By Matthew Rowlinson, Employment Rights Lawyer &
Neil Guss Regional Employment Rights Manager
Background
Mr Kennedy, a long-serving employee and in-house trainer at Hendy Group Ltd, was dismissed for redundancy following a genuine downturn in training needs during the COVID-19 pandemic. While he accepted the redundancy situation and the fairness of his selection, he claimed his dismissal itself was unfair because the company failed to take reasonable steps to consider him for other available roles i.e. offer him ‘suitable alternative employment’ to avoid redundancy .
Key Issues
Failure to Consider Alternatives
Despite multiple vacancies across the business, the employer made no proactive effort to help Mr Kennedy apply for other roles. His access to the company intranet was cut off (when he returned his company laptop), no internal managers were alerted to his risk of redundancy, and he received no HR support in navigating or securing alternative roles.
Employer’s Approach Deemed Inadequate
The tribunal found that Mr Kennedy was treated no differently from an external applicant. In practice, he was blocked from multiple roles—including sales posts, for which he had extensive experience—based on vague concerns about “fit” or location. Crucially, HR later sent him an email stating he would not be considered for any sales role in the company, effectively ending his prospects of redeployment.
Misapplication of Selection Criteria
The tribunal rejected the employer’s argument that appointing stronger candidates meant roles weren’t suitable for Mr Kennedy. It ruled that if a vacancy was suitable, the company had a duty to give him fair consideration—regardless of who else applied.
Polkey Reduction Refused
The EAT upheld the tribunal’s refusal to reduce compensation. It agreed that, had the employer taken the right steps, Mr Kennedy would likely have secured an alternative role.
Employment Appeal Tribunal (EAT) Decision
The EAT dismissed the appeal. It found that:
- The tribunal applied the correct legal test for fairness under s.98(4) of the Employment Rights Act 1996.
- The employer’s handling of alternative employment was wholly lacking.
- The refusal to apply a Polkey reduction was supported by the facts: Mr Kennedy was actively blocked from internal redeployment.
- The tribunal did not substitute its own view improperly—it made a reasoned judgment based on the employer’s failure to act reasonably.
Significance
For trade union members and reps, this case is a stark reminder of the obligations on employers during redundancy. When suitable roles exist, employers must do more than offer passive access—they must actively support redeployment efforts. Simply telling employees to apply like any external candidate won’t suffice.
This judgment reinforces the need for reps to ensure employers properly explore suitable alternative employment and to challenge blanket assumptions about "fit" or internal mobility when representing members at risk of redundancy.
Outcome
The EAT upheld the original tribunal’s decision. Mr Kennedy’s dismissal was found to be unfair, and the employer’s appeal was dismissed in full.
