W4 Redundancy Flashcards
(111 cards)
1
Q
Statutory authority for right to redundancy payment
A
s135 ERA 1996
2
Q
True or False: If an employment contract specifies a more generous redundancy right than the statutory payment, it’s at the employer’s discretion whether to pay the contractual benefit or statutory payment.
A
False - would give rise to a claim
3
Q
Can a redundancy claim be brought in combination with a WD or UFD claim?
A
Yes
4
Q
Can a redundancy claim only be brought if there was a WD or UFD?
A
No - it’s an independent claim as well
5
Q
What are the eligibility criteria for a redundancy payment?
A
Same as UFD:
Employee
Not excluded class
2 years continuous employment
6
Q
What is the “relevant date” for continuous employment for redundancy?
A
If notice given: expiration of notice
If no notice: EDT
7
Q
What types of dismissal can give rise to a redundancy claim?
A
Actual
Constructive
Non-renewal of FTC
8
Q
When bringing a redundancy claim, who bears the burden of proof that the principal reason for the dismissal was redundancy?
A
There will be a rebuttable presumption that dismissal was redundancy. Employer can rebut to substitute another fair reason. Employee can rebut that it was an unfair reason.
9
Q
Statutory source for the definition of redundancy
A
s139 ERA 1996
10
Q
What are the types of redundancy and their statutory source?
A
Job redundancy (closure of business) - s139(1)(a)(i)
Place of work redundancy (site closure/reduction) - s139(1)(a)(ii)
Employee redundancy (employee not needed for type of work, at all or at site) - s139(1)(b)
11
Q
High Table v Horst
A
Facts: In-house catering company, 3 employees worked for one client only. When the client contract ended, employees were dismissed. Employment contracts had mobility clause but the e’ees were not asked to work elsewhere. Employees claimed UFD, as no fair reason dismissal-redundancy had arisen since could work elsewhere. Court found that it was a valid place of work redundancy, not a UFD. Their place of work was closing/ceasing to do work of a particular type, so valid redundancy under statute. Was referred back to tribunal to determine if redundancy process was fair.
Significance: Job location (for purposes of place of work redundancy) is based primarily on actual circumstances. A mobility clause can be evidence of multiple places of work, but actual circumstances must be considered. A mobility clause does not widen the location of the employment.
12
Q
How do workplace redundancies work where the employee has multiple places of work and/or a mobility clause?
A
Actual place of work is a matter of fact/actual circumstance
Mobility clause is one piece of evidence - if never used and employee always at one place, then not relevant
Auth: High Table v Horst
13
Q
If an employer requests an employee move place of work due to workforce reduction at their site, the e’ee has no MC, the e’ee refuses and is dismissed, then (i) is there a dismissal and (ii) is there a redundancy?
A
There is an actual dismissal, for fair reason of redundancy, and the e’ee is entitled to redundancy payment
14
Q
If an employer requests an employee move place of work due to workforce reduction at their site, the e’ee has no MC, the e’ee refuses and resigns in response, then (i) is there a dismissal and (ii) is there a redundancy?
A
There is a constructive dismissal, for fair reason of redundancy, and e’ee may be entitled to redundancy payment and/or WD claim depending on circumstances
15
Q
If an employer requests an employee move place of work due to workforce reduction at their site, the e’ee does have an MC, the e’ee refuses and resigns in response, then (i) is there a dismissal and (ii) is there a redundancy?
A
If employee resigns, then no dismissal and no redundancy payment
HOWEVER mobility clause must be valid/reasonable
16
Q
If an employer requests an employee move place of work due to workforce reduction at their site, the e’ee does have an MC, the e’ee refuses and is dismissed, then (i) is there a dismissal and (ii) is there a redundancy?
A
There is an actual dismissal, for fair reason of misconduct (refusal to obey reasonable instructions). No redundancy payment
HOWEVER mobility clause must be valid/reasonable
17
Q
How are valid mobility clauses relevant to workplace redundancies, in terms of evidence?
A
They can be evidence that an e’ee had multiple places of work, if supported by the actual circumstances
They can be relevant to identifying the cause of dismissal (e.g. refusal to obey reasonable instructions vs redundancy)
18
Q
If an employer is reducing workforce at a site and dismisses e’ees with MC clauses without requesting they move, is there a dismissal and is there a redundancy?
A
There is an actual dismissal, for fair reason of redundancy, and the e’ee is entitled to redundancy payment
19
Q
Kellogg Brown & Root v Fitton and Ewer
A
Facts: Employer closed an office and requested employees with a mobility clause to move offices. The employees refused to move due to additional commute and were dismissed for refusing to comply with reasonable instructions/misconduct. ET found the dismissal to be a redundancy, employer appealed. EAT found that the ET had erred in finding the reason for dismissal to be redundancy, when it was misconduct. However, employer had not been entitled to rely on the MC, its instruction to move office was not reasonable in the circumstances, and e’ees had reasonable grounds to refuse (so not misconduct).
