Can the reason for dismissal be redundancy, even though the employer had issues about the employee’s capability or conduct?
Yes, says the EAT on the facts in Fish .v. Glenn Golf Club.
The claimant was the club secretary of a golf club who was dismissed on grounds of redundancy. He alleged this was a pretext since the club committee had long-standing concerns about his conduct and capability. He also relied on the rushed nature of the consultation process and the haste to appoint his deputy to an alternative job instead of him.
However, the club was making serious losses. Mr Fish was one of four employees dismissed on grounds of redundancy. The employment tribunal found that Mr Fish had been fairly dismissed by reason of redundancy.
Mr Fish appealed and argued that the tribunal’s decision was perverse. The EAT rejected his appeal and considered the employment tribunal was entitled to find, weighing the evidence, that the principal reason for dismissal was redundancy. The criticisms of Mr Fish were background, not the real reason for dismissal.
The case is a reminder of how difficult it is to argue perversity. As Langstaff P said, one way of putting it is that, for the argument to succeed, the tribunal decision “must be such as to cause astonished gasps from the well-informed observer”. This was not the case here.