Mr P Parry-Williams v North West Logistics Ltd: 2415910/2020

EMPLOYMENT TRIBUNALS

Case No 2415910/2020

Between

Mr P Parry-WilliamsClaimant

North West Logistics LtdRespondent

Before

Employment Judge Cookson

In person for claimant

Ms R Jones (instructed by Counsel) for respondent

Date 8 July 2022

JUDGMENT

It is the unanimous decision of the Employment Tribunal that:

[1]The claimant’s complaint that he was unfairly dismissed by the First Respondent contrary to s94 of the Employment Rights Act 1996 (ERA) is well founded and is upheld but any compensatory award shall be reduced by 80% to take account of the chance that the claimant would have been dismissed had a fair process been followed in accordance with s123(1) of the Employment Rights Act 1996 (“ERA”).

[2]A declaration is made that the respondent made an unlawful deduction from his wages of £3,791 contrary to s13 of the ERA in respect of unpaid salary and commission. This was also a breach of contract. The outstanding sum has since been paid and the claimant is not entitled to any further payment.

[3]The claimant’s remaining claims for breach of contract and unlawful deductions from wages are not upheld and are dismissed.

[4]The claimant’s complaint that he was subject to discrimination arising in consequence of his disability contrary to s15 of the Equality Act 2010 (EqA) is not well founded and is dismissed.

[5]Remedy will be determined at a future hearing.

REASONS

[1]The respondent is a logistics company. Mr Parry-Williams (the claimant) is 66 years of age. He was employed from 12 August 2013 until 11 August 2020 as a sales manager. He was dismissed from his employment by reason of redundancy.

[2]The claimant brought claims of unfair dismissal, disability discrimination, breach of contract and unlawful deduction from wages in a claim presented on 18 October 2020 after a period of early conciliation from 28 August to 18 September 2020. The respondent filed a response on 2 December 2020 denying the claims.

[3]At a Preliminary Hearing on 23 March 2021 Employment Judge Robinson clarified the claims the claimant was bringing to identify the disability discrimination complaint to be a claim under Section 15 of the Equality Act 2010 (EqA), that is discrimination because of something arising in consequence of the claimant’s disability and he briefly identified the legal issues arising in the case and made a number of case management orders.

[4]At the outset of this hearing the respondent accepted that there had been an underpayment of the claimant’s commission and it accepted that the claimant is owed a further £3,791 in relation to the breach of contract and unlawful deduction claim. On 17 January 2022 the claimant wrote to the Employment Tribunal to confirm that he had received a payment in that amount. However, before this Tribunal the claimant continued to pursue certain further payments in relation to notice and commission. In his claim form the claimant had also brought a claim for damages in relation to the loss of his company car. In the course of this hearing, he conceded that in light of the wording of the payment in lieu of notice clause he was not entitled to any further payments in that regard and that claim has not been pursued before us.

[5]At the outset of the hearing the respondent also clarified that disability in this case had been conceded. Documents considered in reaching our judgment

[6]In reaching our judgment the Employment Tribunal have considered the following:

Findings of Fact

[7]We have made our findings of fact on the basis of the materials before us taking into account contemporaneous documents where they exist and the conduct of those concerned at the time. We have resolved such conflicts of evidence as arose on the balance of probabilities. We took into account in our assessment the credibility of witnesses and the consistency of their evidence with the surrounding facts. We have not made findings of fact in relation to every matter which was contested in evidence before us, simply those which were material to the determination of the legal issues in this case.

[8]The claimant was employed as a sales manager who worked from home, attending the office around once a month and with the use of a company car to visit clients. Although the Employment Tribunal was not provided with a job description, we understand that it was common ground between the parties that his role was to identify new sales opportunities and to manage and retain existing customer relationships. As well as a basic salary the claimant received commission on new customer accounts.

[9]During late 2019 and into early 2020 the claimant worked to secure new contracts for the respondent for two customers, Exertis and Simpsons Beverages. The Exertis contract in particular was a significant one. The claimant’s evidence was that the two new accounts had a combined gross revenue (estimate) in excess of £2.2m per annum. This triggered a significant entitlement to commission for the claimant and in turn that resulted in a potential concern about cashflow for the respondent. This resulted in discussions between the claimant, Mr Dunn the Managing Director, and Mr Walker, the Finance Director about a possible renegotiation of the phasing of the claimant’s commission.

[10]The respondent proposed that the claimant would receive £500 per month as a salary increase on a permanent basis, with £1,000 commission to be paid each month for twelve months. The claimant was told that this would mean that by the third month of the third year after these arrangements were put into place,

[11]The claimant told us as far as he was concerned, he should have been guaranteed £30,000 because that is what he would have received at the end of the Exteris contract but he was not able to take us to any correspondence which referred to a guarantee of that nature.

[12]Emails were exchanged between the parties, but the respondent did not prepare any formal amendment to the claimant’s contract of employment or any document setting out what had been agreed in relation to commission and salary beyond the email of 3 February 2020. The email does not deal with some obvious issues, for example it does not explain what the claimant’s entitlement will be if his employment ends for any reason. The claimant’s desire to have a commitment in relation to what would happen in terms of payment to his family was never resolved in express terms and that formed the basis of the dispute about commission before us.

[13]The claimant took leave in February 2020. Shortly after he returned to work in March 2020 the UK began to feel the effect of the Covid pandemic with reduced travel in early March followed by the “stay at home” instructions given by the UK Government which is widely referred to as “the first covid lockdown” on 23 March 2020.

[14]Unfortunately, on 30 March 2020 the claimant had a heart attack. He was admitted to Manchester Royal Infirmary to be given emergency treatment and was fitted with a stent. He was discharged on 2 April 2020 but was prescribed a range of medication as set out in his impact statement which is included in the hearing bundle. An email sent on behalf of his cardiology consultant for the purposes of these proceedings confirms that if the claimant were to stop taking this cardiac medication he would be at high risk of another heart attack which could lead to irreversible and permanent severe heart muscle damage with a risk of death. Although that email is dated some considerable time after the end of the claimant’s employment, it was not suggested that the claimant’s condition or prognosis had changed in the intervening period of time. The claimant was signed off work by his doctor until 16 May 2020.

[15]At no time did the respondent seek any medical advice on the implications of the claimant’s heart attack either from the claimant’s GP or an occupational health adviser about what its long-term implications might be or seek clarification for the claimant about the impact of it on his day-to-day life. This

[16]In the meantime, the respondent had suffered a significant downturn in sales of some 20% which Mr Dunn related to the pandemic. On 6 May 2020 Mr Walker wrote to the claimant to inform him that he was being placed on furlough with retrospective effect from 1 April 2020 at 100% of his salary. The claimant agreed to this.

