Mr Derek Kelly v EPS Construction Management Limited — 2022

Mr Derek Kelly was employed by EPS Construction Management Limited as a Senior Estimator from 10 April 2017 until his employment ended on 31 July 2020. The tribunal accepted that the respondent changed its business model from Tier 2 specialist electrical work towards a Tier 1 primary contractor model, with electrical estimating work expected to shrink and the remaining work to be outsourced. On that basis, it found that the requirement for employees to carry out complex electrical estimating work had diminished and/or was expected to diminish, and that the respondent had shown a genuine redundancy situation within the meaning of section 139(1) ERA 1996.

The tribunal also accepted that the claimant’s dismissal was wholly or mainly attributable to that diminution in complex electrical estimating work. It rejected the suggestion that the dismissal was because the claimant was paid more than Mr Watkins. It found that the claimant was a senior estimator with different responsibilities from Mr Watkins, who reported to him, and that the respondent had genuinely applied its mind to a pool of one.

The claim nevertheless succeeded because the dismissal process was unfair. The tribunal found that the first real discussion of redundancy for the claimant took place on 15 May 2020, by which time the decision to remove the role had already been made. It held that there was no meaningful consultation before dismissal, no indication at that meeting that the respondent was trying to avoid dismissal, and no proper opportunity for the claimant to raise alternatives such as pooling with Mr Watkins or bumping. The later offer of further consultation or appeal in July 2020 did not cure the earlier defects, although the tribunal regarded the claimant’s refusal to engage as understandable in the circumstances.

On remedy, the tribunal made no final monetary award in the liability judgment and listed a remedy hearing for 20 October 2022. It held that a 50% reduction should be applied to any compensatory award under the Polkey principle to reflect the chance that a fair process might still have led to dismissal, and it declined to make any reduction for contributory fault.