Mr M Ramsden v Maldon District Council: 3202041/2019
EMPLOYMENT TRIBUNALS
Case No 3202041/2019
Between
Mr M RamsdenClaimantMaldon District CouncilRespondent
Before
Employment Judge BarrettIn person for claimantDate 28 June 2021
JUDGMENT
[1]The Claimant was unfairly dismissed.[2]The Claimant’s compensatory award will be reduced by 50% to reflect the chance he might have been fairly dismissed.
REASONS
This has been a partly in person and partly remote (‘hybrid’) hearing, which has not been objected to by the parties. The form of remote hearing was by Cloud Video Platform (“CVP”). A hybrid hearing was held, because it was not practicable for all witnesses to attend in person, and all issues could be determined in a hybrid hearing.
Introduction
[1]The Claimant was employed by the Respondent in its Parks Team from 28 November 2016 to 5 June 2019, when he was dismissed with pay in lieu of notice and a redundancy payment. On 8 September 2019, he presented an ET1 claim form bringing a claim for unfair dismissal.[2]The Respondent says that the Claimant was fairly dismissed by reason of redundancy. The Claimant’s case is that the redundancy situation, which he accepts affected the Council as a whole, did not necessitate any job losses in the department where he worked. He further argues that there was a lack of meaningful consultation, the selection process was flawed, and he was selected for redundancy for an ulterior reason, namely because he had previously reported a manager’s misconduct.
The hearing
[3]The hearing was conducted over two days, 27 and 28 May 2021. The Claimant represented himself. The Respondent was represented by Mrs Emma Holmes, Senior Legal Specialist. The Claimant gave evidence on his own behalf.[5]The following witnesses gave evidence by CVP on behalf of the Respondent: 5.1. Mr Richard Holmes, Director of Service Delivery; 5.2. Mrs Julie Hardy, Interim HR Manager; 5.3. Mr Matthew Wilson, Lead Countryside and Coast Coordinator; 5.4. Mr Peter Clarke, Parks and Countryside Officer (Supervisor).[6]The Tribunal was presented with a hard copy bundle of evidence numbering 786 manuscript pages, including various inserts. During the hearing, Mrs Holmes asked a colleague to helpfully scan the bundle to provide an electronic version, which numbered 860 pages. Numbers in square brackets in this document refer to the manuscript page numbers in the bundle.[7]The Respondent had objected to including several of the Claimant’s documents on grounds of relevance, and these were contained in a section at the end of the bundle. Mrs Holmes confirmed the Respondent was content for these documents to be referred to during the hearing if any of them turned out to be relevant to a line of questioning during the witnesses’ evidence, and indeed the Claimant relevantly referred to some pages in that section during the course of the hearing.[8]Two further documents were disclosed during the hearing and admitted into evidence with the consent of the parties: 8.1. By the Claimant, the screenshot he had taken of a job advertisement published by the Respondent. The advert itself was already in the bundle [629], but the screenshot additionally showed the date the Claimant had seen it, which was 20 June 2019. 8.2. By the Respondent, a scoring matrix spreadsheet showing the final outcome of the interview process for Parks & Countryside Officer roles following the restructure. This was a later version of a document already contained in the bundle [347].[9]Mrs Holmes submitted a skeleton argument in advance of the hearing. After the evidence had been completed, both Mrs Holmes and the Claimant made helpful oral closing submissions.
The issues
[10]The issues for determination were set out at a Preliminary Hearing on 20 January 2020 by Regional Employment Judge Taylor. They were: 10.1. What was the reason or principal reason for dismissal? The Respondent says the reason was redundancy. 10.2. 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: 10.2.1. The Respondent adequately warned and consulted the Claimant; 10.2.2. The Respondent adopted a reasonable selection decision, including its approach to a selection pool; 10.2.3. The Respondent took reasonable steps to find the Claimant suitable alternative employment; 10.2.4. Dismissal was within the range of reasonable responses. 10.3. Is there a chance that the Claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason? If so, should the Claimant's compensation be reduced? By how much? (I have omitted other issues relating to compensation as these will be addressed, if necessary, at a future hearing.)[11]At the start of the hearing, the Claimant stated that he had also wished to bring a claim of victimisation under the Equality Act 2010, because he had been treated badly after raising concerns about a former supervisor relating to racism and homophobia.[12]In his ET1 claim form, the Claimant had referred to “victimisation due to whistleblowing”. However, at the Preliminary Hearing on 20 January 2020 the Claimant confirmed that he did not seek to make a complaint about whistleblowing. The above list of issues was sent to the parties following that hearing. At two further Preliminary Hearings on 4 June 2020 and 15 February 2021 it was not suggested that the list of issues was incomplete.[13]I explained to the Claimant that if he wished to argue he had been victimised in breach of the Equality Act 2010, he would need to make an application to amend his claim. We took a 15-minute break for him to decide, and his decision was to continue with the hearing of his unfair dismissal claim and not to apply to amend to add a victimisation claim. I reassured him that he could refer to the same factual background, which was relevant to his case as to why his dismissal was unfair.
