Mr Dave Smith v R Hannah & Sons Ltd — 2021

Mr Dave Smith, a Shift Manager who had worked for R Hannah & Sons Ltd since 2005 and returned in 2015, was dismissed on 28 July 2020 by reason of redundancy following a COVID-19-related restructure. A marriage-discrimination point was raised during the hearing but was not pursued, and the case proceeded on the sole basis of unfair dismissal.

The tribunal accepted that the dismissal was genuinely by reason of redundancy within s.139 ERA 1996, applying the Hatchette v Filipacchi UK Ltd v Johnson three-stage approach. It found that COVID-19 had caused the requirements for work of that kind to diminish, so redundancy was a potentially fair reason, but the dismissal was still unfair under s.98(4) ERA 1996 because the respondent did not act reasonably in the circumstances.

In particular, the tribunal found that consultation was not genuine or sufficiently collaborative. The claimant was not given a proposed organogram, was not told in advance that the number of compulsory redundancies had effectively reduced from 19 to 10 after the warehouse operatives' shift patterns changed, and most of his emailed questions were not answered before the second consultation meeting. The tribunal also found that the decision to dismiss had been taken before that final consultation, and that the appeal process did not give him a proper opportunity to consider the answers given.

The tribunal held that the respondent failed to consider bumping and that this failure made the dismissal unfair on the facts of the case. It noted that the claimant had indicated he was prepared to consider a lower-paid or junior role, had previous warehouse operative experience, and there was no contemporaneous evidence that bumping had been considered by either Mr Wallace or Mr Hannah. The tribunal also found that the Goods In & Stock Team Leader post was suitable alternative employment, that the claimant met the core and desirable criteria, and that his failure to apply justified a 40% reduction for contributory fault and/or failure to mitigate loss. A further 20% Polkey reduction was directed, no ACAS uplift applied because the reason for dismissal was redundancy, and the claimant's basic award was extinguished by the statutory redundancy payment of £3,069.24 pending a remedy hearing.