R Brown v The Church of England Children’s Society: 2406253/2020
EMPLOYMENT TRIBUNALS
Case No 2406253/2020
Between
R BrownClaimantThe Church of England Children’s SocietyRespondent
Before
Employment Judge OrdIn person for claimantMt Butler (instructed by Counsel) for respondentDate 19 April 2021
JUDGMENT
The claimant’s complaint of unfair dismissal is well-founded.
REASONS
Claim
[1]By a claim dated 8 June 2020, the claimant brought a claim for unfair dismissal.
Issues
[2]It is agreed that the reason for dismissal was redundancy.
The Law
[3]The issue is whether the respondent acted reasonably or unreasonably in treating redundancy as a sufficient reason to dismiss the claimant. When considering this issue, I was asked to examine whether the respondent took appropriate steps to seek to redeploy the claimant and whether it Case No: 2406253/2020 Hearing Code V followed its own Organisational Policy.
Evidence
[4]On the first day of the hearing, I had before me a 309 paged hearing bundle, a 39 paged witness statement bundle and the respondent’s skeleton argument. I heard evidence from all the respondent’s witnesses namely, Helen Leadbitter (Area Manager and national Young Carers Lead; also the claimant’s line manager and dismissing officer); Rob Dickinson (Head of Philanthropy and Partnerships; also the manager shortlisting for Relationship Officer role); Victoria Jones (HR Business Partner); Kelly Harding (HR Business Partner); Paul Maher (Director of High Value; reviewed Rob Dickinson’s shortlisting decision); Nikki Pawsey (Director of Supporter Communities and Groups; also the appeal chair).[5]On the second day of the hearing, besides the previously mentioned bundles, I had before me four additional pages that were added to the hearing bundle and numbered 293-296. I also had the claimant’s written closing submissions in bullet format. I heard evidence from Victoria Jones, who was recalled to speak to the additional hearing bundle documents, and from the claimant. I heard closing submissions from the respondent’s representative and from the claimant. Findings of Fact Context
Findings of Fact
[6]The claimant was employed by the respondent from 23 March 2015. His role was initially as a Human Resources Business Partner covering northern operations, although for a period of six months in 2016, he also covered the Midlands and South West Area whilst Kelly Harding, also a Human Resources Business Partner, was on maternity leave.[7]In October 2017 he was successful in transferring to the role of Service Manager, leading two projects supporting young people across the Greater Manchester Area. This involved him having to learn new skills, as the work was very different to the Human Resources Sector that he had previously worked in for 30 years. The projects were delivered successfully.[8]In February 2019 he moved into the post of Project Lead for CAPE, a programme of work to upskill external bodies to deal with impact of parental alcohol misuse on children. The funding for the CAPE contract came to an end on 31/3/2020.[9]Redundancy consultations took place from the end of 2019 and the claimant was placed at risk redundancy, as was the whole of his team. He was issued with a redundancy notice from his line manager, Helen Leadbitter, on 10 February 2020.[10]Redundancies occur on an annual basis at the respondent organisation due to the generally ephemeral nature of the funding for its various projects. However, new positions often become available and the Case No: 2406253/2020 Hearing Code V respondent maintains a portal to which it directs employees at risk to seek potential alternative work within the organisation. Given the size of the organization (in excess of 800 employees), and the annual occurrence of significant numbers finding themselves at risk of redundancy, it is not disputed that using a portal is a reasonably practical way of publicizing potential redeployment opportunities within the organisation. Organizational Change Policy[11]The respondent has an Organisational Change Policy and within it, a Redeployment Policy for redundancy situations. The most relevant parts of the Redeployment Policy are extracted below and provide that: - 8.2 The Children’s Society will do all that is reasonably practicable to provide staff at risk with access to redeployment opportunities and suitable alternative employment…. - 8.3 …….Employees at risk of redundancy have priority status for available posts within The Children’s Society… - 8.4.2 Employees “at risk” will be given preferential consideration in respect of vacant posts within The Children’s Society. This means …. departments must interview/consider employees at risk of redundancy before any other candidates, provided the employee is able to meet the essential criteria for shortlisting for the post…… - 8.4.4 Employees will be assessed against the essential criteria (set out in the person specification) for the post. This assessment process will include a behavioural based interview…… Relationship Officer Post[12]On 19 January 2020 the claimant was alerted to a post on the organization’s portal by a colleague, which she thought might be a redeployment opportunity. It was of Relationship Officer within the Philanthropy and Partnership team. The job was open to other candidates besides those threatened by redundancy.[13]Whilst there ware other posts on the portal, the claimant did not consider any of them to be suitable and he was not offered any of them as an alternative.[14]The claimant accessed the portal and upon reading the job description and advert for the post, felt it was something he was interested in and for which he could demonstrate transferable skills. Although the post was a grade lower than he was currently on, he would benefit from protective pay for 12 months.[15]Recruitment to the Relationship Officer role was being handled by Rob Dickinson, Head of Philanthropy and Partnerships. The claimant contacted Rob Dickinson and they arranged to speak by telephone on 24 January 2020. Case No: 2406253/2020 Hearing Code V[16]Following the conversation with Rob Dickinson, the claimant spoke to his line manager, Helen Leadbitter, and indicated his interest to her. He then contacted Nin Gould, the HR Advisory and Operational lead by e-mail dated 29 January 2020 expressing his interest. Her response was that, as he was not currently at risk (but in consultation), he would need to apply for the role and a full application would be required because the role was substantially different.[17]The claimant then made an application incorporating a statement in support. However, the information he provided was limited, based on his understanding that he would be able to expand on this at interview, where he believed he would be able to promote his suitability for the post.[18]The post was also open to other applicants who were not at risk. The applications were sifted on the papers and the claimant was not shortlisted for reasons of his written application not meeting the essential criteria for the job. His rejection letter was dated 19 February 2020, after he had received notice of redundancy on 10 February 2020. It was an automated response to all unsuccessful candidates and did not offer any feedback, saying this was due to the large number of applications.