Monthly Bulletin – August 2025 – Practical Perspectives

Redundancy: Don’t cut corners on alternative employment

A genuine redundancy and fair selection process aren’t enough on their own to carry out a fair redundancy dismissal. Employers also have a legal duty to explore alternative roles for affected employees – and taking a half-hearted approach, risks making the whole process unfair.

That’s the clear message from the recent case of Hendy Group v Kennedy. Mr Kennedy was a training manager at a car dealership group, with over 10 years of previous experience in car sales. When his training role was at risk, he applied for several internal vacancies – mainly in sales – but was unsuccessful and then dismissed for redundancy.

The tribunal accepted that the redundancy was genuine. But it still found the dismissal unfair.

Why? Because the employer didn’t make a proper effort to help Mr Kennedy find another role. 

Key issues included:

• He had to find and apply for vacancies like an external candidate
• HR gave no help in identifying suitable roles
• He was told further sales role applications would be rejected as his motive in applying for them was questioned
• Managers weren’t told he was at risk of redundancy
• Some emails were sent to an address he couldn’t access
• No real attempt was made to match him to vacancies

The tribunal found that if the employer had acted fairly, Mr Kennedy likely would have found another role. He was awarded full compensation, with no Polkey deduction.

HR takeaway: Supporting employees at risk of redundancy isn’t just good practice – it’s a legal requirement. That means more than just pointing to a vacancy list. You need to:

• Communicate clearly and supportively
• Help identify and explore suitable roles
• Ensure decision-makers know who’s at risk
• Make sure practical barriers (like email access) don’t get in the way

In redundancy, how you handle the detail can make or break a fair dismissal.

Asleep on the job – but still unfairly dismissed

It might seem obvious that falling asleep at work is a sackable offence. But a recent tribunal ruling reminds employers to look at the bigger picture before jumping to dismissal.

In Okoro v Bidvest Noonan (UK) Ltd, Mr Okoro worked as a CCTV controller. He nodded off briefly while on duty and was later dismissed for gross misconduct.

Mr Okoro brought an unfair dismissal claim. The tribunal agreed that the employer had followed the right steps when investigating and forming its belief that he’d fallen asleep (based on the Burchell test). But it still found the dismissal to be unfair.

Why? Because dismissal wasn’t a reasonable response in the circumstances (Sainsbury’s v Hitt). The tribunal highlighted several key factors:

• Mr Okoro had 16 years of unblemished service
• The incident was brief – he was asleep for just 15 minutes
• Falling asleep wasn’t listed as gross misconduct in the company’s disciplinary policy
• There were no serious consequences from the incident

He was awarded over £20,000 in compensation.

What should HR take from this?

Even when misconduct is proven, employers must consider the wider context before deciding to dismiss:

• Check your policies: If you want to treat certain behaviour as gross misconduct, be clear in your disciplinary rules.
• Consider the individual: Long service and a clean record weigh heavily against dismissal.
• Assess the impact: Was the conduct deliberate? Did it cause real harm?

Not every mistake justifies dismissal – and failing to recognise that could prove costly.

Think before you hire: Avoiding discrimination claims in recruitment

Fair recruitment is more than best practice – it’s a legal requirement. While many employers are familiar with the principles of equality in the workplace, it’s easy to overlook how far discrimination law stretches, especially when it comes to external job applicants.

The legal framework

Under the Equality Act 2010, job applicants are protected from discrimination at all stages of recruitment. Sections 39 and 40 make it unlawful to discriminate, harass or victimise someone in arrangements for recruitment, including how you advertise roles, shortlist candidates, run interviews, and decide who to hire.

This applies across all protected characteristics – including age, disability, sex, race, religion, and pregnancy. Importantly, the definition of “arrangements” in recruitment is broad. Discriminatory adverts, inaccessible application formats, or inflexible interview processes could all lead to claims.

Practical examples

• A disabled candidate may argue that not providing adjustments for an interview was discriminatory.
• A Muslim applicant might claim indirect discrimination if an assessment day ignored dietary needs.
• A pregnant candidate could claim she was rejected due to assumptions about her future availability.

Even someone who hasn’t applied can claim if a discriminatory advert discouraged them – although they’d need to show they would have applied otherwise.

Who’s liable?

Claims can be brought against employers, employees, or recruitment agencies. Employers may also be vicariously liable for discriminatory actions by others – even if unintentional. For example, an agency that screens out older candidates could land both itself and the employer in legal trouble.

