Mr M Frankland v British Telecommunications plc: 1301469/2018
EMPLOYMENT TRIBUNALS
Case No 1301469/2018Venue BirminghamHearing 26 & 27 November 2018
Between
Mr M FranklandClaimantBritish Telecommunications plcRespondent
Before
Employment Judge GaskellMs N Braganza (instructed by Counsel) for claimantDate 15 May 2019
JUDGMENT
The judgment of the tribunal is that: The claimant was fairly dismissed by the respondent: his claim for unfair dismissal is not well-founded and is dismissed.
REASONS
[1]The claimant in this case is Mr Mark Franklin who was employed by the respondent, British Telecommunications Plc, from 22 March 1995 until 12 January 2018 when he was dismissed. The claimant was dismissed with six months’ notice by letter dated 12 July 2017; the reason given by the respondent at the time was “unsatisfactory performance” and “loss of security clearance”. By a claim form presented to the tribunal on 29 March 2018 the claimant claims that his dismissal was unfair.[2]In its response to the claim, the respondent admits that the claimant was dismissed but asserts that the dismissal was for a substantial reason justifying dismissal - namely the claimant’s loss of his “Developed Vetting” (DV) status; or, in the alternative, that the claimant was dismissed for a reason relating to his capability/qualifications, and that in all the circumstances the dismissal was fair.[3]Due to pressure of time in this two-day Hearing, I have confined myself to evidence and submissions on the question of liability only. If I find that the claimant was unfairly dismissed, and the parties are then unable to agree the appropriate remedy, a separate Remedy Hearing will follow. The Issues 3 There was an agreed list of issues which in my judgement was overcomplicated. The issues can be simply stated as follows: -(a) What was the reason for the claimant’s dismissal?(b) Was this a fair reason within the provisions of Section 98(1) & (2) of the Employment Rights Act 1996 (ERA)?(c) In all the circumstances, did the respondent act reasonably in treating this as sufficient reason to dismiss the claimant (Section 98(4) ERA)?(d) Did the respondent follow a fair procedure?
The Evidence
[4]The respondent presented its evidence first and called two witnesses: Mr Roger Minns - General Manager within the respondent’s Group Engineering Services (GES) whose decision it was to dismiss the claimant; and Mr Kevin Brown - Senior Manager with overall responsibility for GES who dealt with the claimant’s appeal against dismissal.[5]The claimant gave evidence on his own account and called Mr Keith Martin Flett, - Trade Union Representative to give evidence on his behalf.[6]The witnesses had all made written statements; they gave oral evidence; they were cross-examined; and I had the opportunity to question them.[7]In addition to the oral evidence, I was provided with an agreed trial bundle extending to some 370 pages. I have considered the documents within the bundle to which I was referred by the parties during the hearing.[8]I find that all of the witnesses were truthful and gave honest evidence. Fundamentally there is no significant disagreement as to the facts.
