Miss K Stevens v 0001 Capita plc and Capita Customer Management Ltd: 2214966/2023
EMPLOYMENT TRIBUNALS
Case No 2214966/2023
Between
Miss K StevensClaimant0001 Capita plc and Capita Customer Management LtdRespondent
Before
Employment Judge A M Snelson
Members
Mr P MadelinMs T ShaahDate 10 January 2025
JUDGMENT
17 December 2024 (in Chambers) BEFORE: Employment Judge A M Snelson MEMBERS: Mr P Madelin Ms T Shaah On hearing the Claimant in person and Mr O Mills, counsel, on behalf of the Respondent, the Tribunal unanimously determines as follows.(1) The Claimant’s claim under the Employment Rights Act 1996 for unfair dismissal is not well-founded.(2) The Claimant’s claims under the Equality Act 2010 for direct disability discrimination, discrimination arising from disability and equal pay are not well-founded.(3) Accordingly, the proceedings as a whole are dismissed.
REASONS
[1]The Capita group of companies provides a wide range of consultancy services to clients in the public and private sectors. According to its website it operates across eight countries and employs over 40,000 people.[2]The Claimant, Miss Kelly Stevens, was continuously employed by the First Respondent from 20 April 2020 until 29 May 2022 and by the Second Respondent from 30 May 2022 until her dismissal on the stated ground of redundancy, which took effect on 20 September 2023. Both companies were at all relevant times members of the Capita group. It is common ground that the change in employer did not break the continuity of her employment.[3]Miss Stevens held the position of Programme Director and, at the time of her dismissal, her total annual remuneration stood at a little over £100,000.[4]Very sadly, Miss Stevens’s husband died suddenly and prematurely in April 2020. Apart from her own profound grief and its consequential impact upon her mental health, she was left with immediate difficulties, finding herself the sole means of support for two school-age children in expensive private education and facing numerous other financial commitments which her income alone was not adequate to meet. Adding to her woes, Capita’s insurance provider rejected her subsequent claim for a life assurance payment.[5]By her claim form presented on 24 September 2023 Miss Stevens brought numerous claims the precise scope of which was not entirely clear.[6]At a preliminary hearing for case management held on 4 December 2023 EJ Norris identified certain claims and listed a public preliminary hearing for 20 February 2024.[7]The effect of the decisions taken on 20 February 2024 (when the judge was again EJ Norris) was that the Claimant was left with complaints of unfair dismissal, direct disability discrimination and discrimination arising from disability, together with a claim for equal pay.[8]In her case management order sent to the parties on 21 February 2024, the judge recorded the issues for decision in relation to the claims which were proceeding in (so far as now material) the following terms:1.1 What was the reason or principal reason for dismissal? The Respondent says the reason was redundancy.1.2 If the reason was redundancy, did the Respondent acted 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;1.2.2 The Respondent adopted a reasonable selection decision, including its approach to a selection pool;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. … Disability 3.1 Did the Claimant have a disability … Direct disability discrimination4.1 Did the Respondents do the following things:4.1.1 Remove the Claimant as a presenter to the Portfolio Board on 26 May 2023 and replace her with a colleague, Ms Dudley?4.1.2 Ms Dudley sending an email to a colleague, Mr Capel, on or around 23 May 2023 referring to the Claimant’s “vulnerability” and expressing concerns about the damage that the Claimant’s mental health could do?4.2 Was that less favourable treatment? The Tribunal will decide whether the Claimant was treated worse than someone else was or would have been treated. There must be no material difference between their circumstances and the Claimant’s.4.3 If so, was it because of disability?4.4 Did the Respondents’ treatment amounts to a detriment?5.1 In the alternative, did Respondents treat the Claimant unfavourably in the sending of Ms Dudley’s email to Mr Capel …?5.2 Did the Claimant’s “vulnerability” arise in consequence of the Claimant’s disability?5.3 Was any proven unfavourable treatment because of that vulnerability? … … 5.5 Did the Respondents know or could they reasonably have been expected to know that the Claimant had the disability? From what date? …7.1 Was the Claimant paid less than [Comparator A, Comparator B and/or Comparator C]?7.2 if so, was there a material factor not connected to sex that explains the difference?[9]Amended grounds of resistance were presented on 12 March 2024.[10]The Respondents later made two important concessions. First, they accepted that Miss Stevens had at all material times suffered from depression and that that condition had amounted at all material times to a disability. Second, they acknowledged that Miss Stevens and her equal pay comparators had at all material times been employed in ‘like work’ and that the equal pay claims would turn exclusively on the ‘material factor’ defence.[11]The matter came before us in the form of a final, ‘face-to-face’ hearing on 11 December 2024, with six sitting days available. Miss Stevens appeared in person. Although she understandably found the experience stressful and emotionally draining, she presented her case ably and with admirable restraint. The Respondent had the advantage of being represented by Mr Oliver Mills, counsel, who presented his case persuasively but treated Miss Stevens with impeccable fairness and courtesy.[12]We elected to hear evidence and argument on liability only in the first instance, leaving all remedies issues to one side for the time being.[13]We read into the case on the morning of day one, after which we heard evidence from Miss Stevens and the Respondents’ five witnesses. That took us to the lunchtime adjournment on day three. We then allowed the parties time to prepare their closing submissions, resuming on day four. At that point some time was used up reading Mr Mills’s written submissions and dealing with some fresh documents produced on behalf of the Respondents. We then allowed Miss Stevens further time to prepare her closing arguments, which were delivered in oral form on the afternoon of day four. At that point we announced our decision to reserve judgment, giving oral reasons for doing so. Our private deliberations occupied us to the end of day five of the allocation.
