Mr W. Thomson v LCM Administration Services Ltd — 2022

Mr Thomson was employed as a nonferrous manager from 1 January 2017. The tribunal found that LCM could move managers between sites and that, after Mr Duncan McIntyre left Edmonton in August 2019, the claimant carried out Mr McIntyre's duties as well as his own for about eight months. It rejected the respondent's case that the claimant was not acting as site manager during that period, and accepted that Mr Mike Roberts arrived at Edmonton to replace Mr McIntyre as site manager.

The claimant withdrew his age discrimination claim at the hearing, and it was dismissed on withdrawal. On the unfair dismissal claim, the tribunal accepted that the Covid-19 pandemic caused a downturn in the metal recycling business and that redundancy was the principal reason for dismissal, but held that the decision was unfair because the respondent did not pool the claimant with Mr Roberts when the site manager and nonferrous manager roles were being combined, did not carry out any meaningful consultation, and sent a 20 July 2020 letter saying he was merely at risk when the tribunal found he had already been selected for redundancy.

The tribunal also found that the appeal against dismissal was received but not dealt with, which was itself outside the band of reasonable responses. On Polkey, it concluded there was a 50% chance the claimant would have been fairly dismissed if a fair process had been followed, and also observed that if pooling had been considered more widely across the business, there was at most a 50% chance that he would have been fairly selected instead of another nonferrous manager. Compensation was left to a later remedy hearing because the tribunal said the claimant's evolving health situation could affect loss and mitigation issues.