(sitting alone) Stephen Nelson v Respondent — 2019

The Claimant, Stephen Nelson, was employed as a Chemical Process Operator from 15 May 2006 until his dismissal on 29 January 2018, which the parties agreed was by reason of redundancy. He did not challenge the selection pool, consultation, or appeal process. His unfair dismissal case was confined to the Respondent’s efforts to find alternative employment, and in particular whether he should have been offered work in Block 120.

The Tribunal found that the Claimant had developed sensitisation to certain opioid substances in 2007 and that, after a 2015 HSE prosecution of the Respondent, the Respondent adopted a policy of physical segregation or exclusion for sensitised employees. Following meetings in August and September 2015, the Claimant was moved from Block 120 to Block 7. The Tribunal recorded that occupational health advice had at different times indicated that he had worked safely for a prolonged period with controls in place, but the Respondent ultimately treated Block 120 as unsuitable because traces of relevant substances were present and there was no safe limit for sensitised individuals.

When Block 7 was due to close, the Respondent held redundancy consultations in January 2018 and provided the Claimant with a list of vacancies. It offered him work in Small Scale Manufacturing, which it regarded as the only suitable vacancy because of his restrictions, but he declined that role because of the reduction in pay and because he believed he was fit to return to Block 120. After his appeal, the dismissal was confirmed and he received redundancy pay, notice pay, and payments in lieu of benefits.

Applying section 94 and section 98 ERA 1996, the Tribunal directed itself to the range of reasonable responses test and relied on Iceland Frozen Foods v Jones. It also referred to Williams v Compare Maxam on the employer’s duty to consider alternative employment in redundancy. The Tribunal held that the Respondent’s exclusion policy, its refusal to make an exception for a potentially redundant employee, and its efforts to identify alternative work all fell within the range of reasonable responses. It therefore found that the Claimant was not unfairly dismissed and dismissed the claim.