Miss J Manning and Miss S Aston v Auriga Services Ltd: 1300413/2024 and 1300414/2024
EMPLOYMENT TRIBUNALS
Case No 1300413/2024, 1300414/2024
Between
Miss J Manning and Miss S AstonClaimantAuriga Services LtdRespondent
Before
Employment Judge KenwardIn person for claimantMr T Perry (instructed by Counsel) for respondentDate 18 June 2025
JUDGMENT
[1]The complaint of unfair dismissal brought by Miss Manning is well-founded and succeeds.[2]The complaint of unfair dismissal brought by Miss Aston is well-founded and succeeds.[3]A separate Judgment as to Remedy will be issued. Approved by
REASONS
[1]These proceedings arise out of the dismissal of the Claimants, Jane Manning and Stella Aston, from their posts as Grant Assessors on the stated grounds of redundancy when the funding attached to those posts came to an end.[2]The Claimants brought proceedings in the Employment Tribunal contending that their dismissals were procedurally and substantively unfair.[3]The Claims were listed for a final hearing to take place on 20, 21 and 22 May 2025. Judgment as to liability with detailed oral reasons was given on the afternoon of the second day (21 May 2025). Their Claims succeeded on the basis that the pool of selection used and the extent to which the Respondent had warned and consulted the Claimants caused their dismissals to be unfair.[4]Following the decision on liability, the Tribunal proceeded to hear further oral evidence from both the Claimants as to remedy and heard closing submissions from the Respondent as to remedy. It had originally been proposed to hear closing submissions from the Claimants as to remedy at the beginning of the third day following which, after allowing time for deliberation, it was proposed that Judgment as to remedy would be given orally together with oral reasons. In the event, the Respondent suggested that the Tribunal should continue to hear the Claimant’s closing submissions as to remedy on the second day and then give its decision as to remedy in writing so as to avoid the Respondent incurring the costs of having to attend the hearing on a third day. The Claimants consented to this proposed course of action and made their closing submissions at the end of the second day following which the decision as to remedy was reserved and considered further in chambers on 22 May 2025. Case No: 1300413/2024 1300414/2024 3 Findings of fact relevant to remedy[5]The Claimants were employed by the Respondent as Grants Co-ordinators / Grant Assessors.[6]The Respondent is a non-profit organisation owned by a registered charity which provides end users with debt and welfare advice, as well as administering grants and other financial assistance, in particular to utilities customers who need such help. The Respondent is funded via a number of separate trust funds set up by various organisations within the utilities sector to administer its respective donations. One such trust fund was Severn Trent Trust Fund (“STTF”) which was funded by a donation from Severn Trent Water (“STW”).[7]The Respondent had established various teams to administer these various grant schemes including a team dedicated to administering the grant scheme of the STTF. This team (the “STTF team”) was comprised of the Claimants and a colleague who assessed applications to the grant scheme. Jane Manning had worked for the Respondent for 23 years and Stella Aston for 10 years, which had included significant experience of other assessment work.[8]The work of the Claimants on the STTF team involved assessing applications from customers of STW who had arrears on their water accounts or who were asking for help with additional costs. The STTF team was part of the Core and Services team which included other teams involved in grant assessment work, such as a team dedicated to the United Utilities Trust Fund (“UUTF”) and another team dedicated to the British Gas Energy Trust (“BGET”) . At the relevant time, there were 13 employees undertaking grant assessment work spread across the various separate teams.[9]Nothing in the Job Description for the post of Grants Co-ordinator / Grant Assessor was specific to the work of the particular team to which a Grants Coordinator or Grant Assessor might be assigned. The Job Summary simply stated that a Grants Co-ordinator was responsible “for assessing grant applications received on behalf of Trust Fund/s managed by Auriga and liaising with clients and external agencies” and assisting “and supporting the Team Manager and Operations Director as required”.