In person For the v Mr Smallwood, Managing Director — 2021

The claimant, Mr Fraser McLean, worked for Fiba Tech Industries Limited from 11 April 2017. The tribunal found that the respondent had faced a downturn in business from 2018, had implemented a pay freeze, and had gone through several rounds of redundancies. In 2019 the claimant’s pay had risen from a starting salary of £16,640 to approximately £21,500, but the tribunal found that a further pay rise agreed in May 2019 was subject to the pay freeze being lifted.

The claimant raised a grievance about underpayment in August 2019, which was not upheld. He later received a first written warning in December 2019 and a final written warning in April 2020. During the respondent’s third redundancy round, it consulted the claimant, explained the selection criteria, and selected him from a pool of operatives and supervisors on the basis of scores that included disciplinary record. The tribunal accepted that redundancy was the reason for dismissal, that the statutory definition of redundancy was met, and that the selection pool and criteria were not unreasonable.

The tribunal nevertheless held that the dismissal was unfair because the respondent did not process the claimant’s appeal against dismissal. It found that failing to deal with the appeal was outside the band of reasonable responses open to the respondent, and that this procedural breach made the dismissal unfair in all the circumstances. In assessing remedy, the tribunal found that an appeal would probably have extended employment by no more than two weeks and that there was a 100% probability it would have failed, so compensation was limited to two weeks’ pay.

The claimant was awarded £769.24 for unfair dismissal, calculated at £384.62 per week for two weeks. The tribunal did not make a basic award because the claimant had already received a statutory redundancy payment. It also held that the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 did not apply. The unlawful deduction from wages claim was dismissed because the asserted pay rise was conditional on the pay freeze being lifted, and that condition was not met.