[17]On 15 May 2020 the claimant wrote to Mr Walker and Mr Dunn raising a number of issues in relation to furlough arrangements and other matters. In that email he raised again the issue of the commission arrangements and in particular repeated his request that his family would get the benefit of the commission should anything happen to him. Mr Walker replied with the following comment “it was with your agreement that the Exertis commission was to be paid over twelve months and which we gratefully accepted so of course we would honour that agreement in the event that something should happen to you and make the payments to your estate although I think you should listen to the Monty Python song “always look on the bright side of life”.

[18]On 24 June 2020 there was an exchange of correspondence between the claimant and Mr Dunn about the claimant’s ability to return to work and when that might be possible in light of the Covid pandemic restrictions. Mr Walker replied to say that the company was still suffering from reduced activity and for that reason the claimant would remain on furlough for the time being until there were signs of business activity picking up again.

[19]Although not evidenced by any documents in the bundle, we accepted evidence given by Mr Dunn, which was not disputed by the claimant, that over the course of late 2019 he had begun work to review the respondent’s website. The claimant told us that in his opinion the website was outdated and “not fit for purpose”. Mr Dunn gave evidence that the Covid pandemic had brought how the company conducted its business into sharp focus and that alongside the redesign of the website, he had concluded that the way the company operated needed to change with an increasing focus on winning work through virtual means by customers engaging with the website, rather than the traditional approach which had been built on him and the claimant, building and developing customer contacts through “being out on the road”. Although the claimant thought that the website needed updating, he was unaware of plans for that wider change.

[20]On 8 July 2020 Mr Dunn wrote to the claimant to invite him to a meeting at the company’s offices to “have a catch up … and discuss where we are going as a company”.

[21]The meeting went ahead on Monday 13 July 2020. We have no notes of that meeting and we found it surprising that the respondent did not prepare any record of that meeting. It was suggested that after being told that he was at risk of redundancy the claimant’s focus was on what he would be paid if he was made redundant. Mr Dunn told us that he had intended this to be no more than a meeting at which he told the claimant he would be at risk but, as shown by the emails between the parties which followed on 14 July 2020, there was a discussion at that meeting about redundancy entitlement and there was some discussion about the possibility of the parties entering into a compromise agreement, although the terms of what might have been discussed fall outside the scope of our considerations. In his emails the claimant referred to a desire to seek professional advice before meeting with the company again. Although the claimant asked about what he would receive if he was dismissed, we do not accept that the claimant was only interested in that as was suggested. At later meetings the claimant raised the possibility of other employment or working part time. We accept that the claimant wanted his employment to continue but that he was also concerned with what he would receive if the worst was to happen. That is unsurprising.

[22]There was a further meeting between the claimant, Mr Dunn and Mr Walker on 20 July. The bundle contains notes of that meeting prepared by the respondent, which are undated, but which were sent to the claimant on 23 July 2020, and notes made by the claimant dated 22 July 2020. There is a conflict of evidence about what was said at that meeting.

[23]The respondent’s notes indicate that the claimant asked if there were other roles which he could undertake or if it was possible to work part time. He was told that Mr Dunn intended to eliminate the current sales role and recruit an experienced marketing manager who would be based permanently in the office and who would use their skills and experience to identify and qualify new sales opportunities. This would involve modern marketing techniques using multi- media, including digital marketing tools, website development, PowerPoint presentations and other direct marketing. That person would also design and produce marketing literature to contact and target customers throughout the north-west of England. It was Mr Dunn’s intention that he would then follow-up qualified leads and develop them to their conclusion whilst working closely with the marketing manager. The meeting notes record that having considered the experience and skills of the claimant “it was mutually agreed” that the claimant did not have the current skills required for this new type of role. Mr Dunn then said that this meant that a part-time role was ruled out, although the employment tribunal did not receive any explanation for why the claimant’s unsuitability of the new marketing role meant that a part-time role undertaking sales and managing customer relationship could not have been considered. There was no evidence before us that this was considered. It appears that Mr Dunn simply told the claimant that it was “not an option”.

[24]The claimant’s notes record that the claimant was told by Mr Dunn that the redundancy had arisen because of a need to change the way sales were handled. The claimant’s notes record that he suggested, and Mr Dunn agreed, that this would not have happened had it not been for the claimant’s heart attack and Covid.

[25]Mr Dunn and Mr Walker disputed that there had ever been a reference to the claimant’s heart attack in discussion about the circumstances which had given rise to the need to make changes. Mr Dunn and Mr Walker had told us that it was their intention that there would be a meeting simply to discuss the company’s proposals, but we find it highly plausible that an employee in that situation would want to know why it was happening, and indeed it would be surprising if this was not discussed at all in the consultation meeting of this nature. The panel found the claimant’s evidence about this to be credible and consistent. His version of events is consistent with the email which he sent on 23 July 2020 which refers to the fact that the company notes “do not explain how the idea of the redundancy came about – being a direct outcome from the time after heart attack and then furlough as explained by SD”. Neither Mr Dunn nor Mr Walker wrote to the claimant to dispute that this had happened. We were told this was because they did not want to enter into email discussions about what had happened at the meetings because that would be discussed later, but that never happened. The panel found that it implausible that if the company would not have disputed the claimant’s assertion about the heart attack having been raised if this had never happened. We preferred the claimant’s evidence about that accept that this was raised by the claimant and that Mr Dunn agreed with him.

[26]It was Mr Dunn and Mr Walker’s evidence that they had offered the claimant the role of marketing manager, had encouraged him to take it and that they had been shocked and surprised when the claimant had said that was something he was not interested in. Although it is not recorded anywhere in the notes that the claimant was expressly offered the role of marketing manager, in the course of cross examination he accepted that the offer had been made. What the claimant told us was that the role of marketing manager had never been offered to him in a “meaningful way”. The panel accepted the claimant’s evidence about that. To the extent that the claimant was offered the role, we find that it was done in such way that it way that the claimant understood that he was not expected to accept the offer because he was not considered to be suitable. We reached our conclusion about that because the respondent’s own notes only refer to the claimant not having the correct skills and experience. It is clear that the notes of the meeting were not intended to be a verbatim record of what was said between the parties and we took that into account. However, the notes do not record Mr Dunn and Mr Walker offering any encouragement to the claimant to take the role of Marketing Manager and identifying support which could be offered to him to adapt to that new role at any stage. There was a clear inconsistency between the evidence of Mr Dunn and Mr Walker and the

[27]There was a further consultation meeting on 29 July 2020. At that next meeting the minutes of the meeting indicate that Mr Dunn “commenced the meeting stating as previously PW was entitled to have a representative with him at the meeting but that he had chosen to attend on his own. He then said that he wanted to recap on why we were consulting about a possible redundancy situation. He said that PW’s current roll [sic] of working from home and generating his own leads and following these up was changing. During Covid the directors had been reviewing the business and were looking to make possible changes. SD was intending to bring in a Marketing Manager who would work full time from the office generating and validating sales enquiries which would be closed out by SD. This meant that the Sales Manager role would no longer be required and the role may therefore be redundant”.