The Facts
[9]The claimant commenced his employment with the respondent on 22 March 1995 as a Data Specialist; Sales Executive; and Account Director. From 20 February 2004, he was a home-based worker; and in 2010 he became the Client Relationship Lead for Customer A.[10]The claimant’s role was within GES. GES services, and provides security and telecommunications solutions, principally for UK government departments. The work requires the respondent’s staff working for such customers to have DV clearance: this is the most detailed and comprehensive form of national security vetting clearance; it is required because individuals working in these areas have access to classified and sensitive government assets and information. It used to be the case that the respondent itself could provide its staff with the required clearance but following the introduction of the Investigatory Powers Act 2016, the position since early 2017 has been that DV clearance can only be given by the relevant government department. In other words, the respondent’s staff working in such areas must be “sponsored” by the client.[11]In the period leading up to September 2016, there had been minor issues regarding the claimant’s performance and it was known that there was a degree of dissatisfaction regarding the claimant among senior executives of Customer A. None of these issues were regarded as so serious that they could not be dealt with by way of informal coaching.[12]However, on 27 September 2016, the claimant’s second line manager Mr Ian Haslop received an email from Customer A requesting that the claimant be taken off its account. In particular, the email complained that the claimant “did not seem to understand the customer’s objectives and risks” and “was not interested in listening to what the customer wanted or needed and only seemed to be interested in what he could sell”.[13]The relationship with Customer A was investigated via a series of meetings involving Mr Haslop; the claimant’s line manager, Mr Neil Seabury; and the claimant. Although it is the claimant’s case that the complaint from Customer A came from one disgruntled individual, the respondent’s investigations revealed widespread discontent with the claimant; and that the email represented a consensus view. The decision taken at that time in consultation with the claimant was that it would be in the best interests of the claimant, the respondent and Customer A for the claimant to undertake a non-customer facing role for a temporary period - and to provide the opportunity for him to develop and adjust his approach.[14]Following a meeting between the claimant and Mr Haslop on 2 November 2016, a coaching plan was agreed to be undertaken during November and December 2016. There were four elements to the coaching plan. The claimant’s progress on the plan was positive; but unfortunately, it became impossible for him to complete the fourth element which required customer engagement. I accept the respondent’s evidence that significant efforts were made by both Mr Seabury and Mr Haslop to enable the claimant to complete this element of the plan, but they could not find opportunities for the claimant to go in front of a customer. This was at least in part due to other managers’ concerns about the issues which had arisen with Customer A: there are a relatively small number of GES customers and the relationship with them is vital to the respondent. With the fourth element outstanding, the coaching plan was formally closed off in March 2017.[15]From October 2016, the search was on to find an alternative role for the claimant. I accept the evidence given by Mr Minns that he, together with Mr Haslop and Mr Seabury were extensively involved in such efforts: they considered moving the claimant to another customer account; they spoke with other managers from within the organisation but nothing suitable seemed to be available. It was clear that Customer A would no longer sponsor the claimant’s security clearance when it lapsed in early 2017: the respondent was therefore searching for a role in which an alternative government customer would sponsor the claimant. The managers searched for internal facing roles which would not need security clearance. The claimant was kept informed of developments.[16]Mr Minns and his team came up with a proposal to create a Desk-based Administration role suitable for the claimant which would not require security clearance; HR were involved in the creation of the role. The role to be created would have been one grade lower than the claimant’s current level; and would have been desk-based in Birmingham rather than home-based. The proposition was put to the claimant and declined on the basis that the claimant was unwilling to accept a reduction in status or salary and wished to continue to be homebased.[17]I accept the evidence that the search for alternative role was extensive: although it has to be said that there is little documentation. One of the emails produced to me however demonstrates that the search was conducted across the entirety of the respondent company worldwide. Furthermore, in the period from December 2016 onwards the claimant did in fact apply for 20 alternative roles. On ten occasions he was unsuccessful because a more qualified internal candidate was appointed; five times his application was rejected as he did not meet the essential criteria for the role; on three occasions the claimant withdrew his application; and there were two occasions that the application was unsuccessful at the final stage, but the claimant did not seek feedback as to why. During the relevant period, the claimant was offered a weekly meeting to assist in identifying and applying for suitable alternative roles. He declined this offer although his case is that he maintained regular contact with HR by telephone.