Ms D Atkinson v London Borough of Lewisham: 2301674/2021
EMPLOYMENT TRIBUNALS
Case No 2301674/2021
Between
Ms D AtkinsonClaimantLondon Borough of LewishamRespondent
Before
Employment Judge K AndrewsMr M Withers (instructed by Counsel) for claimantMr O Isaacs (instructed by Counsel) for respondentDate 23 February 2024
JUDGMENT
The claims of disability discrimination were submitted out of time in circumstances where it is not just and equitable to extend the relevant time limit and are therefore dismissed. The claim of unfair dismissal will continue. A case management discussion is ordered below.
REASONS
[1]In this matter the claimant complains that she was unfairly dismissed and subjected to disability discrimination by her former employer the respondent. This hearing was listed to determine whether the claims of disability discrimination which the parties agree were submitted out of time, should nonetheless be permitted to proceed on the basis that it is just and equitable in all the circumstances. The parties agree that the claim of unfair dismissal was submitted in time.[2]The claimant is disabled by reason of multiple sclerosis. After discussion and agreement with the parties, appropriate adjustments were made to the hearing in light of the impact of that condition upon the claimant. This extended the length of the hearing and consequently my decision was reserved. Evidence & Submissions[3]I heard evidence from the claimant on this preliminary issue and also considered a bundle of relevant documents.[4]Counsel for both parties made oral submissions supplementing their written submissions on the conclusion of the evidence.
Relevant Law
[5]Any complaint of discrimination may not be brought after the end of the period of three months starting with the date of the act complained of or such other period as the Tribunal thinks just and equitable (section 123 of the Equality Act 2010). To facilitate early conciliation by ACAS, that primary time limit may be extended by different periods of time depending on when conciliation was commenced.[6]The burden is on the claimant to convince the Tribunal that the discretion to extend time should be exercised (Robertson v Bexley Community Centre [2003] IRLR 434). In deciding whether to do so, the Tribunal has a very wide discretion and is entitled to consider anything it considers relevant subject to the principle that there are good public policy reasons why time limits appear in our legislation and they should be exercised strictly in employment cases. When Tribunals consider whether to exercise the discretion on just and equitable grounds there is no presumption that they should do so.[7]Lord Justice Underhill in the Court of Appeal has confirmed that the best approach for a Tribunal in considering the exercise of this discretion is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including in particular the length of, and the reasons for, the delay (Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23).[8]Where there is a series of distinct acts of alleged discrimination the time limit begins to run when each act is completed, whereas if there is conduct extending over a period the time limit begins at the end of that period (section 123(3)(a)). (This is distinct from an act with continuing consequences where time runs from the date of the act as above.)
Findings of Fact
[9]Having assessed all the evidence, both oral and written, and the submissions made by the parties I find on the balance of probabilities the following to be the relevant facts.[10]The claimant commenced employment with the respondent in April 2010. At the time of the termination of her employment she was a Programme Manager. She is educated, intelligent and articulate.[11]In 2019 the claimant was diagnosed with multiple sclerosis. This can cause a wide range of symptoms presenting as both physical and mental impairments. She has relapsing remitting MS meaning that there are times when her symptoms worsen, followed by a level of recovery. She describes herself as having good and bad days but of course the condition never goes away entirely and certain triggers, which includes stress, can either bring on the symptoms and/or make those symptoms worse. The respondent accepts that the claimant is disabled and was at all times relevant to her claims.[12]The claimant joined Unite, the union, in 2019 in response to a conversation with her manager in which concerns were raised regarding her performance. She discussed that issue specifically with the union at that time and from that point had access to the union website and their general services for members which undoubtedly would at least to some extent extend to legal issues arising in the workplace. She was generally aware that her union could support her in Tribunal matters.[13]The claimant was absent from work due to MS symptoms from early August 2019 until 6 January 2020 when she returned to work full-time. She remained at work until her employment terminated.[14]The evidence before me as to the claimant’s medical position during the relevant time period included a medical report by the claimant’s consultant neurologist prepared in April 2020, based on two detailed neuropsychological assessments the previous month. This confirmed that her condition was broadly well-maintained and that she functioned at expected levels or above on all measures of cognitive functioning examined. Further that she sustained a high level of cognitive functioning across various domains including attention and concentration although she was advised that her attention may fluctuate when tired and that she should try to balance her workload and the working day with ample short breaks. The claimant did say that these tests do not reflect real life conditions particularly in stressful situations. Whilst I accept that to some degree, they do nonetheless give a medically assessed and relevant insight into her level of capacity at that time.[15]The claimant’s GP records from March 2020 to May 2021 make no reference to any deterioration in the claimant’s cognitive function or any side effects to medication.[16]On 10 March 2020 the claimant submitted a seven-page, well drafted and detailed grievance regarding her treatment at work since February 2019. This grievance was drafted by her without union assistance and included a reference to the respondent’s duty to make reasonable adjustments on account of her disability.