Mr D Anker v Morrison Energy Services Ltd: 3207939/2021

EMPLOYMENT TRIBUNALS

Case No 3207939/2021

Between

Mr D AnkerClaimant

Morrison Energy Services LimitedRespondent

Before

Employment Judge B Beyzade

Members

Mr J Webb

Mrs S Jeary

In person for claimant

Date 12 December 2023

JUDGMENT

[1.1]The claimant complaint of unfair dismissal pursuant to sections 94 and 98 of the Employment Rights Act 1996 is not well founded, and it is hereby dismissed.

[1.2]The claimant’s complaint of unfair dismissal pursuant to Regulation 7 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 is not well founded and it is hereby dismissed.

[1.3]The claimant’s complaint of unfair dismissal pursuant to sections 103 and 105 of the Employment Rights Act 1996 is not well founded and it is hereby dismissed. JUDGMENT having been sent to the parties on 15 December 2023 and written reasons having been requested in accordance with Rule 62(3) of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, the following reasons are provided:

REASONS

[1]The claimant presented complaints of unfair dismissal pursuant to sections 94 and 98 of the Employment Rights Act 1996 (“ERA 1996), unfair dismissal pursuant to Regulation 7 of the Transfer of Undertakings (Protection of Employment) Regulations 2006, and also unfair dismissal pursuant to sections 103 and 105 of the ERA 1996, which the respondent resisted.

[2]A Preliminary Hearing took place before Employment Judge Moor on 29 April 2022 during which the Final Hearing was listed on 17 and 18 November 2022, Case Management Orders were made, and the List of Issues were determined. Following a Preliminary Hearing before Employment Judge Massarella on 07 November 2022, those Final Hearing dates were postponed, a further Preliminary Hearing was listed on 17 November 2022, and further Case Management Orders were made. A third Preliminary Hearing took place during which Employment Judge Jones - 1 - re-listed the Final Hearing to take place on 22, 23, 24 and 28 November 2023, and issued directions in respect of documents and exchange of witness statements.

[3]The Final Hearing took place at the London East Employment Tribunal as an in person hearing before Employment Judge Beyzade, Mr Webb and Mrs Jeary at an in-person hearing on 22, 23, 24 and 28 November 2023.

[4]At the outset of the Hearing, the Tribunal were provided with an agreed Hearing Bundle consisting of 2 lever files comprising 589 pages, and reference was made to documents within those files throughout the hearing. Page references in square brackets [ ] below are references to page numbers within the Hearing Bundle.

[5]On the second day of the Hearing, the claimant provided the Tribunal with a ring binder containing a number of additional pages of documents (although they were page numbered they were not page numbered consecutively), which the Tribunal (by consent) added to the remaining files of documents, to which reference was made.

[6]At the outset of the Hearing, parties discussed the list of issues with the Tribunal. Thereafter the Tribunal recorded the following issues as falling to be investigated and determined by the Tribunal during the Final Hearing, parties being in agreement with these: Unfair Dismissal

[1]What was the reason or principal reason for dismissal†1.1 The First Respondent says it was redundancy. It will say the work supplied by the client post-transfer had diminished.

1.2 The Claimant believes he was selected for dismissal because he was an elected representative and had raised grievances. He will ask the Tribunal to draw an inference about this from other facts including that people less experienced were offered alternative roles.

[2]In the alternative, was the dismissal because of the transfer on 1 April 2021 and, if so, was it because of an economic technical or organisational reason? The respondent accepts that there was a TUPE transfer on the said date and that all the claimant’s terms of employment remained the same following the transfer.

[3]Did the First Respondent follow a fair procedure?3.1 Did it reasonably consult with the Claimant?

3.2 Did the Claimant engage reasonably in the consultation process?

3.3 Did it consider alternatives to dismissal? - 2 -

3.4 Did it reasonably select the Claimant for redundancy?

[4]Did the respondent act reasonably in treating redundancy as a sufficient reason for dismissing the Claimant pursuant to section 98(2)(c) of the Employment Rights Act 1996 and whether the decision to dismiss was in accordance with equity and the substantial merits of the case? Remedy for unfair dismissal The Claimant does not seek reengagement.

[6]No basic award is due because a statutory redundancy payment was made.

[7]If there is a compensatory award, how much should it be? The Tribunal will decide:7.1 What financial losses has the dismissal caused the Claimant?

