Mrs J Waters v Connect Distribution Services Ltd: 1300402/2019

EMPLOYMENT TRIBUNALS

Case No 1300402/2019

Venue Birmingham

Hearing 28th and 29th October 2019

Between

Mrs J WatersClaimant

Connect Distribution Services LtdRespondent

Before

Employment Judge Choudry

In person for claimant

Mr J Heard - Counsel for respondent

Date 31 December 2019

JUDGMENT

(1) The claimant’s claim for unfair dismissal succeeds.

(2) The respondent is ordered to pay the claimant £450 for loss of statutory rights.

(3) The parties have 28 days from the date of this Judgment to agree the rest of the compensatory award failing which they should write to the Tribunal to request a remedy hearing.

REASONS

[1]The claimant brought a claim for unfair dismissal following the termination of her contract of employment by the Respondent on 8th October 2018 by reason of redundancy.

[2]The respondent is the largest independent home appliance and spare parts distribution organisation in the UK employing some 600 employees. Evidence and documents

[3]I heard evidence from the claimant and for the respondent from Mr Andrew Sharp (Managing Director), Mr Carl Bould (Head of Trade), Mrs Leanne Haines (General Manager – People Services) and Mrs Michaela Pugh (Head of HR). In addition, on the first day of the hearing I was presented with an agreed bundle of some 136 pages.

[4]On the second day of the hearing Mr Heard sought permission to add extra documents to the bundle. The first was a presentation from September 2018 at which the ultimate decision had been made about the restructure of the respondent’s business. Mr Heard explained that it was a relevant document, that it had not been disclosed due to an oversight and no more. This presentation had links to other documentation which were not available to Mr Heard. In addition, Mr Heard asked to add notes of a meeting held with the claimant on 24th September 2018 when the respondent held a 1-2-1 with the claimant and other employees about the new structure. Mr Heard indicated that Mr Bould was happy to be recalled in order to answer questions on the documentation.

[5]The claimant was, understandably, unhappy with the late disclosure and had concerns about the authenticity of the documentation. The claimant also requested some time to consider the documentation if I was minded to permit the documentation to be admitted in evidence.

[6]After considering both parties’ representations I was satisfied that it was in the interests of justice to allow the submission of the 1-2-1 notes. In relation to the presentation from September 2018 I suggested to Mr Heard that he only submit this when we also had the reference documents and suggested that the respondent tried to locate these during the adjournment that I would be making to allow the claimant to consider the 1-2-1 documents. Following the adjournment I was informed by Mr Heard that attempts had been made to locate the reference documents but either the links did not work or they were live documents which were regularly updated and, as such, did not contain the information that was relevant in September 2018, at the time Mr Bould made his presentation. The claimant objected to the inclusion of the presentation on the basis that they were incomplete. I shared the claimant’s concerns but as the documents appeared to be relevant to the issues therefore I was satisfied that it was in the interests of justice to permit the inclusion of the presentation. The claimant was offered more time to consider the presentation but she indicated that this was not necessary. Mr Bould was called a second time to answer questions on the presentation and 1-2-1 documents.

Issues

[7]The agreed issues were as follows: Unfair dismissal7.1 Can the respondent show, per section 98 of the Employment Rights Act 1996 (“ERA”), that the claimant was dismissed for a potentially fair reason?

7.2 In particular, was the claimant dismissed in circumstances which amounted to a genuine redundancy situation?

7.3 If so, did the respondent, in all the circumstances, act reasonably or unreasonably in treating its reason for dismissal as a sufficient reason for dismissing the employee?

7.4 Was the dismissal fair or unfair having regard to equity and the substantive merits of the case?

7.5 In particular, did the respondent:7.5.1 Consult fairly with the claimant over redundancy?

7.5.2 Select the claimant fairly for redundancy?

7.5.3 Give adequate consideration to any alternatives to redundancy?

7.5.4 Adopt a fair procedure in implementing the claimant’s redundancy?

7.6 Was dismissal within the bands of reasonable responses?

7.7 If the tribunal determines that the dismissal was procedurally unfair, what difference, if any would a fair procedure have made ?

[8]The claimant disputed that there was a genuine redundancy situation and asserted that the real reason that she was dismissed was due to the fact that she had had a clash with the Sales and Marketing Director, Jonathan Metcalfe, a few weeks prior to her being put At Risk of redundancy.

Facts

[9]I make the following findings of fact:9.1 The claimant commenced employment with the respondent on 5th August 2012 as Dyson Brand Manager, having previously worked at Dyson. The claimant worked in the respondent’s Trade Department. The respondent was Dyson’s sole UK distributor for floorcare (vacuum cleaners) and Environmental Control (fans and air purifiers) suppling independent businesses and some national accounts. The claimant worked in the Major Accounts Team, although the Dyson Brand Manager role was a stand-alone role and its focus was on Dyson products.

9.2 There were two other Brand Managers employed by the respondent. However, they focused on multiple brands, although they managed the spare parts and consumables and there was very little overlap between the claimant and the other Brand Managers.

9.3 The claimant had responsibility for driving overall sales of Dyson products throughout the respondent’s business as well as managing some larger accounts that exclusively bought Dyson products. During her employment the Dyson business grew substantially in both turnover and profit with annual turnover growing from £4 million in 2012 to £20.7 million by the end of 2017.