[18]At a meeting between the claimant and Mr Haslop on 8 February 2017 the following emerged: -(a) The claimant had so far seen no roles which appealed to him and his career aspirations.(b) The claimant preferred a role within GES rather than looking elsewhere in BT Security or the wider BT Group.(c) The claimant believed there were some positions within GES which did not require security clearance following a recent restructure.(d) The claimant was at that time undertaking short-term project work in another team: he wished this position to be made permanent and formally recognised.(e) The claimant was concerned that his earlier appraisals with DN grades (Development Needed) were an obstacle to his obtaining an alternative role. He lacked confidence to apply for some roles. He stated that he was not really seeking a new role.(f) It was the claimant’s view that it was the respondent’s responsibility to find him an alternative role if his position with Customer A was not viable.[19]These propositions were investigated: the potential roles within GES to which the claimant had referred were two roles which were approximately two grades above the claimant’s current level. The claimant was told that he was welcome to apply for these roles, but it was not possible simply to transfer him into them because of the gap between his known capabilities and the expectations of the roles. In the event, the claimant did not apply.[20]The short-term project work currently undertaken by the claimant was important work but not sustainable as a full-time and permanent role. There was no budget to create such a post. During meetings with Mr Haslop on 21 February and 2 March 2017, it was made clear to the claimant that if an alternative role was not secured before the expiry of his security clearance then the termination of his employment was a possibility. It is clear from emails which I have seen in the period February/March 2017, and from the notes of a meeting held with Mr Haslop on 8 February 2017, that the claimant fully appreciated that, at that time, he did not have a sustainable role within the organisation.[21]On 3 March 2017, Customer A formally confirmed that the claimant’s security clearance sponsorship would end on 14 April 2017.[22]By a letter dated 10 May 2017, Mr Minns invited the claimant to a “Resolution Hearing” fixed for 1 June 2017. The letter explained that, following a number of discussions with Mr Haslop about his performance; loss of sponsorship; and security licence, Mr Minns wish to discuss the issues at a formal meeting. The claimant was permitted to be accompanied by a friend or trade union representative; the letter made clear that a possible outcome might be the termination of employment if a suitable alternative role could not be identified.[23]The claimant attended the meeting accompanied by Mr Flett. Mr Minns conducted the meeting with the assistance of Ms Debbie Freeman from HR. Mr Flett’s initial concern was to establish which if any of the respondent’s documented procedures was in play. Ms Freeman confirmed that none of the documented procedures was applicable to the current situation: this was not being treated as either a disciplinary issue nor a performance issue as commonly understood (although it was made clear that performance issues had initiated the situation resulting in the claimant’s removal from his role with Customer A). Ms Freeman explained that following legal advice the respondent was attempting to follow a fair procedure relevant to the particular circumstances. She described this as a “bespoke process”.[24]Substantive matters raised by the claimant and Mr Flett were as follows: -(a) The claimant stated that the original email from Customer A in September 2016 had been “observational and disappointing feedback” rather than a “complaint”. The email had not been fully shared with him at the time; he had not been shown it until February 2017; he did not feel that the feedback had been properly challenged or investigated.(b) The claimant believed that the respondent could have preserved his security clearance if it had been transferred from Customer A to the respondent before December 2016.(c) The claimant was concerned that he should have been placed into the respondent’s “Transition Centre”: had this happened, he believed that the respondent would have been more proactive in finding him an alternative position.(d) The claimant was concerned that it had not been properly recorded whether or not he had completed his coaching plan.