Mr N McElwee v Vehicle Trade Centre: 4104630/2020
JUDGMENT
It is the unanimous judgment of the Tribunal that:[1]The claimant was unfairly dismissed[2]While the claimant made a protected disclosure, the sole or principal reason for his dismissal was not that he had made that disclosure[3]The claimant was not discriminated against on the ground of age[4]The respondent was in breach of the claimant’s contract of employment by failing to pay him a bonus payment in February and March 2020 and the respondent is ordered to pay to the claimant the sum of £1000 as damages for breach of contract. .[5]The respondent is ordered to pay to the claimant the sum of £30,000 in compensation for loss of earnings and £500 in respect of loss of statutory rights.[6]The recoupment period is the period between 17th June and 17th December 2020 and the prescribed element is £9614.28.REASONS
[1]The claimant claimed that he had been unfairly dismissed by the respondent; that he was dismissed for having made a protected disclosure; that his dismissal amounted to discrimination on the ground of age and that the respondent had made unlawful deductions from his wages or breached his contract by failing to pay him bonus payments to which he was entitled. The respondent resisted all claims and argued that the claim of unlawful deduction from wages was time-barred.[2]There had been two preliminary hearings for the purposes of case management in this case and various orders had been made. The note of the preliminary hearing of 28 April 2021 set out the issues between the parties. Prior to that hearing, the respondent had made an application for a deposit order but in light of the further particulars of the claimant’s claim provided at that hearing, that application was withdrawn.[3]A further application was made by the respondent on 7 June for strike out of the claimant’s entire claim or in the alternative for a deposit order to be made in respect of the claimant’s claims of age discrimination and whistleblowing and also an application for a postponement of the final hearing. The Tribunal heard further submissions on these applications on the morning of 22 June and refused the applications.[4]The Tribunal unanimously wishes to record its concern both at the timing and content of these applications given that the claimant was unrepresented, that a previous application for a deposit order had been withdrawn and the basis on which the applications were said to have been made.[5]The respondent made the application for postponement on the basis that the respondent was ‘unable to meaningfully respond to the claimant’s claims, or adequately prepare for a hearing on such claims.’ It did not seem to the Tribunal that the respondent had any difficulty in understanding the claimant’s claims. This was particularly the case given that the note of the preliminary hearing of 28 April clearly set out the issues between the parties and moreover that such an application was being made against an unrepresented party. The Tribunal, having heard the evidence, concluded that these applications had been wholly inappropriate and not in keeping with the overriding objective.[6]The Tribunal heard evidence from the respondent’s group General Manager and Director, Mr McLaughlan and another director of the respondent Ms Logan. In addition, the claimant gave evidence and called by way of witness order, a former colleague Mr Docherty. A joint bundle of documents was produced.[7]Having heard the evidence and considered the documents to which reference was made and submissions of the parties, the Tribunal found the following facts to have been established: Findings in fact[8]The claimant had been employed by the respondent from 28th January 2017 until his dismissal on 11 June 2020. He was latterly employed as a Car Sales Manager at the respondent’s Ayr branch. He had previously been a car salesman in the respondent’s Kilmarnock branch.[9]The respondent company operates three branches, at Ayr, Kilmarnock and Kilwinning and employs around 10-15 staff. The respondent company was set up to sell older and/or higher mileage cars. The respondent company is part of a wider group company Bridgend Motor Group Limited, which employed around 212 staff in total.[10]The respondent (and the group company) is a family run business which has been in existence since 1930. The directors of the respondent are all family members.[11]The claimant’s contract of employment provided that he could be moved to any branch of the respondent’s operations within Ayrshire. The claimant had previously worked at another branch of the respondent’s organisation.[12]The claimant was transferred to a new branch which was being set up by the respondent in Ayr. It took around 18 months for the branch to be fully functional, in terms of the completion of building work and forecourt area. The branch was fully operational and completed from around mid 2019.[13]The claimant was responsible for ensuring that the Ayr branch was kept in an appropriate condition and he was also required to sell cars and supervise those working at the branch. In addition to the claimant there was a valeter and another sales person employed at the branch at all times throughout the claimant’s employment.