On the question of the mistaken failure to offer of a trial period in a redundancy situation, it is important to consider first of all whether this failure rendered the dismissal unfair, and then whether a trial period would have made a difference to the outcome. Neither is it an answer, when the employer has clearly admitted being at fault, to say that because the claimant did not press the point, this somehow affects the reasonableness.
Redundancy
An employer’s failure, in a redundancy situation, to consider the ‘bumping’ dismissal of a more junior employee to make way for a more senior employee may, or may not, make the dismissal of the senior employee unfair, depending upon the circumstances.
A charity breached its collective redundancy consultation obligations when it failed to start consultation ‘promptly’.
An employer who promised employees the right to apply for voluntary redundancy breached their contracts by instead making them compulsorily redundant.
Charlesworth v Dransfields Engineering Services
While an employee’s absence for cancer treatment was the context for his employer deciding to make his role redundant, it was not the cause of his dismissal – and therefore didn’t amount to discrimination because of something arising in consequence of his disability.
Kellogg Brown Ltd v Fitton
An employer can rely on a mobility clause in its employees’ contracts where there is a potential redundancy situation – but it must be very careful when it does so, as this decision usefully illustrates.
Thomas v BNP Paribas Read Estate Advisory and Property Management UK
A high-level reorganisation highlights how the manner in which a redundancy process is completed can affect the fairness of a resultant dismissal.