Aramark v Fernandes [2020] IRLR 861
The Employment Appeal Tribunal (EAT) ruled in favor of the appellant company, determining that the company's decision not to include the claimant on their labor shortage list did not constitute unfair dismissal under s 98(4).
Key Principles:
Section 98(4) emphasises the exploration of other reasonable options before resorting to dismissal.
For a decision to be captured under s 98(4), it should directly address the issue of dismissal, rather than potential measures that might soften the impact of dismissal.
The section does not grant a statutory right for a measure that might reduce the consequences of dismissal.
Facts and Application of the Law: The appellant company had a system of maintaining a list for potential labor needs, but being on this list didn't guarantee employment. The claimant, after being dismissed due to redundancy, asserted that this dismissal was unfair because he was not added to this list. The initial tribunal agreed with the claimant, believing that the company acted unreasonably by not considering him for the list during his redundancy deliberations.
Upon appeal, the EAT disagreed with the tribunal's decision. They argued that s 98(4) concerns alternatives to dismissal, and being on the list would not have prevented the claimant's dismissal as it only provided a possibility of future work, not a guarantee. As the inclusion on the list didn't equate to alternative employment, the company's choice not to include him wasn't a breach of s 98(4).
For individuals considering an appeal to the Employment Appeal Tribunal from the Employment Tribunal on unfair dismissal grounds, this case emphasises the distinction between measures that mitigate the effects of dismissal and genuine alternatives to dismissal.
