Mr I Yousaf and Ms Y-N Wang v Merrill Corporation Ltd: 2200213/2017 and 220214/2017
JUDGMENT
[1]The claimants were unfairly dismissed by the respondent[2]Remedy will be decided at a hearing on 31 August 2017. JUDGMENT having been sent to the parties on 16 June 2017 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:REASONS
Relevant law
[1]These claims for are claims for unfair dismissal. The dismissals occurred when the Respondent sought to renegotiate the term of the Claimants’ contract as to holiday. Negotiations broke down, and notice of dismissal was given, with an offer of re-engagement on the new terms which was not accepted.[2]At the outset of the hearing, I explored with the Respondent whether it was conceded that an oral variation of the term as to holiday which had come to light during the process was accepted by the Respondent as a variation of the contractual term, or whether that had to be proved. The Respondent accepted that it was a contractual term, though not reduced to writing. That is important, because it was not always clear in the process that the Respondent at the time accepted that the contract had been varied.[3]So the issues the Tribunal had to decide were(1) whether the Respondent’s reason for dismissal was a potentially fair reason -some other substantial reason justifying dismissal was the reason asserted - and(2) the section 98(4) question whether it was fair to dismiss for that reason. Issues of remedy had not been canvassed.Evidence
[4]The Tribunal heard evidence from: Matthew Cambridge, the Respondent’s Operations Director for the DataSite Division where the Claimants were employed; he had five project supervisors reporting to him, including the Claimants’ line managers. Mr Cambridge made the decision to dismiss. Nicholas Conway, who is no longer employed by the Respondent but at the time was the Service Delivery Director for the Transaction and Compliance division; he heard the Claimant’s appeals against dismissal. Abdul Bari, a project manager like the Claimants, was called under witness order without a witness statement. He had ultimately accepted the offer of re-engagement on new terms and remains in the Respondent’s employment; he gave evidence about the origin of the variation of the contract term as to bank holiday entitlement. Imran Yousaf, the first Claimant. The Second Claimant did not give evidence herself, but added a short submission about the appeal process. Each Claimant had accompanied the other to their respective consultation meetings. It was accepted by all parties that although there were some differences as to dates, the process and the substantial decision making were the same in both cases.[5]There was a hearing bundle of documents of up to 500 pages, containing company policies and relevant correspondence.Findings of fact
[6]The Respondent employs 2,978 people worldwide, of whom 140 are in the UK. It provides back office services to companies in the financial sector. There were two relevant divisions, Transactions and Compliance, which was at the time doing less well and had been making redundancies, and DataSite, a virtual print room, which appears to have been flourishing. DataSite was established in about 2006, and its unique selling point was that its 24/7 service.[7]Both Claimants were employed as a Project Managers in DataSite within a team of 5 covering the weekends. The Claimants themselves worked nights on Friday, Saturday and Sunday, each 12 hour shift starting at 8pm and with a 30 minute break, so that in effect they worked three shifts of 11½ hours, or 34½ hours a week. The other three in the team also worked 12 hour shifts but during daytime hours - two worked Friday to Sunday and one worked Saturday to Monday.[8]Both Claimants had started as agency workers working 37½ hours on weekdays, later moving to the weekend shift with the 34½ hour work provision.[9]Mr Yousaf signed a weekend shift contract dated 23 December 2011. There are some handwritten changes, initialled by him, which corrected thetyped total hours of work and the annual leave provision. Ms Wang had a similar contract signed on 15 January 2015. She had previously been working a weekday shift from 3-11 p.m..[10]The terms of the contract, as signed at that time, provide that normal hours of work were Friday to Sunday 7.30 p.m. – 7.30 a.m. with 30 minutes for lunch, and then, as regards leave, it says: “you are entitled to 25 (crossed out and 15 substituted) days annual leave, in addition to public holidays”. It then said: “other than as varied by this provision, the provisions on annual leave contained in the contractual section of staff handbook will be applicable to you”.[11]The relevant provision of the staff handbook is that the company’s policy was: “to provide pro rata holiday entitlement in respect of bank and public holidays to employees who work part-time, if you work part time your annual leave for each holiday year will be adjusted up or down to reflect the number of bank or public holidays that follow in your normal working days that year, subject to the company’s policy in force from time to time. If any bank or public holiday falls on one of your normal workings days, you will normally be required to take annual leave on that day.”[12]The Claimants’ evidence to the Respondent in the process of consultation leading to dismissal was that this term had been already varied, and was worked by all the weekend team as varied. Mr Bari, whose employment predates either Claimant, has explained its origin: the company had wanted to ensure adequate cover over the weekend, because it was their sales pitch to customers that there was help available at any time, day or night. It was provided that if the bank holiday fell on a working day they must work it, unless cover could be arranged. Because they were struggling to recruit, they were not going to pro-rate the bank holiday entitlement, so, as can be seen from the written contract, the normal annual entitlement of 25 days for a full-time 5 day a week worker, had been pro rated to 15 days for a 3 day a week part-time worker, but the “in addition to bank holidays” was not going to be pro-rated as provided in the handbook.[13]The unchallenged evidence was that all weekend workers had thereafter taken their pro-rated holiday as 15 days, plus the 8 bank holidays in full. Holiday actually taken was booked on the absence management system (“ADP”), and managers were well aware of it. For night shift workers, bank holiday working meant a shift that began on a bank holiday, not a shift that ended on one.[14]According to Mr Bari, only once or twice was a weekend worker compelled to work a bank holiday because there was no cover for him. Mr Cambridge and the First Claimant could not in fact recall any episode when a weekend worker was unable to take annual leave on a bank holiday if he or she wanted to, because it had always been possible to get cover.[15]Cover had to be arranged for weekday shifts too when they fell on a bank holiday. The First Claimant usually worked on New Year’s Day and Christmas Day if they occurred on his weekend shift, but he also volunteered for these days if they fell on a weekday, so he provided cover for weekday workers wishing to take leave on bank holiday. If people covered for others, then they were paid overtime, which at the weekend was double time. The Second Claimant did not work on Christmas Day because she lived in Kent and there was no public transport then. Her evidence was the cost to the company of paying for a taxi to get her from home to work on a public holiday was not much different to the cost of paying overtime to someone covering for her. At any rate, it gave rise to no dispute.[16]In January 2015, the company began an overhaul of the staff handbook to make it a globally consistent document, although it was to have local sections to allow for individual country practice.[17]By October 2015, it seems the wording of the handbook was largely agreed, and the Human Resources department began a review of individual contracts to check for consistency between the paperwork, individual terms, and the handbook. There is an email from December 2015 showing a Human Resources adviser contacting Mr Cambridge to query the First Claimant’s hours of work and the length of his break. It seems she had seen the typed original, but not the signed version with the handwritten amendment. Mr Cambridge confirmed the hours of work, but also said that he thought the break was one hour rather than half an hour. As the unchallenged evidence was that the weekend shift in fact worked a half hour break, this suggests that Mr Cambridge, who worked weekdays, had little direct knowledge.[18]In January 2016, Ms Wang’s supervisor discussed with her the fact that new contracts were coming up, suggesting there would be more pay and less holiday. It is interesting that the immediate line manager appreciated that what was coming up would be a change in the terms of the weekend worker, contrary the HR department’s assertion that there was no change. It is not known whether the Human Resources Department consulted with the immediate line managers about whether the new contracts changed or did not change what had been agreed.