[10]The Claimants had also recently been trained on the assessment work of the UUTF. This training was being provided so that the Grant Assessors could be interchangeable across the work of the different teams so that they could help out when needed. This involved the Claimants being given access to the United Utilities Water computer system called Alto and enabled them to check the water accounts of customers prior to placing them on a social tariff scheme or paying a grant. Jane Manning, for example, confirmed in her Statement of Evidence, that she then did several weeks’ work in the UUTF team whilst other UUTF assessors were on leave. This was consistent with the Statement of Evidence of Julie Williams, who worked as a Grant Assessor in the UUTF team and confirms having supervised the work submitted by both Jane Manning and Stella Aston. Case No: 1300413/2024 1300414/2024 4[11]In or around March 2023, the Respondent was notified by STW that it would be ending the donation to the STTF. Due to the withdrawal of STW’s donation, the STTF could only continue to run until the end of September 2023, at which time, the fund would be empty.[12]On 17 July 2023, the Respondent commenced redundancy consultation on the basis that the three Grant Assessors in the STTF team were at risk of redundancy. The redundancy exercise effectively proceeded on the basis that the three Grant Assessors who worked in the STTF team were the only Grant Assessors to be included in any redundancy selection pool.[13]By 8 August 2023, the Respondent was in the position of confirming to the three STTF Grant Assessors that, as the Respondent considered that there were no alternatives to avoid redundancy, they would be given notice of termination of employment on the grounds of redundancy, effective from 30 September 2023. As this was too short a period for the Claimants to work their full notice, they would receive payments in lieu of notice for part of their period of notice. On 11 August 2023, the Respondent sent the Claimants letters providing written notice of termination of employment. The letters also confirmed that they would receive redundancy payments based on their statutory entitlement.[14]A number of existing BGET Grants Assessors applied for the Trainee Welfare Benefits Advisor roles and secured those positions which were due to start in October 2023. This meant that there might have been Grants Assessor vacancies in the BGET team. However, the position in September 2023 was that the Respondent did not intend to fill the Grants Assessor roles due to reduced funding for BGET which had caused it to be anticipated that there would need to be redundancies from the BGET team. It had no intention at that stage of backfilling their roles so there were therefore no Grants Advisors vacancies.[15]As it happened, late on Friday 29 September 2023, the Respondent received the news of an increase in funding for the BGET. This enabled the Respondent to start a process on 2 October 2023 of recruiting two Grant Assessors although this was only on the basis of seeking internal candidates to be seconded to such a role for a period of six months. However, by the time these vacancies existed, the Claimants’ employment had come to an end. Part of the Claimant’s Tribunal case involved contending that there was an unreasonable failure to consider the Claimants for these posts by way of alternative employment. However, this was not a ground on which the dismissals were found to have been unfair.[16]Neither Claimant had subsequently obtained alternative employment. Jane Manning had worked part-time for the Respondent as this fitted in with being a carer for her mother. She shared responsibility with other family members. Since her employment ended, she has taken a greater share of the responsibility, partly as a result of her mother’s condition. She has been in receipt carer’s allowance since 4 December 2023. Although it is also partly because of the setback to a confidence through losing her job, the reality is that this Claimant has made a personal choice, because of her family circumstances, not to return to employment at this stage. As such, she has not taken any steps to find alternative employment. Case No: 1300413/2024 1300414/2024 5[17]Whilst employed by the Respondent, Stella Aston was able to combine her work with being a foster parent. Although she did refer to having looked for other work, the Tribunal was not given evidence of any applications having been made other than the Claimant having an interview arranged in March 2024 for a possible job with Kidney UK Care. In the event, she turned down the interview due to her situation as a foster parent as she knew that she had another foster child due to be coming to her for June 2024.[18]For the purposes of the Tribunal proceedings, the Respondent’s HR team had sourced a large number of vacancies that were available throughout 2024 in respect of jobs which it was suggested would have involved suitable salaries and roles for the Claimants, as set out in a spreadsheet which appeared in the Bundle from which the job market in respect of the roles being identified certainly appeared to be buoyant, although a large proportion of the jobs appeared to be at a lower level of remuneration than that which the Claimant had been receiving, and the jobs with a high level of remuneration appeared to involve more specialised roles.
