Mr M Castle v Positive Energy Limited — 2021

Mr Castle worked for Positive Energy Limited from 31 January 2017, first as Partner Account Manager and later, from August 2018, as General Manager (Operations). In mid-July 2019 his role changed to Communications and Compliance Manager. The tribunal preferred Mr Castle's account that the change was linked to the work he was already doing on communications and compliance, rather than to any wish on his part to leave office management, and found the role was not created as a short-term device to manufacture redundancy. It also found that the direct debit issue and later Ofgem-related concerns were not the reason for the move into the new role.

The tribunal accepted that the Shell contract signed on 6 January 2020 materially changed the business's compliance requirements and that the respondent then decided to outsource compliance and some communications work. It found there was a genuine redundancy situation because the respondent's need for employees doing that work had diminished. The tribunal rejected the suggestion that a firm redundancy decision had been taken before consultation began. It also found that the late-disclosed evidence about Mr Metcalfe and Mr Nathan Daniels did not show that they should have been in Mr Castle's pool or that the redundancy had been pre-planned.

On fairness, the tribunal held that a pool of one was reasonable because Mr Castle occupied a specific role and no one else did that job. It found the respondent gave him a redundancy rationale, allowed him to respond in writing and at meetings, and considered his point that outsourcing would lose internal experience, even though the consultation could have been fuller. The tribunal therefore held that the dismissal was by reason of redundancy and was fair under section 98(4) ERA 1996. It also found that the alleged protected disclosures were not the principal reason for dismissal, so the whistleblowing issue failed, and no remedy was awarded.