Significance: To rely on MC to get out of redundancy payment, must be a valid MC with reasonable notice/instructions.
20
Q
Home Office v Evans 2008
A
Facts: Immigration officers stationed at Waterloo. Immigration services were no longer needed at Waterloo. After a consultation regarding alternate positions which the employees refused to engage in, employer sought to exercise the mobility clause to move them to Heathrow. Employees resigned claiming constructive unfair dismissal. ET and EAT found there to be a redundancy situation and the employer had acted in fundamental breach by invoking mobility clause to avoid redundancy procedures. CoA held that the employer’s actions from the outset were consistent with invoking mobility obligations, not redundancy, so were not “dodging” redundancy. Employers are entitled to invoke mobility clauses to avoid making redundancy dismissals, and can start redundancy procedures afterwards if the mobility clause plan doesn’t work.
Significance: A valid mobility clause, enforced through proper procedure, is a valid alternative to redundancy dismissal.
21
Q
If an e’ee is dismissed because their job is no longer required, what type of redundancy is it?
A
Employee redundancy
22
Q
If an e’ee is dismissed because their job is not required due to reduction in demand, what kind of redundancy is it?
A
Employee redundancy
23
Q
If an e’ee is dismissed because their job is going to be outsourced, what kind of redundancy is it?
A
Employee redundancy (but may have TUPE implications)
24
Q
If an e’ee is dismissed because the company is restructuring/deploying efficiency technology, what kind of redundancy is it?
A
Employee redundancy
25
Murphy v Epsom College 1984
Facts: Two plumbers employed to do general plumbing work, including some heating technician work. A more sophisticated heating system was introduced, and the employer required less general plumbing work and more specialist heating tech work. One plumber was replaced with a heating technician. CoA upheld that this was a redundancy, even though the number of employees didn't change.
Significance: "Workforce reduction" doesn't have to actually reduce headcount - focus is on work "of a particular kind", in this case, plumbing.
26
If an e'ee is dismissed because the nature of their job is changing, there's a reallocation of tasks, or new methods, is it redundancy?
Maybe - if no diminished requirement for work of a particular kind, then not redundancy (North Riding Garages v Butterwick).
But if changed so that there is a diminished requirement for work of a particular kind, then there is redundancy (Murphy v Epsom College)
27
North Riding Garages v Butterwick
Facts: A garage manager brought a redundancy claim. After a take-over, he was dismissed but not given redundancy payment. The previous owner had been responsible for estimating repair costs, and when he departed, left that responsibility to the manager. The manager was bad at it and was dismissed. Court found that the work of the repair shop had not diminished, the need for work of a particular kind had not reduced, so was not redundancy but capability dismissal. Note this is 1966, before ERA language.
Significance: Change to allocation of responsibilities between individuals is not necessarily redundancy if the level of work required is unchanged.
28
To determine "work of a particular kind" to determine employee redundancy situations, is it a contract test or function test?
Neither, it is a three-part test (must meet all 3):
1) Was there a dismissal?
2) Had the business's requirements for e'ees to carry out work of a particular kind ceased/diminished?
3) Was the dismissal caused wholly/mainly by this state of affairs?
Auth: Safeways v Burrell
29
Safeways v Burrell
Facts: Petrol station manager. Company re-org'd and eliminated petrol station managers and replaced with petrol station controllers, at a lower salary. Employee was made redundant and decided not to apply for the lower position. He brought a UFD claim that his job had not been made redundant in fact. Tribunal applied a "function test" that work of the kind the employee did had not ceased/diminished, so no redundancy. On appeal, it was decided to be redundancy: via restructure, the employer needed fewer employees to do the same work, so the need for employees to do work of a particular kind had diminished, and that caused the dismissal.
Significance: Established the three stage test for employee redundancy: 1) Dismissal? 2) Had requirements of business for employees to carry out work of a particular kind ceased/diminished? Was dismissal caused wholly/mainly by this state of affairs?
30
How to determine if the business requirements for e'ees to carry out work of a certain kind has diminished?
Does the employer no longer need/need fewer e'ees to do a particular kind of work?
