The claimant in Davies v Droylsden Academy was a venue lettings manager for a company which provided premises services for schools. She was the manager responsible for Droylsden Academy's premises. In the summer of 2014 the Academy decided to take the contract in-house and told the claimant at a meeting in September that after the TUPE transfer there would be no role for her as her job would be done by existing school staff.
The TUPE transfer took place on 1 November but no arrangements were made for her to take up employment (nor did she attend work at the Academy because she was allowed to remain at home); she was not given any instructions, or paid as she should have been. Meanwhile her role was being performed by three members of Academy staff. She was made redundant in March 2015.
The Tribunal concluded that the transfer was not the sole or principal reason for the dismissal (if it had been, it would have been automatically unfair). The Academy did not want to have a dedicated manager for the lettings business once it was taken in-house, preferring to distribute the claimant's management duties among existing members of staff. That amounted to an organisational change that would result in the loss of a dedicated manager as part of the Academy's workforce. The dismissal was therefore for an ETO reason – an organisational reason entailing changes in the workforce. The redundancy process was fair.
In the EAT, the claimant argued that she was pre-selected for redundancy by the Academy's Principal who did not want her after the transfer. Her main duties had been allocated to an existing member of staff in the run-up to the transfer and although there was a lengthy process following the transfer at the end of which the Academy's HR consultant took the decision to make her redundant, her fate was sealed before the transfer.
Somewhat reluctantly, given the way she had been treated at the time of the transfer, the EAT rejected this argument. The Tribunal's reasoning had been clear – the reason for her dismissal related to her role being redundant as a result of the restructure; and this was an ETO reason.
The fact that no arrangements were made for the claimant to take up employment and she was not paid did not mean that her employment had not transferred. The Academy may have been in breach of contract entitling the claimant, if she chose to do so, to resign and claim constructive dismissal. The EAT commented that a claim may well have been successful – but the claimant did not resign. It was clear that the HR consultant made her own assessment of the situation and took the ultimate decision to dismiss. The fact that three existing members of staff had carried out the role since 1 November and that the claimant had not performed any of those duties formed the underlying basis for her conclusion that the role was no longer needed.
The EAT also agreed with the Tribunal that the Academy's decision that the pool for redundancy should be limited to the claimant, rather than broadened to include other members of staff who were performing the lettings management function alongside their existing duties, was a reasonable one. Lettings management formed only a small part of their roles, in contrast to the claimant, who was in the unique position of being solely a lettings manager.