The Legal Framework
[14]The unfair dismissal claim is governed by the Employment Rights 1996 (‘the 1996 Act’), s98. It is convenient to set out the following subsections:(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show – (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it – … (c) is that the employee was redundant … (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.[15]Although our central function is simply to apply the clear language of the legislation, we are mindful of the guidance provided by the leading authorities. From Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 EAT and Post Office v Foley; HSBC Bank v Madden [2000] IRLR 827 CA, we derive the cardinal principle that, when considering reasonableness under s98(4), the Tribunal’s task is not to substitute its view for that of the employer but rather to determine whether the employer’s decision to dismiss fell within a band or range of reasonable responses open to him/her in the circumstances. That rule applies as much to the procedural management of the case as to the substance of the decision to dismiss (Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23 CA). The ‘band of reasonable responses’ principle is applicable in the redundancy context no less than where the dismissal is based on conduct, capability or any other reason (Williams v Compair Maxam Ltd [1982] ICR 156 EAT, particularly at 161E). Direct discrimination[16]The Equality Act 2010 (‘the 2010 Act’) protects employees and applicants for employment from discrimination and analogous torts based on, or related to, a number of ‘protected characteristics’, which include disability. Chapter 2 lists a number of forms of ‘prohibited conduct’. These include direct discrimination, which is defined by s13 in (so far as material) these terms: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. By s23(1) and (2)(a) it is provided that, for the purposes of (inter alia) a direct discrimination claim, there must be no material difference between the circumstances of the claimant’s case and that of his or her comparator and that (for these purposes) the ‘circumstances’ include the claimant’s and comparator’s abilities.[17]In Nagarajan v London Regional Transport [1999] IRLR 572 HL Lord Nicholls construed the phrase ‘on racial grounds’ in the Race Relations Act 1976, s1(1)(a), in these words: If racial grounds … had a significant influence on the outcome, discrimination is made out. High authority establishes that introduction of the ‘because of’ formulation (which replaced ‘on racial grounds’, ‘on grounds of sex’ etc in the pre-2010 legislation) did not materially change the law (see eg. Onu v Akwiwu [2014] ICR 571 CA).[18]Discrimination arising from disability (to use the convenient shorthand) is covered by the 2010 Act, s15, which, so far as material, provides as follows:(1) A person (A) discriminates against a disabled person (B) if – (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably be expected to know, that B had the disability.[19]In Pnaiser v NHS England [2016] IRLR 170 EAT, Simler J (as she then was), sitting in the EAT, provided (at para 31) a most helpful and frequently-cited summary of the meaning and effect of s15(1)(a). We have it in mind but in view of the way in which we have decided this part of the case, we do not think it necessary to set out the relevant passage here. Protection against discrimination[20]Discrimination is prohibited in the employment field by s39 which, so far as relevant, states: (2) An employer(a) (A) must not discriminate against an employee of A’s(b) (B) – … (d) by subjecting B to any … detriment. A ‘detriment’ arises in the employment law context where, by reason of the act(s) complained of a reasonable worker would or might take the view that he/she has been disadvantaged in the workplace. An unjustified sense of grievance cannot amount to a detriment: see Shamoon v Chief Constable of the RUC [2003] IRLR 285 HL. 21 2010 Act, by s136, provides: (1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.[22]On the reversal of the burden of proof we have reminded ourselves of the case-law decided under the pre-2010 legislation (from which we do not understand the new Act to depart in any material way), including Igen Ltd v Wong [2005] IRLR 258 CA, Villalba v Merrill Lynch & Co Inc [2006] IRLR 437 EAT, Laing v Manchester City Council [2006] IRLR 748 EAT, Madarassy v Nomura International plc [2007] IRLR 246 CA and Hewage v Grampian Health Board [2012] IRLR 870 SC. In the last of these, Lord Hope warned (as other distinguished judges had done before him) that it is possible to exaggerate the importance of the burden of proof provisions, observing (judgment, para 32) that they have ‘nothing to offer’ where the Tribunal is in a position to make positive findings on the evidence. Lord Leggatt, giving the only substantial judgment in the Supreme Court in Efobi v Royal Mail Group Ltd [2021] 1 WLR 3863, passed similar comments, adding (para 41): I think there is a risk of making overly legal and technical what really is or ought to be just a matter of ordinary rationality. So far as possible, tribunals should be free to draw, or decline to draw, inferences from the facts of the case before them without the need to consult law books before doing so. But if and in so far as it is necessary to have recourse to the burden of proof, we take as our principal guide the straightforward language of s136. Where there are facts capable, absent any other explanation, of supporting an inference of unlawful discrimination, the onus shifts formally to the employer to disprove discrimination. All relevant material, other than the employer’s explanation relied upon at the hearing, must be considered.[23]The 2010 Act, s66 entitles a woman to claim the benefit of a ‘sex equality clause’ where she establishes that she is employed on like work, work rated as equivalent, or work of equal value, to that of a male comparator in the same employment. A sex equality clause entitles a woman to have her contract modified so that her terms are not less favourable than those of the comparator. As we have noted, the Respondents have conceded that the ‘like work’ gateway to an equal pay claim is open to Miss Stevens.[24]This right to equal pay is subject to the employer making out a ‘material factor’ defence under s69. That section, so far as relevant, provides: (1) The sex equality clause in A’s terms has no effect in relation to the difference between A’s terms and B’s terms if the responsible person shows that the difference is because of a material factor reliance on which – (a) does not involve treating A less favourably because of A’s sex than the responsible person treats B, and (b) if the factor is within subsection (2), is a proportionate means of achieving a legitimate aim. (3) A factor is within this subsection if A shows that, as a result of the factor, A and persons of the same sex doing work equal to A’s are put at a particular disadvantage when compared with persons of the opposite sex doing work equal to A’s.[25]The Tribunal has jurisdiction to consider a complaint alleging a breach of a sex equality clause (the 2010 Act, s127(2)).[26]As s69(1) makes explicit, it is for the ‘responsible person’ (typically the employer) to prove the material factor relied upon, that is to say, to demonstrate that it is, in fact, the reason for the difference in terms. If the employer makes out the material factor relied upon the burden passes to the employee to show, by producing statistical evidence or in some other way, that the factor operated in an indirectly discriminatory way by putting her at a particular disadvantage in comparison with persons of the opposite sex doing equivalent work (CalMac Ferries Ltd v Lynch & others [2007] ICR 469 EAT, para 12). If the employee discharges this burden, the claim will succeed unless the employer can make out a justification defence under s69(1)(b) (see on all points Glasgow City Council v Marshall [2000] ICR 196, 202F et seq). Evidence and Documents[27]We heard oral evidence from Miss Stevens and, on behalf of the Respondents, Mr Alastair Dennis, Director, Sales and Business Development (Capital Pension Solutions) (who interviewed Miss Stevens for one of the new roles created in the redundancy exercise), Mrs Sara Stone, Head of Human Resources (Capita Pensions), Mr Faris Gharib, Major Programme Director (a member of the interviewing panel for the Programme Director redundancy selection exercise), Mr Paul Capel, (who gave evidence relating to the disability discrimination claims) and Mrs Jill Burgess, Delivery Director (who heard Miss Stevens’s grievance).[28]In addition to witness evidence we read the documents to which we were referred in the main bundle of documents, the supplementary bundle of documents and the further supplementary bundle of documents. The latter two items were handed up in the course of the hearing.[29]The paperwork was completed by sundry documents prepared by the parties, including a chronology, a cast list and Mr Mills’s written opening and closing submissions.