Terms of contract/performance of duties not relevant
31
Murray v Foyle Meats
Facts: Meat plant operators in a slaughterhouse, with a mobility/flexibility clause which was sometimes used. Work at the site decreased and employees selected for redundancy in accordance with a procedure agreed between their union and the employer. Employees claimed that work of a particular kind had not reduced or not caused their dismissal, so it was an unfair dismissal. They asserted that their contracts were similar to those who worked on other teams, so it was unfair that only their team was considered for redundancy. HoL dismissed their appeal, affirming Safeways v Burrell: requirements had diminished, and the diminishment caused the dismissal. In obiter, said that redundancy could still arise if the diminishment did not affect the employee in question (e.g. bumping), it would just be harder to prove causation.
Significance: Affirmed Safeways v Burrell. "Bumping" is still redundancy.
32
How to determine if a dismissal was caused wholly/mainly by the diminished requirement for work of a certain type?
Causal connection between e'er's diminished need and dismissal
Question of fact
Includes "bumping"
33
"Bumping"
When an e'er moves a potentially redundant e'ee (A) into another role, then dismisses the e'ee currently in that role (B).
34
When an e'er moves a potentially redundant e'ee (A) into another role, then dismisses the e'ee currently in that role (B).
"Bumping"
35
Is bumping a redundancy, even though there was no reduction in requirement for the dismissed e'ee's work?
Yes, provided the bump caused the dismissal. The dismissal may occur for another reason (e.g. incapacity). Otherwise, just filling a vacancy.
Auth: Murray v Foyle Meats
36
If the overall headcount of a business/team/site is not reduced following a restructuring, can it be a redundancy?
Yes, if particular kind of work is reduced (Packman v Fauchon)
However, e'ees may argue new jobs are old jobs in disguise and bring claims
37
Packman v Fauchon
Facts: Bookkeeper's hours were reduced after bookkeeping software reduced the number of hours required. Employee refused the reduction in her hours and was dismissed. She brought a UFD claim. Tribunal concluded the reason for dismissal was redundancy. Employee appealed, saying there was no reduction in headcount. EAT said there was diminished need for work of a particular kind, so it was a redundancy situation. In obiter, made the point that it was a real reduction in headcount in FTE terms (which is used by industrial employment tribunals, so should be followed to avoid discrepancy).
Significance: Reduction in hours can be a redundancy.
38
Do narrow definitions of work duties in an employment contract make redundancy claims more or less likely?
Narrow duties make redundancies more likely.
If an e'er asks the e'ee to do different duties than their contract, per needs of the business, and they either resign or are dismissed in response to their refusal, it will be a redundancy situation (resignation = constructive dismissal, dismissal is still for redundancy reasons).
39
What is the effect of wide work duties or flexibility clauses in employment contracts re: employee redundancy?
Redundancy claims are less likely to arise.
If e'ee refuses to vary responsibilities, and are dismissed, then it is for misconduct/refusing reasonable instruction.
If they resign in response to request, it is not a dismissal.
40
How might an e'ee lose their right to a redundancy payment?
If e'er offers to renew/re-engage them prior to end of employment
Auth: s141 ERA 1996
41
s141(4) ERA 1996 (paraphrased)
An e'ee is not entitled to a redundancy payment if the e'er offers to renew/re-engage them
42
What are the requirements of renewal/re-engagement offers to satisfy s141 ERA?
The offer must:
Be suitable
Start immediately or within four weeks of EDT
Include a trial period of four weeks
Be made to the e'ee prior to end of their initial employment
43
How to determine if an offer to re-engage is "suitable" under s141 ERA?
Suitable in relation to the employee, with consideration for:
Capacity of employment
Place of employment
Terms and conditions
44
For an offer to re-engage to be "suitable" under 141 ERA, does it need to be the same terms/conditions/etc as prior employment?
No, it can be a different contract, as long as it's suitable (141(3)(b))
If capacity/place/terms and conditions are the same as previous, then automatically suitable (141(3)(a))
45
If an e'ee accepts an offer to be re-employed under s141, what happens?
They are treated as if no dismissal occurred
Their continuity of employment is not broken
Not entitled to redundancy pay
46
If an e'ee rejects an offer to be re-employed under s141, what happens?
If the offer was "unsuitable", then the e'ee is entitled to redundancy pay
If the offer was suitable: no redundancy payment unless refusal is reasonable. Subjective test with regard to e'ee's personal circumstances (Devon v Readman)
47
Devon Primary Care Trust v Readman
Facts: E'ee was a nurse in a management position, advised she was at risk of redundancy. She was offered three alternative positions, including one managerial in a hospital (her experience was as a community nurse), and two lesser roles. She took a lesser role on a trial basis. In the interim, she was offered another role in Canada, which she eventually took. Before moving, she was made redundant. Question was whether her refusal of the management role was reasonable or not, and thus was she entitled to a redundancy payment or not. It was unclear whether her refusal was because she was planning to emigrate to Canada - remitted back to ET for fact finding.