[17]The claimant attended a lengthy grievance hearing in July 2020. Although supported by her union representative, having had a number of conversations with him beforehand, the claimant presented her own case at the hearing. She was familiar with a very significant amount of associated paperwork to which she wanted refer in detail but was stopped by the grievance chair.[18]The grievance outcome was sent to the claimant on 3 August 2020.[19]On 17 August 2020 the claimant submitted a 19-page appeal with a detailed critique of the decision made and the process followed. She made numerous references to various legal obligations that she said the respondent had breached including references to the Equality Act, ACAS codes of practice and reasonable adjustments to which she said she was entitled ‘by law’.[20]In September 2020 another restructure of the respondent commenced.[21]On 1 December 2020 the grievance appeal was heard. Again the claimant was supported by the union but she presented her arguments herself.[22]The claimant was notified by letter dated 8 December 2020 (sent by email) that the original outcome of her grievance was upheld.[23]The claimant’s GP’s notes show that on 20 January 2021 she reported to the nurse that she was ‘being treated badly at work and may lodge a complaint’. The claimant’s evidence was that what she meant by that was a complaint to senior people within the respondent organisation which she subsequently did. I accept the claimant’s evidence in this regard. If the note had said she was considering lodging a ‘claim’, I might have found otherwise.[24]On 6 February 2021 the claimant’s employment terminated due to redundancy.[25]The claimant contacted ACAS on 19 April 2021 and the relevant early conciliation certificate was issued on 21 April 2021.[26]The claimant submitted her claim form to the Tribunal on 6 May 2021.[27]The claimant’s evidence regarding when she first took legal advice regarding her employment position was not very clear and to some extent contradictory. It is apparent however that she had taken such advice on more than one occasion before mid-March 2021.[28]The claimant’s evidence was that no one ever raised the issue of time limits for submitting a claim to the Tribunal with her and she did not come across that in her own research. Discussion & Conclusion[29]As stated above, the parties agree that the discrimination claims were submitted out of time. How far out of time they were depends upon whether they are claims about distinct acts at different times or conduct extending over a period that ended on conclusion of the grievance process.[30]As the time limit issue has been taken as a preliminary point, I have not had the benefit of hearing all the evidence as would more typically be the case when determining whether it is just and equitable to extend time. For the purposes of this decision, therefore, I work on the basis that the latest time could have expired was conclusion of the grievance process and the claim was almost exactly two months out of time - a not insignificant period of time.[31]There are a number of relevant factors to consider in deciding if it is just and equitable to extend time in the claimant’s favour.[32]I am extremely sympathetic to the claimant’s health situation and recognise the very significant impact her condition has, and had, on her. Notwithstanding that she attended work from January 2020 until termination of her employment as well as fully participating in person in a very detailed - and no doubt stressful - two stage grievance process. Even taking into account the nature of her disability, she clearly was at the relevant time - even if intermittently - able to research and formulate complex concepts. The language used in her grievance submitted in July 2020 shows that by then she had more than a passing understanding of her legal protections.[33]Furthermore, the claimant was not acting in isolation. She had the benefit of union membership from 2019 with engagement with her representative from at least summer 2020. In addition, she instructed solicitors specifically with regard to her employment situation at the very latest in the first quarter of 2021.[34]Clearly there is a significant prejudice to the claimant if she is not allowed to pursue her claim of disability discrimination. I do not accept the respondent’s argument that because she has quantified injury to feelings at £12,000, that is the only measure of prejudice to her. There is undoubtedly a non-financial value, potentially a significant one, to any claimant of having their complaint heard and adjudicated on by an independent panel. Success at the Tribunal is not only measurable by any financial compensation awarded. I do accept, however, that in contrast there is a significant additional cost that the respondent will be put to if the discrimination claims proceed. The parties’ best estimate is that it would require an additional nine days of Tribunal hearing and a significant additional amount of documentary evidence (1,000+ pages). To that the claimant says if the claim had been submitted in time the respondent would have had to deal with this additional cost, but it was not put in time and therefore this is an avoidable additional cost.[35]The respondent also says that they would be severely prejudiced if the claims are allowed to continue because a number of their relevant witnesses have now left employment and as the claims do not sit on all fours with the allegations made in the grievance, they would have to call at least some of those witnesses possibly under witness order and therefore ‘blind’. That is of course possible. It is also possible - and perhaps probable - that those witnesses would be willing to attend voluntarily. At the moment the respondent simply does not know. I do not find this therefore to be persuasive as to prejudice faced by the respondent if the extension of time is granted.[36]Overall, however, I find the parties to be equally prejudiced if the decision goes against them and prejudice is not therefore not determinative of whether the discretion should be exercised.[37]The key issues to look at are the length of and reasons for the delay. As stated above I am working on the basis of a 2 month delay.