[19]The claimant had never been told that a sift would be undertaken based on the written applications, and that assessment of suitability was to be based on ability to meet certain essential criteria. Had this been explained to him, he would have prepared a more thorough written application against the essential criteria.[20]Rob Dickinson had been responsible for the shortlisting, yet when he and the claimant had discussed the role on the telephone, Rob Dickinson had not explained the shortlisting mechanism or the importance of the paper application. In fact, there was no advice from anywhere on the process or procedure and the claimant got no assistance or support from anyone in making his application, despite asking for support. In cross examination his line manager, Helen Leadbitter, said she remembered the claimant asking for support.[21]It is not disputed that the claimant was a competent employee who had successfully undertaken a range of high-level roles within the organisation and had experience and skills in different areas including interpersonal roles and developing external relationships. However, he had also undertaken his own administration and was competent with information technology and had devised his own databases.[22]When Rob Dickinson was asked in cross examination about the roles the claimant had performed, he said, other than HR manager, he knew very little about those roles and what they did. Nonetheless, Rob Dickinson did not seek to find out more about the claimant’s experience and to better understand his abilities and skills. He did not explore with the claimant what his previous roles in the organization entailed, and did not consult others, such as the claimant’s line manager. No discussion took place with the claimant as part of the process and the claimant was not given an opportunity to verbally demonstrate that the post could be a suitable alternative for him. Case No: 2406253/2020 Hearing Code V[23]The claimant wrote to his line manager on 24 February 2020 saying he was surprised not to have been given an opportunity to explore the potential for redeployment and that he did not know why he had not been given the chance to discuss the role. He felt the process ignored those at risk of redundancy. He asked for certain information including the composition of those who had been shortlisted (external/internal/at risk). He also requested feedback on why he was not deemed suitable, what essential criteria he did not have, and how this had been determined in the absence of an interview or discussion.[24]Victoria Jones, HR Business Partner, provided details of why the clamant had not been shortlisted in an e-mail dated 26 February 2020. She said the role was not deemed suitable alternative employment and therefore the claimant’s application was treated in the same way as other internal applications. She did not explain why no discussion had taken place with the claimant, despite him being at risk and his clear interest in the post. In cross examination, Victoria Jones said the first stage of the process was to assess whether the post was a suitable alternative and it was for the claimant to demonstrate this. However, she admitted that the respondent’s communication could have been better.[25]In her e-mail Victoria Jones set out the essential criteria against which the shortlisting had been based. There were four of them and they had been taken from the Relationship Officer job description. They had not featured in the job advert, which set out more generic requirements. This e-mail was the first time the claimant had been told what the specific essential criteria were for the job. Neither the criteria nor the person specification for the job had been made clear to the claimant previously.[26]Victoria Jones’ e-mail set out the ratings of the 16 candidates who had applied. With a possible score between 0 and 4, it showed that the claimant had scored zero. It also gave brief feed-back on the claimant’s application, saying it did not match the requirements of the job description or evidence the requirements for the role. The e-mail said: The application focused on senior leadership skills and experience, project delivery management skills and experience, and delivery against organisational strategy, however these are not required for this mainly administrative, systems/data input, prospect research, low financial value application writing position.[27]This is the only record available on the system of the claimant’s application, as the data relating to rejected applications was automatically wiped from the system thereafter. No hardcopy notes were made relating to shortlisting. Therefore, it is now not possible to ascertain what was actually recorded on the system.[28]Victoria Jones’ e-mail also said “If you still believe the decision made during shortlisting was not correct, please let us know why via e-mail by Friday 28 February”. Case No: 2406253/2020 Hearing Code V[29]The Claimant wrote to his line manager on 26 February 2020 saying that he wished to appeal the decision to make him redundant and outlining why he felt the procedure relating to his application for redeployment as a Relationship Officer had been unfair. He also wrote to Kelly Harding, another HR Business Partner, on 27 February 2020 saying that it did not appear that his application would be considered under the terms of the respondent’s redeployment process and therefore he wished to appeal against the decision to dismiss him through redundancy.[30]In another e-mail dated 27 February 2020, Victoria Jones indicated that she had reviewed the situation but that the role was not a suitable redeployment opportunity. She did however offer the claimant the opportunity of providing more information on his working knowledge of using a particular type of database (Raisers Edge) and said if the claimant sent her information on this, she would include it for consideration. She did not ask for further details relating to the other three essential criteria.[31]The claimant did not provide further information at that stage. His evidence was that he did not feel that this single point would help him, given his zero score. Although he had extensive database experience, he had limited knowledge of this particular database. He was feeling frustrated by this time and wanted an independent review.[32]Victoria Jones’ e-mail of 26 February also offered a review of the shortlisting by the next level manager, subject to the claimant’s reasons for disputing the original decision. A review took place with Paul Maher, Director of High Value, but this was only a reconsideration of the paper application and resulted in the same outcome.[33]An appeal was conducted by Nikki Pawsey, Director of Supporter Communities and Groups, and included a face-to-face discussion with the claimant on 9 March 2020, where the Claimant was able to set out his experience and skills. Nikki Pawsey’s evidence was that she was keen to hear from the claimant so that she could have a complete overview of the situation in order to reach an outcome.[34]Immediately after the meeting Nikki Pawsey contacted Rob Dickinson and Rob Dickinson told her that the post had been filled. It was only after she was aware that there was no longer a vacancy for Relationship Officer that she considered the appeal information and found that the role was not a suitable alternative, thereby upholding the decision to dismiss for reasons of redundancy.[35]Nikki Pawsey’s appeal outcome letter dated 13 March 2020 acknowledged that communication with the claimant could have timelier. It also said that “I feel that there are learnings around our communication and approach to those placed at risk to be taken from this, and will be taking these forward.” In cross examination she admitted that communication with the claimant could have been better.[36]The Claimant’s employment with the respondent terminated on 31 March 2020 Case No: 2406253/2020 Hearing Code V