Significance: The reasonableness of refusal includes factors personal to the employee (e.g. community vs hospital work). It is not a "band of reasonable responses test" like UFD. It is a fact-based determination.
48
Is an e'ee entitled to make a redundancy claim in any redundancy situation?
No, the claim is for if the e'er failed to make the correct payment/there's a dispute over the amount
49
Time period to bring a redundancy claim
6 months from relevant date
50
For a redundancy claim, does the e'ee need to get an ACAS certificate?
No, if only a redundancy claim
51
If the e'ee receives the correct redundancy payment, can they claim for unfair dismissal and/or wrongful dismissal?
Wrongful dismissal: if not enough notice provided, but may not be a loss if RP was correct
UFD: Yes, if redundancy process was not handled fairly. Could result in UFD basic and compensatory awards but won't be awarded for same loss twice.
52
Are there automatically unfair redundancies?
Yes, if selection was related to e'ee's protected characteristic, trade union participation, H&S representative, statutory rights, etc (ss98B - 104)
53
True or False: Tribunal will require e'ers to prove they were commercially required to make redundancies.
False. Tribunal's investigation is limited to assuring redundancy was the "real reason".
Auth: James W Cook v Tipper
54
James W Cook v Tipper
Facts: 15 employees brought unfair dismissal claims following their redundancies (pre-ERA) from a company that eventually became insolvent. Tribunal held that the dismissals were unfair as the business could have continued if its management had acted reasonably, so awarded compensation for period from dismissal through to when it likely would have become insolvent if acting reasonably. CoA found that the compensatory award was incorrect. Tribunal is entitled to consider if the closure is genuine, but not to question the commercial/economic reasons for closure. Although, the judge said it may be that the court should have this power to ensure fairness for the workforce, but they did not actually have it.
Significance: Tribunal will not investigate commercial reasons behind redundancies, just that it was the real reason for a dismissal.
55
To avoid a UFD claim re: redundancy, what must the e'er show?
That is was reasonable to dismiss the **specific employee** for redundancy
Auth: Williams v Compare Maxim
56
Williams v Compair Maxam 1982
Facts: Employer making redundancies made a list based on who would be most useful in the long term interests of the company (too subjective). Employees brought UFD claim. Tribunal had to take into account whether consideration had been given to the current standards of fair industrial practice, including maximum warnings, consultations, alternative vacancies, etc.
Significance: Tribunal must be satisfied that it was reasonable to dismiss the specific employee for redundancy, and must consider other vacancies/alternative solutions.
57
What does a fair redundancy process require?
Warning and consultation with specific e'ees
Fair and objective selection criteria
Fair and consistent application of criteria
Consideration of alternative employment
Auth: Polkey v Dayton
58
If e'ees are not consulted in a redundancy situation, is the redundancy automatically unfair?
No, if there are exceptional circumstances and consultation would be utterly futile.
Auth: Polkey v Dayton
59
R v British Coal Corporation ex p Price
Facts: Closure of coal mines by the government. Union asked court to make a declaration as to whether the redundancy discussions had followed the gov't order for fair consultation. Court declared they had: sufficient information at a formative stage, allow sufficient time for other party to express their views, and consider those views seriously.
Significance: Fair consultation process requirements
60
Who carries the burden of proof that the redundancy consultation, selection, and search for suitable employment was carried out fairly/reasonably?
Tribunal - they must neutrally consider these points even if the claimant does not raise them
Auth: Langston v Cranfield University
61
Langston v Cranfield University
Facts: Litigant in person brought claim for UFD redundancy, asserting he had been unfairly selected for redundancy. Claim was dismissed, but he appealed, arguing the tribunal had erred by not considering whether there had been a fair consultation and search for alternative employment (i.e. other two Polkey criteria). EAT agreed with claimant.
Significance: Burden of unreasonableness is for tribunal to consider on a neutral basis. All three limbs of Polkey must be considered, and the employer asked to bring evidence, even if not raised by the claimant. (Not applied in a later case where both parties were legally represented with case management complexities - Remploy v Abbott)
62
What are the key elements of a fair consultation for redundancy?
Takes place when proposals are at a formative stage
Adequate information given and adequate time for e'ees to respond
Proper consideration of e'ee's response
Auth: R v British Coal
63
Thomas v BNP Paribas
Facts: Claimant with 40 years' service addressed by wrong name in consultation letter, put on garden leave at the start of process, and dismissal date was incorrect. Claimant argued it was a sham redundancy covering for age discrimination, as most of the redundant employees were 60ish. ET initially found that while the consultation had been "highly insenstive and perfunctory" it was also reasonable, and the dismissal was fair. EAT said both couldn't be true and remitted back to ET.