9.4 The Dyson business fell broadly into 3 categories:

(1) Core Range Floor Products;

(2) Environmental Control; and

(3) Tactical or Clearance Stock which was usually discontinued models or overstocks that Dyson wished to sell. Tactical or Clearance stock was not guaranteed and therefore difficult to forecast although the claimant, as an ex-employee of Dyson, generally faired well with this work.

9.5 In January 2018 the respondent underwent an initial review of its trade strategy which included the segmentation of customers, sales profiles, sales organisational structure, pricing structure, bonus scheme and the portfolio of products. This review was ongoing process lasting until September 2018 in relation to the claimant’s department.

9.6 In April 2018 Dyson changed their market strategy which affected how their vacuum cleaners were sold in the UK. This resulted in the respondent losing the floor range products business as the changes made it no longer financially viable for distribution. However, Dyson agreed that the respondent could continue to supply 3 national accounts with floorcare under a complex fulfilment agreement, the exact terms of which were to be agreed between Dyson and the respondent. The Environmental Control and Tactical and Clearance business was to continue unchanged.

9.7 Around this time the claimant had discussions with her line manager, Carl Bould, about the loss of the business and how it might affect her position. These discussions included potentially broadening the claimant’s role to include managing other floorcare brands that the respondent sold thereby creating a new position of Floorcare Category Manager. However, nothing concrete came out of these discussions.

9.8 Around this time the respondent became a distributor for Hoover floorcare products and launched a new range of Hoover vacuums. A new role of Hoover Brand Manager was created within the Major Accounts department where the claimant worked. Despite people being interviewed for the role the position of Hoover Brand Manager remained unfilled. The role was comparable to that of the claimant carrying an identical bonus structure as the claimant enjoyed but with a lower salary.

9.9 The loss of the Floorcare business did not, initially, have any impact on either the respondent’s turnover or the claimant’s workload. The hot summer of 2018 generated huge demand for Dyson cooling fans and purifiers and kept the claimant very busy. In July 2018 Dyson monthly sales were the highest ever achieving over £2.6 million from sales of Environmental Control products and Tactical and Clearance lines.

9.10 Around 24th June 2018 the respondent recruited a new employee, Colin Bence, within the Major Accounts team to take up a newly created role of Buying Groups Manager. This was a full time position working with all buying groups to plan promotions and trade shows, stock and sales forecasting. Mr Bence was a former employee of Hoover where he had been unhappy and looking to move on.

9.11 Hoover had had a change in leadership and Mr Bence was associated with the old brigade and, as such, he had left their employ to join the respondent. As Hoover were funding the role of Hoover Brand Manager they were not keen on Mr Bence taking up this role. As such the role of Hoover Brand Manager remained vacant although Mr Bence had input on the Hoover launch given his experience.

9.12 Around May 2018 the respondent purchased a parcel of 3200 Dyson clearance vacuums, the sales of which started to slow down through the summer. The respondent was keen to sell these products and Jonathan Metcalfe, the Sales and Marketing Director requested daily updates on sales. In July 2018 the claimant received an offer from a customer to buy all the stock but at a price below cost which Mr Metcalfe told the claimant not to accept.

9.13 In August 2018 the Dyson sales started to slow down as the stocks of cooling fans slowed down and there were no more to buy from Dyson. Furthermore, no Tactical or Clearance stock was available either. The claimant began discussions with Dyson during the mid-August regarding Tactical and Clearance stock which would be becoming available. This led to amounts smaller than previously of Tactical stock and well as some £22,000 of Environmental Control stock. However, by September 2018 the claimant herself was concerned about the amount of revenue Dyson was generating and, in particular, that this meant that she would not be able to achieve her bonus. The claimant spoke to her line manager, Mr Bould, on both an informal and formal basis and suggested that she took on some additional duties such as some business development projects to find new business.

9.14 Around mid-September 2018 Dyson sent the respondent a draft Fulfilment Process Agreement which would enable it to supply floorcare to 3 national accounts.

9.15 On 19th September 2019, Mr Metcalfe authorised the sale of the Dyson clearance vacuums which had been purchased in May 2019 (paragraph 9.10 above refers). These products were sold at a significant loss when the claimant was not at work. The claimant spoke to Mr Metcalfe a few days later when she found out about the sale. The claimant clearly was not happy given that she had been offered a higher price previously and informed Mr Metcalfe that she felt undermined.

9.16 In September 2018 a further review of the respondent’s Trade department was undertaken which included a review of improving profitability and enhancing the services of the Trade Department. The reduction in Dyson sales and concerns about whether the respondent would enter into a contract with Dyson was clearly of concern to the respondent. As such, as a part of this review the claimant’s role of Brand Manager – Dyson was identified as at risk of redundancy.

9.17 On 24th September 2018 the claimant attended a meeting with Mr Bould and HR about the respondent’s restructure. The claimant was shown a copy of the respondent’s proposed structure which showed the Dyson and Hoover Brand Manager roles. The claimant was provided with a copy of the new bonus structure which was to be effective 1st October 2019. The state of the Dyson sales was discussed and the claimant, mindful of the reducing sales, indicated that she was willing to take on other duties. The claimant was not informed at this point that her role was potentially at risk of redundancy.

