Mrs J Michie v DL Insurance Group plc: 1402392/2020

EMPLOYMENT TRIBUNALS

Case No 1402392/2020

Between

Mrs J MichieClaimant

DL Insurance Group plcRespondent

Before

Employment Judge David Hughes

James Lewis-Bale (instructed by counsel) for claimant

Helen Gardiner (instructed by counsel) for respondent

Date 4 May 2021

JUDGMENT

[1]The Claimant’s claim for unfair dismissal is not well-founded, and is dismissed.

REASONS

[1]The Claimant was employed by the Respondent from 04.07.2004 until 13.01.2019. On the latter date, her employment with the Respondent came to an end. The Claimant contends that she was unfairly dismissed. The Respondent says that she was fairly dismissed on grounds of redundancy.

[2]The Claimant denies that it was a genuine redundancy situation. If it was, she says that it was procedurally unfair. She says that there was no warning about proposed redundancies, no consultation, that there was no fair basis on which she was selected, there no was evidence that the Respondent had considered a pool for redundancy, and no steps were taken to avoid redundancy. It is also said that the Respondent failed to consider suitable alternative employment for the Claimant.

[3]The Claimant says that she was not provided with an opportunity to challenge the reason for terminating her employment, saying she was told to either accept redundancy or redeployment. She contends that there should have been a third option, namely that she would proceed with a consultation process to explore the reasons for the redundancy situation and if or how her role was affected and/or could be retained and/or any alternatives to redundancy. Law 1. Each party was represented before me by counsel. Counsel put before me an agreed note on the relevant law, which I have found helpful and for which I thank them. All matters of law dealt with in this section of the reasons were agreed by counsel. 2. Redundancy is defined in s139 of the Employment Rights Act 1996, as follows: 1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to… b. the fact that the requirements of that business – i. for employees to carry out work of a particular kind, or ii. for employees to carry out work of a particular kind in the place where the employee was employed by the employer have ceased or diminished or are expected to cease or diminish. 3. It is agreed that redundancy is a potentially fair reason for dismissal, under s98(2) of the Employment Rights Act 1996.

[4]In the case of Safeway Stores plc v Burrell [1997]1 approved by the House of Lords in Murray and another v Foyle Meats Ltd (Northern Ireland)2, the following 3-stage test was approved for determining whether a dismissal is by reason of redundancy:a. Was the employee dismissed? If so,

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

c. Was the dismissal of the employee caused wholly or mainly by the state of affairs identified at stage 2?

[5]Question a) above therefore poses no difficulty in this case. It is common ground that the Claimant was dismissed.

[6]Insofar as question b) is concerned, this is a commercial judgement for the employer to make. If I am satisfied that the Respondent made a genuine commercial decision that it could make better use of its resources by asking other members of staff to absorb the Claimant’s duties, and if I am satisfied that that was the genuine reason for her dismissal – the test posed in question c) above - then the merits or otherwise of that decision are not a matter for the Tribunal.

[7]Regarding procedure, counsel referred me to the decision in Polkey v AE Dayton Services Ltd3, in which it was held that an employer will not normally act reasonably unless it;a. warns and consults employees about the proposed redundancy;

b. adopts a fair basis on which to select for redundancy; and

c. considers suitable alternative employment.

[8]Regarding consultation, an employer must have an open mind and still be capable of influence about the matters that form the subject matter of the consultation. Although the subject of the consultation will depend on the circumstances, it should usually include an opportunity for the employee to comment on the basis for selection, to challenge the redundancy selection assessment and explain any factors that might have led to their selection of which the employer might not have been aware, to put forward ways to avoid their redundancy, consideration of any alternative positions that may 1 IRLR 200 (EAT) 2

[1999] IRLR 562

[1987] IRLR 503

exist, and to address any other matters or concerns the employee may have.

[9]Regarding selection, an employer has a wide measure of flexibility in defining the selection pool. A selection pool of one has been held to be fair, counsel referring me to the cases of Alvis Vickers Ltd v Lloyd4 and Wrexham Golf Club Co Ltd v Ingham5. So long as the employer’s choice of pool was within a range of reasonable responses, it is not for me to substitute my own view as to what the pool should have been.

[10]A dismissal is likely to be unfair if the employer makes no reasonable effort to consider whether suitable alternative employment is available with its organisation – see Quinton Hazell Ltd v WE Earl6. The facts The Claimant’s role

The facts

[11]The Respondent’s business is insurance. I gathered from the hearing – it was not necessary for the parties to explore this, other than as background for me to understand the case better – that it operates under a number of names, offering insurance services aimed at different markets. The Claimant worked in FarmWeb, which, as the name suggests, was aimed at the agricultural market. Farmweb was, a division within the Respondent, rather than a separate legal entity, although it seems to have operated with a significant degree of autonomy within the Respondent’s organization.

[12]The Claimant’s title was sales co-ordinator. Her duties, and those of others, were described in the hearing.

[13]I heard evidence from Chris Hurst, who job title is Head of FarmWeb. He has worked for the Respondent since August 2017. Mr Hurst told me that he had been with FarmWeb from February 2019, and had therefore been with that element of the business for 7 months before the process that led to the Claimant’s dismissal began.

[14]Part of the Claimant’s role had been dealing with what were called “bank leads” in the hearing. Bank leads, so Mr Hurst explained, were leads generated from an affiliation that the Respondent had had with RBS, which had generated a significant number of leads. When those leads came in, they were triaged to a designated broker in the relevant geographic location to follow up. The relationship with RBS had come to an end, however. It was put to Mr Hurst that the ending of the relationship with RBS had come in December 2018, and that before this, another manager, Rob Sainsbury, had taken at least some of the handling of these from the Claimant before then, but Mr Hurst’s answer was that, whilst the latter appeared to be so, it happened before he took on a role with FarmWeb.

