Mr R Cooper v Hubbway Ltd — 2021

Mr Cooper was employed as a plant fitter by Hubbway Ltd and was dismissed in June 2020 after a redundancy process carried out during the early months of the COVID-19 pandemic. The tribunal found that the respondent’s business had substantially diminished, particularly the workshop work, and that this amounted to a redundancy situation within section 139(1) ERA 1996. The tribunal accepted that the respondent warned employees about possible redundancies, consulted the claimant, and used a selection matrix that gave greatest weight to flexibility in location and hours, then skills and disciplinary record, with timekeeping and length of service only if needed.

The tribunal found that the claimant scored zero for flexibility because he did not work remotely and did not have the permissions needed to go on site, while he scored highly for skills and disciplinary record. It accepted the respondent’s evidence that it needed a smaller but flexible workforce able to work both in the workshop and on customers’ sites, and that there were no suitable alternative vacancies for the claimant. The tribunal also found that the claimant did not, during the process, put forward a willingness to become more flexible in practice. Although it had concerns about aspects of the appeal process, including who made the appeal decision, it held that the appeal outcome would not have differed.

On that basis, the tribunal held that the dismissal was by reason of redundancy and was fair under section 98(2) and section 98(4) ERA 1996, so the unfair dismissal claim failed. The age discrimination claim also failed: the tribunal found that the claimant had not proved facts from which it could infer that age was the reason for the treatment, and in any event the respondent had shown a non-discriminatory reason, namely redundancy and the selection criteria used. The claimant had also withdrawn his redundancy payment claim before the hearing and withdrew his holiday pay and notice pay claims after a later payment was made. The tribunal noted that it could not make a section 38 Employment Act 2002 award because none of the claims succeeded.