9.18 On 25th September 2018 the claimant received an email from Dyson confirming Environmental Stock numbers for the remainder of 2018. This amounted to some £980,000 in invoice value. A substantial drop from the sales of Dyson products in the earlier parts of the year when the respondent had sales of £2,296,135 in March 2018, £1,744,124 in April 2018, £1,674,355 in May 2018, £2,634,562 in June 2018 and £2,634,562 in July 2018.

9.19 On Thursday, 27th September 2018 the claimant attended a meeting with Mrs Haines and Mrs Pugh at which she was informed that she was at risk of redundancy. The claimant was placed on immediate garden leave and presented with a letter confirming that she was at risk of redundancy. She was also provided with a vacancy list. The claimant was advised that there would be a consultation meeting on Monday 1st October 2018 which would be the last day of the consultation period effectively giving the claimant a 24 working hour consultation period. The letter sent to the claimant indicated that the during the consultation period the respondent would explore redeployment opportunities within the respondent’s business.

9.20 In the event the claimant asked for the consultation meeting arranged for 1st October 2019 to be re-arranged which the respondent agreed to do re-arrange for 3rd October 2019.

9.21 On 1st October 2019 the claimant sent a grievance a grievance about the way she had been treated by Mrs Pugh and Mrs Haines at the meeting on 27th September 2018.

9.22 Also on the same day Mrs Pugh wrote to the claimant to confirm that her next consultation meeting would be on 3rd September 2018. The claimant was advised that if she did not attend the meeting without good cause a decision could be taken to hold the meeting in her absence. The claimant was also provided with further details of two roles that she had expressed an interest in : Brand Manager (Hoover) and Category Manager – Purchase and Supply Chain.

9.23 The following day Mr Sharp responded to the claimant’s letter of grievance indicating “I am confident having spoken with both Leanne and Michaela that they are only trying to do their best to support you through what is a very sensitive situation”. Mr Sharp further indicated that he looked at the process followed so far and was happy that the respondent was following “what is deemed best practice”.

9.24 The claimant responded to Mr Sharp to indicate that her understanding of the grievance procedure was that she should have been invited to a meeting to discuss her grievance in more detail before she was provided with an outcome to her grievance.

9.25 The claimant duly attended the re-arranged redundancy consultation meeting on 3rd October 2018. During the meeting Mrs Pugh confirmed that the claimant’s role of Dyson Brand Manager was the only role that was being considered for redundancy. The claimant asked for more details of the profitability review which the respondent had undertaken which had been referred to in her At Risk letter but she was not provided with a detailed explanation. During the meeting the claimant made it clear that she was interested in the Hoover Brand Manager role event though she was told that it was a more junior role. The claimant was willing to undertake this role despite it being at a lower salary as she was in the middle of buying a new house and did not want to jeopardise this. The claimant also raised the option of being given additional duties which she could do alongside her Dyson role as she was already managing another brand (Melitta).

9.26 The claimant attended a final consultation meeting on 5th October 2018. At this meeting she was informed that the respondent could not create a Floorcare Category Manager role, nor was it an option for her to be given additional duties. The claimant was informed that going forward Dyson had a £25K fulfilment forecast for 5 clients who were managed by another employee, Katie Clark.

9.27 The claimant was also informed that the Hoover Brand Manager role had also been withdrawn on 4th October 2018 – the day after she had applied for it. The claimant was informed that the role would be undertaken by Colin Bence in addition to this normal full time position. Mrs Haines advised the claimant that Hoover had requested this which the claimant thought was a ruse to avoid giving her the role. At the conclusion of the meeting the claimant was issued with notice of redundancy with immediate effect.

9.28 During the hearing I was presented with an email dated 25th September 2019 – almost a year after the claimant was made redundant - from Bobby Watkins, Head of Sales & Marketing for Hoover. In this email Mr Watkins reflects on the person specification for the Hoover Brand Manager role. Mr Watkins indicates in his email that he wanted to have an individual who was experienced. I note that in his email Mr Watkins indicated that he was “supportive of this appointment since he was the stand-out candidate for the job description”. I note that Mr Watkins does not say that Hoover had requested the appointment of Mr Bence. Furthermore, there is no contemporaneous evidence confirming that Mr Bence was appointed at the request of Hoover.

9.29 On 9th October 2018 the claimant was invited to attend a formal grievance meeting on 11th October 2018 to consider grievances which she had raised firstly in relation to Mrs Haines and Mrs Pugh and secondly in relation to Jonathan Metcalfe. The claimant duly attended the grievance meeting which was chaired by Mr Sharp. The claimant raised concerns about how Mr Sharp seemed to have predetermined her grievance and also the way she had been treated at her initial At Risk meeting.

9.30 On 12th October 2018 the claimant raised an appeal against the decision to make her role redundant. She also raised concerns about the Hoover Brand Manager role and in particular sought confirmation that the role was “live” redeployment as the date of her consultation meeting on 3rd October 2018 and that it was only withdrawn on 4th October 2018 the day before the final consultation meeting. The claimant was invited to attend an appeal meeting on 1st November 2018, once again to be chaired by Mr Sharp. On 16th October 2018 Mr Sharp informed the claimant in writing that her grievance against Mrs Haines and Mrs Pugh had not been upheld. On 19th October 2019 Mrs Pugh confirmed to the claimant that the vacancy for Hoover Brand Manager at been a “live” redeployment opportunity during the consultation meeting on 3rd October 2018 and had only been withdrawn after that.

