In Ralph Martindale & Co Ltd v Harris, the employer, Martindale, decided to remove one layer of management throughout its group because of a decline in orders. Mr K Harris and a second manager, Mr E, were told they were at risk of redundancy. A single new position was created and opened to internal competition. Mr Harris and Mr E applied for the position, as did another internal candidate. The position was awarded to Mr E on the basis that he had a less insular management style. Mr Harris claimed he had been unfairly dismissed, and the tribunal agreed. It held that the criteria to select who was awarded the role were dealt with by Martindale in an entirely subjective way – it had relied almost entirely on the subjective view of a single director to judge the abilities of the candidates. Further, the tribunal ruled, the new role should not have been open to application by internal applicants until it was clear whether either of those at risk of redundancy were suitable. The tribunal ruled that Martindale’s approach did not reflect the current industrial relations practice of a reasonable employer, and Martindale appealed. In rejecting the appeal, the EAT accepted that the test of what is appropriate in selection for dismissal from a redundancy pool (from which some employees would be retained and others dismissed) should not be equated to the criteria that should be applied in the process of considering persons for alternative employment. Nevertheless, it held that the selection process for alternative employment must, at least, meet some criteria of fairness. In the EAT’s view, the tribunal was entitled to rely on its own sense of good industrial practice when determining whether Martindale’s procedures were unfair. Employers contemplating redundancies are advised to ensure their selection criteria are objective and that available alternative employment is initially offered only to those at risk of redundancy and not the wider workforce.
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