A recent Employment Appeal Tribunal has highlighted the need for employers to take a proactive approach to looking for alternative roles for at risk employees, to avoid a finding of unfair dismissal. Simply pointing an individual to a publicly available list of vacancies is unlikely to be enough.
A car sales training manager, who had many years of car sales experience, had been fairly selected for redundancy from his training role, but the employer's failure to make a reasonable effort to identify or support his search for alternative roles rendered his dismissal unfair.
The employer, a large multi-site business, had simply told the claimant that he could apply for posts listed on the intranet, and his line manager had offered to speak to anyone who wanted to contact him. This was held to be insufficient. The employer had failed to alert hiring managers to the claimant's at-risk status, failed to support or guide his applications, unfairly assumed he would not be committed to a sales role in light of an earlier conversation (when not at risk of redundancy) about preferring his training role, and indeed blocked him from making further sales role applications after assuming that he had no real interest in them. It had also communicated with him via an internal email account to which he did not have access, having been required to return his laptop shortly after being given notice, so that thereafter he only had access to the same vacancy information as external applicants.
The EAT upheld the tribunal's ruling that the employer's approach was one which no reasonable employer would have adopted, given its size and administrative resources. It should have actively discussed alternatives with the claimant and ensured he was properly considered for suitable vacancies.
Although there is no requirement to prefer an at risk individual over external candidates (save for protected employees who are pregnant or on/recently returned from family leave), employers would be well advised at least to give their applications careful consideration and alert hiring managers to their at risk status. Employers should consider what assistance and guidance they can give to an at risk employee in discussing and identifying suitable alternatives, and ensure that no assumptions are made as to the employee's attitude towards a different type of role, particularly if based on historic comments when not at risk of redundancy. Vacancy information and support should also continue to be provided throughout the notice period.
(Hendy Group Ltd v Kennedy)
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