Mrs S Lewis v Cognita Schools Limited — 2021

The claimant, Mrs S Lewis, worked as an After School Care Assistant at Oakfields School from 3 September 2015 until her dismissal on 8 December 2020. The respondent closed its Wrap Around Care service after the March 2020 Covid-19 shutdown, placed the claimant on furlough from 1 April 2020, and later consulted on redundancy after a business case and review of parent surveys indicated reduced demand and compliance issues. She attended consultation meetings on 19 November, 23 November and 8 December 2020, and her appeal of 14 December 2020 was determined on 18 January 2021.

The tribunal found that there was a genuine redundancy situation. It accepted the respondent's evidence that the service had not operated since March 2020 and found no objective evidence of a real current intention to reopen it. Although the prospectus and website still referred to the service, the tribunal held that this did not undermine the business case. Applying the redundancy authorities it cited, including section 139 ERA 1996, Moon v Homeworthy Furniture, James W Cook & Co v Tipper and Berkeley Catering v Jackson, the tribunal said it was not for it to second-guess the employer's commercial decision.

The dismissal was held to be procedurally fair and reasonable under section 98(4) ERA 1996. The tribunal found that the consultation met the standards in Williams v Compair Maxam and R v British Coal ex p Price: there was advance warning, the claimant was given the rationale across three meetings, her points were considered, and alternative work was discussed. It rejected the argument that the appeal was tainted by Ms Carroll's earlier involvement and held that declining to keep the claimant on furlough did not make the dismissal unfair. In the alternative, it said that any compensation would have been reduced to nil under Polkey.

On the separate enhanced redundancy payment issue, the tribunal found no express or implied contractual entitlement. It accepted evidence that earlier enhanced redundancy payments within the respondent group were discretionary and made in different circumstances, and were not sufficiently established to become a contractual term. The unfair dismissal claim and the enhanced redundancy payment claim were therefore both dismissed.