Mr C Highe v S P Crowther and Co Ltd: 1805243/2020

EMPLOYMENT TRIBUNALS

Case No 1805243/2020

Between

Mr C HigheClaimant

S P Crowther and Co LtdRespondent

Before

Employment Judge Brain

Date 24 June 2021

JUDGMENT

[1]Upon the claimant’s protected disclosure complaints: 1.1. The claimant’s complaint that he made a disclosure qualifying for protection under section 43B of the Employment Rights Act 1996 upon 2 April 2020 fails. It follows that: 1.2. The claimant’s complaint that he was subjected to detriments for having made a protected disclosure brought under section 47B of the 1996 Act fails and stands dismissed. 1.3. His complaint that he was unfairly dismissed for having made a protected disclosure brought under section 103A of the 1996 Act fails and stands dismissed. 1.4. His complaint that he was selected for redundancy because he had made a protected disclosure brought under section 105(6A) of the 1996 Act fails and stands dismissed.

[2]The respondent unfairly dismissed the claimant. Accordingly, the claimant’s complaint of unfair dismissal under sections 94 to 98 of the 1996 Act succeeds. 10.5 Reserved judgment with reasons – rule 61 1 March 2017

REASONS

[1]The parties’ evidence was heard over four days between 12 and 15 April 2021 inclusive. Unfortunately, this left insufficient time to receive the parties’ closing submissions. Accordingly, the parties were ordered to file and serve written submissions on or before 1 June 2021. The Tribunal deliberated in chambers on 3 June 2021.

[2]The Tribunal is grateful to Mr Greatley-Hirsch and to Mr Pochron for their very helpful and detailed written submissions. In the light of those submissions, considered in conjunction with the evidence which we heard, the Tribunal was able to reach the Judgment which is set out above. The Tribunal now gives reasons for the Judgment that has been reached.

[3]This case benefited from a case management preliminary hearing which came before Employment Judge Evans on 10 November 2020. A copy of Employment Judge Evans’ case management orders and summary is at pages 49 to 58 of the bundle.

[4]In his case summary, Employment Judge Evans records that this case is primarily about the claimant’s dismissal. The claimant says that he was selected for redundancy and/or dismissed because he had made a protected disclosure (that is to say, a disclosure which qualifies for protection pursuant to the provisions of section 43B of the 1996 Act). Alternatively, the claimant claims that the procedure which led to him being dismissed (if the dismissal was by reason of redundancy) was unfair. In addition, the claimant contends that he was subjected to several detriments for having made a protected disclosure. The respondent’s defence is that the claimant was fairly dismissed by reason of redundancy and that he was neither dismissed nor subjected to any detriment for having made a protected disclosure. The Tribunal shall consider the issues to which this case gives rise in further detail further on in these reasons.

[5]The Tribunal shall firstly make its findings of fact. We shall then go on to consider the relevant law and the issues in the case. We shall then determine the issues in the case, reaching our conclusions by application of the relevant law to the findings of fact in order to determine the issues.

Findings of fact

[6]The Tribunal heard evidence from the claimant. We heard evidence on behalf of the respondent from the following witnesses: 6.1. Steven Crowther. He is the managing director of the respondent. 6.2. Stephanie Moore. She is the respondent’s practice manager. 6.3. Jill Jones. She is a HR consultant and co-owner of Crowther People Solutions Limited. (Mrs Jones said (in paragraph 3 of her witness statement) that Mr Crowther and his wife own the respondent. Jill Jones and Mr Crowther jointly own Crowther People Solutions Limited which is part of the same group but which trade separately).

[7]The respondent is a firm of chartered accountants based in Huddersfield. 10.5 Reserved judgment with reasons – rule 61 2 March 2017

[8]The claimant worked for the respondent from 10 April 2006 until 28 August 2020. He worked for the respondent in the capacity of an accountant. The claimant holds the AAT accountancy qualification. ‘AAT’ stands for Association of Accounting Technicians. He has held his AAT accountancy qualification from around 2001.

[9]Mr Crowther’s letter addressed to the claimant offering him a post is in the bundle at page 305. This is dated 8 March 2006. It is headed “accounts senior”. That was the position offered by Mr Crowther to the claimant. The claimant accepted the offer on 12 March 2006 (page 312).

[10]A significant issue in this case relates to the seniority of the claimant. The respondent’s pleaded case is that the claimant “undertook senior responsibilities as part of his role, this included file reviews, work planning, billing, progress chasing, mentoring trainees and quoting for new clients. These roles were separate to members of the accounts team who were responsible only for the preparation of accounts.” (The Tribunal refers here to paragraph 6.2 of the grounds of resistance). In paragraph 7, the respondent goes on to plead that, “for the avoidance of doubt, the roles, duties and responsibilities of the senior accountant role were manifestly different to that of the other members of the accounts team. This, quite properly, put the claimant into a unique pool.”

[11]The claimant says about the term “accounts senior” (in paragraph 2 of his witness statement) that, “This reflects the language at the time. It was not a senior role in the sense of structure, prestige or responsibility. I wasn’t at that stage when I joined the team. I carried out the job of an accountant, in the same way that my colleagues did”. The claimant then went on to say, in paragraph 3 of his witness statement, that he worked in the position of accounts senior for nine years before he was promoted.

[12]In paragraph 4 of his witness statement the claimant says, “During those nine years before I was promoted, the use of terminology changed. “Juniors” became trainee accountants and “seniors” became accountants. I was referred to as an accountant internally and to clients”.

[13]This aspect of the claimant’s evidence appears to be uncontroversial. At any rate, it was not challenged by Mr Pochron during cross-examination. Further, Mr Greatley-Hirsch put it to Mr Crowther that the nomenclature changes over time and the distinction between “accounts senior” and “accounts junior” was, as the claimant had said, simply a demarcation by way of qualification. Mr Crowther said that in fact the accountants working for him are still designated “accounts senior” or “accounts junior” as the case may be. There was no suggestion by Mr Crowther that the designation of the claimant as “accounts senior” upon his appointment and in the nine or so years that immediately followed denoted any senior responsibilities in role and no dispute that the claimant was simply carrying out the job of an accountant.

[14]In paragraph 6 of his witness statement the claimant says, “After nine years I was promoted to accounts manager, which was a genuine move to a senior role. The management role required me to have line manager duties and responsibilities for the team of four accountants, Sam Hewitt, Kristen Lee, James Taylor and Ben Gillman. I still carried out the accounts work but I also planned and reviewed the work of the team. I held this position for six months but I didn’t like the transition to management. I was awarded a pay rise with a 10.5 Reserved judgment with reasons – rule 61 3 March 2017 value of between £1500 to £2000. I can’t remember the exact amount because the wage slips were paper copies and I no longer have them. The additional work required a disproportionate increase in my hours of work and, more importantly to me, the relationship with my colleagues declined”.

[15]In paragraph 7 of his witness statement the claimant explains that, following discussions with Mr Crowther, it was agreed that the claimant would step down from his managerial role. He says that it was agreed that he could “retain the higher salary despite stepping back down to the role of accountant. I appreciated this and at that point I believed that we had a good working relationship”.

[16]The management of the accountancy team was taken over by Lee Kaznowski. The claimant added, in paragraph 8 of his witness statement that, “When I was promoted to manager my charge out rate was increased. When I stepped back down again Steve decided to keep my charge out rate at the higher rate”.

[17]Due to staff turnover, the claimant stepped back to the management role upon a temporary basis between June 2018 and towards the end of 2018 when a new accounts manager joined the respondent.

[18]The new accounts manager employed in 2018 enjoyed only a short career with the respondent. He left in the spring of 2019. The claimant therefore stepped back up again to the accounts manager role for several months. In July 2019, Deborah Stott started in the role of accounts manager whereupon the claimant reverted to his own role.

[19]In paragraph 10 of his witness statement the claimant complains that, “Deborah was slow and didn’t always get the tasks done. I was often asked to pick up what she had missed. I explained this to Stephanie Moore, the office manager, but I was told that Deborah would settle in and get faster so I agreed to carry on helping Deborah on a temporary basis. By the time we had reached February/March 2020, I just attended work planning meetings. Sometimes this had required three meetings per week, between 15 to 30 minutes each. Sometimes, it was one meeting on a Monday morning. It was getting to the stage where I wouldn’t have to attend those meetings by then. I also prepared a report for Deborah once a month in advance of the management meeting. This was also to help her. My requirement to do this was also coming to an end as she was getting to grips with the role. I had input on the work planning to be done, which usually took me half a day every month. I detailed this work in my email of 29 April 2020 page 195 of the bundle (points 1 to 4 at the bottom half of the page).”

[20]The Covid-19 pandemic of course impacted the UK in March 2020. Mr Crowther says in paragraph 4 of his witness statement that, “The Covid-19 pandemic has presented immense challenges to our business. Even before the first national lockdown was ordered on 23 March 2020, I knew that the business was entering unprecedented territory.” He goes on to say in paragraph 5 of his witness statement that, “In the weeks leading up to the lockdown, we were seeing a decline in new work coming into the business and were chasing clients in an attempt to bring in work. As it was clear that Covid19 was not going away any time soon and the reduction in work levels was likely to persist, I started to consider potential costs at cutting measures. I was extremely nervous about the impact of the pandemic on the business that I 10.5 Reserved judgment with reasons – rule 61 4 March 2017 had spent 25 years building.” The Tribunal accepts the respondent’s evidence that March 2020 was an extremely unsettling time.

[21]The Tribunal shall go into a little further detail about the sequence of events, but at this stage it is, we think, helpful to set out a brief chronology of events: 21.1. 23 March 2020 – the UK government ordered the first national lockdown. 21.2. 24 March 2020 – the claimant and other employees were furloughed under the Coronavirus Job Retention Scheme. 21.3. 27 April 2020 – the claimant was informed that his role had been put at risk of redundancy (pages 182 to 183). 21.4. 28 April 2020- the parties attended a first consultation meeting (pages 184 to 188). 21.5. 7 May 2020 – the parties attended a second consultation meeting (pages 222 to 226). 21.6. 26 May 2020 – the parties attended a third consultation meeting (pages 275 to 284). 21.7. 4 June 2020 – the respondent terminated the claimant’s employment upon 12 weeks’ notice (pages 322 to 323).

[22]The claimant’s email of 29 April 2020 (to which he refers in paragraph 10 of his witness statement cited above) was sent to the respondent the day after the first consultation meeting. In this letter, we can see the claimant making the same points (numbered 1 to 4) about the similarity of his role and that of the four other accountants to whom he refers in paragraph 6 of his witness statement (again cited above). The claimant put matters this way in his letter: 22.1. Planning out the future work to be done – this usually takes up to half a day out of every month. 22.2. Reviewing the accounts and bookkeeping teams time sheets on a Monday morning – this typically takes 30 minutes. 22.3. Holding three planning meetings a week with Steve Crowther and Deborah Stott, discussing current job stages etc – this typically takes between 15 and 30 minutes, depending on how busy we are. 22.4. Completing monthly accounts turnover spreadsheet – this typically takes between two and three hours – Deborah Stott has now started to do this and I have only completed it now if her workload requires me to do this”.

[23]He goes on to say in the letter that, “I do accept that I may from time to time review files, but since Deborah Stott started at Crowther’s, this has become more and more less frequent and as I have stated, 90 to 95% of my time is spent on accounts preparation and ad hoc client queries etc which would be expected for someone with my experience”.