9.31 On 1st November 2018 the claimant attended a meeting with Mr Sharp to consider her appeal against dismissal. During this meeting Mr Sharp initially indicated that Hoover had requested Mr Bence to take over the Hoover Brand Manager role and then subsequently indicated that it had been a joint decision (“Hoover and I have made the decision to place this role with Colin” page 101). Later the same day the claimant attended a separate meeting to discuss her grievance appeal. In the event neither appeals were successful and the decision to dismissal remained in place.

9.32 Mr Bence ceased to undertake the Hoover Brand Manager role in August 2019 and the role is now undertaken by the Head of Finished Goods.

9.33 Following the termination of the claimant’s employment the respondent’s sales of Dyson products continued to fall with sales of £235,506 in December 2018, £156,755 in January 2019, £169,733 in February 2019 and £278,355 in March 2019. The sales for Dyson have been zero since the final week of April 2019. The contract with Dyson officially terminated on 29th March 2019.

9.34 The claimant secured another role as a Regional Account Manager on 7th March 2019 earning £35,000 per annum with a bonus of up to 25% of salary and a 5% stretch. Applicable law

[10]Section 98 (1) Employment Rights Act 1996 provides that in determining for the purposes of this part, whether the dismissal of an employee is fair or unfair, it is for the employer to show: (a) The reason (or if more than one the principle reason for the dismissal). (b) That it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. A reason falls within the subsection if it – ( c) is that the employee was redundant,

[11]Section 98(4) provides that where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reasons shown by the employer) -(a) depends on whether in the circumstances (including the size and administrative resources of the employers undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee and

(b) shall be determined in accordance with equity and the substantial merits of the case.

[12]Redundancy is defined in s139 as : For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to—(a) the fact that his employer has ceased or intends to cease— (i) to carry on the business for the purposes of which the employee was employed by him, or (ii) to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business— (i) for employees to carry out work of a particular kind, or (ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish. 11. In determining whether an employee has been dismissed by reason of redundancy one should have regard to the case of Safeway Stores plc –v- Burrell

[1997] IRLR 200

(EAT). In Safeway, the EAT formulated a three-stage test for applying section 139 ERA 1996 as follows :

11.1 Was the employee dismissed? If so,

11.2 Had the requirements of the business for employees to carry out work of a particular kind ceased or diminished (or did one of the other economic states of affairs in section 139(1) exist)? If so,

11.3 Was the dismissal of the employee caused wholly or mainly by the state of affairs identified at stage 2 above. 12. In considering the question of fairness of a redundancy dismissal consideration should be had to warning and consultation, adoption of fair selection criteria and consideration of alternative employment as per Williams –v-Compare Maxam Ltd

[1982] IRLR 83

. The question at each stage is whether the decision taken by the employer was within the bands of reasonable responses as per Whitbread plc v Hall

[2001] IRLR 275

[13]Furthermore, a tribunal must not investigate the commercial merits of an employer’s decision that redundancies are required (James W Cook & Co (Wivenhoe) Ltd –v- Tipper

[1990] ICR 716

) nor should the tribunal’s substitute its own view about how an employee should be scored for that of an employer (Russell –v- College of North West London UK/0314/13/MC).

Conclusions

[14]In reaching my conclusions I have considered all the evidence I have heard and considered the pages of the bundle to which I have been referred. I also considered the very helpful oral and written submissions made by and on behalf of the parties.

[15]The first issue I need to consider is whether the respondent had a potentially fair reason for dismissal under Section 98(2) of the Employment Rights Act 1996, namely redundancy.

[16]It is clear from the evidence that by 24th September 2018 the claimant’s workload had reduced significantly as a result of the loss of the Dyson Core Range Floorcare and the unpredictable volume of the Environmental Control and Tactical or Clearance products that would be sold to the respondent. Indeed, by this date the claimant had been concerned about how she would achieve her bonus and had indicated to the respondent that she was willing to undertake other duties. As such the respondent’s need for a Dyson Brand Manager had diminished by September 2018 and, indeed, ceased totally by March 2019. In the circumstances, I am satisfied that the respondent had a genuine redundancy situation as defined in section 139 of the ERA 1996 and that the claimant was dismissed by reason of redundancy and not due to her disagreement with Mr Metcalfe,

[17]As such I am satisfied that the respondent had a potentially fair reason to dismiss the claimant.

