When considering whether an employer has subjected a worker to a detriment with the sole or main...
Bank workers and redundancy
Aramark (UK) Ltd v Fernandes
An employer had not acted unreasonably by failing to place a redundant employee on a list of workers whose services could be called on if required – because doing so would not have avoided the redundancy.
Aramark kept a list of people they could use in the event of a labour shortage and those on it had a reasonable prospect of obtaining work for Aramark on an ad hoc basis. Those on the list weren’t employed by Aramark and there was no obligation on Aramark to provide work. Mr Fernandes was dismissed for redundancy and claimed that his dismissal was unfair – on the basis that he should have been put on the list when he was being considered for redundancy as it offered him at least a chance of some work. A tribunal held that Aramark’s failure to include him on the list was unreasonable, in breach of ERA, s. 98(4) and his dismissal was unfair. Aramark appealed.
The appeal was allowed.
The EAT held that the appeal hinged on the interpretation of s. 98(4) which deals with the reasonableness or otherwise of the decision to dismiss. A tribunal must be satisfied that there is a sufficient reason for dismissing the employee. Section 98(4) focusses on the availability of other reasonable alternatives to dismissal. Here, placing Mr Fernandes on the list would not have obviated dismissal. Being placed on the list opened the prospect of work but did not secure work. Therefore, Aramark’s decision not to place Mr Fernandes on the list is not a decision that falls within the scope s. 98(4) – because the mischief s. 98(4) seeks to address is the mischief of dismissal. It does not provide a statutory right to an alternative that might have had the potential to mitigate the adverse effects of dismissal.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2020/0028_19_1303.html
An employer’s obligations in respect to alternative employment are often misunderstood. Only if employees are made redundant while on maternity and similar family leave does the employer have a positive obligation to try and find them alternatives. Otherwise, providing lists of vacancies is sufficient. However, this was not a vacancy list – it was a list of people who might be offered work and failure to include him on it did not make the dismissal unfair.