22 January 2013
Employee facing redundancy not automatically entitled to be kept on if another employee resigns
Employers are not obliged to keep a poor-scoring, redundant employee on if another, higher-scoring employee in the redundancy pool then resigns, the Employment Appeal Tribunal has ruled.
In the case of Asif v Elmbridge Borough Council, an employee in a pool of four was made redundant after the other three were chosen to fill three new posts. She scored significantly worse than the others during the selection process (which had been agreed by her trade union).
However, during her notice period one of the other employees resigned, so she argued that she should be offered one of the new posts. The Employment Appeal Tribunal (EAT) disagreed and said the new posts were different from the old posts, and her poor scores during the selection process meant it was reasonable for her employer to decide she was unsuitable for any of them. It made no difference that there had been no formal 'pass mark' for the new posts.
The Employment Tribunal had earlier considered the possibility of a three-month trial period in the new post but rejected it; the EAT found there was no reason to overturn that decision. Overall, there was still a redundancy situation despite the other employee having resigned.
Associate in the employment law practice, Chris Brazier, recommends employers should ensure they are clear when posts to be filled following a redundancy procedure are new posts or simply a reduced number of old posts.
He concludes: "Employers should also consider the rights of employees selected for redundancy if an employee appointed to a new post then resigns, including the possibility of setting a formal 'pass mark' required before appointment to a new post."