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Does the manner in which a redundancy situation arises affect whether or not a redundancy situation exists?

No, held the EAT in Berkeley Catering Limited v Jackson.

The Claimant was the Managing Director of the Respondent. The company's owner named himself CEO, took control of management decision-making and operation, and deliberately undermined the Claimant's position as Managing Director.

The Claimant was dismissed for redundancy under s139(1)(b) Employment Rights Act 1996, on the basis that the Respondent's requirements for employees to carry out work of a particular kind had diminished. She claimed unfair dismissal.

The EAT overturned the tribunal's finding that there was no redundancy. A redundancy situation either exists or it does not. The tribunal must ask whether there has been a diminution in the number of employees required to do the work. The Respondent arranged its affairs such that its requirement for employees to carry out the particular kind of work undertaken by the Managing Director diminished, creating a redundancy situation. The Respondent's motive and conduct in deliberately undermining the Claimant's position was relevant only to identifying the reason for dismissal, or any substantive or procedural unfairness, not to the existence of redundancy.

Thanks to Joshua Cainer of Outer Temple Chambers for preparing this case summary.