[25]Mr Minns carefully considered the points raised by the claimant at the meeting and reached the following conclusions: -(a) He did not consider that there was any significant difference between “negative feedback” and a “complaint”. What was clear at the time, was that customer a was dissatisfied with the claimant and wished him to be removed from the contract. Mr Mimms was clear that Mr Haslop and Mr Seabury had discussed the position with Customer A and with the claimant. At the time, the claimant had not dissented from the decision that he needed to be removed from his client-facing role with Customer A. Mr Minns understood that the email from Customer A had not been provided to the claimant at the time. Even by the time of the Resolution Meeting, the claimant had only seen it in a redacted form. Mr Minns was satisfied that there were sensitivities around the content of the email such that its disclosure in unredacted form was undesirable. He was however satisfied that the claimant fully understood the general thrust and significance of the email: and indeed, at the time, the claimant had agreed that he should be removed from his role with Customer A.(b) Mr Mimms agreed that, in the period September - December 2016, it would have been possible for the claimant’s security clearance to have been taken in-house. But, after December 2016, security clearance could only continue with client sponsorship. Accordingly, taking the claimant’s security clearance in-house would have made no practical difference because in fact his clearance continued with Customer A until April 2017. If anything, the failure to take the security clearance in-house prolonged it and did not in any way foreshorten it.(c) Mr Mimms was satisfied that the respondent had taken all reasonable steps to assist the claimant in securing an alternative role; even to the extent of creating a role for him albeit at a lower grade and commensurately lower salary. Temporary work had been found but this work did not justify a long-term permanent position. Mr Mimms did not feel that the claimant had applied himself as diligently as he might’ve done in the task of securing an alternative role: it appeared to be the claimant’s position that this was entirely the respondent’s responsibility. The Transition Centre existed to assist employees whose roles were redundant (until 2018 the respondent had operated a policy against any compulsory redundancies): Mr Mimms was satisfied that it would not have been proper to place the claimant into the Transition Centre; his role was not redundant; and to have done so would have been unfair on employees who were properly within the Centre. However, the claimant had received a comparable level of assistance in his job search.(d) So far as the coaching plan was concerned, it was evident that it had not been possible to fully complete it; but the claimant’s progress within those elements which had been completed was positive. However, Mr Mimms did not consider this to be wholly relevant to the decision he now had to make: the claimant was now facing dismissal because he had no effective role within the organisation; and efforts to find an alternative had been unsuccessful. It had been hoped that the coaching plan would assist him in finding an alternative; but he was not facing dismissal because of any lack of success under the plan.[26]Mr Mimms reached the conclusion that it had been proper to remove the claimant from his role with Customer A; and that all reasonable efforts had been made to secure an alternative role for him. The claimant had been with unwilling to accept a lower grade alternative and was unwilling to give up his homeworking status; he had expressed a wish to remain within BT Security and jobs at his level were always likely to require security clearance. The respondent was no longer in a position to grant security clearance; the claimant had lost his sponsorship with Customer A and unless an alternative role could be found for him no further sponsorship would be available. In these circumstances, Mr Mimms concluded that it was no longer viable for the respondent to continue to employ the claimant.[27]Mr Mimms met with the claimant and Mr Flett again on 12 July 2017: the claimant was dismissed with six-months’ notice and handed a decision letter together with an explanation of Mr Mimms’ rationale for the decision. The claimant was advised of his right to appeal.[28]The claimant’s appeal was dealt with by Mr Brown: the appeal hearing took place on 11 September 2017; the claimant attended with Mr Flett. The claimant put forward six grounds for appeal based upon which he concluded that his dismissal had been unfair: -(a) The claimant maintained that he had been dismissed for poor performance: but the respondent had not followed its own performance management procedures which would have entailed a series of warnings and opportunities to improve in advance of dismissal.(b) The claimant maintained that the loss of his security clearance had been mishandled: his clearance should have been taken in-house before Customer A withdrew its sponsorship.(c) The procedure had been rushed: there being a period of only three weeks between the invitation to the resolution hearing and the decision to dismiss.(d) The claimant had not been offered alternative roles.(e) The decision to remove him from Customer A in September 2016 had been customer driven: it had not been the claimant’s choice.(f) He had not been given the opportunity to counter Customer A’s complaint which he believed was unfounded.