Mr J Hegarty v Penny Post Credit Union: 2410496/2021
| Jurisdiction | England & Wales |
| Judgment Date | 09 October 2023 |
| Date | 09 October 2023 |
| Published date | 26 October 2023 |
| Court | Employment Tribunal |
| Subject Matter | Unfair Dismissal |
| Citation | 2410496/2021 |
Case No: 2410496/2021
1
EMPLOYMENT TRIBUNALS
Claimant: Mr J Hegarty
Respondent: Penny Post Credit Union
Heard at: Manchester Employment Tribunal
On: 4, 5, 6, 7 and 8 September 2023
28 September 2023 (in chambers)
Before: Employment Judge Dunlop
Representation
Claimant: Miss A Robinson (counsel)
Respondent: Miss C Barry (counsel)
JUDGMENT
1. The claimant’s claim of unfair dismissal under Regulation 7(1) Transfer of
Undertakings (Protection of Employment) Regulations 2006 is not well-
founded. That claim is dismissed.
2. The claimant’s of unfair dismissal under s.94 and s.98 Employment Rights
Act 1996 is well-founded. That claim succeeds.
3. If the claimant had not been unfairly dismissed, he would have been fairly
dismissed by reason of redundancy on 9 April 2021. Following such a
dismissal, he would have been entitled to receive a statutory redundancy
payment and to be given notice (or alternatively payment in lieu of notice)
12 months.
4. The compensation payable to the claimant in view of this Judgment will be
calculated at a Remedy Hearing, on a date already notified to the parties.
REASONS
Case No: 2410496/2021
2
Introduction
1. The claimant, Mr Hegarty, was employed as the CEO of Voyager Alliance
Credit Union, a predecessor of the current respondent. In spring 2021 it was
proposed to make him redundant, and that process advanced almost to the
point of dismissal, before the respondent instead commenced a disciplinary
process. That resulted in Mr Hegarty’s summary dismissal for alleged gross
misconduct on 18 May 2021.
2. Mr Hegarty claims, primarily, that his dismissal was ‘automatically unfair’ as
the reason (or principal reason) for the dismissal was an anticipated transfer
of the business under the Transfer of Undertakings (Protection of
Employment) Regulations 2006 (“TUPE”). Alternatively, he alleges that the
dismissal was unfair under s.98 Employment Rights Act 1996 (“ERA”)
because the respondent chose to dismiss him for misconduct to avoid
liability for a lengthy notice payment that would otherwise be due. Mr
Hegarty has, at an earlier point in these proceedings, withdrawn a breach
of contract claim for notice pay, that has not been dismissed given Mr
Hegarty’s expressed wish to pursue that claim in a civil court.
The Hearing
3. There were some procedural difficulties with this hearing, which I will set out
below in more detail than might often be necessary, as they provide the
context for various decisions made.
4. Unfortunately, the start of the hearing was delayed as I was unavailable on
the morning of what was scheduled to be the first day. The parties were
therefore notified on the Friday afternoon prior to the hearing commencing,
that their attendance would not be required on the Monday and that the
Tribunal would instead use Monday afternoon to undertake preliminary
reading in accordance with the reading lists supplied.
5. I had been provided with a respondent’s bundle reaching almost 1,000
pages, two witness statements on behalf of the claimant, three on behalf of
the respondent and agreed various ancillary documents (reading lists,
chronologies etc). In addition, there was a claimant’s bundle of several
hundred more pages. This was printed-off as a sheaf of documents – there
was an index but no bundle pagination (each document was individually
paginated) and the documents had not been placed in a file. Miss
Robinson’s opening note made reference to some documents within this
(as did the claimant’s witness statement) but suggested that those did not
need to be read as part of pre-reading. I arranged for two copies of the
claimant’s bundle to be hole-punched and put into files by the Tribunal
administration for my use and for the witness table. (This should not be the
job of the administration and takes up Tribunal resources.) I anticipated that
each party would be bringing its own copy of the claimant’s bundle to the
hearing the following day.
6. On the morning of day 2 (Tuesday) the parties and representatives attended
and the hearing began with a housekeeping discussion. I was surprised to
learn that neither claimant’s counsel (instructed on a direct access basis),
nor respondent’s counsel, had copies of the claimant’s bundle. Mr Hegarty
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