Relevant law
[19]Compensation for unfair dismissal is to be calculated in accordance with sections 112 to 124A of the Employment Rights Act 1996 (“ERA 1996”) and comprises a basic award and a compensatory award.[20]The basic award is calculated in the same way as a redundancy payment and would therefore be made in the same amount as a statutory redundancy payment. The effect of ERA 1996 section 122(4) is that a Claimant cannot be awarded both a redundancy payment and a basic award. In this case, as the Claimants received a payment in respect of their statutory entitlement to a redundancy payment, a separate basic award for unfair dismissal would not be payable.[21]So far as the compensatory award is concerned, under ERA 1996 section 123(1) the Tribunal is to award “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”[22]By ERA 1996 section 123(4), a Claimant has a duty to take reasonable steps to mitigate his or her loss.[23]In Cooper Contracting Ltd v Lindsey [2016] ICR D3, the EAT summarised the relevant principles that should be used to guide Tribunals when considering whether there has been a failure to mitigate loss, as set out below.(1) The burden of proof regarding a failure to mitigate is on the Respondent. wrongdoer.(2) If evidence as to mitigation is not put before the Tribunal, it has no obligation to look for that evidence or draw inferences. Case No: 1300413/2024 1300414/2024 6(3) The Respondent must prove that the Claimant has acted unreasonably.(4) The Tribunal should not apply a standard to the Claimant that is too demanding. He or she should not be put on trial as if the losses were his or her fault, given that the central cause of those losses was the act of the employer in unfairly dismissing the employee.(5) The relevant test can be summarised by saying that it is for the Respondent to show that the Claimant has acted unreasonably in failing to mitigate .[24]Whether a Claimant has taken reasonable steps is to be judged objectively but by reference to the particular circumstances of the Claimant .[25]If the dismissal was unfair, the issue arises, in accordance with the principles established in the case of Polkey v A E Dayton Services Limited [1988] AC 344, HL, as to whether any adjustment should be made to any compensatory award to reflect the extent of any possibility that the Claimant would still have been dismissed had a fair and reasonable procedure been followed. In Software 2000 Limited v Andrews [2007] ICR 825, EAT, guidance was given as to the principles to be applied in considering this issue (the “Polkey” issue), as set out below.(1) In assessing compensation for unfair dismissal, the Tribunal must assess the loss flowing from that dismissal, which will normally involve an assessment of how long the employee would have been employed but for the dismissal.(2) If the employer contends that the employee would or might have ceased to have been employed in any event had fair procedures been adopted, the Tribunal must have regard to all relevant evidence, including any evidence from the employee.(3) There will be circumstances where the nature of the evidence for this purpose is so unreliable that the Tribunal may reasonably take the view that the exercise of seeking to reconstruct what might have been is so riddled with uncertainty that no sensible prediction based on the evidence can properly be made. Whether that is the position is a matter of impression and judgement for the Tribunal.(4) However, the Tribunal must recognise that it should have regard to any material and reliable evidence that might assist it in fixing just and equitable compensation, even if there are limits to the extent to which it can confidently predict what might have been; and it must appreciate that a degree of uncertainty is an inevitable feature of the exercise. The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence.
