Mr D S Saxton v Hinduja Global Solutions UK Ltd: 2305874/2023
JUDGMENT
[1]The Claimant’s claim for unfair dismissal is not well-founded and is dismissed.[2]This means that the respondent fairly dismissed the claimant by reason of redundancy. Reasons:[1]The Claimant was employed as an Operations Manager for the Respondent. The Respondent provides outsourced customer services across the UK. The Claimant was responsible for managing the day-to-day operation of single or multiple client campaigns within the Respondent’s business. The Claimant’s employment with the Respondent commenced on 2 November 2020 he was dismissed on 25th September 2023.[2]The Claimant claims unfair dismissal, the Respondent states that the dismissal was fair and by reason of redundancy.[3]The Claimant notified the Tribunal that he would not attend the final hearing due to the fact that he had to work. The case had been listed for a final hearing since December 2023. On 8th April 2024. Judge Heath considered the Claimant’s application to postpone the hearing, but refused the application. The Claimant explained in further correspondence that he had been unable to request leave from work prior to the end of March 2024 and was not then allowed the time off work due to the fact that there was an Case No:2305874/23 audit. I considered the overriding objective and decided that it was in the interests of justice that the case should proceed today. Even if the case had been adjourned today, the Claimant would not necessarily have been afforded the time off work to attend on another occasion, and the Respondent would, in the meantime, incur costs.[4]The Claimant had been informed by the letter on 8th April 2024 that the case would proceed in his absence.[5]Ms Redman for the Respondent made an application for the Claimant’s claim to be dismissed under rule 37 due to his non-attendance today. In view of the fact that the Claimant had been told that the case would be heard today and that the contents of his claim and his witness statement would be considered, I decided that it was in the interests of justice to proceed with the case today and therefore I did not dismiss the case under rule 37.[6]The Respondent called witnesses Elaine Kelly and Martha Horton who gave evidence and confirmed that the contents of their witness statements were true and accurate.[7]At the start of the hearing, the following list of issues was agreed upon:7.1 Was the claimant dismissed?7.2 What was the reason or principal reason for dismissal? Respondent says redundancy.7.3 If the reason was redundancy did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the Claimant.7.4 In particular whether:7.4.1 The Respondent adequately warned and consulted the claimant7.4.2 The Respondent adopted a reasonable selection decision including its approach to a selection pool7.4.3 The Respondent took reasonable steps to find the claimant suitable alternative employment7.4.4 Dismissal was within the range of reasonable responses. Facts:[8]The Respondent company specialises in business outsourcing and runs a number of different “campaigns” for a number of different organisations. The nature of the work is that it fluctuates and therefore staffing levels change depending on how many contracts have been secured for a given period.[9]The Claimant had been employed by the company since November 2020 as an Operations Manager.[10]During the first quarter of 2023, Ms Kelly, on behalf of the Respondent carried out a review of the Operations Team to understand whether any steps could be taken to increase its efficiency as there was a concern that the ratio of managers to agents within the Operations Team was too great.[11]After a full review, the Respondent decided that a restructure of the Operations Team was necessary in order to mirror the structure applied in other Operations Teams within the company and also to provide a clear career structure within the organisation. Case No:2305874/23[12]As part of the restructure of the organisation new salary bands were introduced that were wider ranging than previous bands. Existing employees who were at risk of redundancy were invited to apply for the new roles.[13]The employees were informed of the restructuring process on 11th July 2023 by way of a Teams meeting. Employees were informed of the procedures, consultations and the application process.[14]The Respondent company decided not to offer voluntary redundancies but explained the procedure that was to be followed, and job descriptions were given to the employees. As part of the procedure, each employee would have an individual meeting to guide them through the process and to assist them with any applications.[15]On 12th July 2023 Mr Saxton applied for Operations Manager level 4 and Operations Manager level 5 under the new organisation.[16]On 17th July 2023, Ms Kelly held an individual redundancy consultation meeting with Mr Saxton with Ms Horton attending as a note taker. Mr Saxton was offered the opportunity to suggest any alternatives to redundancy. He confirmed that he had applied for the new roles.