[14]In advance of the claimant’s move to Ayr, he reached agreement with the respondent on changes to his salary structure. The claimant was to receive a £500 site bonus every month while employed at the Ayr branch. There was no time limit set for an end to this payment and the claimant did not ever agree to removal of this payment.[15]The claimant’s average monthly earnings were £462.23 net per week based on an annual income of £30,000.[16]While the claimant was on furlough leave, he was paid 80% of his normal pay, which was £369.78[17]The claimant was regularly advised by Mr McLaughlan and his father who, although retired from the business took an active interest in it, that he was performing well during the period of his employment at the Ayr branch.[18]The claimant was invited to attend a meeting with Mr McLaughlan, Ms Mitchell, who was another director of the company and Mr McAvoy, who was the claimant’s line manager on 6 February 2020. The claimant was advised by Mr McAvoy that he did not have to be accompanied at that meeting as it was a ‘non conflict’ meeting.[19]The respondent had arranged the meeting with the purpose of discussing a new pay structure for the claimant with him. Minutes were taken of the meeting, but these were not produced to the Tribunal. The respondent sought the claimant’s agreement to a restructured pay package which would result in his £500 site bonus no longer being guaranteed. The claimant did not agree to this proposal.[20]Prior to this meeting, the claimant had raised with his line manager and Mr McLaughlan that his holiday pay had not been correctly calculated as it did not include the commission he received when at work. When the claimant raised this matter with Mr McAvoy, he was informed that ‘it would not happen’ (that is that the practice would not change). Mr McLaughlan informed the claimant that this was not how the company calculated holiday pay. The claimant informed Mr McLaughlan and Mr McAvoy that it was a legal requirement to include commission in the calculation of holiday pay. The claimant’s holiday pay had been calculated in this way in his previous employment. The claimant became aware that it was the policy of the respondent not to include commission in the calculation of holiday pay for all staff.[21]Following the meeting on 6 February, the respondent sent a letter to the claimant outlining the proposed changes to his pay structure. The respondent also raised for the first time in that letter the claimant’s performance and stated ‘Please note that our meeting discussions were intended to assist you in improving your and your sites sales performance. Therefore, I must advise you that a failure to sufficiently improve your and the sites performance to meet these compromised figures is likely to lead to formal capability action being instituted against you.”[22]The claimant was asked to sign the letter and refused to do so. The claimant continued to raise the issue the respondent’s policy on the calculation of holiday pay with Mr McAvoy.[23]The claimant was not paid his site bonus in his February or March pay. From middle of March 2020, the claimant was placed on furlough leave as the respondent was required to close all its premises in line with government guidance at the time in response to the COVID pandemic.[24]The claimant sent the respondent government guidelines on the correct calculation of his furlough pay two weeks prior to the pay roll run in April 2020. Notwithstanding this, his pay was not correctly calculated and he suffered a deduction of around £600 in his pay. The respondent initially suggested to the claimant that he was seeking to defraud the government by asking the respondent to calculate his furlough pay in this manner. However, the respondent subsequently adopted the claimant’s suggested method of calculation and paid the claimant the outstanding sums.[25]The respondent moved its operations to online sales only during the government imposed lockdown.[26]In early May 2020, the respondent was reviewing its operations given the challenges it faced from the downturn in business. The respondent considered how it would respond to the challenges faced by the restrictions imposed as a result of the COVID epidemic.[27]During April and May 2020, the claimant sought to contact Mr McAvoy, Ms Mitchell and Mr McLaughlan by phone to find out the position regarding holiday pay and his furlough pay. They did not take his calls until 21 May. The claimant also emailed Ms Mitchell who was responsible for payroll to query the up to date position.[28]The claimant then had a telephone conversation with Mr McLaughlin on 21 May. During that call, the claimant raised the issue of his pay and the correct calculations. Mr McLaughlin’s tone was hostile towards the claimant during that call and the claimant asked him if he was being made redundant. Mr McLaughlan then replied that he was being made redundant. The claimant then asked if anyone else was being made redundant and Mr McLaughlan said ‘its none of your business’ and ended the call. Mr McLaughlan did not call the claimant back or otherwise try to contact him to discuss the matter further.[29]Later that day an email was sent by Ms Mitchell on behalf of Mr McLaughlan to the claimant advising him that he was being made redundant. The letter stated ‘This decision is due to the Company experiencing a downturn in sales in recent months due to the current pandemic crisis and the closure of vehicle sales on the site for the foreseeable future.’ It went on to say ‘As you know, we have considered whether other vacancies exist within the Company, but unfortunately, we are not at present in a position to offer you any alterative post to your redundant position’. The letter made no reference to any selection process or that the respondent intended to close the Ayr branch at which the claimant was based. The claimant was given three weeks’ notice of termination of his employment. The letter also said that the claimant could appeal against his dismissal. The possibility of alternative employment had not been discussed with the claimant.[30]The respondent arranged for the padlock on the claimant’s workplace to be changed immediately after the telephone call on 21 May to prevent the claimant from being able to access it.[31]The claimant then sent an email on 28 May to Ms Mitchell indicating that he wished to appeal against his dismissal. He also asked wither his commission which ought to have been paid in his holiday pay would be paid to him.[32]The claimant emailed Ms Mitchell again on 2 June asking if he could be kept on furlough until August stating “This would give me more time to find another job if my appeal does not go in my favour and at no cost to the company can you please tell me if this can be done. I believe the whole reason for furlough was to protect jobs as long as possible.’ The respondent did not reply to the claimant’s email.[33]On 4 June the respondent contacted the claimant by email and asked him to set out his grounds of appeal against his dismissal. The claimant was advised that the appeal would be handled by Ms Logan, who is the cousin of Mr McLaughlan and a director of the company.[34]The claimant responded in an email of 8 June. He stated ‘don’t penalise me for standing up for what I am due I am not a troublemaker I just get on with my job when I am there as anyone on the Ayr site can confirm.’[35]Ms Logan then sent an email to the claimant on 10 June indicating that his appeal was unsuccessful. The reason given was ‘the closure of vehicle sales on the Ayr site that you are manager of’.[36]The claimant’s employment was terminated with effect from 11 June 2020.[37]The respondent did not make any of its other staff redundant.[38]The respondent paid the claimant the outstanding holiday pay for 2019 and 2020 in July 2021.[39]The claimant has obtained alternative, albeit temporary employment as a driver for Tesco and earns around £152.70 per week working on a part time basis. Observations on the evidence[40]The Tribunal did not find Mr McLaughlan either a credible or reliable witness. In particular Mr McLaughlan sought to persuade the Tribunal that he advised the claimant that he was being made redundant in a telephone call because of ‘the sort of guy I am’, in that he was honest and had to tell the claimant the truth. The Tribunal did not accept this evidence. Rather the Tribunal concluded that Mr McLaughlan was annoyed at the claimant contacting him and raising issues about his pay. Mr McLaughlan also sought to suggest that he told the claimant of his redundancy during this call as it would give the claimant a better opportunity to find alternative work. The Tribunal found this evidence to be entirely disingenuous. Mr McLaughlan must have been aware that in May 2020, two months after a national lockdown had been introduced and all car showrooms were closed, that the claimant would find it very difficult to find any alternative employment. His evidence was also in contradiction to the position of the claimant who sent an email which was not dealt with, asking to be kept on furlough for a period.[41]The Tribunal did not accept Mr McLaughlan’s evidence that the meeting of 6 February 2020 had been a positive and good meeting. The meeting had been arranged at short notice to seek to persuade the claimant to agree to a reduction in his guaranteed pay. The claimant was unaccompanied at that meeting at which three senior members of the respondent’s organisation were present.[42]Mr McLaughlan also sought to suggest that the respondent had not altered its approach to the calculation of holiday pay because staff were happy with the existing arrangements. Again, the Tribunal found Mr McLaughlan’s evidence to be disingenuous.[43]The Tribunal did not accept that Mr McLaughlan followed any selection procedure at all prior to dismissing the claimant. There were no notes taken of any process followed by him, he did not give any evidence on when he went through this supposed procedure and the letter confirming the claimant’s dismissal makes no reference to a selection procedure having been followed. The Tribunal concluded, regrettably, that Mr McLaughlan was not truthful about having gone through a selection procedure at all and that his decision to dismiss the claimant was taken in a fit of pique having been contacted on a number of occasions by the claimant about his pay. While the Tribunal accepted that the respondent was experiencing financial difficulties given the situation with the pandemic, and it may well have been considering whether redundancies were necessary, the Tribunal concluded that Mr McLaughlan saw an opportunity to get rid of a troublesome member of staff who had been highlighting deficiencies in the respondent’s pay practices.