A Kemp Mr C McGraw v Represented by: Mr A Hutcheson Solicitor Capita Mortgage Software Solutions Limited — 2019

The claimant, Mr Christopher McGraw, was employed as a Business Development Director and was absent through illness from 15 May 2017 until returning to work in July 2018. In late 2018 the respondent began a redundancy consultation for his role, explaining that there was no real sales pipeline for 2019, limited market opportunity, and no need for the Business Development Director role. The tribunal found that the respondent genuinely believed the role was redundant because of the business strategy then being pursued, and that there was no hidden reason for the dismissal.

In considering fairness under s.98(4) ERA 1996, the tribunal accepted that there had been some imperfections in the process, including earlier changes to the claimant's work arrangements during sickness absence and an initial suggestion that the redundancy decision would be made before the alternative role discussions were completed. However, it found that the respondent consulted with the claimant, sought and circulated his CV, explored redeployment, and engaged with Mr Martin Prescott in another Capita division about two business development roles. The tribunal held that Mr Prescott genuinely considered the claimant, but concluded that the claimant did not have sufficient BPO experience compared with other candidates. Any defect at the point of decision was held to have been cured by the appeal process, which involved Mrs Tracey Francis speaking directly to Mr Prescott.

The unfair dismissal claim was therefore dismissed. The tribunal also rejected the breach of contract claim. In relation to holiday pay, it found that the claimant had been unable to take 15 days' annual leave in 2017 because of illness, had returned to work in 2018, and had been dismissed in the same leave year. Applying NHS Leeds v Larner, it held that unused leave from 2017 carried forward and was payable on termination under Regulation 14 of the Working Time Regulations 1998 and as an unlawful deduction from wages. Because the claimant accepted that five days could have been taken in 2018, the tribunal awarded payment for 10 days only, calculated at £390.48 per day, giving a total award of £3,914.80.