[18]I, therefore, need to consider whether or not the respondent followed a fair process in dismissing the claimant for redundancy. In making this assessment I need to consider the consultation process, the selection pool adopted and the consideration given to suitable alternative employment. Whilst I accept the respondent’s representations that the appropriate pool was one containing the claimant only as she was the only Dyson Brand Manager I am not satisfied that the respondent followed a fair process in terms of consultation and seeking alternative employment in dismissing the claimant for redundancy. The claimant was effectively given a consultation period of 1 working day which was woefully inadequate, this period was only increased when the claimant requested more time. In his submissions Mr Heard submits that the consultation period in this case was not unreasonable such as to render the whole process unfair. However, the duration of the consultation period was not the only part of the process that was inadequate. When the claimant raised a grievance about the lack of consultation and her treatment during the consultation process Mr Sharp spoke to Ms Pugh and Ms Haines accepted their version of events at face value and without even meeting the claimant or conducting any further investigation. It was only when the claimant expressed surprise that she had been informed by Mr Sharp of the outcome of her grievance without him giving her an opportunity to meet with him to put forward her concerns that a meeting was arranged. The respondent approached the whole process with a closed mind and it was clear that the decision to dismiss had already been made on 26th September 2018 when the claimant was informed that she was at risk of redundancy and once that decision was taken the respondent was not open to other suggestions.

[19]The same closed mind approach was taken in relation to alternative employment. Despite the fact that the Hoover Brand Manager role was available on 3rd October 2018 and provided to the claimant on a list of vacancies as soon as the claimant became interested in the role she was told that the vacancy was withdrawn. At no point prior to the claimant expressing interest in the role was she informed that the role was already being undertaken by Colin Bence and that it might not be available.

[20]I am not satisfied, in the circumstances, that a fair process was adopted for the reasons set out above and, as such, the claimant’s claim for unfair dismissal succeeds.

[21]I have considered whether a fair process would have been dismissed fairly in any event (the Polkey argument). However, I am not satisfied that if a fair process had been followed that the claimant would have been fairly dismissed in any event. as if the respondent had not approached the matter with a closed mind the likelihood is that the claimant would have remained in employment in the role of Hoover Brand Manager.

[22]As the claimant has already had a redundancy payment she is not entitled to a Basic Award. I award the claimant the sum of £450 for loss of statutory rights and the respondent is ordered to pay this to the claimant. In relation to the rest of the claimant’s compensatory award the parties are invited to try to agree the claimant’s losses based upon the findings in this Judgment. If such losses cannot be agreed between the parties should write to the Tribunal within 28 days of this Judgment requesting a remedy hearing.

[25]Following discussions with Hoover it became clear that they wished to have an experienced individual within the role at Connect. I discussed this Carl Bould and the individuals at Hoover. It was discussed that, given Colin Bence’s previous experience, the fact that he was covering the role at the time and had previously been employed by Hoover directly, he was a strong candidate for the position, Hoover were supportive of Colin and were keen to have him engaged in the role. The decision was therefore taken to absorb the vacancy into Colin’s existing position. Hoover’s support of Colin’s suitability for the role is confirmed in an email from Bobby Watkins at Hoover, dated 25th September 2019 and which can be found at page 122A of the bundle”.13. Mr Heard argue argues that the respondent’s witnesses maintained their position in relation to the Brand Manager – Hoover role during cross examination and this was not challenged by the claimant with the question that the respondent had decided not to give her the Brand Manager – role come what may. However, Mr Heard accepted that the claimant had referred to Mr Bence getting the role as a bolt on to his as a ruse (paragraph 35 of the claimant’s statement refers).

14. In fact, the claimant goes beyond merely saying that there was a ruse. In paragraph 35 of her statement the claimant states: “Finally, the convenient withdrawal of the Hoover role which was ideal redeployment opportunity. The idea that Colin Bence would have this “crucial” full time role bolted on in addition to another full time role of Buying Groups Manager was a ruse to avoid giving the job to me. Bolting on additional responsibilities was somehow possible for Colin, at the time a new starter in a probationary period, but it was not possible for me with over 6 years’ service”.

15. Mr Heard further referred to the Tribunal’s findings at paragraphs 9.10 and 9.11 : “9.10 Around 24th June 2018 the respondent recruited a new employee, Colin Bence, within the Major Accounts team to take up a newly created role of Buying Groups Manager. This was a full time position working with all buying groups to plan promotions and trade shows, stock and sales forecasting. Mr Bence was a former employee of Hoover where he had been unhappy and looking to move on. 9.11 Hoover had had a change in leadership and Mr Bence was associated with the old brigade and, as such, he had left their employ to join the respondent. As Hoover were funding the role of Hoover Brand Manager they were not keen on Mr Bence taking up this role. As such the role of Hoover Brand Manager remained vacant although Mr Bence had input on the Hoover launch given his experience”. In Mr Heard’s submission these findings of the Tribunal were time specific and Mr Bence’s relationship with Hoover improved and he undertook the Hoover Brand Manager role until August 2019 and when the role is was undertaken by the Head of Finished Goods.

16. Mr Heard submits that the Tribunal made no findings of fact that the respondent would not have appointed the claimant under any fair circumstances nor that if a selection process had been undertaken fairly the respondent would have applied an unfair process and never allowed the claimant to be appointed to the role as a bolt on. Mr Heard accepts the finding at paragraph 19 (referred to above) that the respondent took a closed mind approach but argues that this is not the same as finding that the claimant would never have been awarded the position. He further argues that it was not permissible to reach a conclusion that the claimant could not have done anything based on the finding of the respondent having a closed mind.