[38]The claimant relies upon the fact of the grievance process as a reason for the delay. The grievance was lodged on 10 March 2020 and the appeal outcome was communicated to the claimant on 8 December 2020. It is well established that the fact that a claimant instigates a grievance and that grievance take some time to conclude, does not in itself extend time in the claimant’s favour. Equally, it is not completely irrelevant that a grievance has been filed. In the circumstances facing all employers in 2020 I do not consider that the respondent took an inordinate amount of time to deal with the grievance, particularly given the amount of detail included in it.[39]The greater significance of the grievance is what it tells us about the claimant’s ability to analyse and present complex information - both factual and legal - and to attend, particularly in the first instance, a lengthy and no doubt stressful hearing and acquit herself well. There is no doubt that the grievance and the grievance appeal documents show that at that time the claimant was very able to deal with matters of this nature, carry out research and present her case extremely professionally and to a very high standard.[40]The claimant does say however that because of her medical condition she was only able to deal with a certain amount at any one time. In effect just because she was able to deal with the grievance so well does not mean that she was able to also grapple with whether she had a valid employment claim and how she should go about presenting that and manage any time limits in that respect. Further, the claimant says that she was dealing with the fact that she was subject to a redundancy process which was also running from September 2020 ultimately resulting in her termination in February 2021[41]I note, however, that there would have been significant periods between March and December 2020 when her work on the grievance had been done and she was waiting for the respondent to come back to her with a response. Further, that process came to an end on 8 December 2020 and it was made very clear to the claimant that there were no further steps she could take with regard to that internal process.[42]It is also relevant to take into account not only the efforts made by the claimant to establish her position with regard to perhaps bringing a Tribunal claim, but what efforts she could have made. Her evidence was vague in respect of exactly what advice she sought and received from her union representative and her legal representatives. To some extent this was understandable given everything that she was dealing with at the time. What I find extremely surprising, however, is the lack of specificity as to when she instructed her legal team (who are still representing her today) as this must clearly be the most straightforward matter of record on their own files and confirming that would not involve waiving or breaching privilege.[43]Even if I give the claimant the benefit of the doubt up until mid-March 2021, her own evidence is that at that stage she was able to take time to collate her papers and take full advice. I accept that circumstances were difficult and it can take time to obtain approval from insurers to proceed with legal matters but there remains an unexplained delay from mid-March 2021 through to the claimant contacting ACAS on 19 April 2021 and, once the conciliation certificate was issued on 21 April 2021, submitting her claim form on 6 May 2021.[44]Taking all of these matters into account, I do not find that it would be just and equitable to extend time in favour of the claimant. Notwithstanding her undoubted health issues, she had access to advice from 2019, she was clearly very able to research complicated matters herself and present those matters both orally and in writing as well of course as working full time throughout this period. She had the ability to put her claim in in time and the necessary support to do so. Therefore, the Tribunal does not have jurisdiction to hear the claims of disability discrimination and they are dismissed.[45]The claim of unfair dismissal will proceed to be listed for 5 days. Dates will be sent to parties in due course.[46]A provisional case management discussion has been listed for 1 February 2023. If the parties are able to agree directions and avoid the need for that hearing they shall please do so and notify the Tribunal as soon as possible.[47]Recruitment for the new roles in the second restructure took place during the period from March to June 2021.[48]The claimant brought her grievance against Ms Beckman and Ms Fiagbe on 21 February 2020 (at B344-349). A grievance hearing was conducted by Joan Hutton, the Director of Operations, Adult Social Care, on 13 July 2020. The claimant was present and represented by her trade union. The notes of that meeting are at B388-415. By a letter dated 3 August 2020, Ms Hutton wrote to the claimant partly upholding her grievance (at B523-526).[49]The claimant appealed against the outcome of her grievance on 17 August 2020 (at B534-552). The appeal hearing was conducted by Kevin Sheehan on 1 December 2020. The claimant was again represented by her trade union. By a letter dated 8 December 2020, Mr Sheehan wrote to the claimant effectively rejecting her appeal but making a series of recommendations for the future (at B689-691).[50]In essence, the claimant’s grievance was about: a) her disability and the lack of support on her return to work and the provision of reasonable adjustments; b) insufficient handover of work streams affecting her ability to preform her Page 7 of 19 duties; and c) insufficient information provided to her about the closure of the Section and the pending restructure.[51]In essence, Ms Hutton reached the following conclusions: with regard to a) she partially upheld this element of the grievance; with regard to b) she upheld this element of the grievance; and with regard to c) she did not uphold this element of the grievance and in particular found that sufficient information was provided to the claimant albeit perhaps not effectively informally in discussions within 1:1 meetings but were clearly notified within the documentation and there was formal consultation within the Change guidelines.