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Redundant only if position no longer exists

An employer is entitled to manage its business as it sees fit. This may often lead to restructuring and positions held by an employee being changed or refocused. However, as the Employment Tribunal pointed out in a recent case, such a change or refocus does not necessarily mean that position held by the employee is redundant.

The Department for Courts employed David Cross as a Bailiff. This was a statutory position, and primarily involved Mr Cross enforcing fines.

The Department decided that it was necessary to change the way in which it enforced fines. The Courts were imposing more fines and the number of unpaid fines was growing at an alarming rate. The Department decided to refocus the duties of its Bailiffs so that, instead of enforcing fines, there was a greater emphasis on negotiating payment arrangements with offenders/debtors at an early stage.

The Department considered that this change in emphasis meant that the work required to be performed was substantially different to that performed by its Bailiffs, and was therefore a new position. It called the new positions "Collection Officer".

The Department declared Mr Cross and other Bailiffs to be redundant and invited them to apply to become a Collection Officer. Mr Cross applied, but was unsuccessful. He was later dismissed for redundancy.

Mr Cross took a personal grievance to the Employment Tribunal. He claimed, amongst other things, that the position of Collection Officer was essentially the same as that of Bailiff, and that the only difference was a change in emphasis or focus in respect of the duties to be carried out. The Department was therefore not justified in dismissing him for redundancy.

The Tribunal heard evidence that Collections Officers were sworn as Bailiffs and were still required to carry out the powers and functions of Bailiffs. The only differences between the two positions related to the change in emphasis from enforcing fines to negotiating payment arrangements, and changes to remuneration, hours of work, and the operation of particular systems.

The Tribunal held that the position of Collections Officer was substantially the same as that of Bailiff.

"There is no doubt in my mind that the change of emphasis in the position to one of negotiating payment arrangement is different to enforcement. However, I do not consider the objective or purpose of the position to be different. In other words, the job is still the collection of fines. This work is still required to be done. The change in emphasis may well require enhanced or different skills on the part of the Department's employees but this alone does not mean that the position is superfluous" the Tribunal said.

The Tribunal went on to hold that Mr Cross' redundancy was not genuine, and he was therefore unjustifiably dismissed. It awarded him $16,300 for lost wages plus $12,000 compensation for humiliation and distress.

The question whether or not an employee's duties/position is redundant depends on how substantial any changes made to the duties/position are. This is a matter of fact and degree and requires an objective assessment of the two positions. As this case shows, employers who are considering such changes are well advised to seek legal advice before making them and implementing any redundancies.

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