Many of you will have made employees redundant this year. You’re obliged to consider ways of saving their jobs but does this duty extend to putting employees on your list of bank workers?
In Aramark (UK) Ltd v Fernandes, the Employment Appeal Tribunal (‘EAT’) said no.
When Aramark made Mr Fernandes redundant, it had a list of around 120 bank workers to cover staff absences. It didn’t employ them nor was it obliged to provide them with work. However, the bank workers had a reasonable prospect of obtaining ad hoc work.
Mr Fernandez said that Aramark should have put him on the bank list because ‘it offered him the chance of employment, which was better than no employment’.
Overturning the tribunal’s decision that the dismissal was unfair, the EAT said that placing Mr Fernandes on the bank list would only have given him the prospect of work. It wouldn’t have avoided his redundancy. Section 98(4) of the Employment Rights Act 1996 addressed ‘the mischief of dismissal’, but it didn’t provide ‘a statutory right to an alternative that might have had the potential to mitigate the adverse effects of dismissal’.
The dismissal was fair, but the case reminds us that:
Consulting affected employees on ways to avoid redundancies is crucial to ensure that any dismissal is fair.
You should make reasonable efforts to find suitable, alternative employment for redundant employees, but you’re not required to go beyond what is reasonable.
You have a separate duty to offer any suitable alternative vacancy to an employee who is on maternity, adoption, or shared parental leave at the point of the redundancy.
Do speak to us if you need help with redundancies.
