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Ben Jones
Ben Jones, Solicitor
Category: UK Employment Law
Satisfied Customers: 38525
Experience:  Expert in UK Employment Law
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I am taking a case to Tribunal for unfair dismissal due to

Customer Question

I am taking a case to Tribunal for unfair dismissal due to redundancy. The case hinges on whether I should have been offered an alternative vacancy for a lower paid job which I was capable of doing. The employer did not tell me about this vacancy, in addition he did not ask for voluntary redundancies to see if I could be redeployed. Are you able to point out any recent case law which could be quoted in submissions?
Submitted: 3 years ago.
Category: UK Employment Law
Expert:  Ben Jones replied 3 years ago.
Hello, thanks for your question. Please press Accept once you get my answer and I will discuss your query in more detail. For now please let me know how long you worked there for?
Customer: replied 3 years ago.
I should have said that I am an employment law consultant and the query is on behalf of a client who has over a year's service, but under two so there is no question of a redundancy payment. The case hinges on the fairness of the procedure and in particular whether he should have been offered alternative jobs and whether volunteers should have been called for. There is also a question of whether he should have been put in a pool and selection made using objective criteria, but that is a separate issue which I do not require advice on. As stated in the original query the advice I require is case law (apart from Williams v Compair Maxim) which I can quote of the requirement to be offered any lower paid jobs he was capable of performing and if the failure to ask for volunteers is a procedural fault. I should also say that I am looking for a solicitor to use for similar queries on other cases. Regards. Chris Boucher
Expert:  Ben Jones replied 3 years ago.

OK, in addition to the info in the original post can you provide further info on exactly what happened in the redundancy process?

Customer: replied 3 years ago.
ET1 has been sent to you as an attachment to provide the information you require
Expert:  Ben Jones replied 3 years ago.
A dismissal is likely to be unfair if, at the time of dismissal, the employer gave no consideration to whether suitable alternative employment existed within its organisation. The case of Vokes Limited v Bear [1973] IRLR 363 established this principle, on the basis that the availability of alternative employment was relevant to all the circumstances of the case (having regard to the statutory test). Mr Bear was employed by a company which was part of a group of 300 companies and there was evidence that at least one of those companies was advertising for a senior manager shortly after Mr Bear's dismissal. No attempt was made by the company, prior to Mr Bear's dismissal, to see whether he could be employed elsewhere within the group and this rendered his dismissal unfair.

The subsequent case of Quinton Hazell Ltd v WC Earl [1976] IRLR 296 made clear that the duty on the employer is not to make every possible effort to look for alternative employment but to make reasonable efforts. The EAT overturned the decision of the tribunal that, since the efforts to seek alternative employment were not made "energetically", the dismissal was unfair. The EAT commented that in Vokes the employer had not taken a single reasonable step whereas in the instant case Mr Earl was considered for other lower paid jobs but these were ruled out on the basis that he was too senior for them.

While the facts of Vokes concerned a situation where there was a very large group of companies, subsequent cases suggest that an employer will not necessarily be expected to look throughout the whole group for vacancies. In Barratt Construction Ltd v Dalyrmple [1984] IRLR 385, for example, the EAT held that the tribunal had been wrong to provide that there was an absolute obligation on the employer to look for vacancies within other legally independent companies within the group. A lot will depend on what was reasonable in the circumstances, as was illustrated by Euroguard Ltd v Ryecroft (S) EAT 842/92, a case in which the employer's failure to exert its considerable influence over its parent company to help secure alternative employment rendered the dismissal unfair. The degree of control which one company has over another within the group is something that the tribunal will take into account when considering reasonableness.

The employer is not obliged to create alternative employment for redundant employees where none already exists. However, they should make sure that they undertake a sufficiently thorough search for alternative employment and that their search is documented (to show the steps that they have taken should it become necessary to produce evidence in defence of an unfair dismissal claim). Since the fairness of a redundancy dismissal is judged not only at the date on which notice of termination is given to an employee but also when an employee's employment actually terminates, an employer should ensure that it continues to search for possible alternative employment until the date on which an employee's dismissal takes effect.

