The EAT has overturned an employment tribunal’s decision that an employee who was made redundant without warning or consultation should receive no compensation for his unfair dismissal.
The facts
Mr Teixeira was employed by Zaika Restaurant Limited. He had the shortest period of continuous employment of the team of ten chefs and was the only non-speciality chef. The restaurant suffered a significant downturn because of the pandemic, and Mr Teixeira was told, by telephone, that he was being made redundant without warning or consultation. He claimed in the employment tribunal that he had been unfairly dismissed.
The employment tribunal agreed and went on to decide how much compensation he should be awarded. To do so, it considered whether, and if so when, Mr Teixeira would have been dismissed if a fair procedure had been followed. The tribunal considered that Mr Teixeira could reasonably have been placed in a selection pool of one, since he was the only non-speciality chef. It held, therefore, that although the dismissal was procedurally unfair, had a fair process been followed, Mr Teixeira’s redundancy would still have occurred when it did. Mr Teixeira’s compensatory award was reduced by 100%, so he received no compensation for his unfair dismissal.
The EAT upheld Mr Teixeira’s appeal.
The EAT considered that the tribunal had not followed the correct legal principles. The possibility of a pool of one being fairly chosen did not mean that the dismissal was bound to have taken place when it did. The tribunal's reasoning failed to consider that even small employers are required to warn and consult, and even if a pool of one is reasonable. Had Mr Teixeira been given some warning and the opportunity for some consultation, it is possible that a larger selection pool might have been used and/or the choice of selection criteria may have been affected. Even if Mr Teixeira’s dismissal was inevitable, it might have been delayed by consultation, which would mean some compensation would have been due to him.
The EAT considered that it could not therefore be said that the only outcome was that the dismissal would have taken place on the same date had a fair process been followed. The EAT also commented that tribunals should consider the use of pools of one with “worldly wise care”. The claim was remitted to the same employment tribunal.
What does this mean for employers?
This is a reminder to employers of the risks of making employees redundant without warning or consultation, even where it seems that their redundancy will be inevitable. It is also a reminder that employers should, when deciding on a selection pool of one employee, ensure that they can explain the thought process behind that decision, as it may well come under tribunal scrutiny in litigation.