The Facts
[30]The evidence put before us was extensive. We have had regard to all of it. Nonetheless, it is not our function to recite an exhaustive history or to resolve all factual issues. The facts essential to our decision, the majority of which were not the subject of any dispute, we find as follows. Facts relevant to the unfair dismissal claim[31]At all relevant times the Capita organisation was split into two ‘core’ divisions: Capita Experience and Capita Public Service.[32]In or around November 2022, Ms Corinne Ripoche, newly appointed CEO of Capita Experience, made a number of changes designed to simplify the structure of that division. These included bringing all Programme and Project personnel within one central function, Transformation, Implementation and Capability.[33]In January 2023, Mr Maneesh Sharma was appointed to a Divisional Managing Director post within Capita Experience. The Transformation, Implementation and Capability team fell within his province. This team consisted mainly of project managers, business analysts, programme managers and senior ‘programme resources’, including Programme Directors. These were managed centrally but assigned to work in various projects and programmes across Capita Experience.[34]In January 2023, Mr Robert Devine was appointed to lead the Transformation, Implementation and Capability team.[35]Miss Stevens joined Capita as a contractor in 2019. As we have mentioned, she took up a permanent position as Programme Director in April 2020. The role of Programme Director, which sat within the Transformation, Implementation and Capability team, involved management of multiple projects within a programme. This entailed working closely with stakeholders and project managers. It did not carry direct line management responsibilities. Programme Directors reported to the head of the team (with effect from January 2023, Mr Devine).[36]One of Mr Devine’s first tasks was to review the work of the team and its structure. By May 2023 he had reached a clear conclusion that the structure no longer met the needs of Capita’s business, its clients and its workforce. He found ‘unclear accountabilities’, ‘imbalance in scale’, ‘variable capabilities’ and ‘no clear employee development or career progression’. The remedy, in Mr Devine’s view, lay in a new business model to be achieved by the following measures:(1) Three out of five Programme Director roles would be deleted.(2) Both Portfolio Director roles would be deleted.(3) Four new Head of Transformation Implementation (‘HTI’) posts would be created, to be added to one such post already held (the relevant individual having recently been ‘mapped across’ from another, comparable role).(4) One new Head of Transformation Capability (‘HTC’) post would be created.[37]The key difference between the existing model and Mr Devine’s proposed new model lay in the greatly reduced Programme Director function and the introduction of the HTI roles. The aim was to reset the balance of the senior management of the team to ensure better allocation of skills and resources across a wide range of work within Capita Experience. Mr Devine was troubled by the ‘siloed ways of working’ under current arrangements, which he attributed to the narrow focus of the Programme Director role on day-to-day management of individual programmes. By contrast, HTIs would work with the HTC across a range of projects and/or programmes within specified geographical locations and/or agreed business areas. The HTC would be responsible for managing and coordinating allocation of resources and developing a pool of skilled professionals to meet internal and external needs.[38]Another significant feature of the proposed new structure was that the HTIs would be given line management responsibility for specified Programme Managers.[39]Consistent with these differences was the fact that Mr Devine envisaged that the new roles would occupy the same grade as Programme Directors (Grade E), but sit at a higher point within it.[40]On 9 May 2023, Mr Devine held a ‘virtual’ meeting1 with Miss Stevens, the other Programme Directors and the two Portfolio Directors at which he informed them of the proposed restructure and of the fact that it placed them at risk of redundancy. Mr Devine went through a series of slides outlining the restructure plans and the redundancy process. He explained that the Programme Directors would form a ‘closed pool’ of five, with a view to selecting three for redundancy2. 1 Mrs Stone told us that Capita is a ‘virtual first’ organisation. It seems that all meetings in the consultation process were held remotely. 2 Some of the five had a different job titles, but it was common ground that all were performing the Programme Director role and were rightly pooled together accordingly. One, a comparator for the purposes of the equal pay claim (see below), had been appointed to a higher-grade post but was discharging a Programme Director function (with pay protection) as a ‘reasonable adjustment. All who were ‘at risk’ would be eligible to apply for any of the new positions. The consultation period would last at least 21 days to allow for discussion about the proposed structural changes, methods of selection and ways of avoiding compulsory redundancies.[41]After the meeting on 9 May 2023, Mr Devine sent an email to the attendees saying that he could understand that his announcement would have come as a shock and that he was available ‘for a chat’.[42]Later on 9 May 2023 Mr Devine sent to the meeting attendees an ‘at risk letter’ and an ‘employee briefing document’ (both of which summarised the matters covered at the meeting including the proposals, the plans for consultation and next steps and information about available support), a redundancy payment estimate and a ‘FAQ’ document.[43]On 11 May 2023 Miss Stevens attended her first (virtual) consultation meeting. The other persons present were Mr Devine and Mrs Stone. We accept Mrs Stone’s account of the meeting, which was consistent with the ‘script’ used by Mr Devine and the documentary evidence before us recording the gist of Miss Steven’s remarks. We find that Mr Devine’s main focus was on ensuring that she understood his plans for restructuring the team, the consultation process which would be followed, the means by which redundancy selection decisions would be taken and the support which was available in relation to redeployment opportunities and personal well-being. It seems that Mr Devine did not ask for Miss Stevens’s views concerning the merits of the proposed reorganisation itself, but there is no suggestion that she was precluded from putting forward her views on that subject. Mr Devine did ask her directly how she was feeling and reassured her that the organisation was ready and willing to support her. She replied that she was not pleased by the situation she found herself in but was ‘okay’ to engage in the process and was ‘working through the situation’ with her GP. She did not wish to go into ‘anything personal’ in the consultation. Mrs Stone asked her if she wished for any form of reasonable adjustment. She replied that she appreciated the offer but did not seek any adjustment. Mrs Stone confirmed that if the position changed she should let her know. Miss Stevens did not return to the subject of reasonable adjustments at any point thereafter. On redeployment, Miss Stevens was reminded that all vacancies were screened on the Respondents’ ‘Workday’ system and that if she made any application she should advise the hiring manager that she was ‘at risk’ because redundant employees meeting the requirements of any vacancy qualified to be given priority over candidates who were not redundant. Towards the end of the meeting, Miss Stevens raised a number of questions, which Mr Devine and Mrs Stone addressed. She also stated that her approach was driven by financial considerations and her first priority was to secure a role at or above her current salary, whether within Capita or elsewhere.