[15]Mr Hurst’s role involved him spending 3 days a week in the office, with the other two days spent working from home. He disagreed with the suggestion put to him by Mr Lewis-Bale that he did not see the extent to which the Claimant supported the sales team. On the days when he was 4

EAT/0785/04

UKEAT/0190/12

[1976] IRLR 296

not in the office, he was in contact with the Claimant, he said, by email primarily but also by telephone.

[16]Another position in FarmWeb was that of Development Underwriters, referred to in the hearing as “DUs”. DUs wore, Mr Hurst told me, two hats. They had a business development role, in which they would meet brokers on their broker panels on a fairly frequent basis, and deal with remuneration agreements with brokers. The second hat was what he called the underwriting side of the job. He told me that DUs would be allocated a pool of clients, or risks, that they were expected to underwrite. They were given an annual target Gross Working Premium target. Mr Hurst said that he anticipated that DUs would divide that up into manageable chunks, and that the size of GWP that a DU achieved in a month might vary, according to how much time a particular DU had spent meeting brokers that month.

[17]DUs were, Mr Hurst told me, expected to be on the road 3 days a week. At times, Mr Hurst had a tendency to lapse into what might be termed management speak – he told me that he never “…managed to hit those numbers, they were part of the amendments we were making, part of the rationale was to increase market visibility, we changed those metrics in the DUs’ expectations at the end of 2019, with a view to hitting those numbers in 2020, then the DUs weren’t on the road much in 2020. I would say, yes, eventually that would be an expectation, 2 to 3 days on the road”. Asked to clarify this, Mr Hurst told me that there would be an element of flexibility, that DUs were to have other responsibilities to deliver, some underwriting outputs to deliver. This response did not perhaps bring the degree of clarity for which I might have hoped, but it seems to me be clear – and I find as a fact – that Mr Hurst intended that DUs should undertake a greater degree of responsibilities than had hitherto been the case.

[18]Mr Hurst accepted that the Claimant supported the DUs as a team. He accepted that, for example, she prepared reports for their visits to brokers, which addressed account performance. He said that account performance was a big part of broker meetings, and that he felt that DUs were missing opportunities because they weren’t getting into the detail of the accounts. He thought that the DUs were simply taking what the Claimant told them, and there was room for them to have more “ownership” of that role. He also told me that a lot of reporting within the Respondent was quite automated, and that he couldn’t therefore say how long it took the Claimant to produce her reports.

[19]Mr Hurst went on to tell me, a short time later in his evidence, that “…it’s one thing to track the deals and have the numbers, to use those numbers to have meaningful broker conversations is the bit that was missing. I don’t dispute that deals being tracked or report being pulled, that’s 5% of the process, what I then wanted was for DUs to use that data, use the account performance, to go and have real robust, rich, development conversations with the brokers. My view was that, if they produced the numbers for themselves, which is quite an automated process, they’d be closer to the numbers and would make the conversations with brokers a lot richer and a lot more valuable”. This was consistent- as, indeed, was the entirety of his evidence – with him having decided that DUs should take on more responsibility.

[20]Mr Hurst also told me about Acturis, which he described as follows; “Acturis was also the bespoke operating system used in FarmWeb to trade. It is a full cycle electronic trading platform onto which Brokers key risk information and FarmWeb Underwriters view that information and underwrite it to acceptable levels. There are various costs associated with Acturis (transaction costs, system upgrade costs) that are now controlled centrally within Direct Line's Commercial teams, thereby removing it from the Claimant's responsibility remit”.

[21]Mr Lewis-Bale put to Mr Hurst a list of the Claimant’s responsibilities included in her statement. These were; ensuring all meetings were scheduled for the year, including preparation of the agenda, attending and taking meeting notes, tracking and reporting all broker deals, preparing year end reward payments, providing monthly statistics to brokers, maintaining the FarmWeb website, procurement of marketing materials with the FarmWeb branding and distributing the same to brokers who were attending agricultural shows, organising events and settling all invoices and expenses and maintenance of agency records. Mr Hurst said that he was not unsure of what the Claimant’s responsibilities were, saying that the Claimant had explained her role to him in a meeting at the end of February or early in March 2019. Of the description offered by the Claimant in her statement, Mr Hurst said that her role in maintaining the website was not mentioned in the February/March meeting, but that he was aware that she was involved in its maintenance.

[22]A further indication of her role was to be seen in a document in the bundle, entitled “Pull Through Priorities Capturing Your Conversation Conversation outcomes and actions to be captured”. This document has two columns, one headed “Manager Evaluation”, the other “Employee Evaluation”. This document appears to identify that the Claimant highlighted to DUs areas of deals that were underperforming, for them to address.

