• Redundancy, Conduct or Capability?
  • February 1, 2013 | Author: Alex Denny
  • Law Firm: Faegre Baker Daniels - London Office
  • The EAT has held in Fish v Glen Golf Club UKEATS/0057/11/BI that redundancy can be the reason for dismissal, even where an employer has pre-existing concerns about an employee's capability or conduct.

    Mr Fish was made redundant from his position as club secretary of a golf club. He argued that redundancy had been a pretext for his dismissal and the real reason was his employer's view of his conduct and capability.  In support of this argument, Mr Fish pointed to a management consultant's report which criticised his performance.  He also claimed that the consultation process had been rushed in order to engineer a position where another candidate was appointed to the only post for which Mr Fish could have applied.  The evidence was thoroughly considered.  The Employment Tribunal held that redundancy was the principal reason for dismissal and concluded that the dismissal was fair.  Mr Fish appealed on the basis that the Tribunal's decision was ‘perverse'.  The EAT rejected the appeal and stressed the high threshold when arguing perversity.  Mr Justice Langstaff (EAT President) said that one way of putting it was that, for the argument to succeed, the Tribunal's decision "must be such as to cause astonished gasps from the well-informed observer".

    This case is helpful to employers in that the existence of concerns about performance or conduct does not rule out a redundancy dismissal.  However, the Tribunal will carry out a thorough investigation of the evidence before it decides on what grounds an employee has been dismissed, so employers should carefully document the background to every dismissal so that the principal reason for dismissal is clear.