Flashcards in Redundancy Deck (16)
Definition of redundancy
An employee is dismissed for redundancy if the dismissal is due to the whole business closing(s139(1)(a)(i) or a branch closing (s139(1)(a)(ii). OR the employer requires fewer employees to do a particular kind of work (s193(b)(i)(ii)). This can be a permanent or temporary cessation of work. (s139(6)).
what is the most important thing to remember about redundancy
- NB: this is not about there being less work, it is about there being no need for the employees
What was created to ease the application of s139
Safeway Stores v Burrell:
1) Was the employee dismissed? S136 an employee is dismissed if…
a. the contract is terminated by the employer with/without notice
b. The fixed term contract is not renewed for reason of redundancy
c. Constructive redundancy (don’t worry about this one)
2) Did the business close OR was there less of a need for the employees?
3) Was the dismissal do to the business closing/less need for employees?
Application of Burrell and whole business closure case...
not normally a problem, only so if it closes for refurb
Whitbread plc t/a Whitbread Berni Inns v Flattery & ors
- FACTS: C attempted to make the employees redundant for 4 weeks whilst the shop underwent a refurb. Held a four week closure did not amount to temporary cessation of the business for the purposes of s139(6) (cessation can be temporary or permanent). Therefore, there was no redundancy and it was an unfair dismissal (s98).
Application of Burrell and branch closure case...
- High Table Ltd v Horst: C was told she was being made redundant. D argued they were redundant because their workplace had closed. Courts agreed, C was redundant (also highlights they look at the requirements of the business).
Scenarios where there is less need for employees to do a particular kind or work
a. The same amount of work (of a particular kind) but less employees are needed to do it
b. There is less work (of a particular kind) AND less employees are needed to do it
c. There is less work (of a particular kind) but the same number of employees is required (don’t understand)
case related to a. The same amount of work (of a particular kind) but less employees are needed to do it
McCrea v Cullen & Davison – while C is sick D discovers he can complete the work on his own and dismisses her for redundancy. She claims unfair dismissal, this was a fair redundancy. It is about the businesses requirements.
case related to b. There is less work (of a particular kind) AND less employees are needed to do it
Murray and anor v Foyle Meats Ltd – one of the slaughter halls was closed and the employees were dismissed. They tried to argue because they had a mobility clause to work elsewhere in the factory they couldn’t be made redundant. Held it was a fair redundancy and you look at s139 – the requirements of the employer
who decides the requirements of the business + cases
The employer determines if the business no longer needs the employees (Association of University Teachers v University of Newcastle upon Tyne), a tribunal does not look behind the decision to make redundancies as long as they are done fairly (Moon v Homeworthy Furniture).
What is meant by work of a particular kind + case
Work of a particular kind focuses on the requirements of the business NOT contractual requirements:
Shawkat v Nottingham City Hospital NHS Trust
They dismissed his claim for redundancy payment because there was no ‘cease in work of a particular kind’ for a thoracic surgeon. It was simply a re-organisation where the thoracic surgeon had to also do cardiac surgery.
Choosing whom to make redundant and fairness s98(4)
1) Redundancy is the reason for dismissal (i.e. Burell and s139 above is satisfied)
2) The employer acted reasonably when dismissed the employee. An employer is acting fairly if:
- fair selection
what is meant by consult
i. Individual consultation is a necessity
ii. Collective consultation if there’s 20+
What is meant by fair selection + cases
i. This involves a fair application of objective selections criteria to a pool of employees
ii. ‘attitude’ is too subjective (Graham v ABF), Williams v Compare Maxam ‘would keep the company viable’ also too subjective
iii. Last in first out is an ok selection criteria, Rolls Royce v Unite the Union
statutory redundancy payment is payable to someone with two years’ continuous employment.
What is meant by altenrative employment
i. An employer who fails to research alternative employment will amount to an unfair dismissal