Dr M E Hernandez-Hernandez v University of Warwick: 1300577/2021

EMPLOYMENT TRIBUNALS

Case No 1300577/2021

Between

Dr M E Hernandez-HernandezClaimant

University of WarwickRespondent

Before

Regional Employment Judge Findlay

In person for claimant

Ms A Reindorf (instructed by Counsel) for respondent

Date 21 October 2022

JUDGMENT

ON REMEDY In respect of the claim for unfair dismissal:

[1]No order for re-engagement is made in accordance with section 115 of the Employment Rights Act 1996 as it is not practicable for the respondent to comply with such an order;

[2]No basic award is payable because the claimant has received a redundancy payment in the amount that would have been due under section 119 of the 1996 Act, in accordance with section 122 (4)(b);3.1 Compensatory award: The respondent shall pay the claimant £833.04 (net), the equivalent of 65% of 2 weeks’ pay at the rate of £38,017 (gross) per annum;

3.2 The respondent shall pay the claimant 65% of 8.5 hours’ pay £(170.25 x 0.65) = £110.66 (gross) in respect of accrued holiday pay for 2 weeks; And By consent, the claimant is entitled to the sum of £500 for loss of statutory rights. 10.7 Judgment with reasons – rule 62 March 2017 Case No: 1300577.2021 In respect of the holiday pay claim: The respondent shall pay the claimant the sum of £2839.54 (gross) in respect of holiday pay, representing 20 days’ pay based on £36,914 per annum. Note: reasons were given orally at the hearing, but as the claimant has requested written reasons, these will follow as soon as practicable. Indirect sex and/or race discrimination; and

[2]Less favourable treatment under The Fixed Term Workers (Prevention of Less Favourable Treatment) Regulations 2002; and

[3]Of breach of contract (Notice pay) are not well founded and are dismissed.

[4]The Claimant’s claims of unlawful deduction of wages in respect of holiday pay is well founded and succeeds; and

[5]The Claimant’s claim of unfair dismissal is well founded and succeeds. There is a 65% chance that the claimant’s employment would have been extended for a further period of two weeks had the respondent acted fairly.

REASONS

[1]The issues are set out in a list of issues prepared by the Respondent which was produced on the second day of the Hearing, the 5 August 2022 and which is attached to this judgment. Prior to this, the issues had been identified in a Case Management Order of Judge Dimbylow which is to be found at page 69 of our bundle and in particulars provided by the Claimant at pages 89-95 (as clarified in an email from the Claimant at pages 96-98 of the bundle) and in the Respondent’s response at pages 102-110 of the bundle. The Claimant had an opportunity to consider the list of issues and agreed that it was correct with the addition (on page 8 of the list of issues) of an allegation that the combined effect of the four provisions, criteria or practices she had previously identified was to obstruct her academic career. Findings of Fact:

[2]The Claimant was first employed by the Respondent as a Research Assistant in the Department of Statistics (a grade 5 role within the Respondent’s organisation). Her offer letter is to be found at pages 111113 of her bundle and shows there was a fixed term contract from the 1 November 2016 until the 31 October 2019. This was a full-time position. The reason for the fixed term contract was that the post required specialist expertise/experience not available in the University in the short-term. It was funded by “an exceptional or extraordinary source of funds” for which there was no foreseeable prospect of renewal, or of other funding of the same kind being or becoming available. The terms of employment were said to be “Academic, Research only and Teaching only”. The probationary period was 6 months and the Claimant was to report to Professor Saul Jacka. The Claimant was told that her salary was at the top of grade 5, but on receipt of her PHD Certificate, she would be promoted to a Research Fellow on the first point of grade 6. The full terms of employment were enclosed. There is a copy of the terms of employment, Academic, Research only and Teaching only posts from May 2015 at pages 508-519 of our bundle.

[3]The Claimant was promoted to Research Fellow on the 23 January 2017, which is a grade 6 role at Research Level 2. This was confirmed at page 114 of the bundle. The letter on that page, dated 1 February 2017, states that “all other terms and conditions of your appointment will remain unchanged”. At page 127 of the bundle, there is a letter dated 21 May 2019 which offers an extension of the Claimant’s appointment as a Research Fellow for a further fixed period from the 1 November 2019 – 30 April 2020. She was told that her period of continuous service would be calculated from the 1 November 2016. Her employment continued on a fixed term basis. It was stated that the Claimant’s continued employment beyond the 14 November 2019 was conditional on her obtaining the relevant authorisation to remain and work in the UK. It continued “except for the award of any annual increment due on your scale, your salary point and all other terms of employment will remain unchanged. The appointment continues to be under the terms of employment for Academic, Research only and Teaching only. In addition, where stated, the “Research only” section applies. She was told that “these terms of appointment will apply during your period of employment as varied, altered or amended from time to time by national collective agreements or local collective agreements. These conditions and this formal notification are issued in accordance with the provisions of the Employment Rights Act 1996”.

[4]Later, on the 6 April 2020, at page 134 there is a letter dated 6 April 2020 offering the Claimant an extension of her appointment as a Research Fellow in the Department of Statistics for a further fixed period with effect from 1 May 2020 to 30 September 2020. Again, her period of continuous service was to be calculated from the 1 November 2016. The letter continued that the employment would continue to be on a fixed term basis as it was funded by “an exceptional or extraordinary source of funds” defined as before. The extension was said to be dependent upon the Alan Turing Institute Funded Project “Policy Improvement, Jump Control and Reinforcement Learning” and would be subject to the continuation of both the availability of funding and the project. Continued employment beyond 14 May 2020 was conditional upon the Claimant obtaining the relevant authorisation to remain and work in the UK. The letter continues, “the appointment continues to be under the terms of employment for Academic, Research only and Teaching only. Where stated the research only section applies”. There is the same wording as in the previous letter about variation by the National Collective Agreements or Local Collective Agreements.

[5]In fact, the Respondent says that the standard terms for employees of the Claimant’s type are set out at page 115-126 and fall within amended terms which were agreed in 2018. This document is headed “Academic, Research and Teaching Posts”. Although little turns upon it for these purposes, the Claimant asserts that these terms did not apply to her as the title is different from the title of the document previously referred to at page 508-519 of the bundle. For that reason, she says that the terms at pages 115 onwards do not apply to her and that the terms at page 508-519 do.

[6]In his Witness Statement at paragraph 5, Professor Jonathan Forster, who was the Head of Department at the relevant time, states that the main project upon the Claimant worked from the 1 November 2016 to 31 October 2019 was extended and funded by the University itself for 6 months from the 1 November 2019 – 30 April 2020. This was before the funding from the Alan Turing Institute was obtained for the final period from the 1 May 2020 to 30 September 2020. We accept that evidence.

[7]Prior to obtaining her first role as a Research Assistant, the Claimant was a PHD student in the Department of Statistics at the University – this is referred to in the statement of Professor Saul Jacka (paragraph 4). Professor Jacka became the Claimant’s direct Line Manager and this remained the case until the end of her contract. In his statement at paragraph 2, Professor Jacka explains that his role includes him obtaining research grants that relate to mathematics and statistics and that once research grants are won, he acts as what is referred to as “the Principal Investigator” for the grant. A Principal Investigator holds responsibility for the intellectual leadership of the research project and for the overall management of the research. In paragraph 5 of his statement, he confirms that the Department of Statistics funded the Claimant’s role for a short-term extension between the 1 November 2019 and the 30 April 2020.

[8]In Justine Pearson’s supplemental witness statement, she sets out at paragraph 7 details of advertisements for various Research Fellow, Assistant Professor and Lecturer roles within the Mathematics and Statistics Department at the University. This shows that on the 3 June until the 3 July 2020 a position of Research Fellow in the Computer Science Department was advertised on the University’s internal website. The position was not filled initially, and it was readvertised from the 14 July until 13 August 2020. The position was filled and the individual in question started on the 29 March 2021. These positions are shown at pages 596597 and 598-599 in the Tribunal bundle.

[9]During the course of her cross-examination, the Claimant accepted, as she had before, that she knew when her final contract started that the funding would expire on the 30 September 2020. She was taken to the jobs mentioned in Justine Pearson’s statement. The Claimant said that she had “missed” most of the jobs that are detailed in Justine Pearson’s supplementary statement. The Claimant accepted that she and Professor Jacka had discussed her future career. The Claimant accepted that Professor Jacka was discussing options with her which were outside the Respondent university.

[10]The Claimant accepted that she had been at the University for some time and knew that she could look at vacancies on the intranet. She said that she had been looking at options outside of the institution, but sometimes also inside it. She said that during the last 5 months of her contract, she had not looked every day at the vacancies and may have used a filter which excluded positions in the Computer Science Department. She said that she had made an enquiry about all suitable vacancies that were available nationally. She would get a daily email about this, but could not review it every day and that she also “had a lot going on”. The Claimant said that she did not know how to get an email which simply told her about all vacancies at Warwick University. In her cross-examination, the Claimant said that only these 2 computer science posts mentioned by Justine Pearson in her statement may have been suitable for her, and that the rest of the posts in Justine Pearson’s statement were not.

[11]In his evidence, Profession Jacka also said that whilst, in principle, he would have referred the Claimant to any jobs in the University, he didn’t see any that would be suitable. He said that he wouldn’t have seen the Computer Science jobs because (normally) those jobs were “a bit distant from our jurisdiction”. He could not confirm whether the 2 posts mentioned by the Claimant would have been suitable for her or not, and neither could Professor Forster.

[12]On the 27 August 2020 (page 155), the Claimant emailed Paula Matthews, a Departmental Administrator, to say that she had not received an email indicating that she would have access to the building in September. She said that she had no problem with working from home in general terms but pointed out that her contract finished by the end of September and that she would like to have access to the printer at least for that last month. She said that use of the printer would be her only reason to access the building unless Professor Jacka suggested a face-to-face meeting and that it would not be more than twice a week. We accept paragraph 17 of Professor Forster’s statement in which he explains that he was provided with this information by Paula Matthews.

[13]We accept that Paula Matthews had been prompted to notify HR of the end date of the Claimant’s contract by the email received from the Claimant on the 27 August. Paula Matthews had checked that the end date was correct with the Department’s Senior Finance Assistant, Lynn McLean. As neither Professor Jacka nor the Claimant had indicated there would be an extension to her fixed term contract, the Claimant was marked as a leaver on the Respondent’s HR system which is called “Success Factors”. This information from Paula Matthews is reflected in emails between her and Professor Forster on page 204 of our bundle. At page 537 of the bundle, we can see that there is an extract from the “Success Factors” system which shows that the Claimant’s fixed term contract was to end on the 30 September. This page shows that zero hours of annual leave was to be paid. The reason given for the ending of the contract was the “end of the fixed term contract, redundancy”. The case was assigned to Elle Moses on the 27 August.

[14]On the following day, the 28 August, Elle Moses (a Senior HR Administrator) sent Justine Pearson some documents relating to the Claimant’s redundancy entitlement and Justine Pearson approved the sending of a letter to the Claimant. Ms Pearson is a HR Business Partner within the University, covering a number of Departments.

[15]Elle Moses then sent an email (attaching a file) to the Claimant on the 1 September 2020 (p159). This attached a letter (page 156) from Justine Pearson to the Claimant dated the 28 August 2020, although sent (and received) on the 1 September 2020.

[16]The letter is in the form of a template known as “FT3”, which the parties agree should only be sent after consultation is completed. The letter on page 156 states: “I am writing to formally advise you that your post of Research Fellow in the Department of Statistics is being made redundant with effect from the 30 September 2020. This is because there is no further funding available to finance your post. Based on your length of service, you are entitled to a redundancy payment of £1,614.00. I regret that no suitable alternative employment has been found during the consultation period with you. You will continue to accrue holiday until your leaving date. The balance of your holiday entitlement will be paid with or deducted from your final salary. I should advise you that you have a right of appeal against this decision. Should you wish to exercise that right, you should write to the Director, People Group within 14 days of the date of this letter setting out the grounds for appeal” (emphases added).

[17]Also on the 1 September, at 13:47 pm, the Claimant replied to Ms. Moses saying that she had read the letter and would be grateful if Ms. Moses could let her know to whom she could direct her question about the meaning of “I regret that no suitable alternative employment has been found during the consultation period with you”. The Claimant said that the question arose because she was not aware of any consultation period prior to receipt of the letter. Ms. Moses then referred the Claimant’s email to Justine Pearson who contacted Paula Matthews. Within 10 minutes of the Claimant’s email, Justine Pearson had contacted Ms. Matthews to ask what conversations had taken place with the Claimant to let her know that her contract was not being extended beyond her fixed term contract end date.

[18]By 2pm, Paula Matthews had responded, saying that it should have been Professor Jacka who had consulted with the Claimant, although it was not clear that this had taken place. She said that the Claimant had informed Ms. Matthews that her contract was ending at the end of September. The following day, shortly before 11am, Paula Matthews sent another email to Justine Pearson saying that Professor Jacka had thought that Human Resources would normally carry out the consultation. She had informed him that this was not the case and said that he would have a chat with Elena (the Claimant).

[19]On the 3 September, at 10am, Justine Pearson contacted the Claimant and said: “Hi Elena I think there has been a misunderstanding as to who would be in touch with you about your FTC [fixed term contact] coming to an end. Saul Jacka as your PI will be contacting you about this, unless he has done so already. There is a link about redeployment which provides useful information, particularly if you are interested in any other opportunities” – it was then provided.

[20]Later the same day, at 2.12pm, the Claimant replied thanking Paula for her email but saying “however, the information provided still does not solve my concern about getting a letter with inaccurate information. As I mentioned before, I am not aware of any “consultation period with me” as stated in the letter that you kindly sent. Therefore, to be able to accept such a letter (and to avoid any future misunderstandings) I would be very grateful if I could receive a letter with correct information about the procedure (if any) that followed to the mentioned document. My sincere apologies for all the inconveniences that this may cause”.

[21]The Claimant accepted in her evidence that she had accessed the redeployment link (although initially she was slightly confused about whether or not she had done so at that point). She explained to us that, at the time, she had been preoccupied with what was going to happen at the end of her contract, as her visa to remain in the UK was due to expire 14 days after the end of her contract – that is by the 14 October.

[22]The Claimant also confirmed in her evidence that she simply did not understand what redeployment was, as it (apparently) does not exist in Mexico. The Redeployment Policy starts at page 415 of her bundle, and we note that at 418 it is stated “the redeployment policy and procedure applies to all employees, although employees who require a visa and have restrictions on their eligibility to work in the UK should contact their HR business partner for guidance”. In paragraph 4 in the policy on page 419 timescales are referred to. At 4.1 it states that eligible employees will be considered for redeployment at the point they are put at risk of redundancy, during any notice period, and up to the effective date of termination of employment. The maximum period for which an employee will be eligible for redeployment will be 3 months.

