Mr Lee Hart v Amber Film & Photography Collective CIC — 2021

Mr Lee Hart was employed by Amber Film & Photography Collective CIC from 14 November 2017 and became Gallery Co-ordinator on 28 April 2018. He was dismissed on 22 May 2020 after a redundancy consultation process arising from the respondent's financial difficulties, a budget deficit said to be about £60,000, and the impact of the Covid-19 lockdown. The tribunal accepted that the respondent was entitled to reorganise its business and found that the reason for dismissal was redundancy within s.139 ERA 1996, not any separate ulterior motive linked to the February 2020 meeting.

The tribunal found that the requirements of the business for employees to carry out work of the kind done by the claimant had ceased or diminished because the Gallery Co-ordinator role's administrative tasks could be absorbed by others. It held that placing the claimant in a pool of one was within the range of reasonable responses, because Bryan Dixon had genuinely considered the different roles and could rely on information from Peter Scott, who was reasonably perceived as the Gallery Manager and had responsibility for the Gallery. The tribunal also accepted that Peter Scott and Dean Chapman had curatorial and archive responsibilities that differentiated their roles from the claimant's.

The unfairness lay in consultation. Although the claimant was warned of redundancy by letter dated 22 April 2020 and had two consultation meetings, the tribunal found that the respondent did not disclose that Peter Scott's list of duties had formed the basis of the pooling decision. The claimant asked directly why he had been placed in a pool of one, but the explanation given to him did not reflect the real basis for the decision. That omission was held to be outside the band of reasonable responses because it deprived him of the opportunity to understand and challenge his selection properly.

The tribunal also found that alternative employment had been considered. It accepted that a future two-day Gallery Worker role focused on audience development was not available at the date of dismissal, that the claimant had not applied for the later advertised role, and that it was reasonable for the respondent to think an interview process would be needed. However, applying Polkey, the tribunal held there was a 100% chance the claimant would have been dismissed in any event even if a fairer procedure had been followed. The claim for unfair dismissal was therefore upheld, but the claimant was not awarded compensation.