[52]On appeal, Mr Sheehan upheld the outcome of the grievance but made a number of recommendations: 1) training for managers in question to support them with the management of sensitive/challenges facing their staff; 2) training for managers in question in the implementation of the sickness absence policy including disability awareness guidance; and 3) refresher Change Management training for managers in question.[53]It was only this third point of the grievance and appeal that touched upon the issue of the restructuring and redundancy.[54]Mr Van Der -Firth, the Interim Head of Economy, Jobs and Partnership. At the relevant time he was an officer in and around the conversations relating to project delivery and the 2020 restructure consultation, which created the Jobs and Skill Programme Lead role which he secured.[55]His evidence (in the absence of evidence from the decision makers themselves) was that the way in which decisions are made by the respondent it was highly unlikely that any one person would have made such decisions notwithstanding their name appearing on a document. This is significant given the claimant’s assertion that she was being singled out by Ms Fiagbe and/or Ms Beckman. His further evidence was that proposals, recommendations and decisions would effectively be collectively dealt with and would go through a number of hands including departmental managers, the Finance department, HR and then to Directorate level before being signed off. He had limited knowledge of the events in question but nevertheless I accepted his evidence.[56]I also heard evidence on behalf of the respondent from Ms Sumner, an HR adviser, as to policy and procedure. However, she candidly accepted that she had no involvement in the decision-making process and had not provided the decision-makers with any HR advice or assistance at the time.[57]Even though Mr Van Der Vliet-Firth, had limited knowledge of the events in question, he was able to give evidence from a more informed and experienced perspective and with knowledge of the policies and procedures involved. Submissions[58]I heard oral submissions from both Counsel. I do not propose to set these out here unless appropriate to refer to them in my conclusions. However, I Page 8 of 19 would reassure both parties that they were fully taken into account in reaching my decision. Essential Law[59]Section 98 of the Employment Rights Act 1996: “(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—(a) the reason (or, if more than one, the principal reason) for the dismissal, and(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee,(c) is that the employee was redundant, or(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment… (4) [In any other case 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.”[60]Section 139 of the Employment Rights Act 1996: “(1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to—(a) the fact that his employer has ceased or intends to cease— (i) to carry on the business for the purposes of which the employee was employed by him, or (ii) to carry on that business in the place where the employee was so employed, or(b) the fact that the requirements of that business— (i) for employees to carry out work of a particular kind, or (ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish…”
Conclusions
[61]This is a complaint of unfair dismissal arising for consideration under sections 94 and 98 of the Employment Rights Act 1996 (“ERA”).[62]I first had to consider whether the respondent has shown a potentially fair reason for the claimant’s dismissal within section 98 ERA. The Respondent avers that the claimant was dismissed by reason of redundancy. Page 9 of 19[63]Redundancy has a specific meaning ascribed to it within section 139 ERA. In broad terms, there are three main redundancy situations: closure of the business as a whole; closure of the particular workplace where the employee was employed; and a reduction in the size of the workforce. The case before me potentially falls within the latter of these under section 139(1)(b).[64]A dismissal is by reason of redundancy if it is “wholly or mainly attributable” to a number of factors. This includes at section 139(1)(b) where the fact that the requirements of that business for employees to carry out work of a particular kind or for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.[65]In the case before me the respondent decided, given a number of factors, including a falling off in the particular work of the LLBS Team and specifically the ending of the GLA 3 year funding grant, that it did not require the work of the Team to continue in the way that it did and decided to revert to the preGLA funded structure. This diminution involved a reduction of the numbers in the team and a revision of the duties that the identify new posts were to undertake, their seniority and their pay grades. As a result the claimant’s post was deleted.[66]I think there can be no doubt that what was proposed and what happened falls within the legal definition of redundancy. Indeed, whilst the claimant challenges the fairness of her dismissal, she accepts that it was a redundancy situation.[67]I therefore conclude that the respondent has shown that the potentially fair reason for dismissal is redundancy. Test of reasonableness[68]I then turned to consider the reasonableness of the decision under section 98(4) ERA as it applies to the claimant’s dismissal for the reason shown, that being redundancy.[69]In particular, I considered those matters which might render a dismissal for redundancy unfair as identified by the Employment Appeal Tribunal in Williams v Compair Maxam Ltd [1982] IRLR 83, EAT, as approved by Robinson v Carrickfergus Borough Council [1983] IRLR 122, NICA. These can be summarised as follows:a. That there was no genuine redundancy situation;b. That the employer failed to consult;c. The employee was unfairly selected; ord. That the employer failed to offer alternative employment.