Law
[37]Section 98 of ERA provides, so far as is relevant:(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.[38]Fairness was considered in the following way in Williams v Compair Maxam Limited [1982] ICR 156 per Browne-Wilkinson J “the fair conduct of dismissal for redundancy must depend on the circumstances of each case”. “It is not the function of the [Employment] Tribunal to decide whether they would have thought it fairer to act in some other way: the question is whether the dismissal lay within the range of conduct which a reasonable employer could have adopted”[39]In J Sainsbury plc v. Hitt [2003] ICR 111, the Court of Appeal said that, in applying the test of reasonableness, the tribunal must not substitute its own view for that of the employer. It is only where the employer’s decision is so unreasonable as to fall outside the range of reasonable responses that the tribunal can interfere.[40]In O’Brien v Riverside Group Ltd ET Case No 2404843/11, the employment tribunal upheld a complaint of unfair dismissal for reasons of redundancy where the respondent had failed to offer an interview for an alternative position because the claimant had no previous experience in the type of job on offer. It should have investigated whether the claimant’s skills were transferable.[41]In Ralph Martindale and Co Ltd v Harris EAT 0166/07, the employment appeal tribunal did not interfere with the employment tribunal’s finding that Case No: 2406253/2020 Hearing Code V in the circumstances of that case no reasonable employer would have opened the new post up to candidates other than the two that were at risk.[42]In Newcastle City Council v Ford and ors EAT 0358/13, the employment appeal tribunal upheld the employment tribunal’s decision that the claimant’s dismissal was unfair for reasons of redundancy where she performed poorly at interview for an alternative post. This was because the respondent had not told her that its selection decision would be based entirely on the interview and the council would not take account of its prior knowledge of candidates or of written forms completed. She had therefore been unfairly denied the chance to sell herself for the role at interview.
Conclusions
[43]Although the respondent is not a particularly large organisation and redundancies are frequent, it should have offered more support to the claimant. The Organisational Change Policy makes it clear that the organisation will do all that is reasonably practicable to provide at risk staff with access to redeployment opportunities and suitable alternative employment and that employees at risk will have priority status for available posts. The respondent should have done more for the claimant than giving him access to a vacancies portal and it should have given him, and others at risk, priority consideration for available posts. It did not do and did not provide adequate support.[44]With respect to a right to interview, the policy is ambiguous. At paragraph 8.4.2 it provides that at risk employees will be given preferential consideration and departments must interview/consider them before other candidates, provided they meet the essential criteria for shortlisting. However, paragraph 8.4.4 says that the essential criteria assessment process will include a behavioural based interview.[45]Any ambiguity should have been resolved in favour of the at risk employees including the claimant, and it was not unreasonable for him to have expected to be interviewed and given the opportunity to promote himself for the role face-to-face.[46]The respondent should have discussed the potential opportunity of the Relationship Officer role with the claimant, what the essential requirements would be for the job and the claimant’s capabilities and suitability for the post This should have involved an opportunity for the claimant to discuss all relevant experience and skills.[47]If a written application was required, support should have been given on how to go about making that application, how it would be assessed, and what the essential criteria were.[48]Discussions should have taken place with the at risk employees before considering others, and a proper prioritized assessment should have been undertaken. This was crucial because it was a redeployment situation and not just a recruitment process, and there was an obligation on the respondent to do what it reasonably could to consider alternatives. Case No: 2406253/2020 Hearing Code V[49]A paper exercise alone was not sufficient in a redeployment situation. Others, such as line managers should have been consulted. This should have fed in to a proper consideration of whether the claimant’s skills were transferable and what gaps there might have been. The respondent should have addressed any possibility of training and whether a trial period could reasonably have been offered. Simply because the claimant had no previous experience in the type of job on offer did not mean that he did not have relevant transferable skills. This should have been properly investigated.[50]The mischief was compounded by a lack of clarity over what the process would be. The claimant was never informed that a paper sift was being undertaken and that so much weight would be given to his written application. If he had been told of this, it is likely that he would have approached the paper exercise differently. Although he had been told to submit a full application, he was also told at the time that this was because he was not formally at risk. Once he was at risk, the process should have changed and he should have been given more opportunity to demonstrate his abilities.[51]Furthermore, the essential criteria were not easy to ascertain prior to making the application. They were not contained in the advert and they were scattered throughout the job description and not highlighted in any way. An applicant would not readily know the specific competencies s/he was trying to demonstrate. This was a significant flaw as much depended on these essential criteria being met. They should have been made very clear to the claimant. Telling him about them in an e-mail after the event was not at all reasonable.