[28]This version of minutes was not disputed by the claimant. The minutes again showed that when the claimant enquired about possible aspects of the role of the marketing manager which he might be able to undertake, for example working on qualified leads or working on customer retention, that Mr Dunn told him that these were things Mr Dunn would work on himself in the future. The minutes of the meeting in this regard are somewhat inconsistent with the evidence which Mr Dunn gave to the Tribunal during which he had emphasised his desire to retain the claimant’s skills and experience within the business. We found nothing in the notes to support this account or any desire to retain the claimant. Rather the notes suggest that a decision had already been taken that the claimant’s role was redundant and there was no alternative employment which was considered by the respondent to be suitable for him.

[29]What is clear, and was conceded by the claimant, was that he was not interested in the new role of marketing manager. The claimant emphasised that he was not interested in an office-based role and he did not see the new role as being one which would suit his skill set or which he would be qualified or experienced to undertake. What the claimant wanted the respondent to consider was a role undertaking the sales and customer relationship management which he did have experience in, perhaps on part-time basis.

[30]There was a further discussion at that meeting about the terms of a possible settlement which was not relevant to these proceedings. In terms of the redundancy process, the claimant indicated that he was keen to see the process completed because he was due to attend the hospital for a further stent procedure on 14 September 2020.

[31]On 2 August 2020 the claimant emailed Mr Dunn and Mr Walker to raise an issue about the reference to company retirement ages in his contract of employment and Mr Dunn responded by saying that “we do not believe it is appropriate to accept any statements made by email during our consultation

[32]There was a further meeting on Wednesday 5 August. The minutes of that meeting begin in a similar way as the previous meeting with the reiteration by Mr Dunn that the situation facing the company has been created by the Covid pandemic with the way the company would operate moving forward being that Mr Dunn was going to manage the closure of new business and the account management side and the new marketing manager would concentrate on lead generation and the promotion of the business.

[33]The minutes record that Mr Dunn had “looked at the claimant to see if he would be able to do this marketing role but .. the claimant agreed it was not something he could do or wanted to do”. The minutes also record that Mr Dunn stated that it was not a matter of age and that “if PW could have performed the marketing role then he would have been offered it”. This supports the claimant’s case that insofar as the marketing manager role was offered to him it was not done in any meaningful sense, by which the Tribunal understand the claimant to mean it was not offered to him in a way which suggested there was any expectation that he would accept the offer or indeed enthusiasm for him doing so. The rest of the meeting went on to discuss the retirement age issue and the claimant expressed the view that he felt his redundancy was inevitable and that he wanted to discuss possible settlement terms. The meeting notes then record a further discussion about possible terms for settlement. Although they were not redacted for the hearing they fell outside the scope of our considerations.

[34]There was a further meeting with the claimant on 11 August 2020. This was described as a consultation meeting by the respondent, but the Tribunal concluded that this was not a consultation meeting in any sense, it was a meeting to tell the claimant he was being dismissed. The meeting minutes show that the meeting started with Mr Dunn summarising that he and Mr Walker had met with the claimant on three previous occasions and that the company had now concluded that the claimant was redundant and that his employment was being terminated with effect from 11 August 2020. There is no discussion about alternatives to redundancy in that meeting and the notes show that the rest of the meeting was a discussion about the claimant’s entitlement to commission and a discussion about possible terms of a settlement agreement which was not eventually agreed.

[35]On 11 August 2020 the respondent wrote to the claimant to notify him that his role was redundant. The letter reiterates that the changes to the business had come from a review undertaken during the Covid pandemic with the company intending to recruit a marketing manager who would be responsible for marketing the business with a particular focus on social media and generating and validating sales enquiries and that those enquiries would be absorbed into the role of the managing director to complete and close sales. The result of that would be that the role of sales manager would no longer be required. The

[36]The letter explained that the claimant is entitled to seven weeks’ notice of termination, but that the company was terminating his employment with immediate effect in accordance with clause 29.3 of his contract of employment with a payment in lieu of his contractual notice period. The letter stated that the claimant was to be paid a statutory redundancy payment and in addition to a payment in respect of his contractual notice of £5,694 he was to be paid “an ex-gratia payment of £13,709 together with the transfer of the ownership of his company car with a book value of £4,900”. However, the ex- gratia payment and transfer of car ownership would be conditional upon him entering into a settlement agreement which did not happen.

[37]On 16 August 2020 the claimant wrote to Mr Walker to appeal against the termination of his employment by reason of redundancy and separately to raise a grievance. His letter sets out the following reasons why he says that his selection for redundancy was unfair:a. “the company was more than happy with my contribution to the growth of new business as evidenced by an email from the Managing Director dated 22 January 2020 in a commission negotiation meeting dated 31 January 2020. There was no indication of any remote possibility of impending redundancies or changes to how sales would proceed in future.

b. I went on holiday for most of February and was available for work on my return Monday 24 February 2020. The Covid 19 restrictions were starting to make customer visits difficult shortly afterwards and I started working from home from Monday 7 March 2020.

c. On 30 March 2020 I suffered a heart attack and had an emergency stent procedure at Manchester University NHS Foundation Trust hospital. After I came home on 3rd March [sic] and went into recovery I supplied two sets of fit notes but was also placed on furlough. Nothing was mentioned about any possible redundancies at that time.

d. On Wednesday 29 July 2020 during one of the consultation meetings the company confirmed that during Covid the directors have been reviewing the business and looking to make possible changes. The MD was intending to bring in a Marketing Manager who would work full time

[38]The next paragraph is headed without prejudice although it is not clear on what basis the claimant has used those words as it does set out settlement terms. It refers to looking forward to receiving details of an appeal hearing where the situation could be resolved without the need for any legal action.

[39]The other letter sent on 16 August 2020 is headed “formal letter of grievance – health discrimination, redundancy compensation and commission calculations without prejudice”. Again, it is not clear on what basis the claimant has used the words “without prejudice” as there is nothing in this letter which suggests that he is putting forward an offer of settlement. The letter says that it is being sent as a formal letter of grievance in accordance with the ACAS Code of Practice on Disciplinary and Grievance Procedures which is inconsistent with it being without prejudice correspondence. The letter refers to the claimant’s belief that the termination of his contract was “highlighted issues of possible discrimination after my heart attack on 30 March 2020”. Although the claimant is not explicit about this, he seems to refer to the fact that he regards himself as disabled by referring to the Equality Act 2020 and the fact that his condition would be assessed in a way which would disregard how his medical condition was being controlled by medication.