[44]The Tribunal also had difficulties in accepting Ms Logan’s evidence as reliable or credible. She said that she had a meeting with Mr McLaughlan and Ms Mitchell regarding the selection of the claimant for redundancy, and while she may well have had a meeting to discuss the claimant’s dismissal with Mr McLaughlan and Ms Mitchell, the Tribunal concluded that any explanation for making the claimant redundant given by Mr McLaughlan was an ex post facto justification of the decision he had taken. The Tribunal was also conscious that Ms Logan did not take any notes of this alleged meeting, did not contact the claimant at all to give him information regarding what information had been provided to her and did not address the issues raised by the claimant in his appeal at all. Ms Logan seemed to suggest that it was for the claimant to ask her for information once he had received her decision. Given that her email indicated that the decision was final, the Tribunal found this approach to be wholly unreasonable.[45]In contrast, the Tribunal found the claimant to be an honest and open witness. He was careful to highlight when he could not be sure about his evidence. In particular, he accepted that the end of the call in which he was advised of his dismissal by Mr McLaughlan could have been because of a drop in reception rather than insisting that Mr McLaughlan had hung up on him.[46]Mr Docherty’s evidence was of limited value and it was clear as he remained employed by the respondent that he was concerned not to give any evidence which might put him in a difficult position. Issues to determine[47]The parties had been ordered to lodge with the Tribunal a list of issues in advance of the final hearing, but failed to do so. The issues were however summarised in the note of the Preliminary Hearing, and can be summarised as follows:(a) Did the respondent discriminate against the claimant on the ground of age in terms of section 13 of the Equality Act 2010, and if so was the treatment a proportionate means of achieving a legitimate aim?(b) Did the claimant make a protected disclosure and was the sole or principal reason for dismissal of the claimant that he had made a protected disclosure?(c) Was the claimant unfairly dismissed in terms of section 98 Employment Rights Act 1996 (‘ERA’)?(d) Had the claimant’s holiday pay been calculated by reference to his commission and site bonus?(e) Was the non-payment of the site bonus an unlawful deduction from wages or a breach of contract outstanding on termination of employment? Relevant law Age discriminationRelevant law
[48]Section 13 of the Equality Act 2010 provides that a person will be discriminated against if, because of a protected characteristic he is treated less favourably than others have or would be treated. Where the protected characteristic is age, and it can be shown that the unfavourable treatment is a proportionate means of achieving a legitimate aim, then no discrimination will occur. Automatically unfair dismissal[49]Section 43B of ERA sets out the definition of a protected disclosure(1) In this Part a “ qualifying disclosure ” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.(2) For the purposes of subsection (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory.(3) A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it.(4) A disclosure of information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality as between client and professional legal adviser) could be maintained in legal proceedings is not a qualifying disclosure if it is made by a person to whom the information had been disclosed in the course of obtaining legal advice.(5) In this Part “ the relevant failure ”, in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1).[50]Section 43C provides that a qualifying disclosure can be made to an employer[51]Section 103A ERA provides that (a) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure. Unfair dismissal[52]Section 98 of ERA sets out that(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.(3) In subsection (2)(a)— (a) “capability”, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and (b) “qualifications”, in relation to an employee, means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held.(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case. Unlawful deduction from wages/breach of contract[53]Section 13 ERA provides that an employer should not make a deduction from a worker’s wages other than in particular circumstances.[54]Section 23 ERA provides that any complaint in terms of section 13 must be brought within three months of the deduction or where there are a series of deductions within three months of the final deduction.