[24]In evidence given under cross-examination, the claimant accepted that he had omitted progress chasing from the list of matters upon page 195. The claimant qualified his answer by saying that was a matter for Mrs Stott and that he would cease progress chasing once she had “settled in fully”. It was also suggested by Mr Pochron that the claimant did accounts invoicing. The claimant agreed 10.5 Reserved judgment with reasons – rule 61 5 March 2017 but said that that would only take “about two minutes”. He also mentioned that Mr Hewitt was undertaking that task as well. Mr Pochron put it to the claimant that he was also responsible for reviewing timesheets. The claimant accepted that he did so albeit he was undertaking this task alongside the bookkeeper Gemma Giles and Mrs Moore. The claimant added that this was another task which fell within the purview of Deborah Stott.

[25]In a letter sent to the claimant on 27 May 2020, the day after the third consultation meeting, Mr Crowther maintained that the claimant was spending far longer than five to 10 per cent of his time upon senior managerial tasks. The height of the respondent’s case appears to be (as Mr Crowther himself said in the letter at pages 299 to 302) that, “the figures you provide demonstrate that it is an average of 24 per cent of your work time not five per cent to 10 per cent”.

[26]It is not clear why Mr Crowther refers to the claimant as having provided the figures upon which basis he asserted that the claimant was devoting 24% of his time to non-chargeable tasks. The figures are in fact set out in a table sent by Mrs Moore to Mr Crowther on 4 May 2002 (pages 213 to 215).

[27]This lists the percentage chargeable time of nine employees (including Mr Hewitt, Mr Lee, Mr Taylor and Mr Gillman). This is an assessment of the percentage of their working day for which chargeable time has been recorded between July 2019 and January 2020.

[28]The percentage figures are: 28.1. Mr Gillman – 83% 28.2. Mr Hewitt – 86% 28.3. Mr Taylor – 87% 28.4. Mr Lee – 94% 28.5. The claimant – 76%

[29]It was put to Mr Crowther in cross-examination that the claimant has never disputed that a percentage of his time was spent undertaking management duties. It was suggested to Mr Crowther that no one has achieved 100% of their time doing chargeable work. Mr Crowther fairly accepted the proposition that there will inevitably be some non-chargeable time. It was then suggested to Mr Crowther that the respondent had conflated the claimant’s nonchargeable hours with his managerial hours. This was a point put to Mr Crowther by the claimant in the third consultation meeting (page 276).

[30]The claimant’s point, essentially, was that job similarity could only be determined by stripping out the non-chargeable hours from each employee and not by using a fictional baseline of 100% chargeability. It was suggested therefore that upon this basis the claimant’s average figure of 76% of chargeable hours when compared with Mr Hewitt’s figure of 86% would put the claimant’s job as 88% similar to Mr Hewitt’s. It was also put by Mr GreatleyHirsch that a fairer figure would be arrived at by stripping out July, August and September of 2019 as this was the period where the claimant devoted more of his time to the induction of Deborah Stott. It was suggested therefore that a fairer comparison would be to look at October, November and December 2019 and January 2020. Upon that basis, the proportion of chargeable hours 10.5 Reserved judgment with reasons – rule 61 6 March 2017 between October 2019 and 2020 rises to 80% in the case of the claimant. Mr Hewitt’s remains at 86%. This would amount to a 93% job similarity.

[31]Mr Crowther explained that Mr Hewitt is a trainee chartered accountant. He said that there are things which he has to do upon his training project as required by the Institute of Chartered Accountants. The significance of this observation was not explained by Mr Crowther for the benefit of the panel. However, it appears that the point being made is that Mr Hewitt’s nonchargeable time was greater than that of Mr Gillman, Mr Lee and Mr Taylor. That said, Mr Crowther said that Mr Taylor is undertaking chartered exams, as is Mr Hewitt.

[32]In any case, the percentages of non-chargeable time recorded by the other three in comparison to Mr Hewitt (and excluding the claimant) does not appear to be significantly different. The same point made by the claimant’s counsel would therefore hold whichever of the other four members of the accountancy team was taken by way of comparative exercise.

[33]The respondent also pointed to several other features in an attempt to demonstrate the claimant’s seniority within the respondent’s organisation. The first of these was that the claimant was described as a senior accountant upon the respondent’s website. Mr Crowther said that the claimant had approved this nomenclature but was unable to produce any corroborative evidence that the claimant was consulted about his website profile. The claimant’s evidence is that Caroline Delee was described as a “senior bookkeeper” by way of recognition that she had worked for the respondent for a long time and that it was upon that basis that the claimant came to be described upon the website as a “senior accountant”. Essentially, the claimant’s case is that these were no more and no less than marketing tools.

[34]Mr Crowther accepted, under cross-examination, that there is no contractual document referring to the claimant as “senior accountant”. He fell back upon the description of the claimant as “accounts senior” in the offer letter of 8 March 2006. For the reasons already given by the Tribunal, such does not have the imprimatur of seniority which Mr Crowther now seeks to ascribe. Mr Crowther said during cross-examination that, “some of our documents are not up to date”. In all the circumstances, the Tribunal concludes that the website designation of the claimant adds no weight to the respondent’s case of the claimant holding a senior position.

[35]The second issue upon which the respondent relied was that the claimant was in salary band 3. The salary bands may be seen in the document at page 210. Roles within band 3 include that of “senior accountant”. The claimant’s salary is within the salary band ascribed for that role along with an entitlement to participate in a car salary sacrifice scheme.

[36]The claimant accepted that he was aware of the salary bandings. However, he said that he was not aware how the bandings had been arrived at. There was no evidence from the respondent of any kind of job evaluation.

[37]Mr Crowther said that there “will have been” consultation about the bands. No evidence of consultation upon this was produced before the Tribunal.

[38]Mr Crowther accepted that the claimant had had the benefit of a company car (for which the claimant paid through salary sacrifice) from 2008 and after 10.5 Reserved judgment with reasons – rule 61 7 March 2017 stepping back down to the accountancy role in or around 2015 had maintained the higher salary notwithstanding that at that stage he was not in band 3.

[39]In the letter which Mr Crowther sent to the claimant on 11 May 2020 at pages 235 -236 (following the second consultation meeting) he pointed out that the claimant’s salary included the “band 3 manager grade car allowance”. Mr Crowther said that this letter was in error and that the reference should have been to “band 3 senior”.

[40]This was surprising evidence given that the letter at pages 235-236 was directed at demonstrating through evidence the claimant to be a band 3 manager within the respondent’s structure. Indeed, the claimant’s managerial role was, upon the respondent’s case, what set the claimant apart from the other four members of the accounts team. Indeed, in preparation with the second consultation meeting, Jill Jones advised Mr Crowther to obtain evidence “to back up our argument that [the claimant] has a management role”. We refer to page 216. Mrs Jones was urging upon Mr Crowther the need to demonstrate that the claimant had a management role “with hard facts”.

[41]Mr Crowther’s apparent concession that there was an erroneous reference to the claimant being a “band 3 manager” in the letter at page 235 weakens to a significant degree the respondent’s case that the claimant was indeed a manager. Notwithstanding Jill Jones’ urgings, Mr Crowther was unable to demonstrate “with hard facts” that the claimant had a managerial role and indeed, as has been said, gave evidence quite to the contrary when taken at page 235. Accordingly, the salary banding and car issue carry no weight in persuading the Tribunal that the claimant had a managerial role.

[42]The next issued relied upon by the respondent is the organisational chart which is at page 181. None of the respondent’s witness statements sought to explain the provenance of this document. However, in evidence, Mr Crowther told us that this was the work of Dominic Walker, a trainee accountant. It was prepared by him as part of a college project. There was no evidence that any of the respondent’s employees were consulted about the chart. This Mr Crowther candidly accepted. He said that, “the chart was with me. I have not said it’s been approved by individuals”.

[43]During cross-examination inaccuracies with the chart were pointed out to Mr Crowther. In particular, Caroline Delee appears on the chart only as a bookkeeper whereas upon the website and (as described by both Mr Crowther and Mrs Moore), held the post of senior bookkeeper. When this inaccuracy was pointed out to Mr Crowther, he said that he could not deny the point being made by Mr Greatley-Hirsch.

[44]Given that the organisational chart was prepared for a student’s college project, it contains material inaccuracies and was not created in consultation with the employees the Tribunal’s conclusion is that this document too adds little weight in favour of the respondent’s contention that the claimant held a senior management position. It is a document to which little credibility may be attached.

[45]Mr Crowther suggested that it was his practice to undertake appraisals of the most senior members of the organisation. However, the claimant’s appraisals for 2018 and 2019 were conducted by Mrs Moore. There was no evidence before the Tribunal that Mr Crowther had ever conducted the claimant’s 10.5 Reserved judgment with reasons – rule 61 8 March 2017 appraisal. This is corroborative of the claimant’s case that he did not hold a management position.

[46]The respondent sought to set some store by the fact that the claimant was charged out at a higher rate than were the others. However, such must inevitably be the case given the claimant’s long experience. Such does not necessarily indicate him undertaking a management role. We have already observed that his charge out rate was in fact increased when he took on the management role in or around 2015. That charge out rate was not reduced when the claimant reverted to his accountancy role.

[47]The respondent also sought to rely upon the claimant’s job description. A job description for the role of “accounts manager” is in the bundle at page 309. It appears from the document at page 310 that this was created by Mr Kaznowski in June 2015. The job description at page 205 describes the claimant as “senior accountant”. The key duties are the same within both documents. Mr Crowther and Mrs Moore both accepted that she (Mrs Moore) had created the document at page 205 on 30 April 2020.

[48]On 5 May 2020 the claimant pointed out to Mr Crowther that the job description bearing the senior accountant job title was created on the morning of 30 April 2020 (page 219-220). The claimant was plainly questioning the provenance of the document presented to him by the respondent and purporting to show that he held the role of senior accountant. Mr Crowther accepted that the document presented to the claimant at around this time was misleading.

[49]During the second consultation meeting held on 7 May 2020, the issue of the provenance of the document arose again. Mr Crowther accepted that he knew at that point that Mrs Moore had created the document on 30 April 2020, copying it from the one created by Mr Kaznowski in 2015. The claimant said that he had never seen the document before. Mr Crowther said that “it’s been around since Lee was here, that document was produced by him.” Mr Crowther went on to say that he was able to assure the claimant that the document had not been fabricated and was the original. Under crossexamination, Mr Crowther acknowledged that the job description presented to the claimant in April 2020 was “not the correct document”.

[50]In an email which followed on from the second consultation meeting and which was dated 11 May 2020 (pages 233-236), Mr Crowther continued to maintain that the job specification with which the claimant had been presented was the one produced by Mr Kaznowski.

[51]Mr Crowther continued to maintain that the document with which the claimant had been presented was that prepared by Mr Kaznowski when the issue was discussed during the course of the third consultation meeting.

[52]On 2 June 2020, Mr Crowther wrote to the claimant about this matter (pages 307-310). He said that “On the 30 April version there was an edit on your job title from accounts manager to senior accountant. This edit was made to align with other documents being assessed. As you can see all other aspects of the job description including your responsibilities were not update”.

[53]It was put to Mr Crowther during cross-examination that the document prepared by Mr Kaznowski was inaccurate in any case because in 2015 the claimant did not hold the role of accounts manager. The Tribunal considers that the claimant’s counsel may have been in error in pursuing this line of 10.5 Reserved judgment with reasons – rule 61 9 March 2017 cross-examination. As we have observed already, the claimant said that he took up the role of accounts manager around nine years after he started his employment with the respondent. That would be around 2015 and therefore the chronology does fit. Upon that basis, the Tribunal accepts that the document prepared by Mr Kaznowski was genuine (albeit that the one created by Mrs Moore was not).