[23]Also in the bundle before me was a document headed “Key accountabilities/tasks”. This was prepared by the Claimant, and emailed to Ms Stock, to whose evidence I will come in time. It sets out the following bullet points:  Organisation of weekly trading meetings and monthly Underwriting Trading & Business Performance meetings by preparing agenda, provide supporting documentation, attend and take meeting notes and actions and distribute accordingly  Act as first point of contact for FarmWeb, dealing with correspondence, phone calls and emails  Procurement, maintenance and distribution of marketing material to brokers for Agricultural Shows and Events by liaising with staff, clients and third party suppliers  Contribute towards the achievement of the top and bottom line by providing statistical information in an accurate and timely fashion;  Preparing regular performance reports for Member Brokers maintaining confidentiality of Client data at all times  Track and be in a position to report on all Deals by managing the Deals and Propositions process (including production of profit share/rewards calculation using financial modelling tool).  Organisation of broker events and hospitality by arranging suitable venue, catering, travel, hotels, settlement of expenses and invoices ensuring overall spend is within budget.  Maintenance/uploading of documents onto the FarmWeb website using Umbraco software  Prepare presentations and reports as required  Take responsibility for the update of Agency records, Commission schedules and general Agency database management including FarmWeb website and FarmWeb contact lists in conjunction with Head Office Agency team  Maintenance of FarmWeb Member Broker Database  Raising of requisitions and purchase orders using Oracle Accounting System; settlement of invoices  Maintain Regional Gifts and Hospitality register  Collating and reconciliation of monthly invoices and expenses  Procurement/maintenance of stationery/office equipment and supplies at competitive rates

[24]Asked about this by Mr Lewis-Bale, Mr Hurst did not disagree with anything in the list, although he felt that there was an element of crossover in some of the points identified, and he said that he didn’t recall her ever giving a presentation, although that may have happened before he joined FarmWeb. The decision to dismiss

[25]In his statement, Mr Hurst said that, in the months following his joining FarmWeb, he took time to assess where he thought there were inefficiencies or areas that required change. He said that, based on his sales background, he has always felt that some elements of what the Claimant was doing should be carried out by the salesperson, not by someone in a separate role. This formed the basis of his decision that a significant part of the Claimant’s responsibilities should go to the DUs.

[26]He went on to say that he was aware that the Claimant’s role had diminished over time, as the bank leads had fallen away.

[27]By early August 2019, Mr Hurst had developed a proposal for role amendments, which was included in the bundle, and which was proposed to Ian Exworth – whose role was not explored in the hearing.

[28]The document consists of 3 pages. The first is headed “Rationale”. I do not quote it in full, but its theme is a desire to get more sales output from DUs, who are said to be too “underwriting focused”. The proposal is to redistribute the elements of the sales coordinator role, elements of which are already said not to exist at the time the document was prepared – namely bank leads, and reconciliation of Acturis spend.

[29]The second page of the document is headed “Role Priorities and where they’ll be deployed”. It has a table setting out 9 identified “priorities”, the “key tasks” of each priority, and who the “new owner” is to be.

[30]The final page of the document was headed “Current FTE view -vProjections”, and did not feature in the argument before me.

[31]Mr Hurst was cross-examined about the list of Role Priorities by Mr LewisBale. He was also asked about the list of key accountabilities referred to above. He disagreed with Mr Lewis-Bale that the list contained enough to keep the Claimant busy. He said that the tasks all slotted within a 9-point rationale for the change. Mr Hurst felt that what he described as a “big chunk” of responsibilities sat better with the DU’s, and he believed that they had the capacity to undertake what it was proposed to ask of them.

[32]There was some dispute as to the extent to which bank leads played a part of the rationale for redundancy. Mr Hurst said that they were part of the rationale, but not the whole of it. Pressed further, he said that that part of the Claimant’s role had already disappeared, and he envisaged what he described as a “further big slug” of the role was also going to disappear as more responsibility was passed to the DUs.

[33]Mr Lewis-Bale put to Mr Hurst that the notion that the Claimant’s workload was diminishing was nonsense. Although I noted him to hesitate somewhat before responding, Mr Hurst answered that she was not a busy as she could have been. He said that he was not sure that what was left of her role was a full-time role, after reporting duties were to be given to the DUs, along with everything else contained in the rationale document. Process

[34]It was common ground that a meeting took place on 11.09.2019.

[35]I need to say a little more about the meetings that were said to have taken place. The Claimant said that meetings diarised for 18.09.2019 and 24.09.2019 did not take place. Mr Hurst said that those meetings did take place.

[36]I am not confident that I can rely on the recollection of either Mr Hurst or the Claimant as to whether the meetings took place, or their content where they disagree. That is not to say that I think either of them has been dishonest – reliability is not the same thing as honesty.

[37]Shortly before the hearing, photographs of a manuscript notebook kept by Mr Hurst were disclosed. This includes an entry for 24.09.2019. This appears to be consistent with a typed note of a meeting held on that date in the bundle, and it was not suggested that there is any material consistency between them.

[38]The note appeared to me to be part way through the notebook, not on its first pages, and counsel agreed that it so appeared. It therefore seems improbable – and this was not disputed – that any entry made for a meeting on 18.09.2019 would have been in a different notebook. The absence of a manuscript note of a meeting on 18.09.2019 is consistent with there having been no meeting on that date, and inconsistent with thre having been such a meeting.

[39]My attention was drawn to card swipe logs. The Claimant worked on the 1st floor of the Respondent’s premises in Gloucester, and that both the ground and 1st floors had card swipe entry. It was said that meetings about redundancy would have taken place in a meeting room on the ground floor. But that the Claimant might have accessed the ground floor is, I think, not of assistance in demonstrating that a meeting took place. There were lockers on the ground floor, as well as the 1st floor, and it was put to Mr Hurst that the Claimant’s locker was on the ground floor, a suggestion he seemed to find curious but did not say was wrong. Further, it was said that the Claimant would have other reasons to go down to the ground floor, for example to get milk. I accept that that is so. I find the swipe card records of no assistance in deciding whether or not meetings took place.