[55]Article 3 of the Employment Tribunals (Extension of Jurisdiction) Order (Scotland) 1994 provides that: Proceedings may be brought before an Employment Tribunal in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries) if— a) the claim is one to which section 131(2) of the 1978 Act applies and which a court in Scotland would under the law for the time being in force have jurisdiction to hear and determine; b) the claim is not one to which article 5 applies; and c) the claim arises or is outstanding on the termination of the employee’s Submissions[56]The respondent provided written submissions and briefly summarised these submissions before the Tribunal. It was said that the respondent had sympathy with the claimant and that they should not be criticised for making a bad decision given that it was a high intensity situation. It was said that the respondent only dismissed the claimant for business reasons. On questioning by the Tribunal, Ms Meikle confirmed that she was not seeking to suggest that the law in relation to unfair dismissal applied in a different manner due to the challenges of COVID.[57]It was accepted that the respondent did not properly consult the claimant regarding his redundancy and could have done things better, but it was said there was no sinister reason for this.[58]It was recognised that there had been an ‘unorthodox’ approach to the selection of the claimant and that procedurally the process was not perfect. However, the Tribunal was invited to accept that even if the process of the claimant’s dismissal had been flawed, he would have been dismissed in any event.[59]The Tribunal was invited to find the respondent’s witnesses credible and that appropriate selection criteria had been used. The reference in written submissions to performance ratings which were said to have been used in the selection process related to Mr McLaughlan’s view of performance rather than any appraisal or other documentation.[60]In relation to the claimant’s claim of whistleblowing, it was said that the claimant had not made a protected disclosure and that even if he had his dismissal was for redundancy and no other reason.[61]It was said that the claimant’s request to remain on furlough was not acceded to as the respondent didn’t believe that there was any chance of the Ayr branch reopening, although it was accepted that proper consideration had not been given to the question at that time.[62]In terms of the claimant’s age discrimination claim, it was said that there was simply no evidence that his treatment was in any way linked to his age. It was pointed out that another manager who was not made redundant was older that the claimant.[63]In terms of the claimant’s claim for bonus, it was said that any claim for unlawful deduction in wages was time barred and that in any event the bonus payment was only to be paid until the site development was complete.[64]The claimant said that there had been no procedure followed at all in relation to his redundancy. He highlighted guidance from ACAS and said there was no warning, that there should have been at least one meeting, at which the procedure ought to have been explained to him and it should have been explained why he had been provisionally selected and a discussion taken place in relation to ways of avoiding redundancy. The claimant said that none of this took place and that therefore it was an unfair dismissal.[65]The claimant’s position was that the respondent always believed that they would reopen the Ayr branch. He highlighted the evidence of Mr Docherty who had been furloughed from his role at the Ayr branch from March 2020 until May 2021. He said that it did not make business sense to have invested so much money in the Ayr branch for the respondent to have intended to close it permanently.[66]Turning to the question of bonus, the claimant said that he had received a letter which set out his entitlement although this had not been included in the bundle. He said that he received the bonus for 22 months, which included around seven or eight months after the site had been completed.[67]The claimant said that it was because he had stood up to the respondent regarding the issue of his bonus and sales commission and then complained about the calculation of his furlough pay that had resulted in his dismissal. He said he could not understand why others were kept on furlough and he could not have been.[68]He accepted that he had been paid his full holiday pay for 2019 and 2020 after his dismissal and the shortfall in his furlough payment. Therefore he was still seeking payment of his site bonus for February and March. He said that this issue had been ongoing.[69]Finally the claimant said in relation to his claim of age discrimination that the respondent had kept on another sales person who was younger than him who in his view did not have the same sales record. Discussion and decision Age discrimination[70]The Tribunal was of the view that there was no evidence before it which would permit it to draw an inference that the claimant had been dismissed because of his age. The Tribunal accepted that there were other staff employed by the respondent who were older than the claimant and in a similar position to him. The Tribunal therefore concluded that this aspect of the claimant’s claim fails and is dismissed. Protected disclosure[71]The Tribunal concluded that the claimant’s raising the issue of the way in which the respondent calculated holiday pay of sales people by not including commission was a protected disclosure for the purposes of section 48B. It was a disclosure of information, which was made on a number of occasions to Mr McAvoy, Ms Mitchell and Mr McLaughlan including at the meeting on 6 February 2021. The information disclosed came within the scope of the provisions of section 48B(1)(b) in that the respondent was failing in its obligation to properly calculate holiday pay by failing to include commission earned in that calculation.