Findings of fact
[14]The Claimant first worked for the Respondent Council during 2016 as an agency worker. From 28 November 2016 he was directly employed as a Gardener / Groundskeeper [65]. He passed his probation review in January 2017, with good scores for every performance metric [617]. On 1 June 2017, he was issued with an updated contract and his job title changed to Assistant Parks & Countryside Officer, band C [75]. As with other members of his team, his contract provided for annualised hours with longer hours worked in the growing season. There was a slight reduction in hours in 2018, from 2002 to 1976 contractual hours per year [77]. Background concerning previous supervisor[15]On 21 August 2017, the Claimant emailed the Respondent’s Chief Executive, raising concerns about a supervisor in the Parks Team and tendering his resignation [86]. This prompted an investigation into the conduct of the supervisor, who was subsequently dismissed. The Claimant was invited to rescind his resignation and return to work, which he did in September 2017.[16]The Parks Team fell within the remit of Mr Wilson, the Countryside and Coast Manager. Before contacting the Chief Executive, the Claimant had attempted to raise his concerns about the supervisor with Mr Wilson, including by letter of 22 June 2017 [639]. However, Mr Wilson did not respond to the Claimant, but rather discussed the issues raised directly with the supervisor [643]. Mr Wilson’s initial reaction when the Claimant escalated his complaint to the Chief Executive was sceptical [89] and he queried why the Claimant’s resignation had not simply been accepted [95]. However, I accept Mr Wilson’s evidence that when he later learned more about the supervisor’s conduct, he changed his mind and recognised that the Claimant’s complaint had been fully justified and the supervisor’s dismissal was appropriate.[17]On the Claimant’s return to work he had further difficulty with a different supervisor, who resented the Claimant’s role in triggering the disciplinary proceedings against his colleague. The Claimant raised this informally with Mr Wilson and spoke about it to HR on 23 March 2018 [661]. Mr Wilson did make a change to work rotas to minimise the time the Claimant had to spend working with the supervisor in question. However, he never responded to the Claimant, with the result that the Claimant was left feeling that his concerns had been ignored. Council restructure[18]In mid-2018, the Respondent contracted with a company called Ignite Management Consultancy to conduct a review of its organisation. A Staff Consultation Document was published on 17 September 2018 [115]. The proposal was to save costs and improve efficiency by streamlining the Respondent’s workforce structure. Consultation with the trade union Unison began on the 10 September 2018.[19]The restructure was dealt with in two phases, with the first phase focussing on more senior roles. This phase was concluded, and a further Staff Consultation Document was issued on 4 March 2019 [208.1]. Unison was consulted again.[20]In relation to the Parks Team, the phase two Staff Consultation Document provided for 10.7 full-time equivalent (‘FTE’) Parks & Countryside Officer roles in the new structure, plus 0.6 FTE capacity for summer staff, a higher-grade Parks & Countryside Officer in a supervisory role and a Lead Countryside & Coast Coordinator [208.41]. This reflected the make-up of the current team save for the slight reduction from 11 Parks & Countryside Officers to 10.7 FTE. Informal complaint[21]On 5 March 2019, Mr Holmes, the Respondent’s Director of Service Delivery, held a meeting for staff at which he outlined the latest proposal. Following the presentation, the Claimant approached Mr Holmes and asked him about the criteria that would be used to decide who would go and who would stay following the restructure. The Claimant said he was concerned about lack of access to training, which might affect his chance of being retained.[22]The following day, the Claimant sent an email to Mr Holmes [309] raising various concerns, including that he was being prevented from accessing training because he had triggered the investigation into the former supervisor, and that Mr Wilson had failed to respond to his concerns. He also raised a safety concern about welding practices, and inconsistent treatment in relation to personal use of the Respondent’s vehicles. Mr Holmes sought advice from Mrs Hardy, Interim HR Manager [308], which she provided by email of 20 March 2019 [308].[23]Mr Holmes, together with another manager, then met with the Claimant on 3 April 2019 [211]. Mr Holmes’ impression by the end of the meeting was that the Claimant did not want to pursue the matter formally and he therefore considered it closed [297]. The Claimant’s understanding was that Mr Holmes would investigate the concerns he had raised and get back to him.[24]Mr Holmes did subsequently speak to Mr Wilson about the welding issue and personal use of Council vehicles. However, nobody reported back to the Claimant about these matters. Consultation meeting[25]The following day, 4 April 2019, Mr Holmes met the Claimant for an individual redundancy consultation meeting [221]. Mr Holmes told the Claimant his job had been ringfenced but that he would still have to apply and be interviewed for a role in the new team. The roles available were Parks & Countryside Officers at levels 1, 2 and 3. Level 1 was equivalent to the Claimant’s current grade C role. Staff who did not make an application would only be offered roles if there were any available after the selection process for staff who did apply. (This message had also been communicated in an ‘all staff’ email on 29 March 2019 [625].)[26]The Claimant asked how many jobs would be lost in the Parks Team. He was told that currently there were 11 FTE roles, and the plan was to reduce this to 10.7 FTE (i.e., a loss of just 0.3 of a FTE role). However, he was also told that those who stayed would be selected through interviews and that it was possible there would be a reduction of more that 1 FTE post. The notes record, “it is possible but can’t say either way until after interview process as to how people perform” [223]. The Claimant formed the impression that the number of posts to be cut was being kept deliberately vague so the Respondent could get rid of anyone they wanted to sack. He was deeply sceptical about the proposed selection process.[27]The Claimant was sent an ‘at risk’ of redundancy letter on the same day [267].[28]The Respondent offered staff two workshops, ‘Understanding and Navigating Change’ and ‘Applications and Interviews’ to help them prepare for the redundancy selection process. The Claimant declined to attend [225]. Meeting with Mr Clarke[29]The Claimant requested a meeting with the Parks Team supervisor, who was by this time Mr Clarke. They met on 8 April 2019. The Claimant informed Mr Clarke that he felt work tasks had been removed from him deliberately to give a different colleague a better chance of retaining a role following the restructure. Mr Clarke’s note of the meeting included that “I said to Marc that his work ok but he is a very antagonistic member of staff. I said he could probably still be here after phase 2” [305].[30]Mr Clarke sent his note of the meeting to Mr Wilson and Mr Holmes, amongst others [305]. The following day, Mr Holmes shared it with Mrs Hardy, commenting “Disappointing after our discussion which suggests to me more is going on here” [305]. Final Operating Model[31]Following the consultation process, a document was issued on 17 April 2019 entitled ‘MDC Final Operating Model following Staff Consultation’. It confirmed that following the restructure there would be 10.7 FTE Parks & Countryside Officer roles in the Parks Team [248].