Mr D Kapkowski v Energy Solutions (UK) Limited — 2021

Mr Kapkowski brought a claim that his dismissal on 27 June 2019 was unfair. The tribunal identified the issues as whether there was a redundancy situation under section 139(1)(b)(i) ERA 1996, whether redundancy was the sole or principal reason for dismissal under section 98(1)-(2), and whether the process was fair under section 98(4), including warning, consultation, alternative work, and preparation time.

The tribunal accepted the respondent's evidence that the engraving side of the business had suffered a downturn in 2019. It found that by June 2019 the engraving department had only 64 days of work valued at £18,500, forward orders were 5.8 days of work at £1,626, stock was valued at £31,748, annual staff cost was about £28,000, and maintenance was about £2,500. It accepted that one full-time employee running three machines was no longer viable and that there was no additional work that could be assigned to Mr Kapkowski for a 40-hour week.

The tribunal found that meetings took place on 17, 21 and 27 June 2019. It accepted the contemporaneous notes, warning letter of 17 June, consultation letter of 24 June, and dismissal letter of 27 June. It also accepted that Mr Kapkowski was asked to identify his skills and possible alternative contributions, and that the respondent reasonably consulted him, considered alternative work, and was entitled to adopt a pool of one. It applied the statutory fairness test under section 98(4) and the range of reasonable responses approach, with reference to Williams v Compare Maxam and the consultation principles in Ex parte Price.

The tribunal rejected the claimant's case that he had not been at work between 17 and 27 June 2019 and that the dismissal was really because of sickness absence or an overtime dispute. It relied on absence forms, timesheets, emails, and the dismissal letter to find that the consultations occurred and that he worked on several days during June. It therefore found that redundancy was the principal reason for dismissal and that the dismissal was fair, so the unfair dismissal claim was dismissed. The tribunal noted that he was paid 4 weeks' pay in lieu of notice and statutory redundancy pay on termination, but it made no monetary award because the claim failed.