Key takeaways
The decision is a good reminder that a fair redundancy process involves considering ways of avoiding redundancy, which includes the employer looking for suitable alternative employment for the employee. The reasonableness of that search will depend on the size and administrative resources of the employer. Nevertheless, it will not generally be sufficient to merely direct the employee to a general job vacancies site; a proactive approach will be required.
In this case, the tribunal considered the following factors as failings of the employer, a large car dealership, to search for suitable alternative employment for the employee who was a trainer but had previously worked in sales and other roles:
- The employee was told that he could apply for posts listed on the employer's intranet but was given no assistance to apply for any post or any suggestions on what a suitable post for him might be
- He was required to return his laptop shortly after meaning that he could no longer access internal email or the intranet so had to rely on searching for vacancies on the employer's website (in common with external applicants).
- The most assistance that was offered was his line manager saying that he would be willing to speak to anyone who wanted to phone him
- The employee applied for a few posts himself with no support from HR or management. He was treated the same as an external applicant and the hiring managers were not told that he was at risk of redundancy. Some of his applications did not proceed after negative feedback from an unsuccessful interview regarding his motivation for applying for sales roles. The tribunal was critical of the employer's position that he would not be considered for any sales role in the group as a result of that interview when he had 35+ years' experience in sales or training others to sell cars.
The EAT also noted that there was no evidence of other steps that a reasonable employer might have taken including speaking to the employee to find out his interests, assisting him in identifying other roles and encouraging conversations about different roles even if that meant demotion.
For advice or to discuss what this means for you and your business, please contact your usual Baker McKenzie.
Case: Hendy Group Ltd v Kennedy, Employment Appeal Tribunal
