Tinnion Mr. Gary Thomson Lead v , Solicitor Hoyer Petrolog UK Limited — 2021

The claimant group consisted of five WFS drivers who had transferred from Lewis Tankers to Hoyer Petrolog UK Limited on 1 May 2018 under TUPE. The tribunal found that, after the transfer, they continued to work exclusively on WFS aviation fuel deliveries and that the respondent gave them pay rises in 2019 and again in early 2020. It rejected the suggestion that the respondent had an ongoing problem with their wages or had been seeking to reduce their terms and conditions before the pandemic.

The tribunal found that Covid-19 caused a severe fall in aviation fuel demand and a corresponding collapse in WFS volumes. It accepted that the respondent entered furlough discussions in March and April 2020 to reduce costs and keep staff employed for as long as possible, topping up furloughed employees’ pay to basic wage level. It also found that Mr Thomson did not clearly communicate an offer that the WFS drivers would do AirBP or other non-WFS work, and that there was no contemporaneous record showing the respondent had understood any such offer.

By July 2020 the respondent had decided to reduce the WFS driver posts from five to nil. The tribunal accepted that there was a genuine redundancy situation because the requirements of the business for WFS-specific aviation fuel delivery work had substantially diminished. It found that the respondent’s dismissal letter and appeal letter gave a detailed and truthful explanation of why the WFS posts were no longer sustainable, why no selection exercise was required, and why further furlough was not considered a viable answer given the continuing uncertainty and cost.

The automatic unfair dismissal claim under reg 7 of TUPE 2006 failed because the tribunal found that the transfer was not the sole or principal reason for dismissal. The ordinary unfair dismissal claim under s.98 ERA 1996 also failed. Although the tribunal noted some procedural error, including an incorrect reference to selection criteria, it held that this did not make the dismissal unfair in context. It also found that the respondent had reasonably considered alternatives suggested by the claimants, and said that, even if the process had been unfair, there would have been an 80% chance of a fair redundancy dismissal in any event.