[54]The issue of the job description does the respondent little credit. The respondent misled the claimant on a number of occasions prior to 2 June 2020. The job description at page 205, given the circumstances, carries no weight in seeking to persuade the Tribunal of the seniority of the claimant.

[55]In summary, therefore, the Tribunal finds that: 55.1. The claimant held the role of accountant. 55.2. By virtue of his seniority and experience of stepping up to a managerial role from time to time, the claimant undertook duties other than pure accountancy. These duties are well summarised by the claimant in paragraph 10 of his witness statement and in the letter at page 195 (in conjunction with the points conceded by the claimant in crossexamination to which we referred in paragraph 24 above). 55.3. The non-accountancy roles took up a small proportion of the claimant’s time. The evidence shows this to be no more than 10%.

[56]We now turn to the leading up to the claimant’s dismissal. As has been said, the Tribunal accepts that Mr Crowther was acutely anxious about the economic impact of the pandemic upon his business.

[57]In paragraph 6 of his witness statement Mr Crowther says that, “As part of my exploration of cost cutting measures, I considered the possibility of making redundancies. In the first instance, I began reviewing the roles undertaken by each employee to determine whose role would be potentially at risk. I asked Steph Moore, practice manager, to send me each employer’s contracts so that I could undertake this review” (pages 87 to 90).

[58]In his email to Mrs Moore of 19 March 2020 (page 89) Mr Crowther commented, “I am just looking at our options if people need to go on short time if this whole thing gets worse as I need to work out my numbers etc.” There was no documentary evidence of Mr Crowther’s review of the roles undertaken by each employee. He asked Steph Moore in the email of 19 March 2020 whether everyone has the same contract with the respondent. If so, then plainly the contracts could not in and of themselves be a basis to distinguish between the employees. Mr Crowther resorted to saying in evidence that the “business is small enough. I know what everyone does. I’m very hands on. The information was in my head” when challenged upon this issue. It was not clear from the documentary evidence the point at which Mr Crowther decided to place the claimant at risk of redundancy.

[59]On 23 March 2020, Mr Crowther sent an email to all members of staff (page 91). He said, “As discussed, if we are not entitled to the government wages support scheme then we will have to consider going on to a shorter working week of three days per week with effect from next week. This will ensure that the cash reserves that are within the business will continue to pay wages and it is definite that work will dry up for the practice very quickly and 10.5 Reserved judgment with reasons – rule 61 10 March 2017 as a consequence so will the income”. Mr Crowther’s email of that date was sent following a meeting earlier the same day.

[60]The UK went into the first national lockdown on 23 March 2020. At around this time, the Chancellor of the Exchequer had announced the Coronavirus Job Retention Scheme (commonly referred to as ‘the Furlough Scheme’). Naturally, Mr Crowther turned to Jill Jones for advice about the operation of the CJRS. She proffered advice on 24 March 2020 (pages 93 to 95).

[61]Jill Jones forwarded to Mr Crowther a summary which she had seen upon a website which referred to the government having “released a ground breaking new Coronavirus Job Retention Scheme on Friday 20 March 2020”. The excerpt from the website copied by Jill Jones to Mr Crowther said that the scheme was to run for a period of three months. That is to say, the CJRS was originally projected to run until around the middle of June 2020. In fact, on 12 May 2020 the furlough scheme was extended to the end of October that year.

[62]Mrs Jones also forwarded to Mr Crowther a letter which she had sent to a school client of hers. This included a paragraph to the effect that while at home, employees may do voluntary work for the employer. We now know, of course, that it is impermissible to do voluntary work for an employer that has placed an employee upon furlough. Such employees may do other voluntary work or take another job with a different employer.

[63]The Tribunal makes no criticism of Mrs Jones for giving Mr Crowther incorrect advice about the operation of the CJRS. At the end of March 2020, matters were moving very quickly and the Tribunal takes judicial notice of the fact that there was a great deal of confusion and uncertainty about the operation of the furlough scheme. The Tribunal is satisfied that Jill Jones was acting in good faith when she advised Mr Crowther of her understanding of the scheme’s operation.

[64]Mr Crowther says in paragraph 10 of his witness statement that, “When I found out that the respondent was eligible for support under the furlough scheme, I withdrew plans to reduce to a three day week and put most employees on furlough leave. In deciding who to place on furlough leave, I was guided by the interests of the business”. He goes on in paragraph 11 to say that, “One of the employees who I asked to carry on working whilst others were on furlough was Sam Hewitt in the accounts team. The claimant was unhappy about this decision, probably because he was more senior than Sam. However, I considered that Sam was the best person to carry out the work that needed doing for a particular client at the time. I made a similar decision in the bookkeeping team, when I asked an employee with two years’ experience to carry on working while two others with four and 10 years’ experience were placed on furlough leave.” Mr Crowther also adds in paragraph 12 of his witness statement that one of the respondent’s employees (Thomas Devitt), did not qualify for support under the furlough scheme. His employment was terminated immediately.

[65]The Tribunal was presented with a copy of the letter addressed the claimant of 24 March 2020 which placed him upon the furlough scheme. Perhaps surprisingly, this was not in the hearing bundle. This reads as an instruction from Mr Crowther to the claimant that he is to be placed on furlough. Of course, it is now common knowledge that an employee may only be placed 10.5 Reserved judgment with reasons – rule 61 11 March 2017 upon furlough with their agreement. Again, however, the Tribunal appreciates the fast moving and pressured environment in which the parties were operating towards the end of March last year and the confusion that pertained at the time as to whether an employee’s consent was required.

[66]Mr Crowther instructed all furloughed employees to return any books or records along with any of the respondent’s property by 26 March 2020. The letter concluded with a request for the employee to signify consent to the furlough arrangement. The Tribunal accepts therefore that notwithstanding the instructional nature of the furlough letter, the respondent was making genuine efforts to obtain the consent of the employees (albeit perhaps retrospectively).

[67]The philosophy behind the furlough scheme was explained very succinctly by Jill Jones in the email of 24 March 2020. It was there explained that the “scheme is designed to operate as an alternative to large scale layoffs and redundancies across the country and ensure that business can carry on as usual once the situation allows. It would therefore be appropriate to strongly consider this as an alternative to redundancies to ensure no unfair dismissals are made.”

[68]In cross-examination, this point was put to Mr Crowther. Naturally, he agreed with the philosophy behind the furlough scheme but maintained that he “felt that the operation [of his own business] could be streamlined” and that “Covid gave me the opportunity to look at the business”. It was under this line of cross-examination that Mr Crowther said that the decision to consult with the claimant about redundancy and ultimately to dismiss him for it was taken at some point “between 19 March and 27 April”. As has already been observed, the Tribunal received no objective evidence of Mr Crowther’s thought processes at this time or rationale for his decision making. This may be considered surprising given his field of expertise.

[69]On 25 March 2020, the claimant returned the files to the office in accordance with Mr Crowther’s request in the letter of 24 March. The claimant says in paragraph 23 of his witness statement that, “when I arrived at the office everyone was there”. There was a general discussion about the situation and then the employees left the premises. The claimant then remained at home in line with lockdown requirements.

[70]The claimant’s evidence (in paragraphs 26 and 27 of his witness statement) is that on 31 March 2020 he received a telephone call from Mr Crowther. The claimant is able to date the telephone call accurately because it was received upon the same day as a gas explosion in the claimant’s street. The claimant says he returned Mr Crowther’s call at around 1 o’clock on 31 March. The claimant says that Mr Crowther said that he was “going to be looking at the staff plan that afternoon to see what account jobs could be worked on whilst the staff were on furlough leave and that if it was ok he’d call me back tomorrow to go through them with me. He asked me to then speak to the team and get them into the office to distribute the work out”.

[71]There then followed a further call on 1 April 2020. The claimant says in paragraph 28 that Mr Crowther assigned three clients for each member of the accounts team to work upon. The claimant said that Mr Crowther said to him that, “Under no circumstances must anyone contact the client that they are working on, if they have any queries, they must email me and I will ask them, 10.5 Reserved judgment with reasons – rule 61 12 March 2017 we can’t be seen to be working when you are on furlough and there can be no paper trail”.

[72]Mr Crowther accepted, in evidence given in cross-examination, that he had discussed matters with the claimant on 31 March and 1 April 2020. He said that he “might have” told the claimant that he wished there to be no paper trail.

[73]The claimant then exchanged texts with Mrs Moore (on 1 April 2020). The purpose of the messaging was to discuss arrangements for the following day and the distribution of work.

[74]The claimant had in fact undertaken some work for a client on the afternoon of 1 April 2020. This led to the following exchange of texts (at pages 107 and 108): The claimant – what do I do about my time today? I’ve just revised all [the client’s] accounts and sent them to Steve. Mrs Moore – put it on your timesheet as usual. The claimant – are we allowed? Steve says he doesn’t want a paper trail. Mrs Moore – yes we still need time against the client. Most companies don’t have timesheets so HMRC won’t want to see those. The claimant - ok

[75]Using the WhatsApp group that had been set up, the claimant got in touch with those to be assigned work on 2 April 2020. The messages are at pages 115 to 117.

[76]In paragraph 36 of his witness statement, the claimant says that he spoke to Mrs Moore on the telephone on the morning of 2 April 2020. The claimant has produced evidence in the form of a screenshot of his car tracking. This document is at page 113. In any case, Mrs Moore did not deny speaking to the claimant on the morning of 2 April 2020. We accept that a conversation took place.

[77]The claimant recounts the conversation as follows: (by reference to paragraph 36 of his witness statement) “Me – I’m on my way to the office to sort out the work to do and distribute to the lads. Mrs Moore – don’t forget that I need you to process that card payment for me, I’ve told the client you’ll be calling. Me – no I won’t forget. I shouldn’t even be going into the office. It’s illegal to be working whilst we are on furlough and we shouldn’t be doing it. You even said to me on the Tuesday afternoon that we had to stop work immediately, close everything down and do no further work. Mrs Moore – no one will know, just make sure that no one emails the clients any queries, all queries have to go through Steve. Me – I still say we shouldn’t be doing it, but you know what he’s like if we refuse”.

[78]Again, by reference to his car tracker, the claimant is able to time his return journey home. He left the office at 12.16pm around three hours after his arrival. The screenshot of the tracker for the return journey is at page 114. 10.5 Reserved judgment with reasons – rule 61 13 March 2017 The claimant had undertaken work for the respondent during those three hours on the morning of 2 April 2020.

[79]During his three hours in the office, the claimant had seen the rest of the team to whom work was going to be distributed. Naturally, discussion had turned to remuneration. The claimant had intimated in the WhatsApp group (at page 115) that this was to take the form of time back rather than monetary payment.

[80]Upon his arrival home early in the afternoon of 2 April 2020, the claimant initiated further text messages with Mrs Moore. These are at pages 111 and 112. They are accurately reproduced in paragraph 45 of the claimant’s witness statement which we now set out. (Each line represents a separate text message): “Me – the only thing about doing these jobs is they will be no jobs to come back to. They also asked if we were doing em for free – I couldn’t answer as I don’t know. Steph – nobody is being paid extra so if they don’t want to do it then stop. Me – I know no one is being paid. Steph – well then yes it’s for free! Me – think it was more if they’re getting time back. Steph – no it’s to fill the time if they want something to do. They don’t have to do them. Nobody does anything for nothing anymore! Always want every minute back! Me – ok I will let them know. I’ll let you know if anyone doesn’t wanna do it. Steph – ok. I’m not getting my time back for last week and that was way more. Just spoke to Steven and he says all of you have to stop and nobody is to do anything. Me – Eh seriously. Steph – yea.”

