Mr K Williams v In Time Watch Services Ltd: 2408861/2021
JUDGMENT
The judgment of the Tribunal is that the claimant was fairly dismissed by the respondent. His claim of unfair dismissal fails and is dismissed.REASONS
[1]By a claim form dated 3 August 2021, the claimant brought claims of unfair dismissal and breach of contract/unlawful deductions from wages in relation to holiday pay and pension contributions. At the outset of the first day of the hearing, the claims of unlawful deductions/breach of contract were dismissed on withdrawal by the claimant and a judgment was sent to record that set of facts.[2]The claimant’s claim is that his redundancy dismissal was unfair. He says:a. there was no redundancy reason for his dismissal;b. if there was a redundancy reason, he was not dismissed for that reason, but because the respondent wanted him out, which is not a fair reason.Issues
[3]The issues for the Tribunal to determine are:a. Has the respondent shown the reason or principal reason for dismissal? Was it a potentially fair reason under section 98 Employment Rights Act 1996?b. If so, applying the test of fairness in section 98(4), did the respondent act reasonably in all the circumstances in treating that reason as sufficient reason to dismiss the claimant?c. 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. The Tribunal will usually decide, in particular, whether: i. The respondent adequately warned and consulted the claimant; ii. The respondent adopted a reasonable selection decision, including its approach to a selection pool and any scoring within the pool; iii. The respondent took reasonable steps to find the claimant suitable alternative employment; and iv. Dismissal was within the range of reasonable responses. Evidence and Witnesses[4]The Tribunal had the benefit of a Bundle of documents and heard evidence from Deborah Shaw, the Respondent’s Finance Director; Ulrike Isemann, Vice President Marketing and Sales, Hirsch (parent company of the respondent) and the claimant.[5]On the first day of the hearing the Tribunal could not hear from Ms Isemann as she was outside of the jurisdiction and certain permissions needed to be obtained. Happily those permissions were obtained by the second day of the hearing which enabled Ms Isemann to give evidence.Findings of Fact
[6]The respondent is a British watch and clock repairer and has fifteen branches throughout the UK. Formerly, it had many branches inside Debenhams department stores throughout the country. The respondent employs 100-150 members of staff.[7]The claimant was employed from 11 April 1999 until his employment terminated on 23 April 2023. He was employed, at the time of his dismissal as a National Sales Manager. He had formerly been a Manager. Prior to 1999, he had previously been employed by the respondent or worked on a self-employed basis.[8]As National Sales Manager (NSM), the claimant managed six Area Managers and performed roles including: stock checks; dealing with staff issues; and dealing with customer issues. He says that many of these tasks were similar to those of an Area Manager and suggested in his evidence that, really, he was performing the role of an AM. However, the claimant was paid significantly more than an AM, reflecting the more strategic expectation for the role, and his role had, at least historically, included various international meetings which the AMs would not be expected to attend.[9]The claimant’s CV states that his responsibilities as an RSM included effective management of AMs and providing support and guidance to them.[10]The claimant, in his NSM role, reported to the Operations Director, Brian Jones, with whom he had a good relationship, until Mr Jones left the respondent twothree years before the events which are the subject of this claim. However, the claimant states that after Mr Pulford joined the respondent as Retail Director, things went from bad to worse and he felt that he was no longer wanted in the business. He says that Mr Pulford treated him as an AM, and that he did not believe that other AMs saw him as a more senior person to them either. However, on one occasion, the claimant appears to have chastised an AM for bypassing him, demonstrating that he did consider himself to be more senior, and that in fact, he did not want to be considered as working at the same level.[11]The Claimant became concerned about his relationship with Mr Pulford and arranged a meeting with him on 7 December 2020. It is after this meeting that the claimant believes Mr Pulford decided the claimant should leave the business. The claimant’s discussion points for that meeting begin: “I don’t feel valued. I feel like you may be trying to force me out.”[12]In March 2020, as a result of COVID, the respondent temporarily closed all of its branches at significant cost. It says sales plummeted from approximately £7.5M in 2019 to just under £4M in 2020, and it permanently closed five of its branches. Then, all 33 of its branches in Debenhams’ stores were put at risk of closure when Debenhams entered administration in March 2021, leaving only 15 branches and further reducing sales. By this time there were just two AMs, Hala Attrah and Ken Sadler, who was on a fixed term contract with only a short period left to run. In fact, he stayed on for just six months.