Mr A Hatch v H2M Engineering Ltd — 2021

The tribunal found that there was a redundancy situation within the meaning of section 139(1)(b) ERA 1996. It accepted that the requirement for milling and CNC setter work had diminished after the onset of the COVID-19 pandemic and the resulting downturn in demand, so redundancy was a potentially fair reason for dismissal.

The tribunal held, however, that the redundancy selection process was unfair. Applying the Williams v Compair Maxam Ltd guidance alongside section 98(4) ERA 1996, it found that there was no proper consultation with the Claimant, no discussion of the criteria to be used, and no adequate explanation of how the marking exercise was carried out. The selection was made by one individual alone, the criteria were described as largely subjective, and the selecting officer did not attend the hearing or provide a statement.

The tribunal also noted that the Respondent used selection criteria different from those in the Claimant’s contract of employment, without a satisfactory explanation. It found there was a real possibility that, had the contractual criteria been used, the Claimant may have scored differently. The tribunal was also concerned that two employees in the pool received the maximum score on all six criteria, which it considered unlikely on the evidence before it.

The tribunal further found that there was no explanation for the composition of the selection pool and no proper enquiry into suitable alternative employment. It concluded that the dismissal was procedurally as well as substantively unfair, and that the Claimant was unfairly dismissed. Remedy was not determined at this hearing and was adjourned.