Significance: A highly insensitive/perfunctory consultation cannot simultaneously be fair and reasonable.
64
Is the ACAS redundancy guidance binding or taken into account by ET?
No
65
Drake International v O'Hare
Facts: Dock worker made redundant, was selected partially due to attendance record. Employer had failed to discount a workplace injury-related absence. EAT later found the tribunal had substituted their own view for reasonableness of redundancy selection criteria.
Significance: Fairness and reasonableness of redundancy criteria must be judged with reference to range of reasonable responses by employer. Tribunal should not substitute own view.
66
What are the rules for determining a redundancy pool?
No fixed rules (absent customary practice or collective agreement)
67
Should employee consultation occur before or after identifying redundancy pool criteria?
Before
Auth: Mogane v Bradford Teaching Hospitals
68
Mogane v Bradford Teaching Hospitals
Facts: Nurse raised a UFD after being made redundant. She was identified for redundancy because her contract was up for renewal the soonest, and was the only one considered for redundancy (redundancy pool of one). Consultation meeting occurred after this decision re: criteria, so employee had no chance of influencing the outcome.
Significance: Consultation must take place at a formative stage - meaning before redundancy criteria have been applied, when employee can still affect outcome.
69
Do all the e'ees in a redundancy pool have to have the same job?
No, but if it's an employee redundancy, then a "reasonable response" would be that the pool would include people with similar jobs/ doing work "of a particular kind". Auth: Hendy Banks v Fairbrother
However, may be reasonable to draw the pool wide and "bump" people.
70
Hendy Banks v Fairbrother
Facts: Bookmakers working in the binding/finishing department. Redundant employees spent about 1/3 time on binding and the rest on other finishing work. Binding machine operators were selected for redundancy, rather than entire finishing department. Also no voluntary redundancy considered. Tribunal found that the employer had not acted in range of reasonable responses when identifying redundancy pool, but voluntary redundancy was not required.
Significance: Redundancy pool must be drawn within range of reasonable responses.
71
Does a redundancy pool have to have more than one employee to be fair?
No
Auth: Wrexham Golf v Ingham
72
Wrexham Golf v Ingham
Facts: Steward at golf club made redundant, was the only steward. Claimed UFD as employer had failed to consider establishing a wider pool for redundancy. Tribunal agreed with C, but EAT remitted the case, saying ET had failed to address why it was unreasonable to not consider a wider pool.
Significance: Pool of one employee might be reasonable (but be wary of when consultation takes place per Mogane v Bradford, which comes later than this case).
73
Pinewood Repro v Page
Facts: Employee selected for redundancy based on scoring exercise, where he had been marked down for flexibility. Employee challenged the flexibility score, and tribunal said the dismissal was procedurally unfair because the employer didn't explain how they arrived at the score. EAT said for a consultation to be fair, the employee must be provided with adequate information to argue his case.
Significance: Fair consultation: employer must provide adequate information to employee to allow them to argue their case.
74
What alternatives must an employer consider prior to implementing redundancies?
Current vacancies
Similar posts
Higher posts + training
Lower posts
Part-time/short-term work
Auth: Williams v Compare Maxam
75
If an employee is identified for redundancy, is it reasonable or unreasonable to consider "bumping" them?
No obligation to consider bumping
May be unreasonable to not consider, depending on circumstances
Auth: Samels v University of Creative Arts
76
Samels v University of Creative Arts
Facts: Technician made redundant. Claimed UFD due to unfair redundancy selection, as he was a pool of one, should have been offered alternative employment as a store person, and as such the store person role should have been in the redundancy pool. EAT found that the pool does not need to be widened to include any jobs with overlapping responsibilities, and the employer does not need to apply a test of transferrable skills when identifying a pool. A role being a potential suitable alternative does not bring it into the redundancy pool.
Significance: Just because bumping is an option available to an employer does not mean they have to consider it when identifying redundancy pool.
77
Lionel Leventhal Ltd v North 2004
Facts: Senior editor selected for redundancy as most expensive employee. ET held dismissal unfair - employer should have considered making a more junior employee redundant and offering job to claimant.
Significance: Can be unfair to dismiss for redundancy without considering bumping - matter of fact for tribunal.
78
What happens to a UFD award if claimant is also successful in a redundancy claim?
The RP will be set off the UFD basic first, then any remainder against the compensatory award
79
What happens to a WD award if claimant is also successful in a redundancy claim?
The RP does not affect the WD award. RP is for past services, WD is for future losses.
80
If an e'er needed to make changes e.g. reduce hours/benefits but it falls short of statutory definition of redundancy, is there a back-up fair reason for dismissal?