[19]On 5 February, the Respondent’s Human Resources Department sent a letter with the new contract to the weekend team’s members. The letter stated that the contract involved no change, and they were asked to sign and return it. In fact when this was handed to the First Claimant by his supervisor, Daniel Walker, Mr Walker pointed out that in fact it meant there was a reduction in the number of bank holidays, because it while it was provided in the new contract that the hours of work were 34½ hours over 3 days, 7.30 – 7.30 with a 30 minute break, on annual leave it said: “you are entitled to 22 days paid annual leave on each holiday year including public holidays, comprised of 17 annual leave days including 2 addition service recognition days and 5 public holidays. Should a public holiday fall on those scheduled work days, you will be required to work or to request holiday”.[20]The annual leave entitlement had increased to 17 from 15 by irtue of length of service; Mr Yousaf had accrued those 2 days since his original contract. This was not an addition to his contractual entitlement.[21]The Claimant of course noticed, as Mr Walker had pointed out to him, that this involved a cut in his public (bank) holiday entitlement from 8 days to 5 days, a loss of 3 days, and as he was a 3 day a week worker, this was in effect a cut of one week in his holiday entitlement.[22]The First Claimant protested in writing on 22 February 2016 about the change in the terms, and explained that they had previously been entitled to full public holidays, not pro-rated, and that therefore when the covering letter said that this involved no change to their terms and conditions, it was untrue. The Respondent’s Human Resources department, responded by Victoria Savage next day saying that the handbook “had not been accurately implemented and some had been receiving additional days off to that which they would otherwise be entitled”. In other words, the Human Resources Department did not recognise that there had been a contract variation, but saw this as a local practice which exceeded the contractual entitlement.[23]The Claimants wrote, on 13 and 21 March respectively, explaining that they would not sign, explaining that the practice, was a deliberate and known policy agreed by the company.[24]The eventual response from the Human Resources Department was that there would be a consultation meeting to discuss it. The consultation process began with a meeting on 10 June with Victoria Savage from Human Resources department and Daniel Walker the line manager. The two Claimants explained the origin of the arrangement and their understanding of it.[25]On 30 June the Respondent wrote that the line manager acknowledged that there had been a variation on bank holiday working. The proposed solution was that the company would give notice to discontinue the verbal agreement from 1 January 2017. They would no longer be required to work bank holidays falling on scheduled work days. Bank holiday entitlement would be calculated pro rata, based on the number of days worked per week. They would be paid overtime rates if they agreed to work on a bank holiday. Pro-rated, they would now get 5 days bank holiday over and above their pro-rated 17 days annual leave entitlement. Their holiday must be used for any bank holiday that fell on a working.[26]Enclosed with the letter was another contract to sign. The Claimants did not agree to sign it.[27]On 19 July, Ms Wang wrote to the Respondent to say that she considered herself a full-time worker (her concern was with terminology rather than the calculation of hours worked, and related to her permit to work in this country). On 24 July, Mr Yousaf wrote to the Respondent protesting that the practice of taking non-pro-rated 8 days bank holiday added to the pro-rated 15 day entitlement had gone on over a decade, and had covered a dozen staff on the weekend shift.[28]On 5 August, they were invited to a second consultation meeting. They were warned that one of the options that the Respondent would have to consider if agreement could not be reached would be giving notice to dismiss on the existing terms with an offer of re-engagement on new terms.[29]By way of evidence of the respondent’s reasons for requiring the chnages, Immediately before the meeting took place, on 18 August, Victoria Savage sent a memo to the US Human Resources Department setting out her understanding of the position with regard to the weekend team. She said that an inconsistency in the taking of bank holidays had come to light on the weekend shift; she described it as an “error”, and the company approach was not being applied. She said there was no record of the agreement that the Claimants said had been reached with the former managers Barry Clancy and Elaine Strong, who had left, and that the arrangement for extra bank holiday entitlement contradicted the actual contractual terms. This suggest that Ms Savage did not accept there had been a contractual variation. Ms Savage went on to say that the Claimants had “rarely provided this service” of working on bank holidays, so others were paid to cover for them at double time. Taking four weekend workers each with three extra bank holidays, this cost £6,500 per annum. She referred to the disruption of having to arrange cover for the weekend shift workers’ extra three days. She said it was unfair relative to the rest of the full-timers, as these parttimers got proportionately more holiday. The respondent had offered to change the terms so as not to require working on the bank holiday, and offered to pay the Claimants a one-off payment 3 days pay for 2017, so that in effect they were not disadvantaged until 2018, but in reply both Claimants said they wanted a permanent salary increase of 3 days. Ms Savage reported that the company proposed to reject this offer and proceed with the “only option remaining to enact this change”, an allusion to dismissal and re-engagement.[30]A schedule with a calculation of costs was attached. This calculation appears not to have been discussed with the employees at the consultation meeting next day, or thereafter, and in when giving evidence Mr Cambridge was unfamiliar with the calculation and had difficulty explaining it. It is calculated that the cost of paying bank holiday pay to the weekend team for the extra 3 days, together with the overtime paid to other staff for cover on those 3 days amounted to £7,630 per annum. The document only came to the attention of the claimants in disclosure after proceedings began. The First Claimant argues that this is overstated because in practice only the Saturdays are covered.[31]The contemporary thinking of the HR Department is also apparent in an earlier exchange of memos between Ms Savage, Mr Cambridge and another in June. The view is expressed that the workers were hardly ever made to work the bank holidays, “they get the extra benefit but we still have to pay overtime to cover”, Mr Cambridge’s evidence was that at this point, immediately prior to 30 June when the letter with the amended contract was sent, his concern was firstly that it was not fair that the weekend team should have an extra 3 days bank holiday compared to others across the business as a whole, and secondly that there was a risk to the business that they might not get cover for the weekend shift, given these extra days entitlement leading to an increased need for cover at the weekend.Relevant Law
[32]In the second consultation meeting, which was on 19 August for Mr Yousaf, the Respondent conceded that management knew about the extra bank holidays, but did not go as far as to say that it was a term of the contract, so there was much discussion, with the Claimant representing that it was not an error or inconsistency, as the Respondent said, as it was a conscious decision by DataSite management nearly a decade before. Ms Savage, on behalf of the Respondent, said “once we became aware of the inconsistency, it did become an issue of inconsistency and fairness”, but went on to say that there were other aspects, like costs, as well. Another note of the meeting refers to the costs implications, business disruption and that changes happened in the business, but is apparent from comparing the notes and from the evidence of Mr Cambridge, that although reference was made to costs implications and business disruption, this aspect was not explained to the claimant or explored with him.[33]On 23 August, a letter was sent to the Claimants with a further contract, saying that it was in keeping and in line with practices across the rest of the organisation. The copy of the contract sent on 23 August was not in the bundle. Mr Yousaf thought that it contained no material changes, though it seems from reading the notes of Ms Wang’s appeal meeting, that in her case there was a material change (though not material to this hearing) because it altered the proposal on paying overtime for bank holiday working, apparently conceding that overtime rates would after all be paid.