[13]A meeting was held between Ms Shaw, Mr Pulford and Ms Walker (HR) at which, the Tribunal was told, the decision was taken that its field management team structure was unsustainable and that the NSM role would be placed at risk of redundancy. Ms Shaw’s oral evidence was that that meeting involved a comparative exercise between the job descriptions of the NSM and the AMs; that bumping was discounted; and that the NSM role should be in a pool of one on the basis that the role of AM was different and not suitable to be pooled. No minutes were available.[14]This decision was discussed with Hirsch, as the parent company. There were other redundancies in different areas which were also discussed, according to Ms Shaw. Despite the importance of these discussions, no record of the meeting was available.[15]On 29 March 2021, Ms Shaw updated the claimant about the fact that a NSM was no longer needed given the reduction from 53 to 15 branches and the resultant loss of sales and profit. It referred to the fact that there had already been a reduction in the field team as, at the start of the year, there had been three AMs. The claimant asked about new kiosks opening and Ms Shaw confirmed that, whilst the respondent was trying to open up new branches, there was only one successful opening in Cardiff at that time.[16]That conversation was followed up by a letter dated 29 March 2021, which invited the claimant to a further meeting on 1 April 2021. The letter reassured the claimant that every effort would be made to avoid compulsory redundancies and to consider alternative employment. The claimant requested to postpone the meeting, which was rearranged for 9 April 2021.[17]The meeting on 9 April 2021 was an individual consultation meeting, conducted by Ms Shaw. The claimant put forward a suggestion that he had been performing the role of AM and suggested that his role as NSM should therefore be pooled with the other AMs. He also questioned whether compulsory redundancies were necessary since new branches were opening and new staff were being appointed.[18]Ms Shaw responded to the claimant by email dated 15 April 2021. She confirmed that pooling was not necessary where an employee performing a unique role is proposed to be made redundant. Whilst it was acknowledged that he was performing elements of an AM role, the NSM role was noticeably different in accountability and managerial responsibility. It is also relevant that the claimant was paid significantly more that the AMs. Ms Shaw confirmed that the recruitment needs of the respondent were unrelated to the need for redundancies within the field management team.[19]Around this time, the claimant had raised an informal grievance in relation to a perceived relationship breakdown with Mr Pulford. The grievance process was kept separate to the redundancy process. The investigations concluded that there had not been any bullying and that Mr Pulford treated every member of his team consistently and fairly.[20]The claimant was invited to a further consultation meeting on 23 April 2021. He was warned that the meeting could result in him being served notice of the termination of his employment due to redundancy. Ms Shaw explained that new retail positions had become available but the claimant understandably confirmed that he was not interested in these positions. Ms Shaw confirmed to the claimant that his role was redundant. The claimant stated that he believed he had been unfairly dismissed as he believed that the roles of NSM and AM were interchangeable, and that he would be happy to perform an AM role. He stated that the respondent should consider bumping.[21]Ms Shaw wrote to the claimant on 23 April 2021 to confirm his dismissal by reason of redundancy. Within the letter, MS Shaw confirmed that she had considered bumping and had investigated the request, but did not consider it to be appropriate or reasonable. She stated that the only colleague in a role the respondent was asked to consider was Ken Sadler who was then on a fixed term contract as an AM. Ms Shaw stated that Ken had only one month remaining on his fixed term contract, and had the knowledge and relationships to ensure the Debenhams closures ran smoothly. She explained that it would not be beneficial to place the claimant into Mr Sadler’s role when there was only one month remaining on his contract. There was no mention of Ms Attrah and no rationale or explanation was given for not considering bumping her. In evidence, Ms Shaw said that this was an oversight and acknowledged that the claimant had not restricted himself to asking about the possibility of bumping as regards Mr Sadler only. The letter also did not respond to the claimant’s point about the AM and NSM roles being interchangeable. The explanation Ms Shaw gave in her oral evidence for why there could be no consideration of bumping in relation to Ms Attrah, or about the interchangeability of the roles was that Ms Attrah was an AM and the respondent had deemed the roles different, albeit that there was no real explanation of the rationale for that decision other than an explanation that there had been a review of the job descriptions.