Mr M Khan v NSC Global Limited — 2021

Mr Khan was employed by NSC Global Limited from 1 November 2009 to 26 February 2021 as a remote technical support engineer. The tribunal accepted that the respondent’s business had been affected by the Coronavirus pandemic and that the technical support function was migrated to Hungary, so the dismissal fell within the statutory definition of redundancy in s.139 of the Employment Rights Act 1996 and was capable of being a fair reason under s.98(1) and (2). The claimant was first told he was at risk in July 2020, but the consultation was interrupted by his absence from work and resumed after his return in October 2020, with meetings in November and December 2020 and a final meeting on 2 February 2021.

The tribunal held that the redundancy process was procedurally unfair. It found that the respondent did not provide sufficient information about the rationale for the redundancy or any business plan or other documentation, so the claimant and his representative could not make informed representations. It also found that the respondent had not reasonably explained why the claimant was placed in a pool of one, and that Justin Halpern, who also worked as a technical support engineer in the UK, should have been included in the selection pool. The tribunal rejected the claimant’s later oral evidence about engineers in India being included in the pool, but accepted that the pool should have contained both UK-based technical support engineers.

In reaching that conclusion, the tribunal noted the respondent’s reliance on the co-op project and the evidence that Mr Halpern had carried out the main on-boarding and knowledge transfer work. However, it found that the respondent produced no documentary evidence of the alleged commercial risk or of the decision-making process, and that the decision to exclude Mr Halpern was outside the band of reasonable responses. The tribunal also noted an email from Mr Kumar dated 11 March 2020 stating that management had already decided to let the claimant go. The claimant did not appeal the dismissal, and the tribunal found no suitable alternative vacancies. On Polkey, it assessed the chance that the claimant would have been dismissed even if Mr Halpern had been pooled with him at 50%.

As to remedy, the tribunal recorded that the claimant had already received his statutory redundancy pay in full and was not entitled to any additional basic award. It held that he was entitled to a compensatory award, but that amount was to be determined at a later remedy hearing.