Conclusions
[26]In the submissions made on the behalf of the Respondent, it was argued that the effect of Tribunal’s conclusions as to the unfairness of the dismissal meant Case No: 1300413/2024 1300414/2024 7 that, had the Respondent proceeded fairly, there was a percentage chance that the Claimants would still have been dismissed as redundant. It was recognised on behalf of the Respondent that this effectively involved assessing the chances of each Claimant being dismissed as redundant rather than any other Grant Assessor, had any selection for redundancy been made from a pool which had included all 13 Grant Assessors. In other words, the Claimants would still have been in a position where they were in a pool of 13 employees from which three employees needed to be selected for redundancy. Viewed purely in terms of the numbers involved, Mr Perry calculated that the starting point was that each employee had a 23% chance of being made redundant. He submitted that, in the case of Claimants, the chances were arguably higher than 23% in that the other Grant Assessors would potentially be at an advantage in any scoring exercise having regard to the greater experience that they had in dealing with the work involved in the remaining trusts. As such, Mr Perry sought to argue that the appropriate level of any reduction in compensation should be in the region of between 23% and 33%.[27]In dealing with this issue, obviously there was limited material on which the Tribunal could rely in considering the likely outcome of any redundancy selection exercise which had included all 13 of the Grant Assessors. Nevertheless, the appellate guidance is to the effect that the Tribunal needs, where possible, to make an assessment based on the material which it has, which may inevitably involve a degree of speculation. The material which I did have suggested that both Claimants were very experienced, both in terms of length of service and in terms of the experience they had of doing work other than STTF work, as set out in the findings of fact above. In addition to their prior experience working for the Respondent, they had recently been trained on and acquired experience, of UUTF work. However, I also noted the fact that, at the time that any redundancy dismissal took effect, two BGET Grant Assessors had been appointed to the Trainee Welfare Benefits Advisor roles without being immediately replaced, so that the number of Grant Assessors appeared to be down to 11 by late September 2023, although on the chronology set out in the evidence, at the time of any selection decision would have been made, there would have been 13 Grant Assessors, which was the basis for Mr Perry’s starting point of 23%.[28]On balance, having regard to the Claimant’s significant experience and length of service, I concluded that the appropriate percentage reduction in respect of the “Polkey” issue was 20%.[29]In relation to the issue of mitigation of loss, Mr Perry submitted that any period of loss awarded should be a short period of loss only, noting with appropriate sensitivity that the personal circumstances of each Claimant had arguably caused it to be convenient not to seek alternative employment. However, in any event, both Claimants had realistically limited the period of loss being claimed to the relatively short period of six months, albeit this was on the basis (which was not the basis for the findings of unfair dismissal) that they contended that they should have been appointed to Grant Assessors roles to which the Respondent recruited in October 2023 with the appointments being made on the basis of a fixed term of six months (in fact, the appointments ended up being for a shorter period). Case No: 1300413/2024 1300414/2024 8[30]On the limited evidence provided by the Respondent regarding the availability of alternative employment, it was certainly arguable that the Claimants might have obtained lesser paid employment fairly quickly, perhaps after three months and perhaps in the region of a full time equivalent salary of £22,000, but it seemed likely that it would have taken rather longer, perhaps six months, to obtain alternative employment at the same level of remuneration as that which the Claimants had received whilst employed by the Respondent. In the circumstances, I concluded that it would be just and equitable to award the Claimants’ full loss of earnings for a three month period, and then to award a figure of continuing loss for a further three month period based on the difference between their actual salaries with the Respondent and a full-time salary of £22,000 per annum (adjusted, in the case of Jane Manning, on a pro rata basis, to take account of part-time hours).[31]As far as the basic award is concerned, the Claimants each received a redundancy payment in the equivalent amount to a basic award, so no basic award is payable.[32]In the case of Jane Manning, her monthly net pay after deduction of tax and national insurance was £1,747.99 in respect of working hours which were 80% of full-time working hours. Over a six-month period, this would be a total of £10,487.94. However, the amount received by way of payment in lieu of notice would be deductible. This was £2,077.31 gross (which would equate to £1747.99 net) so that the figure of £10,487.94 would be reduced to £8,739.95.[33]On the basis that she might reasonably have obtained employment after three months earning £17,600 per annum (80% of £22,000), her net pay would have been approximately £1,466.67 (which would be £4,400.01 over a three-month period). On this basis, her net loss for the six-month period would be £4,339.94. 80% of this figure, after a “Polkey” deduction of 20%, is £3,471.95. This figure represents, for recoupment purposes, the prescribed element of any compensatory
award.