Employers should also provide employees with sufficient information about any vacancies so that they are able to take an informed view as to whether the position is suitable for them (Modern Injection Moulds Ltd v Price [1976] IRLR 172). An employer should not assume, perhaps because a vacant role would involve reduced status or salary, that an employee would not be interested (Avonmouth Construction Co Limited v Shipway [1979] IRLR 14). However, in Barratt Construction Limited v Dalrymple [1984] IRLR 385 the EAT held that, in some cases, it may be reasonable for the employer to make that assumption unless the employee had indicated otherwise:

In Fisher v Hoopoe Finance Limited UKEAT/0043/05, the EAT highlighted the need to bring the financial prospects of any vacant alternative positions to employees' attention.

Where an employer is dealing with more than one potentially redundant employee, it should ensure that all potentially redundant employees are made aware of any vacancies and consider how it will choose which employees to make any offer of alternative employment to. The EAT made clear in Akzo Coatings PLC [1996] UKEAT 1117/94 that, when it comes deciding which candidate to award the vacancy to, an employer is not expected to adopt the same rigorous approach as is required for the selection process in a redundancy exercise. The Williams v Compair Maxam principle that selection of employees should be based on objective criteria (see above) does not extend to deciding which potentially redundant employee should be appointed to an alternative vacancy (Morgan v The Welsh Rugby Union UKEAT/0314/10. The employer is entitled to undertake a competitive interview process and appoint the candidate it considers to be best for the job, even if this is based on its subjective view. It simply needs to act fairly and reasonably.

When an employer has identified one or more possible alternative jobs, it will need to decide on a method of considering the potentially redundant employees for those roles. The amount of administration and time this will require is likely to increase as the number of potentially redundant employees increases. This, together with the fact that an offer must be made before the termination of an employee's existing employment, should be taken into account when an employer is preparing any timetable for the conduct of a redundancy exercise.

The employer will first need to decide how to alert potentially redundant employees to the existence of possible alternative jobs. When dealing with one, two or a small group of employees, the employer may wish to speak to them as a group and/or individually to advise them of the existence of any opportunities and what each involves. Alternatively, or if dealing with a larger number of potentially redundant employees, it may be more practical to draw employees' attention to established methods of communicating vacancies, such as the employer's intranet or notice boards. The employer should ensure that, if it uses internal methods of communication, the information is provided separately to any affected employees who do not have access to those methods of communication (for example, because they are on sick leave). For evidential purposes, in addition to whichever method of communication an employer uses it may be appropriate for the employer to write to each potentially redundant employee confirming the information it has provided in any meetings and either drawing their attention to the established methods of communication or providing details of vacant roles.

When employment prospects elsewhere are bleak, an employee may be keen on any opportunity to continue working. Therefore, to protect their positions, an employer would be well advised to offer (and provide sufficient information about) jobs of lower status compared to the job an employee is being dismissed from. Employees who are prepared to consider a more junior role, or a form of atypical working such as a consultancy or part-time work, as an alternative to dismissal, should advise their employer (in writing for evidential purposes) that they are prepared to do so. Both parties should ensure that they record the steps they have taken, any proposals they have made and any discussions they have had with regard to alternative employment with the other. Each should also retain copies of documents and correspondence to produce before a tribunal, if necessary.

It has also been suggested that an employer should be prepared to discuss the possibility of part-time work or working as a self-employed contractor as an alternative to redundancy if proposed by an employee (Ardtaraig Farming Co v Young UKEATS/0032/07

I hope this provides sufficient information to help in this case – if so, please press Accept. Thank you
Ben Jones, Solicitor
Satisfied Customers: 38525
Experience: Expert in UK Employment Law
Ben Jones and 2 other UK Employment Law Specialists are ready to help you
Customer: replied 3 years ago.
Many thanks. I have left positive feedback. Is there any way that I can ensure future queries are directed to you rather than any other expert on this site?
Expert:  Ben Jones replied 3 years ago.
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