[40]It seems to me that this notebook is a better guide to what probably happened than the recollection of either Mr Hurst or the Claimant. I therefore find that there was a meeting on 24.09.2019, but not on 18.09.2019.

[41]The Claimant’s account of the meeting on 11.09.2019 was as follows: “On 11 September 2019, I was called into a meeting by Chris Hurst, my Line Manager and the Head of FarmWeb at the Respondent. This meeting was completely unexpected as I had not received any advance notice of it or any information as to what it was about. The meeting turned into an informal discussion whereby Mr Hurst informed me that my role was at risk of redundancy following a business restructure. In response to point 4.1 of the Respondent’s ET3, I refute that there were any lengthy discussions regarding the rationale for a restructure and my role being made redundant. As I have previously explained, the meeting was called at very short notice by Mr Hurst as he simply asked me to ‘pop downstairs’ and it was very brief. I was upset by this and very surprised by the news….. During the meeting I was given a letter enclosing a redundancy calculation and Redundancy Preference Form. Mr Hurst informed me that I needed to complete and return the preference form by 25 September 2019. The form asked whether I had a preference for voluntary redundancy or redeployment. The redeployment option would mean that I would need to relocate to either Bristol or Birmingham and this was not an option for me. I have elderly parents who live close by and rely upon me. At the time, my stepfather was undergoing cancer treatment and passed away on 23 October 2019. Commuting to Bristol or Birmingham was 90 minutes each way. The letter also said there had been an announcement about the restructure. I was unaware of this announcement and did not know what announcement the letter was referring to. I was part of the Management Team and had no idea, neither did Mr Chris Jones, the Commercial Trading Manager. … During the meeting with Mr Hurst, I questioned why the decision had been made and the rationale behind it. Mr Hurst informed me that the decision was due to a reduction in bank leads after there had been a loss of a contract at the Respondent. I was told that my role and duties had therefore reduced because of the reduction in bank leads. I strongly rejected this because I had not had any dealings with bank leads since July 2017, when my line manager at the time, Ms Sonya Bryson, had reallocated this work to another colleague, Rob Sainsbury. I told Mr Hurst this and also asked other questions such as why I was the only individual selected and who would look after the FarmWeb website along with the rest of my responsibilities. Mr Hurst replied to say he would get back to me with answers as he did not have the answers at the time of the meeting. Mr Hurst also asked me for a list of my responsibilities as he was unaware of them…..

[42]In his statement, Mr Hurst said that the description of the meeting in the Claimant’s ET1 was largely accurate, although he did inform her of the rationale behind the decision. In answer to Mr Lewis-Bale, he said that the meeting had started out as an informal discussion, and agreed that he had not shown the Claimant the document referred to in paragraphs 29 to 31 above, although he insisted that he did discuss this orally with the Claimant.

[43]The bundle contained a typewritten note of the meeting on 11.09.2019. The note extends over two pages. The note has Mr Hurst explaining to the Claimant that the “deployment of resources across the site” had been looked at, to seek to identify efficiencies and inefficiencies. The note has him saying that the conclusion was that the sales coordinator role had “…diminished over the previous 12 to 18 months, to the point where it was considered unviable moving forward”.

[44]The note has Mr Hurst outlining the elements of the role, and “…how it had concluded the way it has”. He starts off by referencing bank leads, and has the Claimant responding that she had never been involved with bank leads at all. Mr Hurst is noted as saying that he would go back through the review and see how the task was attributed to the sales coordinator.

[45]The note then has Mr Hurst going on to discuss budgeting, saying that what he identified as “big spends” were controlled by others, leaving other less onerous costs that could be absorbed across the business.

[46]Mr Hurst is then noted to have gone on to sales outputs, and admitted that he wanted more from DUs on that front.

[47]The note records a discussion, the Claimant saying that her sales coordinator role was different to others in the Respondent, and that she didn’t have a skill set that lent itself to other roles in the Gloucester office.

[48]Mr Hurst has himself handing the Claimant a letter, and the discussion continuing.

[49]I have placed reliance on the manuscript note of the meeting on 24.09.2019, in determining that that meeting took place. The manuscript note is in a notebook, and concludes on a page on which there is a note, unrelated to this case, also dated 24.09.2019. It seems to me that that manuscript note is highly unlikely to have been a fabrication. Coming from the time it was made, it is more likely to be reliable than the recollection of either Mr Hurst or the Claimant.

[50]I am somewhat more hesitant about relying on the typed up note. There is a typed-up note of a meeting said to have taken place on 18.09.2019, which I do not accept to have taken place. In addition, at one point towards the end of the note of the meeting of 11.09.2019, the Claimant is said to have observed “with a smirk, that there were two other insurers on her doorstep anyway”. That strikes me as a little improbable.

[51]The bundle did contain a notice of redundancy – headed “notice of redundancy”, although its terms indicate that it is notice of a risk of redundancy - dated 11.09.2019. It has all the appearance of a standard draft, not at all individualised to the Claimant’s circumstances beyond the dating.

[52]There is also a letter dated 11.09.2019. It included a redundancy preference form, indicating whether she wanted to be considered for voluntary redundancy, and whether, if her role was made redundant, she would like to consider redeployment within the Respondent. She was asked to return this by 25.09.2019. Mr Hurst said that he wasn’t wedded to that that as a deadline, that he was prepared to be flexible, although I am not satisfied that any flexibility was communicated to the Claimant. The letter itself has, like the notice, all the appearance of a standard draft, with little to reflect the circumstances of the Claimant’s position. In some respects, its drafting – with reference to “…the recent announcement…” – there had been no announcement – and a “…proposed business restructure…” – a term the appropriateness of which Mr Hurst doubted in his evidence – was inapt. It contained nothing to indicate that there was any flexibility in the deadline for returning the redundancy preference form.