[44]On 16 May 2023, Miss Stevens attended her second consultation meeting, again attended by Mr Devine and Mrs Stone. Again, Mr Devine outlined the redundancy scheme and the process which would be followed. Miss Stevens was asked directly if she had any comments about the selection process and replied that she took no issue with an interview-based approach. Generally, we find that Mr Devine followed the ‘script’ and that the documentary record in the bundle represents a fair summary of the matters discussed.[45]On 18 May 2023 Miss Stevens received notification of the five ‘competencies’ which were to be assessed in the selection of the three Programme Directors to be made redundant. As far as we are aware these were not the subject of any challenge in the course of the consultation exercise or at any point thereafter. Miss Stevens did not challenge them before us. They appear to us to be unremarkable and certainly unobjectionable.[46]On 23 May 2023 Miss Stevens was interviewed by Mr Devine and Mr Gharib (a witness before us) for the purposes of the Programme Director competition. The other candidates were interviewed on the same day. Each candidate was asked the same five questions and each interviewer individually awarded marks on a scale of 0-5 for each question.[47]Mr Devine awarded Miss Stevens a total score of 9. Mr Gharib awarded her 13.5. After ‘calibration’ (standard under the Respondents’ selection procedures), the final score came out at 11.5.[48]Mr Devine gave the other four candidates scores of 20, 21, 15 and 18 and Mr Gharib 19.5, 21, 18.5 and 18.5 respectively. We do not know if the resulting single scores were adjusted in some minor way (upwards or downwards) by calibration. What is entirely clear is that Miss Stevens scored a long way below her nearest competitor.[49]In the event, one of the two highest-scoring candidates in the Programme Director competition dropped out before the results were announced, having secured one of the new positions. Another was appointed to a position elsewhere in Capita but the evidence does not establish precisely when that was. Ultimately, of the candidates who remained in the field, the two who scored highest were retained as Programme Directors.3[50]We have reviewed the interview notes and the scores awarded. We find that the views of Mr Devine and Mr Gharib broadly aligned with one another, although on one question they disagreed to the extent of 1.5 marks, quite a substantial gap given the maximum of 5. Overall, we discern in the notes and records nothing savouring of irrationality, arbitrariness or bias.[51]Interviews for the new position of HTC were conducted by Mr Devine and Mr Sam Ramsden on 24 May 2023. The process was very similar to that used in the Programme Director competition save that, of course, the questions were different. Miss Stevens was one of three candidates. Her published scores are shown as 7 and 6 respectively but, as Mrs Stone pointed out in evidence, it appears that Mr Ramsden’s score on question 3 was omitted from the scoresheet. That said, Mrs Stone is plainly also right that this regrettable error clearly did not of itself affect the outcome. Had one assumed an improbable score of 5 on question 3, Mr Ramsden’s total would have risen to 11. With Mr Devine’s 7 that would yield an 3 Even if the field was reduced to three before the outcome was announced, it is clear that Miss Stevens was not in the running for either of the two retained posts. average of 9. The other two candidates received scores of 16 and 15 respectively. Again, Miss Stevens lost the competition by a very wide margin.[52]On 25 May 2023 interviews were held for the new HTI posts. These were conducted by Mr Devine and Mr Dennis, a witness before us. Miss Stevens was one of five candidates. The process was as before except that, of course, the questions were different. The outcomes were similar. Miss Stevens scored poorly, receiving 9 and 8 respectively. The respective scores of the other candidates were 13 and 11, 13 and 14, 9.5 and 11 and 17.5 and 19.[53]We have conducted a similar review of the documentation relating to the competitions for the new posts to that referred to above in relation to the Programme Director competition. Again, we have found nothing in the evidence before us to call into question the rationality, balance and integrity of these selection exercises.[54]The HTC post was offered and, seemingly, accepted by the top-scoring candidate in the competition for that post.[55]One HTI appointment was also made, in favour of the top-scoring candidate in the Programme Directors competition. It seems, however, uncertain whether it was actually taken up. If it was, the appointee left soon afterwards. As to the other HTI vacancies, it appears that no further offer was made. We find it more likely than not that this was because, on the performances at interview, none of the other candidates was judged appointable.[56]On 30 May 2023 Mr Devine extended the redundancy consultation period by a further seven days.[57]On 6 June 2023 a third consultation meeting was held between Mr Devine, Mrs Stone and Miss Stevens. Mr Devine explained to Miss Stevens that she had been unsuccessful in the selection exercises. Understandably, Miss Stevens became very distressed and Mrs Stone and others, being concerned for her welfare, made direct contact with a member of her family.[58]Also on 6 June 2023 Miss Stevens commenced a period of sick leave.[59]On 12 June 2023 Mrs Stone sent a formal letter to Miss Stevens in the name of Mr Devine, confirming what had been said on 6 June, advising that the consultation period had been extended further, to 20 June 2023, and assuring her of the Respondents’ wish to support her in seeking alternative employment and more generally. Miss Stevens replied the same day, stating that, in light of her scores at interview, she doubted whether anyone in Capita would be interested in hiring her and that accordingly she would not be pursuing alternative employment. Mrs Stone responded at once urging her not to let the scores deter her from looking for other roles within the organisation.[60]On 20 June 2023 the fourth and final consultation meeting took place. Mr Devine confirmed that the consultation was now at an end and that notice of redundancy would follow the next day. Miss Stevens asked some questions about the terms on which her employment would end. Again, we find that the contemporary note of the meeting contained in the bundle fairly reflects the gist of what was said.