[23]At page 420 of the policy it is stated at paragraph 5.2.6 that if an employee wishes to be considered for redeployment, they need to provide an up-todate CV and a completed “Redeployment Requirements” form which should be submitted to their HR Business Partner. If an employee wishes to receive notification of all vacancies by email, this can be set up via the HR website. We accept the Claimant’s evidence that when she was first sent this link, she did not fully digest this information as she was struggling to understand what redeployment was, and how it related to her. Although the Claimant is an accomplished English speaker, English is not her first language, and she understandably had asked for a Spanish interpreter to be available during the Tribunal proceedings. This was provided.

[24]It should be noted that the letter extending the Claimant’s contact until the 30 September 2020, which referred to the terms of employment for Academic, Research only and Teaching only staff, did not specifically refer to any policies and procedures apart from the terms of employment. As we have seen, a previous extension letter had referred to the same terms of employment. This is shown on page 127.

[25]The Claimant’s original letter of appointment at page 111 enclosed the relevant terms of employment. As we have seen previously, the Claimant asserts that her original terms of employment continued to apply to her as this was the name of the terms that was referred to in her extension of employment letter at page 508. Although the terms (as one might expect) deal with notice prior to termination of the fixed term, holiday entitlement and sick-pay, other policies and procedures are referred to. For example, at page 516 of the bundle, on page 23, it is stated that “there are a significant number of other policies and procedures which apply to your employment at the University. The policies and procedures can be found via the HR Webpages and will be updated from time to time at the discretion of the University or in consultation and agreement with the relevant trade unions (if appropriate)”. It continues, “you must familiarise yourself with all the relevant polices and procedures (including the others specifically referred to in this contract…) within the first 3 months of employment, and at all times abide the requirements of all relevant policies. If you have any questions about your obligations under a University policy, you should contact your Head of Department/Line Manager or your link HR Adviser.”

[26]The Claimant was not asked in evidence whether she had previously read and digested any of the relevant procedures (such as the Redundancy Procedure or the Fixed Term Contracts Policy and Procedure) prior to receipt of the letter on the 1 September. Even if the Claimant had read all of these policies at the start of her employment in 2016, or within 3 months thereof, we would doubt whether she had retained that information by the 1 September 2020. This is especially the case since English is not her first language and terminology such as “redeployment” was new to her. We accept that when the term “redeployment” was first mentioned to her in the email of 3 September 2020 she did not understand what it meant, which is consistent with her not having seen the policy before.

[27]On the 8 September 2020, at 12:58pm, the Claimant wrote to Justine Pearson and apologised for bothering her again. She said “I haven’t received any response to my last email. Whilst I understand that the current situation may be the reason, it may also be the case that (as indicated in the letter that I received) I should be addressing my concern to the Director, People Group. For that reason, I would be very grateful if you could provide me with the details (name and email) of the staff in charge. Thank you for any information you can show in this regard”. This was a reference to the letter that the Claimant had received dated 28 August which advised her that she had a right of appeal and that she should write to the Director, People Group, within 14 days of the date on the letter. Understandably, the Claimant was concerned by this as the initial 14 days was due to expire by the 11 September (taken from the date on the letter). The name of the Director in question had not been supplied up that point. Within 30 minutes, Ms. Pearson replied to the Claimant (page 163). She apologised for the delay in replying and said that she had been trying to find out what meetings had taken place with her, if any. She said, “Are you able to advise at all please?”.

[28]She continued “the letters sent are standard wording and given that this letter was sent in August to you, it would seem that perhaps the meetings have not taken place? There hasn’t been any intention to mislead in any way. I have revised the letter (please see attached) and hope this a fairer reflection of the situation. Please do come back to me if you have any queries. Just to note, I shall be on leave tomorrow [9 September] and Friday [10 September] is a non-work day for me.”

[29]The letter in question is on page 168 and is a modified version of the University’s form FT3. An FT3 should not be sent until the procedure in the Fixed Term Contract Policy has been followed; in particular, at paragraph 6.2.1 of the Fixed Term Contract Policy (page 431) it is stated that the Head of Department (Professor Forster) should adapt the standard letter (consultation letter FT1) setting up a meeting to start the consultation process. The letter should be sent (ideally) 4 months prior to the date that the contract is due to end, but (in any case) at least 30 days before the contract is due to end (so no later than 1 September 2020). The policy continues: “ the sending of the letter represents the start of the consultation process. It is a legal requirement to send a letter rather than make a telephone call or send an email. The letter can be sent by email if this is preferred. The meeting should then be held with the employee within the next 7 days”.

[30]The Claimant never received a standard FT1 Consultant Letter. There is a copy of the standard letter FT1 at page 436 of the bundle. After setting out the date upon which the fixed term appointment is due to end, it continues as follows: “it is for this reason that I wish to meet with you to consult on the current situation. I would be grateful if you would meet with me at date in room. If you wish, you may be accompanied by a trade union representative or a work colleague at the consultation meeting. At present, I am not able to advise whether any funding will be forthcoming/I confirm there is no further funding for your post” – to be edited as applicable by the sender.

[31]The standard letter continues “This may/will mean that your post could/would be made redundant. I wish to consult with you to discuss this and to consider any proposals that you may have including the possibility of redeployment should you wish to be considered for this. I confirm that in line with the University’s redeployment policy, I will consider you for any suitable vacancies which occur in my Department, but you should also express an interest to me, if any such vacancies occur before the expiry of your contract.[emphasis added]. If you wish to be considered for redeployment, you should send a template CV and redeployment requirement form to your link HR Advisor. All University vacancies can be sent to you and this can be arranged by visiting the job vacancies pages. If you prefer to be sent the vacancy notices by post, please advise the link HR Advisor. If you are interested in any posts advertised elsewhere within the University, please contact (name of HR Advisor) who will then consider this in line with the University redeployment policy. At the meeting, I will arrange a further consultation time with you before the expiry of your contract. Meanwhile, if you have any questions or concerns, please contact me”.

[32]It will be apparent from this standard letter that a number of important pieces of information were not supplied to the Claimant by the 8 September 2020. For example, she was not told about her right to be accompanied. She was not told that she could make proposals including the possibility of redeployment. She was not told how university vacancies could be sent to her, or, at least by letter, that she should send a template CV and redeployment requirement form if she wanted to be considered for redeployment. She was not told that if she was interested in a post advertised elsewhere within the University she should contact the HR Advisor or that a further consultation time would be arranged before the end of her contract. The only reason that we were given by Justine Pearson as to why a modified version of form FT3 was sent to the Claimant on the 8 September, rather than a new form FT1 with the appropriate information, was that she considered that “what had been done could not be undone”.

[33]The Claimant was not satisfied with this letter and on the 8 September at 2.03pm she replied to Justine Pearson thanking her for her reply but saying, “as I mentioned before, there have not been any meetings that may count as part of the “consultation period” mentioned previously. However, subject to verifying that the procedure to follow when a post is made redundant is as suggested in the revised letter, I may consider that the new letter is more appropriate. I thank you again for your help in this regard” [emphasis added]. At this point, the Claimant had not been expressly referred to the Fixed Term Contract Policy. On the same day at 2.04pm, Justine Pearson replied “thank you for confirming that there have not been any meetings in relation to your fixed term contract coming to an end. If you do have any other questions, please do come back to me”.

[34]On the 8 September at 1.33pm Justine Pearson provided the Claimant with the name of the HR Director (Geraldine Mills) to whom her appeal should be addressed. Justine Pearson also wrote to Paula Matthews at around the same time saying, “Hi Paula, please see below. Is it possibly the case that Saul hasn’t spoken to Elena? Are you able to arrange for Jon to speak with Elena please?” This is at page 173B. At 173A, we can see that Paula Matthews then contacted Professor Forster shortly afterwards and referred him to the chain of emails which appears on pages 173A and 173B. She referred to the Claimant as “Saul’s postdoc”. She continued “Justine has asked whether you could do an end of FTC consultation with her, her contract finishes on the 30 September 2020. Saul did say he would talk to her but it seems he is now on holiday until the 20 September”. Later the same day, Professor Forster replied “I can do this, though is there any info about her position which I can use as a crib. How are these meetings normally triggered? At Southampton, [where he had previously worked] the line manager received an email from HR with 6 months to go. I think it unlikely that line managers (particularly postdoc supervisors) will remember to do this without some kind of prompt”. At 5.14pm on that day, Paula Matthews replied “Elena has been with us for 3 years and 10 months. Initially appointed 1 November 2016 on an EPSRC Grant working with Saul and Alex, when this grant ended, Saul had permission from Chris Ennew to further extend Elena (funded by the Department) for a further 6 months. We didn’t fund for the full 6 months as she was then appointed from the 1 April to 30 September 2020 on a short-term ATI funded project … This contract and her Tier 2 end on 30 September 2020, and there are no further plans to extend her appointment beyond this date. Does that help? Saul did say he would speak to her, but we are not sure he did this prior to taking leave” [emphasis added]. She attached a HR consultation form for the Professor to complete during the meeting.

[35]On the same day, Professor Forster asked Paula Matthews to check with the Claimant if Professor Jacka had met with her and if not, offer that he would do it – again, this is on page 173A.

[36]On the 8 September at 4.20pm, Justine Pearson had sent the Claimant the current redeployment opportunities. She asked the Claimant to let her know if she was interested in any of the roles, so that she could advise her HR colleague.

[37]At 6.40pm the same day, 8 September, the Claimant replied, thanking Ms. Pearson for the information. The Claimant had spotted that she did not have the essential requirements for one of the posts that had been sent and asked if Ms. Pearson would advise her to consider applying. At that stage, the Claimant was not advised to send a CV to Ms. Pearson or fill in a redeployment form. Ms. Pearson replied that it would be the Claimant’s decision if she did wish to apply and perhaps she should, but said that if the claimant did not meet the essential criteria, she may not get shortlisted for interview – page 175.

[38]The Claimant replied, commenting that “the chances of getting an interview were very low when one does not meet the essential criteria”. Justine Pearson then reassured the Claimant that she would forward any other roles that were sent to her - page 175. Ms. Pearson replied at 5.04pm on the 8 September saying, “the link shows the current vacancies”. She asked the Claimant to let her know if she did apply because if she met the essential criteria, the Claimant would need to be given priority in terms of an interview if the role was the same as her current grade. Ms. Pearson said she could then ensure that the recruiting manager was aware of the Claimant being a redeployee.

[39]The Claimant then informed Ms. Pearson that she was unable to access the link for the redeployment opportunities. Ms. Pearson told the Claimant that she should go to the Warwick University site and explained how she could access the University’s vacancies (page 174). The Claimant accessed that email and replied at 11.27am the following day, the 9 September – page 174.

[40]Still later on the 8 September, Paula Matthews contacted the Claimant shortly before 6.30pm to ask if Professor Jacka had spoken to her about her contract not continuing. She said that if he had not, Professor Forster had offered to do so. If the Claimant was happy to speak with Professor Forster, she should contact him direct ,or let Paula know so that she could arrange it. Professor Forster had been the Head of Department for a matter of months at that stage, having moved from the University of Southampton. On the 9 September, the Claimant forwarded some emails about the question of the end of her fixed term contract and some of the concerns she had to Paula Matthews. She said she would appreciate Paula’s help in arranging a meeting with Profession Forster. At 11.54am on the 9 September, Paula Matthews confirmed that she had arranged for the Claimant to meet with Professor Forster the following day, 10 September 2020 at 4pm. She said, “Jon will send you an invite via Teams”. The Claimant was not informed that she could be accompanied. These emails are on pages 177 -178.

[41]Professor Forster sent the Claimant a Teams invite saying “as discussed with Paula, this is a consultation meeting for your end of fixed term contract” – page 178A.

[42]On page 181 we have Professor Forster’s discussion notes regarding the ending of the fixed term contract, recorded on the HR template. The template shows a series of bullet points about what should be discussed at the meeting. These include reasons for the ending of the contract, University Redeployment Policy, alternative employment or other possibilities within the school/department and whether redeployment within the department is possible. It also covers alternative employment available within the wider University and the need to “advise the employee that if they wish to be considered for alternative employment, they should contact their link HR Advisor to provide a template CV and redeployment requirement form to the HR Advisor who will proactively seek to match staff with vacancies” and training and development opportunities.

[43]The summary of discussion shows that Professor Forster apologised that the meeting had not happened earlier, and that an FT3 letter had been issued without consultation having taken place. The reason for the end of the contract was said to be the “end of funding”. Professor Forster said that currently there were no similar opportunities in the University, but the Claimant was advised to continue to monitor the University’s vacancy webpages for suitable opportunities. She was not reminded at that point that she needed to send a CV and redeployment form to HR. The Claimant expressed her disappointment and upset with the process. Professor Forster sympathized, and agreed that the process was not robust, and that it should not be possible for an FT3 letter to be issued without the FT2 form (recording the outcome of the consultation) having been submitted. He would ask Human Resources to issue the Claimant with an explanation and an apology. He said that the Department would be making its processes more robust and that he would suggest to HR that they do likewise. He wished the Claimant the very best in her future career. He signed the form and the Claimant signed it, recording that she was doing so “under protest”.

[44]Professor Forster accepted in evidence that he did not ask the Claimant if she had any ideas about how her employment within the University could be extended and did not offer to extend the (now limited) consultation period. He accepted, when questioned by the Respondent’s Counsel and the Tribunal, that he had not been fully aware of the Claimants Curriculum Vitae and was not aware that she had teaching experience from her previous employment in Mexico.

[45]On the 14 September 2020 (page 180) Professor Forster emailed Justine Pearson and attached a copy of documents sent to him by the Claimant, including a supporting letter. The Claimant was requesting a letter of explanation for the errors in the process of her redundancy consultation. He said that based on his conversation with her, she wanted it to come from HR.

[46]The Claimant’s letter to Professor Forster dated 14 September 2020 which is at pages 182-186 of the bundle. In this, she requested an official explanation so that she could understand the procedure carried out by Human Resources. She made it clear at paragraph 4 on page 184 that she did not consider that the meeting on the 10 September was a consultation meeting as, “amongst other inconsistencies” as she put it, it did not comply with the minimum 30 day period stated in the University policies.

[47]Ms. Pearson replied to Professor Forster on Wednesday 16 September at 4.20pm saying “she had looked through the Fixed Term Contract Policy and had talked it through with Emma Brown, her line manager.” She said that the policy set out what needed to happen when a fixed term contract came to an end, from a Departmental perspective, and referenced Section 6 of the FTC Policy. She continues “unfortunately, we have breached our own policy. I’m not sure what processes are done now within he Department, but I can work with Paula to ensure a clear process happens to manage fixed term contracts, coming to an end going forward. In terms of a response to Elena, I have drafted the following response for you to send to her. Can you please review and let me know your thoughts or revisions?”[emphasis added]. The draft letter refers to the Fixed Term Contract Policy and explains that the timeframe for letting the Claimant know that her contract was coming to an end was at least 30 days before the contract was due to come to an end. It summarises the procedure in the Fixed Term Contract Policy, but does not refer to the opportunity to be accompanied, or that 2 meetings should take place, or indeed that 30 days is a minimum. It expresses regret and an apology for the claimant not receiving a letter by the 1 September 2020. The draft letter explained that the FT3 letter had been sent because her details had been processed through the Success Factor System indicating that she was a “leaver” but confirmed that consultation should have happened prior to receipt of the letter.

