Everyone knows that an essential part of a fair dismissal for redundancy is proper consideration of alternative employment, yes? But what does that mean in practice for the employer? 

In Hendy Group -v- Kennedy, the Employment Appeal Tribunal has taken a look at this principle that everyone knows about and pulled out of it some faintly concerning lessons as to the extent of the obligations which it imposes. 

After a long career in car sales, Mr Kennedy found his happy place as a trainer of other car salespeople for Hendy’s academy. He was good at his job, as you might expect after so long in Sales, and apparently recognised for his commitment and relentlessly positive disposition. 

Hendy’s need for car sales trainers was skittled by the pandemic, and Kennedy very maturely agreed not just that this was the case, but also that in Hendy’s shoes, he too would have selected himself out of those at risk. His unfair dismissal claim rested entirely on the assertion that Hendy had not done enough to find him another role. The ET agreed, but Hendy challenged this – the Employment Judge had committed the rookie error of deciding the case on the basis of what he would have done if he were Hendy, it said, instead of considering neutrally whether Hendy’s actions had fallen within or outside the old range of reasonable responses.

The EAT considered the largely undisputed facts around Kennedy’s job search which had been found by the ET and disagreed. Hendy had fallen short of what an employer might reasonably be expected to do in so many small respects that the cumulative effect was pretty much the opposite, not in intention but certainly in effect – actively placing obstacles in the way of Kennedy’s redeployment. 

Hendy is a multi-brand, multi-site new and used car dealer with operations across the South Coast. When Kennedy was put at risk, it had multiple Sales vacancies across its network. As a result, he must have thought that the omens for redeployment were good and both the ET and EAT agreed that if it had pulled out the necessary fingers, Hendy would have been able to find him something. 

Accepting that what constitutes reasonable steps for such an employer will go further than for a smaller or more specialist organisation or where the vacancy picture is less rosy, the EAT sucked its teeth on a number of issues which may be of general application:-

• “I do not consider”, said the Judge, “that telling [Kennedy] that he could apply for posts open and advertised to the world, and on the same basis as every other applicant, to be “help””
• It was therefore not appropriate that Kennedy “would be as any other applicant, internal or external”. That does obviously beg the question of the extent of any obligation on the employer to provide some level of priority or preference to the potentially redundant employee over either external candidates or other internal applications who were not at risk in their existing roles but fancied a move anyway. In particular, does this mean that an employer must prefer the at-risk employee for a particular vacancy even though objectively better-qualified candidates did or might exist elsewhere? The EAT did not go quite that far, but it did suggest that while this would usually be a matter for the employer’s discretion, the employer’s reasons for preferring someone else needed to be material and objective. It was consequently not impressed by the suggestion that Kennedy had “issues” with a manager at one of the sites he applied to – the “issue” was not explained and the manager who was notionally the blocker gave no evidence. 
• In addition, Hendy had rejected Kennedy for a couple of sales roles on the grounds that he lived an arduous commute from one of them, and that in a pre-pandemic world with no “spectre of redundancy” over him, Kennedy had once told a colleague that he much preferred training in Sales to Sales itself, and therefore (in Hendy’s stated view) was perhaps not as body-and-soul committed to that role as he might have been. The EAT did not say that an employer cannot take into account at all the likely longevity in the new role of the at-risk employee, but it was very clear that it could not hold against him a casual remark about career preferences made in what was in effect a different world. There was nothing in Kennedy’s history, either with or before Hendy, which gave it grounds to say that he could not or would not get stuck into the new role or new commute with the same positive attitude as he had applied throughout. 
• Potential hiring managers were not all given a reasonable opportunity to form their own views of Kennedy. One was put off by unofficial and unwarranted feedback from another, and Hendy’s HR function came in for particular flak from the EAT through its telling Kennedy that those notional concerns about his true commitment to a Sales role would bar him from any such role across their entire network.
• So far as the positive help expected of the employer was concerned, it was not enough just to wave Kennedy off to the internal jobs board with instructions to fill his boots. There was no discussion with him as to the sort of role he was after, whether he might take a relocation or demotion, what sort of training might be necessary to recognise his recent absence from front-line Sales, etc. [The irony of the situation — that to the extent that Kennedy might have benefitted from Sales training, it would have been Kennedy who provided it — did not escape the EAT]. 
• Part of the problem was that the managers who might most usefully have been having those conversations with Kennedy all assumed that somebody else was doing so. Especially for multi-sited employers, the sensible business will have a central person (usually but not necessarily in HR) charged with keeping things moving.
• As much as anything else, Hendy went down on the appeal because it did nothing which looked either to Kennedy or the EAT as though it was really bothered whether he got another role with it or not. Visible effort is required, express and repeated offers of assistance, and above all, dialogue – is there anything else we can help with, who would you like us to talk to, etc? It is hard to discern from the EAT’s decision whether individually any of these issues would have been enough to cost Hendy the claim by themselves. Aside possibly from the HR letter, probably not, and some of the criticisms were indeed fairly minor in nature – for example, that interviewing managers were not told that Kennedy was at risk. That resurrects the question of whether those at risk should be better treated than candidates who were not – if not, why was this an issue? But I do not see this case as requiring the employer to retain a potentially displaced employee in preference to a perceptibly better candidate, and the more senior the role and the more important is capability and “fit” to doing it successfully, the less this is the case.