Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

This case concerns the fairness of a redundancy process carried out by an employer, specifically related to the manner in which the procedure should be carried out.

The facts in Mitchells Of Lancaster (Brewers) Ltd v Tattersall

The Claimant commenced employment with the Respondent (a brewer and the owner of hotels and public houses) as a property manager in May 1998. He had continuous employment in this capacity until 22 October 2010, when he was dismissed by reason of redundancy.

From May 1998 until 22 October 2010 the Claimant was part of the Senior Management Team at the Respondent. During 2010 the Respondent started to experience serious financial difficulties, particularly relating to its cash flow. The Senior Management Team had identified the need for cost savings and had already reduced the staff count at the Respondent.

On 15 June 2010 four of the Senior Management Team met to discuss the possibility of redundancies. The Claimant was not in attendance. At this meeting it was recommended that investigations be undertaken into the possibility of making members of the Senior Management Team redundant. On 6 July 2010 it was decided that the Claimant’s position would be made redundant because of his perceived lack of ability to bring revenue into the company.

The Claimant was in fact made redundant after going through a redundancy procedure which consisted of four individual redundancy consultation meetings. The Claimant was dismissed on 26 July 2010. He subsequently made a complaint of unfair dismissal to the Employment Tribunal.

The Employment Tribunal found in the Claimant’s favour and made a finding of unfair dismissal relating to the procedure of the redundancy. This was based upon four elements: the redundancy pool should have contained the five members of the Senior Management Team, instead of just the Claimant; the selection criteria were not objective enough; the Claimant wasn’t allowed to argue his case sufficiently; and personal antagonisms between the Claimant and another member of the Senior Management Team rendered the decision unfair. However, although the Employment Tribunal found the Respondent liable for unfair dismissal it reduced the Claimant’s compensation by 20% by way of a Polkey reduction.

The Respondent appealed against the finding of unfair dismissal and, in the alternative, appealed on the basis that the Polkey reduction should be increased to a figure higher than 20%.

The law relating to unfair dismissal, specifically that relating to the redundancy pool

Under s.94 of the Employment Rights Act 1996 employees have a right not to be unfairly dismissed. In order to fairly dismiss employees a “potentially fair reason” must be advanced. This “potentially fair reason” must fall under the reasons specified in s.98(4) Employment Rights Act 1996, of which redundancy is one. The case for a redundancy should be made out (i.e. the business is closing or there’s a need to reduce the size of the workforce, among others). As with unfair dismissal generally, the dismissal of an employee must be substantively and procedurally fair for an unfair dismissal claim to be defeated.

To be substantively fair the dismissal for redundancy reasons must be within the reasonable range of responses in the circumstances. For the dismissal to fall within the reasonable range of responses the Respondent must conduct a thorough and impartial redundancy process, must have a reasonable belief in the need to dismiss the Claimant as a result of this redundancy process, and must have an honest belief in the need to make redundancies.

For the dismissal to be procedurally fair, the Respondent must (obviously) carry out a fair procedure. A fair consultation procedure should be carried out, a genuine redundancy situation must exist, and the employer must consult with the employee properly regarding alternative employment. For a fair consultation procedure to have taken place the Respondent must have, among other things, constructed a fair redundancy pool and used fair and objective selection criteria.

Whether a fair redundancy pool has been constructed will depend on the facts of the matter, particularly on a consideration of who has a comparable position to the Claimant.

Should the employer have established a substantively fair dismissal but accrued liability for unfair procedural dismissal then a Polkey reduction may be applied to the award of compensation.

The Employment Appeal Tribunal’s decision in Mitchells Of Lancaster (Brewers) Ltd v Tattersall

The Employment Appeal Tribunal upheld the fairness of the dismissal on one account – the failure to construct a fair redundancy pool. The evidence before the Employment Tribunal (the meeting on 15 June 2010) had suggested to it that the redundancy pool should comprise the five members of the Senior Management Team, not just the Claimant. The failure to consider the other four members of the Senior Management Team for redundancy rendered the procedure unfair.

However, the Employment Appeal Tribunal upheld the Respondent’s appeal against the value of the Polkey reduction. The matter was remitted to the Employment Tribunal for a finding on compensation, with a direction to the Employment Tribunal that the 20% reduction should be increased.

Our specialist employment lawyers’ thoughts on Mitchells Of Lancaster (Brewers) Ltd v Tattersall

This case was won at first instance and appeal by the Claimant on the strength of the fact that he had access to documentary evidence that the redundancy pool should have been widened. Apart from that, the redundancy procedure, according to the Employment Appeal Tribunal, was fair. Employees should be aware that employers have considerable discretion in whether to make redundancies and as to who should be made redundant. Unless there is a clear element of unfairness (such as a failure to carry out a procedure at all) then the fairness of a dismissal is a matter of degree and hinges upon the evidence that the Claimant can obtain. In most circumstances the Respondent possessed the necessary evidence related to the redundancy procedure and it can be difficult to obtain this.