[32]The job description for the level 1 Parks & Countryside Officer in the new structure [270] was identical or near-identical to the Claimant’s existing job description as a band C Assistant Parks & Countryside Officer [81]. Both included: maintaining the Respondent’s parks and open spaces to a high standard; working as part of a team; leaf clearance; bin emptying; sweeping; litter picking; strimming; rotary and cylinder mowing; use of associated groundcare machinery and implements; care of beds; basic glasshouse work; marking and overmarking of sports pitches; pesticide applications and calibrations; basic maintenance of vehicles and equipment; litter and bin collection; basic machinery operation and vehicle driving. Correspondence with Mr Holmes[33]On 23 April 2019, the Claimant sent Mr Holmes an email with subject header “My employment at MDC” requesting a meeting with him [303]. Mr Holmes forwarded the email to Mrs Hardy.[34]On 24 April 2019, Mrs Hardy emailed Mr Holmes and another senior manager stating, “If you get any emails from Marc Ramsden please forward them to me before you send any response!” [298]. She explained in evidence that this was because she wanted to ensure that responses sent to the Claimant were consistent.[35]Mr Holmes replied that he had met with the Claimant previously, had understood then that the Claimant did not want to pursue a formal grievance, and that two of the issues which the Claimant had raised had been followed up with Mr Wilson [297].[36]It does not appear that the Claimant received a reply to his request. Job application[37]On 25 April 2019, the Claimant completed the job application form as directed [289]. This was the last date for applications, and he was encouraged to apply by Mr Clarke. The Claimant’s view was that he should not have to apply for his own job when there was only a 0.3 FTE proposed reduction, and he mistrusted the process. In the box to indicate the position he was applying for, he wrote “Assistant Parks & Countryside Officer”. He did not complete the adjacent box for “level (as applicable)”.[38]The application form was submitted to the HR department where somebody (identity unknown) spotted the omission and completed the ‘level’ box with “L3”, “L2”, “L1”, ranked in that order. The rationale, presumably, was that it was assumed any applicant who had not otherwise specified would prefer to be in the highest-grade position possible. Access to information[39]The Claimant has challenged the way information was provided to staff during the consultation process, saying that the staff intranet was not accessible for Parks Team staff. He points out, correctly, that it can be seen from the documents in the bundle that his colleagues filled out application forms for their own jobs by hand and did not apply for any other jobs which may have been advertised on the intranet.[40]There were consultation ‘champions’ appointed to support staff through the process and the Claimant acknowledged that the person designated to help the Parks Team (a Community Protection Officer) was helpful and did print out information for them. Mr Clarke’s evidence was that hard copies of the relevant consultation information were placed in the staff canteen. All staff were given email accounts in around March 2019 which ought to have enabled them to access the intranet, but in practice there were IT difficulties and access was limited or non-existent.[41]While access was given to consultation information in hard copy, Parks Team staff who did not use computers or the intranet as part of their job roles were disadvantaged in their ability to view and apply for any alternative vacancies with the Respondent. However, there is no evidence that suitable alternative vacancies were advertised at the relevant time, save for as discussed below. Correspondence between Mr Clarke and Mrs Hardy[42]On 2 May 2019, Mr Clarke emailed Mrs Hardy stating “Just to advise Marc has been in to see me today and is working opposite the council offices so may be in to ask questions” [663]. Formal grievance[43]On 13 May 2019, the Claimant submitted a formal grievance [325] in which he complained he had been treated badly since returning to work in September 2017 because he was perceived as having ‘got a good man the sack’. He gave a list of examples of matters he felt amounted to deliberate poor treatment, including the access to training issue and that Mr Wilson had not responded to his concerns. On 17 May 2019, the Claimant was invited to a grievance investigation meeting to be held on 28 May 2019 [327]. Selection interview[44]Meanwhile, on 21 May 2019, the Claimant attended the interview for a role in the restructured team. The interview panel comprised his manager Mr Wilson, his supervisor Mr Clarke and Mrs Hardy providing HR support.[45]Each panel member completed a separate scoring form. There were 13 questions in total, of which 11 related to the levels 1 and 2 roles, and the remaining two related to the level 3 role. The level 3 questions were more technical and harder. Each question was scored out of 10 points. Each candidate’s final score was calculated as an average across all questions asked; therefore, candidates who were applying for the level 3 role faced a more difficult task in achieving a good average score when compared to those only applying for levels 1 and 2 positions. The provisional pass mark was set at 77% [347].[46]The Claimant felt he was put at a disadvantage by the make up of the panel. Mr Wilson was somebody he had complained about, including in his formal grievance which was currently under investigation. He had also raised directly with Mr Clarke that he felt Mr Clarke was unfairly removing work tasks from him. Mrs Hardy had been involved in providing HR support to the grievance process.[47]I accept that for these reasons, each member of the panel had formed a prior and not wholly positive view of the Claimant. Mrs Hardy had him ‘on her radar’ since advising on how to deal with his grievances. As noted above, Mr Clarke thought of him as ‘antagonistic’. While Mr Wilson had accepted that the Claimant did the right thing to report his former supervisor in 2017, he was also aware of the Claimant’s live grievance. However, each made a conscious effort to conduct the interview fairly and professionally and none deliberately scored the Claimant down.[48]Nonetheless, this context and did affect the way the Claimant interacted with the panel and performed at interview, because he did not trust them to give him a fair chance. For example, in reply to the first question, “How do you handle a challenge? Give an example”, that he simply stated, “Working here is a challenge” and was awarded 1/10 by all three panel members.[49]The Claimant scored poorly, achieving a final average score of 48% and ranking lowest of the 11 candidates. The fact that he had, without intending to, been entered for the level 3 role meant that he faced an uphill struggle on the final two questions. The next lowest score was 64%, awarded to a candidate who only applied for level 1 and 2 roles.[50]On some of the score sheets, although not the Claimant’s, the panel members struck through scores to amend them both upwards and downwards. I accept this occurred when panel members reflected on the scoring and adjusted as they went through the interview process and does not reflect any deliberate manipulation of scores to achieve a particular result.[51]Once the process was completed for all 11 team members, their performance was reviewed, and an impressionistic conclusion was reached between the panel members that three had interviewed too poorly to be offered a role in the restructured team. There was no predetermined number of roles by which the team needed to be reduced. Had a larger number failed to perform to the desired standard, more than three of the 11 would have been made ‘redundant’. Mr Clarke confirmed that if say, eight team members had interviewed poorly, all eight would have lost their jobs.