[61]On 21 June 2023 Miss Stevens received formal notice of redundancy to take effect on 20 September 2023. She was advised of her entitlement to a statutory redundancy payment. Attention was also drawn to her right to appeal against dismissal.[62]On 26 June 2023 Miss Stevens contacted Mrs Stone about a vacancy which she had seen advertised on an external digital platform but had not been drawn to her attention by the Respondents. The role was entitled Director of Transformation - Major Partnerships. Mrs Stone replied the following day, explaining that the vacancy had been taken down from the internal system because the closing date had passed, but that an extension had been obtained and the vacancy re-posted. She encouraged Miss Stevens to apply, but she did not do so.[63]In evidence Miss Stevens drew attention to an appointment within the Transformation and Implementation function made at some point during the summer of 2023. This was explored with Mrs Stone. She told us without challenge that the post sat at a higher level than Miss Stevens’s and attracted a higher salary. Moreover, it was offered on a short-term contract basis, in order to see through a specific project. There was no permanent vacancy. We accept Mrs Stone’s evidence on these points.[64]Mr Mills drew our attention to a further attempt to support Miss Stevens in her search for alternative employment in the form of a circular message sent on 11 July 2023 by a Senior Talent Acquisition Partner to a number of senior individuals in Capita Public Service, letting them know that she was at risk of redundancy and drawing attention to her ‘strong, varied background’. We understand that this initiative was the result of Mrs Stone circulating information about Miss Stevens’s interest in securing alternative employment to her counterparts and contacts in other sections of Capita.[65]Miss Stevens’s sick leave was further extended on 13 July 2023, until 20 September 2023.[66]On 22 August 2023 Miss Stevens contacted ACAS.[67]On 24 August 2023 ACAS issued a conciliation certificate.[68]In early September 2023 there were exchanges between Miss Stevens and Mrs Stone. Miss Stevens was worried that if she did not return to work she would cease to be entitled to company sick pay but, having been assured that she would receive full pay for the remainder of her notice period, she did not press any further the question of returning to work.[69]On 20 September 2023 Miss Stevens’s employment came to an end.[70]At no point in the consultation process did Miss Stevens evince any willingness to contemplate alternative employment in a more junior role and/or on a salary lower than that which she was then receiving. To be clear, this simple finding of fact involves no implicit criticism. She was understandably anxious to do everything she could to maintain her family’s standard of living. But it is obviously true that her approach restricted the possibility of finding alternative employment.[71]On 24 September 2023 Miss Stevens presented her claim form to the Tribunal.[72]The grievance (presented on 20 September 2023) was ultimately unsuccessful as was grievance appeal.[73]Finally, we must mention Miss Stevens’s complaint of Capita having performed a ‘U-turn’ in relation to the reorganisation and resulting redundancy process. The point caused us some concern and we were more than a little critical of the Respondents’ evidence (or lack of evidence) about it. As we have already mentioned, a supplemental bundle and a further supplemental bundle were produced in the course of the hearing. These contain documents which ought to have been disclosed in good time pursuant to the case management timetable set by EJ Norris.[74]Having subjected the documentary and witness evidence to careful and sceptical scrutiny, we have reached the clear conclusion, notwithstanding the unsatisfactory disclosure initially given by Capita, that its case corresponds with events. There was nothing which we would characterise as a ‘U-turn’. Specifically, there was no reversal of the decision to cut the number of Programme Directors from five to two. What did happen was that further stages of the reorganisation envisaged by Mr Devine were abandoned and there was a ‘realignment’ (to use the Respondents’ language) of relevant reporting relationships. Although the ‘realignment’ was quite substantial in its scope, it did not entail the creation of any fresh vacancy. Its rationale is somewhat obscure but it appears to have been a direct result of Mr Sharma going on garden leave in August or early September 2023 and Mr Devine leaving the company soon afterwards. Facts relevant to the discrimination claims[75]The complaint of direct disability discrimination rests on two matters. The first in time arises out of an email sent by Ms Jo Dudley, Head of Pensions Data Strategy, to Mr Paul Capel (already identified and a witness before us) dated 23 May 2023, which Miss Stevens first saw when it was disclosed to her pursuant to a data subject access request delivered in the course of these proceedings. The simple facts are these. Miss Stevens sent an email to someone employed by a competitor organisation, with copies to Ms Dudley, Mr Capel and others, proposing a meeting to discuss a particular aspect of her pensions-related work. Minutes later, Ms Dudley wrote to Mr Capel asking whether he had asked Miss Stevens to contact the competitor and wondering whether to do so would be wise ‘at the moment’. Mr Capel replied at once, stating that he had not suggested the contact. Very shortly after that, Ms Dudley sent a further message to Mr Capel which included: I’m getting really concerned around Kelly’s actions at the moment and the potential damage it could do to us reputationally, I don’t think this is a good idea at all Kelly talking to [the competitor] given her current vulnerability, she is likely to tell him she is at risk etc and I do not think it would be a good reflection on Capita. … I spent half of yesterday on the phone with her and she’s not in a good place at all and this is not the time to be speaking to other industry bodies.[76]This email is also the basis of the parallel complaint of discrimination arising from disability.