Ms M Gardiner v MPS Housing Limited — 2019

Ms M Gardiner was employed by MPS Housing Limited as an Estimator from 25 April 2016. In February 2018 she was asked to move to the respondent’s new Dyce office to help mobilise the Aberdeenshire Council contract, and she accepted a substantial pay rise to £53,000 plus a £500 per month relocation allowance. By the time of the later restructure, her estimating duties were negligible and the tribunal accepted that her work was more akin to a Project Manager role.

The tribunal held that the respondent had not shown a redundancy within s.139(1) ERA 1996. The reorganisation in Dyce was not driven by a reduction in the amount of work available; it was designed to create clearer lines of responsibility, remove duplication and improve efficiency. The tribunal accepted that the restructure could amount to some other substantial reason for dismissal, but it found the dismissal unfair under s.98(4) ERA 1996 because no reasonable employer would have treated the restructure as a sufficient reason to dismiss the claimant in the way the respondent did.

In reaching that conclusion, the tribunal relied on the fact that the claimant was a suitable internal candidate for the Project Manager role, that the respondent had no explanation for deciding to recruit externally for that post, and that it had matched Graham Duncan into the Project Surveyor role without external recruitment. It also found that the decision on the Project Manager appointment was made on 24 October 2018 while the claimant was absent, rather than waiting until she returned on 29 October 2018 so that she could be properly interviewed and assessed on the same basis as the external candidate. The tribunal noted that the external successful candidate did not start until over two months later.

On compensation, the tribunal rejected any Polkey reduction because its finding of unfair dismissal was not confined to procedural defects. It held that no basic award was appropriate because the claimant had already received a statutory redundancy payment of £1,016. It accepted that she mitigated her loss by starting alternative employment on 4 March 2019, earning less than she had with the respondent, and awarded £9,837.60 by way of compensatory compensation, including £1,352 for 13 weeks of future loss.