[48]The draft letter indicated that the Department would look again at its internal procedures to show that this did not happen again. At the end of her email, Justine Pearson says [page 180] “there is a risk, which I believe to be a low one, that Elena may wish to take this further. An alternative option is to consider extending Elena’s FTC, however, this may not be preferable due to funding and further that approval from Chris Ennew would be required also”[emphasis added]. She said that if Professor Forster was “ok” with the suggested wording, he should send the letter to the Claimant, but that Justine Pearson was happy to discuss it.

[49]Professor Forster did not discuss the letter further with Justine Pearson, beyond to sending her an email the following day, 17 September, saying “Hi Justine, I believe that what she (the Claimant) is looking for is an explanation and/or apology for why the FT3 was sent before the FT2 meeting had been carried out and that also she would like this to come from HR. I am not sure that she will be satisfied with the below, as she has already had an apology from me that the FT2 meeting was not carried out in time”. Justine Pearson replied saying “I am on leave today, but if you would like to talk any of this through, I can be available this afternoon”.

[50]Professor Forster replied, quoting from the draft letter : “the consultation meeting should have been set up and arranged by the Department (presumably Paula to support/help manage the process) prior to the leaver details being processed, which is a Department responsibility. HR services would not know when a consultation meeting has been carried out and would process leaver details as they received them. “ Professor Forster continues “OK. I can send the letter, but a letter from me is not what she wants and I suspect it won’t be the end of the story”. This is on page 179 and there are redacted sections on this page which the Claimant has not challenged - we accept that they relate to someone else.

[51]The Fixed Term Contracts policy: this is to be found from page 426 of the bundle onwards. In the section on page 429 labelled “Key Points”, it is stated that a series of fixed term contracts will normally only be used for no more than 4 years consecutively. This reflects the fact that if a fixed term contract is renewed after the 4 year period, or an extension would take the continuous length of service beyond 4 years, the contract will be treated as indefinite (under the 2002 Regulations). As noted previously Section 6 of the policy deals with the ending of a fixed term contract and redundancy consultation. Although Professor Forster said that he had understood that where a Head of Department is mentioned, this is used interchangeably with “Principal Investigator”, looking at the policy objectively, we do not think that is correct. That is because in some incidences, the term “Head of Department” is used without any alternative -in which case, on an objective reading, it should be the Head of Department who takes the step in question and in other instances (for example at 6.2.4) the term “Head of Department” is used interchangeably with “Manager”. In that instance, it could be either the Head of Department or the Manager (Principal Investigator) who could take the step in question.

[52]At 6.2 it is stated that all forms used in the consultation procedure are available from Human Resources and on the University website. As we have seen, at 6.2.1, the Head of Department, Professor Forster, should adapt the standard consultation letter FT1 to set up a meeting to start the consultation process. The letter should be sent ideally 4 months prior to the date that the contract is due to end, but at least 30 days before the contract is due to end. The sending of the letter represents the start of the consultation process. The meeting should then be held with the employee within the next 7 days. In this case, the standard consultation letter FT1 was never sent, as indicated above.53. 6.2.3 states that if for any reason the employee is not able to attend a consultation meeting within the outlined consultation period, Heads of Department, or Managers should contact their link HR Advisor for further advice at the earliest opportunity. We have set out above what the Head of Department or Line Manager should do at the first consultation meeting. Paragraph 6.2.7 states that “it should be noted that employees on fixed term contracts can be considered under the University Redeployment Policy and Procedure within 3 months of the end of their fixed term contract.

54. 6.2.9 points out that in addition to this first consultation meeting, (to be held within 7 days of the FT1 letter being sent), it is important for the Head of Department or Manager to hold at least one other meeting with any employee whose contract is not be renewed. This meeting should be held a minimum of 2 weeks after the first consultation meeting and ideally, approximately 6 weeks prior to the contract end. The purpose of this meeting is to confirm the position of the employee to discuss any changes since the first consultation meeting and to discuss their view of the situation. The member of staff must clearly be told of the reason for nonrenewal. The Head of Department will continue to have a responsibility to support the member of staff through the redeployment process until the fixed term contract end date [emphasis added].

55. 6.2.10 states that it is imperative that, following the second consultation meeting, the employing department completes either a leavers form or a request to extend/amend form [emphasis added]. The appropriate form, with any necessary authorisation, must reach HR before the payroll cut off date for the month in which the contract expires. Paula Matthews had triggered this process prematurely by completing the relevant section of the Success Factors System and we were told that the cut of date for payroll was the 7th of the month in question. This is an entirely separate timescale from that for consultation.

56. 6.2.11 states that in the case of expiry of the contract, HR is required by law to send out a letter of termination (FT3) by reason of redundancy. The letter must contain the reason for dismissal and a right of appeal against the dismissal. This was the version of the letter that was sent to the Claimant on 2 occasions: first by email by Elle Moses on the 1 September (dated 28 August) 2020 and secondly on the 8 September 2020.

[57]Paragraph 6.2.12 provides the only detail regarding appeals. It states that if any employee wishes to appeal against the decision to dismiss then they should write to the Director of Human Resources within 14 days of their leaving date, setting out the grounds of appeal. They will then arrange for the appeal to be heard (sic).

[58]Paragraph 7 of the policy deals with contractual arrangements. It confirms that any employee with 2 or more years continuous service will be entitled to a statutory redundancy payment. Importantly, paragraph 7.3 provides that where an employee’s post is confirmed as redundant, employees who have 2 years’ service by the end of their notice period will be entitled to reasonable paid time off to look for alternative work and attend interviews etc. Employees are told that they should make appropriate arrangements with the relevant line manager[emphasis added]. We pause to observe that the Claimant was never informed of this important provision. 59. 7.4 provides that if the fixed term contract is due to end on the date specified within the original offer letter (or any relevant further extensions) no further notice of the expiry of the contract will be provided to the employee, although consultation must be carried out.

[60]Paragraph 9 of the policy says that staff on fixed term contracts have a responsibility, as do all staff, to manage their own careers and to take full advantage of the facilities and opportunities for career development made available by the University. In particular, during redundancy consultation, staff on fixed term contracts are expected to play a full and constructive part in the process by actively engaging in meetings offered by the Departments or the University and by using the University’s vacancy database to put themselves forward for suitable vacancies; and not unreasonably turning down an offer of suitable alternative employment and completing any training or development provided. The policy contains, as noted above, a template for the consultation letter FT1 and for the discussion notes used in this case by Professor Forster.

[61]Our bundle also contained a Redundancy Policy and Procedure which starts at page 474. In paragraph 3.5 of the redundancy procedure, it is stated that it is recognised that, in most cases, the end of a fixed term contract is a dismissal on grounds of redundancy. Such cases will be managed in accordance with the Fixed Term Contracts guidelines and not the Redundancy Policy and Procedure. It indicates that the Fixed Term Contracts guidelines can be accessed on the HR Webpages.

[62]The Respondent also has a Redeployment Process, Policy, and Procedure, to which Ms. Pearson sent the Claimant a link on the 3 September. Paragraph 3.1 of this procedure states that employees may be eligible for consideration for redeployment in specified circumstances, and the first of those includes all employees who have been put at risk of redundancy or where a fixed term contract or indefinite contract link to a funding stream is due to expire and is unlikely to be renewed.

[63]As we have seen, under Part 4 of the policy, eligible employees will be considered for redeployment at the point they are put at risk of redundancy, during any notice period, and up to the effective date of termination of employment. The maximum period for which an employee will be eligible for redeployment will be 3 months. In Part 5 of the policy, at 5.2.1, in considering suitable alternative employment, a suitable post is defined as one which could potentially become suitable for the redeployee with reasonable training, which may be provided by both formal (courses) and informal (coaching/mentoring/on the job) interventions to support any training needs, identified. Suitable alternative employment will, in the first instance, be identified by a review of job titles and job descriptions.

[64]At 5.2.4 it is stated that the criteria to be considered when determining whether a role may constitute suitable alternative employment will include the employee meeting the essential criteria in the person specification of the post, and will also conclude consideration of the nature of the work, qualifications, skills and experience required to carry out the work, the aptitude or capability of the employee to undertake the work, the knowledge required (including specialist subject knowledge), and other considerations may include level of responsibility relative to the previous role, grade and pay, location and hours.

[65]As we have seen above, 5.2.6 requires that an employee at the University provides an up to date CV and completed redeployment requirements form, which should be submitted to the HR Business Partner. In Part 6 of the procedure it is stated that responsibility for a successful redeployment lies with the existing Head of Department (or a delegated to a relevant line manager as appropriate). Every effort should be made within the Department to find a suitable alternative position internally. Departments must seek advice from their HR Business Partner at this stage.

[66]In our file, there was also a copy of the Respondent’s Grievance Policy and Procedure. The Claimant accepts that this is only relevant to the possibility of an uplift to any award for unfair dismissal, in that the Claimant says that “the Respondent was in breach of its grievance procedure and the ACAS Code of Practice on Grievances”. At paragraph 3.7, the Grievance Policy states that grievances related to the non-renewal of fixed term contracts should be dealt with under the appeal mechanism outlined in the Fixed Term Contracts policy (emphasis added).

[67]There is an informal procedure and a formal procedure within the Grievance Policy. At 5.2 it is stated that an employee who has a complaint or problem relating to their employment should first approach their Head of Department or Manager to discuss the matter. At 5.3 it is stated that the intention of this informal stage is to try and resolve matters before they become more serious, and to facilitate communication and resolution within the team or work area. The Head of Department or Manager should meet with the employee to understand the issues, informally investigate the issues raised and try to resolve matters as expediently as possible. The Head of Department or Manager should then communicate the outcomes to the employee. At paragraph 8 of the policy the formal procedure is dealt with and at paragraph 8.1 it is stated that if the issue is not resolved informally, or via mediation and if they have not already done so, the employee should put their grievance in writing into the Head of Department, stating that they wish to raise a formal grievance, noting the nature of the grievance and the resolution they would wish to see. The claimant never indicated to Professor Forster in writing that she wished to raise a formal grievance.

[68]The Claimant’s Terms of Employment: As we have noted above, there is a dispute or an apparent dispute between the Respondent and Claimant as to which terms of employment applied to the Claimant at the relevant time. The Respondent points out that prior to the last extension of the Claimant’s contract, the terms of employment had been updated and are set out in Terms of Employment for Academic Research and Teaching posts which begin at page 134 of our bundle. These terms were never referred to in any of the documentation sent to the Claimant regarding her terms of employment. Whether this is because of a failure to update standard letters sent out by, or on behalf of the Department is unclear, but it is clear that in the letter dated 6 April 2020 at page 134 it is stated that the appointment continues to be held under the terms of employment for Academic, Research only and Teaching only. Whilst this terminology is linguistically peculiar, it is in fact an accurate representation of the title of the terms of employment at page 508. We therefore find on the balance of probabilities that the terms at page 508 continued to apply to the Claimant until the termination of her employment at the University.

[69]These terms of employment deal with termination and notice period at pages 509 and 510. In paragraph 10 at page 510 there is a heading “For Staff on Fixed Term contracts”. This states: “If you are appointed for a fixed term, this will be set out in your letter of appointment. For fixed term appointments, the rights on notice of termination as outlined above apply only during the period of the fixed term and will terminate no later than the end of the fixed term, but if no further notice is given, your employment will automatically terminate at the end of the fixed term. This is a reference back to the provision (under paragraph 10) that an appointment may be terminated either by the worker or the University with 3 months written notice to expire at the end of the month in which the University term ends, as specified in the University calendar.

[70]Reading these 2 paragraphs together, it is clear to us that, whether or not notice is given prior to the end of a fixed term, the contract will end by an effluxion of time at the end of the fixed term of the contract. The contract could be terminated earlier by giving 3 months’ notice as set out under paragraph 10 but cannot end later than the end of the fixed term contract. In other words, the contract ended on the 30 September 2020 and according to the contract, this could not be extended and there was no requirement for any further notice.

[71]On the 21 September 2020 at 3.06pm the Claimant sent a letter of appeal regarding her redundancy to Geraldine Mills. The letter of appeal is at pages 216-219 in our bundle. The letter again sets out her version of the series of events that had taken place since the 1 September. At page 218 she sets out her concerns and her conclusion that the redundancy procedure was not handled in a “responsible” way. She states: i. that she received a termination letter with inaccurate (false) information which referred to a consultation period that never took place; ii. that she received a termination letter FT3 without previously being informed that she was at risk of redundancy and without the consultancy procedure being exhausted (although she refers to the redundancy policy rather the Fixed Term Contract Policy). She said she wasn’t aware of the corresponding FT1 and FT2 forms that should have been sent; iii. She says that she received a revised second termination letter (FT3) informing her that her post had been made redundant contrary to Section6.1 of the redundancy policy. She also referenced a breach of “Section

6.2 of the Fixed Term Employees regulations 2002”. iv. The Claimant stated that she was invited for a consultation meeting which discussed the end of her fixed term contract and in which it was acknowledged that a proper procedure was not followed. She explains again that she signed the FT2 form under protest, and said that the meeting was not a consultation meeting as previously described. She said that, taking account of information she had discovered, the situation could be considered to be an unfair redundancy, on the basis that the institution has procedures for redundancy but did not follow them (referencing the Fixed Term Contract Employees regulations 2002 and the Redundancy Policy) and because she received a letter with the final decision without consultation. She quoted a Government website as saying “ if you do not consult employees in a redundancy situation, any redundancies you make will almost certainly be unfair and you could be taken to an Employment Tribunal” [emphasis added] v. The claimant again questioned the meeting she had with Professor Forster, saying it was not a consultation meeting but rather a meeting to inform her that the redundancy was proceeding. She said that she had been trying to resolve the issue internally and that the current situation may be causing administrative delays, that may explain the lack of a response regarding her request on the 14 September. She said that as the period to appeal the redundancy was near to an end, she had to make a decision to proceed further so as to meet the deadlines and hopefully, to find an answer to her concerns. She asked for details of the appeal procedure which she hoped would help resolve the situation internally, avoiding the need to escalate.

[72]The reference to a lack of response to her communication on the 14 September was a reference to her letter to Professor Forster previously referred to, in which she made a formal request for a written explanation to clarify her doubts regarding the redundancy process “carried out by Human Resources” as she put it.

