The claimant was employed by the respondent as a quantity surveyor.  He was in that position from April 2011 until he was dismissed in October 2020.  The dismissal arose from the Covid-19 pandemic and its effect on businesses.  The claimant was placed on furlough from 23rd March 2020 and he remained on furlough until he left in October 2020.  The reason for the claimant’s dismissal was due to a reduction in work for the respondent. 

The issue arising in the case related to the entitlement to redundancy pay.  The claimant was informed in August, after a number of meetings/emails, that there was no alternative to redundancy. However, the respondent also outlined that they would continue with their efforts to locate suitable employment for the claimant within the business.  Interestingly that even though the letter suggested the respondent would look for alternative employment in the company it stated: 

‘I am sorry that your employment with us has ended.  I would like to take this opportunity of thanking you for your contribution and service…’ 

The claimant applied for other jobs and was successful in September 2020.  There was no start time in place at that time.  Later that month, the respondent asked the claimant to work two days a week under flexible furlough.  The request was erroneous in terms of dates and also outlined that he was to receive only furlough pay.  The claimant outlined that as he was on his redundancy notice he was entitled to full pay.  Following this, and the claimant informing the respondent of the other work opportunity, he was contacted by the respondent saying that there had been an uptake in work and that there was ‘no current cause for concern’ for his position.  The same letter also said it was not a ‘permanent guarantee of [the claimant’s] position’.  

The claimant stated that he was unable to accept the withdrawal of the agreed redundancy.  The respondent then suggested that that they accepted his resignation.  As a result, there was no redundancy payment made to the claimant and the claimant brought a claim. 

The Tribunal held that the claimant was dismissed by reason of redundancy. This was ‘abundantly’ clear from the unequivocal statement from the respondent outlining the entitlement to redundancy, thanking the claimant for their work and giving an end date in October.  It was therefore unsurprising that the claimant would seek additional work.  The Tribunal examined the evidence that there had been an increase in work and it was not satisfied that the evidence was there.  The Tribunal found that the assertion that there had been an increase in work and that the claimant would not be subject to redundancy, only after he had received work elsewhere, was likely cobbled together with a view to avoid making a redundancy payment. 

Practical Lessons

The impact of the pandemic was multi-faceted but it is notable that there have been a number of cases across the jurisdictions dealing with redundancy post-lockdown.  This case demonstrates how redundancy cannot just be removed at a whim and that the Tribunal will examine it from the perspective of whether there has been an increase in work or whether it is being done to avoid making a redundancy payment.  That must be borne in mind for future redundancy cases, but also those who are dealing with these types of claim post-Covid-19 lockdown.  

NI Tribunal decisions are available on the OITFET website:http://www.employmenttribunalsni.co.uk/