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• Speaker #0

  Today in the Lefebvre HR and Employment Law podcast, we're discussing the judgment in the case of Hendy Group Limited and Kennedy, in which the Employment Appeal Tribunal was asked to consider whether an employer failed in its duty to look for suitable alternative employment for a redundant employee. In this case, Kay, who had over 30 years experience in the new and used car sales industry, commenced work for a well-known car dealership in 2013. Most recently, Kay worked as a sales trainer in the Employers Training Academy, but he had previously successfully managed a new car dealership on its behalf. In 2020, as a result of the COVID-19 pandemic, a redundancy situation arose which ultimately resulted in Kay being selected for redundancy and dismissed. Although Kay did not dispute the employer's genuine need for redundancies, nor the fairness of his redundancy selection, an employment tribunal ruled that his redundancy dismissal was unfair. because the employer had failed to give adequate, appropriate or fair consideration to the possibility of Kay securing suitable alternative employment. The tribunal determined that had he been given the appropriate support, Kay would likely have secured suitable alternative employment within the group, and therefore declined to make a pulkey reduction in Kay's compensation. That is, declined to make a reduction in the compensation awarded to reflect the percentage chance that had a fair process been followed, Kay would perhaps still have been dismissed. The Employment Appeal Tribunal upheld the Tribunal's decision on appeal. The Tribunal had been entitled to hold that the dismissal was unfair because the employer had failed to discharge its duty to consider suitable alternative employment. Although numerous internal vacancies arose while Kay was working his notice period, the employer failed to give Kay any assistance or help to secure one of those vacancies. Particular failings on the part of the employer and its HR team in the handling of Kay's Search for suitable alternative employment included. Telling Kay to search for internal vacancies himself with no additional support. HR not notifying the hiring managers that Kay was at risk of redundancy. Forcing Kay to compete for vacancies alongside external candidates without any preferential treatment. Rejecting Kay for a sales role, for which he was amply qualified. And thereafter the recruiting manager questioning Kay's motivation in applying for those roles. Despite having an extensive sales background, Kay was actively discouraged from making further applications for sales roles and Kay subsequently receiving an email from HR stating that he would not be successful in any future applications for sales roles. The Employment Appeal Tribunal held that this email indicated that the employer had determined that Kay would not be successful in any applications for any other roles within the group, an approach which the Tribunal had been entitled to criticise. The Employment Appeal Tribunal also ratified the tribunal's decision not to make a pulkey reduction from Kay's compensation. This decision is a useful reminder that during any redundancy process, an employer has a proactive duty to consider the possibility of suitable alternative employment. This duty goes beyond merely signposting vacancies. The potentially redundant staff should be provided with help and assistance to apply for vacancies and secure redeployment. and hiring managers should be made aware of the fact an internal candidate is at risk of redundancy. Look out for further episodes in this series to stay up to date on all things HR and employment law related.