[73]On the 21 September 2020, Professor Forster wrote to the Claimant at 4.46pm attaching a letter. Professor Forster’s letter is on page 214. He set out the process, explaining that the letter FT1 should be sent at least 30 days before the contract was due to come to an end. He explained that the FT1 contains an invitation to a consultation meeting and that the letter started the consultation process. He apologised and expressed regret that the Claimant did not receive such a letter by the 1 September 2020 and that she then received an FT3 letter which erroneously referred to the consultation having taken place. He said this should not have happened and apologised for that. He explained that he had investigated the reasons for the error and said that it was caused by a weakness in the departmental systems for dealing with HR matters. He explained that when the Claimant’s leaver details were processed through Success Factors system, this had triggered the FT3 letter dated 28 August 2020 advising the Claimant that her fixed term contract would be ending. He emphasized the consultation should have happened before the leaver details were processed. He said that the Department was reviewing processes to ensure that the deadline for the FT1 letter and subsequent consultation cannot be missed and that leaver details cannot entered on Success Factors until there was confirmation that the consultation had happened. He said that he had held a “consultation meeting” with the Claimant on the 10 September 2020 and pointed out that she had also been in correspondence with Justine Pearson since the 3 September. He confirmed he would consider the Claimant for any suitable vacancies which may arise in his department, but that the Claimant should make him aware of any vacancies that she may be interested in. Justine Pearson had also been sending the Claimant redeployment opportunities and would continue to do so. He apologised again that the timeframes had not been met and expressed a hope that his letter went some way to explain the matter. He asked her to “get back to him” if he could be of any further help.

[74]The Claimant replied a few minutes later (page 220) that, because she was not sure about the status of her request and because the deadline for appeal was near (on the 22 September if calculated from the letter sent on the 8th), she had sent an appeal letter to HR. She sent “her apologies for all this trouble”.

[75]By the 23 September 2020,the claimant’s appeal had been forwarded to Emma Brown (HR Manager for the Science and Engineering Department) and Caroline Meyer, who was the Vice Provost and Chair of the Faculty of Science, Engineering and Medicine. Emma Brown asked the Claimant to have a telephone conversation later that day or the Friday of that week, to discuss how to progress the matter. This was sent at 1pm on the 23 September 2020. They eventually agreed to talk at 11am on the Friday. The Claimant asked whether the small delay involved affected the times of the Appeal procedure. Emma Brown replied that she did not foresee that this would cause any undue delay to the University dealing with the matter.

[76]Emma Brown had undertaken her role since August 2020, but had worked in the University’s Human Resources Department since February 2007. She was responsible for managing Justine Pearson and other HR Business partners. She made a note of her discussion with the Claimant on the 25 September and that note is to be found at page 240 of our bundle. Also on the 23 September, Justine Pearson requested that the Claimant provide her redeployment form and CV. For whatever reason, the Claimant had not realised that she needed to send these documents and Justine Pearson, although she was aware that the Claimant was seeking to be redeployed (and would no doubt have needed the information regarding the Claimant’s CV in order to make a thorough search for job opportunities) had never prompted her to send it until that time. At page 556 of the bundle, we were taken to a series of emails. At the foot of the page, we can see that someone called Lesley Houfe, Interim HR Engagement Director, had sent Emma Brown a copy of the Claimant’s appeal. The email reads “FYI not copied in Justine at this stage given contents”. This was clearly because the appeal was critical of activities of HR (and hence Justine Pearson) in relation to the process.

[77]By the 23 September 2020, however, we find (page 557) that Paula Matthews was being asked by Justine Pearson for copies of “the FT1 and FT2 in relation to Elena”. Of course the Claimant had never received this, and Paula Matthews’ response is revealing “Hi Justine, I am not sure what these are, so no”. On the same day, the 23 September Justine Pearson replied to Paula Matthews explaining what the documents were and saying that she had already received the FT2 from Professor Forster. She said that she would book some time in “to talk through getting a process embedded in the Department going forward” [emphasis added].

[78]Later that day, on the 23 September at 2.38pm, Justine Pearson wrote to Emma Brown saying “the FT1 invite wasn’t used. Attached is the FT2 form which [Professor Forster] had completed”. In her evidence, Justine Pearson said that she had been “briefing” Emma Brown and assisting her with the Appeal.

[79]We accept the Claimant’s account that the note on page 240 does not reflect everything that was discussed on the 25 September at 11am. We accept the Claimant’s evidence that she told Emma Brown that she had not requested the second FT3 form but rather had asked for a letter with correct information about the process that needed to be followed. The Claimant was concerned that Emma Brown had said that “we cannot go back in time” regarding the Claimant’s criticisms of her meeting with Profession Forster on the 10 September 2020. The Claimant had said that her Line Manager Professor Jacka did not know about the consultation procedure, but that she was more surprised that HR did not know about it either. This is in the context of the Claimant’s point that the meeting on the 10 September did not amount to consultation (nor part of a consultation process). Emma Brown had indicated to the Claimant that she did not think it was possible that Professor Jacka did not know about the consultation process because he had been a Head of a Department in the past. Emma Brown asked the Claimant to think about what she wanted from the Appeal. The Claimant said that her appeal was against the decision making her post redundant. The Claimant asked Emma Brown what the University’s expectations were when the right of appeal is offered in these situations. Emma Brown replied that no-one had ever exercised the right of appeal previously – that is, in the context of nonrenewal of a fixed-term contract.

[80]At the end of the call, Emma Brown asked the Claimant to take time to decide whether she wanted to continue with the formal appeal hearing. This made the Claimant think that the purpose of the call was to try to convince her to withdraw her appeal. She was concerned that she had not kept a record of the call. In her evidence, Emma Brown seemed surprised that the Claimant had confirmed that she wanted to progress the appeal within 2-3 hours. This is, of course, something that the Claimant was perfectly entitled to do. During the call, as appears at page 240, Emma Brown had explained that there were 2 different policies, a redundancy and fixed term contracts policy. She pointed out that the end of the fixed term contract was to be dealt with in accordance with the fixed term contracts guidelines. Emma Brown noted that the Claimant felt shocked at being made redundant. We accept the Claimant’s explanation that she did not understand what redundancy was and was concerned about it. The Claimant said that she had been sent a “false” letter claiming the existence of a consultation period that hadn’t taken place. Emma Brown explained that this would have been a standard letter that was triggered by the Statistics Department completing the leavers process on the Success Factors System.

[81]From Emma Brown’s point of view, she had carried out her role as an HR professional and had explained the relevant policies to the Claimant. The Claimant, however, was non-UK national for whom English is not her first language; she had no previous experience of redundancy or redeployment procedures and did not understand what they were. This was an informal call, and not surprisingly, the Claimant took no notes of the meeting. In answer to a question from the Tribunal, Emma Brown accepted that none of the Respondent’s policies appear on its intranet in anything other than English, although many members of staff may not be UK nationals and a significant proportion are likely to have English as a second language.

[82]Justine Pearson continued to send details of redeployment opportunities to the Claimant up until 28 September. The Claimant accepts that none of the jobs which were notified to her during the month of September were suitable.

[83]On the 28 September, Emma Brown wrote to the Claimant sending a letter setting out the arrangements for her appeal hearing. This letter is to be found at pages 248 and 249 of the Trial file. The Hearing date was to be the 5 October 2020, 9 days before the Claimant’s visa was due to expire. It was to be held virtually, through Microsoft Teams. The Claimant was told that Professor Caroline Meyer would chair the Hearing and Professor Michael Ward, Head of Department in Chemistry would be on the panel. Emma Brown attended to ensure procedural compliance and to offer advice to the Panel and take notes. The letter referenced Section 6.2.12 of the University Fixed Term Contracts Policy and Procedure and provided a link to that, but as we have seen, there is very little detail in that policy about the nature of the appeal. This letter did give the Claimant the right to be accompanied by a trade union representative or work colleague who could take notes on her behalf. The Claimant was asked to confirm her attendance by 12pm on the 2 October 2020. The Claimant was told that she could present her case at the appeal and could provide a written submission prior to the meeting or submit an additional evidence that supported her grounds of appeal by 12pm on the 2 October. The letter invited any further questions that the Claimant may have.

[84]On the 30 September at 11am the Claimant wrote to Emma Brown (page 246) asking how many people would be on the panel for the appeal. The Claimant explained to us in her evidence (and we accept) that she had no knowledge of any of these processes and was concerned about what was likely to happen, and also worried about any potential repercussions for herself of having brought an appeal.

[85]On the 30 September, Emma Brown replied that Professor Meyer and Professor Ward were on the panel with Professor Meyer acting as Chair and that she would be in attendance to support the panel and take notes for the chair. She did not give the Claimant any indication of how long the appeal would last or what the timescale was for receiving an outcome. It should be noted that in the Fixed Term Contract Policy the only timescale which is given regarding the appeal is that the employee should write to the Director of Human Resources within 14 days of their leaving date setting out grounds of appeal. There is no information about the procedure that will be followed in the appeal or what the timescales are for receiving an outcome or even what the powers of the appeal committee are ,and whether this is to be a full reconsideration of the situation or simply a review. The Claimant was unable to find a colleague who was available to accompany her to the Hearing.

[86]On the 2 October 2020, Emma Brown wrote to Professor Ward and Professor Meyer attaching some relevant documents. She said that she would have a short pre-meeting with them at 1.45pm before the appeal to discuss “the approach”. She said it might be sensible to forward any suggested questions or areas of clarification to Professor Meyer in advance of the pre-meeting. She indicated that the relevant policy was “the Fixed Term Contract Policy” as she put it, and not the Redundancy Policy and Procedure. Emma Brown offered to have a conversation that day, or on the morning of the 5 October (which was a Monday) to “summarise” the case if helpful. Emma Brown had “a quick chat” with Professor Ward at 4.15pm that day, but we do not have any details of what was discussed.

[87]Although no one from Human Resources had provided the Claimant with information about the format of the appeal, Emma Brown provided a document headed “Appeal Hearing Framework” (setting out the process that would be followed) to Professors Ward and Meyer in advance of the appeal - pages 257-260. Also on the 2 October 2020, the Claimant confirmed that she would attend alone and she reiterated that the notes regarding the meeting on the 10 September were signed under protest as she did not consider that the meeting met the requirement of a consultation meeting in Section 6.2 of the Fixed Term Contracts Procedure.

[88]Professor Meyer was overseas at the point of the Final Hearing of this case and had not received permission to give her evidence from overseas. In those circumstances, the Respondent asked us simply to read her statement and we have done so. Professor Meyer states at paragraph 4 of her statemen that the employment of research staff is often linked to funding and is consequently short term. She continues: “This can be a tough time for academic staff, not having certainty over their employment, however this is typical of the sector and is not by any means unique to the University”. She says that research staff are aware that this is how employment at a junior level will be structured until they develop the necessary skills to become an established academic in their own right. She says that she considers it to be almost like an apprenticeship. That does not mean, however, that employees like the Claimant who have been employed by the University for more than 2 years are not entitled to be protected from unfair redundancy.

[89]Professor Meyer acknowledges that appeals about fixed term contracts do not come up very often. At paragraph 9 of her statement, Professor Meyer accepts that the University had not followed the correct procedure as set out in a Fixed Term Contract Policy. She says that her focus was to consider the grounds of the appeal and to establish from the Claimant what the impact of the error had been and whether she had been disadvantaged in any way as a result of receiving the FT3 letter before she had a consultation meeting (emphasis added). She sets out how an appeal hearing is usually conducted at the University; the employee is given an opportunity to put forward their side of the story and the panel then ask questions and seek clarity. It is not clear that anyone on behalf of the University had explained this to the Claimant prior to the day of the appeal hearing, however (see page 248).

[90]It is clear that Professor Meyer had apologised to the Claimant for the errors that had taken place in the fixed term contract termination procedure. The minutes are at pages 261-265 of our bundle.

[91]At page 262, it is clear that the Claimant stated her concern about the process that had been followed. The Claimant explained that she did not know why the appropriate procedure was not followed. She referred to a lack of consultation. She said she had been shocked to receive a letter that was not accurate. She was concerned that Justine Pearson had not acknowledged that there should have been consultation meetings or apologised for not following the procedure. The Claimant was concerned about receiving the standard FT3 letter even after she had pointed out the errors.

[92]It is apparent that the Claimant was concerned about the potential repercussions of her appeal for her future career, and she expressed a concern that her decision to appeal could see her “banned from the University”. Professor Ward queried whether there had ever been any suggestion of this. The Claimant confirmed that this was “just in her mind” and said she was worried that she could be seen as a problematic person. The Claimant struggled to identify what she wanted from the Appeal, but this is not surprising as the whole process was completely unfamiliar to her.

[93]The Claimant was complimentary about Professor Jacka and accepted that he had spoken to her about her job and career plans. In her evidence to us, however, the Claimant clarified that Professor Jacka had been concentrating on opportunities outside Warwick University and that she had been unaware that redeployment was possible. Professor Jacka confirmed that this “could well have been the case”. At the end of the Hearing, Professor Meyer confirmed that the Claimant would have an outcome in writing in 5 working days. The Claimant asked if she could have a copy of the notes that were taken by Emma Brown. Emma Brown agreed that these could be included with the outcome letter. The Claimant had set out her grounds of appeal again in writing and these are found at pages 266- 270.

[94]The day after the Appeal, Justine Pearson was again assisting Emma Brown by seeking a copy of the letter sent by Professor Forster to the Claimant on the 21 September 2021 - pages 549 and 550. On the 9 October 2020, Emma Brown sent a draft of the appeal outcome letter to Michael Ward and Caroline Meyer. Emma Brown accepts that she drafted the appeal outcome letter for the Professors (see pages 563- 567), but says that she “captured it” from their discussions on the 5 October 2020. Emma Brown explained to the panel that she had referenced Professor Forster’s letter in the outcome. This must have been something which she added of her own volition, as the panel had not seen it (and neither had Emma Brown) by the time of the appeal.

[95]In her witness statement, the Claimant records that she was “outraged” to read the outcome and the notes of appeal. She was upset because she considered that they contained inaccurate and false statements of what she said during the Appeal Hearing. The Claimant’s appeal was unsuccessful, as appears from the letter she was sent (dated 9 October 2020 but sent on 12 October 2020 -p271) at pages 272-275 of the bundle.

[96]By this stage, we accept that the Claimant was “panicking”, as she had only 2 days to either secure a new visa or leave the UK. Fortunately, on the 13 October 2020, she received her Certificate of Sponsorship from her new employer, submitted her visa application and was able to stay in the country. On the 16 October 2020, after, understandably, taking time to finalise her new working arrangements, the Claimant sent a further letter to Emma Brown acknowledging receipt of the appeal outcome letter and notes - page 303. The Claimant said that she was reviewing the outcome and reserving the right to proceed as appropriate. Then on the 23 October (page 202), the Claimant attached a response to the appeal outcome. This was copied to Professor Meyer and the Claimant asked for a correction to the Appeal Hearing notes.

