Mrs L Barker v Gloveman Supplies Ltd — 2019

Mrs Lorraine Barker was employed for a long period, dating from 13 February 1995, and was dismissed with effect from 19 February 2019 after the respondent concluded that her sales performance had not improved to the required level. Employment Judge Matthews accepted that the respondent had material showing underperformance and that the stated reason for dismissal was capability, namely poor sales performance, rather than redundancy. The tribunal therefore rejected Mrs Barker's redundancy case, finding that the fact she worked remotely as a field sales representative was coincidental rather than the cause of dismissal.

The tribunal nonetheless held that the dismissal was unfair under section 98 ERA 1996. It found that Mrs Barker had not been given a reasonable chance to improve in light of her long service and the respondent's historically sporadic approach to performance concerns. The tribunal also held that the respondent failed to provide an appeal hearing, contrary to its own procedure and the ACAS Code, and did not properly address the possibility of moving her into another role, despite the respondent's policy on poor performance referring to transfer to a better-suited role as a possible step.

On remedy, the tribunal rejected reinstatement or re-engagement. It awarded a basic award of £6,298.50, calculated on the basis of Mrs Barker being 52 at dismissal, with 20 years' service and an agreed week's gross pay of £247. The compensatory award was £1,234.00, consisting of £500 for loss of statutory rights, 12 weeks' net loss of earnings after mitigation, and a 25% uplift under section 124A ERA for failure to comply with the ACAS Code. The tribunal made no award for the claimed £50 job-search cost, no award for notice pay because pay in lieu of notice had been received, and recorded that the recoupment regulations did not apply.