[40]The claimant also argued that the arrangements put in place in relation to commission had implied a guarantee of at least a three-year contract which should be seen as a bonus for him having agreed to offset his immediate entitlement to a commission payment and the letter again stressed the claimant’s desire to find a resolution to his grievance without resulting to legal action.

[41]On 20 August 2020 Mr Ashton, an independent HR consultant, wrote to the claimant to inform him that he would hear both the appeal against redundancy and grievance at a hearing to be held on 27 August. Minutes of that meeting are included in the bundle. The hearing dealt with the appeal against redundancy and grievance separately. In the part of the meeting that discussed

[42]In the second part or the meeting there was a discussion about the grievance with the notes recording that Mr Ashton told the claimant it was his opportunity to “elaborate” on his written submission and focus on the key elements and that he was being told that as a former employee a modified grievance procedure would be used which meant he would receive the outcome in writing and there would be no appeal.

[43]The first element of his grievance outlined by the claimant was about his disagreement over the payments for commission and there was some reference to the discussions about a possible settlement agreement. The second element of the grievance was that “the company had selected him for redundancy because he had suffered a heart attack, resulting in a stent being fitted and would require further medical treatment. The claimant explained that this was a breach of his rights under the Equality Act and potential disability discrimination”.

[44]On 1 September 2020 Mr Ashton wrote to the claimant to reject both his appeal against redundancy and his grievance. The grounds of appeal were rejected because Mr Ashton concluded the company had satisfied itself that its sales needed to refocus into modern techniques, lead generation and deal closure and that there will be two roles, the first being a brand-new role and not suited to the claimant and the latter being undertaken by the Managing Director and because of Mr Ashton’s view the Managing Director was adding the completion element to his role no competition was required. In relation to other elements of the role Mr Ashton concluded that it was for the company to decide who would undertake that and in relation to the last issue which the claimant had raised, namely that he had performed very well in the past, Mr Ashton identified that the redundancy had not related to performance and so it would not be “out of order to see positive comments related to the employee. The two are not connected”.

[45]In relation to the grievance, the first part of his letter relates to the disagreement over payments for commission. Mr Ashton responded to that by saying that he had advised that the company seek legal advice in relation to their position and that he would not be further involved in that because it appeared to be something which would be factored into a settlement agreement. On the second part of the grievance Mr Ashton said this “I reviewed all the paperwork associated with this redundancy and paid particular attention to the four meetings which took place for consultation. There was no mention by yourself that you thought there was a connection between your health and the selection for redundancy and nor was there any reference made by the company either.

[46]The tribunal panel did not find this conclusion helped us. As in any discrimination case, it would be surprising if there was explicit evidence from an employer that it was discriminating against an employee. The claimant had referred to a connection with his heart attack in his notes of the first consultation meeting. Mr Ashton told us that he was unaware of those notes and it appears he had undertaken no further investigations to investigation why the claimant had this belief and whether the motivation for the claimant’s redundancy could have been his heart attack. As it appears that Mr Ashton’s conclusions were drawn without access to all the relevant information, the panel could not attach any weight to his conclusions.

[47]The role of marketing manager was filled by Mr Dunn’s son later in the summer, but the claimant did not discover that until it was raised at the preliminary hearing before Employment Judge Robinson. Mr Dunn’s son was offered the marketing manager role on 7 September 2020, but he had resigned from his previous employment on 15 June and worked a month’s notice. It was Mr Dunn’s evidence that his son had decided to leave his previous job to explore working for himself and it was only because he was available at short notice that he was offered the marketing manager role. The claimant however believed that that it was significant that it was Mr Dunn’s son who had taken this role. Our conclusions about this are considered below. The Law Unfair Dismissal: Employment Rights Act 1996 (“ERA”)

The Law

[48]S98(1) provides “In determining ….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”. … (4) states “Where an employee argues that his dismissal was not by reason of redundancy, the statutory presumption under S.163(2) ERA that a dismissal is for redundancy does not apply and the employer must show the reason for dismissal”.

[49]For a dismissal to be by reason of redundancy, a redundancy situation must exist bearing in behind the statutory definition or disappearing work or a reducing requirement for work of a particular kind under s 139 of the ERA. s139 Redundancy.

[50]Ms Jones has drawn our attention to the decision in Safeway Stores plc v Burrell

[1997] IRLR 200

, which identified that the correct "statutory test" in a redundancy case involves a three-stage process requiring that, in essence we ask ourselves 3 questions:a. Was the employee dismissed?

b. If so, was there a diminution or cessation in the requirements of the employer's business for employees (not the employee) to carry out work of a particular kind, or an expectation of such in the future?

c. If so, was the dismissal of the employee caused wholly or mainly by that state of affairs?

[51]In terms of fairness under the ERA, it is not for tribunals to investigate the reasons behind such situations. A good commercial reason is enough to justify the decision to make redundancies (James W Cook and Co (Wivenhoe) Ltd v Tipper and ors

1990 ICR 716

, CA). An employer does not have to show that redundancies are required to save a business. It may simply decide that it can produce the same results in a more efficient way.

[52]Guidelines for what might be expected of a reasonable employer in making redundancy dismissals was set out in Williams and ors v Compair Maxam Ltd

1982 ICR 156

, EAT. In assessing these guidelines, we must ask ourselves whether ‘the dismissal lay within the range of conduct which a reasonable employer could have adopted’.

[53]The factors suggested by the EAT in the Compair Maxam case that a reasonable employer might be expected to consider were:a. whether the selection criteria were objectively chosen and fairly applied;

b. whether employees were warned and consulted about the redundancy;

c. whether, if there was a union, the union’s view was sought; and

d. whether any alternative work was available.

[54]In the seminal case of Polkey v AE Dayton Services Ltd

1988 ICR 142

, HL, Lord Bridge said ‘In the case of redundancy… the employer will normally not act reasonably unless he warns and consults any employees affected or their representative, adopts a fair basis on which to select for redundancy and takes such steps as may be reasonable to avoid or minimise redundancy by redeployment within his own organisation. In Polkey the House of Lords were clear that the question for the tribunal was whether the employer had acted reasonably in deciding that the reason for dismissing the employee was sufficient, not whether the employee would have been dismissed even if warning or consultation had taken place. Only if the employer could reasonably have concluded at the time of dismissal that consultation would be utterly futile and the decision to dismiss would be unaffected by any consultation with the employee, could a dismissal in breach of procedural fairness be reasonable.