[97]On the 27 October, Emma Brown confirmed that there was no further right of appeal against the outcome in the letter, and the University’s process had now been exhausted. She said that the University was not seeking to agree a set of notes with the Claimant but were shared with the Claimant “for information only”. She pointed out that the Claimant had the opportunity to take her own notes during the meeting. On the 28 October, the Claimant wrote to Geraldine Mills, the Director of Human Resources at the respondent, regarding her comments on the appeal and her corrections to the notes. Ms. Mills agreed to keep the 2 letters that the claimant had submitted on file, with the appeal outcome and notes. She confirmed that the University’s process had now been exhausted. This was on the 3 November 2020.

[98]On the 9 November 2020, the Claimant confirmed her dissatisfaction with the outcome of the appeal and explained her concerns - page 308 in the bundle. Finally, on the 10 November 2020, the Claimant replied to Professor Forster in respect of his letter dated 21 September 2020, including her comments on the appeal and upon his letter of the 21 September. She thanked him for taking time to listen to (and read) her concerns and said she appreciated his efforts to try and explain the issue regarding the redundancy of her post from the point of view of the Statistics Department.

[99]The Claimant has also made a claim for outstanding holiday pay. Although the Respondent made a concession at the start of the Hearing that it would pay the amount claimed in her Schedule of Loss because it accepted that she had been underpaid holiday pay, the Claimant was concerned about how this was calculated and therefore, after some clarification about when payment could be made by the Respondent, we permitted her to withdraw her agreement to payment of that amount and have heard her evidence about that.

[100]We accept on the balance of probabilities that the Claimant had taken no more than 10 days of annual leave in the last holiday year for which she was employed and that in addition to that, she had taken 4 days of leave during the annual shutdown of the University over Christmas 2019. Relevant Law:

[101]Unfair dismissal: Under section 94 of the Employment Rights Act 1996, an employee has the right not to be unfairly dismissed by her employer. Section 95 (1)(b) of the Act provides that “an employee is dismissed by his employer if…. (s)he is employed under a limited term contract and that contract terminates by virtue of the limiting event without being renewed under the same contract”. In addition, section 136(1)(b) of the same Act provides that an employee is dismissed by her employer In those circumstances for the purposes of redundancy.

[102]We have referred to section 98 of the Employment Rights Act 1996. It is for the respondent to show the reason (or if more than one, the principal reason) for dismissal, and that it is either a reason 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.

[103]The respondent says that the principal reason for the claimant’s dismissal was that she was redundant, which is a reason which falls within subsection (2) ( c) of section 98. Ms Reindorf specified that the respondent was relying upon the definition of redundancy within subsection1(a)(i) and/or (b)(i) of section 139 of the 1996 Act. Subsection1(a)(i) covers the situation where the dismissal is wholly or mainly attributable to the fact that her employer has ceased or intends to cease to carry on the business for the purpose of which the employee was employed. Subsection (1)(b)(i) covers the situation where the reason for dismissal is the fact that the requirements of the business for employees to carry out work of a particular kind has ceased or diminished or is expected to cease or diminish. It seemed to us that the situation fell more neatly into subsection 139(1)(b)(i).

[104]If the respondent establishes that the reason for dismissal was a potentially fair one, we then have to consider whether the dismissal was fair or unfair (having regard to the reason shown by the employer). That question depends upon whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and shall be determined in accordance with equity and the substantial merits of the case (section 98(4)(a) and (b) of the 1996 Act).

[105]Although we were reminded that the case of Williams v Compair Maxam

[1982] ICR 156

was decided many years ago and in a different context of collective redundancy (see paragraph 38 of the respondents written submissions), we accept that the basic principles identified in that case, whilst not binding on us, are helpful guidance in determining whether this respondent’s approach to the claimant’s redundancy fell within the range of reasonable responses which a reasonable employer could have adopted in these circumstances. In particular we have considered whether the respondent consulted the claimant adequately regarding the termination of her contract, and whether its attempts to find suitable alternative employment for her fell within the reasonable range given the respondents size and administrative resources (amongst all the other circumstances).

[106]Whether or not the respondent’s policies and procedures in relation to fixed term contracts, redundancy, redeployment and grievances were incorporated into the claimants contract of employment, we have to consider whether any reasonable employer in the respondent's circumstances would have considered it within the reasonable range of conduct to breach its own agreed policy within the circumstances of this case. The respondent has accepted on many occasions that it was in breach of its Fixed Term Contract Policy and Procedure by, for example, sending out the standard letter FT3 without having carried out any consultation with the claimant.

[107]We accept the respondents proposition (see for example paragraph 42 of the written submissions) that it is not every breach of policy or procedure that will render a dismissal unfair. We have to consider whether the conduct of this employer was within the reasonable range of responses in the circumstances known to it at the time.

[108]In particular, we accept that in some circumstances a reasonable employer can reasonably conclude that compliance with a procedural step would have been utterly useless or futile, although these circumstances will be rare – see Polkey v AE Dayton Services Ltd

1988 IRLR 142

. In that case, Lord Bridge pointed out that an employer will not normally act reasonably unless he warns and consults any employees affected or their representatives, adopts a fair selection process [where applicable] and takes such steps as may be reasonable to avoid or minimise redundancy by deployment within his own organisation. We accept that we must not blindly apply such guidance and that, for example no selection process applied in the circumstances of this case, but it is still helpful guidance.

[109]We reminded ourselves that we must not substitute our own views as to what should have happened in the circumstances known at the time for those of the employer. We must, rather, consider how a reasonable employer would have behaved in those circumstances. See Foley v Post Office, HSBC v Madden

[2000] ICR 1283

CA. This means considering whether the procedure adopted was within the reasonable range open to this employer in the circumstances: J Sainsbury plc v Hitt

[2003] ICR 111

CA.

[110]The list of issues includes, at paragraph 2.4.4, consideration of whether there is a chance, if the claimant was unfairly dismissed, that she would have been unfairly dismissed anyway if a fair procedure had been followed, or for some other reason. This is a reference to the case of Polkey v AE Dayton Services Limited

[1988] ICR 142

HL.

[111]A reduction in compensation was made, famously, in that case under section 123(1) of the Employment Rights Act 1996. This provides that subject to the provisions of that section and sections 124, 124A and 126, the amount of the 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.

[112]This involves consideration of whether the employer could have dismissed fairly, and if so whether (and when) it would have done so.

[113]We have to consider what this particular employer would have done, acting fairly - see the case of Hill v Governing Body of Great Tey Primary School

[2013] ICR 691

EAT. We must not take an “all or nothing” approach but must assess the loss sustained by the claimant in consequence of the dismissal so far as that loss is attributable to action taken by the employer, which includes, for example, assessing how long the employee would have remained employed had the respondent acted fairly in the circumstances.

[114]If she is successful, the claimant has claimed that she is entitled to an uplift in compensation for unreasonable failure to follow a relevant ACAS code - see section 207A of the Trade Union and Labour Relations Consolidation) Act 1992. There is no relevant Code of Practice relating to redundancy and so the only ACAS Code of Practice which could potentially apply is the that relating to Disciplinary and Grievance Procedures (if the claimant is found to have lodged a grievance within the meaning of the Code). Unfortunately for the claimant, however, paragraph 1 of the Introduction to the Code says that it does not apply to redundancy dismissals or the non- renewal of fixed term contracts on their expiry.

[115]Indirect sex or race discrimination : section 19 of the Equality Act 2010 provides that a person(a) (A) discriminates against another

(b) (B) if A applies to B a provision criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

[116]In this case, the claimant’s protected characteristics are her sex (female) and her race. She describes her racial group as belonging to a group of people who are neither UK nor European Union citizens. race is defined in section 9 of the Equality Act 2010 and by subsection 4, the fact that a racial group comprises two or more distinct racial groups does not prevent it from constituting a particular racial group. The respondent has not disputed that the claimant has defined a valid racial group for these purposes.

[117]Subsection 2 of section 19 provides that for the purposes of subsection 1, a provision, criterion, or practice is discriminatory in relation to a relevant protected characteristic of B’s if A applies or would apply it to persons with whom B does not share the characteristic; it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it; it puts or would put B at that disadvantage ,and A cannot show it to be a proportionate means of achieving a legitimate aim.

[118]We have reminded ourselves that section 14 of the Equality Act 2010, which provides protection against discrimination because of a combination of two relevant protected characteristics, has not yet come into force.

[119]We have taken account of the relevant case law as cited to us, and in particular to the case of Ishola v Transport for London and Nottingham City Transport Limited v Harvey. These cases identify that a practice means “something which occurs more than on a one off occasion and … has an element of repetition about it”. A one-off decision or act can amount to a provision criterion or practice, however, if it amounts to a state of affairs and is an indication of how a similar case would be treated if it were to occur again.

[120]Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002: the claimant clarified that her complaint was made under regulation 3 (and 7) of these regulations. Regulation 3 provides that a fixed term employee has the right not to be treated by her/his employer less favourably than the employer treats a comparable permanent employee –(a) as regards the terms of his contract; or

(b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer. Subparagraph 3 of regulation 3 provides that the right conferred by paragraph 1 applies only if – (a) the treatment is on the ground that the employee is a fixed term employee, and the treatment is not justified on objective grounds.

[121]Subparagraph 3(b) is subject to regulation 4 in respect of objective justification.

[122]Regulation 7 permits an employee to present a complaint to the Employment Tribunal on the basis that her employer has infringed a right conferred by regulation 3. That regulation provides the time limits and remedy. Subparagraph 10 clarifies that compensation in respect of treating an employee in a manner which infringes the right conferred by regulation 3 shall not include compensation for injury to feelings. There is provision for mitigation of loss and for a reduction for contributory conduct.

[123]Regulation 2 deals with comparability between fixed term and permanent employees. It provides that for the purposes of these regulations, an employee is a comparable permanent employee in relation to a fixed term employee if, at the time of treatment that is alleged to be less favourable to the fixed term employee takes place,(a) both employees are (i) employed by the same employer , and(ii) engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualifications and skills; and the permanent employee works or is based at the same establishment as the fixed term employee [-so far as relevant, and emphasis added].

[124]It was not disputed that the claimant’s comparator, Dr Koskela, was employed by the same employer at the same time and was based at the same establishment as the claimant. It was disputed that they were engaged in the same or broadly similar work having regard to the relevant factors.

[125]The non-renewal of a fixed term contract does not, of itself amount to a detriment within regulation 3 (see Webley v Department of Work and Pensions

[2005] ICR 577

[126]Regulation 8 of the 2002 regulations did not apply to the claimant when her final contract ended, as she had not been continuously employed at that point under a series of fixed term contracts for a period of four years or more.

[127]Holiday Pay : The claimant’s contractual terms as to holiday entitlement are set out in clause 19 of her Terms of Employment at page 514. As she was employed at level 6 at the relevant time her annual leave entitlement was 34 working days in each leave year. It is stated that from the annual leave entitlement, the University may require a worker to take a number of customary days or specific shutdown periods as specified by the University or the Head of Department/ line manager, together with eight statutory days. The University's leave year runs from the 1st of October to the following 30th of September.

[128]We have also considered section 13 of the Employment Rights Act 1996.

[129]Wrongful dismissal: the claimant’s contractual terms as to notice are set out in page 510 and referred to above. As previously mentioned, this provides that for fixed term appointments, the rights on notice of termination apply only during the period of the fixed term and will terminate no later than the end of the fixed term, but if no further notice is given the employment will automatically terminate at the end of the fixed term.

[130]We accept, as set out in paragraph 15 of the respondent’s written submissions, that the case of Wiltshire County Council v National Association of Teachers in Further and Higher Education

[1980] ICR 445

CA confirms that a fixed term contract expires automatically at the conclusion of the term. No notice needs to be given in addition to that stated in the contract, even if the contract is terminable on notice within that term. Application of Law to Facts:

[131]By the time the parties were making submissions, the claimant was no longer asserting that the reason for her dismissal was due to unfavourable treatment as a fixed term employee. At paragraph 32 of her written submissions she complains that her redundancy process was not fair for various reasons. She therefore appears to accept that the reason for her dismissal was redundancy. It is not surprising that there was a lack of clarity about the claimant’s case prior to that point, as she was unfamiliar with the concept of redundancy prior, at least, to September 2020.

[132]We accept that the reason for the termination of the claimant’s contract amounted to a redundancy within section 139(1)(b)(i) of the 1996 Act. The respondent’s need for Research Fellows to carry out work of the kind the claimant was doing had ceased or diminished due to the lack of funding for the research on which she was engaged.

[133]This is a potentially fair reason within section 98(2)( c)of the Act.

[134]We have therefore gone on to consider whether the dismissal was fair or unfair, having regard to that reason. The respondent had not inserted the number of its employees in its response. It is, however, a large and well-known University. Professor Forster explains in his witness statement that the Statistics Department alone has 55 academics on its staff, together with 15 permanent administrative staff. The University is supported by a structured Human Resources Department.

[135]So did the respondent act reasonably in treating the claimant’s redundancy/termination of her fixed term contract as a sufficient reason for dismissing her, when considered in accordance with equity and the substantial merits of the case?

[136]As outlined above, paragraph 6 of the Fixed Term Contracts Policy and Procedure deals with the claimant’s situation (p426). Paragraph 6.1 provides that if a contract cannot be renewed or extended this may well be a redundancy situation. Accordingly, Heads of Department must ensure that proper redundancy consultation takes place.

[137]The consultation procedure is then set out, as indicated above. Consultation should be triggered by the sending by the Head of the Department of consultation letter FT1 to set up a meeting, which should be held with the employee within the next seven days. The letter should be sent (ideally) four months prior to the end of the contract but at least 30 days before it is due to end.

[138]As we have seen, the claimant was never sent standard letter FT1.

[139]Paragraph 6.2.4 of the policy sets out what the Head of Department or manager should do at the first consultation meeting. Amongst other things, they should be prepared to inform the employee of any alternative employment or other possibilities within the Department and consider whether redeployment is possible within the Department in accordance with University’s redeployment policy and procedure. They should inform the employee that they can arrange for internal vacancies to be emailed to the employee and that if they wish to be considered for redeployment they should provide a template CV and completed redeployment requirements form to the HR adviser. The employee is entitled to be represented by a trade union representative or colleague at the first and subsequent consultation meetings. Paragraph 6.2.7 confirms that employees on fixed term contracts can be considered under the University redeployment policy and procedure within three months of the end of their fixed term contract.

[140]The template for the FT1 letter also informs the employee that they can express an interest in vacancies that occur before the expiry of the contract.

[141]Instead, as we have seen, the claimants received only an FT3 letter on 1 September 2020. This advised her that her post was being made redundant with effect from 30 September 2020. When the claimant raised her concerns, Justine Pearson initially, on 3 September, simply sent her a link to provide information about redeployment, not the Fixed Term Contract Policy and Procedure. We found that the claimant did not initially understand what redeployment was.

