in person For the v Respondent — 2021

The claimant, a maintenance fitter, was dismissed by reason of redundancy on 31 July 2020. The tribunal accepted redundancy as the reason for dismissal and found the relevant pool to be maintenance fitters. The selection criteria themselves were not challenged; the dispute was about how the criteria were applied and whether the procedure changed part way through the exercise.

The tribunal found that the respondent had agreed with employee representatives that disputes about welding and burning scores would be resolved by practical testing or assessment. It found that the respondent departed from that agreed approach when it allowed Mr Dimbleby to rely on shift run reports instead of a test. That departure led to inconsistent treatment of employees, because the claimant had been tested, then Mr Dimbleby was allowed to use different evidence, and the claimant later tried to use shift reports himself. The tribunal held that no reasonable employer would have handled the scoring in that way without first agreeing a change with the representatives.

On warning and consultation, the tribunal found that the claimant was given a reasonable understanding of the process and was consulted about the redundancy. It rejected the argument that the meetings were rushed. However, those consultation findings did not cure the unfairness in the selection decision itself, so the tribunal held that the dismissal was unfair.

On remedy, the tribunal carried out a Polkey assessment and found an 80% chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, because Mr Dimbleby would probably have scored at least as well as the claimant in a proper practical test. The tribunal said the claimant would not be entitled to a basic award because he had received a statutory redundancy payment, and the compensatory award would in principle be reduced by 80%. The remedy hearing was listed for 4 May 2021.