Mr N Hopgood v S Walsh & Sons Ltd: 3202334/2020
| Judgment Date | 20 September 2021 |
| Subject Matter | Age Discrimination |
| Date | 20 September 2021 |
| Citation | 3202334/2020 |
| Published date | 06 October 2021 |
| Court | Employment Tribunal |
Case Number: 3202334/2020
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RM
EMPLOYMENT TRIBUNALS
Claimant: Mr N Hopgood
Respondent: S Walsh & Sons Limited
Heard at: East London Hearing Centre (by Cloud Video Platform)
On: 5, 6 August 2020 & 20 August 2020 (in chambers)
Before: Employment Judge Scott
Members: Ms T Jansen
Mr M Rowe
Appearances:
Claimant: Ms S Crawshay-Williams (Counsel)
Respondent: Mr A Ross (Counsel)
JUDGMENT
The unanimous judgment of the Tribunal is that:
1. The claim that the claimant was unfairly dismissed pursuant to sections 94–98 of
the Employment Rights Act 1996 (‘ERA 1996’) is well founded and succeeds.
2. The claim that the claimant was unfairly dismissed by reason of making a
protected disclosure pursuant to section 103A ERA 1996 is not well founded and
is dismissed.
3. The claim that the respondent subjected the claimant to protected disclosure
detriment pursuant to section 47B ERA 1996 is not well founded and is dismissed.
4. If the remedy is compensation only, the compensatory award will be reduced by
75%, pursuant to the ‘Polkey principle’ (see: Polkey v AE Dayton Services Ltd
[1987] UKHL 8).
Case Number: 3202334/2020
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ORDER
The parties must, within 14 days of the date this Judgment and reasons are sent to
them, provide dates of unavailability for the period 1 November 2021 to 4 March 2022
for a 1-day remedy hearing to be listed by the Tribunal.
REASONS
Background
1. The Tribunal convened on 5 & 6 August 2021 via Cloud Video Platform (CVP)
(all parties were remote) to hear the Claimant’s claim of unfair dismissal (automatic
and ordinary) and detriment because of protected disclosures. The Respondent
resists the claims. It argues that the Claimant did not make protected disclosures as
defined in s43A ERA 1996. If they are wrong on that, they deny that the main or
principal reason for his dismissal was a protected disclosure, nor was the claimant
subjected to any detriment for making a disclosure. Rather, the respondent says that
the Claimant was fairly dismissed by way of redundancy. The Tribunal agreed with
the parties that it would determine liability (including Polkey) first and determine
remedy later, if appropriate.
2. There was an agreed list of legal issues at the outset of the hearing, which was
amended by agreement on Day 1. There is no dispute that the Claimant was an
employee and had the necessary 2 year’s continuous service with which to bring an
ordinary unfair dismissal claim and that he was dismissed.
3. The following legal and factual issues fell to be determined by this Tribunal:
3.1 Time limits
3.1.1 Given the date the claim form was presented and the dates of early
conciliation, any complaint about something that happened before 5 May 2020
may not have been brought in time.
3.1.2. Was the detriment complaint (see below) made within the time limit in
section 48 of the Employment Rights Act 1996? The Tribunal will decide:
i. Was the claim made to the Tribunal within three months (plus
early conciliation extension) of the act complained of?
ii. If not, was there a series of similar acts or failures and was
the claim made to the Tribunal within three months (plus
early conciliation extension) of the last one?
iii. If not, was it reasonably practicable for the claim to be made
to the Tribunal within the time limit?
Case Number: 3202334/2020
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iv. If it was not reasonably practicable for the claim to be made
to the Tribunal within the time limit, was it made within a
reasonable period?
3.2 Unfair dismissal
3.2.1 What was the reason or principal reason for dismissal? The Respondent
says the reason was redundancy. The Claimant says it was because he had
made protected disclosures.
3.2.2 If the reason was redundancy, did the Respondent act reasonably in all
the circumstances in treating that as a sufficient reason to dismiss the
Claimant. The Tribunal will usually decide, in particular, whether:
3.2.2.1 The Respondent adequately warned and consulted the
Claimant. The Claimant will say he was told of the redundancy without
warning or consultation. The Respondent denies this;
3.2.2.2 The Respondent adopted a reasonable selection decision,
including its approach to a selection pool. The Claimant will say the pool
should reasonably have included all 4 Transport Managers. The
Respondent will say, as senior transport manager, the Claimant was
reasonably in a pool of one;
3.2.2.3 The Respondent took reasonable steps to find the Claimant
suitable alternative employment. The Claimant will argue that he could
have continued to be furloughed. The Respondent will say it needed to
cut costs;
3.2.2.4 Dismissal was within the range of reasonable responses?
3.2.3 Is there a chance that the Claimant would have been fairly
dismissed anyway if a fair procedure had been followed, or for some other
reason?
3.2.4. If so, should the Claimant’s compensation be reduced? By how much?
3.2.5 If the reason or principal reason for dismissal was that the Claimant made
the protected disclosure/s alleged below, then the Claimant will be regarded
as unfairly dismissed.
3.3 Protected disclosure
3.3.1 Did the Claimant make one or more qualifying disclosures as defined in
section 43B of the Employment Rights Act 1996? The Tribunal will decide:
3.3.1.1 Did the claimant disclose information on:
i. 10 March 2020;
ii. 20 April 2020
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