M Kearns (sitting alone) Mr G Swinton v Texo Group Limited — 2022

The claimant, a plater employed in the respondent’s fabrication division at the Port of Dundee, was dismissed for redundancy on 5 January 2022 after a reduction in work orders and a review of headcount in the Dundee workshop. The tribunal found that the respondent had a genuine diminished need for employees to do work of the kind the claimant performed, and that redundancy was therefore a potentially fair reason for dismissal under section 98(2)(c) ERA 1996 and section 139 ERA 1996.

Applying the Polkey guidance and the section 98(4) fairness test, the tribunal found that the claimant was warned and consulted. He was told on 13 December 2021 that the respondent was considering reducing temporary staff by six, received an at-risk letter with his provisional score, and attended two consultation meetings where he could challenge the criteria and his scoring. The tribunal accepted that meaningful consultation took place and that the respondent reviewed the scores after the first meeting.

The claimant challenged his competence score, safety score, and length-of-service score, and also argued that the respondent should have used a last in, first out basis. The tribunal rejected the challenge to the competence score because there was no evidence that it had been altered, and found that competence and range of skills were different criteria. It also found the safety scoring to be reasonably objective, noting that most of the pool had been scored on the same basis and that higher points were given for safety-related roles such as safety rep, fire warden, or first aider. Although the claimant’s length-of-service score was wrong because the agency had supplied an incorrect start date, the tribunal found that correcting it would not have changed the outcome because he would still have been in the lowest six selected for redundancy.

The tribunal also found that there was no alternative employment within the respondent, although the claimant was told about the possibility of work through Texo Recruitment Limited and did not apply. Overall, it concluded that the dismissal was genuinely due to a downturn in work and that the process adopted was one a reasonable employer could have used. The unfair dismissal claim was therefore dismissed.