[81]The claimant says that he communicated the message to stop working to “the lads” via the WhatsApp group. Copies of the messages are at pages 118 to 123.

[82]Mrs Moore’s account is at paragraphs 4 to 11 of her witness statement. She too refers to the text messages within the bundle. She says that after receiving the claimant’s text in the afternoon of 2 April 2020, she had spoken to Mr Crowther to let him know that the claimant had raised a question about remuneration. Mrs Moore denied that the claimant had said that the respondent was operating the furlough scheme illegally during the conversation that morning. Mrs Moore says the following in her witness statement: “(7) After my text conversation with the claimant I called Steve Crowther, managing director to let him know that Chris had asked whether the account 10.5 Reserved judgment with reasons – rule 61 14 March 2017 team would be paid for their work or whether they’d received the time back at a later date. (8) I think Steve was concerned about the uncertainty in the furlough rules so he asked me to tell the accounts team to stop working whilst they investigated the rules further. I relayed Steve’s message to Chris and the rest of the team. This was a calm and collected conversation. (9) At the time, furlough leave was an entirely new concept and there was limited guidance available setting out what an employer’s obligations were during furlough leave. It was genuinely understood that employees were not allowed to work for their employer during furlough leave, but the guidance contained an exception for volunteers. (10) Steve had mistakenly believed that this meant that employees could volunteer for their own employer. On realising its error, the respondent paid back any money to the government that had been claimed in error. (11) As above, all I told Steve was that Chris had been asked about whether staff were getting paid. Chris never mentioned anything to me about this being illegal.”

[83]The Tribunal accepts that there had been a misunderstanding upon the issue of voluntary work. We have already referred to Jill Jones’ advice to Mr Crowther and that the advice was given in good faith albeit that it was incorrect. The Tribunal also accepts that the respondent has repaid the overclaimed furlough payments to HMRC.

[84]The Tribunal accepts that Mrs Moore spoke to Mr Crowther after the claimant raised the issue of remuneration with her. The text exchange at page 112 shows three consecutive messages from Mrs Moore to the claimant towards the end. This signifies an end to the text conversation between them followed by the resumption upon the initiative of Mrs Moore. This therefore afforded Mrs Moore the opportunity of speaking to Mr Crowther. The pattern of the text messages is consistent with Mrs Moore’s evidence. Mr Crowther says that during the discussion with Mrs Moore on the afternoon of 2 April, he instructed her to tell the claimant (and in turn for him to tell the others) that work must cease immediately pending Mr Crowther obtaining further clarification of the operation of the furlough scheme. Again, that evidence is consistent with Mrs Moore’s second substantial message upon page 112.

[85]The sequence of events on 2 April 2020 has further significance upon the question of whether or not the claimant mentioned illegality to Mrs Moore on the morning of that day. It is noteworthy that when the claimant raised the issue of remuneration, Mrs Moore immediately reverted to Mr Crowther. In the circumstances, we accept Mrs Moore’s evidence that had the claimant mentioned over the telephone that the furlough scheme was being operated illegally by the respondent she would have instantly alerted Mr Crowther to that allegation. Therefore, for us to accept the claimant’s version of events would entail us making a finding that Mrs Moore acted inconsistently, alerting Mr Crowther to a potential issue upon the question of remuneration while at the same time ignoring the far more serious issue of an allegation of illegality. Such is simply not credible.

[86]We accept the claimant’s account that he had been instructed by Mr Crowther to do work upon client files but not leave a paper trail. That is consistent with 10.5 Reserved judgment with reasons – rule 61 15 March 2017 the tenor of Mrs Moore’s text messages at pages 107 and 108. The tenor of those texts is entirely consistent with Mr Crowther having issued an instruction not to create a paper trail. Further, Mr Crowther accepted that he “might have” issued such an instruction (see paragraph 72).

[87]There were no significant developments between 2 April and 27 April 2020. The claimant remained on furlough.

[88]On 27 April 2020, Mr Crowther telephoned the claimant. He informed the claimant that his role was at risk of redundancy. Mr Crowther sent the claimant a letter the same day inviting him to attend a first consultation which was to be held on 28 April 2020. The letter is at pages 182 and 183.

[89]In the letter, Mr Crowther said, “As I explained, due to the Coronavirus crisis a redundancy situation has arisen within the firm and I require you to attend a meeting to discuss the fact that your role is at risk of redundancy. We need to reduce costs due to a projected downturn in the volume of business. I have looked at restructuring the way we plan work, manage quality and mentor trainees and I feel your duties in this area can be absorbed into the workload of myself and Deborah Stott. We consider your role in a pool of one. Your colleagues have been informed that there is a redundancy situation within the firm, but I have reassured them that they are not directly affected.” The claimant was reassured that no final decision had been taken.

[90]The first consultation meeting duly took place on 28 April 2020. The notes of the meeting are at pages 184 to 188. The meeting was attended by Mr Crowther, Mrs Jones (acting as a note taker) and the claimant.

[91]All of the consultation meetings were audio recorded. The transcripts within the bundle are uncontroversial. The claimant observed that the transcripts do not portray the atmosphere at the consultation meetings. The Tribunal accepts the claimant’s case that there was a tense atmosphere which is probable given the circumstances.

[92]The claimant was told that his role was at risk of redundancy. He was invited by Mr Crowther to make representations. He said, “My role I only see as being between 5 to 10% different to the rest of the accounts team. Once I stopped being the manager I went back to join the accounts team and I have found myself doing bits of it again as various managers have left and to help Deborah out. These last months I’ve hardly reviewed any files or anything. All I’ve been doing is the job planning stuff, so only between 5 to 10% of my work is different to anyone. I don’t understand why there is only me being considered for it when I believe 90% of my work is exactly the same as Sam, James, Kristen and now Ben as well”. The claimant therefore put the issue of the similarity of roles four square within the consultation process. This is and was a position which he has consistently maintained.

[93]On 28 April 2020, Steph Moore emailed Mr Crowther (pages 189-193). She identified seven items which she maintained the claimant undertook which those within the accounts team do not. These items are: 93.1. Management of accounts workflow and distribution of accounts jobs to the team. 93.2. Accounts file reviews. 93.3. Management accounts. 10.5 Reserved judgment with reasons – rule 61 16 March 2017 93.4. Accounts invoicing. 93.5. Monthly reporting for accounts invoiced each month compared to the previous year (for use in the manager’s meetings). 93.6. Assisting with the annual fee forecast for accounts expected fees and the timing of fees. 93.7. Audit work, when requested.

[94]On 29 April 2020, the claimant wrote to Mr Crowther (pages 195 to 197). He reiterated his point that his role is between 90 to 95% the same as every team member to whom he refers. The Tribunal has referred to this letter already and the points made by the claimant.

[95]For the reasons already given earlier, the Tribunal finds as a fact that the preponderance of the claimant’s work (around 90 to 95%) was indeed the same as that of the other members of the accounts team.

[96]In the letter of 29 April 2020, the claimant raised several further issues. He recorded that he had said in the first consultation meeting that the furlough scheme was due to run till 30 June 2020. He pointed out that Mr Crowther could not say with any certainly that there was going to be a downturn in the volume of business. He suggested that cost savings be sought in other areas including bookkeeping and the VAT team.

[97]The claimant also raised an issue about remuneration for the work which he undertook on 1 April and 2 April 2020. The claimant’s request to be paid for that work precipitated a strong reaction for Mr Crowther.

[98]In paragraph 37 of Mr Crowther’s witness statement he says that, “I was concerned about the claimant’s references to the work that he had already carried out during furlough leave. By including this request in an email about the redundancy process, despite it being a completely separate matter, I interpreted this as the claimant threatening the respondent on the basis that the work was not reducing or something along those lines. This is a real expression of human emotion at a stressful and pressured time”.

[99]The contemporaneous correspondence shows that on 30 April 2020 Mr Crowther emailed Mrs Moore. The email is at page 201. Mr Crowther said that the claimant “has wound me up like you wouldn’t believe. Couldn’t bloody sleep last night”. Mrs Moore responded immediately to ask if Mr Crowther had heard from the claimant again. Mr Crowther then replied to say that he had not but that, “It is the furlough issue that he has raised in his letter which is a threat and nothing to do with his potential redundancy. I am honestly shaking with anger but will calm down before we speak!!!!”

[100]At 2.15 in the morning of 30 April 2020, prior to the email exchanges just referred to, Mr Crowther had prepared a memorandum. This document is at page 202. Plainly, Mr Crowther had been turning over in his mind the issues raised by the claimant during the first consultation meeting. One of the points of the memorandum was “how to compare [the claimant] against others”. This plainly is a reference to comparing the claimant against the other members of the accounts team. Mr Crowther noted a number of the issues with which the Tribunal has already dealt. These are salary banding, the company car, the differences in salary, the job descriptions, the organisational chart and appraisals. Mr Crowther also noted the issues of billing, staff management 10.5 Reserved judgment with reasons – rule 61 17 March 2017 and the website. He wished to “look at everything on the server to establish senior position”.

[101]He also made a note to himself to redo the furlough calculations. The Tribunal accepts that the respondent did so and, as we have said, acted in good faith at all times in the operation of the furlough scheme.

[102]Mr Crowther recorded that in the memorandum he was unable to consider a salary cut as that would not produce enough of a saving. In our judgment, this is a telling reference. In reality, Mr Crowther’s actions were motivated by ways to cut costs. In evidence during cross-examination he said, “I know my breakeven point and what my costs are. It’s my business.”

[103]The Tribunal notes that the claimant did not raise with Mr Crowther, either during the course of the first consultation meeting or in his follow-up email, that he had made a protected disclosure on 2 April 2020. Raising the issue of being remunerated for the work undertaken on 1 and 2 April 2021 is not the same as providing Mr Crowther and the respondent with information that the furlough scheme was being operated illegally. This finding reinforces the Tribunal’s judgment that the claimant did not provide such information during the course of the telephone discussion with Stephanie Moore on the morning of 2 April 2021.

[104]Indeed, Mr Crowther’s reaction to the claimant’s request to be remunerated for the work undertaken on 1 and 2 April 2020 is further corroboration of the Tribunal’s finding. Mr Crowther reacted very forcibly and emotionally to the claimant raising the issue of remuneration in the claimant’s letter of 29 April 2020. Such was Mr Crowther’s concern that in the small hours of 30 April 2020 he resolved to redo the furlough calculations. In those circumstances, the Tribunal can be confident that had the question of illegality been raised by the claimant with Stephanie Moore on the morning of 2 April 2020 two things would have happened. Firstly, Stephanie Moore would have relayed the information to Mr Crowther (as she did when the remuneration issue was raised that afternoon – see paragraphs 84 and 85 above). Secondly, Mr Crowther would have taken the matter seriously (as he did when the remuneration issue was raised on 29 April 2020) and acted swiftly and at all events well before the end of April 2020.

