Sham redundancy followed by misconduct dismissal: employer's double failure

A double failure by the employer

This case shows how an employer can fall foul of the law not once but twice in quick succession. The site manager, who had three years' service, was first told he was being made redundant without any warning. The managing director informed him on 7 November 2021 that he and several lorry drivers were to go, and a letter promised a consultation process. But no consultation ever took place. The redundancy was a foregone conclusion.

Then, after the claimant had already been told he was redundant, the employer dismissed him for gross misconduct over a company mobile phone. The allegation was that he had failed to return it. But the employer did not investigate properly — the claimant had in fact returned the phone, albeit damaged. The disciplinary meeting went ahead in his absence, and he was dismissed. The tribunal found this dismissal was also unfair.

What the employer could have done differently

The employer could have avoided both findings by following basic procedures. A genuine consultation on the redundancy — exploring alternatives, considering redeployment — would have made the first dismissal potentially fair. For the conduct issue, a proper investigation, giving the employee a chance to explain, and considering his response would have been essential. The fact that the employer's managing director and his daughter chose to go on holiday rather than attend the hearing did not help their case.

Why this matters for similar claims

This case is a reminder that employers cannot treat redundancy and conduct dismissals as interchangeable or as a way to bypass proper process. The tribunal awarded £8,281.30, which included a 20% uplift because the employer failed to follow the ACAS Code of Practice. Employees who face a sham redundancy or a misconduct dismissal without investigation should know that the law provides protection, and tribunals will look critically at employers who cut corners.