7.2 Has the Claimant taken reasonable steps to replace his lost earnings, for example by looking for another job (’mitigation’)? 7.2.1 If not, for what period of loss should the Claimant be compensated?

7.3 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 (‘the Polkey question’)? 7.3.1 If so, should the Claimant’s compensation be reduced? By how much?

7.4 Does the statutory cap of fifty-two weeks' pay and pension or £86,493 apply?

[8]During the claimant represented himself and the respondent was represented by Mr S Davies, Litigation Specialist (In House).

[9]The claimant gave evidence on his own behalf and he provided a written witness statement.

[10]We were also provided with written witness statements of Andrew Clark (Business Development Director), Paul Holliday (Framework Manager), and Lindsey Laing (Employee Relations Lead), all of whom attended the Hearing and gave oral evidence.

[11]Following conclusion of the evidence, both parties made submissions which the Tribunal found informative.

[12]As the claimant was not legally represented, the Employment Judge explained the rules to him both with regards to the claim being made and the procedure followed and how evidence is given, and a decision is reached. The claimant confirmed that he had understood the - 3 - position and he was able to set out his case in detail. The Employment Judge explained to the parties the importance of the overriding objective of the need to ensure that all decisions are just and fair and that the parties worked together. The parties worked together to achieve the overriding objective.

[13]Although the respondent’s representative requested written reasons on 22 December 2022 and sent a further email seeking an update dated 16 May 2022, their request was not forwarded to the Employment Judge until 21 May 2024. Parties were sent correspondence on 28 June 2024 apologising for the delay, explaining the reasons in respect thereof, and that due to sitting requirements, annual leave, and other judicial commitments, the written reasons will be prepared by the end of August 2024. Once again, the Employment Judge apologises for the substantial delay and for any inconvenience caused.

Findings of Fact

[14]On the documents, and oral evidence presented the Tribunal makes the following essential findings of fact restricted to those necessary to determine the list of issues:

[15]The claimant was employed as Project Manager from 06 April 2011 until 29 August 2021. He was qualified as an Authorising Engineer.

[16]From 06 April 2011 until 01 April 2021 the claimant was employed by Skanska Limited. He was employed on the contract between Skanska Limited and the respondent (joint venture name being Triio). The claimant was engaged on a contract for services related to the gas network for Cadent Gas Limited. The Triio contract ended on 31 March 2021 and that contract had covered a large geographic area (London and the East of England).

[17]During his employment with Skanska Limited the claimant raised two grievances. The first grievance was presented in March/April 2019 in which the claimant had indicated that he was aggrieved about a process that had taken place to transfer the claimant from Romford to Bromley by Bow [107-110].

[18]The second grievance presented in March 2021 was in connection with the claimant’s entitlement to car allowance. By letter dated 11 August 2021 the claimant was advised that his stage 2 grievance had been upheld, that the claimant should have received the higher level of car allowance since his promotion from 07 August 2017 and he would receive any payments owed between August 2017 and December 2020 [111 – 112]. From 01 January 2021 the claimant had been paid the higher amount of car allowance. - 4 -

[19]The claimant assisted employees with grievances during his employment, although these did not relate to his role an elected representative. Employees would approach the claimant for support as he was known to be the person that people could turn to.

[20]During his employment with Skanska Limited, he also acted as an elected employee representative in relation to the TUPE transfer to the respondent from 01 April 2021.

[21]The claimant’s employment transferred to the respondent from Skanska Limited on 01 April 2021 pursuant to TUPE. His service with his previous employer continued to accrue.

[22]Skanska Limited lost the contract with Cadent Gas Limited and the respondent secured a contract with Cadent Gas Limited on a different footing (which was for administration and management). This was a shift from their work from the provision of works services engineering.

[23]The new contract with Cadent Gas Limited was called Construction Management Organisation (“CMO”). Furthermore, in the new venture with Cadent Gas Limited the respondent would be operating within London (and not in the East of England).

[24]As there was a diminished requirement for field or on-site engineers, the respondent had a reduced requirement for Project Managers working on the Cadent Gas Limited project.

[25]The respondent proposed to make thirty-five redundancies from employees working within the CMO contract who were previously working on the Triio Joint Venture.

[26]All affected employees were offered voluntary redundancy. Twelve employees had decided to accept voluntary redundancy.

[27]The respondent then had to carry out a redundancy selection exercise in respect of the remaining twenty-three employees.

