Mr C Williams v Baker Mallett LLP — 2021

The tribunal accepted that the respondent had a genuine redundancy situation following the Covid-19 downturn. It found that Baker Mallett LLP had a real need to reduce costs and that there was a diminution in the need for senior quantity surveyors in the Warrington office. The claimant’s dismissal on 28 August 2020 was therefore attributable wholly to redundancy, and the pool of the three senior quantity surveyors and the selection criteria were both held to be reasonable.

The tribunal’s unfair dismissal finding turned on procedure. It held that the respondent had failed to give the claimant a fair opportunity to challenge his scoring before he was selected for redundancy and dismissed. In particular, he was not given the completed scoring information, including the detailed scores underlying the skills and experience criteria, until after the third consultation meeting and after dismissal was confirmed. The tribunal found that this was outside the band of reasonable responses and made the dismissal procedurally unfair.

However, the tribunal applied the Polkey principle and found that a fair procedure would have made no difference to the outcome. It accepted the evidence of the two scorers who gave evidence, was not prepared to draw adverse inferences from the absence of Julia Fidler, and concluded that the claimant’s scores would have remained the same if he had been given the opportunity to challenge them in advance. For that reason it made no compensatory award, and it noted that no basic award was payable because the claimant had already received a statutory redundancy payment.

On holiday pay, the tribunal held that the claimant had only taken 2 days of annual leave in the relevant holiday year, despite the March 2020 email requiring staff to take leave during the following 12 weeks. It found that the claimant had been told not to take booked leave because he was needed in work, and that he never agreed to lose the entitlement if he did not take those days. Using the agreed daily rate of £182.77 and an accrued entitlement of 19 days on termination, the tribunal found that 5 days had been paid and 14 days remained outstanding, so it ordered payment of £2,558.78 gross and declined to apply any uplift under section 207A TULRCA 1992.