Hakki v Instinctif Partners Ltd (Formerly College Hill Ltd) (Redundancy : Definition)

Redundancy under Employment Rights Act 1996 section 139 depends on whether the employer’s requirement for employees to perform work of a particular kind has ceased or diminished, and whether the dismissal was attributable to that state of affairs. It does not require a reduction in the volume of work or in overall headcount.

A reorganisation may therefore create a redundancy where an employee’s former role is replaced by materially different roles, even if the work and number of employees increase. Once redundancy is established, the fairness of dismissal remains an overall assessment under section 98(4). An appellate tribunal must not substitute its own view for the Employment Tribunal’s assessment within the range of reasonable responses.

The claimant was employed in a combined HR administrator and personal assistant role. Following a corporate reorganisation, the respondent replaced that role with separate full-time HR adviser and PA to CEO/FD roles. Both required greater responsibility and different skills. The claimant applied unsuccessfully for the new PA post and was dismissed.

The Employment Tribunal dismissed her unfair-dismissal complaint. It held that redundancy was the reason for dismissal and that the dismissal was procedurally and substantively fair. The claimant appealed, contending that the continuing work prevented a redundancy situation and that the consultation and selection process made the dismissal unfair.

The central issue was whether replacing one role with two materially different roles could amount to a diminution in the employer’s requirement for employees to perform work of a particular kind.

1. Appeal dismissed. The Employment Tribunal made no error of law in finding that the claimant was dismissed by reason of redundancy and that the dismissal was fair.

2. Section 139(1)(b) of the Employment Rights Act 1996 requires two factual questions: whether the employer’s requirements for employees to carry out work of a particular kind are expected to cease or diminish, and whether the dismissal was wholly or mainly attributable to that state of affairs. The appeal concerned the first question only.

3. The statutory inquiry is not whether work has reduced in volume, nor whether headcount has fallen. It is whether the requirement for employees to do the relevant kind of work has reduced. The Employment Tribunal was entitled to find that the claimant’s former combined role had disappeared and was replaced by two materially different roles. That conclusion remained available even though the overall work increased and two employees were required to perform it.

4. The finding of redundancy made it unnecessary to decide the respondent’s alternative case that dismissal was for some other substantial reason.

5. On fairness, the Employment Tribunal had considered the short consultation and the absence of the claimant’s interview scores. It was nevertheless entitled to decide, overall, that dismissal fell within the range of reasonable responses under section 98(4). The Appeal Tribunal could not substitute its own assessment. The perversity challenge failed.

6. The respondent’s costs application was refused. Permission to proceed to a full hearing did not automatically preclude costs, but it was a relevant factor in the discretionary assessment and this was not a proper case for a costs order.

• Employment Appeal Tribunal: Appeal dismissed.
• Employment Tribunal, London (Central): The claimant’s unfair-dismissal complaint was dismissed by a judgment for reasons provided on 3 May 2013. The citation was not stated in the judgment.