[77]The second direct discrimination claim arises out of the fact that, shortly before 26 May 2023, Miss Stevens was told that she was no longer required to attend a Portfolio Board Meeting scheduled for that date and Ms Dudley was deputed to attend instead. The background can be shortly stated. Portfolio Board Meetings are held monthly to update senior managers on the progress of major programmes. In the ordinary course of events, Mr Capel and Miss Stevens would attend these meetings to report on behalf of the Pensions Dashboard Programme. As it happened, Mr Capel was booked to take leave on 26 May 2023. He set up a meeting with Miss Stevens to take place on 24 May 2023, with a view to discussing the meeting but events then took an unexpected turn because, the same day, the Department of Work and Pensions (‘DWP’) announced changes to do with the requirements for pensions dashboards. Mr Capel told us without challenge that this announcement necessitated a ‘reset’ of the Pensions Dashboard Programme and meant that any report to the Portfolio Board Meeting on the recent work of the Programme would serve no purpose. This, he told us, caused him to take the decision to ask Ms Dudley to attend in place of Miss Stevens, judging her, as Head of Pensions Data Strategy, to be the right person to attend with a view to advising the Board on the DWP changes and their implications. Mr Capel also told us without challenge that he had not been aware at any time that Miss Stevens was affected by any mental health problem, although he did know that she faced a number of personal challenges and difficulties. We accept Mr Capel’s evidence on these points. Facts relevant to the equal pay claim[78]When she left Capita, Miss Stevens had a total remuneration package worth £107,809 annually, consisting of base pay of £98,809 and a car allowance of £9,000. The equal pay claim rests on comparisons between her remuneration and that of two male colleagues, whom we will call Comparators B and C.4[79]Comparator B was at all material times paid more than Miss Stevens by a few thousand pounds per annum. At the date of her dismissal his base annual pay was £102,451 and his car allowance £9,946.66, giving a total of £112,397.66. He joined Capita in 2007 on a salary of £60,000 and appears to have had the status of Programme Director (or equivalent) since September 2011 at the latest, when his base salary was increased from just under £71,000 to £80,000. (It would seem 4 The claim by reference to ‘Comparator A’ was rightly abandoned. right to infer that he was promoted to Programme Director then, although Mrs Stone told us that he was in the role from 2009 onwards.)[80]Comparator C was promoted internally in April 2021 to the position of Digital Transformation Director, a role which sits one grade above Programme Director. At the time of Miss Stevens’s leaving, Comparator C’s annual package was worth £183,712.50, made up of base pay of £168,712.50 and a car allowance of 15,000. In, it seems, about March 2023, owing to ‘personal issues’ with which he was contending, Capita and he agreed that he would move down to a Programme Director role but that, by way of a ‘reasonable adjustment’, his remuneration package would be protected. We were not told whether this arrangement was explicitly time-limited. It was because of this change in his function that Comparator C was placed in the pool of Programme Directors for the purposes of the redundancy selection exercise. Analysis and Conclusions Rationale for findings of fact[81]In reaching our primary findings above and our secondary findings below we have had regard to the inherent plausibility and internal consistency of the evidence presented. We have also attached particular importance to contemporary documents and the extent to which they corroborate, or conflict with, the evidence of witnesses.[82]What was the true reason for dismissal? We are satisfied that it was that Miss Stevens was redundant. The requirements of the business for employees to do work of a particular kind, namely the work of a Programme Director, had diminished, or were expected to do so, once the decision was taken to implement the reorganisation upon which Mr Devine had decided. The language of the 1996 Act, s139(1)(b)(i) is satisfied. The reorganisation produced a redundancy situation. And that redundancy situation was the reason, or principal reason, for the dismissal.[83]Did the Second Respondent (the employer at the relevant time) act reasonably or unreasonably in treating the reason as sufficient? We have reminded ourselves that our analysis must proceed on the footing that the question for the Tribunal is whether, as a matter of substance and process, the employer’s actions and decision-making fell within a range of reasonable or permissible conduct in all the circumstances.[84]As a matter of substance, we are satisfied that it was clearly proper and permissible to dismiss Miss Stevens on redundancy grounds, on the basis that her job had gone, provided that there was no suitable alternative employment which could be offered to her. To put it another way, her right to protection from unfair dismissal did not oblige her employer to retain her if there was no job for her to do.5[85]Was there any suitable alternative employment which could have been offered to Miss Stevens? In our judgment, there was not. Given her family circumstances and commitments, she quite understandably limited her interest in alternative employment to positions commanding remuneration at or around her current level. It is no criticism of her that she took this line, but it had the effect of leaving her with very few possibilities. On the evidence, we are satisfied that, given her entirely legitimate preferences, there was no suitable alternative role which could have been offered to her at any point between the start of the redundancy exercise and her dismissal.[86]Miss Stevens argued that Capita ought to have offered her a post at a lower level than Programme Manager, but with her salary unchanged. She did not identify any particular vacancy and we have no evidential basis for finding that there was any more junior post available to which she might have been suited. In any event, she did not propose a solution along these lines at any point during the consultation. To the contrary, when the possibility of a ‘reasonable adjustment’ was raised she politely but firmly declined. In our view, there was no reason for Capita to consider demoting her and even broaching the subject would have been liable to give offence and expose the organisation to legitimate criticism.[87]We also find no substance in the suggestion that Capita should have considered offering Miss Stevens the higher-level contractor role which became available in or around July 2023. It is not shown that that was a position for which she might have been considered. She had failed in competitions for three vacancies at or around her current level and it would have appeared peculiar, and perhaps unsettling to those around her, had the organisation taken steps to move her to a higher level. Moreover, this was a temporary, single-project, contractor role and Miss Stevens had signalled no interest in anything other than a permanent position.[88]Miss Stevens appeared also to suggest that, as a consequence of events which immediately followed the departure of Mr Sharma, the changes put into effect by Mr Devine had somehow been reversed and new employment opportunities had arisen. As we have found, this is not what happened. The event which caused her to be redundant, namely the implementation of the decision to reduce the cohort of Programme Directors from five to two, stood. And the decision not to complete the reorganisation which Mr Devine had conceived and instead to ‘realign’ relevant individuals to a new line management structure did not involve the creation of any new vacancies.[89]For these reasons, we find that, as a matter of substance, dismissal on the ground of redundancy was fair and reasonable. 