[55]There is no statutory requirement for individual consultation nor any specification for what consultation must cover and of course the subject matter will depend upon the specific circumstances, but in our industrial experience and as noted in chapter 8 of the IDS Handbook on Redundancy, consultation might be expected to include an indication (i.e. warning) that the individual has been provisionally selected for redundancy, confirmation of the basis for selection where appropriate, an opportunity for the employee to comment on his or her redundancy selection assessment, consideration as to what, if any, alternative positions of employment may exist, and an opportunity for the employee to address any other matters he or she may wish to raise. The purpose of consultation is not only to allow consideration of alternative employment or to see if there is any other way that redundancies can be avoided, it also helps employees to protect themselves against the consequences of being made redundant. “Polkey reduction”

[56]A ‘just and equitable’ reduction under S.123(1) ERA should be applied where the unfairly dismissed employee could have been dismissed fairly at a later date or if a proper procedure had been followed (Polkey v AE Dayton Services Ltd

1988 ICR142

, HL). This reflects the basic principle that ‘it cannot be just and equitable that a sum should be awarded in compensation when in fact the employee has suffered no injustice by being dismissed’ (W Devis and Sons Ltd v Atkins 1977ICR 662, HL). If a reduction is made, the tribunal must explain its reasons.

[57]If there has been a merely procedural lapse or omission, it may be relatively straightforward to envisage what the course of events might have been if procedures had stayed on track. However, if what went wrong was more fundamental, it may be difficult to envisage what would have happened in the hypothetical situation of the unfairness not having occurred. In that case, the tribunal cannot be expected to ‘embark on a sea of speculation’. (King and ors v Eaton Ltd (No.2)

1998 IRLR 686

, Ct Sess (Inner House)).

[58]It is important to acknowledge that does not mean that it will not be just and equitable to apply a Polkey reduction if there is substantial as well as procedural unfairness and the tribunal must have regard to all the evidence, including any relevant evidence from the employee.

[59]There is relevant guidance on how to approach this issue in Software 2000 Ltd v Andrews and ors

2007 ICR 825

, EAT. In that case the EAT reviewed the leading and identified the following principles which emerge from those cases: “(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 procedures been followed, or alternatively would not have continued in employment indefinitely, it is for him to adduce any relevant evidence on which he wishes to rely. However, the Tribunal must have regard to all the evidence when making that assessment, including any evidence from the employee himself. (He might, for example, have given evidence that he had intended to retire in the near future). (3) However, 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. It must recognise that it 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 uncertainty 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.” Disability discrimination “Discrimination arising from disability”

[60]“Section 15 Discrimination arising from disability “(1)A person(a) (A) discriminates against a disabled person

(b) (B) if— (a)A treats B unfavourably because of something arising in consequence of B's disability, and

[61]An employer has a defence to a section 15 claim if they can establish that they had no knowledge of the claimant’s disability or that they could not be reasonably expected to know the claimant was disabled, that is that there is an impediment to the claimant’s ability to undertake day to day activities, that it has a substantial effect and is long-term.

[62]The employer, in accordance with the EHRC Employment Code, must do all it reasonably can to find out if the person has the disability, and knowledge held by the employer’s agent or employee, such as Occupational Health adviser etc., will usually be imputed to an employer.

[63]A respondent need not have knowledge that the ‘something’ has arisen as a result of the claimant’s disability, although that might be relevant to justification. So, if a claimant is dismissed for absence which the respondent does not know is a result of the claimant’s disability, provided the respondent does have actual or constructive knowledge of the disability, there would still be a section 15 claim. Justification defence

[64]In respect of justification, where raised by the respondent, in Hardys and Hansons PLC v Lax [2005] Court of Appeal it was said, “It is for the Employment Tribunal to weigh the real needs of the undertaking expressed without exaggeration against the discriminatory effect of the employer’s proposal. The proposal must be objectively justified and proportionate…A critical evaluation is required and is required to be demonstrated in the reading of the Tribunal.” Case drawn to our attention by the respondent in relation to s15:

[65]Ms Jones drew our attention to the EAT’s judgment in Charlesworth v Dransfields Engineering Services Ltd (

UKEAT/0197/16/JOJ

). The facts of the case can be summarised briefly. Mr C was employed by the respondent as a branch manager. The business was not achieving the anticipated and desired profitability. Mr C developed renal cancer and was absent for two months and this absence allowed the respondent to identify the possibility of restructuring the business in a way that deleted the claimant’s post. Mr C returned to work but the respondent commenced consultation over his proposed redundancy and eventually dismissed him.

[66]Mr C claimed he was not redundant and that he was dismissed because of his disability. That was rejected by the tribunal. The tribunal found that the possibility of a restructuring that would enable cost savings to be made became apparent as a result of his absence. However, the tribunal concluded that Mr C’s absence resulting from his disability was not an operative cause of his dismissal for redundancy.

[67]Mr C had appealed on the basis that the tribunal had failed to apply the correct causation test under s15 of Equality Act 2010 s.15. It was argued for the employee that under the causation test for discrimination arising from disability, a cause, however significant and whether or not it is an effective cause, is sufficient to constitute or to fulfil the requirement that it is “because of something arising in consequence of the disability”, in essence any cause, is sufficient to satisfy s15 of the Equality Act 2010.

[68]The Employment Appeal Tribunal (EAT) held that the causation requirement in the Equality Act 2010 s.15 involves a two-stage approach which may be summarised as follows (italics show our emphasis). First, there must be something arising in consequence of the disability; second, the unfavourable treatment must be because of that something. The statute requires the unfavourable treatment to be because of something; nothing less will do. Provided the something is an effective cause (though it need not be the sole or the main cause of the unfavourable treatment), the causal test is established.

[69]On the facts of the case in question, the tribunal had expressly accepted that in considering a s.15 complaint it is not necessary for Mr C’s disability to be the cause of the respondent’s action, and that a cause need not be the only or main cause provided it is an effective cause. There was no error of law in the tribunal’s approach. The tribunal had accepted that there was a link between Mr C’s absence through illness and the fact that he was dismissed, the link being that his absence afforded the respondent an opportunity to observe that it could manage without anybody fulfilling the claimant’s role. Nevertheless, the tribunal had found that not the same as saying that Mr C was dismissed because of his absence. On the facts of the case it felt able to draw a distinction between the context within which the events occurred and those matters that were causative. Burden of proof s136 Equality Act “(1)This section applies to any proceedings relating to a contravention of this Act.

