Mr Dermot Kiely v Malden Marine Ltd — 2021

The tribunal found that Mr Dermot Kiely had been employed by Malden Marine Ltd as a metal fabricator from July 2015 and that the respondent decided in September 2019 to make redundancies because of low trading and a reduced order book. It accepted that he had back-related conditions including osteopenia, scoliosis and osteoporosis, but concluded that the evidence did not establish that those conditions, alone or together, had a substantial adverse effect on his day-to-day activities at the material time. It also found that he had not told the respondent about the diagnoses or the medication details, and that the respondent did not know and could not reasonably have been expected to know that he was disabled for Equality Act purposes.

For that reason, the disability discrimination complaint was dismissed, and the tribunal said the discrimination arising from disability allegations in the list of issues were no longer applicable. On the unfair dismissal claim, the tribunal accepted that there was a genuine redundancy situation and that the respondent’s selection criteria were appropriate to its need to retain more versatile employees. It found that the claimant had been a slow worker since he started, that he and another employee, AT, scored lowest on the matrix, and that it was not unreasonable to retain AT instead of the claimant.

The dismissal was nevertheless unfair because the respondent did not provide an appeal hearing and did not properly consider the claimant’s appeal. The tribunal found that the claimant’s letter of 28 October 2019 was in substance an appeal, including a complaint that his back condition had not been considered, and that Malcolm Fawkes treated it only as a complaint about the process rather than as an appeal. On remedy, the tribunal held that an appeal would probably have taken no more than two further weeks and that there was a 99% likelihood the redundancy dismissal would have been confirmed. It awarded £830 for two weeks' net wages and £350 for loss of statutory rights, making a total award of £1,180.