A fair redundancy process must consider alternative employment (held in the case of Hendy Group v Kennedy)

Mr Kennedy’s role was put at risk of redundancy. He was a training manager for car sales at the Hendy Group. However, he had been a car salesperson previously. He had over 30 years’ experience in the motor trade. Mr Kennedy was dismissed for redundancy. He claimed unfair dismissal.

The claim of unfairness centred on the employer’s failure to find him another role within the business. The Employment Appeal Tribunal upheld the Employment Tribunal’s decision. The Tribunal had found the dismissal unfair.

There had been no reasonable effort by the employer, which was a large organisation with relatively large resources, to identify alternative employment or to support Mr Kennedy in securing alternative employment. xamples of this were:

• Mr Kennedy could only see the job vacancies in the same way that external applicants could see them. His work laptop was returned a week after he was told he was going to be dismissed so he could not access the intranet or internal email although there was a 7-week period before his dismissal was to take effect
• HR took no positive steps to assist him – with applying for or suggesting any posts to apply for with a view to ultimately avoiding his dismissal
• The letter giving notice of termination did not reference any possibility of help
• Mr Kennedy’s line manager stated he was unable to help with any roles outside of the Training Academy (within which there were no vacant roles)
• Mr Kennedy applied for a sales manager role but was turned down despite having many of the attributes needed for the role and an existing employee who was not at risk of redundancy was appointed to the role
• Mr Kennedy applied for a role as a sales advisor but was not interviewed and an external candidate was offered it
• No training was considered to facilitate Mr Kennedy’s successful return to a customer facing sales role
• There was no communication to other managers that Mr Kennedy was at risk of redundancy so they could consider that when determining who to fill their vacant roles with.

As the weeks progressed the employer moved from not proactively helping Mr Kennedy to blocking his attempts to secure an alternative role despite his experience and skill set.

Mr Kennedy was out of work for over 7 months following his dismissal. He was awarded compensation of £19,566. The Tribunal did not accept that had a fair procedure been followed there was a percentage chance the dismissal still would have taken place. In fact the Tribunal believed alternative employment would have been secured had a proper fair process been followed prior to the decision. Therefore there was no reduction of the award for Polkey.

It is clear that a more proactive approach is expected by the Tribunals where a role is put at redundancy and where there are alternative roles available within the Company. From HR and managers supporting and assisting an employee to secure a role to there being much better communication with appropriate colleagues (i.e. those recruiting for roles) in terms of who is at risk and searching for alternative roles.

The team has significant experience and expertise in all the processes that your business might need to navigate its way through. We can guide you through with commerciality and pragmatism. We will ensure that your process is robust and would, if necessary, withstand the scrutiny of a Tribunal.

If you are embarking on any kind of process in respect of your employees, whether it is a redundancy process, a disciplinary hearing or a TUPE transfer, the Employment Team at Thackray Williams is here to help. Please contact Megan O’Hara on 020 8290 0440.