Case 1306547/2020 · Employment Tribunal
Mr W Clayton, solicitor v Mr D Soanes, Solicitor — 2021
- Case reference
- 1306547/2020
- Decision date
- 5 October 2021
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Broughton Representatives
- Venue
- Birmingham
Parties
2 namedClaimant
Mr W Clayton, solicitor
Respondent
Key findings
Tribunal's reasoningAt the Birmingham hearing, Employment Judge Broughton found that Mr J Thelwell had been employed by Kelgray Products Limited since 1992 and had been UK Sales Manager for 14 years. After the first coronavirus lockdown, the respondent proposed furlough and related contractual variations. The claimant asked for more detail, offered to work reduced hours, and then went through consultation before being dismissed for redundancy on 5 May 2020.
The tribunal held that there was a genuine redundancy situation. It accepted that the pandemic caused a significant downturn and that the respondent had a reduced requirement for a UK Sales Manager. Although the claimant argued that the redundancy process was pre-judged and linked to his refusal to accept the furlough variations, the tribunal found the principal reason for dismissal was the reduced need for work, not his refusal. It also found that consultation, while imperfect, was meaningful overall, that there was only one UK Sales Manager role, that no realistic pool existed, and that no suitable alternative employment was identified. The appeal officer had prior involvement and her commission finding was not implemented, but that did not change the tribunal's view that the dismissal was fair. Applying its Polkey analysis, the tribunal said any identified failings would not have affected the outcome, so the unfair dismissal claim was dismissed.
On contract, the tribunal found the claimant's employment was terminated without notice in breach of contract because there was no payment in lieu provision. It also held that commission was due on sales made during the claimant's notice period and criticised the respondent's disclosure on the sales figures. The judgment records that the claimant was awarded the 3 months' average commission claimed, but the supplied text does not give a final quantified monetary figure. The parties were encouraged to agree the outstanding commission within 28 days, failing which a remedy hearing could be arranged.
Claims and outcomes
2 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unfair dismissal | The tribunal held there was a genuine redundancy situation and that the dismissal was fair in all the circumstances. It found the redundancy, not the claimant's refusal to accept furlough-related contractual changes, was the principal reason for dismissal, and any procedural shortcomings were not material to the outcome. | Dismissed | — | — |
| Breach of contract | The claimant was dismissed without notice and there was no payment in lieu of notice clause. The tribunal also held he was entitled to commission on sales during his notice period, but the supplied text does not state a final quantified sum; it refers to agreement on outstanding commission or a possible remedy hearing. | Upheld | — | — |
Legal tests applied
12 references- s.98(2)(c) ERA 1996
- s.139(1) ERA 1996
- s.98(4) ERA 1996
- Abernethy v Mott Hay & Anderson
- Safeway Stores v Burrell
- Berkeley Catering Ltd v Jackson
- Mugford v Midland Bank
- Williams v Compair Maxam Limited
- Hendy Banks City Print Limited v Fairbrother and Others
- Taymech v Ryan
- Lionel Leventhal Ltd v North
- Polkey v AE Dayton
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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