[22]The claimant appealed against his dismissal by way of a letter dated 29 April 2021. The appeal was heard by Ms Isemann. The claimant appealed on the basis that he had been unfairly selected for redundancy and therefore unfairly dismissed. He set out his belief that one of the reasons he had been made redundancy was because of his working relationship with Mr Pulford and another was because he had been suffering from stress at work. He also reiterated that he was doing the same role as the AMs and that it would have been fair to pool him with Ms Attrah and Mr Sadler. He also complained that the process was rushed through and that bumping was not considered as regards both Mr Sadler and Ms Attrah.[23]The claimant was invited to an appeal hearing on 18 May 2021. The claimant stated that he did not feel he should have been in a pool of one and that his role should have been pooled with the two AMs as they were all doing the same role, although his job title was different. Ms Isemann confirmed that, for commercial reasons, there was no longer any need for an NSM. The claimant stated that he also felt that someone from an AM role should have been bumped out.[24]Ms Isemann responded to the claimant by a letter dated 21 May 2021. The letter concludes that the claimant’s appeal was not upheld. The letter states: “Time was spent analysing the job specification of an area manager and a national sales manager to compare the two to establish whether there were any similarities before deciding who would be in the selection for redundancy. There were vast differences found in the two job roles, and although both roles may cover looking after branches, the national sales manager role contained many more responsibilities, accountabilities and were therefore deemed incomparable. The salary and benefits package differed between the two roles to reflect the difference in job specification. Bumping was also considered prior to starting the redundancy process, however as explained the two roles differed variably and this option was not considered appropriate by the business. I note in your appeal you feel the process was rushed, however upon reviewing documentation, each meeting was held with a reasonable and fair amount of time in between. There was a two week period in between the first and final consultation where further investigations were made internally following any counter proposals raised to mitigate the redundancy.” The Law Unfair dismissalThe Law
[25]Section 94 Employment Rights Act 1996 (“ERA”) provides a right not to be unfairly dismissed.[26]Section 98 states that redundancy is a potentially fair reason for dismissal.[27]Section 139(1) ERA reads as follows: 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 attributed to – (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”.[28]When a respondent relies on section 139 (1)(b) it must prove that the requirements of its business for employees to carry out work of a particular kind have ceased or diminished or are expected to do so.[29]In Murray v Foyle Meats Ltd [199] ICR 827, Lord Irvine LC said: “…paragraph (b) …asks two questions of fact. the first is whether on or other of the various states of economic affairs exists. In this case, the relevant one is whether the requirements of the business for employees to carry out work of a particular kind have diminished. The second question is whether the dismissal is attributable, wholly or mainly, to that state of affairs.”[30]The Tribunal’s consideration of fairness under section 98(4) ERA requires an assessment of the reason at the time the decision to dismiss was made and in the context of fairness and the size and administrative resources available to the respondent in accordance with equity and the substantial merits of the case. Section 98(4) ERA states:“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”.[31]It is not for the tribunal to decide if it would have been fairer to act in another way. "The question is whether the dismissal lay within the range of conduct which a reasonable employer could have adopted" (Williams v Compair Maxam Limited [1982] IRLR 83). Williams also confirms that, in the case of redundancy, an employer will not usually act unreasonably unless he warns and consults any employees affected, adopts a fair basis on which to select for redundancy and take such steps as may be reasonable to avoid or minimise redundancy by deployment.[32]In Langston v Cranfield University [1998] IRLR 172, the EAT held that the issues in Polkey are so well established that a tribunal is normally obliged to take them into account when considering an unfair redundancy dismissal claim, whether or not they have each been raised by the employee. The EAT noted that the burden of establishing unreasonableness does not fall on a claimant but is one for the tribunal to consider on a "neutral" basis. It held that, unless the parties have agreed otherwise, it is implicit in an unfair redundancy dismissal claim that the tribunal must consider each of the three main issues of consultation, selection and suitable alternative employment, even if these points have not been raised by the claimant (unless of course the parties make it clear that any of these points are not in issue).