[29]After the appeal meeting, and as agreed with the claimant, Mr Brown undertook further investigations by speaking and emailing with Mr Seabury; Mr Haslop; Mr Mimms; and Ms Freeman. Having obtained information from them, and upon considering available documentation, Mr Brown reached the following conclusions: -(a) The claimant had not been dismissed for poor performance: he had been removed from his role with Customer A because of client dissatisfaction. He had been given an opportunity to develop through a coaching plan but he had been unable to secure an alternative role and his prospect of doing so had substantially diminished when his security clearance was withdrawn.(b) Mr Brown’s conclusion with regard to the security clearance was the same as that of Mr Minns: the security clearance could have been taken inhouse for the period up to December 2016; but this would not have provided a solution.(c) Mr Brown did not accept that the procedure had been rushed: it had not been conducted over a three-week period; the claimant had been aware of the position since September 2016; and of the need to secure an alternative role. The process to his dismissal had taken nine months not three weeks.(d) The claimant had been offered an alternative role but had declined it. Mr Brown concluded that the claimant could have accepted the role, which did not require security clearance, and continued his job search. The respondent had secured temporary work for the claimant maintaining him within the organisation whilst an alternative role was sought; and he had been given all reasonable help to secure such an alternative. Mr Brown did not consider that there was an obligation on the respondent to offer an alternative if none existed.(e) Inevitably the decision to remove the claimant from his role with Customer A was customer driven. Customer A was a highly significant customer to the respondent’s business. Its demands with regard to the performance of its contract could not be ignored. The claimant was well aware of the position; it had been discussed with him at the time.(f) Mr Brown did not regard it as having been a realistic option to attempt to counter Customer A’s dissatisfaction. The fact of the dissatisfaction was of greater importance than the reason.[30]Having considered all the case papers, Mr Brown was satisfied that a full and appropriate process taken place. Mr Brown took account of the claimant’s long and satisfactory service history, but the reality was that there was no role for the claimant to undertake. This, in part, was due to the claimant’s own lack of flexibility regarding his position; status; salary; and homeworking. Accordingly, Mr Brown determined that the appeal should be dismissed and the decision to terminate the claimant’s employment should be upheld. On 2 October 2017, Mr Brown wrote to the claimant confirming his decision.
The Law
[31]Employment Rights Act 1996 (ERA): Section 98 provides that:(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show – (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it – (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (ba) is retirement of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (on either his part or that of his employer) of a duty or restriction imposed by or under an enactment. (4) Where the employer has fulfilled the requirements of subsection (1) the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) depends on 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 (b) shall be determined in accordance with equity and the substantial merits of the case.[32]Third party pressure to dismiss may amount to some other substantial reason (“SOSR”) such that the dismissal is not unfair: “in our view an employer cannot be held to have acted unreasonably if he bows to the demands of his best customer in a situation such as this even if the customer’s motive for seeking the removal of the employee was suspect”: Scott Packing and Warehousing Co Limited v Paterson [1978] IRLR 166 (per Lord McDonald).[33]In such a case, the employer must prove that the pressure to dismiss was real, and the requirements of Section 98(4) still have to be satisfied: Grootcon (UK) Limited v Keld [1984] IRLR (per Lord McDonald).[34]In Dobie v Burns International Security Services (UK) Limited [1984] IRLR 329, the employee was employed by Burns and worked as a security officer at Liverpool Airport. There was friction between him and the chief security officer, an employee of the County Council which owned the Airport, and the Council invoked its right under its contract with Burns to require his removal from the Airport. Burns offered him alternative employment but at a lower rate of pay. The tribunal at first instance held that the dismissal was not unfair. The EAT held that the tribunal had been wrong to exclude from consideration the question of the injustice to the employee, but that it could not interfere with the decision. The Court of Appeal held that the EAT had in fact power to interfere with the decision, and itself remitted the case to the tribunal for consideration of the evidence. While third party pressure could have justified the decision to dismiss, the justice or otherwise of the employer’s decision, and the extent of any injustice, are matters to be taken into account when deciding whether it acted reasonably or not in reaching that decision.