Yes - some other substantial reason (s98(1)(b) ERA 1996)
81
Advice to an employer prior to undergoing reord/redundancies
1) Analyse terms of employment contracts (e.g. mobility/flexibility clauses, breadth of duties) vs actual situation
2) If new jobs being created, comparison of differences in responsbilities to roles being extinguished
3) Is the requirement for employees to do work of a particular kind diminishing/ceasing?
4) Fair identification/consultation process, incl. consideration of alternate solutions
82
Does an e'ee have a right to be accompanied to a redundancy consultation?
Not specifically - it is not a disciplinary hearing under s10 Employment Relations Act 1999
But is recommended as good practice to help reduce UFD claims
83
Examples of fair selection criteria for redundancy?
Performance/ability - based on prior written appraisals, not manager's opinion at time of redundancy
Attendance record - but consider discounting pregnancy/maternity, disability, and gender reassignment related absence
Disciplinary record
Length of service - but risk of discrimination claims (now out of favour unless a tie break situation)
84
Mental Health Care v Biluan
Facts: Redundancy situation. Employer developed an elaborate selection procedure using a series of competency tests normally used for the purposes of recruitment. It was operated entirely by HR, with no input from the affected employee's managers and no regard to past appraisals. Found to be unfair.
Significance: While selection criteria should be fair, objective, and consistent, the employer cannot put blind faith in a sterilised process.
85
Examples of redundancy selection criteria that is too vague/subjective
Employees who, in the opinion of management, would keep the company viable (William v Compare Maxam)
Employees best suited to the need of the business
Costs savings
Attitude
86
Can staff be selected for redundancy on the basis they are on fixed term contracts or part-time workers?
Generally, no, that would be unfair dismissal, and risks indirect discrimination claims
87
s135 ERA 1996
Statutory authority for right to redundancy payment
88
s139 ERA 1996
Statutory source for the definition of redundancy
89
Facts: In-house catering company, 3 employees worked for one client only. When the client contract ended, employees were dismissed. Employment contracts had mobility clause but the e'ees were not asked to work elsewhere. Employees claimed UFD, as no fair reason dismissal-redundancy had arisen since could work elsewhere. Court found that it was a valid place of work redundancy, not a UFD. Their place of work was closing/ceasing to do work of a particular type, so valid redundancy under statute. Was referred back to tribunal to determine if redundancy process was fair.
Significance: Job location (for purposes of place of work redundancy) is based primarily on actual circumstances. A mobility clause can be evidence of multiple places of work, but actual circumstances must be considered. A mobility clause does not widen the location of the employment.
High Table v Horst
90
Facts: Employer closed an office and requested employees with a mobility clause to move offices. The employees refused to move due to additional commute and were dismissed for refusing to comply with reasonable instructions/misconduct. ET found the dismissal to be a redundancy, employer appealed. EAT found that the ET had erred in finding the reason for dismissal to be redundancy, when it was misconduct. However, employer had not been entitled to rely on the MC, its instruction to move office was not reasonable in the circumstances, and e'ees had reasonable grounds to refuse (so not misconduct).
Significance: To rely on MC to get out of redundancy payment, must be a valid MC with reasonable notice/instructions.
Kellogg Brown & Root v Fitton and Ewer
91
Facts: Immigration officers stationed at Waterloo. Immigration services were no longer needed at Waterloo. After a consultation regarding alternate positions which the employees refused to engage in, employer sought to exercise the mobility clause to move them to Heathrow. Employees resigned claiming constructive unfair dismissal. ET and EAT found there to be a redundancy situation and the employer had acted in fundamental breach by invoking mobility clause to avoid redundancy procedures. CoA held that the employer's actions from the outset were consistent with invoking mobility obligations, not redundancy, so were not "dodging" redundancy. Employers are entitled to invoke mobility clauses to avoid making redundancy dismissals, and can start redundancy procedures afterwards if the mobility clause plan doesn't work.
Significance: A valid mobility clause, enforced through proper procedure, is a valid alternative to redundancy dismissal.
Home Office v Evans 2008
92
Facts: Two plumbers employed to do general plumbing work, including some heating technician work. A more sophisticated heating system was introduced, and the employer required less general plumbing work and more specialist heating tech work. One plumber was replaced with a heating technician. CoA upheld that this was a redundancy, even though the number of employees didn't change.
Significance: "Workforce reduction" doesn't have to actually reduce headcount - focus is on work "of a particular kind", in this case, plumbing.
