In the highly unusual case of Malekout v Ahmed and others (t/a the Medical Centre) the EAT confirmed that it was acceptable for a medical practice to recruit an interim practice manager (K) after the current practice manager (M) indicated that he might leave the practice and then to dismiss M by reason of redundancy. After 13 years of employment, M gave a letter to the practice requesting a formal meeting to discuss his position and stated that he had received a job offer. Concerned that M would leave the practice without a practice manager, the partner wrote to him confirming that she thought it would be best if his employment terminated at the end of the month and she would look for other practice managers. K was then appointed as an interim practice manager on a short term basis.

K very quickly took on more and more of M’s duties within the practice and identified that M had not completed certain tasks. The practice invited M to an appraisal and set out that it had serious concerns over his performance and it was clear that trust and communication had broken down. Following his appraisal, M went off sick. While he was away, the practice undertook a restructure and M was dismissed by reason of redundancy.

M brought a claim for unfair dismissal (along with other claims which did not succeed) arguing that his role was not redundant as the practice had appointed his replacement before dismissing him. The tribunal held that, following M’s threat to leave, K was appointed as a safety net. This meant that, at the time of M’s dismissal, the practice had two practice managers and going forward it only needed one. The tribunal found that this was a redundancy under Section 139 of the Employment Rights Act 1996. However, as there was no genuine consultation with M, the tribunal held M’s dismissal was procedurally unfair but reduced his compensation by 100%, as a proper procedure would have given the same outcome.

M appealed and argued his dismissal could not be a redundancy as there was never a need for two practice managers. The EAT rejected M’s appeal and upheld the tribunal’s decision that the reason for M‘s dismissal was redundancy. The EAT held that, where the practice had two individuals in the role of practice manager, it was inevitable that the number of employees would reduce to one. The EAT also upheld the tribunal’s decision regarding the reduction of M’s compensation for procedural unfair dismissal.

While this case might seem like a way forward for employers, beware! This case does not give carte blanche to hiring another employee alongside a poor performer and then making the poor performer redundant - even though it looks like it does. The way to make sense of it is to realise that, when K was appointed, there was no suggestion that M would be dismissed and it was only after time that a redundancy situation became apparent. Employers would be brave - or foolish - to try to rely on that reasoning in most circumstances.