Mr P Metcalfe v Green Energy International Ltd — 2020

The tribunal held that Mr P Metcalfe was an employee of Green Energy International Ltd throughout the period from 4 July 2016 to 30 September 2017, despite the parties having described the arrangement as self-employed. It relied on the regular weekly pay, set hours, personal service, control, integration into the business, and the absence of any material change when the respondent later treated him as employed from 1 October 2017. The tribunal therefore found continuous employment from 4 July 2016 to 2 September 2019, which was sufficient for both unfair dismissal and a statutory redundancy payment.

The dismissal was found to be by reason of redundancy because the respondent reduced the need for someone to carry out the commercial sales role and did not replace the claimant. The tribunal accepted that the selection of the claimant’s unique role for redundancy, including a pool of one, fell within the range of reasonable responses. It also accepted that the business was in financial difficulty, but it held that there had been no genuine redundancy consultation: after the 8 July 2019 risk meeting, the later meetings were about a possible self-employed arrangement rather than the redundancy proposal, the promised further meeting did not happen, and the claimant was ultimately handed the dismissal letter on 1 August 2019 without a consultation meeting.

The tribunal rejected the suggestion that post-dismissal allegations of misconduct were the reason for the dismissal. It found no credible evidence of the allegations concerning introduction of products without prior consultation, deletion of colleagues’ emails, or theft of intellectual data, and it held that those matters were not the cause of the dismissal as it actually occurred. Applying Polkey, the tribunal found that the claimant would still have been dismissed by reason of redundancy even if a fair procedure had been followed, but that this would have taken only a further week. It also declined to reduce the basic award or compensatory award for contributory conduct.

On money claims, the tribunal held that the claimant was entitled to a redundancy payment, and that the respondent had made unlawful deductions from wages by underpaying him £115.96 net for 12 to 18 August 2019 and by failing to pay 1½ days’ pay for annual leave and the Bank Holiday in late August 2019. It also found that the deduction said to relate to 2 August was not justified. The notice-pay and commission elements failed: the claimant was not entitled to further notice pay, and he did not prove any contractual entitlement to commission. The judgment did not determine a final monetary total and directed the parties to try to agree remedy, with a remedy hearing to follow if needed.