Employers may be able to establish that the reason for a dismissal is redundancy even if they also have concerns about an employee’s performance or conduct. Two recent cases have illustrated that, provided there is a genuine redundancy situation, some tribunals may readily infer that redundancy is the reason for dismissal. The EAT will be slow to interfere with a tribunal’s assessment of causation, assuming it has properly considered all the facts.
The EAT upheld a tribunal ruling that an employee was dismissed for redundancy where, due to his poor performance, another employee had been recruited to troubleshoot. This more competent employee was kept on in light of the employer’s fear that the first employee would leave, meaning that at the point of dismissal there were two people doing one job.
This could easily have been viewed as the employer engineering a sham “redundancy” scenario to dismiss a poorly performing employee – a different tribunal might well have viewed poor performance as the true reason taking into account events prior to the dismissal, notwithstanding that a technical redundancy situation was the reason at the moment of dismissal. (Malekout v Ahmed & ors (t/a The Medical Centre))
Similarly, the EAT upheld a tribunal ruling that redundancy was the principal and real reason for dismissal where the employer also held a dim view of the employee’s conduct and capability in Fish v Glen Golf Club.
Inevitably, much will depend on the tribunal’s assessment of the facts.