[52]However, one of the three (not the Claimant) had scored 79%. This was above the provisional pass mark of 77%. A decision was taken to raise the pass mark to 80% in order to achieve the desired result. This is reflected in the second scoring spreadsheet disclosed during the hearing, which shows the pass mark was changed from 77% to 80%. It was not disputed by Mr Wilson (who was involved in setting the pass mark) that the reason for the change was to ensure that all three staff members who had been felt to interview poorly would be dismissed. Grievance outcome[53]The Claimant’s grievance investigation meeting on 28 May 2019 was conducted by Mr Paul Dodson, Director of Strategy, Performance and Governance [585]. He sent a grievance outcome letter dated 30 May 2019 rejecting the Claimant’s grievance [583]. He concluded there was no evidence the Claimant had been treated less favourably because he had made the complaint against his former supervisor in 2017.[54]On 2 June 2019, the Claimant submitted a further grievance [591]. This was in connection with Mr Wilson’s sceptical response to the Claimant’s 2017 complaint, referred to at paragraph 16 above. The Claimant had only just seen the relevant correspondence as the result of making a subject access request. Dismissal[55]On 5 June 2019, the Claimant attended a meeting with Mr Wilson at which he was informed he had not succeeded in the interview process and was dismissed with pay in lieu of notice. He was asked to return his staff ID badge and escorted by Mr Clarke to retrieve his personal items and to the exit. He was handed a letter from Mr Holmes which stated: ‘Further to the completion of the consultation and implementation of the Future Model Ignite restructure, and our meeting on 05 June 2019, I am writing to confirm that you have not been successful in the recruitment process for Phase 2 and therefore it has not been possible to appoint you within the new structure. I am writing to give you formal notice that your contract of employment with Maldon District Council will terminate for reasons of redundancy on 05 June 2019.’[56]The Claimant’s 2 June 2019 grievance was rejected by letter of 6 June 2019, the day after he was dismissed, without further investigation. Advertisement of Parks & Countryside Officer roles[57]As noted above, three members of the Parks Team including the Claimant were dismissed following the interview process. Across the Respondent, total staff numbers were reduced from 223 to 185, of which 26 were dismissals.[58]However, the Parks Team still required 10.7 FTE Parks & Countryside Officers to undertake the ongoing workload. In June 2019, the Respondent advertised for two full-time, permanent level 1 Parks & Countryside Officers to replace staff who had been dismissed. The Claimant saw and screenshotted the advert on 20 June 2019. Two new members of staff were recruited into those roles. The remaining 0.7 FTE role was filled by an apprentice.[59]At the same time, the Respondent also advertised for a full-time Highway Ranger on a fixed-term contract until March 2020. Had the Claimant been told of this vacancy when he was still in the Respondent’s employment, he would have applied for it. The Respondent’s position was that as this was an externallyfunded fixed-term position at a lower grade, it did not amount to suitable alternative employment.
The law
[60]S.94 of the Employment Right Act 1996 (‘ERA’) provides that an employee with sufficient qualifying service has the right not to be unfairly dismissed by his employer.[61]S.98 ERA provides so far as relevant:(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show – (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it— … (c) is that the employee is redundant … … (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.[62]A redundancy situation is defined by s.139 ERA. (1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to— (a) the fact that his employer has ceased or intends to cease— (i) to carry on the business for the purposes of which the employee was employed by him, or (ii) to carry on that business in the place where the employee was so employed, or (b) the fact that the requirements of that business— (i) for employees to carry out work of a particular kind, or (ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.[63]An employee may argue that a dismissal for redundancy was unfair either because redundancy was not the real reason; or because, although a redundancy situation existed (and the employee was not selected for an automatically unfair reason) the dismissal was nevertheless unreasonable under S.98(4) ERA.[64]In Murray v Foyle Meats Ltd [1999] ICR 827, Lord Irvine approved of the ruling in Safeway Stores plc v Burrell [1997] ICR 523 and held that s.139 ERA asks two questions of fact. The first is whether there exists one or other of the various states of economic affairs mentioned in the section, for example whether the requirements of the business for employees to carry out work of a particular kind have ceased or diminished. The second question, which is one of causation, is whether the dismissal is wholly or mainly attributable to that state of affairs.[65]It is the requirement for employees to do work of a particular kind which is significant. The fact that the work is constant, or even increasing, is irrelevant; if fewer employees are needed to do work of a particular kind, there is a redundancy situation (McCrea v Cullen and Davison Ltd [1988] IRLR 30). Thus, a redundancy situation will arise where an employer reorganises and redistributes the work so that it can be done by fewer employees.[66]It is not for Tribunals to investigate the commercial reasons behind a redundancy situation (Hollister v National Farmers’ Union [1979] ICR 542).[67]Where the employer has shown the reason for the dismissal and that it is for a potentially fair reason, the determination of the question whether the dismissal was fair or unfair 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 must be determined in accordance with equity and the substantial merits of the case.[68]In many redundancy dismissals, the starting-point will be the familiar guidance in Williams v Compair Maxam Ltd [1982] IRLR 83 EAT (at para 18 onwards). ‘18. For the purposes of the present case there are only two relevant principles of law arising from that subsection. First, that it is not the function of the Industrial Tribunal to decide whether they would have thought it fairer to act in some other way: the question is whether the dismissal lay within the range of conduct which a reasonable employer could have adopted. The second point of law, particularly relevant in the field of dismissal for redundancy, is that the Tribunal must be satisfied that it was reasonable to dismiss each of the applicants on the grounds of redundancy. It is not enough to show simply that it was reasonable to dismiss an employee; it must be shown that the employer acted reasonably in treating redundancy 'as a sufficient reason for dismissing the employee', i.e. the employee complaining of dismissal. Therefore, if the circumstances of the employer make it inevitable that some employee must be dismissed, it is still necessary to consider the means whereby the applicant was selected to be the employee to be dismissed and the reasonableness of the steps taken by the employer to choose the applicant, rather than some other employee, for dismissal. 