Murphy v Epsom College 1984
93
Facts: A garage manager brought a redundancy claim. After a take-over, he was dismissed but not given redundancy payment. The previous owner had been responsible for estimating repair costs, and when he departed, left that responsibility to the manager. The manager was bad at it and was dismissed. Court found that the work of the repair shop had not diminished, the need for work of a particular kind had not reduced, so was not redundancy but capability dismissal. Note this is 1966, before ERA language.
Significance: Change to allocation of responsibilities between individuals is not necessarily redundancy if the level of work required is unchanged.
North Riding Garages v Butterwick
94
Facts: Petrol station manager. Company re-org'd and eliminated petrol station managers and replaced with petrol station controllers, at a lower salary. Employee was made redundant and decided not to apply for the lower position. He brought a UFD claim that his job had not been made redundant in fact. Tribunal applied a "function test" that work of the kind the employee did had not ceased/diminished, so no redundancy. On appeal, it was decided to be redundancy: via restructure, the employer needed fewer employees to do the same work, so the need for employees to do work of a particular kind had diminished, and that caused the dismissal.
Significance: Established the three stage test for employee redundancy: 1) Dismissal? 2) Had requirements of business for employees to carry out work of a particular kind ceased/diminished? Was dismissal caused wholly/mainly by this state of affairs?
Safeways v Burrell
95
Facts: Meat plant operators in a slaughterhouse, with a mobility/flexibility clause which was sometimes used. Work at the site decreased and employees selected for redundancy in accordance with a procedure agreed between their union and the employer. Employees claimed that work of a particular kind had not reduced or not caused their dismissal, so it was an unfair dismissal. They asserted that their contracts were similar to those who worked on other teams, so it was unfair that only their team was considered for redundancy. HoL dismissed their appeal, affirming Safeways v Burrell: requirements had diminished, and the diminishment caused the dismissal. In obiter, said that redundancy could still arise if the diminishment did not affect the employee in question (e.g. bumping), it would just be harder to prove causation.
Significance: Affirmed Safeways v Burrell. "Bumping" is still redundancy.
Murray v Foyle Meats
96
Facts: Bookkeeper's hours were reduced after bookkeeping software reduced the number of hours required. Employee refused the reduction in her hours and was dismissed. She brought a UFD claim. Tribunal concluded the reason for dismissal was redundancy. Employee appealed, saying there was no reduction in headcount. EAT said there was diminished need for work of a particular kind, so it was a redundancy situation. In obiter, made the point that it was a real reduction in headcount in FTE terms (which is used by industrial employment tribunals, so should be followed to avoid discrepancy).
Significance: Reduction in hours can be a redundancy.
Packman v Fauchon
97
An e'ee is not entitled to a redundancy payment if the e'er offers to renew/re-engage them
s141(4) ERA 1996 (paraphrased)
98
Facts: E'ee was a nurse in a management position, advised she was at risk of redundancy. She was offered three alternative positions, including one managerial in a hospital (her experience was as a community nurse), and two lesser roles. She took a lesser role on a trial basis. In the interim, she was offered another role in Canada, which she eventually took. Before moving, she was made redundant. Question was whether her refusal of the management role was reasonable or not, and thus was she entitled to a redundancy payment or not. It was unclear whether her refusal was because she was planning to emigrate to Canada - remitted back to ET for fact finding.
Significance: The reasonableness of refusal includes factors personal to the employee (e.g. community vs hospital work). It is not a "band of reasonable responses test" like UFD. It is a fact-based determination.
Devon Primary Care Trust v Readman
99
Facts: 15 employees brought unfair dismissal claims following their redundancies (pre-ERA) from a company that eventually became insolvent. Tribunal held that the dismissals were unfair as the business could have continued if its management had acted reasonably, so awarded compensation for period from dismissal through to when it likely would have become insolvent if acting reasonably. CoA found that the compensatory award was incorrect. Tribunal is entitled to consider if the closure is genuine, but not to question the commercial/economic reasons for closure. Although, the judge said it may be that the court should have this power to ensure fairness for the workforce, but they did not actually have it.
Significance: Tribunal will not investigate commercial reasons behind redundancies, just that it was the real reason for a dismissal.
James W Cook v Tipper
100
Facts: Employer making redundancies made a list based on who would be most useful in the long term interests of the company (too subjective). Employees brought UFD claim. Tribunal had to take into account whether consideration had been given to the current standards of fair industrial practice, including maximum warnings, consultations, alternative vacancies, etc.
Significance: Tribunal must be satisfied that it was reasonable to dismiss the specific employee for redundancy, and must consider other vacancies/alternative solutions.
Williams v Compair Maxam 1982
101
Facts: Closure of coal mines by the government. Union asked court to make a declaration as to whether the redundancy discussions had followed the gov't order for fair consultation. Court declared they had: sufficient information at a formative stage, allow sufficient time for other party to express their views, and consider those views seriously.