[52]Whilst Victoria Jones offered the claimant the opportunity to submit more evidence about his knowledge of using a particular type of database before formally reviewing his application, this was a narrow request relating to only one of the four essential criteria. As the claimant had scored zero in the sift, providing that information would have made no difference to the outcome. Therefore, the fact the claimant did not submit anything further to Victoria Roberts at that stage was of little consequence.[53]The review process with Paul Maher only considered the written application and did not take account of anything more. Accordingly, it did not cure the defects in procedure.[54]Whilst the appeal hearing with Nikki Pawsey involved a discussion with the claimant, by that time the post had been filled and consequently the appeal was of no practical effect. The recruitment process should have been paused pending the outcome of the claimant’s appeal. Although Nikki Pawsey went on to uphold the decision to dismiss on the grounds of redundancy, her appeal decision was made in the knowledge that the post of Relationship Officer was no longer available.[55]Overall, the respondent did not take appropriate steps to seek to redeploy the claimant. Neither did it follow its own Organisational Change Policy in doing what was reasonably practicable to provide access to suitable alternative employment. It did not offer the claimant an interview and it did Case No: 2406253/2020 Hearing Code V not give him priority to available posts, or preferential consideration over others. The review and appeal processes did not resolve these significant defects.[56]For the above reasons, in the circumstances of this case the dismissal was not within the band of reasonable responses. Therefore, in accordance with equity and the substantial merits of the case, I find that the dismissal was unfair. _____________________________ Employment Judge Liz Ord Date: 19 April 2021
Findings of Fact
[57]Thirdly, the role involved travel across a wide geographical area, which did not suit the claimant as he had child minding responsibilities.[58]For these reasons he chose not to apply for the post. Mitigation[59]The claimant was made redundant in March 2020, as the Coronavirus pandemic hit the country. During the first few weeks of unemployment, he concentrated on applying for benefits, registering with job agencies and web sites and updating his CV.[60]He also had child minding responsibilities during lockdown when schools were closed, and could not call upon his parents to help, as they were shielding. He shared these responsibilities with his estranged wife, who was a nurse, and under considerable pressure to work during the pandemic.[61]After changing career in 2017 from HR to the Third Sector, he hoped to stay in the Third Sector. However, few suitable jobs of any type were being advertised at this time, and the claimant signed up for alerts for HR posts as well, such as with Total Jobs for HR posts on 1 April 2020.[62]More jobs became available in late summer. He made numerous applications for a range of jobs including HR posts, but there were few responses. He also asked friends for help with his job search.[63]In October 2020, the claimant changed his CV, putting in key words that might promote his applications with agencies that use algorithms. He made many more applications, which resulted in a number of interviews, but no offers of employment. Case No:2406253/2020[64]In March 2021, he was offered a contract as an associate Consulting Business Partner with Clover HR, starting April 2021. The work involved building up his own client base. After his appointment on 1 April 2021, he stopped searching for work. Since then, he has been concentrating on building up this work.[65]Since being made redundant, the claimant claimed Universal Credit. He still needed to rely on this benefit whilst building up his work with Clover and was still claiming at the time of this remedy hearing.[66]The respondent did not suggest there were any particular roles the claimant ought to have applied for after being made redundant. There was no evidence of any vacancies available to the claimant with other employers, which, if taken, would have reduced his losses. Future Loss of Earnings[67]The claimant started work with Clover HR on 1 April 2021 and by July 2021, his schedule of loss suggests he was earning between £1,000 and £1,500 per month. His income would increase as he built up his client base. By the date of the remedy hearing on 21 April 2022, he was still reliant on benefits.[68]However, the claimant now has the opportunity to earn more, as reflected in his schedule of loss, which states on page 4:[69]“As the volume of my work increases I am receiving less Universal Credit and so at the moment I am finding it difficult to earn more than £1,500 per month.” Respondent’s submissions Polkey[70]There was no chance that the claimant would get the Relationship Officer role. Rob Dickinson, Nikki Pawsy, Paul Maher and Victoria Jones all came to this conclusion. He would have been dismissed in any event. For the tribunal to award a compensatory award, it would have to conclude that there was a chance the clamant would have been appointed to the role over the successful, internal candidate. Contributory Fault[71]The respondent says the claimant was qualified for the role of Equality, Diversity and Inclusion Manager and should have applied for it. He never enquired about the travel and whether it could be adjusted. Mitigation[72]The respondent submits that the claimant’s failure to apply for the role of Equality, Diversity and Inclusion Manager, also demonstrates a failure to mitigate his losses. Case No:2406253/2020[73]Furthermore, it says the claimant cannot show any job applications from April, May and June 2020 and he stopped applying when he got the position with Clover. Therefore, he started too late and stopped too soon. He was also unreasonably picky about the jobs applied for and should have broadened his search more. He could have fully mitigated his loss and found alternative employment. The Law Statute[74]Section 119 of the Employment Rights Act 1996 (ERA) sets out provisions for calculating the basic award. For an employee who was not below the age of 41 years throughout his employment, it amounts to one and half week’s pay for each year of employment.[75]Section 122 ERA – Basic award reductions (2) Where the tribunal considers that any conduct of the complainant before the dismissal was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly. (4) The amount of the basic award shall be reduced or further reduced by the amount of – (b) any payment made by the employer to the employee on the ground that the dismissal was by reason of redundancy.