Mr L Lavelle Respondent Peel Advertising Limited trading as Perfect Fit Media v Respondent — 2021

The claimant, Mr Lavelle, was employed as Head of Operations from 27 February 2017. In September 2019 he was told that his role would be removed following an organisational review and that he was at risk of redundancy. The tribunal recorded that the respondent was a small advertising business, that the claimant had been the only member of the operations team, and that by July 2019 the respondent’s finance report showed the business ahead of budget.

The tribunal found that the respondent had not shown a redundancy situation within section 139 of the Employment Rights Act 1996. It accepted the claimant’s evidence that his duties had not ceased or diminished and were not expected to do so, and it found that the respondent’s evidence about how the need for his work had reduced was confused and unsupported. The tribunal noted that the proposed restructure involved redistributing the claimant’s duties, but there was no evidence of any analysis, no evidence of consultation with the board or the wider Peel group, and no evidence that the respondent had assessed whether the remaining workforce could absorb the work.

Having found no redundancy situation, the tribunal held that redundancy was not the reason for dismissal and therefore the dismissal was substantively unfair. It also found that the process was unfair in any event: the claimant was placed in effect in a pool of one, consultation was not meaningful, the list of alternative roles was incomplete and poorly described, and the appeal process was tainted by a pre-appeal meeting between Ms Rhodes and Mr Armitage. The tribunal said the process was, to all intents and purposes, a sham initiated to support the removal of the claimant.

The tribunal further found that it could not conclude the claimant would have been dismissed in any event had a fair process been followed, so no Polkey reduction was made. The judgment referred to section 98(4) ERA 1996, section 98(2)(c) ERA 1996, section 139(1) ERA 1996, Williams and others v Compair Maxam Ltd, the band of reasonable responses, and Polkey v A E Dayton Services Limited. The claim was upheld and listed to proceed to a remedy hearing on 9 December 2021.