If a role still exists, is it a genuine redundancy?

This was the question the employment tribunal (ET) was asked to consider in the case of Mrs G Spoor v The Governing Body of St Andrew’s CE High School.

Mrs Spoor began working at the school in January 2000, carrying out a number of roles. In May 2018, she was formally offered the role of SENCO. In addition to her role as SENCO, Mrs Spoor taught four hours of geography a week. Following a restructure, Mrs Spoor was made redundant. She stated that she had been unfairly dismissed, because she claimed it was not a genuine redundancy situation.

School reorganisation

The school was facing financial difficulties and the headteacher concluded that a reorganisation was required for the school to become financially viable, to address academic underperformance and to broaden the curriculum.

The restructure proposal included a reduction in SEND provision and the transfer of the SENCO role to a member of the senior leadership team (SLT). This was in accordance with the code of practice on SEN provision which suggests that responsibility for this should sit within the SLT. This was all set out in a consultation document which was emailed to all staff.

Voluntary redundancy

Following the consultation period where comments were put forward by the unions, a revised proposal was sent to staff. The revised proposal contained various options, including an ability to apply for voluntary redundancy.

Mrs Spoor applied for voluntary redundancy, which was approved. She made various job applications and accepted a role with EducateU, mainly because this role would not lead to the loss of her redundancy payment.

Advertisement issued

On 24 May 2021, Mrs Spoor’s employment was formally ended by reason of redundancy, with the employment terminating on 31 August 2021. Two days later, a geography teacher at St Andrew’s School resigned and an advertisement was issued, seeking a teacher of history and geography. Mrs Spoor stated that this would have been a suitable alternative to her role, because she was already teaching geography at the school, and she had taught history in a previous role at another school. However, there was no evidence that St Andrew’s were aware that she had taught history. The school did not notify Mrs Spoor about this role, although the headteacher agreed that she could have provided her with the details. However, the school was looking for a teacher of history, which was the eventual hire, so Mrs Spoor would not have been successful in any event.

Mrs Spoor not notified

The ET considered that the school could have done more to draw Mrs Spoor’s attention to the role. However, given the shift to history over geography, the ET found that the school was entitled to advertise it, in order to seek the best candidate and that not offering the role to Mrs Spoor did not render the process unfair.

ET findings

The reason for the dismissal was redundancy, which is a potentially fair reason for dismissal. The statutory definition of redundancy as set out in s139 of the Employment Rights Act 1996 provides that:

• An employee shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to ‘the fact that the requirements of (the employer’s) business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where the employee was employed by the employee, have ceased or diminished or are expected to cease or diminish’.

The ET had to consider whether it was a redundancy rather than a simple business reorganisation. Mrs Spoor argued that as the role of SENCO continued and was re-assigned, there could not be a cessation or diminution of the area of work.

Three-stage test

In coming to a conclusion, the ET considered the three-stage test, as set out in Safeway Stores plc v Burrell:

• Was the employee dismissed? Clearly the answer was yes.
• Had the requirements of the employer’s business for employees to carry out work of a particular kind ceased or diminished, or were they expected to diminish? As set out in the school’s consultation document, a diminution in SEND provision was expected and the amount of SENCO provision would also reduce. Therefore, the ET considered that there was a substantial diminution for the purposes of s139.
• Was the dismissal of Mrs Spoor caused wholly or mainly to that state of affairs? The ET considered that the answer was yes.

Therefore, it was held that Mrs Spoor’s role was redundant for the purposes of s139(1) of the Act.

Consideration of suitable alternatives

The ET then had to consider whether there was fairness in selection and consultation, together with consideration of suitable alternatives. Given Mrs Spoor opted for voluntary redundancy, the consideration of fair selection was not relevant in this case. The ET also considered that the consultation process was fair and that, although the school could have made Mrs Spoor aware of the vacancy for a teacher of geography and history, on balance the consideration of suitable alternatives was fair.

The ET also stated that, even if its conclusions were incorrect, the actions of Mrs Spoor, in particular her application for voluntary redundancy and her actions to preserve her payment, would have resulted in any damages awarded being the subject of a large reduction.

Summary and advice

Although the school was successful in defending the claim against it, the ET did note that there were some shortcomings in the process. Employers need to make sure that all employees at risk of redundancy are notified of all possible suitable alternatives, in order to ensure that a fair process has been followed. In addition, this case highlights the importance of setting out a clear business case when proposing a restructure and possible redundancies, as well as ensuring that a meaningful consultation takes place.

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