Significance: Fair consultation process requirements
R v British Coal Corporation ex p Price
102
Facts: Litigant in person brought claim for UFD redundancy, asserting he had been unfairly selected for redundancy. Claim was dismissed, but he appealed, arguing the tribunal had erred by not considering whether there had been a fair consultation and search for alternative employment (i.e. other two Polkey criteria). EAT agreed with claimant.
Significance: Burden of unreasonableness is for tribunal to consider on a neutral basis. All three limbs of Polkey must be considered, and the employer asked to bring evidence, even if not raised by the claimant. (Not applied in a later case where both parties were legally represented with case management complexities - Remploy v Abbott)
Langston v Cranfield University
103
Facts: Claimant with 40 years' service addressed by wrong name in consultation letter, put on garden leave at the start of process, and dismissal date was incorrect. Claimant argued it was a sham redundancy covering for age discrimination, as most of the redundant employees were 60ish. ET initially found that while the consultation had been "highly insenstive and perfunctory" it was also reasonable, and the dismissal was fair. EAT said both couldn't be true and remitted back to ET.
Significance: A highly insensitive/perfunctory consultation cannot simultaneously be fair and reasonable.
Thomas v BNP Paribas
104
Facts: Dock worker made redundant, was selected partially due to attendance record. Employer had failed to discount a workplace injury-related absence. EAT later found the tribunal had substituted their own view for reasonableness of redundancy selection criteria.
Significance: Fairness and reasonableness of redundancy criteria must be judged with reference to range of reasonable responses by employer. Tribunal should not substitute own view.
Drake International v O'Hare
105
Facts: Nurse raised a UFD after being made redundant. She was identified for redundancy because her contract was up for renewal the soonest, and was the only one considered for redundancy (redundancy pool of one). Consultation meeting occurred after this decision re: criteria, so employee had no chance of influencing the outcome.
Significance: Consultation must take place at a formative stage - meaning before redundancy criteria have been applied, when employee can still affect outcome.
Mogane v Bradford Teaching Hospitals
106
Facts: Bookmakers working in the binding/finishing department. Redundant employees spent about 1/3 time on binding and the rest on other finishing work. Binding machine operators were selected for redundancy, rather than entire finishing department. Also no voluntary redundancy considered. Tribunal found that the employer had not acted in range of reasonable responses when identifying redundancy pool, but voluntary redundancy was not required.
Significance: Redundancy pool must be drawn within range of reasonable responses.
Hendy Banks v Fairbrother
107
Facts: Steward at golf club made redundant, was the only steward. Claimed UFD as employer had failed to consider establishing a wider pool for redundancy. Tribunal agreed with C, but EAT remitted the case, saying ET had failed to address why it was unreasonable to not consider a wider pool.
Significance: Pool of one employee might be reasonable (but be wary of when consultation takes place per Mogane v Bradford, which comes later than this case).
Wrexham Golf v Ingham
108
Facts: Employee selected for redundancy based on scoring exercise, where he had been marked down for flexibility. Employee challenged the flexibility score, and tribunal said the dismissal was procedurally unfair because the employer didn't explain how they arrived at the score. EAT said for a consultation to be fair, the employee must be provided with adequate information to argue his case.
Significance: Fair consultation: employer must provide adequate information to employee to allow them to argue their case.
Pinewood Repro v Page
109
Facts: Technician made redundant. Claimed UFD due to unfair redundancy selection, as he was a pool of one, should have been offered alternative employment as a store person, and as such the store person role should have been in the redundancy pool. EAT found that the pool does not need to be widened to include any jobs with overlapping responsibilities, and the employer does not need to apply a test of transferrable skills when identifying a pool. A role being a potential suitable alternative does not bring it into the redundancy pool.
Significance: Just because bumping is an option available to an employer does not mean they have to consider it when identifying redundancy pool.
Samels v University of Creative Arts
110
Facts: Senior editor selected for redundancy as most expensive employee. ET held dismissal unfair - employer should have considered making a more junior employee redundant and offering job to claimant.
Significance: Can be unfair to dismiss for redundancy without considering bumping - matter of fact for tribunal.
Lionel Leventhal Ltd v North 2004
111
Facts: Redundancy situation. Employer developed an elaborate selection procedure using a series of competency tests normally used for the purposes of recruitment. It was operated entirely by HR, with no input from the affected employee's managers and no regard to past appraisals. Found to be unfair.
Significance: While selection criteria should be fair, objective, and consistent, the employer cannot put blind faith in a sterilised process.
Mental Health Care v Biluan
