Roger Harsley v Cummins Engines Limited — 2021

Roger Harsley was employed by Cummins Engines Limited as a temporary production operative at the Darlington plant and was dismissed by reason of redundancy with an effective date of termination of 31 December 2019. The tribunal found that redundancy was a potentially fair reason for dismissal and accepted that the respondent's pool and selection criteria were reasonable, had been agreed with Unite, and were suitable for a balanced workforce approach across shifts and teams. It also accepted that the broader workforce had been informed about the redundancy exercise and that collective consultation had taken place with the union.

The unfairness arose from the absence of meaningful individual consultation with the claimant. He was absent through ill health when the redundancies were announced, was not present at the meeting where the announcement was made, and was never formally told about the redundancy process. The tribunal found that there was no consultation with him at all before dismissal, despite the respondent's procedure providing for three individual meetings for those at risk. It also found that the claimant was not given a proper opportunity to understand the scoring and weighting system used in selection.

The tribunal accepted that the claimant had asked for information about how the appraisal and scoring system worked, and that he was not given the weighting information he requested while preparing his appeal. It found that withholding that information during the selection process might have been understandable to prevent team leaders being influenced, but that continuing to withhold it after the process was complete and during the appeal was not reasonable. The tribunal also found that the appeal did not rectify the earlier defects because the claimant could not mount an effective challenge without that information, and Mr Morley did not sufficiently investigate or report back on the issues raised.

On remedy, the tribunal considered Polkey and concluded that there was a prospect, assessed at 25%, that the claimant might have obtained alternative employment if a fair procedure had been followed. It therefore said that any compensatory award would be reduced by 75%. The judgment does not set out a final monetary award, only the liability decision and the Polkey assessment.