Malekout v Ahmed & Ors (t/a The Medical Centre)

A redundancy exists under section 139 of the Employment Rights Act 1996 where an employer has two employees effectively performing one role and reduces that requirement to one employee. The reason for dismissal is not a protected disclosure where the tribunal finds no causal connection between the disclosure and the employer’s subsequent conduct.

A procedurally unfair redundancy dismissal may properly attract a 100 per cent Polkey reduction where a fair process would inevitably have selected and dismissed the claimant on the original dismissal date. A sham consultation does not require the compensatory period to be extended where genuine consultation could not have altered that inevitable result.

The claimant, a practice manager employed since 1995, was dismissed on 16 January 2009. The respondents said that the dismissal was by reason of redundancy after they had employed another manager in anticipation that the claimant might leave, resulting in two people effectively doing one job.

The Employment Tribunal found that the claimant’s alleged disclosures were not qualifying disclosures and, in any event, played no part in the dismissal. It held that the dismissal was procedurally unfair because the decision to retain the other manager was predetermined and consultation was not genuine. It nevertheless made a 100 per cent Polkey deduction because a fair redundancy dismissal of the claimant at the same time was inevitable.

The claimant appealed the findings on reason for dismissal and remedy.

1. Appeal dismissed. The Employment Tribunal was entitled to find that redundancy was the sole reason for dismissal.

2. The respondents had initially recruited the other manager because they feared that the claimant would resign. Once the claimant remained, there were two employees for effectively one practice-manager role. Reducing that requirement from two employees to one was a diminution in the requirement for employees to carry out work of a particular kind within section 139 of the Employment Rights Act 1996. The Tribunal’s conclusion was therefore not undermined by Murray v Foyles Meats, [1999] ICR 827, or Safeway Stores v Burrell, [1997] ICR 523.

3. The Tribunal had sufficiently dealt with the alleged protected disclosures. More importantly, it had found that nothing done after May 2008 was connected with them. It followed that they were no part of the reason, or principal reason, for dismissal.

4. The dismissal was unfair because the choice to retain the other manager was predetermined and the consultation was not genuine. However, the Tribunal’s clear finding was that, given the choice between the two employees and the loss of trust and confidence, the claimant’s selection for redundancy was inevitable. A 100 per cent Polkey deduction therefore necessarily followed.

5. Mining Supplies Longwall v Baker, [1988] ICR 676, was distinguishable. In that case genuine consultation would have required further time; here, consultation had occurred but was a sham, and a proper process would still have resulted in dismissal on 16 January 2009. The nil compensatory award was rational and not perverse.

• Employment Appeal Tribunal: At a preliminary hearing, dismissed the claimant’s appeal against parts of the Employment Tribunal’s judgment.
• Employment Tribunal sitting at East London: Judgment dated 8 May 2012, with written reasons dated 6 July 2012. It found a procedurally unfair redundancy dismissal but made a 100 per cent Polkey deduction, producing a nil compensatory award.