[70]I accept that these are not principles of law but rather standards of behaviour which may alter over time in accordance with the prevailing understanding of what constitutes good industrial relations practice (one obvious point being that they now often have to be applied to establishments with no trade union recognition). Page 10 of 19[71]In Polkey v A E Dayton Services Ltd [1987] IRLR 503, the House of Lords, as it then was, expressly referred to the relevant procedures required in a redundancy dismissal in the following terms: “… in the case of redundancy, the employer will normally not act reasonably unless he warns and consults any employees affected or their representatives, adopts a fair decision which to select for redundancy and takes such steps as may be reasonable to minimise a redundancy by redeployment within his own organisation.” Genuine redundancy[72]It is well established in case law that it is not open to an employee to challenge whether the employer acted reasonably in creating the redundancy situation and equally the Tribunal cannot investigate the commercial and economic reasons which prompted the situation or look into the rights and wrongs of the employer’s decision (James W Cook & Co (Wivenhoe) Ltd v Tipper and others [1990] IRLR 386, CA; Moon v Homeworthy Furniture (Northern) Ltd [1976] IRLR 298, EAT.)[73]However, the Tribunal is entitled to investigate whether the redundancy situation is in fact genuine (James W Cook & Co (Wivenhoe) Ltd v Tipper and others [1990] IRLR 386, CA.)[74]Mr Withers also referred me to Timex Corporation v Thompson [1981] IRLR 522 in which Browne Wilkinson J, said giving judgment for the EAT: “Even where there is a redundancy situation, it is possible for an employer to use such situation as a pretext for getting rid of an employee he wishes to dismiss. In such circumstances the reason for dismissal will not necessarily be redundancy. It is for the Industrial Tribunal in each case to see whether, on all the evidence, the employer has shown them what was the reason for dismissal, that being the burden cast on the employer by s.57(1) of the Act (as section 98 then was).”[75]In addition, Mr Withers also referred me to Mefful v Merton and Lambeth Citizens Advice Bureau UKEAT/0160/18 at [42 & 51], in which HHJ Eady QC (as she then was) said as follows: “For the dismissal to be by reason of redundancy, it was not sufficient for the ET to simply find there was a redundancy situation. It had to determine whether redundancy – as defined by section 139 ERA 1996 – was the real reason for the Claimant’s dismissal. That is, whether his dismissal was wholly or principally by reason of the fact that the requirement of the Respondent’s business for employees to carry out work of the particular kind he was employed to perform had ceased or diminished or was expected to do so. … “To determine that question, the ET will need to decide who made the decision and when.”[76]From the evidence before me, I reach the conclusion that the redundancy was driven by the falling off in the work of the LLBS Team and in particular the end of the GLA funding without there being any alternative replacement funding. Whilst there was section 106 funding, this in itself was insufficient to maintain the existing structure. Whilst the claimant believed the underspend in GLA funding could have been used, in fact it was used to continue to fund the existing posts until September 2020.[77]I am satisfied that such decisions are not necessarily down to one decisionmaker, particularly in a bureaucracy such as a local authority. Whilst the names of Ms Fiagbe and Ms Beckman appeared on the restructuring Page 11 of 19 documents and they conducted or attended meetings to discuss the restructuring, I accept that it was unlikely that one or other or both would have had sole/joint decision-making power. As I have indicated I accepted Mr Van Der Vliet-Firth’s evidence (in the absence of evidence from the decision makers) that it was highly unlikely that any one person would have made such decisions notwithstanding their name appearing on a document. Further, that proposals, recommendations and decisions would effectively be collectively dealt with and would go through a number of hands including departmental managers, the Finance department, HR and then to Directorate level before being signed off.[78]The claimant believes it was Ms Fiagbe and/or Ms Beckman who made the decision and that they acted in bad faith given the grievance that the claimant had brought against them. To an extent this extended to Ms Colley, given her alleged failure to deal with the ongoing behaviour she complained about.[79]In effect, the claimant is alleging that whilst the redundancy itself is genuine, it was engineered in such a way as to make her post redundant and not offer her alternative employment, and, from the efforts she made to raise challenges to the proposed restructure, I think it fair to say that she believed it was not necessary to undertake a restructuring.[80]I can understand believing this to be so, perhaps as a gut feeling, as I would call it. But in terms of tangible evidence, it is, with the deepest respect, purely conjecture. The only tangible evidence I had was from Mr Van Der Vliet-Firth, who from his experience stated that it was highly unlikely that any one person would have been able to reach such decisions alone, even if they were shown as the author on a document. He stated that this is because such proposals and decisions would have to go through a number of hands including Finance, HR and to a Director before being signed off. On balance of probability I also accepted this, as indicated above. There is no evidence to suggest that redundancy was not genuine or that this was not the reason for the claimant’s dismissal.[81]I was concerned that the respondent did not call evidence from those said to be involved in the restructuring process. That is Ms Fiagbe and/or Ms Beckman and/or Ms Colley and/or those HR advisers involved at the time. They may have left the respondent’s employment, as Mr Van Der Vliet-Firth also stated in evidence but it is of course possible to obtain witness orders if witnesses will not attend voluntarily. Although, I appreciate that there are practicalities securing attendance, even so. However, it is a matter for the respondent who they call to give evidence. I draw no inferences from the absence of any particular witness. My focus is on consideration of the evidence before me and whether the respondent discharges the burden of proof placed upon it and satisfies the test of reasonableness which is a neutral burden.[82]As it was, as I have indicated, I heard evidence on behalf of the respondent from Ms Sumner, an HR adviser, as to policy and procedure but she candidly accepted that she had no involvement in the decision-making process and had not provided the decision-makers with any HR advice or assistance at the time. Also I heard evidence from Mr Van Der Vliet-Firth, as I have said, who had limited knowledge of the events in question but came at it from more Page 12 of 19 of an informed and experienced perspective and with knowledge of the policies and procedures involved.