In Fisher v Hoopoe Finance Ltd, the EAT has held that an employer had not
given sufficient financial information regarding possible alternative employment
within the company, to a potentially redundant employee.
Redundancy is a potentially fair reason for dismissal but an employer is required
to provide appropriate information regarding alternative jobs within the same
group as part of following a fair redundancy procedure. Mr Fisher was employed
by Hoopoe as a New Business Manager on a salary of £40,000 per annum.
During the redundancy procedure, Mr Fisher was informed of several alternative
jobs, including the position of Sales Account Manager with Southern Finance,
a new group company. He also contended that he had been told his job was safe
but that if he was made redundant then he would be offered alternative employment.
Mr Fisher was made redundant in April 2004 and the position of Sales Account
Manager with Southern Finance, which he had been alerted to, was then advertised
a month later at a salary of £40,000. He submitted that if he had known
this job attracted this level of salary then he would have expressed an interest
in it or indeed accepted the position. However, the Employment Tribunal rejected
his claim and held that the employer had discharged his obligations by simply
notifying Mr Fisher of the vacancy, as Mr Fisher had not then expressed any
interest in the position.
In overturning the decision of the Employment Tribunal, the EAT noted that
where an employer is in a position to offer suitable alternative employment,
then he must provide sufficient information to allow the employee to make a
realistic decision whether to take the new job. According to the EAT, in most
cases, such information will include the financial prospects of the alternative
position.
The EAT further noted that in some circumstances, employers will not be able
to provide such information, for instance where the potential salary of the
alternative position has not been decided. However in the current case, the
timing of the redundancy process and the subsequent job advertisement containing
details of salary gave 'a clear indication' that the employer had access to
such information when informing Mr Fisher of suitable alternative jobs. It
is also worth noting that where a dismissal is held to be unfair, the failure
of the employee to express an interest or make further enquiries regarding
suitable alternative positions, may lead to a finding of contributory fault
against the employee and result in a reduction of any unfair dismissal award.