Mr D Freindorf v Mulalley & Company Limited — 2019

Mr D Freindorf had been employed by Mulalley & Company Limited since 14 July 1997 and was Operations Manager in the Planned Maintenance Division on just over £82,000 a year. The tribunal found that a genuine redundancy situation arose because of a downturn in work in Planned Maintenance, and that the Respondent’s pool of two Operations Managers, Mr Freindorf and Mr Kilby, was a reasonable one for the exercise. It also found that the verbal warning given on 28 June 2018 was not issued in bad faith and was not manifestly unreasonable.

The tribunal accepted that some parts of the redundancy process were flawed, including the failure to respond to points raised at the consultation stage and the illogical rejection of voluntary redundancies because the point was said to have been raised too late. It held, however, that the appeal process was a careful fresh look at the issues and that those defects were cured on appeal. The dismissal was nevertheless found to be unfair because the absence criterion and its weighting were unreasonable: the tribunal accepted that looking at the last 12 months of absence could be fair, but held that treating one unavoidable absence more harshly than no absence was outside the range of what a reasonable employer would do.

Applying the Polkey question, the tribunal found that the outcome would have been the same even if a fair redundancy selection process had been followed. On its findings, both Operations Managers would have scored four points for absence, and the claimant would still have been selected because of the minus 3 score for the verbal warning. The tribunal therefore made no award of compensation.