Ms Una Kelly v Tennis and Bowling Club — 2021

The respondent, a small tennis and bowling club, had seen declining bar takings before the Covid-19 pandemic and closed its bar in March 2020. In June and July 2020 it consulted the four bar staff about reduced trading, a revised staffing structure and the possibility of voluntary redundancy. Ms Una Kelly and Ms Michelle Kelly both asked for voluntary redundancy on 27 July 2020, and the board granted those requests, giving them notice to 31 October 2020.

The tribunal held that the reason for dismissal was redundancy within section 139 ERA 1996. It accepted that the respondent needed fewer hours and potentially fewer staff, and rejected the argument that financial comments in the board papers or occasional use of cover workers displaced that conclusion. It also found that the respondent acted reasonably under section 98(4) ERA 1996, taking account of its size and resources, the consultation it carried out, the offer of voluntary redundancy, the opportunity for input, and the proposed appeal arrangement. The tribunal said the selection criteria were objective and that the claimants' own requests for voluntary redundancy meant the process was cut short by their choice.

On Ms Una Kelly's age discrimination complaint, the tribunal allowed amendment so that the issue could be determined on its merits, because it had not been properly pleaded in the ET1. It then found no direct age discrimination. The tribunal held that the enhancement of Ms Brown's furlough pay was not done because of Ms Kelly's age or because the respondent preferred a younger worker; it was intended to bring Brown's weekly pay closer to that of the other staff. The tribunal also said that, had the treatment been direct age discrimination, it would have been justified as a proportionate means of achieving a legitimate aim under section 13(2) EA 2010.

The tribunal upheld the unlawful deduction from wages claims because, during the notice period, the claimants were paid furlough pay rather than full pay for weeks when they were not working. The respondent conceded the error and accepted the calculated shortfalls. Ms Una Kelly was awarded £188.25 and Ms Michelle Kelly was awarded £297.96. No compensation was awarded for unfair dismissal because those claims were refused.