[53]On balance, I am satisfied that it is more probable than not that Mr Hurst did tell the Claimant orally of the reasons why he had identified her role as at risk of redundancy. Although I have some caution in relying on the typewritten note of the meeting, I think it slightly more reliable than the recollection of the Claimant. I also note that, in the course of the hearing, Mr Hurst showed no reticence in discussing the rationale behind the decision. It may be said that that is unsurprising, given the nature of this hearing, but Mr Hurst did not strike me as someone who would be shy about sharing the rationale for his decision, including in the meeting on 11.09.2011.

[54]Mr Hurst was asked about redeployment. He said that the Claimant had said that her skill set did not suit the only role available in Gloucester, an underwriting role, and that is consistent with the note of the meeting. Mr Hurst agreed that that left possible roles in either Bristol or Birmingham as the main relocation options.

[55]I accept that this discussion took place. I also accept that the Claimant said that she considered it impractical to undertake a role based in either Bristol or Birmingham. She referred to the commuting time to Bristol being 90 minutes from her home in Gloucester. I am doubtful as to the accuracy of this time estimate, but I accept that that was the Claimant’s position, and that she said that in the meeting on 11.09.2019.

[56]Mr Hurst was challenged by Mr Lewis-Bale that the reduction in bank leads was said to be the reason for the decision. He denied that that was so, saying it was part of his answer, but that the rationale was as laid out in the document referred to in paragraphs 29 to 31 above. I accept that. It is consistent with the content of the note of the meeting. I find that, although Mr Hurst did refer to bank leads in the meeting on 11.09.2019, he did not say that that was the principle reason for the decision, but rather set out his rationale as recorded in the documentation.

[57]In cross-examination, it was suggested that Mr Hurst he had not answered questions from the Claimant, in the meeting, about why she was the only person at risk of redundancy, and would look after the FarmWeb website. He answered that he could not recall if he had answered in the meeting, but could not think of why he would not have answered. I accept that that is probably so.

[58]On 12.09.2019, Mr Hurst emailed the Claimant. In that email, he provided her with some links at which she could find some support for her. The email says asks that she try to respond with her answers on the preference form within the timescale indicated – which is inconsistent with the flexibility he said was indicated at the meeting the previous day.

[59]The Claimant responded later that day. Early on in the email, she says that she had told Mr Hurst that she had told him that she had not had any involvement with bank leads since July 2017. This is in some tension with the other accounts of the meeting.

[60]The Claimant went on to say that she had spent a great deal of time supporting DUs since the end of 2017. She said that she had taken over responsibility for “Exec Trading”, “Commercial Trading” and “Bus Perf Meetings”, and these, as well as her other duties, kept her busy.

[61]The Claimant said that she did not wish to commute to either Bristol or Birmingham, leaving her with no choice but to be considered for voluntary redundancy. Finally, she raised a point about her notice period being 12 weeks, but the tentative leaving date she’d been given was only 8 weeks away.

[62]I have already found that the meeting that Mr Hurst has taken place on 18.09.2019 did not take place.

[63]The next email communication that I have is one from one Alana Greenhalgh, addressed to “Redundancy Support”, that the Claimant had returned her employee preference form. This is dated 19.09.2019.

[64]The note of the 18.09.2019 – which I find is probably mistaken – has the Claimant being told that it was a chance to ask further questions or make points for consideration. It has the Claimant saying that the position was the same as she had said in her email of the previous week. Much of what is noted is said or written elsewhere. I do not find that this note is a dishonest fabrication by Mr Hurst, I suspect it is an honest make, him noting things said elsewhere as having been said in a meeting that he had intended take place, but which did not, in fact, take place.

[65]I have already found that the meeting of 24.09.2019 did, in contrast, take place. For the reasons indicated above, I accept that the note of the meeting is a reasonably accurate record of what was said at that meeting.

[66]The note has the meeting opening as a standard one-to-one. The Claimant updated Mr Hurst with information about deals, and mentioned that there were shows – which I understood to mean agricultural shows – coming up, for which FarmWeb merchandise would be needed. She asked about who would be responsible for the FarmWeb website when she left, Mr Hurst responding that he would.

[67]The meeting then moved on to the consultation. It has the Claimant appearing fine with the situation – which may be Mr Hurst’s interpretation, but is a detail about which I am doubtful. It has the Claimant feeling that she had no option but to ask for voluntary redundancy, as she wasn’t interested in commuting to Bristol, still less to Birmingham. Support options were reiterated, and there was a discussion of this.

[68]The typewritten meeting notes also have a record of a short meeting on 30.09.2019. There is no handwritten note of this meeting. The handwritten note of the meeting on 24.09.2019 does not appear to be near the end of the notebook in which it was written, and just as it would be surprising if a manuscript note for 18th was not in the same notebook, it would be equally surprising if a manuscript note of a meeting on 30th was not in it.

[69]The emails that I have seen do not support a meeting taking place on that date – although they do not expressly contradict that it did – but, for similar reasons to those regarding the alleged meeting on 18.09.2019, I find that no meeting took place on 30.09.2019. I do not find Mr Hurst’s categorical statement that it did in evidence reliable, although again I emphasise that my finding relates to its reliability, not its honesty.

