Mr S Gillatt v ASE plc — 2021

The respondent carried out a redundancy exercise in its business management team in March and April 2020 after deciding it no longer needed the same number of senior account managers and account managers. The claimant, Mr S Gillatt, was placed in the redundancy pool and scored against performance, skill/competence, conduct and attendance criteria. His final score was 26 points, later increased to 27 on appeal, but still remained below the lowest successful score of 32 for the key account executive roles.

The tribunal accepted that redundancy was the reason for dismissal, that the pool of selection was within the range of reasonable responses, and that the scoring criteria were capable of objective assessment. It also accepted that the claimant’s conduct score could properly reflect a live final written warning, and that his performance and skills scores were based on matters such as upsell, client relationships, account handling and technical skills. However, it found that the process was unfair because the claimant was not given his individual scores or the score threshold before the final consultation meeting, so he could not meaningfully challenge the selection decision at that stage.

The appeal process did not cure that defect. The appeal manager, Mr Jones, reviewed some issues but did not conduct a process that allowed a full reconsideration of the scoring before the appeal decision was issued. The tribunal therefore held that the unfair dismissal claim succeeded. Applying Polkey, it found that if a fair consultation and selection process had been carried out the claimant would still, with 100% certainty, have been fairly dismissed for redundancy, so no compensatory award fell to be made. The claimant had already received a statutory redundancy payment, which extinguished any entitlement to a basic award.

The disability discrimination and victimisation claims were dismissed. The tribunal found no facts from which it could conclude that the claimant’s diabetes, or his daughter’s disability, was any reason for the dismissal or the redundancy scoring. It also found that the respondent’s concerns about homeworking were not applied to the claimant in the redundancy exercise, and that a significant number of colleagues also worked from home. The January 2019 homeworking correspondence was not a protected act for victimisation purposes, and in any event it was not a reason for the scoring or dismissal.