In Malekout v Ahmed and others (t/a the Medical Centre) the EAT upheld an Employment Tribunal's decision that a redundancy situation existed even though a replacement had already been recruited for an under-performing employee who was then dismissed.
Mr Malekout was the practice manager of the Medical Centre. In May 2008 he informed the practice that he was thinking of resigning. Not wanting to be left without proper management, the Medical Centre engaged another practice manager, Mr Kader, initially as a short-term 'trouble-shooter'. As Mr Kader gradually took on greater responsibilities, it became clear that Mr Malekout had not been completing administrative tasks, and that there were failures in the way he had been managing the practice. However, Mr Malekout then decided to remain in his post, so there were effectively two people for one job as practice manager. The practice decided to retain Mr Kader and dismissed Mr Malekout for redundancy.
The Employment Tribunal held that the reason for dismissal was redundancy, although it was procedurally unfair mainly due to lack of genuine consultation. The Tribunal also found that had a fair procedure been followed, Mr Malekout's dismissal would have been inevitable. A 100% Polkey deduction was therefore applied, resulting in a nil compensatory award.
On appeal, Mr Malekout argued that there could not have been a redundancy situation because there was only one job of practice manager. The EAT held that his appeal raised no arguable point of law. The reason for employing Mr Kader in the first place was the fear that Mr Malekout would resign and leave the practice without proper management. Having then put two people in the post for one job, it was inevitable that those two people would be reduced to one, which was clearly a redundancy situation. The EAT also upheld the 100% Polkey deduction.
In looking at the situation at the moment of dismissal, the Employment Tribunal and EAT categorised this narrowly as a redundancy case despite the fact that Mr Malekout had effectively been replaced some months before by a more capable employee. A different Tribunal might have looked further back at the previous events leading up to Mr Malekout's dismissal and categorised it as a capability situation.
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