E Hossack J Burnett Mr O Riney v Represented by: Ms C Hope Strathclyde Law Clinic Javacrest Ltd — 2021

The claimant, Mr O Riney, was employed as a Service Chef from 1 September 2015. After he broke his shoulder in February 2020 and the respondent’s premises closed during lockdown, he was placed on furlough. When the business reopened on a limited basis in July 2020, the tribunal accepted that turnover had fallen sharply and that the respondent had a genuine redundancy situation within section 139 Employment Rights Act 1996 because the requirements of the business for employees to carry out work of a particular kind had diminished.

The tribunal nevertheless found the dismissal unfair under section 98 Employment Rights Act 1996. It held that there had been no pooling exercise for selection, the basis on which some staff were asked to come in to prepare the premises for reopening and others were left on furlough was not adequately explained, and the respondent’s consultation was inadequate. The tribunal also criticised the use of a Facebook group message to announce that redundancies would be necessary. Although the claimant had been told he could appeal, the appeal did not progress and the tribunal found the overall procedure lacking.

On disability discrimination, pleaded as perceived disability arising from the shoulder injury, the tribunal dismissed the complaint. It found that Mrs Fennessey was not involved in day-to-day management, knew little of the claimant’s work, and understood from his request to move from statutory sick pay to furlough that he was fit to return to work. The tribunal accepted her evidence that she had no reason to think he had a disability associated with the shoulder injury, and concluded there was no basis for an inference of perceived disability.

For remedy, the tribunal said the claimant was not entitled to a basic award because it was offset by the redundancy payment already received. It calculated gross compensatory loss at £5,691, including lost net wages, pension contributions and loss of statutory rights, but applied a 50% Polkey reduction because there was a chance he would still have been selected for redundancy even after a fair consultation. The final unfair dismissal award was £2,845. Separately, the respondent accepted that the redundancy payment and notice pay had been calculated incorrectly, and the tribunal ordered payment of the balance of redundancy pay of £422.30 and notice pay of £636.70.