[83]Nevertheless, I am satisfied that the respondent came to a business decision to restructure its LLBS Team given the downturn in the work it undertook and the loss of the bulk of its funding. This was a corporate decision made by a local authority, communicated to affected staff in the re-organisation document in March 2020, during the consultation process, the letter to the claimant confirming notice of redundancy/redeployment dated 6 August 2020 (at B529) and the letter to the claimant terminating her employment on grounds of redundancy dated 29 January 2021 with effect from 6 February 2021 (at B713).[84]Whilst the claimant suspects that this process was engineered to result in her redundancy because of her grievances against named individuals, which were to an extent running in tandem with this process, there is no evidence in support of this other than her conjecture and the temporal coincidence. I am bolstered in this conclusion by Mr Van Der Vliet-Firth’s evidence that such decisions are in effect taken corporately and no one person would be in a position to sign them off.[85]Whilst an employee may not agree with a decision and it may appear to be short-sighted, wrong or not in the best interests of the service to be provided to the community or indeed they believe is taken in bad faith (the latter point there being no evidence to support), that does not mean it is open to challenge or that it does not amount to a genuine redundancy. There is a dividing line between the business decision and whether it is genuine or not.[86]I heard submissions from Mr Withers as to the timing of dismissal and the reasons for it. In essence he referred me to authorities which state that for the reason for dismissal to be admissible it must be constant through the process of dismissal which begins from notice and lasts through the period leading to the dismissal itself.[87]This issue arises because there was a long period of time between the confirmation of notice of redundancy and termination of employment on grounds of redundancy. This was to a large extent due to the onset of the Covid-19 pandemic from February/March 2020 and the period of the first lockdown. The claimant was also given an extended period of redeployment of 6 months under the respondent’s policy in view of her disability status.[88]The claimant’s position is as follows. By the point at which termination of employment was notified the situation had changed. At the meeting which the claimant attended with the two other affected employees held on 1 July 2020, Ms Colley said that there were no new jobs and no new money. However there was a subsequent wider reorganisation of the department/division which resulted in proposals being put forward in essence resulting in the creation of 9-10 new posts.[89]Mr Withers submits that by this point there was a change because there is new money and there are new jobs and that the respondent gave no consideration as to the impact on the claimant’s redundancy as at February Page 13 of 19 2021 when her employment ended (notice of which was given on 29 January).[90]I would add that the only direct testimony was from Mr Van Der Vliet-Firth which pointed to the funding being sought at the point at which the reorganisation was notified and not becoming available until much later at the point at which the jobs were then to be recruited to.[91]To an extent, my ability to determine the matter was again hampered by the limited nature of the direct evidence (indeed neither from Ms Colley nor from Mr Moore).[92]However, the evidence indicates that there was a comprehensive reorganisation of the entire Economies & Partnerships Team which did not involve making any redundancies. The additional posts were envisaged to be recruited to by the end of the year but this was put back because of funding issues (B613). It was envisaged that recruitment to the new posts would be phased. This resulted in a delay in recruiting the new head of service post which was done first and thereafter a delay in recruiting the other posts until March 2021. I can see from the correspondence that the claimant was involved in the process of consultation about these changes.[93]But the simple fact of the matter is that the new post or posts which the claimant is suggesting she should have been considered for were not recruited to until after her employment had ended. The claimant and her witnesses were not able to give any direct evidence as to when these jobs would have become available.[94]The closest we had to direct evidence was Mr Van Der Vliet-Firth, given his involvement in applying for and successfully obtaining the post of Jobs Skills Manager (which would appear to be the specific job the claimant was referring to). He was not interviewed until April 2021 and did not commence in the role until May 2021. There is no reason to doubt this.[95]Ms Sumner said in evidence that in her general experience if a job was advertised say in March 2021 then it was likely it would be ready to advertise say in February 2021.[96]Mr Withers relies on this as evidence that the Respondent knew that there were available jobs that could have avoided the need for the claimant’s redundancy.[97]Ms Bell submitted that even if one assumes that the adverts were ready in February that is not the same thing as the role being available because up until the point of advertising, the job the decision-makers could have decided not to proceed with the recruitment. She further submits that the job was not advertised until March 2021 and this was after the claimant had left and that whilst it is unfortunate and the Claimant may feel hard done by it does not make it unfair.[98]Ms Bell referred me to the case of Octavius Atkinson & Sons Ltd v Morris [1989] ICR 431, CA. This is a case with an even more acute timetable than the case before me. However, the principle it sets out is that alternative Page 14 of 19 employment arising after termination of employment does not give rise to an obligation upon an employer to offer it to the affected employee.