Case law: Reduced notice period removing chance of suitable alternative employment can make dismissal unfair
Employers making employees redundant should consider whether shortening their notice period (by paying them in lieu of notice) could affect their chances of suitable alternative employment, as this could make their dismissal unfair, a recent ruling has made clear.
This update was published in Legal Alert - September 2016
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A lecturer at a London university had been active in opposing a proposed restructuring, intended to increase the university's reputation for research, and requiring better qualified academics. The lecturer's activity included forwarding a confidential report to students and writing an incorrect and misleading letter to The Lancet about the competence of the manager leading the restructuring.
The university wrote to him saying he was being dismissed by reason of redundancy and, because of his conduct, he was to receive three months' pay in lieu of the notice he would otherwise have been entitled to. This meant his employment ended the next day, on 29 June. The letter notified him there were 'support mechanisms' to help him find a new job.
Two weeks later, the university advertised for seven new lecturers in the same field as him. He applied but was not shortlisted for interview and the university refused to give him feedback on the basis that its obligation to help him find suitable alternative employment ended when his employment ended on 29 June. He claimed unfair dismissal.
The Employment Appeal Tribunal said the key question was whether the advertised posts amounted to suitable alternative employment for which the lecturer had not been considered. It found that the payment in lieu of three months' notice, which meant his employment ended immediately, counted against the employer in this respect. The judge said: "It is one thing to foreshorten the notice period for an employee where there is no potential alternative work for him, another altogether to do so where there is potential alternative work for which he could be considered in accordance with a redeployment policy".
- Employers making employees redundant should consider whether shortening their notice period by paying them in lieu of notice could unfairly affect their chances of being offered suitable alternative employment
Case ref: Missirlis v Queen Mary University of London UKEAT/0038/15/LA
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