[34]On 9 September, there was a third consultation meeting with Mr Yousaf and a parallel meeting for Ms Wang. This time Mr Cambridge was chairing, and it was this meeting that immediately preceded the decision to dismiss. The Claimant complained again that the proposed changes had been introduced in February with no initial discussion, and had at first presented as there being no change. He said that since the initial letter other reasons for changing the terms had been mentioned, so he was not sure what the actual reason was. The Respondent now acknowledged that the varied term of additional bank holiday working for the weekend workers was a term of the contract. The justification for reducing it was said to be a matter of internal equity, as well as the costs. The Claimants explained the hardship of being weekend worker, working, as he put it to the Tribunal, “the ultimate unsocial hours”, and it was not a trivial or minor change as far as he was concerned as 3 days was a week’s holiday. The Respondent said there was no longer US support for the additional days.[35]The meeting notes also record that the weekday staff were not accepting public holidays being bolted onto annual leave, which would apparently mean they would now be required to work bank holidays without getting overtime for it. Newly hired staff were being engaged on the new terms on the weekday shift, but existing weekday staff were still on their existing terms. This is interesting given the respondent’s concern for equity between staff as a reason for enforcing the change to the claimants’ terms.[36]Mr Cambridge gave evidence about what he saw as the reasons for making this change, and why it was necessary as of September, when he decided the claimants should be dismissed. He said that the principal reason, and he estimated that as 75% of his reasoning, was internal equity, by which he meant equity across the business, say for example with the weekday shift, and in other divisions; it was not fair to other employees where part-time workers had pro-rated bank holiday entitlement, that the weekend shift in DataSite got full entitlement to bank holiday. Weekend already had a 25% shift premium to reflect their unsocial working hours. It could cause resentment amongst some staff if it were known. There was no evidence that it did cause resentment among other staff; managers saw it as a potential risk.[37]The other factors in the decision were the risk of not getting cover for weekend shifts, and the trouble of arranging cover. Although, as noted, weekend shifts had never not been covered, and certainly while the two Claimants had been on weekend shift no one had ever been obliged to work a bank holiday because cover could not be found, in principle it could occur. The Claimants’ point, that as they were by their contracts obliged to work bank holidays if there was no cover, that removed the risk and was the solution to his problem, did not sway him.[38]Arranging cover was also troublesome. For every shift that needed to be covered, whether weekday or weekend, he had to email all to ask for volunteers, then had to shuffle through the responses and make the arrangements - all took up time. In 2014, 58 shifts had to be covered, in 2015 there were 70. He conceded that out of these totals the extra three bank holidays for weekend workers was only 15 shifts each year; even though a small proportion, it added to mangers’ workload.[39]As for cost, he made clear that this was a subsidiary matter - 75% of his reason for wanting the change was internal equity. Nevertheless, at the time the Respondent was seeking to reduce costs. The travel and expenses policy was being trimmed. The Tribunal was taken to an email sent to him by HR on 18 August 2016, in principle seeking confirmation that he was leaving some posts unfilled, so make a saving, but commenting generally that “numbers were not looking great for the company” and that further savings might needed from any source. There was a message from the CEO to the whole company (25 August) about reductions in physical conference space across the organisation which referred to global weakness and volatility putting pressure on finance results. There had also been two town hall meetings about the respondent’s financial performance - although Ms Wang had the impression from the one she had attended that the Respondent was in fact doing quite well.[40]At the last consultation meetings with the Claimants in September both complained again that they had been asked to sign the contract in February as if there were no change, and that when they disagreed they were told it was going to happen even if they did not sign. The Respondent pointed out they were now consulting to change the contract. There was dispute about the cost, the Claimants saying that only the Saturday night shift was cover required. On operational disruption both Claimants said weekdays were the most trouble because there were so many more of them. The Respondent say they tried to alter weekday terms, but they had not agreed.[41]On 13 and 23 September the Respondent gave notice to the two Claimants respectively to terminate the contract and re-engage them on new terms. The letters summarised the discussion at the meeting in September and the history of what had gone on so far, denied that the company had been evasive or defensive, stated that they had engaged in discussion with the Claimants, acknowledged that the Claimant had explained the significance of additional days’ holiday for his family life and expressed Mr Cambridge’s view that holiday is as important for people working 5 days as for 3 days.[42]Reference was made to a proposal by the Claimants to accept the change for an additional year’s salary. The Respondent was unable to agree as the purpose for the change was to bring them in line with their peers and reduce the ongoing costs and disruption associated with the current bank holiday arrangement. Paying increased salary would continue the cost and maintain the inconsistent approach between himself and colleagues. The changes to bank holiday arrangements needed to be made for commercial operational reasons and to bring working arrangements into line with the rest of the business. With regret, 4 weeks notice to terminate was given. They could appeal. The new contract was enclosed - the substantive change was the reduction in bank holiday from 8 days to 5, he was invited to sign and return it before 27 September if he did wish to continue, and if so they would also make a one off payment of 3 days pay for 2017. Ms Wang’s letter was similar with added reference to concern expressed by her on part time status and a work visa.[43]The Claimants appealed. Mr Conway, who came from a different division and was new to the dispute, heard the appeal. He made it clear in his evidence that he was more conscious than Mr Cambridge of the cost pressures on the Respondent, not least because at the time he had recently been engaged in making 15 people redundant, eventually including himself, and that before leaving he had made a plan to make 9 more redundant. He had attended Town Hall meetings with the CEO, when it had been clear that the company was ‘struggling to reach its numbers’, though he accepted that the message may have been more ambiguous to some employees. Before the hearing he understood that the main thrust of the required change was to bring the payments and benefit package in line with what it ought to have been with a 3 day week working. He conceded that DataSite as a division was profitable, but the company as a whole was struggling.[44]The Claimant explained to him in the meeting that it unfair decision and there had been an inadequate process; he referred to the ACAS guidelines on meaningful consultation. Mr Conway’s view, as recorded in a memo at the time, was that the business “is now undergoing a process of transformation in order to maintain the consistent approach to the way in which all employees are compensated based upon their employment status”; he recognised that the Claimant had not understood the shift in the Human Resources’ knowledge of the term of his contract, so that the Claimants saw it as one process of underhand dealing in seeking to change the contract without recognising that that was what they were doing. There an unfairness in this team having an additional bank holiday. The change was being made to bring them into line with other part-time workers across the business. The Claimants ought to recognise that it was inconsistent that the annual leave entitlement had been pro rated for 3 day a week working and not the bank holiday entitlement. The Claimants had been given adequate notice of the changes, they were being offered a financial cushion for 2017, so would not be affected until 2018. The First Claimant’s counter proposal of 1 year’s salary though reduced to two-thirds salary at appeal stage, was unreasonable.