Count the heads — test for assessing whether there is a redundancy

The Tribunal in Servisair UK Ltd v O’Hare had decided that the claimants had been unfairly dismissed, rejecting the employer’s case that the reason for the dismissals was the potentially fair reason of redundancy.The Employment Appeal Tribunal (EAT) overturned the decision because the Tribunal had applied the wrong test for establishing whether there has been a redundancy.

For unfair dismissal purposes, the question ‘is there a redundancy?’ has to be answered in two parts: is there a redundancy situation (business closure, workplace closure or diminished requirements of the business for employees to do work of a particular kind); and is the dismissal attributable, wholly or mainly, to that state of affairs?

The 10 claimants in Servisair UK Ltd v O’Hare worked as dispatchers in airline ground-handling services at Gatwick. In 2011, as a result of an estimated 34 per cent dip in the number of flights, the employer started consultation on a proposal to make 57 redundancies, with 47 alternative positions to be made available…

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