Amor v Galliard Homes Ltd EAT 25.09.01 Case No. 47/01

In Amor v Galliard Homes Ltd the Employment Appeal Tribunal make an important decision which emphasises that employers must be careful when identifying the reason for an employee's dismissal - particularly where the employee has been transferred to an alternative position following a redundancy situation.

In a case of unfair dismissal, it is for an employer to show the reason for the dismissal. A failure by the employer to plead the right reason for a dismissal can lead to a finding of unfair dismissal as was the case for Mr Amor.

Mr Amor was a forklift truck driver and as the need for forklift truck drivers was diminishing, Mr Amor was offered work as a labourer for the same pay. He accepted this position but after three days doing the new job his employers told him he was redundant. The employers claimed he had become disruptive and they had no choice but to make him redundant.

Mr Amor brought a claim for unfair dismissal. The Employment Tribunal found that he had been dismissed by reason of redundancy but that the dismissal was unfair because there had been insufficient consultation prior to the redundancy. The Tribunal awarded £804.36 compensation. Mr Amor appealed on the grounds that he may have received more compensation had the reasoning been different. In allowing Mr Amor's appeal, the Employment Appeal Tribunal carefully considered the Tribunal's finding that Mr Amor had been dismissed for redundancy. They held that this could not be justified and considered that the real reason for Mr Amor's dismissal was the fact of his disruptive behaviour. In particular, they took into account section 138 of the ERA 1996 which states that

(1) Where - 
a) an employee's contract of employment is renewed, or he is re-engaged under a new contract of employment in pursuance of an offer...made before the end of his employment under the previous contract; and 
b) the renewal or re-engagement takes effect either immediately on, or after an interval of not more than four weeks after, the end of employment. 
- the employee shall not be regarded for the purposes of this Part as dismissed by his employer by reason of the ending of his employment under the previous contract

The EAT distinguished between the situation when there would have been a dismissal for redundancy after the ending of one job (and during the currency of the second job) and one which does not.

They considered that where the reason for the redundancy is connected with, or arises out of, a difference between the renewed or new contract and the previous contract then that will be a dismissal for redundancy. However, if there is a dismissal for conduct or capability during the second job (even if that is within the four week trial period) then that is a fresh dismissal and will not reinstate the redundancy. The conduct allegation introduces another reason for the dismissal which does not arise out of a difference between the renewed (or new contract) and the previous contract .

As the EAT had found that there was no redundancy they considered that the employer had failed to establish that the reason for the dismissal was within s.98 (2) and therefore the dismissal was unfair. The case was referred back to an Employment Tribunal to consider the question compensation. In many instances it is convenient for both employees and management to describe a dismissal as 'redundancy'.

Where this approach does not suit an employee, this case demonstrates the scope for undermining the rationale for the dismissal itself.