[70]Direct evidence of discrimination is rare and employment tribunals frequently have to infer discrimination from their findings of material facts. Historically the courts adopted a two-stage test which reflected the requirements of the Burden of Proof Directive (97/80/EEC). The first stage places a burden on the claimant to establish a prima facie case of discrimination. That requires the claimant to prove facts from which inferences could be drawn that the employer has treated them less favourably on the prohibited ground. If the claimant proves such facts, then the second stage is engaged. At that stage the burden shifts to the employer who can only discharge the burden by proving on the balance of probabilities that the treatment was not on the prohibited ground. If they fail to establish that, the Tribunal must find that there is discrimination. The wording in s136 of the EqA did not change the way that burden of proof operates – the claimant still has to show a prima facie case of discrimination.

[71]In terms of the respondent’s case, the explanation for the less favourable treatment does not have to be a reasonable one. In the circumstances of a particular case unreasonable treatment may be evidence of discrimination such as to engage stage two and call for an explanation. If the employer fails to provide a non-discriminatory explanation for the unreasonable treatment, then the inference of discrimination must be drawn. The inference is then drawn not from the unreasonable treatment itself - or at least not simply from that fact - but from the failure to provide a non-discriminatory explanation for it. But if the employer shows that the reason for the less favourable treatment has nothing to do with the prohibited ground, the burden is discharged at the second stage, however unreasonable the treatment.

[72]It is not necessary in every case for an employment tribunal to go through the two-stage process. In some cases it may be appropriate simply to focus on the reason given by the employer (“the reason why”) and, if the Tribunal is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case. The employee is not prejudiced by that approach, but the employer may be, because the employment tribunal is acting on the assumption that the first hurdle has been crossed by the employee.

[73]It is incumbent on an employment tribunal which seeks to infer (or indeed to decline to infer) discrimination from the surrounding facts to set out in some detail what these relevant factors are.

[74]Section 13 Right not to suffer unauthorised deductions. (1)An employer shall not make a deduction from wages of a worker employed by him unless— (a)the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b)the worker has previously signified in writing his agreement or consent to the making of the deduction. (2)In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised— (a)in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or (b)in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion. (3)Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion Breach of contract under the Extension of Jurisdiction Order 1994

[75]Article 3. Proceedings may be brought before an [industrial tribunal] in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries) if—… (c)the claim arises or is outstanding on the termination of the employee’s employment.

[76]A breach of a contract of employment occurs when a party fails to fulfil an obligation imposed by the terms of the contract, or indicates, by words or conduct, that the party does not intend to honour an essential term or terms of the contract when the time for performance arrives. A breach of contract gives the innocent party the right to sue for damages, i.e. financial compensation for losses flowing from the breach. The general principle applicable to all types of claim for breach of contract is that damages should return the innocent party to the position that party would have occupied but for the breach. Submissions

[77]Both parties made oral submissions to us and we have highlighted particular matters of relevance in our conclusions. The submissions can be briefly summarised as follows: The respondent’s submissions

[78]Ms Jones acknowledged that it is for the respondent to show a fair reason for dismissal. She highlighted the Safeway decision referred to above and pointed to the following (which we have summarised but do not in any way seek to set out in full).a. We should be satisfied that there has been a reduction in the requirement for employees to do the work that the claimant here was undertaking. Sales had reduced significantly, and we are urged to accept the respondent’s evidence that “going out to get sales” was not working anymore and there was an impetus to move to the website-based approach with the claimant himself having acknowledged the need to improve the website.

b. If it is not strictly a redundancy, it is a dismissal caused by a business reorganisation amounting to some other substantial reason.

c. Ms Jones highlighted that at p130 of the bundle the document had recorded that in the discussions there had been reference to the need to change the way sales were handled. She suggested that the evidence of Mr Dunn was that he wanted the claimant to do the marketing manager’s job and when the claimant would not, the respondent turned to Mr Dunn’s son because he happened to be available, not because Mr Dunn was seeking to replace the claimant with his son.

d. Ms Jones argued that quite simply the evidence was if the claimant had wanted that job, he could have accepted it. In terms of general fairness, she highlighted that, of course, we must not determine what we as a tribunal would have done if we were the claimant’s employer, we must decide if this employer acted within the range of reasonable responses.

e. In terms of the principles of fairness Ms Jones highlighted that there had been an informal meeting and 3 formal meetings and that the minutes, apart from the dispute about the reference to the claimant’s heart attack, were largely agreed. She says those minutes show the claimant’s redundancy was not a foregone conclusion and that the respondent was looking for the claimant’s input and that they had consulted with him about alternatives to redundancy. There are no set timescales, but the process here took over a month from warning to dismissal.

[79]The claimant’s made very brief submissions and explained that he felt that he did not have the words or training to fully explain his case in legal terms. He explained he felt that “hindsight is a wonderful thing” and he wishes he had raised more matters in writing and been more diligent about pursuing those matters. He largely left matters in our hands but highlighted that he feels his claim is well founded and drew our particular attention to the following the following;a. He argued that his heart attack was contributory factor to being made redundant and that his redundancy had brought that into sharper focus.

b. He pointed to the absence of the discussion about his heart attack from the minutes of the meeting as being significant and highlighted that this showed the minutes were not accurate.

c. If the offer of the marketing manager role had been meaningful, it could have been offered on a trial basis, but it had never been put to him in that way.

d. He accepted that the car does not fall within the PILON claim.

e. He maintained his argument that he should have been paid more in relation to outstanding commission. The claimant’s argument about what he says what agreed with him is set out in his witness statement as follows “The company offered to restructure my payments to £1000 per month for 12 months and defer the balance payable at £6000 per annum to be paid monthly as an ongoing benefit which would continue to be paid to me even after the estimated commission had been reached. I understood this as giving me a return of £30,000 over the 3-year Exertis contract with the additional £4,500 being a bonus for easing the burden on the Company cash flow.” Our discussions and conclusions Disability claims

[80]Disability in this case was conceded but the respondent did not admit that it had knowledge of that disability.

[81]In terms of the respondent’s knowledge of disability we found that, as matter of fact, Mr Dunn and the respondent had constructive knowledge of the claimant’s disability. Mr Dunn was aware that the claimant had had a heart attack and had required a stent to be fitted. He may not have known what long-term medication the claimant had been prescribed, precisely what the impact of the heart attack was on the claimant’s ability to undertake day to day activities or what his

[82]In this case the tribunal was struck by the apparent lack of interest shown by the respondent towards the claimant’s health. The claimant did not attempt to hide his medical condition from his employer, but it seems the respondent chose not to explore what the implications of his condition could be. We were satisfied that the claimant had provided sufficient information to put the respondent on notice of a physical impairment that the employer was or should have been aware would impact on his day-to-day activities. If the respondent had made the reasonable enquiries of the claimant, his cardiac consultants and GP which flowed from being informed about the claimant’s heart attack and his absence, we concluded that it would quickly have found out the information which was provided when it was later sought by the claimant in these proceedings (there being no suggestion his condition had materially deteriorated in the interim) and which led to the concession of disability in the course of these proceedings. There was no evidence before us that the claimant would have provided misleading information or that if enquiries had been made the respondent would not have received the same assessment found in the bundle but at a much earlier stage.