[99]The difficulty for the claimant in the case before me is that, beyond the specific dates identified by Mr Van Der Vliet-Firth, there nothing concrete to determine this matter on. So what I am left with is the bald position that the claimant was given notice of termination on 29 January with effect from 6 February and additional jobs or his job at least were not advertised until March 2021, ie after her employment had come to an end. Anything further than this is conjecture. Failure to consult[100]An employer should give as much warning as possible of impending redundancies to enable any recognised trade union and affected employees to consider possible alternative solutions and if necessary, find alternative employment (Williams v Compare Maxam Ltd [1982] IRLR 83, EAT).[101]Consultation is very important in redundancy situations and can take many forms. At one end of the spectrum it involves collective discussions and meetings with a recognised trade union; at the other end it will entail discussions with individual employees who are likely to be made redundant. Failure to consult individually may well make a dismissal unfair, although compensation may be limited if consultation would not have made any difference to the outcome.[102]Consultation requires the employer to consider options which would not involve making the employee redundant, including early retirement, seeking volunteers, alternative employment, lay-off and short-time working. The employees and their representatives should be involved in this process. Consultation means more than communicating a decision already made.[103]I am satisfied from the evidence that there was both informal and formal consultation with the affected employees including the claimant. There were a number of team meetings during January 2020 at which the issue of the expiry of the GLA funding was discussed. Whilst these were not labelled as consultation meetings, they were clearly discussions held on an informal level. Even if an end date for the loss of funding and any resultant changes may not have been identified, as the claimant states, she was the LLBS Manager and in particular would have been under no misapprehension as to the date on which the funding would come to an end, notwithstanding any underspend she referred to, and the likely impact on the LLBS Team if it was not possible to replace it and so ability its undertake the same level of work.[104]The reorganisation document was sent to staff in March 2020, setting out clearly the rationale, the proposals, identifying the affected employees, setting out the process and giving a timetable (which was subsequently extended in view of the lock down. The document attached the existing and proposed new structure and the job descriptions and person specifications for the new posts. The document also invited staff comments and in addition offered to deal with any concerns staff may have and invited them to get in contact to arrange an appointment. Thereafter, staff comments/questions, including those provided by the claimant, were incorporated into a document Page 15 of 19 containing management responses. There was then a DJCC meeting at which extraordinarily the claimant was allowed to attend, at which she made a joint presentation to the meeting and I was referred to the presentation document within the bundle. The claimant also attended with other affected members of her team a meeting with Ms Fiagbe and Ms Colley at which she had the opportunity to and did raise and comments as to the proposed restructuring.[105]Indeed much of this went further than simply querying the need to make redundancies but actually questioned to an extent the business decision that had been taken. Whilst this is understandable it was not within the claimant’s or the other affected employees’ remit.[106]The correspondence also indicates that the claimant was given a number of opportunities to approach the respondent if she had any queries or concerns about her redundancy. However she chose not to do so.[107]Whilst there may not have been one-to-one consultation as such, there was clearly consultation both informally and formally, with the affected employees, including the claimant and at which the trade unions were offered the opportunity to attend and at which the claimant had full opportunity to and did advance her own queries and concerns. I therefore find it somewhat disingenuous to assert that consultation somehow did not take place or was inadequate. Selection[108]As Ms Bell submitted, the claimant’s case on selection is unclear. It is blandly set out within the particulars of claim at paragraph 11 (B14). This led to further and better particulars and the replies at B69-70, at paragraphs 20 and 21.[109]With regard to paragraph 20, I do not accept that the claimant was never made aware of her selection for redundancy through consultation or otherwise. Whilst there may have been meetings with her team when she was absent from the office, she was clearly involved in the consultation process and aware of the restructuring proposals and participated in it. She was sent notice of possible redundancy.[110]With regard to paragraph 21, whilst it is asserted that the involvement of Ms Fiagbe and Ms Colley, who it is also said plainly disliked her, rendered the selection process unfair, as I have said this is pure conjecture not based on any tangible evidence beyond the raising of grievances which to an extent were extant at the time.[111]It is clear that the claimant was selected for redundancy because her post was deleted as a result of the restructuring. There is no wider pool to consider and it would not be reasonable to have expected the respondent to have done anything different. The claimant asserted that the revised manager post at PO 5 was in fact her previous position and so it should have simply been offered to her. However, I do not believe this and will deal with it later on in my judgment. Page 16 of 19[112]The claimant does appear also to assert that there should have been another process of selection for redundancy in July 2020 when Mr Moore undertook a wider reorganisation of the entire department/division. At this stage it is asserted that she should have been included in a wider pool. However, I accept Ms Bell’s submissions that this is based on a fundamental misunderstanding of what happened at that stage. All that happened was that the top of the pyramid, as she called it, changed