[105]Mr Crowther’s memorandum of 30 April 2020 illustrates that he had set his mind against the prospects of pooling the claimant with the other members of the accounts team. There was a determination upon Mr Crowther’s part to distinguish the claimant from the others. We have already mentioned Jill Jones’ sound advice of 4 May 2020 (page 216) to the effect that Mr Crowther would need evidence to back up the respondent’s argument that the claimant has a managerial role. As we have said, we have found the respondent’s evidence upon this issue wanting. Mr Crowther had set his face against pooling the claimant with the other members of the accounts team in order to make a selection for redundancy. It can fairly be said that from the end of April 2020 the claimant had a target on his back.

[106]On 4 May 2020, Mr Crowther emailed the claimant (pages 211 and 212). This was by way of response to the claimant’s email of 29 April 2020. Mr Crowther reiterated his position that he had taken “a decision to restructure the way we operate”. Mr Crowther fairly conceded in cross-examination there was no evidence that he was couching matters in terms of a restructure until after the 10.5 Reserved judgment with reasons – rule 61 18 March 2017 claimant was told that he was at risk. Mr Crowther reiterated that the claimant’s “role is at risk because I see an opportunity to absorb your management duties into the responsibilities of myself and Deborah Stott”.

[107]Mr Crowther acknowledged the claimant’s position that his core responsibility was to prepare accounts for clients. However, he disagreed that only five to 10 per cent of his role could be described as managerial. Mr Crowther referred the claimant to the organisational chart which we considered earlier.

[108]Mr Crowther went on to say that, “At the meeting on 28 April you asked me to consider a voluntary wage reduction as a measure to avoid a compulsory redundancy situation. I would like to reiterate that it is the management role of senior accountant which we are considering at risk, re-deploying you into a junior role would not be a suitable alternative position. I feel that if/when things get back to “normal” any increase in volume could be picked up by junior members of the team and we will consider re-appointing Thomas Devitt as an apprentice if that need arises and he is still available”. There was no explanation from Mr Crowther (whether in this email or at any time) as to why redeployment of the claimant into a “junior role” coupled with a significant pay reduction (as the claimant volunteered) was not a suitable alternative. In any case, upon the Tribunal’s findings, this would not be redeployment but would simply be a case of the claimant continuing with his accounts role divested of any additional responsibilities.

[109]On 5 May 2020 the claimant emailed Mr Crowther (pages 219 and 220). It was in this email that the claimant questioned the job description which had been forwarded to him by Mr Crowther. We dealt with this issue earlier in these reasons.

[110]The claimant thanked Mr Crowther for confirming that he would be paid all outstanding monies were his employment to end. He referred again to the work that he undertook while on furlough. Again, it is noteworthy that the claimant did not make any reference to providing Mr Crowther with information that he was operating the furlough scheme illegality. This is further corroboration of the Tribunal’s findings of fact upon the issue of the public interest disclosure.

[111]The claimant advanced further ideas to avoid redundancy. These were: 111.1. Making improvement to services so that clients do not seek to reduce their fees because they are getting value for money. 111.2. Reducing profit/dividend payments to the business owners to protect the rest of the employees from redundancies in the short term. 111.3. Reducing pay across senior staff members to protect the rest of the team from redundancies in the short term. 111.4. Reducing staff benefits for a period of time or reducing the cost of office space by introducing home working. 111.5. Giving every staff member a small pay cut rather than making one staff member redundant.

[112]The second consultation meeting took place on 7 May 2020. This was done remotely due to social distancing requirements. 10.5 Reserved judgment with reasons – rule 61 19 March 2017

[113]In paragraph 46 of his witness statement, Mr Crowther deals with all of the claimant’s suggestions in his email of 5 May 2020. For the reasons there explained, Mr Crowther did not consider that the suggestions individually or collectively would be sufficient to save the claimant’s position.

[114]Mr Crowther explained that the respondent was continuously making improvements to services in any case. He considered it inappropriate to discuss his personal income but said that he had already taken a reduction in his dividends. Upon the question of pay reduction he said, “this would not be feasible to cut the pay of senior staff members as I envisaged relying on them heavily until things got back to normal, and lowering their pay would lower morale and risk losing their employees to competitors. In terms of junior staff, I explained that the respondent could not and would not ask them to take a pay cut given their earnings were already close to the national minimum wage.” He said that no savings could be found in terms of office accommodation “given that building and car lease payments are not flexible and we had a commitment to continue to make these payments”. Mr Crowther explained that the respondent had already reduced payments into the company healthcare scheme.

[115]During the course of the second consultation meeting, the claimant suggested that Deborah Stott be made redundant instead of him. The claimant followed up this suggestion in his email of 7 May 2020 (page 228). He said, “Before Deborah Stott started in her role as senior accounts manager in July 2019, we had held discussions regarding whether or not a person was actually needed for that role and instead, allow myself and Kristen Lee to split the role. Kristen will be qualified to Deborah’s qualification within the next few months, so that would have alleviated the need for a new employee who had the correct accounts qualification that you were looking at”.

[116]The respondent’s position, as explained in paragraph 48 of Mr Crowther’s witness statement, is that Deborah Stott “had the qualifications and postqualification experience that the respondent needed. The claimant did not have the necessary qualifications and skills to carry out her role”. In his letter at pages 235 to 236 Mr Crowther says that Deborah Stott has “10 years post qualification experience and her tax knowledge has already had a positive impact on the quality of output and I feel her contribution imperative to the long term future of the practice.”

[117]In evidence given under cross-examination, Mr Crowther said that Deborah Stott was taking examinations with a view to qualifying as a chartered tax accountant and was looking to qualify as a tax advisor. It was unclear from the evidence what professional qualifications she currently holds.

[118]On 13 May 2020, the claimant emailed Mr Crowther (pages 241 and 242). He reiterated many of the points which we have considered already. Further, he said that the previous day, 12 May 2020, the government had announced that the furlough scheme was to run to 31 October 2020. The claimant said, “I believe that you have been extremely hasty in your decision making and would have thought that given the additional furlough time you could have let the business run and then through these next five months analysed lost revenues etc and then make a decision. This period of time would give a truer reflection of how the business will be doing and not now, on what appears to be a snap decision – I believe it would be more appropriate to allow extra time, given the 10.5 Reserved judgment with reasons – rule 61 20 March 2017 fact that this is at no extra cost to the company. You also, as of now, still have not with reasonable certainty an idea of how the practice will look six months down the line, how many clients will have been lost or reduced fees.”

[119]A third consultation meeting was arranged for 20 May 2020. Shortly prior to its commencement, the claimant emailed the letter at pages 247 to 249. The parties agreed to postpone the third consultation meeting which took place on 26 May 2020 (pages 275 to 284).

[120]The claimant’s letter of 20 May 2020 raised many of the points which had already been rehearsed. The claimant suggested “bumping” one of the other members of the accounts team to allow him to continue to be employed.

[121]The claimant then said, “I am concerned that your determination to select me for redundancy at this time, despite the similarity of my role to that of my colleagues and despite the financial assistance provided by the government for employers, is because of an underlying reason. On 2 April 2020 I expressed my concern by text messages and verbally that my colleagues and I were being required to work for free during periods of furlough leave, in breach of the Coronavirus Job Retention Scheme rules. In doing so, the company would have been breaching the law. It is obvious that by raising my concerns I annoyed you. However, in doing so I made a protected disclosure. I am therefore afforded protection as a whistle blower from suffering a detriment short of dismissal as a result of my disclosure. I believe that the fabrication of my job title and job description in order to justify a disingenuous redundancy are acts that cause a detriment short of dismissal.” He went on to say that, “any subsequent dismissal will be automatically unfair even if it is dressed up as redundancy”. The claimant repeated that the Coronavirus Job Retention Scheme had been extended until the end of October 2020.

[122]Mr Crowther sought advice from Jill Jones. On 20 May 2020 she said that the claimant’s “claims on bumping and whistleblowing have confused matters somewhat as they warrant some explanation so we can discount them in the consultation process.” Her email to this effect is at pages 252 and 253.

[123]She then prepared what appears to be an aide memoire for the benefit of Mr Crowther ahead of the third consultation meeting (pages 254 and 255). She advised Mr Crowther to reiterate that while the majority of the claimant’s time is spent on accounts preparation the respondent’s figures show the nonchargeable time to be 24% as supposed to five or 10 per cent. She suggested that Mr Crowther reiterate his position that he predicted a downturn. She then prepared some notes of advice upon the issue of bumping and protected disclosures. She referred to the case of North v Lionel Leventhal Limited EAT 0265/04. We shall refer to this case subsequently in our conclusions.

[124]The Tribunal notes that the claimant’s letter of 20 May 2020 was the first time upon which he raised the issue of having made a protected disclosure to Stephanie Moore on the morning of 2 April 2020. The claimant’s failure to raise the issue in any of the correspondence or at either of the first two consultation meetings may be considered surprising and is corroborative of the Tribunal’s findings upon this issue. Further, the Tribunal notes that Mr Crowther immediately sought Jill Jones’ advice upon the issue being raised. Had the matter been raised with Stephanie Moore on 2 April 2020 the Tribunal may have expected to see the issue being raised with Jill Jones by Steven Crowther much sooner. Given the conduct of Mr Crowther, Jill Jones 10.5 Reserved judgment with reasons – rule 61 21 March 2017 and Stephanie Moore it is against the probabilities that the claimant made a disclosure to Stephanie Moore on 2 April 2020 only for nothing to be done about it by anyone from within the respondent.

[125]The notes of the third consultation meeting are at pages 275 to 284. A significant part of the meeting was spent going over what was now the old ground of the distinction between the claimant’s role and that of the other members of the accounts team. The claimant again reiterated that the furlough scheme was going to operate until October 2020. Mr Crowther said, “things aren’t going to get better by then. I’m looking at the situation as it stands. How and when I bring people off furlough is my commercial decision which I will do for the benefit of the practice. It is for me to decide not you.”

[126]The discussion then turned to the issue of bumping. The claimant said that he could very easily undertake the roles of the other members of the accounts team. He was essentially arguing that one of them be “bumped” to make way for him.

[127]The claimant said to Mr Crowther that, “I think you got annoyed I was questioning that we were working for you when we weren’t getting paid. And then that then starts all this, that’s what I think you’ve done”. Mr Crowther denied this. He said, “it’s been brought to my attention at the end of the day that the situation regarding furlough wasn’t being treated correctly within Crowther.” The claimant did not specifically say that he had raised the question of illegality with Stephanie Moore on the morning of 2 April 2020 and that was causative of the redundancy exercise.

[128]The claimant repeated that he would be willing to take a wage cut to put him on the same level as the other members of the accounts team. Mr Crowther believed that the claimant was unaware of the level of the differential. Such a step would entail the claimant taking a pay cut of around £10,000 per annum.

[129]On 4 June 2020, Mr Crowther sent the claimant a letter giving him 12 weeks’ notice that his employment would terminate by reason of redundancy. The letter is at pages 322 and 323. He was told that his last day of employment was to be 28 August 2020.

[130]Mr Crowther told the claimant that he was required to take garden leave during his notice period. Mr Crowther also required the claimant to take outstanding holiday accrued during the holiday year during the notice period.

[131]On 17 June 2020, the claimant sent a letter to Mr Crowther (pages 328 to 330). The claimant pointed out that Mr Crowther had not allowed the claimant a right of appeal.