[17]On 24th July 2023, Mr Saxton attended interviews for the Operations Manager but just before the interview he left the office and refused to participate any further in the interview process.[18]Ms Horton contacted Mr Saxton by telephone to try and persuade him to continue with the process but he said that the redundancy consultation was having an impact on his health and wellbeing and he could not understand why he was being asked to apply for his current role. He declined to attend the interview, he was offered further time but said that he no longer wished to be considered.[19]On 8th August 2023 a second redundancy meeting was held with the Claimant via Teams. Ms Horton again acted as a note taker. During that meeting, the Claimant did not ask any questions or suggest any alternatives to redundancy. He said that he felt that his role was already redundant as he was only spending 20 percent of his time on a certain campaign.[20]On 18th August 2023, a third redundancy meeting was held. The Claimant did not initially attend the meeting so Ms Horton contacted him and was told that he did not want to sit with Ms Kelly. He asked for the consultation to be conducted in writing and that was done.[21]The Respondent company gave the Claimant formal notice of termination on 25th August 2023. He was asked to work one month’s notice period and was paid a statutory redundancy payment plus an ex gratia payment of 1 month’s notice (in addition to the month’s notice period that he worked). The Law:[22]Section 139(1)(b) of the Employment Rights Ct states that there is a redundancy situation where the requirements of the 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 they are employed have ceased or diminished.[23]It is for the Employer to prove the reason for dismissal was redundancy but then there is no burden of proof on either party and the issue of whether the dismissal was reasonable is a neutral one for the Tribunal to decide.[24]In the case of Williams and others v Compair Maxam Ltd 1982 ICR 156 the EAT laid down guidelines that a reasonable employer might be expected to Case No:2305874/23 follow in making redundancy dismissals, but the test is whether the dismissal lay within the range of conduct which a reasonable employer could have adopted.[25]Those tests were outlined above as part of the list of issues:25.1 Whether the selection criteria were objectively chosen and fairly applied25.2 Whether employees were warned and consulted about the redundancy25.3 Whether if there was a union the union’s view was sought and whether an alternative work was available. Conclusion:[26]The Claimant has said that he was unfairly dismissed and that the redundancy was a “sham” and a cost-cutting exercise. Although the Claimant was not present today, I have considered his case and his witness statement.[27]I heard evidence from Ms Kelly who explained in detail why restructuring was necessary for the Respondent company and the reasons behind it. A thorough review had been carried out before the decision to restructure was decided upon. I found both Ms Kelly and Ms Horton to be straightforward, credible witnesses. Ms Kelly’s evidence was that work had diminished so that employees became surplus to requirements which led the company to restructure and reorganise which resulted in a more efficient use of labour. I found that this was an accurate account of the situation within the company and that this was a true redundancy situation within section 139(1)(b) of the Employment Rights Act 1996 (ERA).[28]I therefore find that the reason for the dismissal was redundancy.[29]I then considered whether the respondent company acted reasonably, I find that they did. They individually consulted all affected employees 3 times and offered the Claimant opportunities to apply for the new posts. When the Claimant withdrew his application, they checked that he was sure that he wanted to do so and tried to support him. The fact that the Claimant failed to engage fully in the redundancy process was not due to any unreasonableness on the Respondent’s behalf.[30]I therefore find that the Claimant’s claim is unfounded and dismiss the claim for unfair dismissal.REASONS
