Labour & European Law Review Weekly Issue 356 12 February 2014
When evaluating the fairness of a claimant’s selection for redundancy, a tribunal must consider whether or not the dismissal was reasonable in all the circumstances. In Stephenson College v Jackson the Employment Appeal Tribunal (EAT) upheld a tribunal’s decision that it was unreasonable for an employer to make an employee redundant when the person who was next in line had volunteered and the employer could not explain why they had refused the request.
In order to reduce expenditure, the college carried out a review of its activities in March 2012. As a result, it decided that there was an overcapacity in its brickwork maintenance operations, equating to one post.
Mr Jackson who was a trainer in brickwork maintenance, was subsequently identified as being one of the employees at risk of redundancy. This was confirmed to him by the faculty head, Mr Hinds, at an individual consultation meeting on 19 April 2012.
On 4 May Mr Hinds carried out the redundancy scoring for the pool in which Mr Jackson had been placed. He had the worst score, followed by a colleague, Mr Cooper, who was one point behind him. Mr Jackson was told on 9 May that he had been selected for redundancy.
However, Mr Cooper had applied for (and been refused) voluntary redundancy in April and resigned shortly after the conclusion of the redundancy exercise.
Mr Jackson claimed unfair dismissal.
The tribunal accepted that there could be many reasons for an employer not to accept a volunteer for redundancy. For instance, they might have skills which they could not afford to lose.
However, in this case, Mr Cooper was actually the next in line to be selected for redundancy and it was generally accepted that he was not performing well at work. He was unhappy in his role and the employer was aware of this at the time of the redundancy exercise. This was evidenced further by his resignation which took place soon after the redundancy exercise. Mr Hinds could not explain to the tribunal why his application for voluntary redundancy had been rejected.
The tribunal also noted that the only reason that Mr Jackson had received a lower score than Mr Cooper was because he had not yet obtained a relevant qualification (HNC Level 4) although he was very close to obtaining it. There was thus very little to choose between the two men.
The tribunal therefore held that the decision to refuse Mr Cooper’s application for voluntary redundancy and to make Mr Jackson redundant was a decision that “no reasonable employer would have taken” and concluded that the dismissal was unfair.
The college appealed on the basis that the tribunal had failed to consider the totality of the process that it had used as the scoring system was sensible and had been carried out carefully. It also argued that it was irrelevant that Mr Cooper resigned shortly after the redundancy exercise.
The EAT dismissed the appeal, holding that although the tribunal had referred to the fact of Mr Cooper’s resignation in its findings, it had not taken it into account when deciding whether the dismissal was unfair.
It also held that, given the particular circumstances of this case (specifically that Mr Hinds had no idea why Mr Cooper was not selected given that he had volunteered to go), the decision by the tribunal was “completely unchallengeable”.
An employer will not necessarily be acting unreasonably where applications for voluntary redundancy are refused. In this case there was very little to choose between the scores awarded to Mr Jackson and Mr Cooper but where the employer can show a significant disparity, a decision to refuse to accept a voluntary redundancy is likely to be within the range of responses open to a reasonable employer.