In Hendy Group Ltd v Mr D Kennedy [2024] EAT, Mr Kennedy was employed by Hendy Group Ltd (“the Employer”) as a sales trainer before he was fairly selected for redundancy. The Employer informed Mr Kennedy that there were open positions within the business and that he could apply for these. However, this was on the same basis as any other internal or external applicant. The Employment Tribunal (“ET”) therefore held that there were no genuine, positive steps taken by the Employer to help Mr Kennedy find an alternative role, despite there being multiple jobs available. This constituted unfair dismissal because the Employer did not try to avoid his dismissal by reason of redundancy.
Mr Kennedy was required to return his work laptop and so did not have any access to internal emails or intranet. This meant that his access to job opportunities with the Employer was reduced further to the same as any other member of the public. Mr Kennedy did apply for a role which matched his previous experience, but the interviewer felt that he was “simply keen on remaining employed” and so was not the right fit. He then unsuccessfully applied for a second role, again with no proactive assistance from the Employer, including HR. The Employer provided him with a letter notifying him of the termination of his employment in which there was no reference to the Employer assisting with finding an alternative role.
He continued applying for roles at the Employer and some weeks later it emailed his now inaccessible internal email to inform him that the business was wary of his motivations for applying for sales roles and so would not be accepting his applications for any sales role within the business. This is despite Mr Kennedy having significant experience in sales.
The Employer appealed, stating that the incorrect test regarding alternative employment was used. The Employment Appeal Tribunal (“EAT”) clarified that the question is whether it was reasonable to dismiss this particular employee for the potentially fair reason of redundancy.
In the absence of any evidence to suggest otherwise, it held that the Employer did “nothing” to consider alternative employment, despite being a large business with many resources. The EAT noted that steps that a reasonable employer could take include:
- Speaking to employees about where their interests might lie
- Assisting in identifying other roles
- Encouraging conversations about different roles even if that meant demotion
Therefore, the Employer’s approach was one which no reasonable employer would have adopted, and the appeal was dismissed. As the dismissal was unfair, the compensation award of £19,566.73 was upheld.
Employers are required to take genuine, proactive steps to avoid redundancies, which includes the positive obligation to assist with finding suitable alternative employment within the business. Where such steps are taken, it is important that these are well-documented and reference to genuine consideration of alternative employment is made in the notification of dismissal by reason of redundancy.