[142]We have set out above the relevant provisions of the Redeployment Policy, which starts on page 415 of the bundle. At paragraph 1.2, it states that the “University will…make all reasonable efforts to support employees at risk of redundancy”. It seemed to us that every reasonable employer in the respondent’s position would see the starting point for those efforts to be informing affected employees of their right to seek redeployment for up to three months prior to the termination of their contract due to redundancy. This would necessitate informing the employees affected of the right to redeployment at least three months before the end of the contract. The respondent appears to have ample administrative resources, and Ms Pearson accepted that she was aware that the claimant’s fixed term contract was due to end by virtue of an e-mail dated the 27th of May 2020.

[143]The respondent argues that, because the claimant had a fixed term contract of which the end date was clear, it did not need to warn her of her impending redundancy. It is true that the claimant was aware from the start of her last fixed term contract of when it would end, but we consider that every reasonable employer would have wished to inform an employee in the claimant’s position not only that her contract would end on a specific date but also that, given her length of service, if it did end, this was likely to be a redundancy situation, and that as a result, she was entitled to the benefit of its Redeployment policy.

[144]The policy was not expressly brought to the claimants attention until the 3rd of September 2020, 27 days before her contract was due to expire. 145. It fell to the claimant to raise concerns again on 8 September 2020.

[146]When Justine Pearson replied to the claimant on 8 September 2020, she did not send her an adapted FT1 form, but simply sent a modified version of the FT3 letter(p168).

[147]The claimant was not told that she could be accompanied at the meeting which subsequently took place with Professor Forster on 10 September 2020. She was never told that she could have reasonable time off to look for other employment, in accordance with the respondent’s Fixed Term Contract Policy and Procedure. She was not told in advance that she could put forward ideas which might assist in avoiding her redundancy.

[148]As the claimant has asserted, we find that the meeting which took place between herself and Professor Forster on 10 September 2020 was not a consultation meeting at all. The Professor’s notes show that he simply confirmed that the contract was ending due to lack of funding. He said there were no similar opportunities in the University but that the claimant should monitor the vacancy webpages. He apologised that the meeting had not happened earlier and that the FT3 letter had been issued without “this consultation” taking place.

[149]At the time that the meeting took place, 10 September, neither Professor Forster nor Justine Pearson had seen the claimant’s curriculum vitae, and they did not know that she had teaching experience from her time working in Mexico. The claimant was not reminded at the meeting, in accordance with the respondent’s policy and procedure, that she ought to provide a curriculum vitae and redeployment form so that an informed search could be carried out. The claimant had not digested this information from the link that had been given to her. The Policy and Procedure provide that a reminder to provide the curriculum vitae and redeployment form should be given at the first consultation meeting. We consider that every reasonable employer would have wanted to remind the claimant of this, to give them the maximum possible opportunity to avoid redundancy. This is especially so in a situation where the claimants’ first language is not English.

[150]The Fixed Term Contract Policy and Procedure provides at paragraph 6.2.9 that, in addition to the first consultation meeting, it is important for the Head of Department or line manager to hold at least one other meeting with any employee whose contract is not to be renewed. This meeting should be held a minimum of two weeks after the first consultation meeting and, ideally, approximately six weeks prior to the contract end. The purpose of the meeting is to confirm the position of the employee, to discuss any changes since the first consultation meeting, and to discuss the employee’s view of the situation. The Head of Department continues to have a responsibility to support the member of staff throughout the redeployment process, until the fixed term contract end date. It is clear from the respondent’s agreed policies that they accept that they must do more than simply remind a fixed term contract employee that their contract is due to expire in order to fairly dismiss when the employee has continuous employment of two years or more.

[151]As we have seen, there were no further meetings between the claimant and Professor Forster before the claimant’s contract ended.

[152]We have to ask ourselves whether the respondent’s conduct in the circumstances, where an FT3 letter was triggered by an administrator entering the claimant’s contract termination date in the respondent’s system, fell within the reasonable range of options available to it in the circumstances.

[153]We do not consider that it did. The purpose of the FT1 letter is to clarify their situation to the fixed term employee. The respondent has given itself a wide timespan in which to send the FT1, triggering the consultation process – between four months and 30 days before the end of the contract. We consider that every reasonable employer in the respondent’s situation would wish to send the FT1 letter to an employee in the claimant’s situation at least 30 days before the termination date, and to consider extending her contract to ensure that minimum period was offered if, for some reason, that was not done. They have specified this as a minimum. The information in this letter would have been very valuable to the claimant, in particular alerting her to the fact that she could actively put forward alternative suggestions to redundancy and that she could seek to be represented at the consultation meeting.

[154]We do not accept paragraph 37 of the respondent’s written submissions, which suggests that the sending of an FT1 warning letter would have been a purely formal step. Although the claimant knew that her current fixed term contract was due to expire, it is very obvious from her evidence and the letters written at the time that she did not understand the nature of redundancy procedures or redeployment or that she could be represented at any meeting to discuss this. She was unaware that she could put forward alternatives to dismissal - Professor Forster accepted that he had not asked her if she had any such suggestions to put forward.

[155]In a situation such as the present where, through no fault of the claimant’s, the wrong letter was sent out and this was discovered within three days, we consider that every reasonable employer would have wanted to put the situation right by sending her the FT1 letter (which should have been sent no later than 1 September) immediately, by making inquiries as to whether a short extension of her contract was possible to extend the consultation period to at least the minimum, and to ensure that appropriate consultation took place. This would have given the claimant an opportunity to seek representation, to think about her options and the possibilities of securing alternative employment within the University, in advance of her meeting with Professor Forster. We note that even when the revised FT3 letter was sent, the claimant was not referred to the Fixed Term Contract Policy and Procedure, which would have provided her with more information - she had only been provided with a link to the Redeployment policy.

[156]Professor Forster was asked by the respondent’s representative why he did not, after his exchange of emails with Justine Pearson, contact Professor Ennew to see if they could fund a short extension of the claimant’s contract to give her at least the minimum consultation period. His reply was (words to the effect) that he did not think there was any point or value in doing so, as there was a recruitment freeze at the University and he did not think there would be any suitable opportunities for the claimant to retain her employment. He was not fully apprised of the claimant’s experience, however, as he frankly admitted in his evidence. In addition, provisions for consultation do not exist simply so that an employer and employee can check for suitable alternative employment. A consultation period is also a period during which an employee can search for suitable alternative employment outside of the employer’s business with the advantage of still being employed. In addition, we have found that the claimant was not informed about the redeployment policy until the 3rd of September 2020. She could have been considered for redeployment from the 1st of July 2020 if the full three months had been offered. We consider that every reasonable employer would have wanted to explore the possibility of a short contract extension to maximise the claimant’s chances of redeployment, in a situation where it’s failures had reduced (by more than two thirds) the maximum redeployment period.

[157]Whilst we accept as a matter of principle the respondent’s proposition that breach of an internal policy does not automatically result in unfairness (paragraph 42 of the submissions), in our view every reasonable employer in these circumstances would have wished to give the claimant the benefit of at least the minimum of 30 days’ consultation, especially when the respondent knew that the claimant’s visa to remain in the UK would expire 14 days after the termination of her employment. In reaching this conclusion, we have had regard to equity and the substantial merits of the case. We do not consider that the respondent’s reaction to its own breach of its policy fell within the reasonable range of options available to it.

[158]We do not accept that the departure from the timescales and the policy was “very slight”, as suggested by the respondent. The meeting with Professor Forster on 10 September 2020 was not a consultation meeting as envisaged by its own policy at all, for the reasons set out above. Professor Forster did not attempt to find out more information from the claimant that may have helped to avoid her redundancy and did not give her any opportunity to make suggestions of her own. He did not give her the opportunity to be represented by someone more familiar with the respondent’s processes at the meeting on the 10th of September 2020.

[159]We do not consider that the respondent acted quickly to rectify the matter, as it suggests; beyond sending the claimant a link to the redeployment policy on 3 September, no further action was taken until the claimant prompted it on 8 September, by emailing Justine Pearson. The action taken at that point did not rectify the situation – it simply replicated the error by sending another FT3 letter.

[160]As we have found above, the meeting on 10 September did not amount to a consultation meeting in the sense of allowing the claimant to put forward her ideas of what ought to happen, nor did it satisfy the terms of the respondents own policy by informing the claimant about her right to representation or that she was entitled to at least one other consultation meeting before her contract terminated.

[161]To reiterate, we consider that any reasonable employer of the respondent’s size and administrative resources, who appreciated by 8 September 2020 that it had breached its own policy and that the claimant had not been consulted before being told that her contract would end, would have wanted to do everything it could to put matters right by following that policy so far as possible from that point onwards. In his evidence, Professor Forster accepted that the fact that the situation occurred during the pandemic had little to do with what happened, contrary to the respondent ‘s submissions.

[162]We do not accept that the only thing that could be talked about at the consultation meeting was the possibility of an alternative position within the institution. As noted above consultation meetings are also to give the claimant the benefit of putting forward her own proposals for avoiding termination of the contract, and to discuss whether there is anything else that the respondent can reasonably do to help the claimant find alternative employment. Whilst the claimant accepted that during the period for which Justine Pearson was sending her details of available posts none of those provided were suitable, and that she had not seen the computer science posts that were discussed in the evidence, the claimant made the point that neither Justine Pearson nor Professor Forster were fully aware of her qualifications and experience. She could not rule out the possibility that there were other positions that may have been suitable had she been afforded a consultation period of at least 30 days. We reiterate that every reasonable employer in this situation would have wanted to do as much as possible to maximise the claimant’s chances of being redeployed, including by investigating extension of her contract by a short period and reminding her to provide a copy of her curriculum vitae and redeployment form.

[163]The respondent argues at paragraph 43 of its written submissions that it would have been futile to retract the first FT3 letter. This ignores the respondent’s responsibilities, acting reasonably, to continue to make reasonable efforts to find suitable alternative employment for the claimant for the full duration of her employment. We would also refer to our findings above about the purpose of the consultation period.

[164]Regarding the email interchange between Professor Forster and Justine Pearson at the top of page 545, the respondent refers to Professor Forster’s oral evidence that he did not pursue further funding to extend the claimant’s contract nor hold the second consultation meeting because he did not think there would be any value in it. Regarding the funding, we do not consider that it was within the reasonable range of responses for Professor Forster to fail to explore this option given the position the respondent had placed the claimant in. We consider that the context of the Professor’s answer was that he did not think that there was a realistic prospect of the claimant’s research role being extended due to the recruitment freeze and financial pressures. He did not discuss the matter further with Justine Pearson -if he had, she told us in evidence that she had in mind a relatively short extension of the claimant's contract to allow her to have at least the minimum consultation period and to maximise her chances of finding alternative employment, rather than a substantial extension of her research role. In our view, it was outside the reasonable range of behaviour for him to fail to discuss this matter further with Justine Pearson, or to approach Professor Ennew to see what her view was.

[165]So far as the second consultation meeting is concerned, we do not consider that Professor Forster’s conclusion that this was pointless fell within the reasonable range, as he accepts that he did not have detailed knowledge of the claimant’s skills, experience and qualifications and so could not foresee whether any vacancies which may arise would be suitable for the claimant. Vacancies did arise within the month, as we have seen from Justine Pearson's evidence.

[166]It will follow from the above that we do not consider that the respondent’s efforts to seek alternative employment for the claimant fell within the reasonable range either. Justine Pearson did not seek details of the claimant’s CV until 23 September 2020. She had simply sent the claimant a link to the redeployment policy on the 3rd of September. It was obvious from the correspondence that the claimant was interested in redeployment. The claimant is not a native English speaker and her continued residence in the UK was at risk within the following month. In those circumstances we consider that any reasonable employer would have taken prompt steps to inform itself fully about the claimant’s qualifications and experience by asking her to complete the redeployment form and provide a curriculum vitae no later than 8 September 2020.

[167]In its written submissions at paragraph 48.1, the respondent suggests that the claimant’s discussions with Professor Jacka about her future employment during 2020 “substantively amounted to consultation.” We do not accept this to be correct; the claimant said that Professor Jacka was focussing on options outside of the University and Professor Jacka accepted that this could well have been the case. He did say that he would have suggested any internal vacancies had he spotted them, but there was nothing to suggest that he was actively seeking to identify vacancies within the University for the claimant, or taking reasonable steps to do so. In any case, it is difficult to see how the claimant’s discussions with Professor Jacka could amount to consultation when she did not know that she was entitled to be consulted and he did not realise that he had any responsibility to consult under the Fixed Term Contract Policy and Procedure.

[168]We have already made findings (above) about the respondent’s submissions at paragraph 48.3 of its written submission, that Justine Pearson sent the claimant redeployment opportunities as they were advertised and that no suitable vacancies arose. Whilst Justine Pearson sent the claimant vacancies of which she was aware, this does not answer the fundamental issue that the claimant did not have either the minimum consultation period to which she was entitled, nor did anyone on behalf of the respondent alert her to the fact that she could have been considered for redeployment as much as three months before the termination date of her contract. We do not consider that the respondent’s exhortation to the claimant , in her original appointment letter, that she should read all relevant policies assists – we do not even have any evidence that the redeployment policy was the same when she started as it was in September 2020.

[169]We did not have sufficient evidence available for us to consider whether the computer science positions mentioned in our findings would have been suitable for the claimant, nor could Professor Forster or Professor Jacka say whether they were suitable. The same point remains, however – no one had even suggested to the claimant prior to 3 September that she may be eligible for redeployment. Had they done so, it is likely that she would have wished to be considered for redeployment as early as possible -she was actively looking for alternative employment inside and outside the university. The university’s policies do not suggest that she was solely responsible for doing so - quite the opposite. We cannot say whether either of these positions would have been suitable, but we do not consider that the respondent acted within the reasonable range in failing to alert the claimant to her eligibility to be considered for redeployment from the 1st of July 2020.

[170]It follows from what we have said that, looking at the process overall, we do not consider that the respondent acted as a reasonable employer would in treating the termination of the claimant’s fixed term contract and her redundancy as a sufficient reason for dismissing her on 30 September 2020, taking account of equity and the substantial merits of the case.

[171]This is a substantial employer with a large administrative support network. It acted outside the reasonable range of responses in breaching its own Fixed Term Contract Policy and Procedure (and its Redundancy Policy by failing to tell the claimant that she was entitled to paid time off to seek alternative employment) and failing to take adequate steps thereafter to rectify the situation by restarting the consultation process, making sure that the claimant knew that she could actively make suggestions to avoid her own redundancy, that she was entitled to more than one consultation meeting and that she could be represented by a colleague or trade union representative at the consultation meetings, or that she was entitled to paid time off seek alternative employment. In the circumstances of this case, it also acted outside the reasonable range of conduct by failing to ensure that it had full details of the claimant’s curriculum vitae and of her qualifications and experience when considering alternative employment, by failing to offer her a second consultation meeting or to clarify with Professor Ennew whether a short extension of the claimant’s contract was possible (to give her the benefit of at least the minimum consultation period).

[172]Whilst an appeal was afforded to the claimant, the appeal did not rectify the defects that we have mentioned above, and looking at the process overall we do not consider that the employer acted reasonably in dismissing the claimant. The claimant’s dismissal was therefore unfair.

