Redundancy MattersPosted in : Seamus Says - Employment Law Discussion on 11 September 2020
"We've had to make redundancies, and we've offered to put most employees on a list of workers whose services could be called upon if required when things hopefully pick up. First of all, is that lawful, that you can give priority to people that you've just made redundant when vacancies do arise? And secondly, there's one chap whom we don't think is very good. Although he's going due to a downturn in work, so he's a genuine redundancy, we wouldn't want him back. Is it therefore lawful to leave him off the list of people who would be contacted if things improved economically and we need more employees?"
Seamus: Yeah, I like this question. This is very, you know, typical of questions that I get asked from clients in that sort of blunt nature of, "This is where we're at, and then this is what we'd like to do."
So firstly, yes, it's lawful to utilise a list of workers in the way that's set out in the question there in the event of redundancies. There is always that aspect that, you know, nobody likes to do redundancies. There's always that horrible feeling whenever they're being processed. And often the employer will say, "Look, if anything does arise, you know, we may come back to you." I think it's good to use language around, like, that "we may," rather than giving any kind of guarantee, because it's not a guarantee that you can necessarily be held to in any event. I think once there's a termination of the employment, there's a termination of the employment. You know, there's no sort of holding the gate open for a return.
So I think it's important to be clear with employees that, you know, there's no guarantees in this, but if something maybe does come up. It is fine that there's a list to utilise off. It makes sense, also, in a sense that you would have those employees with the skill set, the training that you've provided. You know, there's no issue with that.
Secondly, employers do have a discretion in who they add to that list of workers made redundant and whose services that they could subsequently call upon if required. And that's been said in a very recent case of Aramark Limited and Fernandes. It's a 2020 decision that we've got from the Employment Appeal Tribunal. And the question for the EAT was essentially to decide whether failing to put an employee on one of these lists was an unreasonable act by the employer. And it was interesting that the EAT, they distinguished that, you know, these lists merely open the prospect of work, but it doesn't necessarily mean that there's a right for you to secure that work in the future if you've been placed on the list. And essentially what they said, if placing the employee on the list did not entail a provision of alternative employment, then failing to place them on the list did not involve a breach of the legislation.
So what we can take out of that case is that the failure to add any employee to the list didn't fall within the scope of an unreasonable act, and it's good to get that clarity. Now it is in the EAT decision from across the water, but, you know, these decisions are always helpful and they can be brought to the attention of our tribunal here in Northern Ireland.
So it's always a tricky one, and my advice would always be you're not given any guarantees. And if there is an employee that has been made redundant and that you wouldn't wish to employ again, provided that you've got justification for that, I don't see any difficulty with it arising.
Scott: I suppose the only issue there is that that Aramark case was an unfair dismissal claim. And I suppose if the individual was saying, "You're not putting me on the list because I'm disabled," or, "You've not put me on the list because I'm Catholic," or Protestant, or whatever it happens to be, one of the nine protected grounds, there might be a potential claim there. But it's unlikely to see it if there's lots of people just like that individual.
Scott: But, you know, if you're saying to somebody, "Look, we're not putting you on the list because you're rubbish. But we haven't sacked you because you're rubbish, we're sacking you because you're redundant, your job is gone." Most people wouldn't want to have that conversation. So if they're not on the list and they don't get the letter saying, "There are vacancies, you might want to apply," which is the way it usually happens, you may not know about it in this case. This guy clearly did know about that particular list because it was announced, you know, "We're putting everybody on a list, and you'll get first dibs at coming back to a job." There may be an equality angle, but that's probably it, I would think.
Seamus: Yeah, I would have thought, and that's why, you know, and given the advice, that you can take a note of the employee's competence and skill, or their lack thereof. You know, that's a justifiable basis for dismissal at the end of the day. But I think that you should be cautious around issuing dismissals on the basis of competence if it can give rise to a potential disability discrimination claim, for instance.
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