17. Mr Heard helpfully confirmed that he was not challenging the finding at paragraph 9.28 of the Judgment: “During the hearing I was presented with an email dated 25th September 2019 – almost a year after the claimant was made redundant - from Bobby Watkins, Head of Sales & Marketing for Hoover. In this email Mr Watkins reflects on the person specification for the Hoover Brand Manager role. Mr Watkins indicates in his email that he wanted to have an individual who was experienced. I note that in his email Mr Watkins indicated that he was “supportive of this appointment since he was the stand-out candidate for the job description”. I note that Mr Watkins does not say that Hoover had requested the appointment of Mr Bence. Furthermore, there is no contemporaneous evidence confirming that Mr Bence was appointed at the request of Hoover.”

18. However, Mr Heard argues that absent the finding that the Brand Manager – Hoover role was not a bolt on when considering Polkey everything pointed to Mr Bence being selected for the role. Mr Heard submits that on the Tribunal’s finding, had the respondent approached the alternative employment issue with an open mind, and fairly, then it was it was likely that Mr Bence would have remained performing the Hoover role (on the basis of Scenarios 1 or 2 above) or that there was a 50% Polkey chance of the claimant being appointed to that role (on the basis of Scenario 3).

19. Further, given that it was a bolt on role that it would not have been given to the claimant. Finally, Mr Heard argues that it is impermissible for the Tribunal to find that the role was full time therefore, in considering the question of Polkey, the role to be considered is that of a part time one.

20. The claimant provided her comments to the respondent’s application for a reconsideration in an email dated 12th August 2020. The claimant points out in her submissions that the 3 scenarios put forward by Mr Heard conveniently ignore the fact that this was a redundancy situation, and the respondent was approaching the matter as a straightforward selection process to fill a vacancy where Mr Bence and the claimant were competing candidates. The claimant asserts that the respondent had a duty to redeploy her to avoid redundancy and it was finding of fact that the Hoover role was suitable alternative employment. However, Mr Bence was not at risk of redundancy.

21. Furthermore, in relation to Scenario 1 and the respondent’s assertion that had a fair process been followed that Hoover would have been consulted about who would have filled the vacancy the claimant points to the finding of the Tribunal at paragraph 9.11 that Hoover were funding the role of Hoover Brand Manager and they were not keen on Mr Bence taking up this role. The claimant asserts that this explains why there is no contemporaneous evidence to support any consultation with Hoover and why the role continued to be advertised externally despite Mr Bence “gatekeeping” the role. The claimant further asserts that this explains why Mr Bence was not given the role from the outset when he joined the respondent despite the respondent’s assertion that it was only ever a part time role which could be bolted on. The claimant refers to paragraph 9.28 of the Judgment, the lack of contemporaneous evidence and the fact that the email from Mr Watkins does not indicate that Mr Bence was appointed at Hoover’s request. As such, the claimant asserts that it would be wrong to assert that Hoover would have favoured Mr Bence for the role.

22. In relation to Scenarios 2 and 3 the claimant points out that she was in a redundancy situation and not Mr Bence and that they were not competing candidates in a normal recruitment scenario. As such, the respondent was under a duty to redeploy her. Furthermore, in light of the findings at paragraph 9.11 the likelihood of Hoover’s input being favourable to Mr Bence is highly suspect and gives no examination of her skills and experience. The claimant further submits that the 50/50 figure referred to in Scenario 3 is plucked out of the air.

23. I have carefully considered the submissions made on behalf of both parties and in particular whether a reconsideration of the Judgment is necessary in the interests of justice.

24. The respondent is clearly unhappy with the Tribunal’s conclusion that the claimant was unfairly dismissed by the respondent and that had the respondent not operated a closed mind the likelihood is that the claimant would have remained employed in the role of Hoover Brand Manager. However, a reconsideration hearing is not available to a party to re-argue its case and to revisit the evidence. In this regard I note that the 3 scenarios that were presented at the reconsideration hearing by Mr Heard were not put to me at the full merits hearing. 25. I also take note of the guidance provided by the Employment Appeal Tribunal in the case of Software 2000 Ltd -v- Andrews and others

UKEAT/0533/06

in relation to the question of Polkey: “The question is not whether the Tribunal can predict with confidence all that would have occurred; rather it is whether it can make any assessment with sufficient confidence about what is likely to have happened, using its common sense, experience and sense of justice”

[26]The Tribunal’s discretion must be exercised judicially taking into account the interests of both parties and the requirement of finality of litigation, and giving effect to the overriding objective.

[27]As set out in the Judgment the respondent was advertising the Hoover Brand Manager role as a full time vacancy until 3rd October 2018 and it was only when the claimant expressed an interest in the role on that date did the respondent decide, the following day, to withdraw it as a full time role on 4th October 2018 and make it a bolt on role for Mr Bence. Furthermore, no contemporaneous evidence was provided of Hoover requiring or even preferring Mr Bence to be given the Hoover Brand Manager role. On the contrary the only evidence before the Tribunal was an email from Hoover, almost a year later, indicating that Hoover were “supportive of this appointment since he was the stand-out candidate for the job”. No evidence was provided to show that Hoover were also provided with the claimant’s details. Indeed, the decision to remove the Hoover Brand Manager role as a full time role within 24 hours of the claimant expressing an interest in it demonstrates the closed mind that the respondent took throughout the redundancy process. If the respondent was able to make the Hoover Brand Manager role a bolt on role within 24 hours of the claimant expressing an interest in the role then it was in its gift to keep the role as a full time one and to consider the claimant for this role. I also accept the claimant’s argument that she and Mr Bence were not in a competing redundancy situation. The claimant was at risk of redundancy, Mr Bence was not. As such, the respondent was required to consider the claimant for suitable alternative employment.