[34]It should additionally be noted that this Claimant received £76.75 by way of carer’s allowance from 4 December 2023. A little reluctantly, I was satisfied that, as the Respondent argued, in principle, the sums received potentially fell to be deducted from any loss of earnings on the basis that they were sums received by the Claimant by way of mitigating her loss (although clearly this was not her motivation for providing the care) with the allowance assessed on the basis that she would have been providing care for at least 35 hours per week. However, the Claimant would not have been able to have qualified for this carer’s allowance if she had applied for and obtained new employment to start after three months. As such, I did not consider it just and equitable to deduct both the sums which the Claimant might have earned in alternative employment and the carer’s allowance. She would not have been receiving both. As such, I have not deducted sums received by way of carer’s allowance from the compensatory award.[35]I was satisfied that it was likely that the Claimant would return to employment at some point, in the event of her personal circumstances changing. As such, the Case No: 1300413/2024 1300414/2024 9 Claimant would also be entitled to a figure for loss of statutory rights and I awarded £956.13 (which represented two weeks’ gross pay.[36]The Claimant is also entitled to compensation for pension loss in respect of the period for which loss of earnings is being awarded. I assessed this on the basis that the monthly employer’s pension contribution was £186.96 so that the figure for six months was £1,121.76. I considered it just and equitable to award the full amount for the full period of six months on the basis that, had the Claimant started new employment, there would have been a period of three months when mandatory auto-enrolment in any pension scheme would not have applied.[37]The sums for loss of statutory rights and pension loss gave rise to a total of £2,077.89. This figure falls to be adjusted by 20% (on the basis of my conclusions on the “Polkey” issue) so that the sum awarded is £1,662.31. For recoupment purposes, this is the non-prescribed element of the compensatory award.[38]Adding together the prescribed element and the non-prescribed element of the compensatory award, the total award is £5,134.26.[39]In the case of Stella Aston, her monthly net pay after deduction of tax and national insurance was £1,883.97 in respect of full-time working hours. The Claimant’s own employee’s pension contributions have not been deducted in arriving at a net figure for weekly pay so that there is, again, no separate head of claim (as similarly put forward in her Schedule of Loss) for employee’s pension contributions. Over a six-month period, the figure for net pay would be a total of £11,303.82. However, the net amount received by way of payment in lieu of notice would be deductible. This was £1,261.26 gross which was 55.38% of her monthly gross pay. Adjusting the Claimant’s monthly net pay by the same percentage gives a net figure of £1,043.34 for pay in lieu of notice so that the figure of £11,303.82 would be reduced to £10,260.48.[40]On the basis that the Claimant might reasonably have obtained employment after three months earning £22,000 per annum, her monthly net pay would have been approximately £1,585.80 (which would be £4,757.40 over a three-month period). On this basis, deducting this figure from the figure of £10,260.48, her net loss for the six-month period would be £5,503.08. 80% of this figure, after a “Polkey” deduction of 20% is £4,402.46. This figure represents, for recoupment purposes, the prescribed element of any compensatory award.[41]I was similarly satisfied that it was likely that the Claimant would return to employment at some point, in the event of her personal circumstances changing. As such, the Claimant would also be entitled to a figure for to take account of loss of statutory rights and I awarded £1,048.17 (which represented two weeks’ gross pay.[42]The Claimant is also entitled to compensation for pension loss in respect of the period for which loss of earnings is being awarded. I assessed this on the basis that the monthly employer’s pension contribution was £204.96 so that the figure for six months was £1,229.76. As with Jane Manning, I considered it just and equitable to award the full amount for the full period of six months on the basis Case No: 1300413/2024 1300414/2024 10 that, had the Claimant started new employment, there would have been a period of three months when mandatory auto-enrolment in any pension scheme would not have applied[43]The sums for loss of statutory rights and pension loss gave rise to a total of £2,277.93. This figure falls to be adjusted by 20% (on the basis of my conclusions on the “Polkey” issue) so that the sum awarded is £1,822.34. For recoupment purposes, this is the non-prescribed element of the compensatory award.[44]Adding together the prescribed element and the non-prescribed element of the compensatory award, the total award is £6,224.80.[45]It follows that the decision of the Tribunal is that Jane Manning is awarded £5,134.26 in respect of unfair dismissal and Stella Aston is awarded £6,224.80 in respect of unfair dismissal. Approved by