Dismissal of Underperforming Employee was Redundancy

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Posted on 08 Apr 2013

An employee was dismissed by reason of redundancy even though performance issues had played a part.

In Fish v Glen Golf Club, F was dismissed, purportedly by reason of redundancy.  He was one of four people made redundant following a management consultant’s recommendation that there should be a substantial reduction in the wage bill.   He claimed unfair dismissal, arguing that the real reason for his dismissal was not redundancy but the fact that the club was critical of him.  He maintained that in the 15 months leading to his dismissal his position had been constantly undermined by those in authority.

During the employment tribunal proceedings, it emerged that there were two versions of the management consultant’s report, an edited version which F was shown during consultation and an earlier version which was highly critical of his performance which had not been shown to him.  

The employment tribunal ruled that the principal reason for F’s dismissal was redundancy and the criticisms of him were background to the dismissal rather than the reason for it.  The EAT upheld the tribunal decision.  The tribunal had been aware of the rival explanations for the dismissal but decided that redundancy was the principal reason.  The tribunal had been alert to the fact that just because there is a redundancy situation it does not mean that a dismissal is necessarily by reason of redundancy.  

This case demonstrates that the existence of concerns about performance or conduct does not preclude a dismissal from being by reason of redundancy where there is a genuine redundancy situation.   Where there is more than one reason for dismissal, the tribunal must identify the principal reason.  In this case the principal reason for dismissal was found to be redundancy and the fact that performance issues may have played a part made no difference.   However, tribunals will always be alert to employers using redundancy situations as a pretext for dismissing an under-performing employee and will examine the evidence very carefully before deciding on the real reason for dismissal.  

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