[132]The claimant raised seven grounds of appeal. In summary, these were: 132.1. That the decision to make him redundant was pre-judged because the claimant had raised concerns that he and the accounts team had been instructed to undertake work while furloughed. 132.2. Mr Crowther produced a fabricated job description. 132.3. Mr Crowther put the claimant into a pool of one. 132.4. Mr Crowther had not taken on board the claimant’s suggestions of alternatives to redundancy including the claimant’s offer to take a pay cut and that Mr Crowther presumed that the claimant would not be able 10.5 Reserved judgment with reasons – rule 61 22 March 2017 to live on the same salary as was being paid to Mr Taylor without consulting properly with the claimant upon the issue. 132.5. Mr Crowther had not properly considered the issue of bumping. 132.6. That the timing of the redundancy makes little sense given that the furlough scheme was going to operate until 31 October 2020. The claimant raised a further point that the furlough scheme was now flexible allowing employees to work part time with the balance of the salary to make up full time remuneration being paid by the government. 132.7. That Mr Crowther had approached the whole redundancy process “in a very intimidatory and dismissive manner”.

[133]Earlier, in the letter prior to the section headed “grounds of appeal” in which the points in paragraph 132 were set out, the claimant had raised several grievances. These were: 133.1. That the claimant was required to take holidays during his notice period rather than receiving a payment in lieu of untaken holiday in his final wages. 133.2. That the claimant had been excluded from the work Zoom quiz held on 10 June 2020. 133.3. That he had been marginalised during his notice period.

[134]On 18 June 2020, Mr Crowther wrote to the claimant (page 332). He said that there was no statutory or contractual right to appeal against the decision to make him redundant. He said that the claimant’s letter of 17 June did not raise any new points which had not already been debated. The claimant was therefore not afforded an appeal.

[135]During his evidence before the Tribunal, a theme began to emerge that the claimant’s redundancy was connected with Mr Crowther’s exit strategy and succession planning. Mr Crowther explained, and the Tribunal accepts, that as and when Mr Crowther leaves the business there will be a requirement for a chartered accountant. Mr Crowther explained that Mr Taylor, Mr Hewitt and Mr Lee were undertaking their chartered accountancy examinations. However, all of them are some years away from qualifying. The issue of exit strategy did not feature in the contemporaneous documents as a reason for the claimant’s selection for redundancy.

[136]The respondent placed an advertisement seeking to recruit a chartered accountant. This is at page 350 and is dated 14 September 2020. This is a little over two weeks after the termination of the claimant’s contract of employment. When this was put to Mr Crowther by Mr Greatley-Hirsch, he explained that the successful candidate would not be to replace Mr Crowther but rather to act as “a number two to ensure I can exit”. It appears therefore that Mr Crowther took the decision to recruit a chartered accountant rather than wait for at least one of his current employees to qualify. As he put it, this was done in order to accelerate his exit. When pressed upon timescales, Mr Crowther said that he envisaged his exit from the business being “three to five years away, seven possibly”.

[137]Mr Crowther’s mention of an exit strategy and succession planning towards the end of his evidence was consistent with our finding that the rationale advanced by the respondent being something of a moveable feast. Cost 10.5 Reserved judgment with reasons – rule 61 23 March 2017 saving was very much at the forefront of Mr Crowther’s mind because of the exigencies brought about by the Coronavirus crisis. A theme then began to emerge during the course of the consultation process of a need to restructure the respondent’s business notwithstanding that there is no evidence that this was considered until after the claimant was told that he was at risk at the end of April 2020. The need for succession planning to ensure a smooth exit for Mr Crowther from his business then emerged towards the end of his evidence before the Tribunal.

[138]The Tribunal is compelled to agree with Mr Greatley-Hirsch’s submission, in paragraph 33, that, “there was no evidence or even suggestion until the hearing that [Mr Crowther] had been thinking about his exit strategy from the business, let alone wanting to hasten it. Indeed, throughout the consultation period, [Mr Crowther] was maintaining that the need to cut costs and that a way of doing this is for [Deborah Stott] and [Mr Crowther] himself to do the work that [the claimant] was doing.”

[139]Upon the holiday pay issue, Mr Greatley-Hirsch conceded that it was open to the respondent to require the claimant to take accrued but untaken holiday during the notice period. However, the claimant’s grievance was that other employees had been paid compensation for accrued but untaken holiday at the end of the notice period and not required to take holidays during notice. The claimant relied upon the case of Gemma Giles.

[140]Mr Crowther accepted that Gemma Giles had been paid a lump sum as compensation for accrued but untaken holiday at the end of her notice period. She had given notice towards the end of 2020. However, Mr Crowther explained that Gemma Giles had in fact worked during her notice period. The period to the end of January is extremely busy in most accountancy practices as this coincides with the deadline for the filing of tax returns for selfassessment purposes. Mr Crowther said that Gemma Giles had agreed to work upon these during her notice period. In contrast, the claimant was not required to work during his notice period. He was placed upon garden leave.

[141]Mr Crowther accepted that he had not invited the claimant to the Zoom quiz held on 10 June 2020. He said that the purpose of the quiz was to keep members of staff engaged and to boost morale. Mr Crowther fairly recognised that his exclusion from the quiz would affect the claimant’s morale. However, he said that the relationship had deteriorated to such an extent that it would not be enjoyable for either party were the claimant to attend.

[142]Mr Crowther accepted that he had discussed the claimant with other members of staff and instructed them not to discuss certain matters with him. Mr Crowther said that in September 2020 he had told members of staff that they could of course remain friends with the claimant but warned them they should not discuss the respondent’s business with him. Such brought about a risk of a breach of professional obligation.

[143]When being cross-examined upon this issue, Mr Crowther had said that the office had remained closed until 2 September 2020. However, he corrected this. The office had in fact re-opened in June 2020, during the claimant’s notice period.

[144]The Tribunal is satisfied that the job advertised by the respondent on 14 September 2020 was not to replace the claimant. The claimant was not 10.5 Reserved judgment with reasons – rule 61 24 March 2017 qualified as a chartered accountant. He said in evidence that he had no ambitions to so qualify. “I don’t want to do it” is how the claimant put it.

The law

[145]The Tribunal now turns to a consideration of the relevant law. We shall start with the claimant’s complaint of unfair dismissal brought under sections 94 to 98 of the 1996 Act. This is commonly referred to as “ordinary” unfair dismissal.

[146]The claimant worked for the respondent for more than two years. He therefore has a right to complain that he was unfairly dismissed. In such a circumstance it is for the employer to establish the reason for dismissal. The reason for dismissal must be one of those permitted by section 98. One of the permitted reasons is that the employee was redundant.

[147]Redundancy is defined in section 139(1) of the 1996 Act. That definition applies both to claims for redundancy payments and to unfair dismissal claims.

[148]The Tribunal shall not set out section 139(1) in full here. It is familiar to the parties. It is generally accepted that the definition in section 139 covers three situations:  Closure of the business.  Closure of the employee’s workplace.  A diminishing need for employees to do the available work.

[149]It is the latter situation upon which the respondent relies in this case. As Mr Pochron put it in paragraph 11 of his written submissions, “It is submitted that [the case] falls squarely into section 139(1)(b)(ii). The diminished requirement was for a managerial or supervisory role at the claimant’s level – the reduction of the claimant’s role to remove the aspects of planning work, managing quality and mentoring trainees would reduce the work that he performed.” Mr Pochron went on to say that, “the respondent also considers cost saving and Mr Crowther submitted in his evidence that he understood the finances of the business given the nature of the employer being relatively small and so could envisage what changes may be required in order to ensure not only that some action was taken to address the potential for downturn but also that the work was done more efficiently or directly in the future”.

[150]The latter part of this submission chimes with the respondent’s pleaded case in paragraph 8 of the grounds of resistance where it was said that, “the consideration of the managing director of the respondent, Steven Crowther, was that in order to reduce overhead, drive efficiency and attempt to improve profitability by reducing fixed costs he could personally absorb the supervisory and management responsibilities of the claimant.” Economic need or necessity is not necessarily the same as redundancy and can in itself be a substantial reason relied upon by an employer such as to justify the dismissal of the employee.

[151]Once the employer has established a permitted reason for dismissal, then the Tribunal will consider whether the employer acted fairly and reasonably in treating that as a sufficient reason for the dismissal of the employee. There is no burden upon the employer upon the question of reasonableness. It is for the Tribunal to determine whether the employer acted reasonably in treating redundancy as a sufficient reason for the dismissal of the employee taking into 10.5 Reserved judgment with reasons – rule 61 25 March 2017 account in particular the factors to be found in section 98(4) of the 1996 Act. That is to say, whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably in treating redundancy as a sufficient reason for dismissing the employee in accordance with the equity and substantial merits of the case.

[152]The focus of the Tribunal’s enquiry is upon the reasonableness of the employer’s conduct. The Tribunal must not substitute its decision as to what was the right course to adopt for that of the employer. In many cases there is a band or range of reasonable responses to the situation in which the employer finds itself within which one employer might reasonably take one view and another quite reasonably take a different view. The function of the Employment Tribunal is to decide whether in the particular circumstances of the case 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 then the dismissal is fair. If the dismissal falls outside the band it is unfair.

[153]In Williams and Others v Compair Maxam Limited

[1982] IRLR 83

EAT it was held that reasonable employers will seek to act in accordance with the principles set out in that case. Those which are pertinent in this case are:  That the employer will seek to give as much warning as possible of pending redundancies to employees so as to enable the employees to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and if necessary find alternative employment in the undertaking or elsewhere.  The employer will consult the affected employees as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employee as possible. This may include in an appropriate case the devising of fair selection criteria which as far as possible do not depend solely upon the opinion of the person making the decision but is capable of objective measurement.  The employer will seek to ensure that selection is made fairly in accordance with these criteria and will consider any representations made as to such selection.  The employer will seek to see whether instead of dismissing an employee, the employee could be offered alternative employment.

[154]In Williams it was held that where dismissal is for redundancy, the Tribunal must be satisfied that it was reasonable to dismiss the employee upon those grounds. It is not enough to show that it was reasonable to dismiss an employee. It must be shown that the employer acted reasonably in treating redundancy as a sufficient reason for dismissing the employee in question. Therefore, if the circumstances of the employer make it inevitable that some employee must be dismissed, it is still necessary to consider the means whereby the claimant was selected to be the employee dismissed and the reasonableness of the steps taken by the employer to choose the claimant, rather than some other employee, for dismissal.

[155]In carrying out a redundancy exercise, an employer should begin by identifying the group of employees from which those who are to be made redundant will be drawn. This is known as the pool for selection. It is to those employees 10.5 Reserved judgment with reasons – rule 61 26 March 2017 within the pool that an employer will apply the chosen selection criteria to determine who will be made redundant.

[156]In considering the employer’s decision over the choice of a pool for selection, the Tribunal will consider the following factors:  Whether other employees are doing similar work to those from which the selection for redundancy was made.  Whether the employees’ jobs are interchangeable.

[157]As a result, the pool is usually composed of employees doing the same or similar work, and an employer risks a finding of unfair dismissal if they include in the pool a range of different job functions or exclude employees who should properly be in the pool. The employer’s conduct must be judged against the standard of the reasonable employer and there should be a justifiable reason for excluding a particular group of employees from the selection pool where those in the excluded category do the same or similar work to those who are liable for selection.

[158]In this case, of course, the respondent devised a pool of one. Only the claimant was liable to be selected for redundancy. The question for the Tribunal whether it was unfair for the respondent to use a pool of one in all the circumstances of the case. It is open to the Tribunal to determine that it is outside the range of reasonable responses to define the pool in a particular way in order to ensure the dismissal of a particular individual. The Tribunal must be careful, of course, not to substitute its view for that of the employer as to the right course.

