Key takeaways
Employers must actively support redeployment
The EAT confirmed that failing to help redundant staff find internal roles can render dismissal unfair.
Internal barriers can breach fair process
Removing tools like email and intranet access during notice periods undermines fair opportunity.
Redundant staff deserve priority access to roles
Employers must actively support redeployment by informing hiring managers and offering tailored assistance.
A fair redundancy procedure will involve the employer taking reasonable steps to consider whether the employer may be suitable for any internal vacancies. A recent EAT decision highlights the risk that a genuine redundancy dismissal may be rendered unfair if the employer fails to assist the search for suitable alternative employment.
K had worked for a well-known car dealership for around seven years when the pandemic led to a genuine redundancy situation in 2020. At the time, K worked as a sales trainer in the dealership’s training academy, but he had previously managed a new car dealership for them and had over 30 years’ experience in the new and used car sales industry. Whilst K accepted there was a genuine redundancy situation and that his redundancy selection was fair, he brought an unfair dismissal claim. The employment tribunal upheld K’s unfair dismissal claim, primarily due to the employer’s failure to assist K in his search for suitable alternative employment.
The EAT subsequently dismissed the employer’s appeal and upheld the tribunal’s decision. The EAT held that the tribunal had been entitled to decide that K’s dismissal was unfair because the employer had not properly discharged its duty to assist K’s search for suitable alternative employment amongst the numerous internal vacancies which arose during his notice period. Notable failings included:
Requiring K to search for internal vacancies himself with no additional support from HR;
Removing his laptop during his notice period, so K lost access to his work email and the intranet –leaving him searching for vacancies on the website alongside external candidates;
Making K compete for vacancies alongside external candidates, without any preferential treatment, and failing to notify the hiring managers that he was at risk of redundancy;
After K was rejected for a sales vacancy for which he was amply qualified, the recruiting manager questioned K’s motivation for applying and thereafter discouraged K from making further applications for other vacancies under his hiring control; and
An email HR sent to K, which indicated that the employer had determined that he would not be successful in any applications for any other sales roles within the Group so his applications for such vacancies would not be processed.
As this decision highlights, employers must proactively consider the possibility of redeployment/suitable alternative employment to ensure a fair redundancy process. Merely signposting internal vacancies and suggesting redundant staff can apply for them will not be enough. Instead, the employer should help, encourage and assist the affected staff to apply for those vacancies and ensure any hiring managers are made aware that candidates are at risk of redundancy if they fail to secure redeployment.