Aramark (UK) Ltd v Fernandes

Under Employment Rights Act 1996, section 98(4) concerns whether dismissal was reasonable and the availability of reasonable alternatives which would avoid dismissal. An employer's failure to offer an employee a place on an ad hoc workers' list does not fall within the provision where inclusion offers only a prospect of work, creates no employment relationship and does not avert redundancy dismissal. Section 98(4) does not confer a right to measures which may mitigate the consequences of dismissal without providing alternative employment.

The employee was dismissed after his post became redundant. The parties accepted before the Employment Tribunal that a redundancy situation existed.

The employer maintained a list of persons who could be called upon for ad hoc work. Persons on the list were not employees and had no entitlement to work. The Employment Judge held that the employer acted unreasonably under section 98(4) of the Employment Rights Act 1996 by failing to place the employee on that list, and upheld his unfair-dismissal claim.

The employer appealed. The central issue was whether the failure to offer a place on the list could make the redundancy dismissal unreasonable within section 98(4).

1. Appeal allowed; claim dismissed. The Employment Tribunal erred in treating the failure to place the employee on the ad hoc workers' list as a breach of section 98(4) of the Employment Rights Act 1996.

2. Section 98(4) addresses the reasonableness of the employer's decision to dismiss. It includes consideration of reasonable alternatives to dismissal, but its statutory purpose is directed to avoiding the dismissal itself.

3. Inclusion on the list would not have prevented the employee's dismissal for redundancy. It gave only a prospect of ad hoc work. It did not provide employment, whether in a different or subordinate role, and imposed no obligation on the employer to offer work.

4. Accordingly, the employer's failure to place the employee on the list was outside the scope of section 98(4). The provision does not create a statutory right to an alternative measure which might mitigate the adverse effects of dismissal but does not amount to alternative employment.

5. The EAT did not determine the employer's alternative evidential submission concerning whether suitable ad hoc work was available at the time of dismissal.

• Employment Appeal Tribunal: allowed the employer's appeal and dismissed the claim: [2020] UKEAT 0028_19_1303.
• Employment Tribunal: held the dismissal unfair because the employer had unreasonably failed to place the employee on its ad hoc workers' list. No citation is stated in the judgment.