[45]In his letter of 10 October, given the outcome, Mr Conway said that there was a business reason for making the change: internal equity, disruption, and additional cost of the additional 3 days bank holiday. It was inconsistent and unfair to continue the arrangement.[46]The Second Claimant at her meeting represented that there was internal inconsistency with the weekend team if the other 3 were working on different hours; it was not a mistake that the whole team had additional public holidays. She complained that cost had never been given as a reason at the outset of the process, but only made explicit in Septembe. Neither appeal was successful.[48]As for other members of the weekend team, one member, Bianca, accepted the revised contract more or less immediately in February. The Claimants and two others resisted the changes; of those, one, Alfred accepted changes at some point midway, while Mr Bari accepted the changes much later and in return for a payment of £1,000, slightly more than 3 days pay. The remaining two Claimants did not accept and were dismissed. The Respondent recruited one replacement for the two Claimants.[49]It is instructive to review the Respondent’s reasons for variation as they progressed. The first email of 9 December identified an inconsistency in the typed version, in that Mr Yousaf appeared to be working half an hour longer than anyone else, so it is clear that inconsistency caused concern then. Next, the letter of 4 February 2016, about changes in the handbook and the old contracts referred to changes specific towards the handbook, saying there were no changes to terms and conditions, which both line managers spotted was not true, and it was this of course that upset both Claimants.[50]When Ms Savage told the Claimants of 23 February: “we are not proposing any changes”, but bank holiday arrangements had not been accurately implemented consistently across the organisation, consistency is the reason, but equity is not mentioned. In the letter of 30 June, giving notice to discontinue the verbal agreement as to additional bank holidays, equity is introduced, as in “we believe this is a consistent and fair approach to all employees across Merrill and provides you with an enhanced bank holiday entitlement”. Querying what was meant by enhanced, it appears that she meant as compared to the handbook. The Human Resources Department did not recognise that there had been an oral variation, even following the consultation meeting on 10 June.[51]Equity is the reason given by Mr Cambridge in his June exchange with HR - the team were getting an extra 3 hours bank holiday, not unfairness compared to other staff, but unfairness to the company in not giving quid pro quo - hardly ever having to work their bank holidays - so they were getting something for which they did not seem to be giving anything in exchange.[52]Not until the August consultation meeting, were other aspects like costs were mentioned to the Claimants, though without the detailed discussion or analysis of Ms Savage’s memo of 18 August. Mr Cambridge himself was unfamiliar with the cost calculation. His evidence to the Tribunal that fairness was still the 75% concern about internal equity, meaning across the teams, rather than within the weekend team. The letter of 23 August spoke of keeping in line with practices across the rest of the organisation, so that fairness between employees was the principal consideration presented to the Claimants.[53]Finally, although at dismissal Mr Cambridge had equity as 75% and the rest of it being costs and disruption, by the time of the appeal the cost pressures on Merrill seem to have been uppermost for Mr Conway.Relevant law
[54]Section 98 of the Employment Rights Act 1996 provides that in unfair dismissal it is for the Respondent to establish the reason for the dismissal and that it was potentially fair. The Respondent argues that the changes in the contract, and the need to re-engage the Claimants on new terms when they would not agree to change, were “some other substantial reason justifying dismissal” which is one of the section 98 potentially fair reasons.[55]When a Respondent has proved a potentially fair reason for dismissal, it is for the Tribunal to consider, under Section 98(4), whether the employer acted fairly or reasonably or unreasonably in dismissing for that reason, having regard to the respondent’s size and administrative resources and to equity and the substantial merits of the case. Employment Tribunals must not substitute their own view of that of a reasonable employer, and must recognise that reasonable employers may have a range of responses to any particular set of facts. r[56]Under Abernethy v Mott Hay and Anderson, the employer’s reason is “a set of facts or beliefs known to him”. It is the employer’s reason that must be examined by the Tribunal and decided as a matter of fact.[57]On “some other substantial reason”, where an employer wants to change the terms on which the employee is engaged, Garside & Laycock v Booth 2001 IRLR 735 made it clear that it is about the employer’s reasons for requiring a change, and not about the Claimant’s reasons for not agreeing to change the terms on which he worked.[58]As to what is a substantial reason justifying dismissal, Hollister v National Farmers Union [1979] ICR 542 made it clear that a “sound business reason” could be sufficient to establish some other substantial reason: in that case, the Claimant had complained about the pay and terms, the employer reorganised work arrangements so that he would be taken on by a different insurance company for commission payments which resulted in better pay but less favourable pension. When the employee refused to accept, it was deemed the dismissal was fair as this reorganisation in response to his request was a sound business reason. Similarly in Willow Developments v Silverwood, the need to introduce post employment restrictive covenants after a number of employees had left and set up in competition was deemed to be a reasonable business need which would justify dismissing employees who refused to sign amendments to their contracts introducing such terms. In Kerry Foods v Lynch [2005] IRLR 680 it was held that there was a clear advantage to the employer of introducing a new rota for managers. The employer need not show the quantitive improvement gained by this rota; it was sufficient to show that they had a problem with supervision at the weekend which would be remedied by introducing a rota so that more managers were on duty then; there was no need for the employer to produce evidence to show the impact.[59]In Catamaran Cruises v Williams [1994] IRLR 386, it was held that the Tribunal must examine the Respondent’s motives, and that there was sound reason for making the changes, and that they were not arbitrary actions. There was no rule of law that there must be a pressing reason before the reason was substantial enough to dismiss, but the Tribunal must examine the motives for the change, and they were not imposed for arbitrary reasons. It was also said that the Tribunal must look at the balance between the harm to the employee of the proposed changes and the employer’s business need.[60]In Scot v Richardson organising shifts in a way which reduced pay rates overall, was recognised to be as a sound good business reason and that the profit motive of employers is a sound commercial reason. The employer must have but need not prove, the quantum of improvement, must introduce some evidence of their reasons and in Banerjee v City and East London Area Health Authority [1979] IRLR 147 where there is a policy of losing part time contracts and recruiting full time consultants instead, which resulted in the Claimant’s dismissal when another part timer retired. It was held that there was no evidence to the advantages of the policy of the importance attached to it and that this was not sufficient to show that it was sufficient to show that it was a substantial reason for dismissing. Simply to assert the policy was insufficient.[61]As regards the fairness of dismissing for that reason, the Respondent relies on St John of God (Care Services) Limited v Brooks [1992] ICR 715 where a hospital facing a cash crisis asked 170 employees to accept changes in their contracts resulting in pay reductions. 140 accepted and the remaining 30 were dismissed. The relatively small number refusing to accept was enough to justify dismissal of those who refused. Submissions[62]The Respondent submits that this was some other substantial reason, and that the reasons advanced concerned fairness and consistency; costs and disruption was subsidiary. In response to a question from the Tribunal about whether the employee’s reason had changed before and after recognition that the bank holiday extension for weekend workers was not a local, and extra- contractual, practice but in fact a contractual variation, it was asserted that whatever Ms Savage had thought about the variation, the Respondent had always wanted consistency. This particular inconsistency was one of many which had come to light in the contract review process. On fairness, it is asserted that the Respondent had consulted with the Claimants, and had done so adequately, and that with only two out of the team of five holding out, St John of God was relevant. The process had been conducted in good faith and was not underhand as the Claimants had suggested, although it was recognised that they had grounds for suspicion. Once the Respondent, they had been fair and open from the outset about dismissal as an outcome, this was not a threat, and they were always open to further meeting the Claimants for further discussion at each stage.