[1]Judgment was given in favour of the Respondent in this case on 9th April 2024.[2]On 10th July 2024 the Respondent submitted an application for costs against the Claimant under Rule 76 (1) (a) and Rule 76 (1) (b).[3]On 7th October 2024, a letter was sent to the Claimant inviting him to give reasons in writing why it should not be granted.[4]By 2nd December 2024, no response had been received from the Claimant. I have therefore considered the Respondent’s application for costs and my reasons for my decision are outlined below:[5]In their letter dated 10 July 2024, the Respondent submits that the Claimant continued to bring a claim for unfair dismissal against the Respondent which had no reasonable prospect of success after he was warned by the Respondent that his claim had no reasonable prospect of success and, even if successful, that his award would be nil (based on mitigation circumstances); and his failure to attend the final hearing or seek a postponement at an earlier and reasonable time.[6]The Respondent has exhibited letters that were sent to the Claimant on 6 February 2024 and 27 March 2024, advising him that they would be seeking an application for costs if the Claimant’s claim was unsuccessful. Both letters argued that even if the Claimant’s claim was successful, the basic award and compensatory award would be reduced to nil due to the fact that soon after his dismissal, the Claimant secured employment. The case was listed for a final hearing on 9th April 2024, the Claimant sought a postponement on 22nd March 2024 which was refused. The hearing proceeded in the Claimant’s absence and EJ Brady ruled that the Claimant’s claim was unfounded and dismissed the claim.[7]When considering an application for costs, the Tribunal must first consider whether the Respondent passes one of the gateways in the Employment Tribunal Rule 76. Secondly, the Tribunal must exercise discretion as to whether to make an award. Finally, the Tribunal must consider the amount of the award and the form of the award.[8]When considering the application, the Tribunal must bear in mind that Costs in Employment Tribunal are the exception rather than the rule, and also the fact that the Claimant in this case is unrepresented. Stage 1: Gateways to making an order: Case No: 2305874/2023 10.1 Judgment – no hearing - rule 60 February 2018[9]For the reasons outlined above, the Respondent relies on ET Rule 76 (1) (a) and ET Rule 76 (1)(b). ET Rule 76(1) states, “A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that- (a) A party (or that party’s representative) has acted vexatiously, abusively disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) of the way that the proceedings (or part) have been conducted; (b) Any claim or response had no reasonable prospect of success.[10]When considering the Claimant’s conduct, I have taken into account the fact that he was unrepresented. However, I find that the two “without prejudice” letters that were sent by the respondent were clear and fairly presented. Despite the warning that his claim would be of little monetary value, the Claimant pursued his claim but then failed to make the necessary arrangements and was unable to attend the hearing as he was unable to take time off work. He had been notified of the final hearing date on 13th December 2023 and had therefore had time to notify his employer of the hearing date.[11]I therefore find that the Claimant acted unreasonably by pursuing his claim after the “without prejudice” letters were sent and then failing to make the necessary arrangements to be present at the final hearing. Stage 2: Tribunal’s Discretion:[12]When considering whether or not to exercise my discretion, I have noted that costs in the Employment Tribunal are the exception, not the rule. However in this case, I note that the Claimant was repeatedly warned by the Respondent that a costs application would be made if he continued to pursue his claim, which, he was advised, had little prospect of success and was of very little monetary value. Despite this, the Claimant continued to pursue his claim. As the Claimant has not responded to the letter asking for his representations with regard to costs, it is not known whether or not the Claimant sought legal advice after receiving this letter, but he did continue with his claim.[13]On 22nd March 2023, the Claimant wrote to the Tribunal requesting a postponement of the hearing due to the fact that he was unable to secure time off work for the hearing. The application was refused and the Claimant was advised that the case would proceed in his absence.[14]For these reasons, I find that this is an exceptional case and therefore that costs should be considered.[15]I also note that costs should be compensatory and not punitive. Again, it is unfortunate that the Claimant has not responded to the request for representations.[16]I have also considered the Claimant’s ability to pay. The Claimant was asked to make representations but has not responded to the request. I do note however that he is now employed, and that his new salary is more than that that he was earning with the Respondent. On 9 October 2023, the Claimant’s Case No: 2305874/2023 10.1 Judgment – no hearing - rule 60 February 2018 new annual basic pay was £48,000 and his net weekly basic pay was £718.68. Stage 3: What Costs Order Should be made?[17]The Respondent has claimed for costs from 6 February 2024 up until 14 June 2024 which is £13,973.54 exclusive of VAT.[18]I have taken into account the Claimant’s ability to pay, and the fact that he was unrepresented and I order that the Claimant shall pay a contribution towards the respondent’s costs in the sum of £1,000 in total.