[159]Job losses confined to one department or team can result in the dismissal of skilled and experienced staff and may result in the employer being faced with the situation that other individuals whose posts are not directly affected may be retained. It is within the range of reasonable responses for an employer to consider a bumping dismissal. The concept of bumping arises where an employee whose job is redundant is re-deployed to another job and the employee in that job is the one who is actually dismissed. Although the dismissed employee’s role may not be redundant the individual’s dismissal will be attributable to redundancy in that it has been brought about by the diminished need for work of the kind done by the retained employee.

[160]As we said earlier, Mrs Jones referred in a briefing note for the benefit of Mr Crowther to the case of Lionel Leventhal Limited. In this case, the Employment Appeal Tribunal gave detailed guidance upon the circumstances in which an employer should consider bumping. The EAT directed that Employment Tribunals should consider such matters as whether or not there is a vacancy, how different the two jobs are, the difference in remuneration, the relative length of service of the two employees in question and the qualifications of the employee in danger of redundancy.

[161]There is a fine line to be drawn between bumping on the one hand and the devising of a fair selection pool upon the other. There is no absolute obligation upon an employer to consider bumping as an option. Failure to do so may fall outside the band of reasonable responses. Where the role was carried out by the employees are similar, it may be within the range of reasonable responses not to consider bumping but outside the range to exclude some of the employees from the selection pool. 10.5 Reserved judgment with reasons – rule 61 27 March 2017

[162]The importance of following proper procedures was made clear by the House of Lords in Polkey v A E Dayton Services Limited

[1988] ICR 142

HL. In that case, Lord Bridge said that: “in the case of redundancy … the employer will normally not act reasonably unless he warns and consults any employees affected or their representative, adopts a fair basis on which to select redundancy and take such steps as may be reasonable to avoid or minimise redundancy by re-deployment within his own organisation.”

[163]Therefore, in general terms, a failure to properly consult will render a redundancy dismissal unfair. The only escape available to an employer is where the employer could reasonably have concluded that a proper procedure would be utterly useless or futile. Individual consultation should normally include:  An indication that the individual has been provisionally selected for redundancy.  Confirmation of the basis for selection.  An opportunity for the employee to comment on their redundancy selection assessment.  Consideration as to what if any alternative positions of employment may exist.  An opportunity for the employee to address such matters as they may wish to raise.

[164]The consideration of alternative employment for employees selected for redundancy will often be an important part of a fair and reasonable redundancy procedure. An employer should do what it can so far as reasonable to seek alternative work. However, this does not mean that an employer is obliged by law to create a job or enquire about jobs in other organisations.

[165]The ACAS Code of Practice on Disciplinary and Grievance Procedures does not apply to dismissals due to redundancy. However, ACAS has published a guidance upon the process that an employer should follow where an employer is considering redundancy. The ACAS guidance on redundancy says that, “it is good practice to offer employees the chance to appeal if they feel they were unfairly selected for redundancy”.

[166]Mr Pochron referred the Tribunal to several authorities (cited in paragraphs 94 to 96 of his written submissions) for the proposition that a failure to afford a right of appeal will not normally render a redundancy dismissal unfair. In Taskforce (Finishing and Handling) Limited v Love

EATS/0001/05

it was held that an absence of an appeal process is “just one of the many factors to be considered in determining fairness”. In Lloyd v Taylor Woodrow Construction [199] IRLR 782 (EAT) it was said that “proper consultation prior to dismissal ought to obviate the need for an appeal.”

[167]We now turn to a consideration of the law as it relates to the claimant’s complaints of dismissal and detriment for having made a public interest disclosure. A qualifying disclosure means any disclosure of information which in the reasonable belief of the worker making the disclosure is made in the public interest and tends to show one or more of the six relevant failures in section 43B(1)(a to f) of the 1996. 10.5 Reserved judgment with reasons – rule 61 28 March 2017

[168]As was recorded by Employment Judge Evans at the case management preliminary hearing, the only disclosure relied upon by the claimant is that which he alleges he made to Stephanie Moore on the morning of 2 April 2020. This is recorded in paragraph 3.1.1 of Employment Judge Evans’ minute of the case management hearing (at pages 55 and 56 of the bundle).

[169]Mr Pochron reminded the Tribunal of Cavendish Munroe Professional Risks Management Limited v Geduld UK

EAT/0195/09

. At paragraph 24, the Employment Appeal Tribunal said that, “the ordinary meaning of giving ‘information’ is conveying facts. In the course of the hearing before us, a hypothetical was advanced regarding communicating information about the state of a hospital. Communicating ‘information’ would be ‘the wards have not been cleaned for the past two weeks. Yesterday, sharps were left lying around.’ Contrasted with that would be a statement that ‘you are not complying with health and safety requirement.’ In our view this would be an allegation not information.”

[170]Mr Pochron submits that even if the Tribunal were to find as a fact that the claimant said to Stephanie Moore that, “it is illegal to be working whilst we are on furlough and we shouldn’t be doing it” that such is an allegation and not the provision or disclosure of information.

[171]Mr Pochron also reminded the Tribunal that following an amendment to the legislation made in June 2013, a disclosure can only be a qualifying disclosure if the worker reasonably believes that the disclosure is made “in the public interest”. Guidance upon the public interest test was considered by the Court of Appeal in Chesterton Global Limited (trading as Chestertons) v Nurmohamed

[2017] EWCA Civ 979

. Amongst the factors considered by the Court of Appeal were:  The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed; and  The nature of the alleged wrongdoing disclosed.

[172]The claimant complains that he was unfairly dismissed for having made the public interest disclosure to Mrs Moore on 2 April 2020. This is a kind of dismissal often referred to as an “automatic unfair dismissal”. The claimant pursues this complaint under section 103A of the 1996 Act.

[173]The question for the Tribunal, if satisfied that a public interest disclosure is made, is whether the reason or the principal reason for the dismissal (if there is more than one reason) is that the employee made a protected disclosure.

[174]Where the employee has more than two years’ service, then they have to show – without having to prove – that there is an issue which warrants investigation which is capable of establishing the automatically unfair reason advanced. However, once the employee satisfies the Tribunal that there is such an issue, the burden reverts to the employer, which must prove, on the balance of probabilities, which of the competing reasons was the principal reason for dismissal.

[175]The claimant also pursues a complaint that he was selected for redundancy for an automatically unfair reason. Section 105(6A) says that an employee who is dismissed shall be regarded as unfairly dismissed if the reason for the redundancy dismissal is that the employee made a protected disclosure. The 10.5 Reserved judgment with reasons – rule 61 29 March 2017 issues under section 105(6A) are largely the same as for complaints of automatic unfair dismissal under section 103(A).

[176]The claimant also complains that he was subjected to detriment during employment because he made a public interest disclosure.

[177]The term “detriment” is not defined in the 1996 Act. In Ministry of Defence v Jeremiah

[1980] ICR 13

CA it was held that “detriment” means simply “putting under a disadvantage” and will exist where “a reasonable worker would or might take the view that the employer’s actions were in all the circumstances to his detriment”. In Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] IRLR 285

it was held that a worker suffers a detriment if a reasonable worker would or might take the view that they have been disadvantaged in the circumstances in which they have to work. Mr Pochron submits that an unjustified sense of grievance is not enough.

[178]In any detriment claim brought under the 1996 Act, it is for the employer to show the ground on which any act or deliberate failure to act was done. This does not however mean that a worker can simply assert that they have been subjected to a detriment and then leave it to the employer to disprove the claim. Rather, the worker has to prove the necessary elements of the claim – that there was a protected disclosure, there was a detriment and the respondent subjected the claimant to that detriment – before the burden will shift to the respondent to prove that the worker was not subjected to the detriment on the ground that they had made the protected disclosure.

The issues

[179]The issues in the case were set out comprehensively by Employment Judge Evans. It is convenient now to set these out as they relate to the unfair dismissal claim: The issues the Tribunal will decide are set out below. 1. Unfair dismissal Ordinary unfair dismissal1.1 What was the reason or principal reason for dismissal? The respondent contends it was for redundancy; the claimant contends that it was because he made protected disclosures.

1.2 If the reason was redundancy, 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:1.2.1 The respondent adequately warned and consulted the claimant. The claimant contends it did not because it “dismissed” his suggestion of a team wide pay decrease, the claimant himself reducing his hours or pay, or redundancy being delayed until the end of the CJRS when the respondent could assess the market on actual post-lockdown performance. The respondent contends that it considered these proposals but they were not considered to be appropriate; 10.5 Reserved judgment with reasons – rule 61 30 March 2017

1.2.2 The respondent adopted a reasonable selection decision, including its approach to a selection pool. The claimant contends that it did not: he was placed in a pool of one. He says should have been placed in a pool with other accountants and/or the respondent should have “bumped” another accountant;

1.2.3 The respondent took reasonable steps to find the claimant suitable alternative employment;

1.2.4 Dismissal was within the range of reasonable responses. Automatically unfair dismissal

1.3 Was the reason or principal reason for dismissal that the claimant made a protected disclosure (section 103A of the Employment Rights Act 1996)?

1.4 Alternatively, if the reason for dismissal was redundancy, was the reason, or if more than one the principal reason, for which the employee was selected for dismissal that he had made a protected disclosure (section 105(6A) of the Employment Rights Act 1996)?

1.5 If so, the claimant will be regarded as unfairly dismissed.

Conclusions

[180]The Tribunal shall start with a consideration of the ordinary unfair dismissal complaint. The reasonableness of the dismissal is dependent upon the situation known to the employer at the time of the dismissal. We remind ourselves that the dismissal was effective upon 28 August 2020.

[181]The first issue that arises is whether or not there was a redundancy situation.

[182]Mr Pochron reminded the Tribunal that we are concerned only with whether the reason for the dismissal was redundancy and not with the economic or commercial reason for the redundancy itself. The Employment Tribunal has no jurisdiction to consider the reasonableness of the decision to create a redundancy situation in the first place.

[183]However, Tribunals are entitled to examine the evidence available to determine what was the real reason or the principal reason for the decision to dismiss. The employer does not need to show an economic justification or business case for the decision to make redundancies. However, it is open to Tribunals to question whether the decision to dismiss was genuinely on the ground of redundancy and require that the decision to make a redundancy was based on proper information. A Tribunal is therefore entitled to ask whether the decision to make redundancies was genuine but not whether it was wise.

[184]The Tribunal is not satisfied that there was a genuine redundancy situation in this case. We remind ourselves that in this context redundancy means a diminishing need for employees to do the available work. The relevant available work, as per paragraph 11 of Mr Pochron’s submission, was the managerial or supervisory aspects of the claimant’s role. 10.5 Reserved judgment with reasons – rule 61 31 March 2017

[185]The difficulty with this submission is three-fold. Firstly, on our factual findings, this aspect of the claimant’s role took up no more than 5- 10% of his time. It was getting close to being de minimus. Secondly, as Deborah Stott became more acquainted with her role, less and less of the managerial role was being undertaken by the claimant.

[186]Secondly. the claimant’s evidence, which was not challenged, (as set out in paragraphs 6 to 10) is that at all material times there was one account manager. The claimant initially stepped up in or around 2015 and did the task for six months before, with Mr Crowther’s agreement, reverting to being an accountant. Other account managers were taken on from time to time. During any hiatus, the claimant would step up to fill the gap. He would then revert back to his accountancy role. One account manager was required only. At the material time, at the end of August 2020, this was Deborah Stott. There was therefore no diminution or expected diminution in the respondent’s need for an account manager.

