Ms A Swift v National Business College Ltd — 2020

Ms Swift was employed from 22 February 2016 and her role was later redefined to Recruitment and Sales Officer. The respondent said its apprenticeship business had been affected by funding and reform changes, but the tribunal noted that the claimant had previously been criticised for missing targets and warned that disciplinary action could follow if targets were not met. The claimant also told the respondent on 21 October 2019 that she would undergo hip replacement surgery on 20 January 2020 and would be off work for about 8 to 12 weeks afterwards.

The tribunal found that the respondent had not established that the reason for dismissal was redundancy. It held that, at the time of dismissal, the respondent was still of the view that a full-time Levy sales role was needed and that the work had not ceased or diminished within section 139(1) ERA 1996. The tribunal found that the respondent's real concern was the claimant's performance and her imminent lengthy absence, not redundancy.

Even if redundancy had been the reason, the dismissal would have been unfair. There was no warning or fair consultation, no objective selection process, no consideration of suitable alternative employment, and the claimant was not given a meaningful appeal. The tribunal referred to the statutory framework in sections 98(1), 98(2), 98(4) and 139(1) ERA 1996, and to the guidance in Williams & Others v Compare Maxam Limited, Polkey v AE Dayton, and R v British Coal Corporation ex parte Price.

On remedy, the tribunal made no basic award because the claimant had received statutory redundancy pay. It awarded a compensatory award of £2,559.38 made up of £1,196.73 for three weeks' net pay, £862.65 for nine weeks' statutory sick pay from 20 January 2020 to 23 March 2020, and £500 for loss of statutory protection. The tribunal found that alternative employment had been obtained in December 2019 and that losses after 23 March 2020 were not caused by the dismissal, because the new job was delayed by the Covid-19 pandemic. The Employment Protection (Recoupment of Income Support and Jobseekers Allowance) Regulations 1996 applied, with a prescribed element of £862.65.