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Failure to place employee on list of pool workers did not make redundancy unreasonable

Makbool Javaid, Partner - Simons Muirhead & Burton

Some employers involved in redundancy programmes are placing those made redundant on a list of people who would be offered an opportunity to return if business picks up as they have the experience, knowledge and skills required. But does failing to place an employee on such a list make the redundancy unreasonable? No, said the EAT in Aramark (UK) Limited v Fernandes. The employer maintained a list of people they could turn to if they had a labour shortage including about 120 people with a variety of skill sets, which they used regularly, and those on it had reasonable prospects of obtaining work.  The EAT ruled that an ET had erred in deciding that a failure to place an employee whose post had become redundant on that list of workers whose services could be called upon if required, meant the employer had acted unreasonably given all the circumstances of the case within the meaning of S.98(4) of the Employment Rights Act 1996. Since placing the employee on the list would only provide a prospect of work and it would not avoid redundancy, the failure was not within the scope of S.98(4) – placing F on the list was not a way of finding him another job within the business as an alternative to redundancy.

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