[63]The Claimmannt’s case was that they had been bad faith on the part of the Respondents from the outset. At least from January 2015, the UK Human Resources Department was looking to change the bank holiday term. The fact that both line managers knew about the extra bank holidays meant that it was inconceivable that the Human Resources Department did not know, so that when they purported to say in February that there was no change, that they were acting in bad faith as they knew full well that the weekend team were taking additional bank holidays. They submitted that cost and disruption only became a reason for making the change once it was clear that the additional bank holidays were a term of the Claimants’ contracts. This was not the real reason, and was being bolted on. The cost and disruption reasons were flimsy and not founded in fact; the costs calculation had not been put to the Claimants to challenge, only now in the Employment Tribunal process had they seen the figures; it would probably cost a lot more to cover weekday holiday working than weekend working, given the disparity of numbers involved. As for the appeal process, they held that Mr Conway had exercised no real independent judgment, but simply followed the Human Resources line. They said the consultation process was going through the motions, that the outcome had been predetermined; they rely on the ACAS guidance (August 2005) “Employee Communications and Consultation”, which states: “consultation involves taking account of, as well as listening to, the views of employees, and must therefore take place before decisions are made. Making a pretence of consulting on issues that have already been decided is unproductive and goes on to say that this “does not mean that employees’ views always have to be acted on since there may be good practical and financial reasons for not doing so”. Discussion and Conclusion[64]Was the employer’s reason for dismissing the Claimants (refusing to accept a cut of 3 days in their annual leave entitlement), was a substantial reason justifying dismissal? It has been troubling throughout the case that despite the acceptance from the Respondent at the outset of the hearing, that the Claimants did have a varied term in their contracts as to holiday, the Respondent’s managers did not accept that until late in the process, well after dismissal had come onto the table, perhaps as late as September, or not at all, that the standard term on pro-rating holiday had in fact been varied. The terms of Ms Savage’s August memo to the US, at the time of the second consultation meeting, express scepticism, noting there had been no record of the discussion, which suggests that in the mind of HR decision makers, this was a local practice, out of line, perhaps unauthorised and perhaps not formally agreed at all, where the Claimants must be brought back into line. This attitude meant that the Claimants’ representations on any matter connected with their bank holidays being cut were not being taken very seriously. There is certainly some evidence that the decision that the Respondent was not getting value for money in terms of the extra 3 days was formed as early as June, at the time of, or perhaps just following, the meeting where the Claimants made their representations about the term having been agreed, at a time when the HR Department still did not recognise that there had in fact been a variation. If so, consistency and cost were held important without recognising or balancing that the Claimants had an entitlement to 3 more days as a matter of contract.[65]The Human Resources Department’s project of reviewing of the global handbook, followed by the review of paper contracts, was designed to ensure that the Respondent’s paperwork conformed to the reality of contract terms. There was no evidence that the policy behind the project was ensure that agreed terms worked across the organisation conformed to a standard model. In other words, what happened when the weekend night shift’s holiday anomaly was discovered was that rather than making sure that the paperwork matched the real contractual terms, instead the terms must be altered to conform to a standard model. Banerjee is important, in that there was no evidence that internal equity of terms between groups of workers was driving the changes. This reason was not expressed until June.[66]Of the reasons given, first is consistency. As noted consistency of paperwork with actual terms moved to a policy of contract terms the same for all workers across the business. Was this was a sound business reason? There was no evidence before the Tribunal that the fact that weekend shift got an extra 3 days bank holiday compared with part-timers working anywhere else in the organisation caused trouble or resentment. There was also some evidence, unchallenged, that the practice of extra bank holiday working on the DataSite Division had been introduced on the basis of practice elsewhere in the organisation. There is also some evidence from the Tribunal, from the notes of the consultation meeting, that the Respondent was getting inconsistency of contracts on the weekday shifts, whose staff were being asked to sign new contracts with changed terms, and refusing, such that there would be inconsistency between old and new contract workers there. There was no evidence that the weekday shift workers were being dismissed and reengaged.[67]Nevertheless the issue of fairness across the organisation was clearly in the mind of Mr Cambridge and Human Resources Department as of June. They had in mind equity between DataSite weekend workers and anywhere else in the organisation - not equity within the weekend team, which of course started with everyone having 8 day bank holidays and ended, at the time of the Claimant’s dismissal, with three of the five having accepted a reduction on different terms as compromise and with the Claimants refusing, so that had the Claimants carried on working there would have been inequity within that team. This inequity was not the stated reason of Mr Cambridge and Mr Conway.[68]The cost reason, as explained, was not tested with the Claimants: £7,600 per annum seems to have been the maximum cost, based on overtime with additional bank holidays. The Claimants say the actual cost of cover may have been less, as only Saturdays in practice were covered; there was some added cost to paying an extra 3 days leave, but whether it was £1,000, £2,000, £5,000 or £7,000 was not clear. Mr Cambridge was unable to help. That he was unfamiliar with figures suggests that cost was not the driving force for this change.[69]The risk to the business of not being able to cover the shift was in Mr Cambridge’s mind, but does not seem to have been founded on much evidence, and, as the Claimants argued, it is possible that making the change increased the risk of not getting cover, because the Claimants were no longer required to work bank holidays if cover for leave on those days was not available. The risk of not getting cover was, on Mr Cambridge’s evidence, more theoretical than actual. The disruption of arranging cover was also small, he agreed, when compared with having to cover weekday shifts. That is why he rated fairness as 75% of his reasons for proceeding as he did.[70]Undoubtedly the Respondent’s need to make savings large and small across the board was in the background: it was identified by the First Claimant as the real reason when he asserted as early as February that HR was seeking to remove the additional bank holidays as a cost saving measure, and it certainly operated on the mind of Mr Conway in hearing the appeal. As for the altered needs of the business, the fact that they did not always work bank holidays was a factor, as evidenced by the June email, but was only about Ms Wang not working on Christmas day. There was no other reference to this, and it seems to have been a make-weight reason after the decision had been made.[71]Concluding that the principal reason for insisting on the change was equity among part-time staff, it falls to assess whether this was a sound business reason. Having regard to Hollister, and Kerry Foods, the fairness argument seems a weak business reason. It took root at a time when the Respondent believed that there was no contractual entitlement. It began as consistency between paperwork and actual terms, then changed to standardising contractual terms; later use of the word “equity” slid to meaning the employees were not working the bank holidays for which they got the extra entitlement. The other factors: disruption, and cost (and there were cost pressures at the time) were in the background, but presented as the reason for needing to make the changes. Finally, the fact that at appeal, costs was thought to be the justification for the changes. This switch suggests that equity was not seen even by the respondent as a sound business reason. The Respondent’s changing ground for the contract change suggests that even the Respondent was not certain that their reasons were compelling.