Claimant's redundancy deemed unfair after employer failed to offer "sickness absence cover" as alternative employment

In the recent case of Miss C Davies v Neath Port Talbot Council and Governing Body of Sandfields Primary School: 1600320/2023 an Employment Tribunal has considered the fairness of a redundancy procedure.

The redundancy procedure arose in response to a fall in pupil numbers, leading to a budget shortfall. The School ended all temporary contracts without replacing them, but there was still a need to reduce the number of teaching staff.

The Tribunal found the following in respect of each stage of the redundancy process:

Consultation

The Claimant contended that consultation had not started at a formative stage. At a meeting on 29^th March 2022 the School noted that a redundancy would be required. The Union had not been consulted at that stage. However, the Tribunal found that this was only a provisional view and was subject to consultation. Later that day the School shared information with staff and the Unions. The Tribunal criticised the School's decision to share the skills audit with staff before sharing it with the Unions. However, the Unions were able to raise any concerns about the Skills Audit before completion by staff. Overall the Tribunal decided that consultation had been fair.

Pool for selection

One teacher on a temporary contract had been retained during September 2022, after the Claimant's dismissal for redundancy. The Claimant argued that this individual should have been placed in the pool for selection. The Tribunal rejected this argument because during the selection process, the temporary contract had been due to end in August 2022 and so there was no point including this individual in the pool for selection. However, the renewal of this temporary contract was relevant to the issue of alternative employment.

Alternative employment

One teacher had commenced a sickness absence during March 2022. Prior to the Claimant's dismissal it was clear that sickness cover would be required in September 2022. As it transpired the teacher did not return and a permanent replacement was eventually required. The School did not consider the Claimant for sickness cover during September 2022 due to concerns that they would then need to provide notice until December 2022. However, the Respondent did not seek HR advice and did not consider offering a short-term contract to the Claimant. As such the School extended another teacher's temporary contract, which had been due to end in August 2022. The Tribunal decided that the School should have offered the Claimant a short-term contract at the very least, noting that this failure had caused a significant detriment to the Claimant given that the temporary cover became permanent when the absent teacher did not return.

Selection process

The Claimant had some criticisms of the scores she received. However, Tribunals are reluctant to interfere with specific scores unless there is a "glaring inconsistency." Although the panel could have considered additional marks for certain criteria the Tribunal were satisfied that the scoring was reasonable.

The Claimant also criticised the School's decision to give a lower weighting to Welsh language skills in comparison with English and Maths. The Tribunal decided that as the School is an English Medium School, it was not unreasonable to give a higher weighting to Maths and English.

Summary

This case shows that even if employers follow a fair redundancy process, a dismissal can still be unfair if proper consideration is not given to alternative employment. HR and legal advice should be sought if there are any doubts about temporary cover and notice periods to avoid any risk of unfair dismissal.  

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