19. In law therefore the question we have to decide is whether a reasonable Tribunal could have reached the conclusion that the dismissal of the applicants in this case lay within the range of conduct which a reasonable employer could have adopted. It is accordingly necessary to try to set down in very general terms what a properly instructed Industrial Tribunal would know to be the principles which, in current industrial practice, a reasonable employer would be expected to adopt. This is not a matter on which the chairman of this Appeal Tribunal feels that he can contribute much, since it depends on what industrial practices are currently accepted as being normal and proper. The two lay members of this Appeal Tribunal hold the view that it would be impossible to lay down detailed procedures which all reasonable employers would follow in all circumstances: the fair conduct of dismissals for redundancy must depend on the circumstances of each case. But in their experience, there is a generally accepted view in industrial relations that, in cases where the employees are represented by an independent union recognised by the employer, reasonable employers will seek to act in accordance with the following principles: 1. The employer will seek to give as much warning as possible of impending redundancies so as to enable the union and employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and, if necessary, find alternative employment in the undertaking or elsewhere. 2. The employer will consult the union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible. In particular, the employer will seek to agree with the union the criteria to be applied in selecting the employees to be made redundant. When a selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria. 3. Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency at the job, experience, or length of service. 4. The employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider any representations the union may make as to such selection. 5. The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment. The lay members stress that not all these factors are present in every case since circumstances may prevent one or more of them being given effect to. But the lay members would expect these principles to be departed from only where some good reason is shown to justify such departure. The basic approach is that, in the unfortunate circumstances that necessarily attend redundancies, as much as is reasonably possible should be done to mitigate the impact on the work force and to satisfy them that the selection has been made fairly and not on the basis of personal whim.’[69]In R v British Coal Corporation [1994] IRLR 72, the Divisional Court endorsed the test proposed by Hodgson J in Gwent County Council ex parte Bryant [1988] Crown Office Digest 19 HC, namely that fair consultation means(a) consultation when the proposals are still at a formative stage(b) adequate information on which to respond(c) adequate time in which to respond(d) conscientious consideration by an authority of the response to consultation.[70]A tribunal must decide whether the employer's choice of pool was within the range of reasonable responses; it should not substitute its own view as to what the pool should have been: Hendy Banks City Print Limited v Fairbrother and others UKEAT/0691/04/TM).[71]Similarly, a tribunal may not substitute the selection criteria it would have chosen for those used by the employer. The Tribunal should consider if the criteria fall within range of reasonable responses: Post Office v Foley [2000] ICR 1283.[72]Tribunals will not generally get involved with the minutiae of how individual scores are arrived at, unless there are exceptional circumstances such as bias or obvious mistakes: as indicated by the Court of Appeal in British Aerospace Plc v Green and others [1995] IRLR 433, and again by the Court of Appeal in Bascetta v Santander [2010] EWCA Civ 351. Instead, a tribunal should focus on whether the employer has a good system in place for assessing employees against the criteria.[73]If the issue of alternative employment is raised, it must be for the employee to say what job, or what kind of job, he believes was available and give evidence to the effect that he would have taken such a job: that, after all, is something which is primarily within his knowledge: Virgin Media Ltd v Seddington and Eland UKEAT/0539/08/DM.[74]Where a Tribunal finds that a dismissal was unfair, it must go on to consider the chance that the employment would have terminated in any event, had there been no unfairness (the Polkey issue).[75]In Hill v Governing Body of Great Tey Primary School [2013] IRLR 274 the EAT (Langstaff P presiding) noted that a Polkey reduction has the following features: ‘First, the assessment of it is predictive: could the employer fairly have dismissed and, if so, what were the chances that the employer would have done so? The chances may be at the extreme (certainty that it would have dismissed, or certainty it would not) though more usually will fall somewhere on a spectrum between the two extremes. This is to recognise the uncertainties. A Tribunal is not called upon to decide the question on balance. It is not answering the question what it would have done if it were the employer: it is assessing the chances of what another person (the actual employer would have done) … The Tribunal has to consider not a hypothetical fair employer, but has to assess the actions of the employer who is before the Tribunal, on the assumption that the employer would this time have acted fairly though it did not do so beforehand.' Submissions[76]The Claimant submitted that the job he applied for was identical to his existing job and the only thing that was different was a slight change to the job title. He accepted that there was a genuine staffing review driven by the Respondent’s need to make financial savings. However, at some point the plan to reduce headcount by 0.3 FTE changed into an opportunity to make people the Respondent wanted to get rid of redundant, which is what he believed happened. His team all worked flexible annualised hours which meant the 0.3 FTE could easily have been accommodated without making any compulsory redundancies. His score had been deliberately manipulated to be so low that he would definitely be at the bottom of the list and it would be impossible for him to successfully appeal. If the process had been above board, he would still be there.[77]I have also referred to the criticisms raised in the Claimant’s witness statement, including at paragraph 23: ‘The redundancies carried out by MDC were unlawful. To carry out redundancies lawfully MDC needed to carry out a meaningful consultation which must include a genuine attempt to minimise the number of job losses. MDC did not do this they in fact increased the number of job losses in my department from 0 to 3.’[78]For the Respondent, Mrs Holmes submitted that there was a genuine need to reduce headcount across the Respondent and that placing the entire Parks Team in the pool for selection was fair. The Claimant was treated in the same way as other staff and was not unfairly targeted. The Claimant had seen the consultation documents and attended a consultation meeting. It was reasonable to conduct a selection exercise because the roles in the new team were sufficiently different that staff could not simply be slotted in (as per the consultation document at [208.44] which showed the roles were ring-fenced not slotted). As the Claimant and two others did not meet the competency requirements for the new roles, they were fairly made redundant. Whether the pass mark was 77 or 80 had no bearing on the Claimant’s case as he did not meet either threshold. Even if his marks relating to the additional questions for the level 3 roles were disregarded, his average score would still be well below the necessary competency standard. Further, if there was any defect in the process then the Claimant’s low interview score was evidence that he would have been dismissed in any event had a fair process been followed.