[72]While it cannot be said (as in Banerjee) that there is no evidence that fairness and consistency were sound business reasons, there is scant evidence that fairness and consistency were sound business reasons for removing the Claimant’s entitlement to 3 days pay. This case comes close to arbitrary reasons.[73]The Tribunal does not accept that the Claimants’ claim that the Human Resources Team knew all along that there had been contractual variations, and attempted in an underhand way to cut costs without saying so. By September, the contractual change was accepted, although as late as August the Human Resources Department seemed doubtful. The Claimants are also mistaken that by internal equity the Respondent meant within the weekend team: the Respondent meant across Merrill, not within the team, though they have not dealt with the inequity in the weekday team.[74]As for the volume of the team of five, two out of five is a substantial minority, and taken with the Respondent’s toleration of different terms on the weekday shifts does not suggest a reason substantial enough to justify dismissal.[75]The Tribunal concludes that the Respondent has not established that their reason for dismissing the Claimants (fairness and consistency across Merrill) was a sound business reason. The business case for making this change has not been established. Whatever costs reasons were in the mind of Mr Conway (and possibly Mr Cambridge), they were not the principal reason for insisting on dismissal and re-engagement.[76]As for fairness of process, the Respondents did consult, and did adapt their offer by changing terms on 30 June, and slightly on 23 August. They did make some concession but not very much. They did provide a warning of the risks the Claimants faced by maintaining their position. It was presented as an option, and should not have been viewed as a threat. The Claimants were given a chance to change their mind and sign the contract even after notice of dismissal was given. Consultation on the fairness reason was meaningful, in that the Respondent did listen and discuss this with the Claimants. However there was no meaningful consultation on whatever costs reasons were in the Respondent’s mind - probably because, as found, this was not the real reason but an add-on. If cost was a reason, the two Claimants were not able to mount an effective challenge to any costs argument that may have been advanced because it was only mentioned, and not discussed with them. Had equity been a substantial business reason, the process would have been fair.[77]Nevertheless, the conclusion of the Tribunal is that this was not a substantial reason justifying dismissal. A reasonable employer would not have sought to remove a week’s holiday from the weekend workers in the interests of fairness across the board.[78]There will be a further hearing to determine remedy.[1]The Respondent is ordered to pay the First Claimant, Imran Yousaf a basic award of £2,395 and a compensatory award of £10,216.10, total £12,611.11.[2]The Respondent is ordered to pay the Second Claimant, Ms Ying-Nan Wang a basic award of £3,832 and a compensatory award of £13,385.46, total £17,217.46.[1]Today’s hearing was to decide remedy for the Claimants. Judgment was sent on 16 June 2017 to the effect that the Respondents had unfairly dismissed both of them. Written Reasons were sent to the parties on 28 July 2017.[2]To decide the issues today, the Tribunal heard evidence from:- Imran Yousaf, the First Claimant Y-N Wang, the Second Claimant Lee Jackson, Managing Director of City Elite Recruitment Limited, who gave particular evidence on recruitment of staff for visual data rooms. Megan Katzanevas, the Respondent’s Human Resources Director with 17 years experience in HR in particular outsourcing and recruitment.[3]There was a bundle of 680 pages. Many of these consisted of job advertisements. Neither side was able to provide the Tribunal with the total number of jobs advertised or had conducted any analysis. Witnesses agreed that several of the jobs to which they were taken in the bundle were not suitable for either Claimant.[4]The evidence concluded at the end of the first day, and judgment was reserved to save the costs of further attendance. Basic Awards This part was uncontentious.[6]Mr Yousaf was just short of 6 years employment when his employment terminated on 11 October 2016. Applying a cap on a week’s pay at £479 he is entitled to 5 weeks or £2,395.[7]Ms Wang had been employed for 8 complete years when she was dismissed on 21 October 2016, and again her pay is subject to the weekly cap at £479. Her basic award is £3,832. Compensatory Awards[8]Both Claimants worked 3 days a week over weekends, on nightshifts totalling 34½ hours a week.[9]Mr Yousaf was paid £35,980.00 gross per annum, plus a shift allowance of £8,995.00 per annum.[10]Ms Wang was paid slightly less, £35,328.00 per annum, plus a shift allowance of £8,832.00.[11]Mr Yousaf took home £2,518.66 per month, or £581.23 per week, and Ms Wang £2,649.61 per month or £611.50 per week.[12]In addition, the Respondents made a contribution to pension of £20.76 (Mr Yousaf) and £20.88 (Ms Wang) per week.[13]Mr Yousaf only worked weekends because the Respondent had asked him to, and it was well paid.[14]Ms Wang worked weekends because she had a young child and this working arrangement enabled her to spend daytime hours with her child. In the evidence, the picture was more nuanced. Until April 2016 her husband ran a business from home and in effect provided childcare when she was at work. In April 2016, he opened a restaurant, which took him out of the house especially weekend evenings, and at that point the child was sent to her grandparents in China. She returned at the end of July 2016 because she was going to start school in the autumn when she was 5. Ms Wang’s employment ceased in October 2016; until then neighbours helped out with childcare on Friday and Saturday evenings when she was at work and her husband at the restaurant, and she gave them presents in return. Since then Ms Wang has not worked outside the house except she sometimes spends 2 hours on a Saturday evening helping in her husband’s restaurant, if she can get a babysitter.[15]So, to sum up, Mr Yousaf had no particular preference for work on any day of the week or hour of the day, but Ms Wang was restricted by childcare needs. It is relevant to both of them that weekend working was significantly better paid because of the unsocial hours.[16]The evidence of Lee Jackson was that VDR (Virtual Data Rooms) is a very niche market. There are a number of competitors. He would not have expected any difficulty in placing either Claimant, having seen the CV of both of them. He said Merrill (the Respondent) had a good reputation, and anyone who had worked for Merrill for a number of years, as they had, would have been a desirable candidate.[17]He gave no specific evidence about how many such roles had been advertised since October 2016. There was an advertisement in the bundle for a similar job with a competitor, but it was at a slightly more senior level. Mr Jackson also thought that a strong background in customer support, a transferable skill, would mean that there would be a wide range of other opportunities open to both. Most companies offer new recruits training on their own systems, and people who have project management skills that are desirable and transferable.[18]Some of the jobs advertised in the bundle, for example those requiring a knowledge of commercial flooring, or experience with a Housing Association, would not be suitable for either Claimant, neither would technical IT jobs requiring knowledge of SQL Software. There were other, more general posts and he would not expect difficulty in placing either Claimant in work had they wanted it.[19]As for the restriction to part time work, he noted that Ms Wang’s first language is Mandarin Chinese. The undisputed evidence was that a number of finance related institutions in London are within the Asia Pacific market, where evening and night work are required because of time differences, and where a skill in Mandarin would be desirable even if it was not mentioned as a requirement. For that reason he would not have anticipated she have difficulty, despite any restriction on hours in replacing her job with Merrill.[20]On training, Ms Katzanevas made the point that Merrill have always employed staff from very diverse backgrounds, looking for their skills rather than particular knowledge. She added that they have little staff turnover, perhaps because they are a good employer, perhaps because they pay well.