Q. I run a small engineering firm and as a result of the economic downturn I have had to make a driver redundant. He is now claiming damages for " unfair dismissal" on the basis that I didn't warn or consult him beforehand. How can it be unfair to make someone redundant when you have no work for them?
A. There is a danger that a genuine redundancy situation can be classified as being an unfair dismissal (at law) if not handled correctly. When undertaking a redundancy review an employer must:
- warn and consult employees about the proposed redundancy;
- adopt a fair basis on which to select for redundancy; and
- search for and, if it is available, offer suitable alternative employment within its organisation.
If you did not follow the above steps then your driver is likely to succeed in his unfair dismissal claim.
Q. I accept that I didn't follow the above procedure but, even if I had done so, it would have resulted in the same outcome. Surely that is the relevant point?
A. That is a relevant factor which a Tribunal would take into account. However, they are still likely to find that the driver was unfairly dismissed, although you could argue strongly that any damages awarded should be reduced (potentially to zero) to reflect the probability that consultation would have made no difference to the outcome.
Employment law is becoming an increasing technical area and it is more vital than ever that employers and employees alike take expert advice as to their respective positions. Should you have any queries regarding an employment issue please contact Keith Swan of Patterson, Glenton & Stracey Solicitors by email at ks@pgslaw.co.uk or by telephone on 0808 231 7043. Patterson, Glenton & Stracey have provided legal advice to the people of South Tyneside for over 125 years. For details of their full range of services and to view previous Gazette articles please log on to www.pgslaw.co.uk.
