Capable of redundancy
Labour & European Law Review Weekly Issue 314 11 April 2013
The Employment Rights Act 1996 states that an employee is deemed to have been dismissed by reason of redundancy if the dismissal is “wholly or mainly” attributable to the redundancy. In Fish v Glen Golf Club, the Employment Appeal Tribunal (EAT) said that even if the employer had concerns about the employee’s capability, the reason for dismissal could still be redundancy as long as it was the main one.
After building a new clubhouse in 2006, the golf club got into serious financial difficulty and in 2008, commissioned a review from a management consultant. He recommended, among other things. that they should get rid of the job of club secretary.
After some deliberation, the committee agreed and on 9 April two members met with Mr Fish to explain the situation. They then wrote to him on 11 April, confirming his dismissal on the ground of redundancy (one of four at the time). He was sent details of the post of office manager but failed to apply before the deadline date. By the time he did so, the club had announced that his assistant had got the job.
He appealed unsuccessfully against his dismissal and then brought a claim of unfair dismissal on the ground that the redundancy was just a handy excuse for the club committee to get rid of him.
He argued that in the 15 months or so leading up to his dismissal, he had been constantly undermined by senior club members and that the consultation had been far too rushed. In addition, during the process of disclosure, he discovered there were two versions of the consultant’s report, one of which contained a number of criticisms of him by a committee member.
The employment tribunal, however, said that the criticisms about Mr Fish in the consultant’s report were “ancillary” in that they were not the reason (or at any rate not the main reason) for his recommendation that the position of secretary be abolished.
Instead the main reason was that the club needed to cut costs and the best way to do that was to get rid of the higher paid jobs from the management structure. Mr Fish had, therefore, been fairly dismissed by reason of redundancy. He appealed, arguing that the tribunal’s decision was perverse.
The EAT, however, rejected his appeal saying that the tribunal was entitled to come to its conclusion.
To be perverse, a tribunal’s decision would have to fly in the face of reason to the extent that it “cause astonished gasps from the well-informed observer. It is effectively a submission that there is no evidence to support a particular finding or that, taken as a whole, the evidence is such that no reasonable tribunal could possibly reach the factual finding it did”. That was not the case here.
Instead, the tribunal had dealt with all the arguments put forward and was entitled to conclude that the reason it found for dismissal (redundancy) was the principal reason, even though there was some evidence to suggest that the club had tried to disguise their concerns about Mr Fish by alleging redundancy.
However, the tribunal had also dealt with the reason for the differences in the two reports (it was being shown to a third party) and found that it was not central to the question of the reason for his dismissal. The principal reason for the recommendation was the financial pressure on the club to cut costs.
This case highlights once again the difficulty of arguing in the EAT that the original tribunal decision was perverse, as highlighted in LJ Langstaff’s judgment.
This is a difficult outcome for employees as they may find that employers who are contemplating redundancies may use it as an excuse to terminate their employment with conduct or capability issues without following the correct procedures. In this case, whilst it was clear that there had been concerns about Mr Fish’s capability, the fact that there appeared to be a genuine redundancy situation and other employees were made redundant, the tribunal and EAT appear to have concluded that redundancy superseded those concerns as the primary reason for the dismissal.