Miss S Deans v McCalls Limited — 2020

Miss S Deans worked for McCalls Ltd as a sales consultant in the Glasgow store, moving to 24 hours per week after maternity leave in March 2018. In March 2020 the respondent was considering cost reductions and redundancies because of trading losses and the impact of Covid-19. The tribunal accepted that there was a genuine redundancy situation: the business needed to reduce wage costs and the requirements for sales consultants in the Glasgow store had diminished.

The tribunal held, however, that the dismissal was unfair under s.98(4) ERA 1996. It found that the claimant had only been warned that redundancies might be necessary and had not been consulted about the redundancy situation, the selection method, or the criteria used. Although the respondent said it would use transferable skills, length of service and absence record, no objective matrix was prepared and those criteria were not actually applied.

The selection decision was found to be subjective and based on incorrect assumptions by the manager. The tribunal held that the manager relied on an inaccurate view of the claimant’s absence record, including counting 13 days’ absence in two years and taking into account the absence arising from her miscarriage, and also relied on her having swapped shifts on several occasions despite knowing the childcare reasons and having approved those swaps. The tribunal also found that there were no redeployment opportunities elsewhere in the respondent’s organisation. Applying the approach in Safeway Stores plc v Burrell, Polkey v A E Dayton Services Ltd and Iceland Frozen Foods Ltd v Jones, it concluded that no reasonable employer would have dismissed the claimant for redundancy in the circumstances.

On remedy, the tribunal held that no basic award was payable because the claimant had already received a statutory redundancy payment. It assessed compensation on the basis that, had she remained employed, she would likely have been on furlough at 80% of pay. It awarded loss of earnings to the hearing, less post-dismissal earnings from new employment, future loss to 28 February 2021 and then for March 2021, plus loss of statutory rights, producing a total compensatory award of £4,451.74.