Mr Andrew Stewart v , Solicitor Kincardine Manufacturing Services Limited — 2021

The claimant, Mr Andrew Stewart, was employed as an estimator from 3 January 2018. The respondent experienced a downturn during the COVID period and held a management meeting on 28 November 2020 at which it decided to dismiss the claimant without advance warning or consultation. The tribunal found that the claimant was told on 3 December 2020 that he had been selected for redundancy, and that the dismissal was initially justified on the erroneous belief that he did not have two years' service.

The tribunal accepted that there was a redundancy situation within the meaning of s139(1) ERA 1996 and that the downturn in work and need to reduce staffing costs were the principal reasons for the dismissal. It also accepted that much of the claimant's former estimating work continued after his dismissal, including work undertaken by Mr Iain McCulloch, who started on 7 December 2020 on a salary of £40,000. However, the tribunal found there had been no analysis of the estimator role, no fair selection exercise, and no meaningful consultation before the decision to dismiss.

On the evidence, the tribunal preferred the claimant and his witness Mr Sinton to the respondent's witnesses. It found that the claimant's workload had reduced only modestly rather than drastically, that he had not been furloughed as the respondent suggested, and that the respondent's post-dismissal account of its estimating activity was inconsistent with the documentary evidence. The tribunal concluded that if a fair process had been followed, it could not find that the claimant would have been dismissed in any event, and it also could not conclude that dismissal would have occurred at a later date.

In remedy, the tribunal made no basic award because the claimant had already received a redundancy payment. It awarded loss to the date of hearing of £19,228, future loss for 12 weeks of £7,769.25, and loss of statutory rights of £400, making a total compensatory award stated by the tribunal as £27,397. The prescribed element was £19,228 for the period from 3 December 2020 to 29 June 2021, with the balance exceeding that element payable immediately under the recoupment regulations.