[28]In light of this I do not find that the Tribunal fell into error in coming to the conclusion that it was likely that the claimant would have remained in employment in the role of Hoover Brand Manager had the respondent not operated a closed mind.

[29]As such, it is not in the interests of justice to grant the respondent’s application for reconsideration and the application is dismissed.

[30]I note that the parties have not been able to agree on the claimant’s compensatory award. As such, this matter will now be listed for a remedy hearing before me. Signed by on 25th October 2020

[1]The respondent is ordered to pay the claimant the total sum of £21,912.87 as detailed in the Appendix. The Recoupment Regulations do not apply.

[1]By a judgment dated 31st December 2019 which was sent to the parties on 3rd January 2020 (“the Judgment”) the Tribunal determined that the claimant had been unfairly dismissed. The Tribunal determined that the claimant was not entitled to a basic award as the Tribunal was satisfied that the claimant had been dismissed by reason of redundancy and the claimant had already received a statutory redundancy payment. The respondent was ordered to pay the claimant the sum of £450 for loss of statutory rights which has been paid by the respondent.

[2]The “Code V” in the heading indicates that this has been a remote hearing which has not been objected to by the parties. The form of remote hearing was via CVP. A face to face hearing was not held because it was not practicable and all issues could be determined in a remote hearing. Evidence and documents in relation to remedy

[3]I was presented with an agreed bundle of 71 pages which included an updated Schedule of Loss from the claimant. I was also provided with some written submissions by Mr Heard.

[4]I heard evidence from the claimant in relation to the losses she had incurred as a result of her unfair dismissal, the steps she had taken to mitigate her losses, the expenses she had incurred in seeking alternative employment and the bonus scheme in place by the respondent for both the Dyson and Hoover brand manager roles. Issues

[5]After explaining to the claimant the remedies available to her, the claimant confirmed that she was not seeking re-instatement or re-engagement and was only seeking compensation.

[6]As such the issues for me to determine were:6.1 what compensatory award should the claimant be awarded?

6.2 Has the claimant mitigated her losses? Facts

[7]The claimant’s employment ended on 8th October 2018. On termination she received 6 weeks’ pay in lieu of notice from the respondent. The claimant undertook some seasonal part-time work to tide her over whilst she tried to find a more permanent position that would provide her with sufficient income. The claimant earned £1,668 from such work.

[8]The claimant applied for a number of vacancies from October 2018 until February 2019 and attended interviews in Belfast, Staffordshire, Birmingham, Luton and Coventry using her son’s car to travel to interviews and by asking friends for lifts. She seeks £100 for loss of such expenses.

[9]On 7th March 2019 the claimant commenced permanent employment with Electrolux earning £35,000 per annum but with a lower bonus potential than she had enjoyed with the respondent. The claimant confirmed during cross examination that since securing the Electrolux role she had not made any further attempts to seek alternative employment not least due to the fact that the job market has continued to decline since the claimant obtained this role. The claimant was of the view that she was more likely to increase her earnings through securing a promotion with her current employer than obtaining a higher paid role elsewhere. The claimant did not claim any state benefits.

[11]It was agreed between the parties that, in light of the Tribunal’s findings in the Judgment that had the respondent not approached the claimant’s redundancy with a closed mind the claimant would have remained working for the respondent in the role of Hoover Brand Manager beyond 8th October 2018, that her losses should be based upon the earnings she would have received as Hoover Brand Manager (£30,000 plus a bonus of up to £3,000 per month for hitting 120% of sales) and not based upon her salary as Dyson Brand Manager.

[12]The claimant’s period of loss for the purposes of loss of earnings and benefits (except for bonus and pension) commenced from 20th November 2018 and ended on 6th March 2019 (a period of 15.5 weeks) as she commenced alternative employment with Electrolux on 7th March 2019. Whilst the claimant enjoys a higher salary of £35,000 with Electrolux she has a lower bonus structure and therefore has a continuing loss in relation to her bonus. She was also not able to join the Electrolux pension scheme until 7th June 2019.

[13]It was agreed between the parties that the claimant’s net weekly pay for the Hoover Brand Manager role would have been £419.86.

[14]In relation to the bonus the claimant earned the maximum bonus as Dyson Brand Manager. In the absence of any conflicting evidence I accept the claimant’s evidence that had she undertaken the Hoover Brand Manager role she would have been selling Hoover products to the same customers as she did when selling Dyson products. As such, there would not have been any bedding in period and given the fact that the claimant was experienced in selling floor care that she would have earned some bonus. The claimant earned £3,000 per month in bonus as Dyson Brand Manager but whilst the bonus structure was the same for the Hoover Brand Manager role the claimant seeks £2,000 per month (£1,069 net) for loss of bonus to account for any potential bedding in time in the new role. The claimant seeks losses from October 2019 for the full amount of £1,609 net per month and then from 1st April 2019 (the first opportunity she had to earn a bonus with the role with Electrolux) for a further period 12 months based upon her net loss of bonus. The claimant earns a bonus of £465 per month net in her current role creating a net monthly loss of bonus of £604. Mr Heard accepted that the net of bonus for 12 months equated to £7,248.

