Mr D Leary v Fairway Motors (High Peak) Limited — 2021

Mr Leary was employed as a mechanic from 31 October 2017 at £11.50 per hour. The tribunal accepted that Fairway Motors faced a difficult trading period during the COVID-19 lockdown, but it found that correspondence before any redundancy process showed Mr Scott had already formed adverse views about the claimant’s commitment, performance and conduct. The tribunal concluded that the principal reason for dismissal was those performance and conduct concerns, not redundancy.

The tribunal found the dismissal unfair because the respondent did not investigate its concerns properly, did not hold any meaningful warning or disciplinary meeting before selecting the claimant, and did not follow a fair redundancy procedure. Although the respondent later retracted the original notice, invited consultation on 12 June 2020, and held consultation meetings on 18 and 22 June 2020 before confirming redundancy on 24 June 2020, the tribunal held that the decision had already been made and that the later process was not a genuine formative consultation. It also found the scoring and ranking exercise unclear and that the claimant was not given a proper opportunity to comment on the selection criteria.

The tribunal accepted that the respondent wanted to retain an MOT tester, but it found no adequate evidence that the claimant could not have re-accredited in a relatively short time and no meaningful discussion of that option. It applied section 98(4) ERA 1996 and the redundancy authorities it cited, including Williams v Compair Maxam, Polkey, Langston, Safeways v Burrell, Murray v Foyle Meats and Beatt. On compensation, the tribunal concluded that if a fair procedure had been followed the claimant would not have been dismissed in any event, so no Polkey reduction was made. The claimant’s notice pay, holiday pay and other payments claims were withdrawn after he confirmed he had received all sums due.