[187]Thirdly, there was no evidence that there was a diminution or anticipated diminution in the number of employees required to work in the accounts team of which the claimant formed part as at the end of August 2020. That is not the way in which the respondent ran their case in any event.

[188]In reality, this was a case all about cost saving. The Tribunal accepts that Mr Crowther may reasonably have apprehended a downturn in work because of the impact of the pandemic. However, at the time of the dismissal at the end of August 2020, there is no evidence that workload had reduced with the consequence that the need for employees to carry out work of a particular kind had diminished or was expected to do so.

[189]It is plain that Mr Crowther resolved to dismiss the claimant with a view to achieving a significant costs saving. Indeed, that is the justification or permitted reason ascribed to Mr Crowther’s actions in the second limb of Mr Pochron’s submissions (at paragraph 11). Mr Crowther himself said in paragraph 16 of his witness statement that the absorption of the claimant’s role into his workload and that of Deborah Stott would reduce the respondent’s expenditure on employment costs by over £35,000. The Tribunal accepts that in March and April 2020, Mr Crowther was acting reasonably according to his own legitimate business interests.

[190]It is open to the Tribunal to find, on a consideration of all of the evidence in the case, that the true reason for dismissal was not that advanced by either the claimant or the respondent. Authority for this proposition may be found in Kuzel v Roche Products Limited [2008] RCR 799, CA. The Tribunal is therefore satisfied that in this case, there being no diminution in the need for employees of a particular kind, the permitted reason being advanced by the employer is in reality a substantial reason of a kind such as to justify the dismissal of the employee upon the grounds of reorganisation and economic necessity. The respondent therefore has established a genuine belief in a permitted reason for dismissal.

[191]The Tribunal is satisfied that Mr Crowther maintained the belief that there was a need to reduce costs right up to the end of August 2020. The difficulty for the respondent however is that the Tribunal cannot be satisfied that Mr Crowther’s belief had a reasonable basis. 10.5 Reserved judgment with reasons – rule 61 32 March 2017

[192]The reason for this, primarily, is the operation of the furlough scheme. The claimant pointed out several times, prior to his dismissal, that the furlough scheme was extended until October 2020. The claimant had consented to being placed upon furlough at 80% of his salary. He had agreed this in March 2020. There was therefore no financial burden upon the respondent at the time of the dismissal (or at any rate any significant financial burden). The claimant’s salary was being met by the government. In those circumstances, while Mr Crowther may have had a genuine belief that there was a need to save costs there was no reasonable basis for that belief.

[193]Alternatively, even if the Tribunal is wrong to find there to be no redundancy situation in this case, then there was no reasonable basis for the respondent to maintain that belief as at the end of August 2020. At any rate, the Tribunal was not presented with any evidence such as to satisfy us that the respondent could reasonably believe there to be a diminished need for members of the accounts team. The respondent had re-opened its offices in June 2020. No evidence was presented to the Tribunal to show that there was a diminution in client demand. Indeed, the Tribunal takes judicial notice of the fact that the preparation of accounts is a necessary part of all businesses and those clients who had deferred account preparation in March and April 2020 would need to have them done at some point. The Tribunal was presented with nothing to suggest that there had been a reduction in the number of clients coming through the respondent’s door. In fact, on the contrary, the respondent advertised for a chartered accountant only two weeks after the end of the claimant’s employment. That recruitment would return the complement of accountants to its level when he left.

[194]Indeed, that Mr Crowther talked in his evidence about a need for succession planning reinforces the Tribunal’s conclusion. The respondent sought to justify the decision upon that basis when the weakness of the case upon economic necessity was exposed in cross examination.

[195]Whether reviewed in reality as a redundancy case or as a ‘some other substantial reason’ case, the procedure carried out by the respondent to select the employee to leave was marked by unfairness. Firstly, upon our findings, the claimant was carrying out substantially the same role as the other four members of the account team. Therefore, there was simply no proper basis upon which for the respondent not to pool the claimant with the other members of the team. The respondent justified the decision to put the claimant into a pool of one upon the basis that he was carrying out substantial managerial tasks. We have found that not to be the case. No other justification was advanced by the respondent not to pool the claimant with the others.

[196]The Tribunal finds that the respondent acted reasonably in holding three consultation meetings with the claimant. However, the difficulty for the respondent is that all of the positive suggestions made by the claimant to avoid redundancy were simply dismissed pretty much out of hand. In particular, the claimant’s suggestion of volunteering to take a significant pay cut was simply not countenanced by Mr Crowther. It is difficult to understand why that suggestion was rejected in circumstances where the claimant’s salary would in any case have been paid by the government under the furlough scheme and, on our finding, there was work to be done when the office was re-opened. 10.5 Reserved judgment with reasons – rule 61 33 March 2017

[197]Similarly, the respondent refused to countenance the possibility of across-theboard pay reductions. The refusal to make that suggestion to the others was very much a product of the respondent’s decision to put the claimant into a pool of one. Had all of the accounts team been pooled then the respondent would have been able to consult freely with those in the pool about the possibility of across the board pay cuts. Indeed, a suggestion may then have been made of those in the pool volunteering for redundancy. The Tribunal accepts that a failure to call for volunteers for redundancy from a pool does not necessarily equate to unreasonableness. However, it is a step open to an employer when dealing with a pool of employees.

[198]The Tribunal finds that the respondent’s rejection of the claimant’s suggestion of bumping fell within the range of reasonable responses. In reality, this is not a bumping case given the similarity between the claimant’s roles and that of the four other members of the accounts team. While refusing to consider bumping fell within the range of reasonable responses in this case, that only gets the respondent so far because of our finding that it fell outside the range of reasonable responses not to pool the claimant with the other members of the account team.

[199]The Tribunal finds there to have been no suitable alternative employment which may have been offered to the claimant. He was not interested in the pursuit of chartered accountancy qualifications. In any case, the chartered accountant role was only available after the end of the claimant’s contract of employment in any case.

[200]In summary, therefore upon the claimant’s complaint of ordinary unfair dismissal, the Tribunal finds the dismissal to have been unfair. Firstly, we find there to have been no genuine redundancy. Secondly, we find that the respondent did have a permitted reason for the claimant’s dismissal based upon reorganisation and economic necessity. However, there was no reasonable basis for the respondent to believe there to be a need for reorganisation borne out of economic necessity. Even if the Tribunal is wrong upon this and the respondent had a reasonable basis to believe there to be a redundancy or substantial reason, then there was a substantive unfairness in any case for the reasons given.

[201]A similar conclusion is reached were the Tribunal to be satisfied of a substantial reason because of succession planning. Given that this was a longterm project, the claimant is correct to submit that matter proceeded with unseemly haste particularly given the CJRS. The same points about pooling for selection arise. It was outside the range of reasonable responses to target the claimant to facilitate succession planning where there was no urgent need to embark upon selection in the middle of a pandemic and without pooling the claimant with the others in order to fairly select a departing employee.

[202]We now turn to the complaints which have their basis upon the making of a protected disclosure. These complaints fall at first base because the Tribunal has determined that the claimant did not make a protected disclosure to Stephanie Moore on the morning of 2 April 2020. There being no protected disclosure, there can be no detriment because of one nor can the claimant have been automatically unfairly dismissed or automatically unfairly dismissed by reason of selection for redundancy following one. 10.5 Reserved judgment with reasons – rule 61 34 March 2017

[203]For the sake of completeness, the Tribunal will consider whether or not the claimant was subjected to detriment in any case.

[204]With the exception of the failure to allow the claimant a grievance hearing, we agree with Mr Pochron that the claimant has an unjustified sense of grievance. We shall take each in turn.

[205]We find that the claimant cannot reasonably have considered it to be to his disadvantage to take holidays whilst on garden leave. The claimant accepted that the respondent had a right to ask him so to do. Gemma Giles was in a different situation having worked her notice period. It was therefore right and proper that she be paid compensation for her accrued but untaken holiday pay at the end of her notice period. That was the only comparator case cited by the claimant and it is markedly different. There was no evidence of a practice of permitting employees to take garden leave and be paid for their holiday at the end of it.

[206]The Tribunal rejects the claimant’s case that the exclusion from the Zoom quiz could reasonably be considered to his disadvantage. When the Zoom quiz was held, the claimant was in the early days of his notice period. Relations between him and Mr Crowther had deteriorated significantly. It is difficult to see how the claimant could derive any pleasure or enjoyment from participation in the quiz. This situation is, in our judgment the very embodiment of an unjustified sense of grievance.

[207]The Tribunal also rejects the claimant’s complaint of being marginalised within the business and ostracised from colleagues. Mr Crowther did not say that colleagues could no longer maintain their friendship with the claimant. Mr Crowther’s concern was born out of commercial considerations. The claimant was on garden leave in any case. He was not being asked to do any work during his notice period. It is difficult to see how it can be to his disadvantage to not be privy to commercially confidential information which would be of no benefit to him anyway. Again, we think Mr Pochron is right to say that the claimant bore an unjustified sense of grievance.

[208]The next issue is about the appeal against Mr Crowther’s decision to dismiss the claimant for redundancy. We agree with Mr Pochron that it was not outside the range of reasonable responses not to allow the claimant a right of appeal in this case. Such would have been an exercise in futility. The appeal would have been to Mr Crowther who had already made his decision. No other credible candidates were identified by the claimant who were in a position to overturn Mr Crowther’s determination. This is because there was nobody.

[209]Where we part company from Mr Pochron is upon the issue of a grievance process. We agree with the claimant’s counsel that in his letter of 17 June 2020 the claimant raised grievance issues around the Zoom quiz, the appeal, the ostracism and the holiday issue. These were points with which Mr Crowther simply did not engage when he replied to the claimant on 18 June 2020. On any view, not permitting an employee an opportunity to seek redress of any grievance is an act which a reasonable worker would take the view disadvantages them in the circumstances. Authority for this proposition may be found in W A Goold (Pearmak) Limited v McConnell and Another [1995] UK EAT 489. 10.5 Reserved judgment with reasons – rule 61 35 March 2017

[210]This finding of course avails the claimant little given that we have determined there to have been no public interest disclosure in this case. That said, we should observe, for the avoidance of doubt, that if the claimant had complained to Stephanie Moore that the respondent was illegally operating the furlough scheme we would have held that this was the provision of information as opposed to simply an allegation. On the claimant’s case, he was plainly informing Stephanie Moore that the request for the employees to work while on furlough was illegal. That would amount to a disclosure of information which in the claimant’s reasonable belief tended to show that a criminal offence was likely to be committed or that the respondent was likely to fail to comply with a legal obligation. In both cases, these relate to the operation of the furlough scheme.

[211]We would also have held the disclosure to be in the public interest. By application of the test in Chestertons, the nature of the wrongdoing disclosed (on the claimant’s case) was defrauding the public exchequer. This is in the interests of all and we would have had no hesitation in holding such a disclosure is in the public interest.

[212]Therefore, the complaint of ordinary unfair dismissal succeeds. The public interest disclosure complaints all fail. The matter shall now be relisted for a remedy hearing. Essential to this will be the question of what would have happened with the claimant’s employment had he not been unfairly dismissed. The parties shall write to the Tribunal within 14 days of the promulgation date set out below to indicate whether they consider the case will benefit from a case management preliminary hearing before the Employment Judge at which directions may be given for the remedy hearing.