have more generous contractual redundancy schemes. cap contained in such scheme= not age discrimination

Question 30

alternative employment- s141

Answer 30

employee not entitled to redundancy pay if he was

1. offered suitable alternative employment
2. unreasonably refuses

Question 31

s138

Answer 31

four week trial period

Question 32

standard telephone v yates

Answer 32

the EAT upheld the tribunals decision that the job of an assembly operator, for which the pay was the same but less skill required was unsuitable to offer due to drop in status

Question 33

Taylor v Kent CC

Answer 33

headteacher offered job as school teacher- unsuitable even if pay maintained as would affect future job prospects

Question 34

presumption that the reason for dismissal is redundancy

Answer 34

s163 ERA

Question 35

2 years continuous employment

Answer 35

s155

Question 36

REORGANISATION

Answer 36

employer has some financial issue that causes them to believe that they require reorganisation and make changes. the ET cannot concern themselves with whether the reorganisation was necessary

Question 37

s98(1)(b)

Answer 37

reorganisation can come under SOSR

Question 38

2 questions raised under SOSR

Answer 38

is the reason for dismissal ‘substantial’ and is firing ‘fair’?

Question 39

lees v imperial college

Answer 39

dismissal can be constructive including redundancy and SOSR

Question 40

SOSR 3 Q’s

Answer 40

1. reorganisation necessary?
2. changes necessary ?
3. sufficient consultation?

Question 41

Ellis v Brighton Co-operative Society

Answer 41

suggests that business must be on the verge of failing without changes, standard lowered in Hollister

Question 42

Hollister v National Union of Farmers

Answer 42

it is sufficient if there is a ‘sound, good business reason’

Question 43

Evans v elementa holdings

Answer 43

EAT appeared to be redressing imbalance by considering whether it was reasonable for the employee to refuse the new terms of employment

Question 44

Chubb Fire Security v Harper

Answer 44

court refused to follow Evans instead of reasonableness focused on the employers decision itself.

Question 45

Dryden

Answer 45

employers are entitled to make/ change rules within the scope of the employment contract. managerial prerogative= not a breach of the contract.

Question 46

Hussmen manufacturing v weir

Answer 46

the detrimental financial consequence of a lawful contractual change will not amount to an unlawful dedication. contract allowed shift change despite wage being decreased

Question 47

d’silva

Answer 47

sick pay code- certain provisions are contractual and others only good practice. non-contractual= variable §

Question 48

united bank v aktar

Answer 48

the employee should be given reasonable notice of a relocation

Question 49

white v reflecting road studds

Answer 49

refusal to grant a relocation does not amount o constructive dismissal
but might= breach of t+c

Question 50

Jones v associated tunnelling

Answer 50

mobility clause could be implied for business efficiency

Question 51

Cresswell v Board of IR

Answer 51

employees duty to adapt and cooperate in respect of new technology= implied flexibility clause