[70]I find that the Claimant was given a letter dated 30.09.2019, which served as notice of redundancy. That letter was in the bundle. The Claimant said that she was simply handed this letter whilst sat at her desk. I accept this.

[71]The Claimant was off work for a time thereafter, having suffered family bereavements.

[72]On 13.11.2019, the Claimant raised a grievance by email. The grievance related to her selection for compulsory redundancy.

[73]On 18.11.2019, Mr Hurst forwarded his copy of conversations with the Claimant to Ms Kali Stock, a HR adviser in the Respondent company, based in Bristol. Mr Stock made a statement for these proceedings, and gave evidence before me.

[74]On 18.11.2019, Ms Stock emailed the Claimant, to say that she had been passed her grievance to investigate. She asked the Claimant what information she had been given that was factually incorrect, and what her preferred resolution to the grievance was.

[75]The Claimant responded on 22.11.2019. She answered that Mr Hurst did not know what her job tasks were, and asked, that being so, how can a position be made redundant. She said that she did not volunteer for redundancy, and that redeployment was not an option for personal reasons. She then asked, how did Ms Stock see it being resolved.

[76]On that same date, Mr Hurst had sent the Claimant the notes of the meetings – which is not to contradict my finding that two of them did not take place – and invited her to comment on them. This the Claimant did.

[77]A return to work meeting was held on 19.11.2019. There was a note of this in the bundle. The Claimant was accompanied to this meeting by a representative, one Mr Jones. She had not been accompanied to the meetings that took place in September. The note of the return to work meeting has the Claimant being angry at being made redundant, and Mr Hurst attempting to keep separate the return-to-work meeting and the grievance and redundancy processes, although it seems from the note that he was not entirely successful in doing so, as much of the discussion related to redundancy.

[78]There was a discussion between the Claimant and Mr Hurst on 25.11.2019. The following day, the Claimant emailed Ms Stock, saying that she had been “collared” by Mr Stock, who asked if he could have a word with her. She advised that she was leaving for the evening, so he asked if he could pick it up with her that morning. She told Ms Stock that she was unhappy about being “pressured in this way”.

[79]She copied to Ms Stock an email that she had sent to Mr Hurst, at 10:05hrs that morning. Although the email’s tone is perhaps a little abrupt, which would be consistent with her account of having been “collared” and felt pressured, it does not expressly reference what she describes in her email to Ms Stock. Mr Hurst denied putting any pressure on the Claimant.

[80]On this, on balance, I accept Mr Hurst’s account that he did not put pressure on the Claimant. The documents indicate that, by this time, the Claimant was, perhaps understandably, somewhat embittered, and I am not confident that I can rely on her account of having been pressured.

[81]The Claimant gave evidence. Much of her evidence consisted of explaining why she thought that the decision to make her post redundant and re-distribute her responsibilities was wrong. That is a view to which she is entitled. It is perhaps unsurprising that she holds it. But it is not particularly helpful to me, given the legal position set out earlier in these reasons.

[82]In cross-examination, Ms Gardiner put the following to the Claimant: “It looks like, from the documents the Tribunal has now and you can see now, that the Respondent has thought about this, has considered the decision, and taken a reasoned and thought-out decision to re-allocate these responsibilities. This isn’t a sham, it’s a genuine process, just one you don’t agree with?” The Claimant’s answer to this was, “Yes, we agree”.

[83]That answer by the Claimant was, I find, correct. Mr Hurst had made a decision that the Respondent’s need for someone to carry out the Claimant’s role had ceased. That is a decision that may turn out to be wise or unwise, in time. It is one with which the Claimant, unsurprisingly, disagreed. But it was, as the Claimant’s answer recognised, not the result of some sham procedure. It was a genuine decision.

[84]In a helpful written note on his closing submissions, Mr Lewis-Bale sought to persuade me that there was not a genuine redundancy situation. He submits that Mr Hurst had not been in position long enough to be fully aware of what the Claimant’s job entailed. I do not accept that. The wisdom of Mr Hurst’s decision is not a matter for me. I find that Mr Hurst had made a genuine attempt to achieve a proper understanding of the Claimant’s role, and had achieved one, albeit one with which the Claimant disagreed.

[85]No other reason was suggested why the Claimant was dismissed. The evidence is overwhelming that the reason why she was dismissed is because of redundancy.

[86]In his oral submissions, Mr Lewis-Bale realistically acknowledged that process was where the real essence of this case lies. In his written note, Mr Lewis-Bale identified the following as the contended procedural flaws in the process; a) There was no prior business announcement regarding the restructuring before it commenced, nor any announcement that positions were being considered at risk; b) That the Claimant was placed in a pool of one; c) That the Claimant was not provided with an opportunity to challenge the reason for termination in a meaningful consultation. Developing this point, it is said that the Claimant was not given the full business proposal, that she was “effectively” told on 11.09.2019 that she was going to be made redundant, and offered only voluntary redundancy or redeployment. d) That the Claimant’s grievance process was re-labelled a redundancy appeal, that this provided the Respondent with an opportunity to set straight the record regarding the position of whether the September meetings had taken place or not; e) That the re-labelling of her grievance as a redundancy appeal meant that the Claimant was denied a further right of appeal, as there was no appeal from a redundancy appeal, whereas there was one from a grievance.

[87]It is right that there was no announcement prior to the meeting on 11.09.2019. But at that meeting, the Claimant was not told that she was to be made redundant, she was told that her role was at risk of redundancy.

