Jonathan Ashby maintained that he'd been made redundant without warning or consultation. But an appeal tribunal sitting in London at the end of last week said that JJB's failure to warn or consult did not in itself constitute unfair dismissal.
Ashby lost his £86,000 a year in job in July 2010 following a company reorganisation.
JJB Sports had been suffering falling sales and in March 2010 appointed a new chief executive, Keith Jones, to try to save the business. He created a new operating board, made up of the heads of key functions of retail, marketing, HR and trading.
During this period of change, it appointed a new HR director, Paul Mitford, without advertising the role or interviewing Ashby.
During the tribunal, JJB said that it considered Ashby to be a willing, co-operative and loyal employee but not cut out for the new HR director role.
JJB then decided the payroll manager could absorb some of Ashby's responsibilities, while the legal and operations director could undertake his other administrative functions. He was therefore, considered to be redundant.
The sports retailer maintained that a consultation process with Ashby would have been a sham that served little purpose.
Michelle Gray, of Laytons Solicitors in Manchester, told HR magazine: "In light of the details available, I don't agree with the decision for a number of reasons.
"The fact that the case bucks the trend of previous employment tribunal cases which establish clear legal principles is very concerning. Most/all cases to date where there has been a failure to warn and consult with employees in a redundancy situation have rendered the dismissal unfair.
Gray added: "The case does show that tribunals are being sensitive to the harsh realities of the recession, where businesses faced with going under are forced to make quick and radical decisions.
"But this ruling doesn't go as far as a complete sea-change. Best practice for companies is still that they need to warn and consult if they want to make a member of staff redundant.
"There is little case law to provide guidance about when employers facing reorganisations can engage the "utterly futile" defence – and sadly this tribunal did not go as far as defining these exceptional circumstances, or provide any theoretical examples for employers in similarly dire circumstances."
Employment law specialist Stephen Robinson said: "Unfair dismissal claims are quite often unavoidable, simply because even when an employer has followed a fair process, some former employees will try it on. The better question to ask is: how can a finding of unfair dismissal be avoided or limited?
He continued: "The role of a HR director can be pivotal in advising the board and senior managers about an employer's obligations in relation to disciplinary and dismissal procedures and from a risk and advisory perspective, the role remains key to the success and performance of a company."