[72]The Tribunal also concluded that the disclosure was in the public interest. The policy complained of affected all sales staff employed by the respondent. It was not simply something which affected the claimant. The Tribunal accepted the claimant’s evidence that he was concerned that this issue impacted upon all staff employed by the respondent and that it remained outstanding for a number of years after it ought to have been rectified.[73]It was not suggested to the claimant that his disclosure had not been made in good faith and the Tribunal accepted that it had.[74]In these circumstances, the Tribunal was satisfied that the claimant had made a protected disclosure for the purposes of section 43B ERA.[75]The Tribunal then went on to consider whether the disclosure was the principal or sole reason for the claimant’s dismissal. The Tribunal accepted that the claimant had raised other issues with the respondent regarding his own position, in particular the calculation of his furlough pay and the dispute regarding his bonus. As the claimant said himself in submissions, it was a combination of these factors which had led to the respondent dismissing the claimant. Therefore, while the Tribunal was of the view that the protected disclosure was a factor in the respondent’s decision to dismiss the claimant, it was not satisfied that it was the principal factor. The Tribunal concluded, as is set out further below, that there were a number of reasons for the claimant’s dismissal, which while they included his raising the issue of holiday pay calculation, also included other factors. Therefore the Tribunal, albeit with some hesitation, concluded that the claimant had not been dismissed for having made a protected disclosure. Unfair dismissal[76]The Tribunal had no hesitation whatsoever in concluding that the claimant had been unfairly dismissed.[77]The Tribunal first considered the reason for the claimant’s dismissal and whether the respondent had established, as it was bound to do, a potentially fair reason for dismissal in terms of section 98. The respondent’s position was that the claimant had been dismissed by reason of redundancy.[78]The Tribunal concluded that the respondent had failed to establish that the claimant had been dismissed for a potentially fair reason. The Tribunal was of the view that the reason for the claimant’s dismissal was that he continued to contact the respondent in relation to the calculation of his pay and his holiday pay and had become troublesome in the respondent’s view. The Tribunal formed the view that there had been no decision to dismiss the claimant for redundancy taken before the telephone call on 21st May 2020. The Tribunal formed this view for the following reasons:a. It found Mr McLaughlan to be a wholly unsatisfactory witness and his evidence to be neither credible or reliableb. There was no documentation, whether board minutes, notes of meetings or email correspondence regarding potential redundancies or business decisions produced to the Tribunal. While the Tribunal recognised that the respondent company only employed 10-15 people at the time, according to Mr McLaughlan there were 212 employed in the group company. The Tribunal would have expected if there had been a decision taken that redundancies had to be made for something on that decision or the decision to select the claimant for redundancy to have been committed to writing.c. There was no evidence that Mr McLaughlan had gone through the selection process he described in evidence. The Tribunal formed the view that Mr McLaughlan did not conduct any selection process at all.d. It was not disputed that the claimant had been trying to contact Mr McLaughlan and Mr McAvoy without success in the weeks leading up to the call of 21st May.e. The claimant was dismissed immediately, and his request to remain on furlough was ignored.f. No other member of staff was made redundant from the respondent’s employment.[79]The Tribunal therefore concluded that when the claimant asked Mr McLaughlan whether he was to be made redundant, Mr McLaughlan saw an opportunity to dismiss an employee who had become troublesome to him. The Tribunal concluded that had that conversation not taken place, the claimant was unlikely to have been dismissed at all.[80]On that basis the Tribunal concluded that the claimant had been unfairly dismissed.[81]However, the Tribunal went on to consider whether, if it had been satisfied that the respondent had established a potentially fair reason for dismissal, being redundancy, that dismissal had been fair in terms of section 98(4) ERA.[82]It had no hesitation in concluding that a fair procedure had not been followed. Although the respondent in closing submissions appeared to accept that a fair procedure had not been followed, for reasons which were not clear to the Tribunal, it did not concede the point. The respondent set out the tests involved in a case where an employee is made redundant and highlighted that a dismissal for redundancy will not normally be fair unless the employer warns and consults employees about the proposed redundancy; adopts a fair basis on which to select for redundancy and considers suitable alternative[83]There was no dispute that the respondent did not warn the claimant of an impending redundancy. Further, the respondent did not consult with the claimant at all in relation to his redundancy. It was said by the respondent that consultation would have made no difference to the outcome. The Tribunal did not accept this submission.