[35]In Henderson v Connect (South Tyneside) Limited [2010] IRLR 466, the respondent was a charity which provided transport services to community and voluntary groups, and the claimant was employed by it as a driver of a minibus, taking disabled children to school. The service was provided under a contract with a local Council, which gave the Council an absolute veto over the employment for the service of particular individuals. The Council received allegations that the claimant had sexually abused his nieces. The respondent put the allegations to the claimant, who said that they related to some years earlier; he had done nothing wrong, the police had investigated in 2004 and decided not to prosecute. However, a meeting of the Safeguarding Children Board attended by (among others) representatives of the Council and the respondent, but not the claimant, decided that the claimant could no longer work with children. The respondent suspended him with immediate effect but wrote to the Council asking it not to exercise its right to veto the employment of the claimant. It said that in the light of the decision of the Board it had no alternative. The respondent had no other work for the claimant and dismissed him. The ET rejected his complaint of unfair dismissal, and the EAT rejected the appeal. The fact that the client which procures the dismissal may have acted unfairly, so that the employee has suffered an injustice, does not make the dismissal unfair, since the focus of Section 98 is upon the reasonableness of the employer’s decision to dismiss. If the employer has done everything it can to avoid or mitigate the injustice, by trying to get the client to change its mind, and if that is not possible by trying to find alternative work for the claimant, but has failed, the dismissal will be fair. In the light of Dobie, the employer is required to take into account whether there will be injustice to the claimant, and if so the extent of it. However, having done so, it may still reasonably decide to dismiss. Where the client’s stance appears likely to cause injustice, the ET must consider with special care whether the employer has done all it can to avoid or mitigate it; but if it has, the dismissal will be fair.[36]I have considered the cases of Post Office v Foley, HSBC Bank Plc (formerly Midland Bank plc) v Madden [2000] IRLR 827; Iceland Frozen Foods Limited v Jones [1982] IRLR 439, Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23 The starting point should always be the words of section 98(4) itself. In applying the section, the tribunal must consider the reasonableness of the employer’s conduct, not simply whether it considers the dismissal to be fair. In judging the reasonableness of the dismissal, the tribunal must not substitute its own decision as to what was the right course to adopt for that of the employer. In many (though not all) cases there is a band of reasonable responses to the employee’s conduct within which one employer might take one view, and another might quite reasonably take another.[37]The function of the tribunal is to determine in the particular circumstances of each case whether the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair. The correct approach is to consider together all the circumstances of the case, both substantive and procedural, and reach a conclusion in all the circumstances. The band of reasonable responses test applies as much to the question of whether the investigation was reasonable in all the circumstances as it does to the reasonableness of the decision to dismiss.[38]I also considered the ACAS Code. Although not strictly relevant to a dismissal other than for misconduct, the Code provides a helpful guide to what should be regarded as a fair procedure. The Claimant’s Case[39]In presenting the claimant’s case, Ms Braganza focuses heavily on the reason for dismissal being “poor performance”. She points out that the respondent is a huge organisation, employing 75,000 staff, which has comprehensive procedures in place for performance management. Her case is that, before dismissing an employee for reasons of poor performance, such an employer would be expected to issue a series of warnings to the employee and give them a reasonable opportunity to improve. In this case, the claimant was given the opportunity of a coaching plan and three of the four elements comprised in the plan were completed satisfactorily.[40]Miss Braganza also argues that given its size and resources the respondent failed to act reasonably in its efforts to secure an alternative role for the claimant. She argues that the reasons for failing to place the claimant into the Transition Centre are unpersuasive.[41]Ms Braganza argues that it was outside the range of reasonable responses for the respondent to have departed from its documented performance management procedures and instead to use the “bespoke process” described by Ms Freeman.[42]In her closing submissions, Ms Braganza is silent as to the implications of the claimant’s loss of security clearance and his inability to secure further clearance without finding an alternative role.[43]In evidence, both the claimant and Mr Flett state that the respondent “could have done more” to secure alternative role for the claimant; this argument is repeated by Ms Braganza in her closing submissions – but, short of stating that the claimant could have been placed in the Transition Centre, none of them are specific as to what more should have been done. The Respondent’s Case[44]The case advanced by Mr Hall on behalf of the respondent is that this is not a performance dismissal - and that, whilst the language of the dismissal letter is somewhat clumsy in its references to poor performance, the position was made perfectly clear to the claimant at the Resolution Meeting and the subsequent appeal. The respondent’s case is that the real issue to be grappled with is whether sufficient efforts were made to tackle the situation when it arose.