5 It is not necessary to decide whether her right to protection against disability discrimination, particularly in the form of protection against a failure to make reasonable adjustments, might have given rise to such an obligation (although the proposition looks less than promising). Quite simply, there was no such claim before us.[90]Turning to the subject of process, Miss Stevens made a number of criticisms of the redundancy exercise. In our judgment, none carried any real weight. Adequate warning was given. Communications were careful, clear and detailed. Affected employees were given ample opportunities within and outside consultation meetings to raise any matters which they thought relevant. The selection procedure devised for each of the three relevant competitions was unremarkable and certainly permissible. We find that the scoring of each competition was unobjectionable. Considerable efforts were made to encourage and support affected employees in their search for alternative employment and all relevant information was made available. The question of reasonable adjustments was properly raised and, having been declined, was rightly not raised again, although Miss Stevens was properly made aware that the subject could be revisited at her election. All in all, we are satisfied that the process applied fell comfortably within a range of permissible options open to Capita in the circumstances.[91]In conclusion, having stepped back to review our primary and secondary findings in the round, we are clear in our conclusion that the dismissal was not unfair, either in its substance or as a matter of process. Direct discrimination[92]As to the first of the two claims, that based on the email of 23 May 2023, we are prepared to find that Miss Stevens clears the low hurdle of establishing a detriment, at least as at the date when she read the email. But the claim fails because we are satisfied that the act complained of was not done ‘because of’ her disability. The complaint depended on the Tribunal reading the reference to ‘vulnerability’ as alluding to her mental health condition. We are confident that it did not. It makes much more sense to interpret it as a reference to the redundancy process which had recently begun. This is more in keeping with Ms Dudley’s use of language (in particular her stated concern about the Claimant’s actions ‘at the moment’ and the reference to her ‘current’ vulnerability).[93]Turning to the second claim, we are again prepared to find a detriment in the decision that Ms Dudley should attend the meeting in place of Miss Stevens, but again we find nothing in the allegation of discrimination. We are clear that Mr Capel had very good grounds for standing Miss Stevens down and replacing her with Ms Dudley, given the anticipated ‘reset’ of the Pensions Dashboard Programme. We are satisfied that that was the reason, or at least the main reason, for his decision. Moreover, we see no basis for a theory that Mr Capel’s action was motivated in any way by considerations bearing upon Miss Stevens’s mental health. In fact, Mr Capel was even aware of any impairment of her mental health.[94]Our findings in relation to the first direct discrimination claim are fatal to the claim under the 2010 Act, s15. An essential component of the claim is the proposition that the reference to ‘vulnerability’ in the email of 23 May 2023 was to a psychiatric or psychological vulnerability resulting from Miss Stevens’s mental health condition. That component is missing because, as we have found, the reference had no link to the condition. It did not ‘arise from’ it. Accordingly, even on the assumption that ‘unfavourable’ treatment is shown, the complaint fails and Capita is not left with anything to justify under s15(1)(b).[95]As we have noted, Miss Stevens was paid less than both her comparators. It is for Capita to demonstrate that the disparity was not ‘because of’ Miss Stevens’s sex. In our judgment, they have amply made out the defence in both cases.[96]We accept the evidence of Mrs Stone that Comparator B was paid marginally more than Miss Stevens because of his much longer period of service. The explanation is entirely plausible and is consistent with our primary findings above and the documentary evidence which we have seen. The explanation excludes sex in the sense that sex is not the reason, or a reason, for the difference. Nor is there any basis for treating the factor (length of service) as ‘indirectly’ discriminatory under the 2010 Act, s69(2). There appears to be no evidential foundation for such a theory and Miss Stevens has understandably not sought to rely on that provision, much less made out a prima facie case of ‘indirect’ pay discrimination.6 In these circumstances, the claim fails simply because the explanation is upheld as true in fact and no question of justification under s69(1)(b) arises.[97]As to Comparator C, again, we find that the explanation given, namely that he held a higher level position but, as a reasonable adjustment, was transferred to a Programme Director role with pay protection shortly before the redundancy exercise began, is true and excludes sex. Again, there is no suggestion of any ‘indirect’ taint of sex discrimination capable of engaging s69(2). Again, the claim falls here and no question of justification arises. Outcome and Postscript[98]For the reasons given, all claims are dismissed.[99]Although the Respondents have succeeded in this litigation, we think that they should learn lessons from it. Their defective disclosure has cast them in a poor light and caused the Tribunal to waste much time and effort in getting to the bottom of the Claimant’s understandable concern about what she perceived as a ‘U-turn’ mid-way through the redundancy exercise. They were faced with an unrepresented litigant and ought to have been clear and transparent in acknowledging her point and addressing it carefully in disclosure and in their witness evidence. We do not suggest any attempt to mislead the Claimant or the Tribunal, but we regret that their conduct of the case in this regard fell short of what we would expect. 6 See the CalMac Ferries case cited above.[100]Finally, we would not wish to leave this matter without paying tribute to Miss Stevens. She brought claims which were plainly sincere and presented them with consummate courtesy. The personal difficulties with which she has had to contend have been enormous. She is plainly a person who has a great deal to offer, within the workplace and outside it. We wish her well for the future.
Introduction
[1]By a reserved judgment with reasons sent to the parties following a hearing on 11-17 December 2024, a Tribunal consisting of Mr P Madelin, Ms T Shaah and me held that the Claimant’s claims for unfair dismissal, direct disability discrimination, discrimination arising from disability and equal pay were not well founded. Accordingly, the proceedings as a whole were dismissed.[2]In a document dated 29 January 2025 the Claimant applied for reconsideration of the Tribunal’s judgment.[3]Pursuant to a direction of mine, Mr Oliver Mills, counsel, who had appeared over half of the Respondent at the trial, delivered written representations responding to the application.