from Corporate Services to the Housing, Regeneration & Public Realm Directorate. The Jobs Skills and Employment Team did not come into existence until a later date and the issue of the new roles that then became apparent can only be relevant to alternative employment. Alternative Employment[113]An employer must at least look for alternative employment and should offer any suitable available vacancies. The employer’s duty is not limited to offering similar positions or positions in the same workplace and it should consider the availability of any vacancies with associated employers. When offering alternative employment, the employer must give sufficient detail of the vacancy and allow (unless the job functions are obvious) a trial period. Failure to do so could make a dismissal unfair (Elliott v Richard Stump Ltd [1987] IRLR 215, EAT.) It is up to the employee whether to accept the alternative employment, which might even involve demotion or a reduction in pay (Avonmouth Construction Co v Shipway [1979] IRLR 14, EAT.) Employers should consult about possibilities and not make assumptions about what jobs an employee would find acceptable. It can of course affect the employee’s chances of succeeding in a claim of unfair dismissal if she unreasonably refuses a suitable alternative offer of employment or the amount of compensation awarded if they do win. It is also worth stressing, that one of the main purposes of consultation is to consider other employment as an alternative to dismissal.[114]The claimant was offered the opportunity to apply for the manager role at PO5 but did not do so. She was sent information regarding redeployment in the Redeployee Briefing (at B253-290). This made it clear the process to follow to find vacancies made it clear that the onus was upon her to do so. She was reminded of this in correspondence. The claimant did not apply for any positions of redeployment. Beyond stating that she had transferable skills and could have been offered alternative roles that were suitable for her she did not identify any beyond the LBBS Manager role at PO5.[115]There was a suggestion raised as an issue that bumping should have applied although I accept that this is not used in the true sense of the word but it was meant in the sense that the claimant should have automatically been slotted into the position of LLBS Manager on the basis that this was the job that she undertook prior to the restructuring arising from the receipt of GLA funding.[116]The Redeployee Briefing at B260 contains a definition of suitable alternatives for the purposes of redeployment. This states that a post of the same grade or one grade higher with relevant job skills amounts to a suitable alternative job offer, whereas if the job is one grade lower but with relevant job skills it amounts to offer alternative employment. This distinction appears to have been made because of course an unreasonable refusal of an offer of suitable Page 17 of 19 alternative employment can result in the loss of entitlement to a redundancy payment.[117]I find that it is not outside the range of reasonable responses for the respondent to choose not to match the claimant to that role given that it cannot amount to suitable alternative because it is not at the same grade or one grade higher than the claimant’s existing position. Whilst the claimant was undertaking the role in the past, it was not the role that she was undertaking at the point of restructuring and her redundancy.[118]The claimant was made aware of the existence of the role and she was invited to apply for it. This is not an unreasonable position for the respondent to take and certainly fulfils in the very least the requirement to consider alternative employment. Whilst the claimant chose, perhaps for very understandable reasons, not to apply for this job or any other positions, that was her decision and cannot be attributed to the failing of the Respondent and place at the foot of their door.[119]If, and I am not sure that it was, suggested that Jobs Skills Manager post should have been offered to the claimant, of course it was not available to the claimant until it was advertised and that was in March 2021 after her employment had ended.[120]There is a need to look at the matter in the round so as to determine whether dismissal is within the band of reasonable responses (Grundy (Teddington) Ltd v Plummer and Salt [1983] IRLR 98, EAT).[121]The respondent was faced with the position where a substantial amount of funding had come to an end in respect of a project which had not necessitated the amount of work that had originally been envisaged. It decided to scale down the operation and this resulted in a number of posts being deleted, including the claimant’s. She was not matched to the new manager role because it was at a lower rate of pay and did not fit within the respondent’s definition of suitable alternative employment. She was ring-fenced at the initial stage to apply for that post, offered an extension of the time within which to apply, did not do so and then offered the opportunity at a second stage ring-fencing, which included at that stage the Apprentice and again did not do so. She was given a six-month period extended redeployment and invited to apply for vacancies within the respondent’s organisation but did not do so. Whilst there was a wider restructuring of the entire department resulting in additional posts being created, these did not become available and were not advertised until after her employment. Whilst the claimant might not have agreed with the initial business decision, the resultant restructuring and the deletion of her post or that she should have not have been offered what she believe to have been her previous position, I find that her dismissal and the procedure followed reasonable and within the band of reasonable responses open to an employer in these circumstances. Page 18 of 19[122]In all of the circumstances I find her dismissal to have been fair. Her complaint is therefore unfounded and her claim is dismissed. Employment Judge Tsamados Date: 21 January 2025 Public access to Employment Tribunal Judgments All judgments and written reasons for the judgments are published online shortly after a copy has been sent to the Claimant(s) and Respondent(s) in a case. They can be found at: www.gov.uk/employment-tribunal-decisions. Page 19 of 19