Employment Law & Practice (LPC) - FULL & Comprehensive DISTINCTION level Notes - full notes bundle produced and used in 2020 in the online delivered classes. These large group and workshop notes have also been used by ULaw and BPP students. The notes include all the content for each class and in hi...
Learning Outcomes:
By the end of this session, you will be able to:
Advise on the procedural steps to adopt in order to avoid an unfair dismissal in the
context of redundancy
Understand additional considerations and claims for a redundant employee
Understand and apply the remedies for unfair dismissal
Calculate an unfair dismissal basic award and a statutory redundancy payment (SRP)
Recognise the factors that are taken into account when calculating an unfair dismissal
compensatory award
Session Activities:
Tutor-led overview on unfair dismissal in the context of redundancy with questions
throughout
Tutor-led discussion of unfair dismissal remedies, including the calculation of a basic
award
Materials Attached:
Session outline
Preparation for Session:
Reading: Articles on Practical Law entitled ‘Unfair dismissal: compensation and remedies’
and ‘Redundancy (1): the definition of redundancy’
Read ss.118, 119, 123, 135, 138, 141, 162 and 164 Employment Rights Act 1996 (‘ERA
1996’)
Read the attached session outline
Post-Session:
Review what you have learned in the session
3 Types of Dismissals
(1) Express
(2) Constructive
(3) Expiry of a limited-term contract
Then see if they are qualified→ employee + 2yrs employed (after April 2012) or 1yr (before
2012)→ and see if excluded category e.g. police or armed forces, if they are then not
qualified
Need to bring claim within 3 months of EDT – subject to ACAS reconciliation procedure
Employer must show there is a fair reason→ conduct, capability, redundancy, illegality and
SOSR
Then see it fair in the circumstances→ this is an important part→ substantive + procedural
fairness
REDUNDANCY AND REMEDIES FOR UNFAIR DISMISSAL
Part 1 – Redundancy
■ Business or workplace closure
■ Reduced requirement for employees
1. Introduction
By way of reminder from LG 3, redundancy is one of the five potentially fair reasons for
dismissal.
In a redundancy situation, provided that there has been a dismissal and that the individual
qualifies for the right not to be unfairly dismissed, the employer must show that the employee
was dismissed by reason of redundancy (as defined in s.139 ERA 1996) and that the
decision to dismiss was within the range of reasonable responses of a reasonable employer
in those circumstances.
LG 3 provides a detailed commentary about the statutory definition of redundancy, i.e.
whether the potentially fair reason of redundancy applies. The detail in relation to the second
limb of the unfair dismissal test in a redundancy context is set out in paragraph 2 below.
In addition to considering unfair dismissal, an employee who has been made redundant may
be entitled to bring a number of other claims, as follows:
Protective award for failure to comply with the collective consultation obligations in
s.188 Trade Union and Labour Relations (Consolidation) Act 1992 (‘TULRCA 1992’)
(see paragraph 3.1 below)
Statutory redundancy payment (see paragraph 3.2 below)
Wrongful dismissal (see LG 2)
3 types of redundancies
(1) business closure or workplace closure
(2) Reduced requirement for employees (remember Murrey v Foyle Meats test→ was there a
dismissal, was there a less need for employees to carry out work of a particular kind and was
there a causal link)
2. Unfair dismissal – fairness in all the circumstances
Even where the employer has established that there is a genuine redundancy situation, the
tribunal must then decide if the employer acted fairly in all the circumstances in dismissing
the employee (to avoid UD claim)
Remember – substantive + procedural fairness
Substantive fairness
■ Band of reasonable responses
■ ET not to substitute its own view (but what an employer would have done)
■ Consider other factors, including consistency, size of employer, employee’s
circumstances
Procedural fairness
■ Employer cannot argue the “no difference” rule, but it might assist in compensation
■ Own procedure
■ Employer should always consult with employee (very important)
■ ACAS Code not relevant for redundancies (as through case law we have a step by
step procedure and ACAS code is for Disciplinary and Grievance)
An employer should always carefully consider the issues set out in paragraphs 6.1 and 6.2 of
LG 3 before proceeding with a dismissal, whatever the reason including redundancy.
Therefore, the tribunal has to decide whether the employer's decision to dismiss the
employee fell within the band of reasonable responses that a reasonable employer in those
circumstances and in that business might have adopted. The tribunal must not substitute its
own view for that of the employer.
In addition, the employer must follow a fair procedure. It is important to remember that the
ACAS Code does not apply to redundancies.
The leading case on reasonableness in relation to redundancy is Polkey v A E Dayton
Services Ltd [1987] IRLR 503, in which the House of Lords held that an employer will not
normally act reasonably (and a dismissal will therefore be unfair) unless it:
warns and consults employees about the proposed redundancy; (by consultation it is
a 2 way process, it is not just telling employees, it is discussion with each individual)
adopts a fair basis on which to select for redundancy, by identifying an appropriate
pool and using fair selection criteria; and (see which group of people need a
reduction)
considers suitable alternative employment.
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