About Chris Hadrill

Chris is a specialist employment lawyer at Redmans. He specialises in contentious and non-contentious employment matters, including breach of contract claims, compromise agreements and Employment Tribunal cases. He writes on employment law matters on a variety of websites, including Direct 2 Lawyers, Lawontheweb.co.uk, LegalVoice, the Justice Gap and his own blog. Contact Chris by emailing him at chadrill@redmans.co.uk

Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Share →

Our awards

Request a callback

    Your first name (required)

    Your last name (required)

    Your email (required)

    Your telephone number (required)

    Brief details of your enquiry

    Testimonials

    4.80 Average

    320 Reviews

    Anonymous

    Efficient and quick service!

    Posted 2 days ago

    Karen B

    Quick response very helpful Issue raised dealt with very quickly

    Posted 5 days ago

    Carmen T

    Redmans give Great service and advice on reading contracts. They can explain all the solicitors jargon into words that you can understand. I received excellent service an I will use them again and again.

    Posted 1 week ago

    Anonymous

    Very grateful for Mel’s efforts in handling my case from start to finish which I would have found very stressful without it. She was very professional, friendly and we had a positive outcome. Highly recommend.

    Posted 4 weeks ago

    Nalin W

    Mel Chin was my Legal Executive when I engaged the services of Redmans Solicitors to help with a redundancy matter. She was incredibly approachable and professional from start to finish. Specially I have to mention regarding prompt reply to all my email queries, It was super quick. I would thoroughly recommend Mel Chin. Many Thanks

    Posted 1 month ago

    Anonymous

    I'd highly recommend Redmans Solicitors. Mel was very helpful and assisted me throughout my case.

    Posted 1 month ago

    Anonymous

    Sacha was very thorough and very helpful, with great advice on when to act and when to wait on my case.

    Posted 1 month ago

    Anonymous

    I have been very pleased with the support I got from Redmans Solicitors on my case with my employer. Caroline has always helped me to put things in perspective and showed me different scenarios ultimately to help me taking the right decision. She was very professional and always available when I needed, and at the same time also emphatic which I found also really important to establish a strong relationship. Will definitely recommend!

    Posted 1 month ago

    Anonymous

    Prompt and efficient response to my enquiries. Excellent negotiating skills with my employer which considerably improved the terms of my settlement agreement.

    Posted 1 month ago

    Anonymous

    Very quick and professional service , Rana was very helpful

    Posted 1 month ago

    James G

    Very professional, knowledgeable and kept me informed at every stage of my case. I would highly recommend Redmans.

    Posted 2 months ago

    Pravina P

    Chris was really good and help solve my issues with current company. I would recommend him to anyone.

    Posted 2 months ago

    Paul L

    Sacha was extremely helpful in my matter. I would not hesitate you use Sacha or Redmonds again. Everyone was very helpful.

    Posted 2 months ago

    Monique N

    I had Mel Chin helping me with a settlement and she was very professional and reliable throughout my case. Mel provided me with a good understanding of what was happening and gave suggestions on routes I could take. My case was resolved and closed promptly although the opposing side were very difficult to deal with. A very big thank you to Mel and Chris.

    Posted 2 months ago

    Jackie C

    My first ever experience needing the services of a solicitor; cannot speak highly enough of Mel and Chris’s personable, reassuring and straight to the point advice in dealing with my settlement agreement. They put me at ease during an extremely stressful time. I am equally as happy with the outcome, as l am their professional services.

    Posted 2 months ago

    ""

    Really happy with the service. All very efficient. Mel rattled through things very fast, however was great whenever I needed to stop and ask a question! Would definitely return to Redmans if I ever needed Legal advice.

    Posted 2 months ago

    Peter F

    Very helpful and clear advice, would highly recommend.

    Posted 2 months ago

    William A

    Second time I have had to use Redmans. They did not disappoint. They are fast , efficient and friendly. I have already recommended them to friends and colleagues. I hope I dont have to use them again but if I have to , they are the solicitors for me.

    Posted 2 months ago

    Fleeta C

    Great service with tantastic communications. The solicitor responsible is extremely knowledgeable and was responsible for bringing a timely and desired solution.

    Posted 2 months ago

    Veronica M

    Extremely helpful, starting from a request for advice at very short notice, to dedicating time for me to understand and review all documents thoroughly.

    Posted 2 months ago

    Sophie R

    Very efficient and professional service. Chris was very empathetic, knowledgeable and personable. Highly recommended.

    Posted 2 months ago