[21]The Tribunal observes that, unlike many unfairly dismissed employees, these Claimants are unlikely to have experienced any difficulty on the market because of the reason for leaving their last employer. This has not been put to the test, as neither Claimant ever looked for alternative employment.[22]In Ms Wang’s case, she had gone to Merrill after obtaining a 2.2 maths degree at Southampton University, which had included one year’s work experience at J P Morgan Chase. She always had it in mind to be a teacher, and when she lost her job with Merrill, she decided to revisit this plan, because it would also fit with having a child about to start primary school. On her evidence there are two ways now to qualify as a maths teacher, either to take a one year post graduate certificate of education, or to take a two year traineeship involving working in a school and being paid. These traineeships are obtained by application to UCAS; the application process begins in “February/March every year for September start”. She intended to apply in 2017, but in February 2017 she became pregnant, and her expected date of delivery is the end of November 2017. This suggests that conception occurred in March, at a point when she had not in fact made an application though the deadline may have passed. Without more specific information it is not possible to know how her knowledge of her pregnancy tied in with the dates for a UCAS application. There was no other evidence of either.[23]As it would assist a successful application to have teaching experience, she began to volunteer at the daughter’s primary school, which she does from 9- 12 on weekdays in term time. This fits with her daughter’s hours, as she leaves school at 2.45pm. She also bought some maths books to refresh her knowledge - there is an order form in the bundle placed on 26 September 2016, showing that she was considering this plan even before the termination of her employment.[24]She is working with year 6 in a primary school. On qualifying she hopes to work with a secondary school. Her knowledge of English and of general European culture is, she feels, insufficient to be adequate to a primary school teacher.[25]While on the 2 year training course, she would be paid £22,000 as a new maths teacher. Thereafter there is a scale depending upon experience and responsibility. She said that maths teachers do not get additional pay supplements or incentive payments.[26]She now proposes to apply through UCAS in February or March 2018 with a view to starting training in September 2018. In the meantime, had she remained with Merrill, she would have been entitled to maternity pay, 6 weeks at 90% of all pay, 7 weeks at 90% of basic pay, then half basic pay for another 17 weeks, followed by 8 weeks at basic statutory maternity pay, 38 in total.[27]Ms Wang has disclosed details of her bank statement. She and her husband maintain a joint bank statement for personal use. There is a business account for the restaurant. Although the Claimant does not work in the restaurant, because her English language skills are better than those of her husband, she has a bank card for this account and will use it to make payments or transfers to their joint account of what by description sound like his drawings. The exact amount drawn by card depends on whether restaurant receipts were largely in cash or by card. Some cash is retained to pay staff. Although she works 2 hours in front of house in the restaurant on Saturday night when she can get a babysitter, she denied receiving payment for this. Mr Yousaf[28]Several years ago Mr Yousaf completed 2 years of an Economics and Accounting degree at London Metropolitan University. He explained how he had found it difficult to pursue his studies when he was effectively working full-time while studying to cover costs. He obtained Part 1 of the ACCA accounting qualification, and had intended to pursue Part 2 but has not done so. He has a solid career of various public service jobs, involving customer assistance before working for Merrill. Most of these were with the Office of Public Guardian, which he left when the office moved to Birmingham. He then had a period of work with ACAS, but resigned because he found the work undemanding. He was unemployed for about 3 months before he started work for Merrill.[29]On leaving Merrill, his evidence was that he decided to set up in his own business, so as no longer to be subject to the decisions of others, such as to move his job to Birmingham (GPA), or to cut his holiday pay (the Respondent). He would take back control and be self-employed. He worked as a driver for Uber for 13 weeks from 7 November to 13 February. Gross revenues over the period were £3,961.76. His earnings, after fixed costs of car rental, insurance and petrol (shown always as £30.00 per week) fluctuated, such that in some weeks he had a net income of £307.22, but in others (and in particular the period 26 December onward, he seems never to have covered his costs. The spreadsheet does not show the number of hours he committed to driving in this period. The total of his net profit from this activity over the whole period was £971.76, averaging just under £70 per week, though gross revenue suggests he drove for many more hours in the first four weeks than after Christmas.[30]Mr Yousaf had, in September 2015, registered a business called Punj Foods Limited. He said the intention was that his wife would cater for events on a commercial basis, but she did not in fact trade, at least until September 2016, when the first accounts were filed at Companies House. The directors were himself and his wife until March 2017, when his sister was added, and she became Company Secretary in place of the Claimant. Also in March 2017, the Claimant registered another company called Tikka Tuk Limited. This was another catering business, separately registered to protect the name. This business has traded using the account at Barclays Bank for Punj Foods.[31]The bank accounts show that the Claimant transferred money from his own account with Natwest to another account at TSB (for which no statements have been disclosed), and from there to the business account held at Barclays. He has spent £10,000 setting up the business, which largely appears to relate to the cost of purchasing and customising a van. He also claims £4,315.38 for running costs, insurance and petrol. There is no account for receipts by cash or card on the business, nor of the purchases of meat, salad, rice and so on. This, he says, is because he used cash receipts from the business to buy the materials. Despite having some basic accounting training, he had not sorted the receipts or prepared accounts. He was unable to say what his receipts from sales were, or the expenses, or even to estimate the net profit from the business. There was no business plan or cash flow projection. The schedule of loss shows a “net weekly salary” of £100 per week, but he agreed that this was plucked from the air, because he is simply unaware of the figures for income and expenditure in the business. Meanwhile, household expenses are pooled with his mother where he and his wife live, and his mother has taken over paying some of the bills that the Claimant used to pay. The business sells food on Wednesdays from a van at Tower Hill: this requires 2 days of preparation. He has recently obtained a licence in Hackney, and hopes to trade there on a further 3 days per week. He contributes the slow development of the business since giving up Uber driving in the early part of this year to the need to prepare for this case.Relevant law
[32]Section 123 of the Employment Rights Act 1996 provides that “the amount of the compensatory award shall be such amount as the Tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the Complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer”. This may include “any expenses reasonably incurred by the complainant in consequence of the dismissal”, and loss of any benefit which he might reasonably expect to have had but for the dismissal. A compensatory award is limited by Section 124 to a person’s week’s pay (including pension contribution) multiplied by 52, or £78,962, whichever is lower.[33]The core issue is the Respondent’s assertion that neither Claimant has taken any steps to mitigate their loss. It would not, they argue, be just or equitable to order compensation for loss since dismissal.[34]The Employment Appeal Tribunal guidance to Tribunals on how they should approach this issue, is to ask what steps it had been reasonable for the Claimant to take to mitigate his or her loss, what steps the Claimant did in fact take, and if the Claimant had taken those steps, would the loss have been mitigated. Archbold Freightage limited v Wilson [1974] IRLR 10, says that a Claimant fulfils the duty to mitigate if he “acted as a reasonable person would do if he or she had no hope of seeking compensation from his or her previous employer”.[35]The Tribunal must look at all the circumstances, and not accept the subjective view of the Claimant as to what was reasonable, as it is an objective assessment. It is for the Respondent to show that the Claimant acted unreasonably.