[45]Mr Hall points to a nine-month period after which the claimant had reasonably been removed from the contract with Customer A during which he was given the benefit of a coaching plan; he was found alternative temporary work; and given every assistance to secure an alternative role. The respondent’s case is that the claimant did little to resolve the situation: in particular he was inflexible; unwilling to consider a reduction in salary or status; and wishing to preserve his homeworking. Ms Braganza’s point regarding the size and resources of the respondent’s organisation diminishes when the search for an alternative became necessarily a search for a senior position within BT Security and with homeworking available. The reality is that no such posts were available at any time during the nine-month period.[46]Mr Hall submits that the combination of the circumstances provided a substantial reason for the claimant’s dismissal; and that the respondent acted reasonably at every step; such that, whilst this dismissal is regrettable, it was in fact fair. Discussion & Conclusions The Reason for the Dismissal[47]I am satisfied that the claimant was not dismissed for poor performance. The claimant was dismissed in a combination of circumstances: the situation arose because an important customer was dissatisfied with the claimant’s performance and wished him to be removed from the contract. It is not the case that this decision went entirely unquestioned: Mr Haslop and Mr Seabury did speak to the customer; they were satisfied that the customer was resolved that the claimant should not continue in his role. This was explained to the claimant, who accepted and agreed at the time that he should be removed.[48]Thereafter, it was clear to everyone, including the claimant, that his future employment depended on securing another role. The respondent did not simply dismiss the claimant because the customer’s decision left the claimant with no productive role: the respondent provided the claimant with the opportunity of a coaching plan; the claimant was found temporary work for a period of nine months; and the respondent was given assistance in the search for an alternative role.[49]The claimant was dismissed only when it became apparent that he had not, and appeared unlikely to, secure an alternative. The claimant did not have a productive role within the respondent’s organisation: this is why he was dismissed. I am satisfied that this is a substantial reason pursuant to Section 98(1) ERA. Accordingly, the dismissal was for a potentially fair reason. General Fairness[50]This is not a case where the employer rushed to judgement at the behest of the customer. In this case, the respondent was satisfied that it was necessary to remove the claimant from the contract with Customer A, but it did not immediately terminate the claimant’s employment albeit that the decision left without an effective role in the organisation. The respondent took steps to redeploy the claimant - via the coaching plan; temporary work; and assistance in identifying and gaining other opportunities. Only when these efforts failed did the respondent consider dismissal. Mr Flett is a trade union representative well placed to be aware of any suitable roles which could have been offered to the claimant, but no such roles were at any time identified. Further, in my judgement, Mr Hall’s point is well made: the claimant showed little flexibility in the alternative roles he was willing to accept; in particular, in his desire to preserve homeworking.[51]On the narrow point as to whether the claimant should have been included in the Transition Centre, my judgement is that that was a decision for the respondent to make: it was clearly considered and a good reason was given for not taking such a step – namely, that eligibility for the Centre was narrowly defined and its effectiveness for those eligible would clearly be substantially undermined if managers in their discretion could admit other employees who were seeking redeployment.[52]The respondent’s adoption of a “bespoke process” for a case which did not fall squarely within its documented procedures, was in my judgement entirely reasonable and within the range of reasonable responses.[53]In all of the circumstances, my judgement is that it was within the range of reasonable responses to the situation as it unfolded for the respondent to terminate the claimant’s employment as it did. Procedural Fairness[54]In my judgement, the respondent adopted a conspicuously fair procedure: the claimant was aware of the position throughout; and knew exactly what was to be investigated at the Resolution Meeting. The ACAS Code does not apply to this dismissal: but the standards of fairness required by the Code were, in my judgement, clearly met.[55]In the circumstances, I find that the claimant was fairly dismissed by the respondent: his claim for unfair dismissal is not well-founded and is accordingly dismissed.