[83]We also could not accept that because the claimant had been able to return to work it could be said that the respondent did not have knowledge of disability as appeared to be suggested to us. That seems to this panel to come perilously close to suggesting that being disabled and being able to work are somehow incompatible and that of course is not the case. Simply put, the fact that the claimant was fit to return to work did not mean he could not be disabled. No employer considering matters in a reasonable manner could reach that conclusion. In any event whilst work is a day-to-day activity, no enquiries were made of what other day to day activities might be affected and no attempt was made by the respondent to understand the extent to which the claimant was only able to return to work because he had had a stent fitted and he was taking long term medication. If enquiries had been made it would have become clear that without the medication and the stent the claimant would have been very significantly impaired, and it is possible he would not have been able to return to work at all.

[84]Employers cannot avoid their responsibilities under the Equality Act 2010 towards disabled employees by seeking to turn a blind eye to evidence of disability. In the circumstances of this case, we found that at the time of the claimant’s dismissal the respondent and Mr Dunn in particular could reasonably have been expected to know that the claimant was disabled. The s15 complaint

[85]Turning then to the s15 claim, we had to consider if the respondent had treated the claimant unfavourably because of something arising in consequence of the claimant’s disability (the alleged something arising being his absence from work caused by his heart attack). If we found this to be case, we would have to consider if the respondent had shown that the treatment was a proportionate means of achieving a legitimate aim.

[86]We found the Charlesworth v Dransfields Engineering Services Ltd decision highlighted to us by Ms Jones to be helpful and after careful consideration we were persuaded by her submissions in this regard.

[87]There were two significant events in the period before the claimant’s redundancy, his heart attack and the first covid lockdown which led to a sharp drop in the respondent’s sales as result of which the claimant was placed on “furlough”. In this case the very close coincidence of these events complicated our assessment of the evidence. On balance, we accepted that it was the pandemic lockdown that was the driving and operative cause of Mr Dunn’s decision to restructure how sales were managed, to remove the claimant’s role and introduce the marketing manager role. We accepted that, as in the Dransfield Engineering case, the claimant’s absence because of his heart attack had been part of the context of the respondent’s decision making, but as in that case the disability related absence was not an operative cause of the claimant’s dismissal for redundancy. The respondent had to react to a sudden and dramatic change to the sales environment in which it operated and a significant downturn in sales and, like many businesses at the time, concluded that a radical change to the focus of how sales leads should be generated was required, with a shift to sales being generated by virtual means. This had brought forward and accelerated challenges to the business which the claimant had himself anticipated at least in part when he had identified the need for the company to update and improve its website.

[88]We recognised that the claimant’s disability absence would not need to be the only or main cause for it to be the effective cause for his dismissal. We gave careful consideration to this matter. We were troubled by the respondent’s failure to discuss the claimant’s heart attack with him which could suggest an attempt by them to conceal concerns or an adverse assessment of his ability to do work effectively in the future. There was the proximity of the claimant’s redundancy to his heart attack and the time off work which followed and the fact that it followed very closely on from the claimant’s recent sales success and the email praising his performance from Mr Dunn sent on 22 January 2020. We accepted that Mr Dunn had agreed with the claimant on 20 July 2020 that if not for his heart attack and the pandemic he would have faced redundancy or words to that effect, and we took into account that Mr Dunn and Mr Walker had denied that conversation. These were facts which could suggest that the claimant had been the subject of less favourable treatment because of something arising in consequence of his disability and the respondent had sought to disguise that.

[89]We then assessed the evidence from the respondent. Notwithstanding the facts shown by the claimant, we accepted that the respondent had shown through its evidence that although the claimant’s absence because of his heart attack had been part of the context of Mr Dunn’s decision about the marketing manager’s role, it had not in fact been why the claimant had been dismissed. The effective cause was the restructuring arising from the move to generating sales though the company’s website, triggered by the drop in the sales caused by the pandemic lockdown. The tribunal could not rule out the possibility that some link existed between the claimant’s absence because of his heart attack and the fact that he was dismissed, namely that as in the Charlesworth case the claimant’s absence afforded the respondent an opportunity to observe that it could manage without anybody fulfilling the claimant’s role, but it was simply part of the background context and, we concluded, a small part. We were satisfied that even if the claimant had not had a heart attack, the significant change to the way the way sales could be hoped to be generated caused by the pandemic was the reason for the changes to the respondent staffing with the introduction of the marketing manager’s role and the removal of the claimant’s post.

[90]For these reasons the claim under s15 of the Equality Act is not upheld. Unfair dismissal

[91]The panel accepted that the reason for the claimant’s dismissal was redundancy and therefore a fair reason within s98(1) of the Employment Rights Act 1996. Our conclusions about disability are explained above. The claimant was dismissed because the changes to the way the business operated meant the claimant’s existing sales manager role no longer existed and there was reduction in the respondent’s need for an employee to carry out those activities.

[92]The other suggestion we understand that the claimant was making in addition to suggesting that his heart attack was an effective cause of his dismissal was that he had been dismissed so that Mr Dunn could employ his son. It was perhaps not surprising that this suspicion had been raised in the claimant’s mind when he discovered at the preliminary hearing in this case that Mr Dunn’s son had joined the respondent in the marketing manager’s role. We accepted however that this was not the reason for the claimant’s dismissal. His dismissal arose from the change in sales focus to online sales. It was not suggested that the son was in fact been appointed to do “the claimant’s job”. Mr Dunn’s son had been appointed to do a job the claimant himself told us that he did not want to do, the role of marketing manager. We accepted Mr Dunn’s evidence in this regard.

[93]The panel then considered whether the respondent had acted reasonably or unreasonably in treating the decision to update the website, concentrating on generating business through on-line means and introducing a marketing manager as a sufficient reason for dismissing the claimant.

[94]We reminded ourselves that it was not for the panel to decide what we would have done. We had to decide if the employer had acted reasonably or unreasonably, and we recognised that there could be a range of reasonable responses to the redundancy situation caused by the Covid pandemic.

[95]The claimant was the only one undertaking his sales role, although Mr Dunn undertook sales activities from time to time. Alongside his role as managing director. We accept that Mr Dunn’s situation was wholly different from that of the claimant and they were not employees undertaking the same or similar activities such that a reasonable employer would have to pool them together in a redundancy situation. In those circumstances there was no issue about the pool for selection.

