Mr S McGowan v GLH Hotels Management (UK) Limited Heard via Cloud Video Platform (London Central) — 2022

The tribunal accepted that the respondent had a redundancy situation arising from the pandemic and the restructuring of the Thistle hotel management structure. The claimant’s dismissal therefore had a potentially fair reason under the Employment Rights Act 1996, but the tribunal still had to decide whether the respondent acted reasonably under section 98(4). It found that the claimant’s role as a General Manager was removed and replaced by fewer Cluster General Manager roles, and that the claimant was ultimately dismissed on 27 August 2021.

The claim succeeded because the initial consultation was found not to be genuine and meaningful. The tribunal held that the 9 October 2020 call, in which the claimant was first told he was at risk, was a surprise and did not give him a real opportunity to make representations. It also found there was no evidence that he was told of any right to be accompanied, no formal minute of the consultation call, and no explicit communication of the business rationale or any right to submit a counter-proposal. The limited time given to consider whether to apply for the new roles, and the way concerns were handled, reinforced the finding that the process gave the claimant a fait accompli rather than an open consultation.

The tribunal did not accept all of the claimant’s criticisms. It found that the selection pool was within the range of reasonable responses, that the standard interview process for the new roles was not unreasonable, and that there was no persuasive evidence that Paul Knightley was an inappropriate person to sit on the panel. It also found the respondent had taken reasonable steps to find suitable alternative employment, including the temporary secondment in the property team and later consideration of other work, although the claimant was not offered certain roles that were not genuine vacancies. The tribunal nevertheless concluded that the flaws at the outset of consultation meant the dismissal was unfair overall. Applying Polkey, it held that even if a fair procedure had been followed, the claimant would still likely have been dismissed, so it made a 100% deduction to any compensatory award.