Mrs L Cavanaugh v Folsana Pressed Sections Limited — 2019

Mrs Cavanaugh worked in an administrative support role for Folsana from 1 April 2010 until her dismissal on 30 January 2019. After her husband, Mr Cavanaugh, was suspended and then dismissed, Folsana said her role was redundant because the work she carried out was no longer required. The tribunal accepted that the amount of work available to her had diminished once Mr Cavanaugh was removed from the business, but found that the factual reason for her dismissal was the removal of her husband from the business rather than a redundancy situation as the true cause of dismissal.

The tribunal found that Mrs Cavanaugh had been treated as an administrative adjunct to her husband rather than as an employee in her own right. It relied on the evidence that Mr Marsden had approached the HR consultant about making her redundant at an early stage and that the redundancy process was postponed until the outcome of Mr Cavanaugh’s disciplinary process. The tribunal concluded that the dismissal was predetermined in substance, and that the employer had not addressed the real question of whether her employment could continue on any open-minded basis.

Even if the case were approached as a redundancy dismissal, the tribunal held that consultation was not effective and that the employer had not given Mrs Cavanaugh a real opportunity to influence the decision. The HR consultants were dependent on information from Mr Marsden and were not given a proper picture of the wider administrative roles or the later accounts vacancy until after that role had been filled. The tribunal also found the employer had not properly considered alternative employment, and said a reasonable employer would at least have offered a trial period in the part-time accounts role.

The unfair dismissal claim therefore succeeded. The tribunal rejected the respondent’s alternative SOSR position, finding there had been no open-minded assessment of whether Mrs Cavanaugh could continue working for the business after Mr Cavanaugh’s departure. On remedy, the tribunal held that any compensatory award should be reduced by 40% on a Polkey-type basis because she might have needed different working arrangements, might not have remained in post long term, or might have accepted lower-paid alternative work. It also held that there was no scope for an ACAS uplift under s207A and directed that remedy be determined at a further hearing listed for 9 March 2020.