[15]It was agreed between the parties that the claimant’s loss of company car for the relevant period is £1,393 and for private fuel amounts to £1,303.

[16]The claimant seeks the sum of £270 for loss of private healthcare insurance. Under cross examination the claimant accepted that she had not taken out any private healthcare insurance herself.

[17]It was also accepted that loss of employer pension contributions for the relevant period is £442.04. The claimant also claims employee pension contributions in the sum of £495. She also seeks the sum of £35 in respect of loss of personal property which was not returned to her by the respondent on the termination of her employment.

Applicable law

[18]Section 123 of the Employment Rights Act 1996 provides that: “..the amount of compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer”.

[19]In accordance with Section 124 of the Employment Rights 1996 the compensatory award may not exceed the lower of a year’s pay or the statutory cap from time to time. As the claimant’s effective date of termination the statutory cap in place was £83,682.

[20]The principles upon which the compensatory award is calculated are set out in the case of Norton Tool –v- Tewson

[1972] ICR 501

[21]A claimant is under a duty to take reasonable steps to mitigate her losses. This is a question of fact for the tribunal. The case of Wilding –v- British Telecommunications plc

[2002] ICR 1079

made it clear that the burden of proof is on the employer and it is not enough for the employer to show there were other reasonable steps that the claimant could have taken but did not take. An employer must show that the employee acted unreasonably in not taking them as there is usually more than one reasonable course of action open to a claimant.

[22]In Window Machinery Sales Ltd t/a Promac Group –v- Luckey

UKEAT/0301/14

the EAT indicated that when considering the issue of mitigation a tribunal should ask itself, firstly what steps were reasonable for the claimant to have to take in order to mitigate his or her loss; secondly whether the claimant did take reasonable steps to mitigate loss; and finally, to what extent, if any, the claimant would have actually mitigated his or loss if he or she had taken those steps. Submissions

[23]Mr Heard on behalf of the respondent argues that the claimant has failed to mitigate her losses since obtaining her role with Electrolux but did not produce any evidence of alternative roles that the claimant could have applied for. Mr Heard was of the view that the claimant’s own admission that she had not sought alternative employment since obtaining the Electrolux role was sufficient to show that she had not acted reasonably in mitigating her loss.

[24]Mr Heard also submitted that the claimant was not entitled to claim for employee pension contributions and compensation for loss of her personal property.

[25]In relation to the loss of bonus Mr Heard argued that the claimant had no reasonable expectation of earning a bonus as Hoover Brand Manager as the Hoover role was different to the Dyson role.

[26]Finally, Mr Heard argued that the claimant could not claim for loss of private health insurance on the basis that she had not sought to source alternative cover for herself. Conclusions 12. In reaching my conclusions I have considered all the evidence I have heard and considered the pages of the bundle to which I have been referred. I have also considered the very helpful oral and written submissions made by the claimant and Mr Heard. 13. In relation to the issue of mitigation I am satisfied that the claimant has acted reasonably and mitigated her losses by seeking alternative employment and that it was not reasonable for her to continue to seek alternative employment once she had obtained her role at Electrolux. 14. I am also satisfied that the claimant would have been able to achieve a bonus of £2,000 per month as Hoover Brand Manager given that she earned a full bonus as Dyson Brand Manager, she would be selling to the same customers and was an experienced floor care specialist. 15. I agree with Mr Heard that the claimant is not able to claim compensation for loss of employee pension contributions nor for loss of her personal property. I do not agree with Mr Heard’s assertion that the claimant is not able to seek compensation for loss of private health insurance as she did not seek to procure her own insurance. This is a loss of benefit that the claimant suffered as a result of being unfairly dismissed and, as such, she is entitled to be compensated for it. 16. I am satisfied that the claimant should be entitled to her loss of earnings and benefits (except for pension and bonus) from 20th November 2018 to 6th March 2019 and that she should receive her pension losses until 7th June 2019. I am also satisfied that it is just and equitable to award the claimant the 12 months’ loss of bonus which she is seeking in her Schedule of Loss. As such, the respondent is ordered to pay the claimant a compensatory award in the sum of £21,912.87 as set out in the attached Annex. Employment Judge Choudry 6th December 2020 Annex Compensatory Award Losses from 20.11.18 to 6.03.19(a) Loss of earnings from 20.11.6.03.19 – 15.5 weeks @ £419.85 per week £6,507.83

(b) Loss of company car £1,313.00

(d) Loss of private health insurance £ 270.00 Loss of bonus

(e) Loss of bonus- 1st October to 30th March 2019 6 months at £1,069.48

£6,417.00

(f) Loss of bonus –1st April 2019 to 31st March 2020 £7,248.00 Losses from 20th November 2018 to 7th June 2019

(g) Loss of employer pension contributions £ 442.04 Expenses

(h) Expenses in seeking alternative employment £ 100.00

(i) Sub-total £23,600.87 Less mitigation (£1,688) Total loss £21,912.87