Conclusions
[79]The first question is whether there was a genuine redundancy situation. Did the requirements of the Respondent for employees to carry out work of a particular kind done by the Claimant cease or diminish? I accept they did to the limited extent that the requirements for employees to carry out the type of gardening and maintenance work undertaken by Parks & Countryside Officers were expected to diminish from 11 to 10.7 FTE posts after the restructure.[80]If so, was the Claimant’s dismissal wholly or mainly attributable to that state of affairs? I conclude it was not. The Claimant’s dismissal was attributable to his low score in the competency-based assessment process which the Respondent undertook in relation to the 11 members of the Parks Team. The competency standard applied was unrelated to the needs of the redundancy situation, which is why a reduction of 3 posts not 0.3 FTE posts was made, and a larger number of dismissals might have occurred had more staff performed poorly at interview.[81]The Respondent has not argued that the Claimant could have been fairly dismissed by reason of capability. Given that there has been no suggestion the Claimant performed poorly in his job (only at the interview), there was no fair basis for a capability dismissal.[82]In case I am wrong in concluding that redundancy was not the reason or principal reason for dismissal, I will go on to consider whether the dismissal was fair in all the circumstances. Did the dismissal lay within the range of conduct which a reasonable employer could have adopted?[83]The Respondent satisfied some of the requirements for a fair redundancy process: 83.1. The Claimant was given fair warning of the risk of redundancy. 83.2. Collective consultation was undertaken with Unite. 83.3. There was a sufficient opportunity for individual consultation, including at the consultation meeting with Mr Holmes. 83.4. The Claimant was provided with the relevant information about the process in hard copy and via the consultation ‘champion’. 83.5. While the criteria for selection may not have been the most apt way of assessing practical competence in the Parks & Countryside Officer role, it cannot be said that the competency-based interview fell outside the band of reasonable approaches open to the Respondent.[84]However, there were also flaws in the process: 84.1. The Claimant was mistakenly interviewed for a level 3 role, with the result that he was asked the more difficult and technical questions, putting him at a scoring disadvantage. Although I have found this was an innocent mistake, it was not a reasonable one. The Claimant had written on the form he was applying for the ‘assistant’ Parks & Countryside Officer role, i.e. the same level 1 role he was already performing. 84.2. Mr Wilson sat on the Claimant’s interview panel even though the Claimant had a live grievance against Mr Wilson which was then under investigation. A reasonable employer ought to have given serious consideration to this issue and at the least warned the Claimant in advance and given him the opportunity to object. I have found that Mr Wilson made no deliberate attempt to mark the Claimant down. However, his presence affected the Claimant’s ability to perform well in interview. 84.3. The selection criteria were not applied in a fair and objective manner in order to select the candidate or candidates who could not be accommodated in the new structure. Rather, the panel’s subjective impression of who performed poorly at interview was used as a basis to determine:(a) the pass mark; and(b) the number of posts that would be cut. This was not within the range of reasonable approaches to a redundancy selection exercise. 84.4. No attempt was made to avoid redundancies by finding those at risk suitable alternative employment. Information about vacancies was not made available to staff who could not readily access the intranet. The Claimant was dismissed with pay in lieu of notice, depriving him of the opportunity to apply for alternative roles during his notice period. The Highway Ranger role was not considered as a potential suitable alternative. Most importantly, the two permanent full-time level 1 Parks & Countryside Officer roles that were advertised in June 2019 were certainly suitable alternatives because they were in all practical respects identical to the job the Claimant had been fulfilling. Having reviewed the job descriptions, I do not accept that there were any relevant differences between the roles. It was not reasonably open to the Respondent to dismiss the Claimant and his two colleagues, ostensibly for redundancy, and immediately advertise vacancies for new staff to take over the work they had been doing.[85]Given these flaws, I conclude it was not within the range of reasonable responses open to the Respondent to dismiss the Claimant by reason of redundancy.[86]The last issue to consider is the Polkey question: could the Respondent fairly have dismissed and, if so, what were the chances that the Respondent would have done so?[87]The Claimant argues that the proposed 0.3 FTE reduction could have been achieved through adjustment of the annualised flexible hours the Parks Team staff worked, and without any compulsory redundancies. Mr Clarke agreed this would be possible although it was a matter for a manager at a higher grade to organise. Mr Wilson also accepted this was a possible course of action, although in his view not without difficulties. I conclude that it would have been practicable for the Respondent to have achieved the 0.3 FTE reduction without making any redundancies. However, it was also reasonably open to the Respondent to decide to reduce the headcount in the team by one Parks & Countryside Officer, to be replaced by a 0.7 FTE apprentice role, as was the eventual outcome.[88]Had this been done through a fair process, what are the chances the Claimant would have lost his job? The Respondent argues that because the Claimant scored the lowest, he would inevitably have been the person who was dismissed. However, it is not inevitable the Claimant would have scored the lowest had a fair procedure been followed throughout. Had there been a transparent explanation at the consultation stage that one redundancy would be made, the Claimant would not have been suspicious and distrustful, and he may well have performed differently at interview. A different approach to Mr Wilson’s involvement in the interview panel, interviewing the Claimant solely for the level 1 job he had applied for, and providing information and support regarding alternative vacancies including the Highway Ranger role, might also have had a bearing on the outcome. I conclude that had a fair process been followed, there was a 50% chance that the Claimant would have been fairly dismissed by reason of redundancy. REMEDY JUDGMENT The judgment of the Tribunal is that: -
Conclusions
Introduction
[1]The Respondent shall pay the Claimant the sum of £21,261.74, comprising:a. A basic award of £1,159.74;b. A compensatory award of £20,102.00.[2]For recoupment purposes:a. Monetary award: £21,261.74;b. Prescribed element: £15,721.12;c. Period of prescribed element: 5 June 2019 to 15 October 2021;d. Balance of the monetary award in excess of the prescribed element: £5,540.62[1]By a reserved judgment sent to the parties on 30 June 2021, the Claimant succeeded in his claim for unfair dismissal. It was found that a 50% Polkey reduction should be made to reflect the chance the Claimant might have been fairly dismissed. This hearing was listed to decide remedy.
