Mr W Gilmour v Syspal Limited — 2021

The tribunal found that the claimant, Mr W Gilmour, was dismissed on 17 June 2021 in a redundancy exercise carried out by Syspal Ltd during the Covid period. It accepted that the business had reduced its need for field sales engineers because face-to-face customer visits had diminished and the company was restructuring towards more internal sales work. The tribunal therefore held that redundancy was the principal reason for dismissal.

Although redundancy was the reason, the tribunal found the dismissal unfair because the process was not conducted in a fair and open-minded way. It found that the claimant was the only sales engineer told in April 2021 that redundancies might be contemplated, that Ken Harvey had clearly wanted voluntary redundancy, and that Paul Balfour was a recent hire with less than two years’ service. The tribunal also found the redundancy plan unreliable, found that most of the scoring had been produced before any proper discussion of the selection matrix, and concluded that the selection outcome for the claimant had effectively been pre-determined.

The tribunal criticised the consultation and scoring process in several respects. It found that the claimant’s IT access had been stopped, which impeded his ability to prepare for consultation meetings, and that the short ten-day process, together with the refusal to allow more time to take advice, was outside the range of reasonable responses. It also found that the scoring for sales performance, technical knowledge and skills/performance lacked transparency, and that the explanations given for the scores were not reliable. The appeal corrected some of the scores, but the tribunal held that it did not cure the original unfairness.

On Polkey, the tribunal held that if a fair procedure had been followed the claimant would certainly have remained employed for a further two weeks, and that thereafter there was about a one in three chance that he would still have been dismissed. It therefore said a 33% reduction would be made to any compensatory award for unfair dismissal. Remedy itself was not assessed in this judgment and was left to a later hearing if the parties could not agree it.

The tribunal dismissed the claimant’s direct age discrimination claim. It found no evidence that the claimant was treated less favourably because he was over 50, and it rejected the suggestion that the use of face-to-face visits in the selection matrix put him at a disadvantage because of age. It found instead that the claimant was a conscientious salesman who wanted to make visits but was frustrated by Covid restrictions and customer reluctance, not by any age-related inability to visit customers.

The claimant also failed on his whistleblowing and victimisation claims. The tribunal accepted that he told HR about alleged fraudulent mileage claims, but held that this was not a qualifying disclosure because he did not reasonably believe it was made in the public interest; it was raised in the context of the redundancy process because it might affect the selection scores. For victimisation, the tribunal accepted that the Employment Tribunal claim lodged on 11 September 2021 was a protected act, but it found no proved detriment and no evidence that the alleged commission issue or the letter said to have been sent to Mr Atkin was caused by that protected act.