[76]Section 123 ERA deals with the compensatory award and provides: (1) Subject to the provisions of this section and sections 124, 124A and 126, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer. (4) In ascertaining the loss referred to in subsection (1) the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales… (6) Where the tribunal finds that the dismissal was to any extent caused or contributed by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding. (7) If the amount of any payment made by the employer to the employee on the ground that the dismissal was by reason of redundancy exceeds the amount of the basic award which would be payable but for section 122(4), that excess goes to reduce the amount of the compensatory award. Case No:2406253/2020[77]Section 124 sets out limits of compensatory awards made under section 123. For dismissals between 6 April 2019 and 5 April 2020 the award must not exceed the lower of £86,444 or 52 weeks gross pay. Case Law[78]Where an employer has failed to follow procedures, the tribunal, when determining any compensatory award under section 123(1) of ERA, must ask itself what would or might have happened if a fair procedure had been followed. This involves an element of speculation. The proposition comes from the case of Polkey v AE Dayton Services Ltd [1988] ICR 142, HL, which held that where there is an unfair dismissal on procedural grounds, compensation may be reduced to reflect the likelihood that the employee would have been dismissed in any event had a proper procedure been followed. Cases relied upon by claimant[79]The claimant referred the tribunal to the following case law, extracts of which are more fully set out in the claimant’s closing submissions.[80]Cooper Contracting Limited v Lindsey, [2016] ICR D3, EAT which states that the burden of proof in showing a failure to mitigate lies with the employer. Therefore, if no evidence of any failure to take reasonable steps to find another source of income is brought by the employer, the tribunal is under no obligation to (and generally will not) take lost opportunities to mitigate into account against the employee. The employee must be shown to have acted unreasonably. That is a different test from him showing that what he did was reasonable. The tribunal is not to apply too demanding a standard to the victim.[81]Savoia v Chiltern Herb Farms Ltd [1981] IRLR 65, EAT – The duty to mitigate only arises after dismissal, so refusing offers made before employment was terminated cannot amount to a failure to mitigate.[82]The respondent says that Savoia is distinguishable in cases involving redundancy. Cases relied upon by respondent[83]The respondent referred the tribunal to the following case law, extracts of which are more fully set out in the respondent’s closing submissions.[84]Software 2000 Ltd v Andrews and others [2007] ICR 825 where the following principles emerge:(1) In assessing compensation the task of the tribunal is to assess the loss flowing from the dismissal, using its common sense, experience and sense of justice. In the normal case that requires it to assess for how long the employee would have been employed, but for the dismissal;(2) If the employer seeks to contend that the employee would or might have ceased to be employed in any event had fair procedure been followed….it is for him to adduce any relevant evidence on which he Case No:2406253/2020 wishes to rely. However, the tribunal must have regard to all the evidence when making that assessment, including any evidence from the employee himself.(3) There will be circumstances where the nature of the evidence which the employer wishes to adduce, or on which he seeks to rely, is so unreliable that the tribunal may take the view that the whole exercise of seeking to reconstruct what might have been is so riddled with uncertainty that no sensible prediction based on that evidence can properly be made.(4) Whether that is the position is a matter of impression and judgment for the tribunal. But in reaching that decision the tribunal must direct itself properly. The tribunal should have regard to any material and reliable evidence which might assist it in fixing just compensation, even if there are limits to the extent to which it can confidently predict what might have been; and it must appreciate that a degree of uncertainly is an inevitable feature of the exercise. The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence.[85]Thornett v Scope [2007] ICR 236 - the Court of Appeal held that: “The employment tribunal’s task, when deciding what compensation is just and equitable for future loss of earnings, will almost inevitably involve a consideration of uncertainties. There may be cases in which evidence to the contrary is so sparse that s tribunal should approach the question on the basis that loss of earnings in the employment would have continued indefinitely but, where there is evidence that it may not have been so, that evidence must be taken into account”. Discussion, Calculations and Conclusions Polkey[86]Had the respondent followed its own policy and procedures, it would have given the claimant preferential consideration and interviewed him ahead of all other candidates, as he was the only one at risk of redundancy. This is clearly set out in The Organisational Change Policy at paragraphs 8.3 and 8.4.2. His assessment would not have been restricted to the papers and, at this stage, other candidates would not have been considered.[87]According to the Policy at 8.4.5, if an a risk employee could meet the essential criteria with reasonable training, they should be offered the post on a trial basis. Therefore, even if the successful candidate had been more suitable for the position, he would not have been considered, if the claimant could meet the essential criteria with reasonable training.[88]If the Policy were followed, the claimant would have undergone a behavioural based interview and been assessed against the requirements set out in the Job Description, and as reflected in the Job Advert. He would not have been assessed against the 4 non-transparent criteria, which were only produced after he raised the potential of unfair dismissal. Case No:2406253/2020[89]In undertaking his interview, the claimant’s relevant experience would have been properly considered. From his time working with the respondent, he would have demonstrated that he had significant relevant experience and transferable skills, as conceded by Rob Dickinson, who was in charge of the recruitment. The respondent did not deny that he had more experience than the previous incumbent when she was appointed.[90]Mr Dickinson would have considered the claimant’s transferable skills and whether reasonable training might have resolved any deficiencies. With a face to face interview and a proper assessment, Mr Dickinson would have discovered that the claimant had significant transferable skills, and that he had previously picked up new skills successfully when changing roles within the organisation.[91]Although the respondent said the claimant was unsuitable for the position, nobody gave a full explanation as to why. This is contrary to the Policy, which at 8.4.7 indicates that the reason for not offering an at risk candidate the job must be clearly based on a comparison of the candidate’s skills, abilities and experience with those required for the post. The situation is compounded by the absence of any shortlisting or interview records, (apart from the cursory feedback from Ms Jones), which breaches the Safer Recruitment and Selection Policy.