[33]In order for an employer to consult properly, it must have an open mind and still be capable of influence about the matters which form the subject matter of consultation. This suggests that consultation will only be meaningful if it happens at a formative stage rather than when there is a fait accompli. As was stated in R v British Coal Corporation and Secretary of State for Trade and Industry, ex parte Price [1994] IRLR 72: "Fair consultation involves giving the body consulted fair and proper opportunity to understand fully the matters about which it is being consulted, and to express its views on those subjects, with the consultor thereafter considering those views properly and genuinely. It is axiomatic that the process of consultation is not one in which the consultor is obliged to adopt any or all of the views expressed by the person or body whom he is consulting." The key components of fair consultation were further identified in British Coal as: consultation when the proposals are still at a formative stage; adequate information on which to respond; adequate time in which to respond; and conscientious consideration of the response to the consultation. Pool for selection[34]The question of how the pool should be defined is primarily a matter for the employer to determine and, provided an employer genuinely applies its mind to the choice of a pool, it will be difficult for an employee (or a tribunal) to challenge that choice. A particular set of circumstances may give rise to a variety of permissible pools and there is no legal requirement that a pool should be limited to employees doing the same or similar work. (Taymech Ltd v Ryan UKEAT/663/94).[35]The reasonable response test also applies to the choice of pool from which the redundancies are to be drawn (Hendy Banks City Print Limited v Fairbrother and others UKEAT/0691/04/TM). Bumping[36]There is no general obligation on an employer to consider bumping but, in some circumstances, it may be unreasonable not to do so. It is not compulsory for an employer to consider whether it should bump an employee. Conclusions Redundancy situation: section 139Conclusions
[37]The Tribunal is satisfied that a genuine redundancy situation existed within the respondent. It’s requirement for employees of a particular kind, namely NSMs had ceased. It needed to cut costs and no longer perceived a need for that role with a reduced number of branches, and indeed, a reduced number of AMs .[38]The claimant says that there was an expansion of work and that the opening of branches meant that the need for AMs had not ceased or diminished, but he was employed, and paid, as a NSM. The claimant repeated a number of times that he was performing the role of an AM, which assists the Tribunal to conclude that the respondent’s requirement for an NSM, and for work of that particular kind, had ceased or diminished.[39]Even if the work of a particular kind was that of AMs and NSMs, which the Tribunal does not accept, the evidence did not point to an expansion of work as suggested by the claimant. There was no evidence to suggest that someone else had been recruited into Mr Sadler’s role, as suggested, and there was evidence that the number of AMs required had diminished. Was redundancy the reason for the claimant’s dismissal?[40]The claimant alleges that he was not dismissed by reason of redundancy, but that this was a sham/engineered redundancy which came about as a result of the deterioration of the relationship between him and Mr Pulford. He relies on the meeting between himself and Mr Pulford on 7 December as a turning point.[41]It is evident that this was a process in which Mr Pulford had some involvement. He was involved at the outset in the strategic decision making on which the redundancy process was based and it appears that Mr Pulford presented the case to the directors for their approval.[42]However, there was no evidence to suggest that it was Mr Pulford who decided that the claimant must go, and/or that he created a sham redundancy exercise to achieve that end. The claimant’s only submissions in this regard were that Mr Pulford’s failure to enter the arena to consult and the respondent’s reluctance to engage over the pooling issue suggests that the reason for the claimant’s dismissal was not the redundancy situation.[43]The Tribunal concludes that the reason for the claimant’s dismissal was the redundancy situation. In that, it relies on the fact that two different people made the ultimate decision to dismiss, or uphold the dismissal, both of whom were independent decision makers. There was no evidence whatsoever to suggest that their decision making had been influenced by Mr Pulford. Further, there were good business grounds on which to base a decision that the NSM role was no longer needed. The Tribunal understands that the role has not subsequently been filled. As the claimant himself pointed out, when he commenced the NSM role there had been six AMs, and was, at the time of the claimant’s dismissal, only two. The number of branches was also significantly reduced as were the respondent’s profits. The claimant himself confirmed that he was performing the role of an AM, which would indicate that the need for a person to be performing at a higher and more strategic level had ceased or diminished, which would be to be expected if the number of AMs being managed had also reduced significantly. Fairness Warning, consultation and alternative employment[44]In terms of the overall process, the claimant was warned, consulted and offered available alternative employment. He was invited to consultation meetings and had the opportunity to put matters to the respondent, which were considered and responded to. The respondent acted as a reasonable employer as regards to the overall process and procedure followed.