Mr Michael Maxwell v Capacity2Learn Ltd — 2021

Mr Michael Maxwell brought a single claim of unfair dismissal against Capacity2Learn Ltd. The tribunal accepted that the principal reason for dismissal was redundancy, which is potentially fair under s.98(2) ERA 1996. The respondent was a small employer affected by the COVID-19 pandemic and identified a need to save about £31,000 in the financial year. It concluded that only one of the two ICT Engineer roles was needed and selected the claimant for redundancy after a scoring exercise carried out by Ms Carys Owen and Mr Kettle.

The tribunal found that consultation was inadequate. There was one consultation meeting on 27 October 2020, when the proposal was still at a formative stage, and the claimant was asked for suggestions about selection criteria. Some of his suggestions were adopted, but the full criteria, including the sub-criteria and descriptors, were not provided or discussed with him before the final decision. The meeting on 6 November 2020 was found not to be a consultation meeting; it was a meeting to communicate scores, not to consult while matters were still being formulated. The tribunal also found that the claimant was not taken through the scoring or the reasoning behind it.

The tribunal further held that the selection criteria were largely subjective, save for attendance, and were not supported by objective evidence such as appraisals or performance records. It considered that the exercise was effectively being used to dismiss the claimant for perceived past performance and conduct issues, rather than to select fairly for redundancy. It also found that the criteria were vague and that Ms Owen had at times applied considerations outside the stated criteria, including in relation to technical skills and personal attributes. On that basis, the tribunal held that the claimant was not marked against the criteria as properly understood or applied fairly, and that the redundancy dismissal was unfair under s.98(4) ERA 1996.

The tribunal referred to the statutory test in s.98 ERA 1996 and to Williams v Compair Maxam Ltd, Polkey v AE Dayton Services Ltd, R v British Coal Corporation ex parte Price, British Aerospace plc v Green, Eaton Ltd v King and Pinewood Repro Ltd t/a County Print v Page. It did not decide remedy in this judgment, stating that Polkey and other remedy issues would be dealt with at a later hearing.