How to stay compliant

• Train hiring managers on fair recruitment.
• Instruct recruitment partners not to discriminate.
• Make reasonable adjustments for disabled applicants.
• Monitor language in adverts and interview questions.

Exceptions and flexibility

You can apply a “genuine occupational requirement” if a role needs someone with a particular characteristic – but this must be justifiable and essential for the job.

Positive action is also lawful where there’s under-representation – for example, preferring one equally qualified candidate over another to improve diversity. But don’t select someone solely based on a protected characteristic if another applicant is better qualified.

Clear processes, staff training, and thoughtful planning will help you recruit fairly and lawfully.

Volunteers in the Workplace

Volunteers can be a valuable asset to many organisations – bringing flexibility, community engagement and cost-effective support. But if the relationship isn’t handled with care, it can lead to unexpected legal liabilities. Here are some key points HR professionals need to keep in mind when engaging volunteers:

1. Risk of Employment Status

One of the most common legal pitfalls is unintentionally creating employment rights. If a volunteer is treated too much like a regular employee – for example, being given fixed hours, performance targets, or anything beyond genuine out-of-pocket expenses – a tribunal may decide they are a worker or even an employee.

In Groom v Maritime and Coastguard Agency, the Employment Appeal Tribunal ruled that a volunteer coastguard became a ‘worker’ during periods where he could claim payments that went beyond expenses. The fact that he had to apply for this payment did not affect the outcome – the arrangement had the key ingredients of a contract. This case is a clear reminder that even small, well-intentioned payments can tip the balance and create employment rights.

Other practices that could suggest employment status include mandatory training, requiring attendance at events, or using formal disciplinary procedures – all of which may imply mutual obligations typical of employment.

To minimise risk:

• Ensure volunteer roles are clearly optional and flexible.
• Reimburse only actual expenses – avoid any form of additional payment.
• Use language that sets out expectations, not requirements.
• Keep documentation informal and avoid corporate HR processes.

Remember, tribunals will look at the reality of the relationship, not just what your paperwork says.

2. Legal rules still apply

Even if someone is a genuine volunteer, certain legal duties remain:

• DBS checks may still be required for volunteers working with vulnerable groups. These checks are free but only apply if the individual meets strict criteria (e.g. no payment, not in training for a paid job).
• Health and safety laws also apply. You must provide a safe environment, appropriate training, and necessary equipment. The Health and Safety Executive’s guidance emphasises that volunteers, while not employees, must still be protected from foreseeable risks. 

Make sure volunteer roles are included in risk assessments, that your insurance covers volunteers, and that you maintain up-to-date records of their involvement.

3. Volunteer Agreements

While not a legal requirement, a well-constructed volunteer agreement can be a useful tool. However, poor drafting can create legal problems – especially if it starts to resemble a contract of employment.

When drafting an agreement:

• Clearly outline the tasks and support available.
• Use soft, non-binding language (‘we hope’, ‘suggested’) rather than obligations.
• Avoid legal terms like ‘contract’ or ‘pay’ – stick to ‘reimbursement’ for expenses.
• Make clear that the arrangement can be ended at any time by either party.
• Include references to key policies, like health and safety or confidentiality.

Handled thoughtfully, a volunteer agreement can support a productive relationship while keeping legal risk in check.

And finally, a claim of ‘one rule for them; one rule for everyone else’ was recently heard in the Birmingham Employment Tribunal. In Burns v Gitpod, the Claimant was sacked after getting drunk and allegedly falling asleep in a sauna on a work trip. In ongoing tribunal proceedings, she claimed unfair dismissal and discrimination. The Respondent dismissed the Claimant for performance issues and for having been drunk on the trip. The Claimant admitted to being drunk but claimed that she had been treated differently because she was a woman. She alleged that male managers on the same trip were also drunk but received no sanction. Bringing her claims to the tribunal, Ms Burns said: “My male colleagues were drinking alcohol/drunk at the off-site but I was the only one who was dismissed… One of my male colleagues behaved in a far more damaging way for both his own reputation and for Gitpod after consuming alcohol at the off-site.”

The Claimant’s case that her dismissal was sex discriminatory hinges on an assertion that, as a woman, her drunken behaviour was viewed as setting a bad example whereas her male colleagues were lauded as “tech bros” for exactly the same behaviour. Although the case is currently ongoing and no finding has been made, the factual matrix serves as a reminder to employers to treat employees consistently and fairly when considering taking disciplinary action. Similar conduct should, unless it is able to be distinguished on coherent grounds, be treated similarly.