[92]Both Victoria Jones and Paul Maher simply based their comments on the claimant’s written application, which, for reasons given in my liability judgment, was unfair. Whilst Nikki Pawsey on appeal listened to the claimant face to face, after speaking to Rob Dickinson, she ultimately based her decision on the claimant’s written application, once she knew the vacancy had already been filled.[93]At the time, Rob Dickinson also based his decision solely on the application. However, in giving evidence to the tribunal, he said he would not have appointed the claimant, even if he had been invited to interview, based on the claimant’s oral evidence at the tribunal and his witness statement. Nonetheless, listening to the claimant in the adversarial forum of the tribunal is not the same as conducting a job interview, and by this time positions had become entrenched in litigation.[94]The main reasons the respondent said he was unsuitable for the job were that he had no experience of developing relationships from cold with new potential fundraisers, and he did not have experience of the Raisers Edge data base. However, there was nothing in the Job Description or Job Advert to suggest that such experience was essential. Whilst a working knowledge of Raisers Edge was preferable, it was not a requirement.[95]The claimant had experience of general fundraising with existing funders and, indeed, an essential requirement for his role as CADeP Project Lead was to have “extensive knowledge of the funder/delivery organisation relationship”. He was also a skilled database user and had designed and developed database modules. Case No:2406253/2020[96]The Relationship officer role was a grade lower than the CADeP Project Lead, and at skill grade 4 it envisaged giving on the job practical training to develop experience. Consequently, as he had already held a more highly graded job, and given his ability to pick up and change roles at the organisation, it is likely he would have been able to successfully master this one. The fact that the claimant had pay protection for 12 months at the higher grade was irrelevant to the recruitment decision.[97]Had the respondent properly considered the claimant’s experience, knowledge and skills against the requirements for the job, from the evidence before me, it is likely that they would have found he could have met them with reasonable training. Consequently, if the correct procedure had been reasonably followed and his suitability fairly assessed, it is likely he would have been offered the role.[98]However, there is still a chance the respondent would have considered the claimant unsuitable, possibly because of his lack of experience of developing potential relationships with new funders from cold, and/or due to his lack of knowledge of Raisers Edge. I assess this chance at 20%. Consequently, I make a 20% Polkey reduction. Contributory Fault[99]Whilst the respondent says the claimant should have applied for the role of Equality, Diversity and Inclusion Manager, it was never formally suggested to him at the time.[100]The respondent says the claimant was qualified for the role, yet the claimant did not possess the knowledge and experience of Equality, Diversion and Inclusion, that were specific requirements of the Job Description.[101]Furthermore, the job involved travel and the claimant had child minding responsibilities which would be affected by this.[102]Under these circumstances, the claimant did not act unreasonably in not applying for the role. This was not blameworthy conduct and does not merit any reduction in compensation. Mitigation[103]As stated above, the claimant did not act unreasonably in not applying for the Equality, Diversity and Inclusion Manager role.[104]After his redundancy, there were few jobs to be had because of lockdown from March 2020 until late summer. Moreover, the claimant had child minding responsibilities during the school shutdown and this impacted on his ability to work. He nonetheless registered with job agencies during this time, and made numerous applications from the summer onwards.[105]He did not restrict his applications to the Third Sector and broadened them out to HR roles from early on in the process. He was not “picky” in what he applied for. It was reasonable for him to stop applying for jobs Case No:2406253/2020 once he secured a position with Clover, as he was using his time to build up his client base.[106]There is no evidence to suggest that, by taking reasonable steps, the claimant would have reduced his losses. Therefore, for the reasons given, the claimant adequately mitigated his losses. Calculations Preliminary Employment Start date – 23.3.2015; End date – 30.3.2020; 5 years service. Aged 52 at Effective Date of Termination (EDT) Gross annual pay - £36,612.00; Gross weekly pay - £704. 08; Net weekly pay - £508.51 Employer pension contributions per week - £112.66 (Respondent confirmed it could not rebut) Enhanced redundancy payment received - £7,921.46 The basic award Cap on gross weekly pay at EDT was £525.00 1.5 x 5 x 525 = 3,937.50 This is extinguished by the redundancy payment, and so there is no basic award. The compensatory award Cap is 52 weeks gross salary or £86,444.00 as at EDT Cap is 52 x (704.08 + 112.66) = £42,470.48 52 x (weekly gross wage + weekly pension) University of Sunderland v Drossou 2017 ICR D23 EAT - Employer pension contributions are included in the definition of a week’s pay Immediate loss of earnings between day after EDT and remedy hearing 31.3.20 to 21.4.22 = 751 days or 107 weeks and 2 days 107.286 x 508.51 (net weekly wage) = £54,556.00 net wages 107.286 x 112.66 (weekly pension) = £12,086.84 pension Case No:2406253/2020 Total loss - £66,642.82 Future loss of earnings As at the date of the remedy hearing, the claimant had been working for just over a year with Clover HR, and a year is enough time to build up sufficient work to prevent any further losses. Consequently, I make no award for future earnings. Deductions Digital Equipment Co Ltd v Clements (No.2) sets out order of deductions. First calculate total loss, then adjust. The order of deductions, so far as relevant to this case is: 1- Contractual or ex gratia payments 2- Mitigation earnings 3- Polkey (if procedurally unfair) 4- Excess contractual redundancy 5- Gross up 6- Statutory cap 1- Contractual Payment into Nest pension scheme = £156.98 2- Mitigation earnings Income from work with Clover HR: Up to 30.6.21 = £9,717.32. From 1.7.21 to 21.4.22 = 294 days or 42 weeks @ £1,500 per month or £346.15 per week 42 x 346.15 = £14,538.30 3- Polkey £66,642.82 (total loss) – (14,538.30 + 156.98) = £51,947.54 (14,695.28) Taking account of 20% reduction: 80% x 51,947.54 = £41,558.03 4- Excess contractual redundancy The excess contractual redundancy payment is then deducted. Case No:2406253/2020 Excess = 7,921.46 (total redundancy payment) - 3,937.50 (used to extinguish basic award) = £3,983.96 41,558.03 – 3,983.96 = £37,574.07 5- Gross Up The first £30,000 is tax free. The balance is subject to the claimant’s marginal rate of tax, which is 20%. Therefore £7,574.07 is grossed up. 80% = 7,574.07 100% = 7,574.07/80 x 100 = 9,467.59 Total compensatory award 30,000 + 9,467.59 = £39,467.59 6- Cap As