When employees are unfairly dismissed, it is commonplace for employers to assert that they would have lost their jobs in any event and that they have thus sustained no financial loss. As a case concerning a restaurant chef showed, however, such contentions are unlikely to be accepted in the absence of solid evidence.
The chef was the most junior member of the restaurant’s 10-strong kitchen team of non-speciality chefs. Following a downturn in business arising from the COVID-19 pandemic, he was informed by telephone that he was being dismissed. There was no real dispute that his dismissal was by reason of redundancy.
After he launched Employment Tribunal (ET) proceedings, the employer conceded that his dismissal was procedurally unfair in that he had neither been consulted nor warned that he was at risk of redundancy. His compensatory award was, however, reduced to zero on the basis that he would inevitably have lost his job even had a fair procedure been adopted.
Given his junior status, the ET reached what it described as an irresistible conclusion that he would have been the lowest scorer in any redundancy exercise. Had he put his mind to it, his boss could reasonably have placed him in a pool of one and his redundancy would in any event have occurred on the date that it did.
Upholding his challenge to that outcome, the Employment Appeal Tribunal (EAT) noted that, in its experience, employers are nearly always adamant that dismissal was inevitable, whilst employees almost invariably express equal certainty that they would have retained their jobs had a fair procedure been followed. The ET was required to engage in a degree of surmise as to what the particular employer would have done had a fair procedure been followed.
Such speculation, however, must be based on a circumspect appraisal of evidence. The ET erred in law in that its reasoning involved a non sequitur: the possibility of a pool of one being fairly chosen did not inevitably mean that the chef’s dismissal would have taken place when it did. Fair consultation might have resulted in some change to the pool or even the outcome. His dismissal might at least have been delayed for some time while consultation took place.
The EAT acknowledged that there may be a compelling reason why a pool of one could fairly be selected absent any warning or consultation. However, it struggled to see any such reason in the chef’s case in that the business continued to trade and his colleagues kept their jobs. It could not be said that the lack of a fair procedure made no difference and that there was only one possible outcome. The case was remitted to the same ET for reconsideration.