Fisher v Hoopoe Finance Limited

Suitable alternative employment

Fisher v Hoopoe Finance Limited, unreported Employment Appeal Tribunal, June 2005

Fisher was employed as a ‘new business’ manager by Hoopoe, and when it ceased trading, he and his colleagues faced redundancy.

Although Fisher was made aware of a sales account manager vacancy within Hoopoe’s new organisation, no further details were provided as he had expressed no interest in that role.

Just weeks after his dismissal for redundancy, the role was advertised, and the financial package was comparable to Fisher’s previous position. He brought unfair dismissal proceedings.

A key element of his claim was that Hoopoe’s failure to provide him with any financial information about the new role meant he was denied the opportunity to give the role any realistic consideration.

The tribunal dismissed his claim. As Fisher had expressed no interest in the new role, Hoopoe had discharged its obligation to investigate and bring to his attention suitable, potential alternative employment. Fisher successfully appealed.

The Employment Appeal Tribunal (EAT) rejected Hoopoe’s argument that its only obligation in law was to enquire about job opportunities within the business, and to make any such vacancies known to an employee.

The EAT made clear that providing such detail as the financial prospects of a particular role should be the norm unless it was not practicable because, for example, the financial prospects had not yet been determined.

However, the EAT did not completely overlook Fisher’s own conduct and lack of interest in the new role. It indicated that failure by an employee to express an interest in a position or to request further information (including financial information) is a factor that the tribunal may wish to take into account in reducing an award on the grounds of contributory fault.

The case was remitted for re-hearing by a fresh tribunal.

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