Redundancy and poor performance
Can an employer make an employee redundant fairly, even if there are also issues with the
employee’s capability or conduct.
In the recent case of Fish v Glen Golf Club, the EAT held that the principal reason for the
dismissal of an employee was redundancy, despite long-standing concerns over his capability
and conduct.
The Facts
Mr Fish was employed as the Club Secretary of the Glen Golf Club (“the Club”). He was
dismissed in April 2008, purportedly by reason of redundancy. He maintained that his dismissal
was in reality related to the Club’s view of his capability and conduct. His opinion was that
redundancy was the pretext for his dismissal or at least the opportunity to effect his dismissal for
reasons other than genuine redundancy.
In 2006, the Club had taken out a substantial loan to finance the building of a new clubhouse.
Once the loan needed to be serviced, the Club started making significant losses. It therefore
sought a review from a management consultant, Mr Whiteford, whose report dated 14 February
2008 recommended reducing the salary bill substantially. He suggested senior roles amongst the
staff should be removed, including the role of Club Secretary.
The Club concluded that restructuring was necessary and met with Mr Fish to consult with him
regarding the potential redundancy of his role. At the end of the process, Mr Fish was dismissed
on the basis that his work could be carried out by others at the Club, including unpaid committee
members and lower paid managers. Mr Fish’s redundancy was one of four redundancies made
at this time and his appeal against his dismissal was rejected.
In the meantime, Mr Fish was sent application details for the new position of office manager. The
deadline for applications was 10 days after his dismissal but he missed this deadline. By the time
he applied for the post, it had already been filled by another employee at risk of redundancy.
Mr Fish made a claim for unfair dismissal to the Employment Tribunal. He maintained that in the
15 months leading up to his dismissal, there had been a constant undermining of his position by
those in authority at the Club. He also relied on the rushed nature of the consultation process
and the hurry to appoint someone else to the alternative post of office manager.
In addition, during the process of disclosure of documents relevant to Mr Fish’s claim, the Club
had reluctantly disclosed two copies of the report drafted by Mr Whiteford. The first was dated 14
February 2008 and contained four paragraphs critical of Mr Fish, in particular reciting what one
committee member had to say about his abilities and capabilities. The edited version dated 29
February 2008 did not include those paragraphs. However, it did include a sentence that
suggested that the same committee member had significant regard for the qualities and abilities
of Mr Fish. The edited report and the Club’s reluctance to reveal it fuelled Mr Fish’s suspicion
that the real reason for his dismissal was not redundancy.
Continued...
However, the Tribunal found that Mr Fish had been fairly dismissed by reason of redundancy. He
appealed to the Employment Appeal Tribunal (EAT) arguing that the Tribunal’s decision was
perverse.
The EAT’s Decision
The EAT dismissed the appeal. It held that the Tribunal was entitled to find, weighing up all the
evidence, that the principal reason for dismissal was redundancy, rather than the concerns
regarding Mr Fish’s capability and conduct.
The EAT found that the Tribunal had correctly addressed the law which states that an employee
shall be taken to be dismissed by reason of redundancy if the dismissal is “wholly or mainly”
attributable to a redundancy situation. The Tribunal had considered the alternative reasons put
forward by Mr Fish for his dismissal, i.e. capability or conduct. However, the Tribunal had made
a finding on the available evidence that the criticisms of Mr Fish were “ancillary”. They were not
the reason (or at any rate not the principal reason) for the recommendation by Mr Whiteford that
the position of Club Secretary be abolished. The principal reason for the recommendation was
the financial pressure on the Club to cut costs.
In relation to the differences between the two reports by Mr Whiteford, the second version (which
was edited to remove some of the criticisms of Mr Fish) was produced for the Club’s bankers.
The Tribunal accepted Mr Whiteford’s evidence that the reason for removing the criticisms was
because the report was being shown to a third party (i.e. the bank). The Tribunal concluded that
there was no sinister motive for the editing of the second report. The EAT held that this was a
finding of fact that was open to the Tribunal.
The EAT can only overturn a Tribunal’s decision on the grounds that it was perverse. This is a
high hurdle to surmount and only applies in exceptional cases. As the EAT put it in this case, the
Tribunal decision “must be such as to cause astonished gasps from the well-informed observer”.
This was not the case here and therefore the EAT dismissed Mr Fish’s appeal.
Guidance for Businesses
This case very much turned on the findings of fact made by the Tribunal at first instance. The
EAT itself stated that, based on the evidence before it, the Tribunal might also have been able to
come to the conclusion that the principal reason for the dismissal was not redundancy.
The case therefore provides a timely reminder that employers must be very clear about the
reason for dismissal during the dismissal process, particularly where there are possible ancillary
reasons for the dismissal. If the reason is genuine redundancy then this must be made clear to
the employee and matters of performance or conduct should not be raised (unless they form one
of the objective selection criteria used in any redundancy selection process).
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Clive Dobbin
David Roath
Stephanie Merritt
Jane Biddlecombe
Kathryn Casey-Evans
Claire Merritt
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