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Redundancy, sickness absence and age discrimination - things you really need to know now

The Employment Appeal Tribunal (“EAT”) recently issued a significant decision in the case of Alexander v Brigden Enterprises Ltd, concerning the provision of information to employees at risk of selection for redundancy and the effect of the Statutory Dismissal Procedures (“SDP”). Those of you planning redundancies should take note! As you will be aware, under the SDP a meeting with an employee regarding their potential dismissal should not take place until the employer has informed the employee of the basis for its proposal to dismiss the employee. What is not so clear is exactly how much information an employer is required to give to its employee in any given circumstance. In the Alexander case, Mr Alexander and his colleagues were informed that ten of their number were to be made redundant, due to the financial difficulties that Brigden was experiencing. After an initial selection procedure had been undertaken, those employees with the lowest scores were invited to consultation meetings and informed that their jobs were at risk. Two further consultation meetings took place. However, it was only at the very end of the final consultation meeting, and after they had been told that they were being made redundant, that the employees were informed of their scores against the various selection criteria; no opportunity was afforded to the employees to comment on these scores.
The employees appealed against their dismissals and Mr Alexander subsequently brought a claim against Brigden for unfair dismissal. Mr Alexander argued that his dismissal was automatically unfair, by reason of the fact that he had not been provided with the “basis” for the belief that he was redundant prior to the dismissal meeting, as he was not made aware of his scores or the scores of the other employees before that meeting.

On appeal to the EAT, the Tribunal found in favour of Mr Alexander, stating that an employer is obliged to provide information both as to why the employer considers that there is a redundancy situation, and also why the employee has been selected for redundancy prior to the consultation meeting taking place. This meant providing the employee with information regarding the selection criteria and his scores. Whilst this may be an extreme case, as the scores were not given to the employee until after he had verbally been given notice of dismissal, there will be other cases in which the employer may only give the employee his scores at the meeting, asking the employee for an immediate response. In these circumstances, an employer may still be found to have unfairly dismissed the employee. The SDPs were designed in order to ensure that employees attending dismissal meetings understand why they are at risk of being dismissed, in order to afford them a real opportunity to air their views and resolve the matter satisfactorily. In order to do this, employees need a reasonable period of time in which to consider the information being provided to them, to allow for a considered response. Make sure that your redundancy time table allows for this!

For further enquiries please contact Nick Hobden (view full profile) on 01892 701326 or email nhobden@ts-p.co.uk.

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