It is well established that an employer making redundancies must take reasonable steps to see whether a dismissal can be avoided by offering an opportunity to apply for any suitable alternative employment that exists within the employer or the employer’s group.
This can often raise difficult issues about how far that duty goes. For example, what happens if the employer considers that there is other work or other vacancies, but the work would be unsuitable or does not for some reason wish to offer it?
The Employment Appeal Tribunal recently made an interesting decision about the extent to which an employer must offer suitable alternative employment in order to avoid dismissals. The case of Aramark (UK) Ltd v Fernandes explored whether the duty to take reasonable steps to avoid a redundancy dismissal extended to considering placing potentially redundant employees on a list of “bank workers”.
Bank workers are a pool of individuals an employer can engage on an “as and when required” basis to cater for fluctuating demand. There is usually no guarantee of ongoing work, but bank workers are in the favourable position of being likely to be offered work by the employer if there is any.
The Tribunal found that Mr Fernandes had been treated unreasonably in that the employer failed to consider whether he should be placed on the list of “bank workers”. Mr Fernandes had demonstrated that the company regularly used the list and that those on the list had a reasonable chance of obtaining ad hoc work.
However, on appeal the decision was reversed. Adding Mr Fernandes to the pool of bank workers would have “opened up the prospect of work but it did not secure any work”. Central to the decision was that adding him to the list could not on the facts of this case have ultimately prevented his dismissal by reason of redundancy. Therefore, the employer ultimately acted fairly in dismissing the employee in this case.
However, employers should still consider all reasonable ways in which a dismissal may be avoided, and law remains the same in this respect. If the evidence shows that a project was available which the bank workers would have secured then the inference is there that this may have prevented a dismissal and would have secure future employment, at least for some time. However, the decision is reassuring for employers in the sense that it did not lay down any general principle that there would be an unfair dismissal for a failure per se to add the employee to a bank worker list.
Employers are often in a dilemma in a redundancy situation about the extent of their duty to consider employees for alternative jobs in the business. Need help planning a redundancy process? Speak to our team of Employment lawyers at Brabners.