the compensatory award is below the cap, there is no adjustment in this respect. Loss of statutory rights It would be just and equitable to award £400.00 for loss of statutory rights, to reflect the five years continuous employment the claimant had with the respondent. Recoupment The Employment Protection (Recoupment for Jobseeker’s Allowance and Income Support) Regulations 1996 take effect because the claimant claimed Jobseeker’s Allowance and Universal Credit. Jobcentre Plus will inform the respondent of how much it must deduct from the compensatory award in order to reimburse the state for benefits paid. The balance will then be paid to the claimant. Only the loss of wages element of the compensatory award forms the prescribed element for recoupment purposes and therefore the pension loss needs to be separated out to obtain the correct figure. Loss of wages = 54,556.00 Income from subsequent work = 14,695.28 Balance = 39,860.72 Take account of 20% Polkey reduction = 80% x 39,860.72 = 31,888.58 Minus excess redundancy: 31,888.58 - 3,983.96 = 27,904.62 Summary The Prescribed Element is £27,904.62 The total monetary award is £39,867.59 (£39,467.59 + £400.00) Case No:2406253/2020 The excess of total monetary award over the prescribed element is: £11,962.97 The Prescribed Period is 31 March 2020 to 21 April 2022; _____________________________ Employment Judge Liz Ord Date 9 September 2022
Summary
[1]The tribunal determines that it is necessary in the interests of justice to reconsider its judgment dated 9 September 2022.[2]On reconsideration, and there being no objection from the respondent, the claimant’s application for reconsideration is granted and the judgment is varied as follows:
Summary
[1]As compensation for unfair dismissal, the respondent is ordered to pay the claimant a compensatory award of £42,870.48 (including £400.00 for loss of statutory rights). The tribunal makes no basic award.[3]The required recoupment information is set out below in the final section of these reasons. Case No: 2406253/2020[6]Cap As the award is above the cap, it is adjusted downwards to the cap level of £42,470.48. £42, 470.48 is the compensatory award. Case No: 2406253/2020 Recoupment Loss of wages = 54,556.00 Income from subsequent work = 9,717.32 Balance = 44,838.68 Take account of 20% Polkey reduction = 80% x 44,838.68 = 35,870.94 Minus excess redundancy: 35,870.94 - 3,983.96 = 31,886.98 Summary The Prescribed Element is £31,886.98 The total monetary award is £42,870.48 (£42,470.48 + £400.00) The excess of total monetary award over the prescribed element is: £10,983.50 The Prescribed Period is 31 March 2020 to 21 April 2022. _____________________________ Employment Judge Liz Ord Date 6 April 2023
Summary
[1]There is more information about Tribunal judgments here, which you should read with this guidance note: www.gov.uk/government/publications/employment-tribunal-hearings-judgment-guide-t426 If you do not have access to the internet, you can ask for a paper copy by telephoning the Tribunal office dealing with the claim.[2]The payment of interest on Employment Tribunal awards is governed by The Employment Tribunals (Interest) Order 1990. Interest is payable on Employment Tribunal awards if they remain wholly or partly unpaid more than 14 days after the relevant decision day. Sums in the award that represent costs or expenses are excluded. Interest starts to accrue from the day immediately after the relevant decision day, which is called the calculation day.[3]The date of the relevant decision day in your case is set out in the Notice. If the judgment is paid in full by that date, no interest will be payable. If the judgment is not paid in full by that date, interest will start to accrue from the next day.[4]Requesting written reasons after you have received a written judgment does not change the date of the relevant decision day.[5]Interest will be calculated as simple interest accruing from day to day on any part of the sum of money awarded by the Tribunal that remains unpaid.[6]If the person paying the Tribunal award is required to pay part of it to a public authority by way of tax or National Insurance, no interest is payable on that part.[7]If the Secretary of State has claimed any part of the sum awarded by the Tribunal in a recoupment notice, no interest is payable on that part.[8]If the sum awarded is varied, either because the Tribunal reconsiders its own judgment, or following an appeal to the Employment Appeal Tribunal or a higher court, interest will still be payable from the calculation day but it will be payable on the new sum not the sum originally awarded.[9]The online information explains how Employment Tribunal awards are enforced. The interest element of an award is enforced in the same way. Case No: 2406253/2020 ANNEX TO THE JUDGMENT (MONETARY AWARDS) Recoupment of Benefits The following particulars are given pursuant to the Employment Protection (Recoupment of Benefits) Regulations 1996, SI 1996 No 2349. The Tribunal has awarded compensation to the claimant, but not all of it should be paid immediately. This is because the Secretary of State has the right to recover (recoup) any jobseeker’s allowance, income-related employment and support allowance, universal credit or income support paid to the claimant after dismissal. This will be done by way of a Recoupment Notice, which will be sent to the respondent usually within 21 days after the Tribunal’s judgment was sent to the parties. The Tribunal’s judgment states:(a) the total monetary award made to the claimant;(b) an amount called the prescribed element, if any;(c) the dates of the period to which the prescribed element is attributable; and(d) the amount, if any, by which the monetary award exceeds the prescribed element. Only the prescribed element is affected by the Recoupment Notice and that part of the Tribunal’s award should not be paid until the Recoupment Notice has been received. The difference between the monetary award and the prescribed element is payable by the respondent to the claimant immediately. When the Secretary of State sends the Recoupment Notice, the respondent must pay the amount specified in the Recoupment Notice to the Secretary of State. This amount can never be more than the prescribed element of any monetary award. If the amount is less than the prescribed element, the respondent must pay the balance to the claimant. If the Secretary of State informs the respondent that it is not intended to issue a Recoupment Notice, the respondent must immediately pay the whole of the prescribed element to the claimant. The claimant will receive a copy of the Recoupment Notice from the Secretary of State. If the claimant disputes the amount in the Recoupment Notice, the claimant must inform the Secretary of State in writing within 21 days. The Tribunal has no power to resolve such disputes, which must be resolved directly between the claimant and the Secretary of State. Case No: 2406253/2020 EMPLOYMENT TRIBUNALS Claimant: Richard Brown Respondent: The Church of England Children’s Society Judge: Employment Judge Liz Ord COSTS JUDGMENT The claimant’s application for a preparation time order is refused.
