Slater & Gordon: Dismissal was due to redundancy
A senior costs specialist at Slater & Gordon (S&G) has failed in his appeal against a ruling that he had not been unfairly dismissed and was not harassed at work.
Even though Judge Bruce Carr KC in the Employment Appeal Tribunal held that the original employment tribunal (ET) had erred in one respect, he decided that it would not have made any difference to the outcome.
Rob Moon only succeeded on one ground in his claim – that he should have had a right to appeal against the decision to make him redundant – but the ET decided in 2021 that it would not be just to award him damages as an appeal would not have succeeded.
He headed a small team in S&G’s Cardiff office as costs resolution manager and at the time he was made redundant had been unhappy with how work was allocated between the costs teams in different offices and other work issues, leading to complaints, grievances and earlier tribunal claims.
He also suffered from anxiety and depression, which led to periods of sick leave.
Mr Moon claimed unfair dismissal from his £53,000-a-year job and also that he had been discriminated against and harassed on the ground of disability, as well as victimised.
He further claimed there had been unauthorised deductions from wages and a failure to make reasonable adjustments.
The ET found he was dismissed by reason of redundancy and rejected the claims.
The appeal was on three grounds. The unauthorised deductions claim concerned Mr Moon’s bonus and Judge Carr rejected his appeal and upheld S&G’s cross-appeal on this.
He said the ET “fell into error” in failing to approach the claim by reference to the statutory definition of wages and Court of Appeal guidance on the issue.
But this did not mean the appeal should be allowed or the claim remitted for rehearing – had the ET properly addressed the issue, “it would inevitably have still dismissed the claim”.
Mr Moon’s entitlement to a bonus was “clearly subject to a discretion” and did not meet the definition, the judge said.
To advance a claim based on an unpaid (or, as in this case, underpaid) bonus, “it would be necessary for him to show that his entitlement to [a] bonus had crystallised into an ascertainable amount which had then not been paid”.
Judge Carr continued: “Even if the ET concluded that the respondent’s decisions as to the level of bonus which the claimant was paid were reached as a result of an irrational or capricious exercise of discretion, they would not be in a position to determine what the correct figure was – i.e. it was not ‘ascertainable’ – with result that the claim would not fall within the jurisdiction set out in [the Employment Rights Act 1996].”
As it was, this was not a breach of contract claim and the ET “cannot be criticised” for not considering whether S&G had acted irrationally or capriciously.
The judge went on to dismiss appeals on the harassment and unfair dismissal elements of the decision.
On the former, the ET was entitled to hold that, objectively, “it was not reasonable for the conduct to have had the effect that it did” on Mr Moon.
On the latter, the ET had correctly examined the reason for dismissal. “They recognised that there was what is commonly referred to as a ‘redundancy situation’; they considered whether this had in fact led to the decision to terminate the claimant’s employment and, when placed alongside the claimant’s competing reason argument, they concluded that the reason for dismissal was redundancy.”
The successful cross-appeal just provided “additional bases on which the ET should have rejected the claimant’s unlawful deduction claims”, so no consequential order was needed.
If one firm knows how to make staff redundant or to sack them it is Slater and Gordon. I managed at the firm a disgraceful organisation !