How much help does an employer need to give an at-risk employee?
In Hendy Group Limited v Kennedy, the claimant worked for a car dealership as a trainer, providing training for the sales teams across the workforce. He also had 30 years' experience of sales in the motor sector. In 2020, ostensibly due to Covid-19, the claimant was made redundant. The claimant accepted that there was a genuine redundancy and that, in terms of selection for redundancy, he was fairly selected. However, he argued that he had been unfairly dismissed because the employer had not given adequate consideration to him continuing to work in a different role.
The claimant had been told during a consultation meeting that he could apply for posts listed on the respondent's intranet. It seems that line management assumed that the claimant would have been given details of posts he could apply for, but did not check. A week into his notice period, the claimant had to return his laptop meaning he no longer had access to the employer's intranet. He could, and did, identify alternative roles within the company on their website, in the same way that any potential job applicant could.
The claimant was invited to interview for one role by Mr White, who believed the claimant lacked a desire to lead and motivate a team. He was unsuccessful in that application and was not interviewed for some others – on one occasion because of feedback given by Mr White. A senior manager had also been influenced by a conversation with the claimant that had taken place 12 months earlier. The claimant had expressed to the senior manager that he would ideally wish to carry on in the training role, rather than a sales role. An email was sent to the claimant (albeit he did not have immediate access to it due to the removal of his work laptop) that confirmed he would not be considered for any sales role across the business because of Mr White's views on the claimant's motivation for pursuing a sales role.
The judge in the employment tribunal noted that a change of direction (from training to sales) was not what the claimant wanted. However, when "push came to shove", it seemed the claimant wanted to see out his career with his employer and would throw himself into any new role with enthusiasm.
Employment Tribunal and Employment Appeal Tribunal judgments
Unsurprisingly, the employment tribunal found the dismissal to be unfair. The employer had done nothing to support the claimant in finding alternative employment. No reasonable employer would have acted that way. Further, had the employer properly considered alternative employment, the claimant would have secured alternative work. The claimant was awarded over £19,500 in compensation.
An appeal by the employer to the EAT was dismissed. The employment tribunal was entitled to reach the conclusions that it did.
Learning points
Despite having significant resources, including HR support, the employer in this case did virtually nothing to help the claimant. In fact, their approach to some extent actively prevented the claimant from securing alternative employment.
Proper consideration of alternative employment is a fundamental part of a fair redundancy procedure. A well-prepared employer will consider availability of alternative employment at an early stage in a redundancy process and continue to look for it throughout the process, including during any notice period. Exactly what is required of an employer will be affected by its size and resources. However, pro-active steps to support an at-risk employee should be taken if the duty to look for alternative employment is to be met.