[45]The real question in this case is one of whether the respondent consulted properly and whether, in particular, it had an open mind and was still capable of influence about the matters which formed the subject matter of consultation, rather than entering into the consultation process with the claimant’s redundancy being a fair accompli. The claimant relies on the fact that the job specifications relied upon were never given to the claimant and that Ms Shaw didn’t have sufficient knowledge to engage in the issues raised by the claimant, over bumping and pooling, and didn’t seek it, and failed to engage with the points being raised.[46]The claimant also argues that the appeal officer, Ms Isemann, was a member of Board which approved the initial proposal, and that, therefore, her independence was compromised. Further, the claimant argues that Ms Isemann did not engage in the process. The appeal[47]As regards the appeal, there is no requirement for an appeal in a redundancy process, in that the absence of an appeal would not necessarily of itself make a dismissal unfair. In any event, the Tribunal is satisfied that Ms Isemann’s independence was not compromised, by being a member of the Board which approved the proposal initially, and that she was able to consider the process and apply her mind to the appeal, which she did. There was no evidence to suggest that she was compromised by her involvement in the process at the very early stages or that this affected her decision making. Selection: did the employer genuinely apply its mind to the pool[48]The Tribunal was asked by the claimant to reject Ms Shaw’s evidence that pooling was considered but discounted in the meeting pre-dating the formal notification of the claimant’s provisional selection for redundancy on the basis that this was mentioned for the first time in cross examination; it did not appear in Ms Shaw’s witness statement or in the ET3; and there was nothing to support it having been mentioned at this stage. Further, the claimant says that the respondent’s decision was never meaningfully explained to him and that there was an inconsistency in the explanation given (that the roles were vastly/variably different).[49]Whilst it is the case that there is no written evidence to support the fact that selection was discussed at an early stage, which is regrettable, the Tribunal considers that there was no reason to reject Ms Shaw’s evidence, which was credible and, in fact, confirmed by Ms Isemann in her appeal outcome letter which also suggested that these matters had been considered as part of the process at an early stage.[50]The Tribunal must be satisfied that the respondent’s actions, in selecting the role of NSM, and therefore the claimant, for redundancy, without pooling the role with the AMs, fell within the range of reasonable responses open to a reasonable employer, reminding itself that how the pool is defined is primarily a matter for the employer. It is not for the Tribunal to decide if it would have been fairer to act in another way. It is so satisfied. This was a decision to delete a layer of management and it is not for the Tribunal to interfere. Bumping[51]The claimant, similarly, asked the Tribunal not to accept Ms Shaw’s evidence that bumping had been considered at early stage.[52]At the consultation meeting on 23 April 2021, the claimant also suggested that the respondent should consider bumping.[53]Ms Shaw wrote to the claimant on 23 April 2021 to confirm, inter alia, that she had considered bumping and had investigated the request, but did not consider it to be appropriate or reasonable. She stated that the only colleague in a role the respondent was asked to consider was Mr Sadler who was then on a fixed term contract as an area manager. Ms Shaw stated that Mr Sadler had only one month remaining on his fixed term contract, and had the knowledge and relationships to ensure the Debenhams closures ran smoothly. She explained that it would not be beneficial to place the claimant into Mr Sadler’s role when there was only one month remaining on his contract. There was no mention of Ms Attrah and no rationale or explanation was given for not considering bumping her. In evidence, Ms Shaw said that this was an oversight and acknowledged that the claimant had not restricted himself to asking about the possibility of bumping as regards Mr Sadler only. Ms Shaw also did not provide an explanation for why there could be no consideration of bumping in relation to Ms Attrah in her letter but said in cross examination that it was because she was an AM and the respondent had deemed the roles of AM and NSM to be different.[54]Ms Isemann also stated in the appeal outcome: “Bumping was also considered prior to starting the redundancy process, however as explained the two roles differed variably and this option was not considered appropriate by the business.”