Mr K Girdwood v Cathay Pacific Airways Ltd (UK): 2423783/2017
| Judgment Date | 10 July 2018 |
| Citation | 2423783/2017 |
| Published date | 03 December 2018 |
| Court | Employment Tribunal |
| Subject Matter | Unfair Dismissal |
RESERVED
Case No. 2423783/2017
1
EMPLOYMENT TRIBUNALS
Claimant:
Mr K Girdwood
Respondent:
Cathay Pacific Airways Limited (UK)
Heard at:
Manchester
On:
5 and 6 June;
18 June 2018
(In Chambers)
Before:
Employment Judge Howard
REPRESENTATION:
Claimant:
Respondent:
Mr D Brogden, Trade Union Representative
Mr B Cooper QC, Counsel
JUDGMENT
The judgment of the Tribunal is that:
The claimant’s claim of unfair dismissal is not well-founded and is dismissed.
REASONS
1. I heard evidence in support of the respondent from Scott McEwan, Head of
Human Resources UK and Ireland, and Dominic Perret, General Manager, Air Crew.
I heard from Mr Girdwood and in support of his claim, from Darren Brogden, pilot and
representative of the Aircrew Officers Association Europe (AOAE), which is
recognised by the respondent for collective bargaining purposes.
2. During the hearing I was referred to documents contained within an agreed
bundle extending to some 700 pages.
3. Mr Girdwood was made redundant and redundancy was the potentially fair
reason for dismissal identified in the response form. By email of 1 March 2018, the
respondent notified Mr Girdwood that it sought to rely on SOSR as a potentially fair
RESERVED
Case No. 2423783/2017
2
reason for dismissal, in the alternative. Mr Girdwood objected and an Employment
Judge directed that the issue be addressed at the outset of this hearing. Mr Brogden,
opposed the application because, throughout the events at issue, the respondent
had dealt with it as a redundancy situation and it was unfair to rely upon a different
reason now. Mr Cooper argued that the facts giving rise to the decision to dismiss
had not altered; the respondent’s primary case remained that the reason for
dismissal was redundancy, it was simply adding a further category of potentially fair
reason; that leave to amend the response was not strictly necessary and that this
was simply a relabelling exercise. Whilst I appreciated the point, I dealt with the
matter as an application to amend the response and granted it. The factual matrix
remained the same and the respondent relied upon the same matters in seeking to
establish that a fair process was applied; the amendment was limited to relabelling of
existing facts. Mr Girdwood had been aware that the respondent sought to rely on
SOSR in the alternative since 1st March 2018 and there was no prejudice to him in
allowing the application.
The issues
4. The list of issues to be determined were identified and agreed as follows:
Reason for dismissal
4.1 What was the reason or principal reason for the claimant’s dismissal? The
reason relied on by the respondent is the business decision to close the Manchester
base and/or to cease to employ freighter pilots with Manchester as their home base.
4.2 Was the reason a potentially fair reason within ss98(1)(b) and/or (2) of the
Employment Rights Act 1996 (ERA)? In particular;
4.2.1 Did it constitute redundancy within ERA ss98(2)(c) and 139(1)(a)(ii) and/or
(b)(ii), on the basis that the dismissal was wholly or mainly attributable to the fact that
the requirements of the business for employees to carry out work of a particular kind
in the place where the claimant was employed ceased or expected to cease? This
will require consideration of the following subsidiary questions:
(a) Where was the claimant’s place of employment for the purposes of ERA
ss139(1)(a)(ii) and/or (b)(ii)?
(b) Was his dismissal wholly or mainly attributable to the cessation of the
respondent’s business at the claimant’s place of employment and/or of a
requirement for employees to carry out work of that kind in that place within ERA
s139(b)(ii)?
4.2.2 Alternatively, did it constitute some other substantial reason of a kind such as
to justify the dismissal of an employee holding the position which the claimant held
within ERA s98(1)(b)?
Reasonableness
4.3 For the purposes of ERA s98(4), did the respondent act reasonably in all the
circumstances (including the size and administrative resources of the respondent) in
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