[88]I find that the Claimant was told of the reasons why her role had been identified as being at risk of redundancy. I find that she was consulted on this.

[89]I confess to some doubt about whether Mr Hurst had an open mind to what the Claimant might have said. On balance, however, I find that, had the Claimant focused on the reasons she had been given and sought to address these, Mr Hurst was prepared to consider what she said.

[90]A pool of one is not necessarily unfair. In this case, Mr Hurst had identified one particular role as being at risk of redundancy, because that role’s responsibilities could be distributed elsewhere. There was only one sales coordinator in the FarmWeb business. I do not consider, in those circumstances, that a pool of one was unfair.

[91]I find that the Respondent did consider suitable alternative employment. It was prepared to look at redeploying the Claimant in either Bristol or Birmingham. That the Claimant did not want to pursue either option was her choice. The Claimant lives in Gloucester, and drives. I do not consider that redeployment to either Bristol or Birmingham would have been unsuitable – the commutes involved would have been of the sort that many people undertake. That neither was explored further was down to the Claimant’s decision that she was not prepared to relocate to either location.

[92]Regarding the re-labelling of the Claimant’s grievance process as an appeal against redundancy, I do not consider that this was unfair. I will need to deal with this a little further.

[93]Ms Stock’s statement contains a number of comments which appear to me to have the flavour of advocacy. She comments about the Claimant going “somewhat off-piste” in her email about feeling pressured by Mr Hurst, and that the Claimant’s email of 22.11.2019 was “incredibly brief”. She mentions noting with interest that the Claimant referred to having taken legal advice. The blame for its phrasing may lie elsewhere than with Ms Stock herself, but it left me with the impression that the statement was an attempt at an exercise in advocacy.

[94]Having received the Claimant’s email of 22.11.2019, Ms Stock responded wither her allegations about being “collared”. The Claimant then provided Ms Stock with the list of her key accountabilities, to which I have already referred in these reasons. The also copied Ms Stock into emails between herself and Mr Hurst.

[95]On 28.11.2019, Ms Stock emailed the Claimant, asking if she would like to catch up the following Monday. The Claimant responded the following day, saying that she was free to do so. She asked whether it would be an informal or formal discussion, indicating that in one circumstance she would want a member of staff in attendance. She also clarified that her position had been changed from voluntary to compulsory redundancy. 96. 8 minutes after that email, Ms Stock responded. She told the Claimant that she – Ms Stock – was needed on-site in Bristol the following week, but that she had time for a telephone call if that was OK with the Claimant. She said that what was intended was an informal meeting, for Ms Stock to understand what had happened and what the Claimant’s preferred outcome was. 21 minutes later, the Claimant responded, saying that it was not easy to talk in an open office, so she was attaching a timeline of events, which she said was self-explanatory. The timeline was in the bundle before me, and is a detailed account. In answer to the question, how did she see the grievance being resolved, she replied; “I require confirmation in writing that my redundancy is compulsory. I have never “volunteered” for redundancy. This was a decision taken by Chris Hurst without proper consideration or knowledge of my role. I require 12 weeks’ notice once formal notification of my compulsory redundancy is received/takes effect.”

[97]Ms Stock says that she was surprised that the Claimant did not want to speak, but was content to proceed without further discussion with the Claimant, as the document was detailed. I have already commented that it was indeed detailed. But the assertion that the Claimant did not want to speak is unfair – in her email she seems to me to say that speaking by telephone was not practicable, and there is a grudging flavour to any contentedness she might have expressed with the timeline speaking for itself, rather than any positive volition not to speak. This was another instance where I felt that Ms Stock was attempting to engage in advocacy.

[98]Ms Stock was then in communication with Nina Gohil, a HR services senior adviser in the Respondent. She says in her statement that the communication was about the documents which had been sent to the Claimant in the early stages of the redundancy process.

[99]There is an email exchange dated 04.12.2019, in which Ms Stock asked for a copy of the employee preference form, as she wanted to review the wording. Ms Gohil replied that the preference form did indicate voluntary redundancy. Ms Stock then asked whether the Claimant would have been sent a redundancy support pack, to which the response was; “When we send the at risk letter out initially we send the business contact an email template which has info for them and info to pass onto the employee You may need to check with Chris if he actually passed this on to Jean I’ve attached the original email we sent – on the Employee email it has the Employee pack on (which is different) to the one we have in use now as we have combined the manager and employee pack together following the redundancy review”.

[100]This email was not explored in the live evidence before me, but I have referred above to the Claimant being directed to support.

[101]On 09.12.2019, the Claimant sent Ms Stock a chaser email. She said that she looked forward to receiving confirmation of her compulsory notice, together with her final leaving date, taking into account 12 weeks’ notice.

[102]There followed emails about the Claimant’s leaving date.

[103]On 16.12.2019, Ms Stock sent the Claimant her decision. She concluded that Mr Hurst had a clear understanding of her role’s responsibilities. She said that the task list sent by the Claimant matches the list in the notes that Mr Hurst had prepared for individual consultation. She referred to Mr Hurst having explained to the Claimant the rationale for the decision at the meeting – which I have found that he did. She has Mr Hurst explaining that the Claimant was no longer responsible for bank leads, and that the remaining elements of her role could be absorbed by other members of the team.

[104]She said that Mr Hurst had given the Claimant a chance to indicate a preference for voluntary redundancy, or redeployment. The Claimant had said that redeployment wasn’t an option for her, and was consistent in that position. Ms Stock agreed to change the Claimant’s leaving date, in the light of the absence to which I have referred already. The Claimant was also offered support if she wished to apply for other roles within the Respondent in her remaining time with the company.

