“Redundant” – does not always make it “fair”

Berkeley Catering Ltd v Jackson UKEAT/0074/20

Stating the reason for dismissal as “redundant” – does not always make it “fair”.

There are certain reasons in law that are treated as “fair” so to not expose an employer to an unfair dismissal claim.  Redundancy is one such reason:

Redundancy (is a potentially fair reason for dismissal) as defined in section 139 of the Employment Rights Act 1996 (ERA 1996). A dismissal wholly or mainly attributable to the fact that the requirements of the business for employees to carry out work of a particular kind have ceased or diminished or are expected to cease or diminish will be by reason of redundancy for the purposes of the ERA 1996 (section 139(1)(b)(i)). 

However, the above case provided some useful guidance. It reminds us of the 3 stage (Burrell) test:

1. Was the employee dismissed?

2. If so, had the requirements of the employer’s business for employees to carry out work of a particular kind ceased or diminished or were they expected to cease or diminish?

3. If so, was the dismissal of the employee caused wholly or mainly by the state of affairs identified at stage 2?

An employer needs to consider the actual reason for the dismissal.

On the facts it was clear that the owner of Berkley Catering was undermining Mrs Jackson and treating her badly, but the Employment Appeal Tribunal said that this did not alter the question to be considered: 

Was there a redundancy situation under section 139(1) (b). “It either exists of it doesn’t”. 

Judge Bourne went on to note: “It is open to an employer to organise its affairs so that its requirement for employees to carry out particular work diminishes. If that occurs, the motive of the employer is irrelevant to the question of whether the redundancy situation exists”.  He then went on to state that although there was a redundancy situation based on the facts before him, that did not mean the dismissal was fair. The tribunal may still find that the redundancy situation was not actually the reason for the dismissal and that the redundancy “was or could have been a mere pretext for getting rid of an employee whom the employer wished to dismiss”.

In this case the Claimant had not argued that the actual reason for the dismissal was not one of redundancy, but perhaps if she had, she would have been successful in her claim.

Posted on 6 May, 2021 by Ortolan

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