[173]Section 123(1) of the Employment Rights Act 1996 : We have considered whether there was a chance that the claimant would have been fairly dismissed by this employer anyway had a fair procedure had been followed, or for any other reason, and if so when the dismissal would have occurred. We remind ourselves that we are to consider what this particular employer would have done, had it acted fairly, or, to put it another way, to assess the chances that her employment would have continued after 30 September 2020, and if so for how long that would have continued.

[174]We have considered and applied the case of Polkey and of the case of Hill v Governors of Great Tey Primary School. We find that if this employer had acted fairly in the circumstances of this case, we consider that Justine Pearson would have sent the claimant an FT1 letter no later than 8 September 2020, when she discovered that no consultation had been carried out. The claimant would have been given a reasonable period to prepare for the consultation meeting, so that it would have occurred no later than 14 September 2020. By this stage, had the respondent considered its own policies (and in particular the fixed term contract procedure) Professor Forster would have agreed with Justine Pearson that he should seek guidance as to whether he should extend the claimant’s contract to permit her to have at least a 30 day consultation and redeployment period. Professor Forster would have made enquiries of Professor Ennew, as suggested in Justine Pearson’s email dated 16 September 2020, as to whether a short-term extension of the claimant’s contract could be granted to rectify the fact that no proper consultation had by that stage being carried out, and that the claimant had not had full benefit of the respondents redeployment policy.

[175]Considering that Professor Ennew had previously been willing to authorise funding for the extension of the claimant’s employment for a sixmonth period, although by September 2020 there was a recruitment freeze, we think there is a substantial chance that she would have agreed to extend the claimant’s contract to ensure that she had at least the minimum consultation period. The minimum period of 30 days, had the FT1 letter been sent on 8 September, would have expired on 8 October. We consider that acting fairly, a respondent of this size and resources would have extended the claimant’s contract for a rounded up period of up to two weeks, given that consultation periods for fixed term employees can last for up to 4 months. This was, indeed, what Justine Pearson had in mind when she emailed Professor Forster and suggested the option of a short extension.

[176]We have seen that Paula Matthews told Professor Forster that not all of the funding that had been approved by Professor Ennew to continue the claimant’s employment between November 2019 and April/May 2020 had been used. Taking account of this, and also the fact that Professor Ennew would be advised, as Professor Forster was, that the University had breached its own policies so as to deprive the claimant of the minimum consultation period and of full benefits of redeployment, we consider that there is a 65% chance that the funding would have been granted for this extension of two weeks.

[177]On the evidence available to us, however, we do not consider that there is any significant chance that suitable alternative employment would have been found for the claimant within that two week period, so that her employment would have ended on 14 October 2020 in any event. Fixed Term Contract (Prevention of Less Favourable Treatment) Regulations 2002

[178]The Claimant’s Comparator: In respect of her claim under the Fixed Term Contract (Prevention of Less Favourable Treatment) Regulations 2002, the Claimant has cited Doctor Koskela as her proposed comparator under regulation 2. At the time of the termination of her contract, as we have seen, the Claimant was a Research Fellow in the Department of Statistics. Doctor Koskela, on the other hand, was an Associate Professor in that Department. We accept the evidence of Professor Forster that at the time of the Claimant’s employment, Doctor Koskela was an Assistant Professor at Grade FA7 and that this was one level higher than the Claimant’s position.

[179]Although the Claimant suggested that Doctor Koskela did not teach in the academic year from 2020-2021, we accept the evidence of Professor Forster that the two roles of Research Fellow and Assistant Professor respectively are significantly different. We accept that as a Research Fellow, the Claimant’s role was to assist in the development of research objectives initiated by a Principal Investigator, in her case, Professor Jacka. By contrast, Doctor Koskela was a Principal Investigator himself and expected to contribute to research activities by developing his own research programme. We also accept as Professor Forster stated that in addition, Doctor Koskela was expected to undertake a substantial amount of teaching as part of his role, whereas the Claimant was not.

[180]In this case, the Claimant did not assert that the terms of her comparators contract were less favourable, but said that she had been subjected to detriment.

[181]It is settled law that there must be an actual comparator for the purposes of the 2002 regulations and, as set out in the case of Webley v The Department of Work and Pensions, 2005 ICR at page 577 the nonrenewal of a fixed term contract does not amount to less favourable treatment. Applying Regulation 2 of the 2002 Regulations, although the Claimant and Doctor Koskela were employed by the same employer at the relevant time, we do not find on the balance of probabilities that they were engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification and skills. As noted previously, we have accepted the evidence of Professor Forster that Doctor Koskela’s work was significantly different from that of the Claimant. As an Assistant Professor at the relevant time, Doctor Koskela was responsible for initiating research objectives, had the responsibilities of a Principal Investigator and there was an expectation that he would carry out a significant amount to teaching. The Claimant did not give any detailed arguments as to why she considered that role of a Research Fellow and an Assistant Professor were the same or broadly similar, save that, as noted above, she said that Doctor Koskela did not actually do any teaching (as far as she was aware) in the academic year following that in which she left the University. There was no evidence to contradict Professor Forster’s evidence that Doctor Koskela was nevertheless expected to teach (and had taught ) at the University.

[182]We find that the Claimant has failed to identify a suitable actual comparator, so that her claim under the 2002 Regulations is bound to fail.

[183]Indirect Discrimination: The Claimant relied upon 2 Protected Characteristics; firstly, that she is female and secondly, that she belongs to a racial group of people who are neither UK nor EU citizens. Whilst at first sight, this may seem to be an unusual description of a racial group, the Respondent did not dispute that and this amounted to a racial group within the meaning of Section 9 of the Equality Act. Section 9(4) states that the fact that a racial group comprises 2 or more distinct racial groups, does not prevent it from constituting a particular racial group.

[184]The Claimant asserts the four provisions, criteria or practices (PCPs) set out in the agreed List of Issues.

[185]Considering the first provision criterion or practice relied upon by the Claimant, the Claimant relies upon a PCP of issuing standard termination/redundancy letters, without having mechanisms to verify that a proper consultation process was carried out before officially confirming that a post will be made redundant, as required by statutory and contractual dismissal procedures.

[186]We now have to consider first of all whether the Respondent did have such a provision criterion or practice. There was no evidence before us to suggest that a standard letter FT3 (or that a standard redundancy letter) had previously been sent out by the Respondent before a check had been made as to whether a proper consultation process had been carried out. Both Justine Pearson and Emma Brown said that they were not aware of this happening previously, in the Statistics Department or in any other Department of the University. Professor Forster had only recently started to work at the Respondent and had not been involved in previous terminations of fixed term contracts there. Professor Jacka said that he had only had one fixed term Research Assistant or Fellow previously, and that he had believed at the time that the contract came to an end and that Human Resources had consulted with that individual. He said that this had happened several years previously. Although Paula Matthews did not seem to be aware of the relevant procedure, we do not know how long she had been employed or whether she had been involved in any other situations of this kind. We did not have any other evidence about that previous fixed term contract Research Assistant or Fellow and did not feel able to conclude from Professor Jacka’s evidence that there was a PCP of the nature described by the Claimant in PCP1.

[187]On the balance of probabilities, the Claimant has not proved that there was such a provision criterion or practice. In particular, we accept the evidence of Professor Forster, Justine Pearson and Emma Brown that subsequent to the termination of the Claimant’s contract, the procedures were changed so that, as Justine Pearson said, she will discuss any forthcoming contract terminations with Departmental Administrative Staff well in advance of the termination date to ensure that consultation processes are carried out. In all the circumstances, we were unable to conclude that there was a provision criterion or practice as set out by the Claimant at PCP1. There was only evidence that Paula Matthews had instituted the leaver process without first checking whether Professor Jacka had consulted with the Claimant leading to the generation of the FT3 letter. We do not consider this to be sufficient evidence that there was a state of affairs which in existence at that time of failing to check whether consultation had taken place and do not accept on the balance of probabilities that that was likely to happen in the future.

[188]Regarding PCP2, a provision criterion or practice of sending redundancy notification and the corresponding right to appeal less than 30 days before the redundancy takes effect, on the balance of probabilities, we do not consider that the Claimant has shown that there was such a provision criterion or practice on the part of the Respondent. Indeed, the Respondent’s Fixed Term Contract Policy provides that the standard consultation letter FT1 should be sent ideally 4 months prior to the end date of the contract but at least 30 days before the contract is due to end. The FT1 letter, at page 436 of her bundle, warns that the recipient’s post could be made redundant. There was no evidence before us that in any other case, a redundancy notification and corresponding right to appeal was sent out less than 30 days before the redundancy took effect. There was no evidence from which we could conclude that this was the state of affairs which may be repeated in the future. In the circumstances, the Tribunal finds that there was no such provision criterion or practice.

[189]In respect of PCP3, the Claimant relies upon a provision criterion or practice of giving evasive and/or delayed responses to employee requests in relation to: 1. basic information as to what a consultation period is and its role in redundancy dismissal; and 2. the procedure and/or the time it takes to handle grievance letters. There was no evidence before us of responses to any other employee requests in respect of information about a consultation period and its role in redundancy dismissals or the procedure for redundancy and/or the time it takes to handle grievance letters. We only had information about what had happened in the Claimant’s case. There was no evidence from which we could conclude that the way in which the Claimants enquiries were dealt with was a “state of affairs” or that it was likely to be repeated in future.

[190]In respect of PCP4, the Claimant relies upon the sending of the second FT3 letter to her on the 8 September 2020. Again, there was no evidence upon which we could find, on the balance of probabilities, that the Respondent applied a provision criterion or practice of this nature. There is no reference in the Respondent’s Fixed Term Contract Policy to the sending of a second FT3 letter and there was no evidence that this had ever been done in any other case. We accept that the Respondent knew that the way in which it had dealt with the Claimant’s fixed term contract termination breached its own policies and was seeking to rectify that within a short period after the termination of the Claimant’s contract.

[191]In the circumstances, we are unable to conclude that there was a provision criterion or practice of the nature described by the Claimant.

[192]Although the Claimant agreed, with one addition, the Respondent’s list of issues, we note that in her written submissions, she characterises the 4th provision criterion or practice as “the Respondents provision/criterion or practice of modifying the dismissal procedure to try to justify the law requirement of a consultation process as part of the Claimant’s redundancy.”

[193]We take it that by this the Claimant is referring to the letter issued on the 8 September 2020, and the Respondent’s subsequent attempts to rectify or ameliorate the defects in its process by setting up a meeting with Professor Forster, sending the Claimant redeployment opportunities and setting in train the appeal process after receipt of the Claimants Notice of Appeal. Once again, however, on the basis of the evidence before us, we are unable to conclude that the Respondent had a provision criterion or practice of modifying its dismissal procedure in the way described by the Claimant. On the balance of probabilities, we accept the evidence of Justine Pearson that sending out the adapted FT3 letter on the 8 September, and in arranging the meeting with Professor Forster, she was attempting to remedy the breaches of the Respondents Fixed Term Contract Policy and Procedure that had applied in this particular case. There was no evidence that this had been done on any previous occasion, and as we have noted, steps were taken shortly after the termination of the Claimant’s contract to try and ensure that the situation would not arise again.

[194]Even if we accept that the 4th provision criterion or practice is as set out by the Claimant at paragraph 122 of her written submissions, we do not consider that such a provision criterion or practice was applied by the Respondent. It follows that the claims of indirect discrimination must fail.

[195]In her submissions, at paragraph 124, the Claimant defines the particular disadvantage of which she complains as the “obstruction of the progression of her academic career in a very competitive field”. This was the addition that she made to the list of issues which was produced by the Respondent on the 2nd day of the Hearing. The Claimant has separately identified what she alleges are disadvantages to herself (see for example paragraph 4.6.6, on page 8 of the list of issues).

[196]In paragraph 132 of the Claimant’s written submissions, she said, “unfortunately, it was not clear to the Claimant that she also needed to indicate the particular disadvantage of the whole group of interest given that she had explained the disadvantages for herself as a member of the group of interest”. This indicates that the Claimant had, unfortunately, not understood the nature of a claim under Section 19 of the Equality Act, and the need for her to show that the provision criterion or practice puts or would put persons with whom she shares the characteristic at a particular disadvantage when compared with persons with whom she does not share the characteristic.

[197]Nevertheless, at paragraph 132 the Claimant continues “the PCP’s obstruct the progressing of the academic career of Research Fellows in the Mathematics field of those who belong to the group of the Claimant’s gender and who are a non-UK or a non-EU National”. Section 14 of the Equality Act 2010 has not yet been brought into force. Section 14(1) provides that a person discriminates against another if, because of a combination of 2 relevant protective characteristics, A treats B less favourably than A treats or would treat a person who does not share either of those characteristics. This applies to direct discrimination rather than indirect discrimination in any case. The Claimant has not identified, separately any group disadvantage to females or alternatively to non-UK or EU Nationals, except, as set out in the list of issues, to argue that delays in the procedure would not have put UK Residents or European Citizens at risk of having to leave the Country and then having to wait a year before attempting to return.

[198]Even if we were to accept that the Respondent did have any of the provisions criterion or practices asserted by the Claimant, the Claimant has not established any causal connection between provisions criterion or practices in question and the alleged group disadvantage in a context where she has not brought any evidence that all non-UK or European Union citizens would be placed at that disadvantage or that they would be to a disproportionate extent. She was not placed at that disadvantage herself because she was able to obtain an alternative position before her Visa expired and therefore did not have to leave the Country. Nor did the Claimant establish that she had been placed at particular disadvantage of having her academic career progress; in a very short period of time, she obtained a further position at a higher wage and her contract has been extended subsequently. For all of those reasons, the Claimant’s claim of indirect sex or indirect race discrimination does not succeed and is dismissed.

[199]Holiday pay: It was common ground that the Claimant was entitled to 34 working days leave in each leave year. The University’s leave year runs from the 1 October – to the following 30 September. In the leave year, 1 October 2019 to 30 September 2020, we accept on the balance of probabilities that the Claimant had taken no more than 10 days leave and in addition 4 days leave when the University was closed over the Christmas period. The Respondent frankly admitted that the administration of holiday in the Department was “quite loose”. This is a quote from the statement of Professor Saul Jacka, the Claimant’s Line Manager. He admits that he did not really pay attention to the amount of holiday that the Claimant took. Justine Pearson also accepts in paragraph 28 of her initial statement that it is very difficult to keep track of which academic staff were taking time off. She says that since October 2021, the Respondent had introduced a new system for logging annual leave. The Respondent had limited records of the Claimant’s leave for the purposes of Visa requirements, but these are not comprehensive.

[200]In all the circumstances, on the balance of probabilities, we find that the Claimant in the annual leave year from the 1 October to 30 September 2020 took no more than 14 days leave and therefore is entitled to be paid for the remaining 20 days leave. Her claim succeeds and is well founded in this respect.

