About this case:

• Citation:
  [2024] EAT 174
• Judgment:
  External link
• Court:
  Employment Appeal Tribunal
• Judge:
  Employment Judge B Clarke

Kevin Gallagher raised a claim against McKinnon’s Auto and Tyres Ltd in which he sought to refer to a discussion the parties had about the terms by which they might part ways. The substantive complaint of unfair dismissal had yet to be decided at the time of the appeal.

The appeal was heard by Employment Judge Barry Clarke. Mr Neil MacDougall, advocate, appeared for the claimant and Mr Duncan Milne, advocate, for the respondent.

Surprise meeting

The respondent employed the claimant as a branch manager for almost five years. During June and July 2022, the claimant was absent from work due to a Covid infection and a broken foot. His role was covered during this period, which led the directors of the respondent, including siblings Ms McKenzie and Mr McKinnon, to consider whether they could continue without a branch manager.

On 1 August 2022 Ms McKenzie invited the claimant to a meeting framed as a discussion concerning his return to work. However, she wanted to discuss making an offer of a redundancy package to the claimant. While the claimant contended that Ms McKenzie had acted aggressively during the meeting, the Tribunal found that it was conducted calmly and without raised voices. The claimant was dismissed later that month after a formal meeting on 4 August to discuss his potential redundancy.

It was accepted by counsel for both parties that the Tribunal judge properly directed herself as to the relevant statutory provisions and main case law authorities. All three of the claimant’s ground of appeal were based on contentions that it was perverse for the ET to conclude that the claimant was not subjected to undue pressure, noting factors such as the surprise element of the 1 August meeting and the misrepresentation of that meeting as a “return to work” discussion.

For the respondent it was submitted that the claimant had taken an “excessively pernickety” approach to the judgment. All three grounds represented nothing more than simple disagreement with the ET, with the EAT invited to conclude that the claimant had not overcome the high hurdle of showing perversity in this case.

Open to the judge

In his decision, Employment Judge Clarke noted a change in the claimant’s position on appeal: “The alleged impropriety relied upon by the claimant in this appeal is much more limited in scope than what he put before the ET. Before the ET, the claimant contended that Ms McKenzie and Mr McKinnon were rude and aggressive towards him during the meeting; that they swore at him and were unfairly critical of him; and that he was presented with a 48-hour deadline to respond to a written compromise agreement that was on the table during the meeting. These were hotly contested allegations.”

He added: “In view of that dispute, the ET cannot be criticised for focusing most of its factual analysis on those contentions. In full and careful reasons, the judge explained why she did not find the claimant’s evidence about those matters to be credible or reliable.”

Turning to the three grounds of appeal, EJ Clarke said: “It was suggested that, in the context of this case (namely, a small employer) the redundancy of the branch manager role would only mean one thing: dismissal. Of course, the judge could have concluded that the directors had a closed mind about what would happen if the claimant had rejected the settlement proposal. However, the judge had the benefit of seeing and hearing evidence from the witnesses and, entirely permissibly, she reached the opposite conclusion: that the directors did not tell the claimant that he would be dismissed if he rejected the offer.”

He continued: “It matters little that the text messages demonstrated that Ms McKenzie had reached a firm view that the role performed by the claimant was redundant. The judge found that this did not equate to a firm conclusion that his dismissal would follow, and the judge was clear that Ms McKenzie said nothing to the claimant to indicate that this was her view. That being so, it was open to the judge to decide that this did not constitute undue pressure on the claimant.”

The Employment Judge concluded: “Mr MacDougall has fairly made the point that impropriety should be assessed by looking at the aggregate effect of the pre-determined redundancy, the false pretences for the meeting and the 48-hour deadline. However, reading the ET’s judgment as a whole, it is clear that the judge concluded that these factors did not subject the claimant to undue pressure either individually or cumulatively; the judge was clear that the respondent did not behave improperly overall, and that judgment was open to her on the facts as she found them. Accordingly, the ET committed no error of law.”

The appeal was therefore refused, and the matter remitted to the Employment Tribunal to decide the substantive complaint without regard to the inadmissible evidence.