REWARD
Redundancy situation, disability discrimination, termination date
NicolaMullineux, senior employment specialist for Peninsula , reviews the decisions in three cases
Berkeley Catering Limited v Jackson The employment appeal tribunal (EAT) has held that there was a redundancy situation where the owner of an organisation absorbed the role of its managing director. This case concerned an employee who had worked for an organisation for some time and was promoted to the role of managing director. The owner of the organisation had originally filled this position but stated that he would be taking a step back from day-to-day management. As time went on, the relationship between the claimant and the owner began to break down, with the employee arguing that the owner was deliberately undermining her and excluding her from important decisions. Eventually, the owner announced that he was to make the managing director role redundant as he intended to take on much of the duties himself. The claimant was provided with redundancy pay and the relevant notice, but crucially not afforded the chance to appeal. She later brought a claim to an employment tribunal (ET) for unfair dismissal. Her main arguments were that she had been displaced from her role
by the owner, meaning there had been no genuine redundancy situation, and even with this in mind the redundancy procedure had not been fair because an alternative role had later become available. This alternative position had been given to someone else which she felt she could have filled. The employment tribunal (ET) ruled that there was no genuine redundancy situation and that it was not necessary for them to determine if the procedure had been fair. In forming their decision, they outlined that the requirement to do work of a particular kind had not diminished, because the owner had undermined the claimant and intended to take on her role for himself. There was not a situation where there had been a diminishing need for a managing director as the role was going to be taken on by other staff. The respondent appealed against this decision to the EAT, stating that the ET had erred by focusing on the diminution of work as opposed to the number of employees required to perform. The EAT upheld the appeal. They outlined that the undermining of the claimant was not relevant to the question as to whether there had been a genuine
redundancy in this situation, although it would be relevant to a future question of unfair dismissal. To determine a genuine redundancy, the question that should be focussed on is the reason for the dismissal. The EAT found that there had been a diminution in the number of employees needed to undertake a particular role. The owner had intended to take on more of the managing director’s duties, meaning the need for a separate individual to carry out this role had diminished, and the claimant’s dismissal did amount to a redundancy situation. As there was a redundancy established, it needed to be determined if the procedure followed had been fair; thus, the EAT remitted the case to a fresh ET in order for this point to be heard. All Answers Ltd v Wain & Radulovska The EAT has ruled that in circumstances where there is no evidence of a disability on the date of an alleged act of discrimination, an ET is entitled to consider all evidence available from around this date and infer that a disability was present at the relevant time. This case concerned two separate claimants who each brought a number of discrimination claims against one employer. This stemmed from a change in seating arrangements in their place of
...the claimant’s dismissal did amount to a redundancy situation
| Professional in Payroll, Pensions and Reward | March 2021 | Issue 68 36
Made with FlippingBook - Online magazine maker