Redundancy unfair due to failure to look for alternative roles

Redundancy unfair due to failure to look for alternative roles

​The Employment Appeal Tribunal has ruled that an employer failed to take reasonable steps to identify alternative employment for an "at risk" employee during a redundancy process. Where did the employer go wrong here?

​Unfair redundancy

​As we have said many times, as part of a fair redundancy process, you must make reasonable efforts to find a redundant employee alternative employment within your business. The Employment Appeal Tribunal (EAT) has now considered what you must do to comply with this duty.

​In Hendy Group Ltd v Kennedy 2023, Kennedy (K) worked as a sales trainer for a large multi-site car dealership (HG). Having previously worked in car sales roles, his role was made redundant. HG accepted there was a genuine redundancy situation and that he was (and selected for) redundancy. However, he still brought an unfair dismissal claim, arguing that HG didn't do enough to help him find an alternative role within the organisation.

​During the redundancy process, K was informed that he could apply for vacancies listed on HG's intranet, but he received no further assistance to apply for any post from either his manager or HR, and no post was suggested for him to apply for. When K did apply for various internal vacancies, hiring managers at other sites weren't told that he was at risk of redundancy and so he wasn't given any priority. He was also blocked from being considered for further sales roles after HG wrongly assumed that he had no real interest in returning to sales. Finally, he was asked to return his work laptop several weeks before his termination date, which meant he lost access to HG's intranet and internal email and then only had access to the same vacancy information as external candidates.

​Unfair dismissal

​Both the employment tribunal and the EAT ruled that K's redundancy dismissal was unfair because ​HG had failed in its duty to make a reasonable effort to find alternative employment for him.

​What should you do?

​This case highlights that you must normally go beyond simply pointing a potentially redundant employee to a list of available vacancies and telling them that they can apply for them. Rather, you should: (1) take proactive steps to guide and assist them in identifying other roles, particularly if your business is large and there are many vacancies, e.g. by encouraging conversations about different roles; (2) support their applications; (3) ensure they are properly considered for any suitable vacancies they apply for - alert hiring managers to their "at risk" status; and (4) continue to provide vacancy information and support throughout their notice period.

​Tip. If you're a small employer, the options for alternative employment may be very limited, so do what you can to help the employee.

Tip. Although there's no absolute requirement to prefer a potentially redundant employee over other candidates (except for protected employees who are pregnant or who are on an officially returned from family leave), if the particular role is suitable for them then you must consider them for it, which may mean giving them priority over other candidates.

Trap. Don't make any assumptions about whether an employee will be sufficiently committed to performing a different role.

​The employer simply referred to the employee to its intranet for a list of vacancies, and it didn't provide any meaningful assistance to help him find alternative employment. You must take proactive steps to assist a potentially redundant employee in identifying other roles and ensure they are properly considered for any suitable vacancies they apply for.