Summary
[1]The claimant makes his application on the basis that the response to his claim had no reasonable prospects of success and, based on his submissions, he also appears to rely on unreasonable conduct.[2]The parties agreed that this matter be dealt with on the papers.
The Law
[3]The Employment Tribunals Rules of Procedure 2013 contain a discretionary power to award costs. The circumstances in which a costs order or preparation time order may be made are set out in rule 76(1), which relevantly provides: 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) or the way that the proceedings (or part) have been conducted; or(b) Any claim or response had no reasonable prospect of success; or Case No: 2406253/2020(c) …. Caselaw[4]I have considered relevant authorities, including those cited by the respondent.[5]An award of costs is the exception rather than the rule in Employment Tribunal proceedings, as acknowledged in Gee v Shell UK Limited [2003] IRLR 82. Conduct[6]There is a three stage procedure to consider - Haydar v Pennine Acute NHS Trust UKEAT 0141/17/BA). The first stage is to decide whether the threshold has been reached for a party’s conduct to fall within rule 76(1), whether by way of unreasonable conduct or otherwise; if so, the second stage is to decide whether it is appropriate to make an award; and if so, the third stage is to decide how much to award.[7]At the discretionary stage, when deciding whether unreasonable conduct should result in an award of costs, the Court of Appeal held in Barnsley Metropolitan Borough Council v Yerrakalva [2012] ICR 420 that the tribunal should have regard to the nature, gravity, and effect of the conduct. The vital point in exercising discretion is to look at the whole picture, and in doing so to identify the conduct, what was unreasonable about it and what effects it had.[8]McPherson v BNP Paribas (London Branch) 2004 ICR 1398, CA provides - when exercising its discretion under the grounds of “conduct”, a tribunal should take into account the “nature, gravity and effect” of a party’s unreasonable conduct as factors relevant to the exercise of discretion (paragraph 40).[9]Dyer v Secretary of State for Employment UKEAT/183/83 (unreported) provides – whether conduct is unreasonable is a matter of fact for the tribunal. Unreasonableness has its ordinary meaning and should not be taken by tribunal to be the equivalent of vexatious. Prospects of success[10]In Opalkova v Acquire Care Ltd EAT 0056/21, the EAT considered the test for determining whether an employer’s response has no reasonable prospects of success. There are three key questions (see paragraph 24):a. First, objectively analysed, when the response was submitted did it have no reasonable prospect of success, or alternatively at some later stage, as more evidence became available, was a stage reached at which the response ceased to have reasonable prospects? This question is objective and is the threshold for making a preparation time order under Rule 76(1)(b). Case No: 2406253/2020b. Secondly, at the stage when the response had no reasonable prospect of success, did the respondent know that was the case?c. Thirdly, if not, should the respondent have known? These questions are relevant whether the matter is analysed on the basis that the response had no reasonable prospects of success or that the respondent was guilty of unreasonable conduct in defending or maintaining the defence to the claims (paragraph 25).[11]In Radia v Jefferies International Ltd EAT 0007/18, the EAT emphasised that the test is whether the claim had no reasonable prospect of success, judged on the basis of the information that was known or reasonably available at the start. Thus, the Employment Tribunal must consider how, at that earlier point, the prospects of success in a trial that was yet to take place would have looked (paragraph 67).
Discussion and Conclusions
[12]In the Employment Tribunal, an award of costs/preparation time order is the exception rather than the rule and the bar for obtaining costs is high.[13]I will consider each of the claimant’s points in support of his application, dealing with both the “conduct” aspects and those concerning “prospects of success”.[14]The claimant says that the respondent failed to provide key evidence, although he has not identified what this is. Nonetheless, it is likely to relate to the selection criteria for alternative employment and the automatic wiping of rejected applications. I am aware of no other missing documents. Whilst this was unfortunate, it was because of the automated system, but it did not prejudice the claimant. This did not equate to unreasonable conduct.[15]Whilst the claimant points out that the respondent proceeded to a hearing anyway without these documents, this was a matter for the respondent, and it did not render its response unmeritorious. Consequently, the lack of documentation in this regard did not cause the response to have no reasonable prospects of success and nor was it unreasonable behaviour.[16]With respect to the contention that the respondent failed to engage with ACAS prior to the submission of the claim, it was not obliged to do so. This does not reach the necessary threshold for unreasonable conduct.[17]Similarly, as for the submission that the respondent made little attempt to find a solution and offered only £500 in settlement, the respondent was not obliged to make any offers at all. This was a negotiating tactic and the fact that it was low cannot be classed as unreasonable conduct.[18]As regards the respondent’s threats to attempt to recover costs from the claimant, the respondent explained in an acceptable manner the circumstances under which it would pursue such a course of action. This Case No: 2406253/2020 kind of correspondence is often used in litigation and the claimant was not prejudiced by it. Again, it does not reach the high bar for unreasonable conduct.[19]As for “prospects of success” generally, the respondent clearly had an arguable case, which merited full hearing. The fact that it was unsuccessful in its response is insufficient for the claimant to secure costs.[20]Specifically, whilst the claimant states the respondent failed to follow its own policy, this was an arguable matter, which was dealt with appropriately at the liability hearing. It is not a reason to award costs.[21]Considering all of the above matters both individually and cumulatively, I conclude that the claimant has not demonstrated that:• the respondent conducted the proceedings unreasonably, by acting vexatiously, abusively, disruptively or otherwise unreasonably;• the respondent had no reasonable prospects of success.[22]Therefore, the claimant’s application fails at the first stage and there is no need for the tribunal to consider any subsequent stages.