Redundancy

ERA 1996, s 203(1)

Gen rule = any attempt to contract out of ERA 1996 = void

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ERA 1996, s 136(1)

Dismissal = (a) termination of employee’s contract by empoyer with or w/out notice; (b)expiry of fixed-term contract w/out renewal; (c)constructive dismissal

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ERA 1996, s 138

Rejection of n alt job during or after trial period constitutes dismissal

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Morton Sundour Fabrics v Shaw (1966)

To terinate contract the notice must either specify date or contain material from which is pos’y ascertainable – nothing done by empoyers operated to terminate contract and it would follow that actual termination = notice given by S and not any actio

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ERA 1996, s 142

Employee can leave early without jeopardising entitlement, provided that statutory notice period he serves stemployer with counter-notice stating intention to leave early – if accepted, employee remains entitled to redundancy; if not, employer must s

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Burton Allton & Johnson v Peck (1985)

Employee told by employer wuld be in own intersts to accept redundancy there upon volunteered for redundancy – held: he had been dismissed

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Birch & Humber v The University of Liverpool (1985)

CA: empt not ended by dismissal but rather mutual agreement re retirement scheme

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ERA 1996, s 139(1)

Employee dismissed by redundancy if dismissal wholly or mainly attributable to : (a) fact that his employer has ceased or intends to cease(i) to cary on business for purposes which employee employed;(ii)to carry on that business in place where employ

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ERA 1996, s 139(1)(b)

Fact that reqts of that business: (i) for employees to carry out work of a particular kind, or (ii) for employees to carry out work of a particular kind in placer where employee employed have caesed or diminished or are expected to cease or diminish

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Moon v Homeworthy Furniture (1977)

Tribunal may not go behind decision to inquire whether actually nec to close down

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UK Coal Mining v NUM (2008)

EAT: statutory reqt for an employer to consult workforce ahead of redundancies included reqt to consult about reasons for closure of a business

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ERA 1996, s 18(2)

Continuity of empt preserved if employer leaves business and someone takes over

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ERA 1996, s 162(2)

Half weeks pay each year worked from 18-22; 1 week each year worked between 22-41; 1.5 weeks pay each year after 41

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ERA 1996, s 162(3)

Most recent 20 years (only) are taken into account when calculating

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ERA 1996, s 162(6)

Statutory redundancy pay entitlement = in addition to contractual entitlements

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ERA 1996, s 138

If terms of new contract differ wholly or in part from old contract, there will be a trial period of 4 weeks, or such longer period as parties agree where training is reqd

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ERA 1996, s 138(2)(b)(i)

If employee resigns during 4 period, he will be treated as entitled to a redundancy payment under old job if he can show that new empt was unsuitable etc

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ERA 1996, s 138(2)(b)(ii)

If employer dismisses within 4 week period, employee will be treated as dismissed for redundancy under old job

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Fuller v Stephanie Bowman (1977)

Strong objn to sex shop was relevant as test=subj – however, would not be mistaken as pros at 53/decied to view premises:entrance to upper part at side of sex shop and part of it/no pros used other floors;dislike not enough/more around London

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John Fowler v Parkin (1975)

Unreasonable refusal- test is subj, tribunal may consider personal factors e.g. health, family commitments etc

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Readman v Devon PCT (2013)

Suitability = obj test; reasonabkle refusal = subj

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Cambridge and District Co-op v Ruse (1993)

Qn of whether offer is of suitable empt is primarily matter of obj fact for tribunal to assess; perceived loss of job status-unsuitable

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Sheppard v NCB (1966)

Generally, drop in pay or earning will make new position unsuitable – though not always

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Taylor v Kent CC (1969)

Headteacher demotion made empt unsuitable

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Standard Telephones and Cables v Yates (1981)

All aspects of job can be taken into account, including e.g. level of skill involved and not only the pay and conditions

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ERA 1996, s 141

If employer make employee offer within 4 weeks dismissal, and new contract is either same work or suitable altve empt, the employee will be disentitled to redundancy if unreasonable refuses it

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Williams v Compare Maxim (1982)

Here, entirely subj criterion, subjy applied, allowing scope for decision to be made on basis of personal likes and dislikes – held: unreasonable

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British Aerospace v Green (1995)

Employees not generally able to see comparators’ assessments

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Rolls Royce v Unite the Union (2009)

Length of service is justified re selction process as a ‘tie-breaker- in a redundancy selection process – however, here, it was used as one criterion amongst several

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Brook v Haringey LBC (1992)

Even if discy, LIFO could be justified

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Clarke v Eley (1983)

Although, selecting part-timers before full-timers = held: indirect sex disc’n

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Where proposals to make more than 20 redundancies, employer must consult: (a)re 100 dismissals proposed, at least 90 days; (b) otherwise at least 30 days before first dismissal

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Williams v Compare Maxim (1982)

As much waring as possible;consult;obj’ve selection prcodure;ensure procedure followed;seek to offer altve empt

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Murray v Foyle Meats (1999)

Correct approach = apply words of statute and ask whether dismissals were ‘attributable’ to diminution in work – thus, Mr M redundant

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Hindle v Percival (1969)

Not redundant because slow

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Nelson v BBC (1980)

Although diminution in spec work Mr N actually doing, there was no such diminution in work of producers and editors generally, which was the work he was contracted to do

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Safeway Stores v Burrell (1997)

Statutory test

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Murphy v Epsom College (1984)

‘bumped redundancies’ = consistent with Safeway (similar in Carry All Motors v Pennington (1980))

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Church v West Lancashire NHS Trust (1998)

Proper test = blend of contractual and functional test

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North Riding Garages v Butterwick (1967)

Job function test – employees have duty to adapt to new metyhods and tech’s and only if new methods alter nature of the work reqd may they be redundant

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High Table v Horst (1997)

Factual test – if employee had always worked in one place it would be contrary to common sense to suggest that the place of work included other places beacsue of mobility clause (however, probs in Home Office v Evans (2008))

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O’Brien v Associated Fire Alarms (1968)

Contractual test – impleid that they would work at places within reasonable daily traveling distance of their homes

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Nationwide Building Society v Benn (2010)

Here, both constructive dismissal and alteration where downgrading of roles and bonus schemes were less beneficial

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Redundancy

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