Nimalraj v NHS Thurrock Clinical Commissioning Group

For the purposes of paragraph 6 of Schedule 5 to the National Health Service (Clinical Commissioning Groups) Regulations 2012, “redundancy” means being surplus to requirements or no longer needed. The expression takes its meaning from the statutory context and is looser than the definition in the Employment Rights Act 1996.

A dismissal may be by reason of redundancy even though the work itself continues and the employer selects one employee rather than another because of their skills, experience or suitability. The relevant question is whether the requirement for employees to perform work of the particular kind has ceased or diminished, and whether that caused the dismissal. The fact that the post was temporary or non-substantive does not prevent redundancy.

Dr Nimalraj had been employed by the defendant clinical commissioning group as Interim Accountable Officer while another person performed the duties in an acting capacity. After NHS England declined to endorse his appointment as permanent Accountable Officer, the defendant dismissed him when it sought to appoint a substantive office-holder.

His eligibility to stand for election to the governing body depended on whether the dismissal fell within paragraph 6(1)(b) of Schedule 5 to the National Health Service (Clinical Commissioning Groups) Regulations 2012. The defendant maintained that the dismissal was not because of redundancy. The central issue was whether, on the proper construction of “because of redundancy”, Dr Nimalraj had been dismissed because he was surplus to the organisation’s requirements.

1. Declaration granted. The claimant’s dismissal was because of redundancy and therefore did not disqualify him from standing for election under paragraph 6(1)(b) of Schedule 5 to the National Health Service (Clinical Commissioning Groups) Regulations 2012.
2. The word “redundancy” was to be given its ordinary meaning in this statutory context. Paragraph 6 was directed at dismissals which reflected adversely on the individual, rather than mere organisational surplus. It therefore imposed a looser test than section 139 of the Employment Rights Act 1996: the claimant was redundant if he was surplus to requirements or no longer needed.
3. The facts satisfied that test. The CCG had two people occupying Interim Accountable Officer positions although the work could be performed by one. The same conclusion followed when the appointment of a permanent Accountable Officer was considered. The requirement for employees to do work of that kind had ceased or diminished.
4. Applying the analysis in Safeway Stores v Burrell [1997] ICR 523, the claimant had been dismissed; the employer’s requirement for employees to carry out work of the particular kind had diminished; and that state of affairs caused the dismissal. The court rejected the argument that the continuing need for the work prevented redundancy. Section 139 focuses on the employees required to do the work, not merely on the work itself.
5. The fact that the claimant was selected because NHS England considered him unsuitable for the permanent role did not change the character of the dismissal. It explained why he, rather than another employee, was selected. Nor did the temporary nature of the post prevent redundancy, consistently with Lee v Nottinghamshire County Council [1980] IRLR 284.
6. No determination was made on the separate objection under paragraph 7 of Schedule 5, which had been withdrawn before proceedings were issued.