Matthew Aston v Hadley Steel Framing Limited — 2022

Matthew Aston worked for Hadley Steel Framing Limited as Regional Sales Director after the respondent bought his business. In February 2020 the respondent explored whether he could be "compromised out" of the business because of poor financial performance. When Covid-19 began, he was selected for furlough, but the tribunal found that he did not consent to furlough and that his email of 6 April 2020 made clear he did not agree to being placed on furlough or to the associated salary reduction. That email was an assertion of an infringement of a statutory right for the purposes of s.104 ERA 1996.

The tribunal accepted that the principal reason for dismissal was redundancy, not the s.104 assertion. It found that Covid-19 had reduced the amount of work available for the claimant's role and that the requirements of the business for employees to carry out work of that kind had diminished. However, the redundancy process was procedurally unfair: the claimant was not given a business case specific to his role, there was no proper discussion of selection pools or criteria, the respondent did not genuinely engage with his furlough alternative or his requests for information, and the appeal hearing was conducted without the necessary material.

The ordinary unfair dismissal claim therefore succeeded under s.98 ERA 1996. The tribunal applied the range of reasonable responses approach and concluded that the dismissal was not within it. It also considered Polkey and found that, had a fair process been followed, the claimant probably would have been placed on furlough in April 2020, but there was still about a 90% probability that he could and would fairly have been dismissed for redundancy later, with notice on 31 July 2020 and dismissal on 31 January 2021. The breach of contract and unlawful deduction claims concerning holiday pay and a BUPA invoice were withdrawn after payment.