Mr Archie Teixeira v Zaika Restaurant Limited and Mr Hector DaSilva [2022]

Reduction to nil compensation was wrong.

In Mr Archie Teixeira v Zaika Restaurant Limited and Mr Hector DaSilva [2022] EAT 171, the Employment Appeal Tribunal (EAT) found that the employment judge erred in law in reducing the compensatory award to zero on the basis that the Respondent could reasonably have decided on a pool of selection of one, and so there was a 100% chance the Claimant would have been dismissed on the same date.

The Claimant was employed in August 2015 as a ‘tandoor chef’.  On 1 April 2020, he was notified of his dismissal due to a reduction in work as a result of Covid.  The Respondent admitted no process was followed and the Claimant was procedurally unfairly dismissed.

The Employment Tribunal (ET) found that it was not objectively unreasonable to determine that the Claimant was in a pool of one (as all of the other nine chefs were speciality chefs) or that he would have scored the lowest if a selection matrix had been drawn up.  Therefore, the ET concluded that there was a 100% likelihood that had a fair procedure been followed, the Claimant would still have been selected for redundancy on the same date and therefore awarded no compensation.

The Claimant appealed to the EAT.

The EAT held:

  • The possibility of a pool of one being fairly chosen does not mean that the dismissal was bound to have taken place when it did.
  • The ET needed to consider what this particular employer would have done had it acted fairly, not what some other hypothetical fair employer would have done.
  • The ETs reasoning failed to take into account the general requirement for some warning and consultation, even in the case of a small employer, and even where a pool of selection of one might be found.
  • If the ET considered that dismissal would have been fair absent any consultation some further explanation was necessary to demonstrate a proper application of the relevant law, as some warning and consultation could have resulted in the selection of a pool of more than one, and might have affected the choice of any selection criteria.
  • Even if dismissal would have been inevitable, it might well have been delayed to some extent, which would result in some additional compensation for the Claimant, unless there was some compelling reason why the dismissal would have been fair absent any consultation.
  • There is good reason to examine a decision to choose a pool of one employee with worldly-wise care to avoid the risk that it could be used to get rid of an unwanted employee. It is not for the ET to substitute its decision as to the appropriate pool for selection for that of the employer.

The appeal was allowed and remitted to the same ET for determination giving guidance that if a pool of selection of more than one would have been chosen, the ET will need to consider what criteria would have been applied and the chance that the Claimant would have been fairly dismissed. The ET would need to consider, in broad terms, what selection criteria would have been adopted and what would have been the outcome of their application. ET will need to consider how long any necessary consultation would have taken, even if the conclusion remains that dismissal would have been inevitable.

Author: Haylee Chambers, Associate Solicitor, Employment