[84]In addition, there was no procedure followed at all in relation to the claimant’s selection for redundancy. The Tribunal rejected Mr McLaughlan’s evidence that he went through a procedure for the reasons set out above. As highlighted, there was no mention of any procedure having been followed in the letter to the claimant confirming his dismissal. That letter did not say that there had been a pool for selection either amongst the three site managers or the sales staff more widely. The Tribunal concluded that the respondent may have looked at sales figures after it took the decision to dismiss the claimant, but it did not do so in advance. The claimant was never advised what criteria had allegedly been used, he was never advised what information had been allegedly considered in the selection process and therefore was never given an opportunity to comment on this. As the claimant said, he could have remained on furlough for a further period, but the claimant was given no opportunity to discuss with the respondent any way in which his dismissal could be avoided.[85]Further, the Tribunal did not accept that Mr McLaughlan considered alternative employment for the claimant. Mr McLaughlan’s evidence was that the claimant would not have been interested in for instance a valeting role as an alternative to redundancy. However, he did not ask him this at any stage. This was particularly surprising given Mr McLaughlin’s evidence that some of his staff resigned during the lockdown period as the pandemic caused them to reassess their lives and consider different careers.[86]The Tribunal was also mindful that the reason given for the claimant’s dismissal was ‘the closure of vehicle sales on the site for the foreseeable future.’ This is different from the evidence given by Mr McLaughlin that a decision was taken to close the Ayr site altogether. The reason given in the letter is consistent with the claimant’s view that the respondent did not intend to permanently close the Ayr branch of its operations at all. This of course was borne out as being accurate as the Tribunal heard that the site has now reopened.[87]The Tribunal then went on to consider the appeal process conducted by the respondent. The Tribunal concluded it was entirely inadequate. Ms Logan gave evidence that she spoke to Mr McLaughlan and Ms Mitchell regarding their reasons for selecting the claimant. However, no notes were taken of those discussions and she did not share any of the information she said that she collated with the claimant for his comment. Ms Logan said that she looked at sales performance of the claimant and others but none of this was produced to the Tribunal and the Tribunal did not accept her evidence. Her evidence was on the one hand that she had no involvement in the process until the appeal, but also that she was aware that the relationship between the claimant and Mr McLaughlan had deteriorated. She said that while she couldn’t elaborate on the reasons for this, she was aware that the claimant had been calling Mr McLaughlan and Ms Mitchell.[88]Further, Ms Logan did not take any steps to investigate the issues raised by the claimant and did not believe that looking at whether the claimant ought to have been offered alternative employment was part of her remit. The appeal process was wholly inadequate. No reasons were set out for the conclusion to dismiss the claimant’s appeal, other than ‘the closure of vehicle sales on the Ayr site that you are manager of’. There was no reference to any procedure which was said to have been followed in the process. Ms Logan was not aware that the claimant had asked to remain on furlough. She also said in answer to a question from the Tribunal that she assumed if the claimant had not spoken to Mr McLaughlan on 21 May, he would have remained on furlough.[89]The Tribunal took into account that the respondent company employed a small number of people, but also noted that this company was part of a wider group which employed over 200 people. While the Tribunal accepted that this was the first occasion on which the respondent had to consider redundancies, this was no excuse for failing to follow any procedure whatsoever, particularly when Mr McLaughlan said that he had taken advice from ACAS on the matter.[90]In all these circumstances, the Tribunal had no hesitation in concluding that even if the claimant had been dismissed by reason of redundancy, his dismissal was unfair. Unlawful deduction from wages/breach of contract[91]The claimant had accepted that he had been paid all sums due to him other than the site bonus payment for February and March 2020. Although the submissions from the respondent only addressed the issue of this aspect of the claimant’s claim in the context of it being an unlawful deduction from wages, it is clear from the notes of the Preliminary Hearing of 28th April 2021, that the claim was also considered as a breach of contract.