[105]On 20.12.2019, the Claimant responded to Ms Stock’s decision. She disputed the reasons for her redundancy, saying that there had been an unfair selection, inadequate consultation and “complete fabrication of the facts”. She said that Mr Hurst did not have a clear understanding of her role’s responsibilities. I have already found that he did, and Ms Stock had so found. She asserted that there was no proper consultation, that the initial meeting of 11.09.2019 was not logged in Mr Hurst’s diary or the meeting room, rather she was asked to “pop down for a quick chat”. There is something in that criticism, although I think it goes to form rather than substance. It might have been better for Mr Hurst to have invited the Claimant formally to a meeting at which she would be told that her role was a risk of redundancy. But I have found that there was a proper consultation.

[106]The Claimant was unhappy that Ms Stock had not spoken to her. It is clear from a sensible reading of her email regarding Ms Stock’s unavailability to meet in person, that the Claimant was not happy about this. It is, I think, equally clear that the email invited Ms Stock to proceed on the basis of the timeline. It would have been better for Ms Stock to have explored other possibilities for an in-person meeting. But she cannot be criticised too harshly for proceeding as the Claimant, however reluctantly, invited her to.

[107]She accused Ms Stock of “completely disregarding my comments around applying for other roles in DLG e.g Birmingham or Bristol”. This comment is difficult to understand. The Claimant had been clear that she did not want to consider redeployment in Bristol or Birmingham.

[108]The email did not deal with the allegation of fabrication. The Claimant was cross-examined on this by Ms Gardiner. She said that the fabricated element was that it was made out that all she did was bank leads, and agreed with Ms Gardiner that the alleged fabrication related to Mr Hurst not having a clue what her job was.

[109]I do not accept that there was fabrication. It is, perhaps, forgivable that the Claimant should engage in such hyperbole, as she was clearly upset at the time. She appears to have focused her attention on the bank leads element of the rationale for the redundancy, and it may be that she did not take on board the other elements of the rationale, when they were – as I have found they were – communicated to her. I do not think that that was because of any shortcoming in the communication.

[110]On 23.12.2019, the Claimant emailed Ms Stock. Ms Stock replied that she was satisfied that Mr Hurst had understood her role, and sought to reassure the Claimant that the decision to make her role redundant had not been taken lightly, but was a result of the workload being diminished.

[111]The Claimant responded later that day. She asked to see a copy of the documentation that Mr Hurst had prepared relating to her/ her redundancy prior to starting the process. She made a formal Subject Access Request , asking to see her personnel, file, and correspondence between named individuals between identified dates. This was passed on to the employee data request team, who got in touch with the Claimant.

[112]I have already commented on Ms Stock’s statement. Towards the end of it, she says the following: “The final point that I would like to mention is that I understand that the above had resolved everything to the Claimant's satisfaction. I was therefore very surprised when I learned that the Claimant had issued Employment Tribunal proceedings.”

[113]By “the above”, Ms Stock referred to the agreement that the Claimant should be expressed as having been made compulsorily redundant, and an extension of 3 weeks to her final leaving date, to 13.01.2020.

[114]It is plain from the emails I have quoted on 16 and 20.12.2019 that the Claimant was far from content. Things had not been resolved to the Claimant’s satisfaction.

[115]Pressed on this by Mr Lewis-Bale, Ms Stock said that she felt the dispute was about the Claimant’s impression that Mr Hurst didn’t have a clear understanding of the role and responsibilities, whereas she had found that he did. She denied what is, I find, obvious on reading those emails – that the Claimant wasn’t satisfied, and was continuing to complain.

[116]In answer to questions from me, Ms Stock acknowledged that there were points with which the Claimant was not satisfied.

[117]Her resistance to acknowledge, when questioned by Mr Lewis-Bale, what was obvious, that the Claimant was plainly not satisfied, did Ms Stock no credit. Just as her statement appeared at times – although, as I have observed, she is perhaps not to be blamed for that – to engage in advocacy, her insistence that the Claimant had been satisfied smacked of advocacy, and unpersuasive advocacy at that.

[118]It is important that I not be sidetracked by this. Ms Stock was not an impressive witness. And there was room for improvement in her consideration of the grievance/redundancy appeal, in that she might have attempted to facilitate an in-person meeting. But I do not think she acted unreasonably in considering the grievance to be an appeal against redundancy. Although it was, perhaps surprisingly, only formulated openly as such on 20.12.2019, it is clear that the substance of what the Claimant was complaining about was the redundancy process. The requirement is that the process be fair, not one of perfection. I find that Ms Stock’s consideration of the Claimant’s appeal passes muster. It was fair. She considered what the Claimant said, conducted a fair -if improvable – investigation. She reached conclusions that were reasonably open to her.

[119]In his cross-examination of her, Mr Lewis-Bale suggested to Ms Stock that she had overlooked what he termed “one of the fundamental issues, whether or not the meetings took place”. Ms Stock disagreed. It is not, in fact, evident to me that Ms Stock did give significant thought to whether or not each of the alleged meetings happened. But that question seems to me to be much less important than Mr Lewis-Bale contends. What matters is the process as a whole, rather than whether a particular meeting happened on a particular date. I have made my findings on the meetings above, and I do not repeat them here.

[120]It follows that I find that the Claimant was fairly dismissed for redundancy.

[121]Both counsel argued their respective clients’ cases with considerable ability. They provided me with real assistance. I thank them for their help.