[55]There is clear evidence that the respondent considered bumping. The Tribunal is satisfied that both options (pooling and bumping) were considered and that the respondent acted within the range of reasonable responses of a reasonable employer in so doing. Was the consultation fair?[56]When the issue of selection was raised by the claimant in consultation, Ms Shaw responded on 15 April 2021 with a specific response to the question of whether the claimant should be pooled with the AMs, by saying: “During a redundancy process, pooling is not required where only one employee, performing a unique role is being made redundant. As there is only one National Sales Manager in the business the selection pooling exercise was not required. The National Sales Manager and Area Manager roles differ variably within responsibilities, accountabilities and are therefore incomparable for being pooled together.”[57]The response indicates that Ms Shaw considered the issue of pooling and then responded. Whilst the respondent did not engage with the claimant to fully explain how the roles differed “variably”, it was clear from this response that Ms Shaw had considered the claimant’s point about pooling and had responded to it, with an explanation of the rationale for that decision.[58]In the appeal outcome. Ms Isemann confirmed to the claimant that she had found that, prior to starting the redundancy process: “all options were considered by the business to mitigate redundancies.” She goes on to state: “Time was spent analysing the job specification of an area manager and a national sales manager to compare the two to establish whether there were any similarities before deciding who would be in the selection for redundancy.” She continued, “There were vast differences found in the two job roles, and although both job roles may cover looking after branches, the national sales manager role contained many more responsibilities, accountabilities and were therefore deemed incomparable. The salary and benefits package differed between the two roles to reflect the difference in job specification.”[59]Both responses provide clear evidence that the respondent not only applied its mind to the question of pooling, but also further considered the situation in response to the points raised by the claimant in consultation and responded to him, with an explanation.[60]At the consultation meeting on 23 April 2021, the claimant also suggested that the respondent should consider bumping.[61]Ms Shaw wrote to the claimant on 23 April 2021 as set out above. As stated above, Ms Shaw responded to the bumping query, but omitted to provide an explanation for why bumping would not be appropriate in relation to Ms Attrah. In cross examination she said that it must have been an oversight but that it was because Ms Attrah was an AM and the respondent had deemed the roles to be different (and therefore, presumably, not suitable for pooling or bumping in the respondent’s view).[62]The claimant says that this response completely misses the claimant’s point that he could do the AM role and that a reasonable employer would set out a clear factual basis for why not. The Tribunal agrees that, ideally, Ms Shaw would have set out why also the respondent considered that Ms Attrah could not be bumped, but considers that the rationale for why Mr Sadler should not be “bumped” was clear and reasonable.[63]Subsequently, one of the claimant’s grounds of appeal was that bumping was not considered as regards both Mr Sadler and Ms Attrah. He reiterated, at the appeal hearing, that he felt that someone else should have been bumped out.[64]Ms Isemann responded to this point as follows: “Bumping was also considered prior to starting the redundancy process, however as explained the two roles differed variably and this option was not considered appropriate by the business.”[65]The respondent considered bumping, and engaged with the claimant by responding, albeit briefly, with the points he made, both in the consultation process and in the process as a whole, during the appeal. The clear rationale was that the roles were, in the respondent’s view, obviously different, not least because the AMs reported to the NSM and the claimant, as NSM, was paid a higher salary to acknowledge the more strategic role.[66]The Tribunal notes that it is axiomatic that the process of consultation is not one in which the consultor is obliged to adopt any or all of the views expressed, albeit that there must be conscientious consideration of the matters raised.[67]The Tribunal finds that, when considering the process as a whole, the consultation process was one which could have been adopted by a reasonable employer in all the circumstances of the case. All of the claimant’s points were responded to and the claimant was able to air his concerns and suggestions to be considered and responded to, following consideration by either Ms Shaw and/or Ms Isemann.[68]The Tribunal considers that the claimant was fairly dismissed in all the circumstances of the case. The respondent applied its mind to the pool and to bumping and conducted a fair redundancy process, with consultation and warning. The respondent acted as a reasonable employer, and within the band of reasonable responses of a reasonable employer, in all the circumstances of the case. Employment Judge Rice-Birchall Date: 30 July 2022