[36]Where an employee has taken himself off the job market in order to undergo training or re-education following dismissal, that could be a failure to mitigate; it is a question for the Tribunal whether the employee acted reasonably in taking this step. It might depend on the state of the labour market generally and the Claimant’s prospects of obtaining work without retraining. Mullarkey v Up the Creek Limited EAT 263/95 states that a failure to mitigate does not mean that the period of compensation comes to an end. The Tribunal must judge when the employee ought to have obtained fresh employment at a similar level.[37]With regard to Claimants who decide to set up in business, again the decision is whether this is a reasonable one for Claimants to take. It was reasonable in Gardiner Hill v Roland Berger Technics Limited [1982] IRLR 498 where a 55 year old Management Director with 16 years experience in a specialist business decided to market his expertise rather than seeking alternative employment. It is also reasonable in cases where employees had tried unsuccessfully to obtain alternative employment and then decided to set up on their own.[38]Applying this law to the particular circumstances of each Claimant these are the conclusions: Ms Wang[39]On the evidence to the Tribunal, it is very likely that Ms Wang would have been able to obtain other work at a financial institution or one servicing such institutions within London had she looked for work, and this includes being restricted to being on nights, so that she could spend time with her child during the day. Evidence not contested shows there is a great deal of customer service advice work about, and that her Mandarin speaking skill would make her attractive to any firm with an Asia-Pacific business, even if no jobs have been advertised requiring a Mandarin speaker. She would have been desirable from her CV. As Ms Wang has not looked for work, she has no evidence with which to gainsay this assessment.[40]There is some evidence to suggest that Ms Wang’s decision to retrain as a teacher is due to her changing childcare arrangements, with her husband’s involvement with the business and her child starting school. It is not clear that persisting with neighbours’ assistance on a goodwill basis would have been sustainable long term. This is reinforced by the fact that the Claimant did not look even for temporary work to supplement her income which she could have undertaken for some time before her pregnancy need be disclosed to others (around June 2016.)[41]In the Tribunal finding, Ms Wang has not taken reasonable steps to mitigate her loss. Between October and June she could have done alternative work, which she could have maintained while keeping volunteering at a level that would provide a suitable track record to boost her prospects of a successful application for teacher training. It was agreed she took no steps at all to look for work at any level.[42]Had the Claimant looked for work, would she have been able to mitigate her loss? One point that is clear is that both Claimants were very well paid for the relatively short hours, given the substantial weekend shift supplement. She may have had to work quite hard, and it may have taken some time, to get work that was at least as well paid. Had she started looking for work when given notice towards the end of September, she may have obtained work then. As Christmas approached, companies would be less keen to recruit. Had she looked for work, it can reasonably be anticipated she would have found some work by the end of January 2017. After that, it is not clear that she would have been able to obtain work at a comparable rate of pay immediately. There was plentiful work available at £23,000 per annum, but plausibly, allowing for unsocial hours, she should have been able to obtain better paid work by the beginning of May 2016, by which time it will have been 10 months since she was given notice of dismissal. By that time she would have had plenty of opportunity to look for work, and as discussed she is an attractive candidate on the job market.[43]Giving the Claimant a full loss on 22 October 2016 – 31 January 2017, 14 weeks at £611.51 per week produces £8,561.14. For the next 13 weeks, the difference between her actual gross pay at Merrill of £44,160 per annum against entry level £23,000 per annum, assuming no uplift for unsocial hours, makes a gross difference in pay per annum of £21,160. For 13 weeks that is £5,290, and after deducting 20% basic rate tax, that is £4,232. The total for loss of earnings, full and partial is £132,793.14.[44]The Claimant has lost the benefit of an employer contribution to her pension, £20.88 per week. Neither side provided information about pension arrangements: it seems likely that this is a defined contribution scheme. Most employers associated with the financial industry offer some kind of pension, and under auto-enrolment by now almost all employers are obliged to provide some kind of pension. In the absence of any further evidence or information from the Claimant about this, I assume that there is a loss for the 14 week period of £20.88 which would end at the beginning of February 2017 when she ought reasonably to have found alternative work. Adding a further £292.32 for pension contributions, the total compensatory award, together with an award for loss of statutory rights at £300 (and the Claimant has lost her statutory rights regardless of the failure to mitigate) the total award is £13,385.46. Mr Yousaf[45]Turning now to Mr Yousaf, the first question is what steps a reasonable Claimant would have taken to mitigate his loss. On the face of it, it was reasonable immediately to apply for other work in the financial sector. There is no evidence to suggest that to abandon his work in client and customer support which he had pursued ever since University, is reasonable by reason of the labour market and his inability to obtain such work. It was in the nature of protest or a lifestyle choice, to prefer the freedoms of self employment.[46]What steps did the Claimant take to mitigate his loss? – The answer is none, bar his period of Uber driving to tide him over, and he does not seem to have devoted many hours to driving after mid-December. The Claimant has not attempted to mitigate his loss. It can be expected, on the evidence, that he would have found alternative work and in due course work that was at least as well paid as at Merrill. Unlike Ms Wang, he was not restricted to working unsocial hours, and could have worked ordinary week-day hours. His accounting background will have dressed up his CV, but not made any practical difference to his work opportunities. He objected to sales roles including “support sales”, which the Respondent says are after-sales duties, but in any event his objection to sales and marketing roles is hard to understand when he is engaged in a retail business which involves him, albeit on his own behalf, in constant sales and marketing activity. He had a good CV, long periods of employment with substantial employers, and while excluding roles which required technical knowledge of IT which he did not have, or specific experience, in the housing sector or flooring, there are still many basic level customer service advisor jobs and more substantial project manager roles which he could have undertaken. It is more than likely that he would have obtained work soon.[47]As with Ms Wang, the Tribunal’s finding is that Claimant could and should have found employment by the end of January 2017. Unlike Ms Wang, the Claimant has much wider scope in hours, and could increase his pay by working unsocial hours, or weekdays. It is reasonable from the limited evidence available to think that by six months from dismissal, that is by midApril 2017, so a further 10 weeks, the Claimant will have found work at pay comparable to his income from Merrill. So, assessing the compensatory award for Mr Yousaf, there is 14 weeks of full loss at £581.23 per week, £8,137.22. To this is added the difference between £44,975 and £23,000 per annum, divided by 52, over 10 weeks, less 20% tax, a figure of £3,380. There is 13 weeks of pension contribution at £20.76 per week, so another £269.88, and loss of statutory rights at £300; total £12,087.86. From this should be deducted £971.76, his net earnings from Uber, and £900 for his claimed salary from the business. Although £100 is plucked from the air, it is the Claimant’s estimation and there is none better. The compensatory award is £10,216.10. Costs and Preparation Time[48]The Claimants devoted considerable space in their witness statements to estimations of the time spent preparing for the case. In discussion it became clear that there was no application under Rule 76 for costs or preparation time. The evidence was introduced to demonstrate that they had been handicapped in their search for work by the need to devote considerable periods of time to preparation. The Tribunal does not accept that this prevented their search for work – they did not try to search for work.