The hearing
[2]Both parties had applied for reconsideration of aspects of the liability judgment. Those applications were considered, and oral judgment was given, at the beginning of the remedy hearing.[3]The Claimant gave evidence on his earnings and steps taken to find alternative employment since he was dismissed by the Respondent. In addition to his witness statement and schedule of loss, he provided copy documents of his medical records. In order to protect the Claimant’s privacy, Mrs Holmes handed her copy of these documents back to him at the end of the hearing. The copy provided for the Tribunal’s use has been confidentially shredded. There is no need to refer to the details of those documents within this judgment.[4]The Respondent provided written submissions setting out its case on remedy in advance of the hearing. The Respondent additionally submitted job search documents showing jobs which, it contended, the Claimant would have been qualified to apply for.[5]After the Claimant’s evidence, we took a short adjournment before the Claimant and Mrs Holmes both made helpful closing submissions.
Findings of fact
[6]The Claimant was dismissed on 5 June 2019. He was paid in lieu of his one month’s notice period and a redundancy payment of £1,157.00. The parties agree that while working for the Respondent, his net weekly pay was £386.58. He was not a member of the Respondent’s pension scheme.[7]After he was dismissed, the Claimant signed up to an employment agency, HR Go. That agency found him a position working in a local factory. Although he was offered this role within a fortnight of leaving the Respondent, it took some time for his start date to be confirmed. He worked there from 9 September 2019 to 25 March 2020.[8]In March 2020, the company which operated the factory relocated to Coventry. The Claimant was told in advance that his job would be coming to an end. He notified his employment agency that he was looking for new work and made 2 job applications, which were unsuccessful. The end of his factory job coincided with the national Covid-19 lockdown.[9]In November 2020 the Claimant went into hospital for an operation, which meant he was too unwell to work for approximately two weeks. There is no dispute that had he remained in the Respondent’s employment he would have received full sick pay over this period.[10]The Claimant’s health impacted on his ability to search for alternative work because he was required to shield during the lockdown period. He has explained, and I accept, that he does not have the computer skills to apply for the types of office jobs that can easily be done from home.[11]The Claimant gave evidence, which I accept, that he has made 8 job applications and had 4 job interviews but so far not been successful in obtaining alternative employment.[12]From March 2020 to date, the Claimant has received £6,370.00 in Universal Credit payments.[13]The Claimant will need to have further medical appointments in future as his health condition remains under review, but he is now well and able to work. The Claimant would not be suited to a computer-based job. He may need additional training to undertake work with a broader remit than his previous role at the Respondent. However, he is determined, intelligent and well able to obtain and succeed in future employment.
The law
[14]A basic award will be ordinarily reduced by the amount of any redundancy payment that has previously been made to employee. Section 122(4)(b) Employment Rights Act 1996 provides: “The amount of the basic award shall be reduced or further reduced by the amount of… any payment made by the employer to the employee on the ground that the dismissal was by reason of redundancy…”[15]However, in Allmakes Ltd v Boorman [1995] ICR 842, the Court of Appeal held that set-off provision does not apply where a purported redundancy payment was made and the reason for dismissal was not redundancy. In that case, Mr Boorman was dismissed, the reason given by his employer at the time was redundancy and he accepted a redundancy payment. The industrial tribunal later found the reason for his dismissal was not redundancy, and he had been unfairly dismissed. The Court of Appeal held that in such circumstances, the purported redundancy payment was not made “by reason of redundancy” and therefore did not have to be deducted from the basic award. As Evans LJ explained, the predecessor provision to s.122(4)(b): “was intended to apply in cases of redundancy in fact, not in other cases which the employers choose to describe as redundancy, even if the employee accepted that description at the time.”[16]However, he went on to clarify that: “The full amount of the payment could of course be deducted from the amount of compensatory damages.”[17]This is further confirmed in Digital Equipment Co Ltd v Clements [1998] ICR 258: a payment made in respect of a dismissal which is not a statutory redundancy payment, such as a contractual redundancy payment in excess of the statutory entitlement, or an ex gratia payment, falls to be deducted from the compensatory award.[18]Section 123(1) of the Employment Rights Act 1996 provides that the compensatory award shall be: “…such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer.”[19]Under s.124(4): “In ascertaining the loss referred to in subsection (1) the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law ...”[20]The duty to mitigate loss referred to in that subsection means the Claimant is expected to take reasonable steps to minimise the losses suffered because of the unfair dismissal. The burden of proof lies with the Respondent to show that the Claimant has unreasonably failed to take steps he ought to have taken to mitigate his losses: Wright v Silverline Car Caledonia Ltd UKEATS/0008/16.[21]In accordance with the principle in Dench v Flynn & Partners [1998] IRLR 653, a subsequent period of employment by the Claimant will not break the chain of causation of losses flowing from a dismissal if he left the subsequent employment for a non-culpable reason.[22]The order of adjustments to the compensatory award applicable in this case is: 22.1. Deduct the sum the Claimant has earned in mitigation of his loss, or any sum to reflect failure to mitigate under s.123(4) Employment Rights Act 1996; 22.2. Deduct the wrongly labelled redundancy payment of £1,157.00; 22.3. Reduce the sum (in this case, by 50%) to reflect the chance that the Claimant would have been dismissed in any event had the employer acted fairly, under the principle in Polkey v AE Dayton Services Ltd [1987] IRLR 50; 22.4. Apply the statutory cap under s.124 Employment Rights Act 1996 of (in this case) 52 weeks’ gross pay.[23]Where the Claimant has received state benefits which are potentially recoupable from a Tribunal award by the Secretary of State for Work and Pensions, the Tribunal is obliged under reg.4(3) of the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 to record the following information: 23.1. the monetary award; 23.2. the amount of the prescribed element, if any; 23.3. the dates of the period to which the prescribed element is attributable; 23.4. the amount, if any, by which the monetary award exceeds the prescribed element. Discussion and conclusions Basic award
