(1) John Husbands (2) Andrew Shutt (3) Chris Donnelly (4) Jamie Lotherington (5) Phillip Shutt (6) Stephen Senior (7) Craig Donnelly (8) Andrew Fewkes v Cemex UK Operations Limited — 2021

This was a remedy hearing after the claimants' unfair dismissal complaints had succeeded in a reserved judgment sent on 27 May 2021. The tribunal had to decide whether reinstatement or re-engagement was practicable, and, if not, what compensation should follow. The hearing took place on 19 November 2021 before Employment Judge Maidment, with evidence from Mr John Husbands and Mr Scott Jones.

The tribunal declined to make any order for reinstatement. It accepted Mr Jones's evidence that the respondent's paving business had become a two-gang operation and that there was currently only work and equipment for two gangs. Reinstating the claimants would create significant overstaffing and there would be a significant likelihood of a redundancy exercise. Applying section 116 of the Employment Rights Act 1996, and taking a broad common-sense approach as described in Coleman v Magnet Joinery Ltd, the tribunal held that reinstatement was not practicable. It also referred to Freemans Plc v Flynn and Cold Drawn Tubes Ltd v Middleton when considering that reinstatement should not require redundancies or significant overmanning.

On compensation, the tribunal rejected the claimants' argument that they should receive the redundancy payments they said they would probably have obtained if they had remained with the respondent. It held that the claimants had not been dismissed by reason of redundancy and therefore had no contractual redundancy entitlement. The tribunal considered any finding about later redundancy to be speculative, because any reduction in the business would have required a proper redundancy process and there was no reliable basis for deciding who, if anyone, would have been selected.

The tribunal instead assessed loss of earnings on a just and equitable basis under section 123(1) of the Employment Rights Act 1996. It accepted that the claimants had lost substantial unsociable night-working payments after moving to Breedon, but had mitigated part of that loss through weekend work. The tribunal decided to compare the claimants' average earnings with the respondent and with Breedon, allow continuing loss for a further four months, and award a nominal £200 per claimant for loss of statutory rights. The reasons say that judgment was later issued in agreed amounts, but those figures are not included in the text supplied here.