Mr C Highe v S P Crowther and Co Limited — 2021

Mr Highe worked for S P Crowther and Co Limited from 10 April 2006 to 28 August 2020 as an accountant. The tribunal accepted that he had at times carried out accounts manager duties when the post was vacant, but found that by spring 2020 his non-accountancy tasks took no more than 5 to 10 per cent of his time and that the substance of his work was broadly the same as the other members of the accounts team.

In the spring of 2020, against the background of the Covid-19 pandemic and the furlough scheme, Steven Crowther began a redundancy process. The claimant was told on 27 April 2020 that his role was at risk and there were consultation meetings on 28 April, 7 May and 26 May 2020. The respondent said his management duties could be absorbed by Mr Crowther and Deborah Stott and that the change would save over £35,000. The tribunal found that the respondent’s attempts to show the claimant as a senior or managerial employee, including the website description, salary banding, organisational chart and job description, carried little or no weight. It also found that the claimant had raised practical alternatives, including a pay cut of around £10,000, delaying the decision until the furlough position was clearer and considering the wider accounts team rather than a pool of one.

The tribunal held that there was no genuine redundancy situation because there was no diminishing need for employees to do the relevant work. It found that one accounts manager was always required, that the claimant’s managerial work was de minimis, and that there was no evidence of any reduced need for the accounts team work by the time of dismissal. Even if the respondent genuinely believed there was a need for cost saving or reorganisation, the tribunal held that there was no reasonable basis for that belief at the end of August 2020: the claimant’s pay was still being met under furlough, the office had reopened in June 2020, and the respondent later advertised for a chartered accountant on 14 September 2020. The tribunal also held that it was outside the range of reasonable responses to place the claimant in a pool of one when he was doing substantially the same work as the other accountants, and that the rejection of his alternatives was unfair. The ordinary unfair dismissal claim therefore succeeded, and the matter was relisted for a remedy hearing.

The whistleblowing complaints all failed because the tribunal found that the claimant did not make a protected disclosure to Stephanie Moore on the morning of 2 April 2020. It accepted that there had been confusion about the furlough scheme and that the respondent later repaid overclaimed furlough payments to HMRC, but it did not accept that the claimant told Mrs Moore that the scheme was being operated illegally. The tribunal said that if he had done so, it would have been information and in the public interest, but on the evidence he only expressly raised the alleged whistleblowing point in his letter of 20 May 2020. It also found that, although refusing to hear grievances would normally be capable of being a detriment, that point did not assist the claimant because no protected disclosure had been established.