Cleaner selected for redundancy after asking about unpaid leave: a failure to consult
A cleaner was unfairly dismissed after being selected for redundancy solely because she asked about taking unpaid leave to care for her ill mother. The tribunal found no chance she would have been dismissed if a fair procedure had been followed.
1 min read · Last updated 18 May 2026
Case details
- #redundancy
- #unfair-dismissal
- #failure-to-consult
- #subjective-selection-criterion
- #small-employer
- #polkey-zero-chance
Key facts
- The claimant was employed as a cleaner from 1 December 2019 to 30 June 2022.
- The respondent's business had a downturn in June 2022, leading to a genuine redundancy situation.
- The claimant was selected for redundancy solely because she had asked about taking six weeks' unpaid leave to care for her ill mother.
- The respondent did not consult the claimant about redundancy or give her an opportunity to explain she was not actually taking leave.
- The respondent accepted the claimant was a good worker and that if not for the holiday request, she would still be employed.
- The tribunal found zero chance the claimant would have been fairly dismissed if a fair procedure had been followed.
Timeline
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Employment started
The claimant began working for the respondent as a cleaner.
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Holiday request conversation
The claimant asked about taking six weeks' unpaid leave to care for her ill mother in Poland. The respondent indicated this would be difficult and asked for dates by email, but the claimant did not send an email and decided not to go.
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Downturn message
The respondent sent a message to the claimant saying there was a slight downturn and she could work more hours elsewhere if possible. The claimant replied 'OK' and remained available for work.
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Claimant messaged about P60
The claimant messaged the respondent asking about her P60. The respondent replied that he had sent it via WhatsApp.
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Dismissal communicated
The respondent telephoned the claimant but could not reach her, then sent a message saying they would have to separate. Later, an email was sent citing poor performance and availability, but the respondent later accepted the real reason was redundancy.
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Sick note sent
The claimant sent a sick note for a hip injury, but it was received after the dismissal message.
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Claim presented
The claimant brought proceedings for unfair dismissal and unpaid statutory redundancy pay.
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Liability hearing
The tribunal heard evidence via CVP and reserved judgment.
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Judgment issued
The tribunal found the claimant was unfairly dismissed and entitled to statutory redundancy pay. A remedy hearing was scheduled.
The legal issue
The tribunal had to decide whether the claimant was unfairly dismissed by reason of redundancy, and if so, whether there was any chance she would have been fairly dismissed in any event (Polkey reduction).
The outcome
The tribunal found that the claimant was unfairly dismissed. The reason for dismissal was redundancy, but the respondent failed to consult the claimant, did not give her an opportunity to explain that she was not actually taking leave, and selected her solely because of the leave request. The tribunal concluded there was zero chance she would have been fairly dismissed if a fair procedure had been followed.
Compensation will be determined at a separate remedy hearing. The claimant is also entitled to statutory redundancy pay.
Lessons & takeaways
- Employers must consult employees before making them redundant, even in a genuine redundancy situation.
- Selecting an employee for redundancy because of a personal request (like unpaid leave) is likely to be unfair if no other criteria are used.
- Small employers are not exempt from basic fairness; a lack of formal HR processes does not excuse a failure to consult.
- If an employee indicates they are not taking leave, the employer should consider that before proceeding with redundancy.
What this case shows in practice
A cleaner with two years and seven months' service asked her employer about taking six weeks' unpaid leave to care for her ill mother in Poland. The employer said it would be difficult and asked for dates by email. The cleaner did not send the email and decided not to go. Shortly after, the employer told her there was a slight downturn and she could work more hours elsewhere. She replied 'OK' and remained available. Then, without any consultation or warning, she was dismissed by message, later confirmed by email citing poor performance and availability. At tribunal, the employer accepted the real reason was redundancy and that the cleaner was a good worker who would still be employed but for the leave request.
What the losing side could have done differently
The employer could have consulted the cleaner about the redundancy situation, explained the selection criteria, and given her a chance to respond. If they had done so, they would have learned she was not actually taking the leave. A fair process would almost certainly have led to a different outcome. The tribunal noted that even for a small employer with limited resources, basic consultation is expected.
Why the result matters for similar claims
This case reinforces that a genuine redundancy situation does not give employers a free pass to dismiss without process. Selecting an employee based on a single subjective factor—here, a request for leave—without objective criteria or consultation is likely to be unfair. The Polkey reduction of zero percent shows that when a fair procedure would have made no difference to the outcome, the employee is entitled to full compensation.
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