[92]In the first instance, the Tribunal considered whether the claimant had been entitled to receive the bonus payment in February and March 2020. The Tribunal concluded that he was so entitled. It was clear that the respondent had sought the claimant’s agreement to vary his bonus structure and there was no dispute that he had refused to sign the letter which set out the proposed new structure. The Tribunal rejected the respondent’s evidence that the bonus was only payable until the Ayr premises were fully operational. There was no dispute that the claimant had continued to receive the bonus from summer 2019 when it was agreed that the site was complete through to January 2020. This was in contradiction to the respondent’s position that there was any agreement that the bonus payment was time limited.[93]The Tribunal then considered whether the failure to pay these sums amounted to an unlawful deduction from wages in terms of section 13 ERA. While the Tribunal concluded that this did amount to an unlawful deduction from wages, the Tribunal also accepted that such a claim was time barred as it was lodged more than three months after the last deduction (being March 2020).[94]However, the Tribunal accepted that the failure of the respondent to pay the claimant these sums also amounted to a breach of his contract of employment, and that this breach remained outstanding on termination of his employment. Therefore, the Tribunal concluded that the failure to pay the claimant a £500 bonus in February and March 2020 was a breach of contract and the respondent is ordered to pay the claimant the sum of £1000 in compensation.Remedy
[95]The Tribunal then went on to consider what compensation should be awarded to the claimant as a result of his unfair dismissal. The claimant lodged an updated schedule of loss shortly prior to the tribunal hearing. No counter schedule was lodged.[96]The claimant was paid a statutory redundancy payment on termination of his employment. The claimant’s annual income varied depending on the commission he received, and in the last year of his employment he earned just over £30,000. On that basis, his weekly net income would be £462.23. During his period of furlough, his weekly pay would be £369.78 net (that is 80% of his normal pay). The claimant received benefits between 17th June and 17th December 2020.[97]The claimant obtained alternative employment on a temporary basis from 13 March 2021, although he was hopeful that this would be made more permanent. He receives £152.70 per week.[98]The Tribunal concluded that, had the claimant not been unfairly dismissed, he would have remained on furlough leave until the respondent reopened its Ayr premises at the end of May 2021. Therefore, the claimant’s losses during the period from the termination of his employment on 11 June 2020 until the time he would have returned to work and full pay on or around 27 May is a period of 49 weeks.[99]Between the period of 11th June and 17th December (26 weeks), the claimant was in receipt of benefits. During that period of 26 weeks, the claimant’s losses were £9,614.28.[100]From 17th December to 27th May, the claimant’s losses were £8505. During that period, he had income of 11 weeks’ pay at £152.70 net per week, being a total of £1679.70. Therefore, his total losses during that period were £6825.30.[101]The claimant has an ongoing weekly loss of £309.53. The Tribunal concluded that the claimant would find it difficult to obtain alternative work at a level of income similar to that he received when employed by the respondent. In particular, the Tribunal took into account the claimant’s age and the general prevailing economic circumstances. The Tribunal therefore concluded that the claimant should be award the claimant ongoing losses for a further period of 52 weeks, which is a total of £14,439.58. As the total sum of compensation is in excess of the statutory cap of 52 weeks’ gross annual pay, this is limited to the sum of £30,000. In addition, the claimant is awarded £500 in relation to his loss of statutory rights.[102]The Tribunal then considered the respondent’s submissions that had a fair procedure been followed the claimant would have been dismissed in any event and that therefore any compensation should be reduced on the basis of Polkey v A E Dayton Services Ltd 1987 IRLR 50 . The Tribunal did not accept this submission for the following reasons:a. no procedure was followed whatsoever in dismissing the claimant,b. no other employees were made redundant,c. the branch at which the claimant was employed is now operational again, andd. the respondent did not give any consideration to the claimant’s request that he remain on furlough leave.e. There was no discussion with the claimant about any alternative[103]Finally, the claimant is awarded the sum of £1000 in respect of the respondent’s breach of contract in failing to pay the claimant the £500 bonus to which he was entitled in February and March 2020.[104]Therefore, in summary the respondent is ordered to pay to the claimant: Damages for breach of contract £1000 Compensation for loss of statutory rights £500 Compensation for loss of earnings £30,000 (of which £9614.28 is prescribed) Total £31,500