Discussion and conclusions
[24]The Claimant agreed with the Respondent’s submission that his claim for a basic award of £1,157.00 should be set off against the redundancy payment he had already received in that amount. During the hearing, my own understanding was this was an appropriate concession.[25]However, on review of the case of Allmakes Ltd v Boorman [1995] ICR 842, I have learned that where a redundancy payment is made and accepted, but the Tribunal later finds that the reason for dismissal was not redundancy, the correct approach is to set that payment off against the compensatory award rather than the basic award.[26]At paragraph 80 of the liability judgment in this case, I concluded that the Claimant’s dismissal was not wholly or mainly attributable to the genuine redundancy situation which existed at the Respondent council at the time, but rather to the application of a competency standard which was unrelated to the needs of the redundancy situation. Therefore, I am bound to follow the approach in Allmakes Ltd v Boorman.[27]The Claimant did note that his CAB advisor had told him to include the basic award in his schedule of loss despite having received the equivalent amount by way of a redundancy payment; that advice was correct.[28]The Respondent’s calculation of the basic award was £1,159.74 which I adopt as the correct figure. Compensatory award – loss of statutory rights[29]The Claimant claimed a sum of £500.00 in respect of the loss of his statutory rights.[30]The Respondent relied on Dugdale PLC v Mr G Cartlidge UKEAT/0508/06 as authority for the proposition that this award should be based on the £100 awarded in SH Muffett Ltd v Head [1986] IRLR 488 in 1986, increased in line with inflation. An inflation calculation was provided showing that the equivalent sum today would be £300.00.[31]Since the case of Dugdale, the qualifying period for unfair dismissal rights has increased to 2 years, and so it will take longer for the Claimant to regain that right once he has found alternative employment. I conclude that an appropriate sum to award is £400.00. Compensatory award – past loss of earnings[32]The Claimant’s net weekly loss of £386.58 per week over the 123 weeks between his dismissal and the remedy hearing amounts to £47,659.79. Deducting:(a) his month’s notice pay of £1675.18; and(b) earnings in mitigation of £7,323.11, results in a past loss of earnings of £38,661.50.[33]The Respondent submits that there should be a further reduction to reflect the Claimant’s alleged failure to mitigate his losses. The Respondent takes no issue with the period the Claimant took to find alternative work between June and September 2019. However, it submits that the Claimant unreasonably failed to take reasonable steps to find new work after March 2020.[34]The Respondent relies on 9 job adverts showing grounds maintenance and gardener vacancies in August and September 2021. This does appear to include one role that was advertised on three occasions. The Claimant says that only one of the advertised jobs would have been suitable for him as he did not have the relevant training for others which required, e.g., maintaining sports pitches. I accept that the job adverts show that over the past few months there have been a small number of roles the Claimant could have applied for. There is no evidence to show that this was also the case during the lockdown period.[35]The Claimant is obliged to take reasonable steps to mitigate his losses. Eight job applications over the period the Claimant has been unemployed is not a high number. However, what is reasonable must be assessed in light of the surrounding circumstances. The Claimant commenced his search for replacement work after his factory job ended in March 2020, at a time when few employers were focussed on recruitment. Thereafter, from at least November 2020 he suffered a period of ill-health which meant he could only apply for roles which were compatible with the then-applicable shielding restrictions. I conclude that the Claimant’s failure to apply for more roles was not unreasonable in those circumstances. I therefore make no deduction for failure to mitigate.[36]The Claimant must give credit for the mislabelled redundancy payment of £1,157.00. This further reduces the figure for past losses to £37,504.50. Compensatory award – future loss of earnings[37]In relation to future loss, the Claimant submits it will take him a further two years to find another job. The Respondent’s position is that he should not be awarded any compensation for future loss because (on the Respondent’s case) he ought reasonably to have obtained alternative employment already.[38]I have found that the Claimant is determined, intelligent and well able to succeed in future employment. He faces some barriers to obtaining his next role; he has been out of work for a lengthy period and may need to find a new employer who would be willing to offer the opportunity of retraining. I anticipate the Claimant will be able to find such a role within a further 6 months (26 weeks).[39]This gives a total future loss at £386.58 per week for 26 weeks of £10,051.08. Polkey deduction and statutory cap[40]The compensatory award prior to adjustments therefore totals £47,955.58 (being £400 plus £37,504.50 plus £10,051.08).[41]Applying a 50% Polkey deduction to reflect the chance the Claimant could have been fairly dismissed gives a reduced total of £23,977.79.[42]This is higher than the Claimant’s gross annual salary of £20,102.00. His compensatory award is therefore further capped under s.124 Employment Rights Act 1996 to that amount.[43]The compensatory award has been reduced by 58% on application of the Polkey principle and the statutory cap.[44]Adding the compensatory award of £20,102.00 to the basic award of £1,159.74 gives a total award of £21,261.74. Information required in relation to recoupment[45]The prescribed element for the purposes of the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 is £15,721.12. This is calculated as past loss of earnings of £37,504.50 reduced by 58%, to reflect the proportion by which the compensatory award was reduced. Payment of this part of the award is deferred to allow the Secretary of State time to serve a recoupment notice or notify the Respondent that no recoupment notice will be served.[46]The prescribed period is the period from dismissal on 5 June 2019 to the remedy hearing on 15 October 2021.[47]The total amount of the monetary award is, as set out above, £21,261.74.[48]The balance of the award is £5,540.62, being the difference between the total award and the prescribed element. This part of the award is immediately payable by the Respondent to the Claimant.[49]The effect of the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 was discussed at the hearing and the parties’ attention is drawn to the explanation contained in the Annex to this judgment.