Ms K Lindsay v ,15 Solicitor Transis Ltd — 2021

Ms K Lindsay had worked for Transis Ltd since 25 July 2005 as a cashier/attendant at the respondent's filling station. In March 2020, as the Covid-19 pandemic reduced trade, the respondent changed opening hours and shift patterns, asked staff whether they would take unpaid leave, holidays or retirement, and decided not to furlough employees after its CBILS application was refused. The claimant was dismissed for redundancy on 30 March 2020. The earlier claims for statutory redundancy payment and notice pay had been withdrawn and were dismissed by a judgment dated 30 September 2020.

The tribunal found that there was a genuine redundancy situation within s.139(1)(b) ERA 1996 because the respondent's requirement for filling-station attendants had diminished. It accepted that the respondent was under real financial pressure and that the claimant was likely to have been selected in any fair redundancy exercise, but held that the dismissal was procedurally unfair under s.98(4) ERA 1996. The claimant was not told that redundancy was being considered, was not warned that she was at risk, was not told that a scoring matrix was being used, was not told of any right to be accompanied, and was not offered an appeal. The tribunal referred to Polkey v A E Dayton Services Ltd and Williams v Compair Maxam in reaching that conclusion.

On remedy, the tribunal applied a 90% Polkey reduction because it considered there was a very high chance the claimant would have been dismissed in any event before the respondent's position changed on 8 April 2020. It assessed wage loss to 15 September 2020, added £350 for loss of statutory rights, and applied a 10% uplift for the failure to provide an appeal. The final monetary award was £539.99. The prescribed element was £455.91 and the balance above that was £84.08.

The claim under s.38 of the Employment Act 2002 failed because the tribunal found on the balance of probabilities that the claimant had been given a written statement of particulars when she started work in 2005, even though the respondent no longer had a copy of the document.