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07th November 2013

Redundancy and Unfair Dismissal

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Failure to inform an employee of the full job description for a suitable alternative vacancy in a redundancy situation rendered the employee’s dismissal unfair.

Where an employer is facing a potential redundancy situation, as part of the consultation process the employer is required to consider whether there are any suitable alternative vacancies within the company or group for those employees at risk. Failure to do so is likely to render the dismissal unfair.

In the recent case of Somerset County Council v Chaloner 2013 UKEAT/0600/12 the EAT held that the dismissal of an employee by reason of redundancy was unfair as, although the employer had undertaken a search for alternative vacancies, it had not given each of the employees at risk the same information about the role. As a result the employee was placed at a disadvantage in relation to her application for the role and as such her dismissal by reason of redundancy was unfair. In this case Mrs Chaloner was as a deputy director of business at an adult education and conference centre owned by the Council. Following the restructuring of her department, her role was placed at risk of redundancy.

During the consultation process Mrs Chaloner was informed that there was a suitable alternative vacancy of Business Development Manager. She was given a job description for the role, and the new role was very similar to the role that Mrs Chaloner currently undertook. Mrs Chaloner applied for the vacancy and at this stage was the only employee at risk that was interested in the role.

Following this the Council extended the restructuring to other areas of the business and further employees were placed at risk of redundancy. One of the employees placed at risk was the finance officer, Ms Boyland. Mrs Boyland also applied for the alternative vacancy of Business Development Manager.

What Mrs Chaloner didn’t know was that since she had applied for the role, the job description for the role of Business Development Manager had been changed to include additional responsibilities for financial reporting. The new job description was given to Mrs Boyland but was not provided to Mrs Chaloner. Further Mrs Chaloner was not informed that Mrs Boyland was also being considered for the role of Business Development Manager.

Following a competitive interview for the post, Mrs Chaloner was unsuccessful in her application for the role of Business Development Manager and was dismissed by reason of redundancy. Mrs Chaloner appealed against this decision and it was during this process that Mrs Chaloner found out that the job description had been changed.

The Council rejected Mrs Chaloner’s appeal, following which Mrs Chaloner issued proceedings for unfair dismissal. The EAT found that Mrs Chaloner’s dismissal had been unfair.

The EAT held that by not informing Mrs Chaloner that Mrs Boyle had applied for the role and that material changes had been made to the job description, Mrs Boyland had been placed at an unfair advantage. As a result the Council had not considered Mrs Chaloner’s application for role fairly and, therefore her dismissal was unfair.

This case is a reminder to employers that during a redundancy consultation process, it is not enough to simply search for suitable alternative vacancies and to offer those vacancies to employees at risk. Employers in these circumstances need to ensure that employees are given sufficient information about the role so that the employee can make an informed decision about the suitability of the role.

Further employers must deal with the application and selection process in relation to those suitable alternative vacancies reasonable and fairly. Failure to do so is likely to render any dismissal of an employee by reason of redundancy unfair.

For further information, please contact Gemma Hill on 01604 463309 or click here to email Gemma. For further information on our Employment Solicitors click here.