Redundancy existed even though replacement already appointed

According to the EAT, the answer is yes. In a fascinating decision, the EAT has upheld a Tribunal decision, in Malekout v Ahmed and others, that an employee was dismissed for redundancy even though his replacement had already been appointed. The slightly unusual facts were that the Claimant, a practice manager at a medical centre, had been under performing, and subsequently threatened to hand in his notice. The employer was concerned that it would be left without a practice manager, so it engaged another individual as a trouble shooter to sort out various problems in the workplace, and in case the Claimant did indeed leave. The performance of the new person, Mr Kader, highlighted a number of serious performance issues with the Claimant and more and more of the Claimant's work was handed over to Mr Kader, who was then kept on permanently. The employer subsequently dismissed the Claimant by reason of redundancy, saying that there was no longer a need for him to carry out that work because there were 2 people doing 1 person’s job.

The Claimant tried to allege that the dismissal was because he had made protected disclosures, which was rejected, and the Tribunal concluded that he had been dismissed for redundancy.

The Tribunal, upheld by the EAT, nonetheless found the dismissal to be unfair because no consultation had taken place and the decision to dismiss was predetermined with the appointment of Mr Kader. The Claimant’s award was however reduced by 100% on the basis that it was inevitable he would have been dismissed anyway, once his performance failings came to light.

This is a strange decision, even more so that it was upheld by the EAT, since the diminished requirement to undertake the work appears to have been caused solely by the fact of the employer recruiting someone more competent to do the Claimant’s job.

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.