Mr N McElwee v Vehicle Trade Centre — 2021

Mr McElwee worked for Vehicle Trade Centre from 28 January 2017 until his dismissal on 11 June 2020, latterly as Car Sales Manager at the Ayr branch. The tribunal found that he had agreed a pay structure including a monthly £500 site bonus at Ayr, that he had raised concerns that holiday pay was being calculated without commission, and that he also challenged the calculation of his furlough pay. After a telephone call on 21 May 2020, he was told he was being made redundant, followed by an email letter the same day; his appeal was later rejected by Ms Logan.

On the whistleblowing issue, the tribunal held that the claimant's complaints about holiday pay calculations were protected disclosures under the ERA because they concerned a failure to comply with a legal obligation, were made in the public interest, and were made in good faith. It nevertheless found that the protected disclosure was not the sole or principal reason for dismissal. The tribunal found that the claimant had also raised other pay issues and concluded that the dismissal followed the 21 May 2020 exchange rather than being driven principally by the disclosure itself.

The tribunal upheld the unfair dismissal claim. It rejected the respondent's redundancy explanation, finding that there was no documentary record of a redundancy process, no real selection exercise, no warning or consultation, and no consideration of suitable alternative employment. It also found that no other employees were made redundant and that the decision to dismiss was taken in response to the claimant repeatedly raising pay issues. Even if redundancy had been the reason, the tribunal held the dismissal would still have been unfair under section 98(4) ERA 1996, and it rejected the respondent's Polkey argument.

The age discrimination claim failed because there was no evidence from which age could be inferred as a reason for dismissal, and the tribunal noted that older employees in similar positions remained employed. On the bonus issue, the tribunal held that the claimant remained entitled to the £500 site bonus for February and March 2020; the unlawful deduction claim was time-barred, but the same failure was a breach of contract and £1,000 damages were awarded. For remedy on the unfair dismissal claim, the tribunal held that he would likely have remained on furlough until the Ayr branch reopened around the end of May 2021, awarded £30,000 for loss of earnings plus £500 for loss of statutory rights, recorded a prescribed element of £9,614.28 for the recoupment period of 17 June to 17 December 2020, and set the total award at £31,500.