Member N Elliot Tribunal Member M McAllister Stuart Dorrans v Duracare Limited t/a Spearhead — 2021

The claimant worked for the respondent from May 2018 on fixed-term arrangements in the mattress workshop. By June 2020 the respondent believed turnover in that workshop had declined and wrote to the claimant saying his contract might not be renewed because of a downturn in workload. The tribunal found that the respondent honestly believed there was a redundancy situation and that the requirements of the business for work of that kind had diminished, so redundancy was a genuine reason for dismissal under s.98(2)(c) ERA 1996.

The dismissal was nevertheless unfair under s.98(4) because the respondent failed to follow its own redundancy procedure and basic fairness requirements. It did not seek volunteers, review overtime, identify a proper selection pool or selection criteria, or carry out meaningful consultation. The tribunal rejected the claimant's arguments that furlough should have been used and that later use of agency staff made the dismissal unfair. Applying the Polkey approach, it found the claimant would have been selected and dismissed by the same date after a fair process, so compensatory loss from the unfair dismissal was reduced to nil. The claimant had already received statutory redundancy pay, which extinguished any basic award.

On direct sexual orientation discrimination, the tribunal accepted that Martin Cook had once used the word 'abhorrent' about homosexuality in a conversation with Kevin Wilcox and found that language insensitive and offensive, but it concluded that the claimant had not shown facts sufficient to shift the burden of proof under s.136 Equality Act 2010. It also found that sexual orientation played no part in the dismissal, including because Andrew Lindberg, who heard the appeal, was unaware of the claimant's sexual orientation.

On the Fixed-Term Employees Regulations claim, the tribunal found that the only continuing difference at dismissal was a 95p hourly pay differential. It held that this was due to the claimant's shorter service and lesser experience, not because he was a fixed-term employee, and in any event it was objectively justified. The complaints about overtime and bonus rates were out of time and, if they had been in time, would also have failed on the merits.

The only monetary award was two weeks' pay under s.38(2) of the Employment Act 2002 for a minor failure to comply fully with the statutory requirements for employment particulars. The tribunal set a week's pay at £360, made a total award of £720, and held that the Employment Protection (Recoupment of Benefits) Regulations 1996 did not apply because there was no award for immediate loss.