[201]Notice Pay : In paragraph 91 of her submissions, the Claimant quotes clause 10 of her contract. We have quoted this above. The Claimant appears to argue that she should have been given 3 weeks’ notice under Section 86 of the Employment Rights Act 1996, which she sets out in paragraph 89 of her written submissions.

[202]Section 86 does not apply to fixed term contracts, however, unless they are for a term certain of 1 month or less (see Section 86(4) of the Act). This is to prevent evasion of the Act by offering someone repeated contracts of less than 1 month so as to avoid Section 86. It is clear from Section 86(4) that provision does not apply to contracts for a term certain other than those specified. At common law, fixed term contracts are terminated by the effluxion or passage of time on expiry that no additional notice period is required. This is made clear at Clause 10 of the Claimant’s contractual terms on page 510 where is it made clear that rights of notice on termination apply only during the period of the fixed term and that no further notice is required. For that reason, the Claimant’s claim for wrongful dismissal/breach of contract is not well founded and is dismissed.

[203]A hearing is already listed to deal with remedy if required, on 10 November 2022. If there are any further documents relevant to remedy, the parties should send them to each other by 31 October 2022. The respondents should add any additional relevant documents to the hearing file/bundle and index and send the updated version to the claimant by 2 November. The parties should send each other any further statements relevant to remedy only by 4pm on 4 November 2022 and the respondent shall be responsible for providing the Tribunal with updated documents and statements in accordance with the Regional Practice Direction. Signed by me electronically Regional Employment Judge Findlay Date 21.10.22 CASE NUMBER: 1300577/2021 IN THE EMPLOYMENT TRIBUNALS MIDLANDS WEST BETWEEN: DR M E HERNANDEZ Claimant -andUNIVERSITY OF WARWICK Respondent LIST OF ISSUES PREPARED BY THE RESPONDENT

[1]Unfair Dismissal1.1 Was the claimant dismissed? Yes, she was.

1.2 What was the reason or principal reason for dismissal? The respondent says the reason was redundancy. The claimant asserts it was unfavourable treatment as a fixed term employee.

1.3 If the reason was redundancy, did the respondent act reasonably, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant. The Tribunal will usually decide, in particular, whether:1.3.1 The respondent adequaltely warned and consulted the claimant; bearing in mind it was at the end of a fixed term contract,

1.3.2 The respondent adopted a reasonable selection decision, including its approach to a selection pool; although not applicable at the end of the contract according to the respondent,

1.3.3 The respondent took reasonable steps to find the claimant suitable alternative employment; this was done but without success, and

1.3.4 Dismissal was within the range of reasonable responses.

[2]Remedy for unfair dismissal2.1 The claimant wishes to be re-engaged to comparable employment or other suitable employment.

2.2 Should the Tribunal order re-engagement? The Tribunal will consider in particular whether re-engagement is practicable?

2.3 What should the terms of re-engagement order be?

2.4 If there is compensatory award, how much should it be? The Tribunal will decide:2.4.1 What financial losses has the dismissal caused the claimant?

2.4.2 Has the claimant taken reasonable steps to replace their lost earnings, for example looking for another job?

2.4.3 If not, for what period of loss should the claimant be compensated?

2.4.4 Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?

2.4.5 If so, should the claimant’s compensation be reduced? If so, by how much?

2.4.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

2.4.7 Did the respondent unreasonably fail to comply with it by its delay? The respondent denies it applied.

2.4.8 If so it is just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%

2.4.9 Does the statutory cap of fifty-two weeks’ pay apply?

2.5 What basic award is payable to the claimant, if any? The respondent paid a redundancy payment which would normally cancel it out.

[3]Wrongful dismissal:3.1 What was the claimant’s notice period? 3 months applied.

3.2 Was the claimant paid for that notice period? Notice was provided in the fixed term contract according to the respondent.

[4]Indirect race and sex discrimination (Equality Act 2010 section 19)4.1 The claimant relies on two protected characteristics:4.1.1 she is a female; and

4.1.2 she belongs to the racial group of people who are neither UK nor EU citizens

4.2 Did the respondent have the following PCP(s):4.2.1 PCP 1:

4.2.2 PCP 2: a. The claimant relies on a PCP of sending the redundancy notification (and the corresponding right to appeal) less than 30 days before the redundancy takes effect. b. The respondent denies that the claimant has identified a PCP. In any event the respondent has no such PCP. In the claimant’s case there was a one off error that impacted only on her.

4.2.3 PCP 3: a. The claimant relies on a PCP giving evasive and/or delayed responses to employees requests in relation to i. Basic information of what a consultation period is and its role in redundancy dismissals; and ii. The procedure and / or the time it takes to handle grievance letters.

4.2.4 PCP 4: a. The claimant relies on a PCP of modifying the dismissal procedure to try and justify the law requirement of a consultation process as part of the claimant’s redundancy. b. The respondent denies that the claimant has identified a PCP. In any event the respondent has no such PCP. In the claimant’s case there was a one off event that impacted only on her in that the respondent issued her with a modified ET3 letter on 8 September 2020.

a. The claimant relies upon a PCP of issuing standard termination/redundancy letter without having mechanisms to verify that a proper consultation process was carried out before officially confirming that a post will be made redundant, as required by statutory and contractual dismissal procedures.

b. The respondent denies that the claimant has identified a PCP. In any event it has no such PCP. In the claimant’s case there was a one off error that impacted only on her.

4.3 Did the respondent apply to the PCP(s) to the claimant:4.3.1 PCP 1: the claimant relies on the first ET3 letter sent to her on 1 September 2020.

4.3.2 PCP 2: the claimant relies on the second ET3 letter sent to her on 8 September 2020.

4.3.3 The claimant relies on the following four occasions: a. The email sent to her by Justine Pearson on 3 September at 10:00, which she says was evasive as it did not explain what the consultation period was. b. The respondent's alleged failure to respond to her request of September at 14:12 until 8 September

4.3.4 PCP 4: The claimant relies on the second FT3 letter sent to her on 8 September 2020.

4.3.5 In the event that the Tribunal finds that the claimant has identified any PCPs, the respondent accepts that they were applied to the claimant, subject to the contents of paragraphs 2.c and 2.d of its response to the claimant's Further Particulars.

c. The second FT3 letter sent to her on 8 September, which she says was delayed and evasive and contravened contractual and statutory dismissal procedures.

d. Professor Forster's letter of 21 September at 16:46 in response to her letter sent 14 September at 07:57 (which she says was a grievance letter). She says that this was delayed.

4.4 Did the respondent apply the PCP to persons with whom the claimant does not share the characteristics, i.e. UK or EU citizens and men or would it have done so:4.4.1 The claimant does not state whether the PCPs were applied to others.

4.4.2 The respondent denies that the PCPs were applied to others.

4.5 Did the PCP(s) put persons with whom the claimant shares characteristic, i.e., non-UK or EU citizens or women, at a particular disadvantage when compared with persons with whom he does not share characteristic i.e., non-UK and EU citizens or men: 4.5.1. The claimant does not identify group disadvantage save that she states delays in procedure would not have put UK residents or European citizens at risk having to leave the country then having to wait a year (cooling off period) before attempting return. 4.5.2. Respondent denies group disadvantage.

4.6 Did the PCP put the claimant at that disadvantage?4.6.1 PCP 1: The claimant says that PCP 1 prevented her from avoiding the redundancy of her post as other funding options and/or alternative employment should have been discussed during a consultation period.

4.6.2 PCP 2: The claimant says that the PCP 2 restricted, to less than 44 days, the time that she had to exhaust all the available procedures to challenge her redundancy. This was because the expiry of the claimant’s visa was due 14 days of the end of her contract.

4.6.3 PCP 1 and PCP 2 combined: a. The claimant says that because of the cumulative effect of PCPs 1 and 2: i. She was dismissed for redundancy without a consultation process; and ii. She was informed of her dismissal less than 30 days before the redundancy took effect.

4.6.4 PCP 3 a. The claimant says that PCP 3 obstructed her right to obtain, in a timely manner, an adequate explication of the redundancy procedure and its relationship with the consultation process; and b. The claimant says that PCP 3 delayed her exercising right to appeal against her dismissal for redundancy as she was trying to exhaust the available internal procedures, and, at that point, she has not been provided with sufficient information so as to identify appropriate grounds for her redundancy appeal. 4.6.5. PCP 4: The claimant says that PCP 4 made her dismissal for redundancy impossible to avoid as the procedure implemented by HR did not include a meaningful consultation process: the purpose of the arranged meeting was to inform the claimant that her post had been made redundant. 4.6.6. The four PCPs combined: a. The claimant says that because of the cumulative effect of all the PCPs: i. She did not have the opportunity to avoid her redundancy during the key stage of transition between fixed-term contract and permanent position, which would have contributed to better employment conditions. ii. She was subject to additional periods of stress and anxiety during an already difficult period because of: - the arrangements she had to make due to the risk of leaving the country and the fact that the outcome of her appeal was informed two days before the expiry of her visa; - the negative impact of the pandemic; and - the lack of support from the respondent to exercise her redundancy right to time off to search for other job positions and/or prepare to job interviews. iii. She has taken on a teaching position which, although covers desired teaching skills, has affected her research output. iv. She was subjected to an initial and constant delay in providing accurate information about the redundancy of her post. v. She received the outcome of her appeal two days before the expiry date of her visa, which was not sufficient time for the preparations needed when leaving a country for a Tier 2 visa holder after almost 8 years of residency. vi. She would have had to leave the country and be subject to the cooling off period if she had not secured alternative employment at the last minute, because the respondent’s appeal procedure was not timely. 4.6.7 The respondent denies individual disadvantage as alleged or at all.

4.7 Was the PCP a proportionate means of achieving legitimate aim? The respondent says that its aims were:4.7.1 If the Tribunal finds that the claimant has identified PCPs which were applied and which caused group and individual disadvantage, the respondent relies on the following legitimate aims: a. That it is required to follow a process in relation to employees who are employed on a fixed term contract: i. In order to comply with its legal obligations; ii. For organisational and business efficiency reasons; iii. To ensure the fair and consistent exercise of powers; and iv. To ensure that fixed term research based roles have the requisite funding.

4.7.2 As to proportionate means, the respondent says that the nature of a fixed term contract is that it is for a fixed period and/or it is for the completion of a specified task and therefore employers must make provision for the possibility of it ending, particularly in this specific instance, wherein the Claimant's role was only supported insofar as the Respondent had continued funding for the position. It is argued that the use by the respondent of a Fixed Term Contract policy, as well as the connected organisational considerations, amount to a proportionate means of achieving legitimate aims.

4.8 The Tribunal will decide in particular4.8.1 was the PCP an appropriate and reasonably necessary way to achieve those aims;

4.8.2 could something less discriminatory have been done instead; and

4.8.3 how should the needs of the claimant and the respondent be balanced?

[5]Ready for discrimination5.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?

5.2 What financial losses has the discrimination caused the claimant?

5.3 Has the claimant taken reasonable steps to replace lost earnings for example by looking for another job?

5.4 If not, for what period of loss should the claimant be compensated?

5.5 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?

5.6 Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that?

5.7 Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result?

5.8 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

5.9 Did the respondent unreasonably fail to comply with it by delaying the process? The respondent denies the Code applied to the facts of this case.

5.10 If so is it just and equitable to increase or decrease any award payable to the claimant?

5.11 By what proportion, up to 25%?

5.12 Should interest be awarded? How much? Holiday Pay – Breach of contract: conceded

[7]Failure to give adequate reasons for dismissal, adequate reasons for redundancy and time off: amendment rejected

[8]Less favourable treatment of a fixed term employee8.1 Comparator:8.1.1 The claimant’s comparator is Dr Jere Koskela, from the Department of Statistics, University of Warwick.

8.1.2 The respondent denies that Dr Koskela is an appropriate comparator because he was in a higher level role than the claimant. Furthermore he was employed as an Assistant Professor. In that role he did different work to the claimant including the substantial teaching, and the requirements for his role were different to those for the claimant’s role. Moreover he remains employed by the respondent.

8.2 Less favourable treatment:8.2.1 1 September 2020:

8.2.2 3 September 2020 – 8 September 2020: a. The claimant complains of the respondent’s procedure to handle requests for information regarding dismissal / redundancy / consultation without a proper investigation. She says that the respondent did not make a serious and reasonable attempt at resolving the situation and this suggested that the claimant’s dismissal for redundancy was unavoidable given that the claimant was a fixed-term employee. 8.2.4 14 September 2020 – 21 September 2020: a. The claimant complains of the respondent’s alleged action of not informing employees about the procedure and/or the time it takes to handle grievance letters in relation to unfair treatment. b. The respondent denies that the claimant raised a grievance and says that her appeal against redundancy was heard in a reasonable time 8.2.5 21 September 2020 – 5 October 2020: a. The claimant complains of the respondent’s procedure to deal with redundancy appeal notices, whereby: i. the procedure is not shared with the appellant; and ii. there are no mechanisms to guarantee a meaningful, effective, independent, and impartial appeal hearing, especially in those cases where HR staff is involved in the issues that gave rise to the appeal. b. The respondent notes that this complaint was not raised by the claimant until she submitted her further particulars. In any event, the respondent denies that the appeal procedure was unfair as alleged. 8.2.6 12 October 2020, 27 October 2020: a. The respondent’s practice/procedures/guidelines for appeal hearing whereby: i. There are no mechanisms to guarantee that the appeal hearing minutes/notes are an accurate representation of what the appellant expressed. ii. The appeal outcome is based on the hearing notes which are not shared with the appellant (unless the appellant requested it, in which case they are only shared together with the outcome). iii. The appeal outcome does not indicate if the panel’s decision is final. iv. There are no mechanisms to address further requests in relation to issues of transparency and fairness that arise naturally from the deficiencies of the redundancy appeal procedure outlined above. b. The respondent notes that these complaints were not raised by the claimant until she submitted her further particulars. In any event, the respondent denies that the appeal procedure was unfair. The respondent discussed with the claimant the appeal procedure and explained to her the processes that applied. The respondent's HR Manager, Emma Brown, supported the Appeal Panel and had not previously been involved in the claimant's case. She took no part in decision making. The Appeal Panel based its decision on all evidence available to it, not "hearing notes". There is no requirement to agree notes of a meeting with the claimant. 8.2.7 The claimant’s dismissal: The respondent denies that the dismissal amounted to less favourable treatment on grounds of fixed term employee status. The claimant was dismissed for redundancy following the cessation of the relevant funding stream. 4 August 2020

a. The claimant complains of the respondent’s alleged failure to carry out the consultation process as required in the contractual dismissal procedures. She says that the alleged violation of her redundancy rights happened because of her fixed term contract situation and not as a result of “error systems”, “procedural shortcomings” and “oversights” caused by the Covid-19 situation.

b. The respondent denies that this amounts to less favourable treatment connected to the claimant’s fixed term employee status. Rather it was an administrative error. Furthermore, the respondent’s Fixed Term Contract policy is not contractual.