The applicable law
[4]By the Employment Tribunals Rules of Procedure 2024 (‘the 2024 Rules’), rule 68(1) the Tribunal has power to reconsider any judgment where it is ‘necessary in the interests of justice’ to do so.[5]Rule 68(2) provides that if the Tribunal considers that there is ‘no reasonable prospect of the judgment being varied or revoked’ the reconsideration application ‘must’ be refused and the Tribunal must inform the parties of the refusal.[6]At the heart of the Tribunal’s procedures generally is the ‘overriding objective’ of dealing with cases fairly and justly. This includes, so far as practicable, ensuring that the parties are on an equal footing, dealing with cases in ways which are proportionate to the complexity and importance of the issues, avoiding unnecessary formality and seeking flexibility in the proceedings, avoiding delay, so far as compatible with proper consideration of the issues, and saving expense (see the 2024 Rules, rule 3).[7]In Outasight VB Ltd v Brown [2015] ICR D11, Her Honour Judge Eady QC (as she then was), sitting in the EAT, observed that the wording of the rule (then rule 70 of the 2013 Rules) allowed Employment Tribunals a broad discretion to determine whether reconsideration of a judgment was appropriate in the circumstances. However, this discretion must be exercised judicially, ‘which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation’. The application[8]The application is well-expressed and wide-ranging. I have approached it by seeking to draw out what appear to be the central arguments or themes.
Analysis
[9]Preliminary observations It is no criticism of the Claimant to say that she does not have legal training or experience. She is not be criticised for that. But it may help her to understand my decision to reject her reconsideration application if I make the point at the outset that reconsideration is not intended to provide a disappointed party with an opportunity to re-litigate a dispute which has already been fully fought out at trial. To a large extent, the application seeks to argue points which were debated in evidence and closing submissions over five days in December 2024. We considered her arguments with care and gave our reasons for preferring those put forward on behalf of the Respondent. It would not be in keeping with the interests of justice or the overriding objective to call the matter on for ‘round two’ in the form of a reconsideration hearing. Doing so would also run counter to the cardinal principle that there must be finality in litigation.[10]Procedural irregularity or unfairness? The Claimant made a number of points to do with procedural matters at and around the December hearing. It is proportionate to deal with the following.(1) The Respondents did not call some potentially relevant witnesses. That may be right, but in the end it is for each party to decide what witnesses to call. It is also open to the opposing party to comment, where appropriate, on any choice to call, or not to call, a witness. The Respondents were not under an obligation to call any particular witness and there was no procedural unfairness in the choices they made in that regard.(2) The Respondents produced documents late. They did indeed, as the Tribunal commented, critically, in the reasons accompanying the judgment. But, for the reasons we gave, we were ultimately satisfied that a fair trial procedure had been followed and that the Claimant had not been materially prejudiced by the Respondents’ poor handling of the disclosure process.(3) The Respondents were late in producing a chronology and cast list. That is so but it did not occasion any substantial disadvantage to the Claimant or prejudice the Tribunal’s ability to do justice to the dispute.(4) A spreadsheet ‘filtered’ (apparently on grounds of relevance) was shared with the Claimant before the hearing but she did not have sight of the entire, ‘unfiltered’ document until late in the trial. Again, there was no prejudice to the Claimant. She was in a position to make full use of the document. I find in these points no ground for reconsidering our decision on the basis that it may rest on any form of procedural irregularity or unfairness.[11]Unfair dismissal The Claimant very largely draws attention to facts and evidence before the Tribunal and puts forward arguments which she was able to, and did, put before us. We had the facts and evidence in mind and gave our reasons for the conclusions we arrived at. In her application, the Claimant does not point to any material error or misunderstanding on the part of the Tribunal. Again, I find no reason to contemplate re-opening the dispute on the basis that any part of the Tribunal’s decision-making relating to unfair dismissal may be flawed and amenable to correction on reconsideration.[12]Discrimination Here again, the Claimant largely makes and develops the points and arguments advanced at the December hearing. Her case was fully considered at the time and the Tribunal gave its reasons for not accepting it. No ground is shown for giving her a fresh opportunity to put forward the same case at a reconsideration hearing. In addition, she mentions sex discrimination but her application to add a complaint of sex discrimination was rejected pre-trial and accordingly we had a no such claim before us.[13]Equal pay In relation to equal pay the Claimant puts forward arguments advanced at the trial or arguments which she was in a position to put forward. She also seeks to rely on new evidence acquired since the trial. Save in special circumstances, new evidence will not be admitted in support of a reconsideration application. The reasons are obvious: if it were otherwise, there could be a never-ending run of reconsideration applications to perpetuate the dispute. The Tribunal gave its reasons for upholding the Respondents’ ‘material factor’ defence. The application discloses no ground for saying that it is necessary in the interests of justice for its conclusions on equal pay to be re-visited.
Conclusion
[14]Having considered this application with care, I am quite satisfied that it must be refused. In essence, the Claimant’s case comes down to little more than her view that the Tribunal’s decision was wrong. The discretion to reconsider decisions was not created to give disappointed parties a second bite of the cherry. It must not be permitted to undermine the cardinal principle there needs to be finality in litigation. The claims have been carefully canvassed and considered and a fully reasoned decision given on them. Ordinary considerations of justice and in particular the factors to which the overriding objective is directed all argue against entertaining this reconsideration application.[15]Further and in any event, for the reasons fully set out in our original judgment, I am satisfied that there is no reasonable prospect that, following a reconsideration hearing, any part of the Tribunal’s decision would be varied or revoked. Accordingly, I must dismiss the application (see the 2024 Rules, rule 68(2)).[16]Finally, as I am sure the Claimant knows, although the reconsideration application goes no further, appeals lie from decisions of the Employment Tribunal to the Employment Appeal Tribunal, albeit only on points of law (and tight time limits apply). If she is interested in the possibility of appealing she might benefit from obtaining early independent professional advice.