[96]We considered if the respondent had taken a reasonable approach to consultation. In her submissions Ms Jones had highlighted that there had been four meetings with the claimant and suggested that this showed that respondent had acted fairly and reasonably, that the claimant’s redundancy was not a foregone conclusion, that the respondent had looked for the claimant’s input and that he had consulted with him about alternatives to redundancy.

[97]The panel was not able to accept those submissions. Whilst there were a series of meetings with the claimant, when we considered what was said in those meetings as reflected in our findings of fact above, we concluded there was no genuine consultation process. We agreed with the claimant that the consultation was not “meaningful”. When Mr Dunn and Mr Walker met with the claimant a decision had already been taken about the removal of the claimant’s post and rather than discussing the possibility of the claimant undertaking the role of marketing manager, we found that the reality was the respondent simply sought to seek the claimant’s confirmation that he was not suitable for that new role. In their evidence before us Mr Dunn and Mr Walker suggested that they had encouraged the claimant to accept the marketing manager’s job but that was not consistent with the notes which the respondent had prepared of what was said in the meetings. The meetings notes corroborated the claimant’s description of the meetings and, as our findings above demonstrate, we preferred his account.

[98]In other words, although there was a series of meetings, the claimant’s dismissal was always a foregone conclusion from the start of the process. The claimant asked about the possibility of undertaking his role on a part time basis or developing a new role following up leads generated by virtual means on a part-time basis several times, but that was rejected out of hand by Mr Dunn purportedly for costs reasons because he [Mr Dunn] would do that. However,

[99]In support of the respondent’s case, it was suggested to us that the claimant had shown through his conduct that he was only interested in what he would receive by way of a redundancy payment, but we did not accept that to the case. In terms of alternative employment, although the claimant conceded that he did not believe that he was suitable for the marketing manager’s job and he was not interested in that, he had referred to the possibility of continuing his employment through the sales aspect of converting virtually generated leads to sales on a number of occasions. The claimant clearly expressed an interest in continuing his employment in some way. It would hardly be surprising that an employee told his job was disappearing would want to understand what that would mean financially but we could not accept the fact that an employee who asked about that was indicating that he was not interested in continuing his employment. The respondent’s own notes showed that the claimant returned to enquiring about alternative employment several times, but the respondent made no attempt to engage with the claimant’ proposals for avoiding his redundancy. We concluded that was because Mr Dunn had already made his mind up that the claimant was leaving.

[100]We concluded that the respondent did not act within the range of reasonable responses in the circumstances and accordingly the claimant’s dismissal was unfair. As no attempt was made by Mr Ashton to address the deficiencies in the consultation process the appeal did not correct the unfairness in the dismissal.

[101]We then considered what conclusions if we could make about, if any, about what would have happened if a fair procedure had been followed and there had been genuine consultation. We accepted that it was unlikely that if Mr Dunn had consulted genuinely with the claimant about the suggestion that he undertake a part time revised sales role, that this would have secured alternative employment for the claimant, but the respondent did not present evidence to show us why the claimant’s proposals were unworkable or inappropriate. Mr Dunn referred to costs savings, but we saw so evidence of any sort of meaningful assessment of that. We were simply asked to accept Mr Dunn’s evidence about that at face value.

[102]The claimant’s recent sales record seemed to speak for itself. The respondent itself had acknowledged the claimant’s sales success in the email correspondence in January 2020 and whilst in the evidence before us the respondent appeared to seek to play down the claimant’s abilities, that did not seem to be consistent with the evidence. We could not accept that it was inevitable that if the claimant’s proposals would have been rejected on a costs savings basis if they had been fairly and properly considered. There must have been some possibility that the claimant could bring in much more business in leads than Mr Dunn alone which could more than cover his employment costs – if that was the case the cost savings justification would not appear to make sense and the respondent offered us very little about this. However, we also acknowledge that the claimant himself did not want a desk job and at the end of the day this business belongs to Mr Dunn. It would be a matter for him how he wanted to run this part of the business so that even if business logic might have suggested that a part time role should be offered to the claimant, he might have decided to do otherwise.

[103]As panel we had to try and assess what we think might have happened if Mr Dunn had responded to the claimant’s suggested in a reasonable way and at least be open to considering alternatives. We could not find it probable, that is more likely than not, that genuine consultation would have meant that the claimant’s employment would have continued. In the circumstances and on the basis of the evidence from both parties available to us, we concluded that it would be just and equitable to reduce any compensation to reflect the significant likelihood that the claimant’s employment would not have continued even if there had been genuine and meaningful consultation. We assessed the likelihood that the claimant’s employment might have continued at 20% and accordingly we made a preliminary assessment that any compensatory award should be reduced by 80% to take account of the chance that the claimant would have been dismissed had a fair process been followed in accordance with the Polkey principles. We must award such amount as we determine to be just and equitable in all the circumstances having regard to the loss sustained by the claimant in consequence of his dismissal in so far as that loss is attributable to action taken by the employer (s123(1)). Breach of contract and unlawful deduction from wages claim

[104]The claimant argued that he should have been entitled to a higher payment for his lost commission under the new arrangements made in February 2020. We will make clear that we found that the respondent had breached the claimant’s contract when his employment was terminated. The parties had reached an agreement that the claimant would assist the respondent’s cashflow by converting his earned commission entitlement to a fixed payment of commission and a permanent increase in salary. There was no agreement that the amount of commission could be unilaterally varied by the respondent as it purported to do.

[105]Commission is an emolument of employment as is salary (s27(1)(a) Employment Rights Act 1996) Payments of commission are wages for the purposes of the Employment Rights Act and by failing to pay the outstanding amount agreed on the termination of the claimant’ employment, the respondent not only breached the claimant’s contract of employment, it made an unlawful deduction from his salary. The claimant is entitled to a declaration in that regard under s24(1) but there is no further payment due to him because he has been paid the outstanding monies.

[106]The claimant maintained before us that the respondent was still in breach of contract because he had calculated what the payment arrangements would be worth to him over the expected life of the customer contracts. However, we were unable to conclude from the evidence in the emails exchanged between the parties that an agreement had been reached about a minimum period for which the claimant would receive the higher salary in addition to the commission, only that it had been agreed that the claimant would receive an amount equivalent to the commission entitlement he had previously enjoyed, that is £25,500. We concluded that looking at it over three years was how the claimant had decided that the new arrangement was a satisfactory reason to give up his immediate entitlement to payment. It was part of his rationale for the agreement reached but there was no agreement with the respondent that this was guaranteed. The claimant’s additional claim in this regard could not be upheld. _____________________________ Employment Judge Cookson 8 July 2022