Throughout our story, we will be following a local restaurant called The Sumptuous Pizzeria (TSP). As the name suggests, TSP is a small, local, family run Pizzeria which offers both a sit-in dining experience, take-away and delivery.
Following the COVID-19 outbreak, TSP made use of the Coronavirus Job Retention Scheme (CJRS) and furloughed a number of its staff in order to save the business as a whole. However, it was able to offer some continued, albeit reduced, work for its kitchen and take-away staff during the national lockdown. The delivery services had dipped initially but had rebounded quite quickly as lockdown eased.
The continued work was very beneficial and allowed TSP to service a number of its customers. Additionally, TSP was able to alter the way in which it served dine-in customers by removing a number of tables from use and setting up screens between tables to ensure the safety of its clientele.
Despite the continued and increased demand for take-away / delivery services, Edgar, the owner of TSP, decided that he could no longer maintain the entirety of his workforce, following the closure of the CJRS in October 2020. He thought that this would mainly affect the staff serving the dine-in employees. He decided to take some pre-emptive actions including redundancy and asked Anthony, his Finance Manager who also wore the HR hat, to look into this.
Before Anthony could look in to making redundancies, one of the two Hosts who served as front of house for TSP handed in her notice to go and work for her family business, leaving a vacancy that Anthony duly advertised through TSP’s website and recruitment agency.
First, Anthony turned to the serving staff. He noted that where TSP had previously had 50 tables, each seating up to six customers, they could now only service 30 tables and ensure social distancing was observed as well as space for staff to walk freely around the dining area. Therefore, he decided that he did not require all of his service staff and so would downsize from seven to four.
Anthony was vaguely aware of the rules of redundancy and that a fair process was required. Therefore, he decided to put together a pool of his staff which included all seven of his serving staff that were at risk of redundancy and, without informing them, produce a scoring matrix wherein he set objective scoring for their performance, appraisals, disciplinary records and attendance. Looking at the scoring matrix, Anthony had concluded who had scored the lowest and therefore would be dismissed for redundancy.
Once he had the results, Anthony sent out letters to the three serving staff, informing them of the decision to dismiss them arising from redundancy. He confirmed that in light of their length of services, they would be entitled to a payment in lieu of notice, pay up to and including the termination date, payment in lieu of accrued but untaken holidays and statutory redundancy pay.
Anthony then turned his attention to the two drivers for TSP’s delivery service. In total there were six delivery drivers. During lockdown, all but four of the delivery drivers had been placed on furlough but had been brought back as the demand for delivery had increased. In fact, the demand had increased so much that TSP had been forced to take on a self-employed driver.
Anthony thought that the increased workload could lead to a redundancy situation. He had always found it preferable to have self-employed drivers who could be brought on and let go much easier. Therefore, he planned to remove one of the employed drivers, Lewis, who had a poor attendance record and replace him with a self-employed driver. He decided to take Lewis through a consultation route but after the first meeting, which he thought was very awkward, decided to simply write to Lewis, informing him that the decision had been made to make him redundant and that he would be paid his notice in lieu, accrued but untaken holidays and statutory redundancy.
One of the serving staff, Adam and the driver, Lewis both raise complaints that they feel they have been unfairly dismissed.
All employees over two years qualifying service have the right not to be unfairly dismissed. One of the potentially fair reasons for dismissal is redundancy and usually, where an organisation can establish that the rationale is redundancy, the tribunal will not look behind this.
However, even if the rationale behind the decision to dismiss is ‘potentially’ fair, it does not follow that the decision to dismiss will be automatically fair. Consequently, Adam and Lewis may have good claims against TSP.
For the purposes of this review, we are assuming that Adam and Lewis both had over two years’ service.
Looking at Adam’s case first, if he were to pursue a claim for unfair dismissal, he would likely obtain a judgment that he had been procedurally unfairly dismissed.
The main reason for a finding of procedural unfair dismissal was that TSP failed to hold any form of consultation with Adam or his colleagues to allow them:-
- the opportunity to put forward alternatives to redundancy. For example, Adam may have considered that the vacant Host role was a suitable alternative role for him;
- to discuss and/or dispute the contents and scoring of the scoring matrix; and
- inform them of the planned redundancy process and the risk that they may be dismissed.
It may be possible for TSP to argue that even if the right process had been complied with, the outcome would have still been the same, namely that Adam would have been dismissed. This would not avoid a finding of unfair dismissal but may be able to assist in bringing down any compensation payable as a result of the unfair dismissal.
Lewis may also be able to bring a claim for unfair dismissal against TSP.
Unlike Adam, where TSP could demonstrate a diminished requirement of the work, the drivers were busier than ever and indeed TSP had to obtain additional assistance through self-employed drivers. Therefore, TSP’s reasons for deeming the job to be redundant will be subject to close scrutiny. The other danger for TSP is that Anthony gave up on the consultation process after only one meeting.
The added unknown quantity was that Anthony based his decision to remove Lewis, partly on the fact that he had a poor attendance record. This may be for a number of reasons but, if the reason was because of a disability for the purposes of the Equality Act 2010, then the decision to select Lewis on this basis could give rise to a claim for discrimination that could be levelled against both TSP and Anthony as an individual.