Mr Attiqur Rehman v Malcolm Enamellers ACP Limited — 2024

Mr Attiqur Rehman was employed by Malcolm Enamellers ACP Limited from 26 March 1998 as a line operative and was dismissed on 3 October 2022 with a notice expiry date of 25 December 2022. The respondent said the dismissal arose from some other substantial reason because it was restructuring shopfloor terms and conditions to maintain competitiveness; the claimant said the reason was not genuine and that the respondent wanted to remove a long-serving employee without redundancy costs. The tribunal found that SOSR was the genuine reason for dismissal, noting the wider business restructuring, the consultation with the workforce, and the fact that 46 of 47 shopfloor employees accepted the proposed changes while the claimant did not.

The tribunal nevertheless held that the dismissal was unfair because the procedure was not fair in the circumstances. It found that the claimant did not receive a proper and genuine consultation before dismissal, particularly because he was in Pakistan during much of the consultation period and only engaged in substance at the grievance meeting on 28 September 2022 shortly before the changes were due to take effect. The tribunal also found that the claimant’s limited ability to speak English, and inability to read or write it, should have been given proper account, that he was not warned in advance that dismissal might follow rejection of the contractual changes, and that he was not offered a right of appeal in the dismissal correspondence.

The tribunal further held that Mr Minhas was not an independent dismissing officer because he was already involved in the grievance process and in driving the consultation over contractual changes. Applying section 98(4) ERA 1996, the tribunal concluded the dismissal fell outside the range of reasonable responses and was unfair. However, it also found that the claimant would probably have been dismissed fairly by no later than 31 January 2023, so any remedy would need to reflect that Polkey-type reduction.

On holiday pay, the tribunal found that the claimant was owed 9 days accrued holiday pay because he was signed off sick during the notice period and could not take the leave. It referred to the Working Time Regulations 1998 and NHS v Larner in concluding that payment was due for holiday that could not be taken because of sickness absence. The judgment did not quantify the monetary amount of the holiday pay or the unfair dismissal award, and the remedy hearing was listed separately for 18 January 2024.