Case Law update on redundancy

A couple of recent cases have explored the issue of redundancy. We have set out a summary of these below.

Readman v Devon Primary Care Trust

The EAT concluded in this case that an employee can act reasonably when refusing a suitable alternative offer of employment, even when a reasonable employee would have accepted the offer.

When considering whether an employee had forfeited their right to redundancy pay by refusing an offer of suitable alternative employment, the test is not to import the band of reasonable responses test that applies in unfair dismissal claims, but rather to consider ‘whether this particular employee in this particular situation acted reasonably in refusing the offer of employment.’

This is not a new test. Rather, the EAT have reinforced that the test is both objective and subjective. The objective part of the test looks at whether a reasonable person would find the role to be broadly similar and therefore suitable. The subjective part looks at whether the particular employee has particular reasons why the alternative role is not suitable for them.

Osoba v Hertfordshire Police

The Claimant brought an age discrimination claim against his employer on the basis that whilst carrying out a staff re-organisation, the Respondent’s officer created a points- based system to determine which employees should be dismissed. The Claimant argued that they had deliberately manipulated this system so that he, due to his age and the fact that he was close to retirement, would be dismissed.

In discrimination claims the usual burden of proof reverses so there is a presumption of there having been discrimination, which the employer must displace. Here the Claimant tried to argue that the fact that the employer could not provide an adequate explanation for their scoring system was evidence in support of their system being discriminatory on the grounds of age.

The EAT rejected the Claimant’s argument and held that a shambolic redundancy scoring system is not, on its own, enough to make the selection for redundancy discriminatory on grounds of age. The EAT said that this was an honest attempt by the employer to be fair and that, in reality, there may be cases where the employer can say nothing more than ‘I got it wrong and take responsibility for that.’

This case highlights that having poor procedures in place will not in itself be enough to establish that a person has been treated unfairly or that there has been discrimination of that person.

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