Mr Brian Marshall v MD Building Services Limited — 2021

Mr Brian Marshall was employed by MD Building Services Ltd as a supervisor and was one of three supervisors inherited when the Respondent took over the Poole Housing Partnership contract in August 2019. The tribunal found that, after reviewing the contract, the Respondent genuinely considered that it did not need three supervisors and that the work requirement for employees to carry out work of that kind had diminished within the meaning of s.139 ERA 1996. It held that the dismissal was therefore by reason of redundancy and that redundancy was a potentially fair reason under s.98(2)(c) ERA 1996.

The tribunal accepted that the Respondent gave warning of the proposed redundancies, held consultation meetings, and used selection criteria covering ability, engagement, problem solving, communication, attitude and motivation, with attendance as a tie-breaker. It found some shortcomings in the scoring process, including subjectivity and some inconsistency in the way marks were allocated and rounded, but concluded that the criteria were fair taken as a whole and that the selection was fairly administered. The tribunal also found that Mr Marshall was invited and encouraged to apply for the new role, but he did not do so because he was concerned about moving from his TUPE terms and conditions to new terms and conditions.

Applying s.98(4) ERA 1996 and the guidance cited from Williams v Compare Maxam, the tribunal concluded that the Respondent acted reasonably in treating redundancy as a sufficient reason for dismissal. It therefore dismissed the unfair dismissal claim. The Respondent sought costs, but the tribunal refused that application, holding that the claim did not have no reasonable prospect of success and declining to make a costs order.