[28]The claimant was an employee representative during the respondent’s collective consultation exercise.

[29]An email was sent from Ellen Barten, HR Business Partner London CMO dated 19 April 2021 advising that following the CMO restructure briefing that morning, the employees’ roles had been identified as at risk of redundancy and had been pooled within the category of Project Managers [53-54]. - 5 -

[30]On 19 April 2021 the claimant was advised by email that his role had been identified as “at risk” and therefore had been pooled within the category of Project Managers. The respondent were commencing 45- day consultation period. Two employee representatives were to be elected. Their role included the ability to escalate any queries or concerns about the process. The claimant was also advised to contact Ms Ellen Barten if he had any questions relating to the process. The claimant was reminded about the details of the respondent’s Employee Assistance Programme, details of which were included in the collective consultation presentation slides.

[31]The claimant was an elected representative along with another employee in order to represent project managers.

[32]A document had been prepared titled Restructure of CMO dated 19 April 2021 [131-152]. The background section at pages [133-134] sets out the proposed structure that was agreed with Cadent, the proposals for collective consultation [147-150], and the proposed timelines [151]. The competitive interview process for vacancy and positions at risk was due to commence on 03 May 2021 and the closing date for interviews (and second consultation meeting) was 17 May 2021. Successful applicants were to be informed of their appointments on 24 May 2021 and one to one meetings for employees still at risk were to begin on 31 May 2021 (consultations close and notices of redundancy would then be issued on 07 June 2021).

[33]This timeline needed to be strictly adhered to because the respondent needed to restructure to service the contract as soon as possible pursuant to their obligations under the contract with the client. Failure to do so would have resulted in the respondent incurring significant financial losses because of any delays and may have resulted in the respondent losing the contract entirely.

[34]The first collective consultation meeting took place on 27 April 2021 at 4.00pm, which the claimant had attended. There was a further presentation regarding the restructure, dated 5 May 2021, which depicts the numbers involved in the restructure. This structure needed to be agreed with the client Cadent Gas Limited as a matter of urgency.

[35]A further collective consultation meeting took place on 05 May 2021, which the claimant also attended. The Restructure of CMO document discussed at that meeting dated 05 May 2021 is at pages [153-158].

[36]A subsequent collective consultation meeting was held on 12 May 2021, and the claimant was in attendance at that meeting.

[37]The respondent decided to use selection interviews as a mechanism to identify employees who would be selected for redundancy. This is - 6 - because a selection matrix was deemed not to be appropriate as following the TUPE transfer on 01 April 2021 Skanska Limited had not provided complete or sufficient documents relating to their previous employees. This method was adopted because the respondent cannot guarantee the completeness or accuracy of the documentation transferred over to it during and post TUPE from the former employer. Therefore, the most fair and equitable process when deciding is to individually interview all vulnerable staff, to ensure equal treatment across all candidates.

[38]As part of collective consultation employees were advised that they may register an expression of interest in relation to roles based on a competitive interview process. Individual employees would receive an email setting out the date and time of their interview.

[39]The claimant expressed an interest in relation to the role of a Project Manager.

[40]The claimant was invited to attend a competitive interview in relation to the role of a project manager on 25 May 2021 at 2.00pm via Microsoft Teams.

[41]Justine Treanor sent a copy of the relevant Job Description to the claimant in advance of his interview by email dated 18 May 2021 at 3.41pm and he was advised in the same email to notify Justine Treanor if the time arranged for interview was not convenient.

[42]The claimant did not attend the Project Manager interview scheduled on 25 May 2021. He did not make any contact prior to the interview to seek to re-arrange the interview.

[43]On 25 May 2021 Russell Brown advised the claimant by email sent at 2.17pm that he did not attend the Project Manager interview, that himself and Stuart Donaldson had left voicemails, and if he had technical difficulties or were unable to attend for another reason, he was asked to contact Ellen Barten urgently to rearrange the interview.

[44]On 26 May 2021 at 09.00am Ellen Barten advised the claimant by email that the interviews for Project Manager were due to conclude on the following day. The claimant was advised to call or email to rearrange by close of business that day, and that if he did not wish to do so it would be assumed that he was removing himself from the process. The claimant was advised to contact Ellen Barten if he had any queries or wished to discuss the matter in more detail. - 7 -

[45]The claimant sent an email to Hayley Fox, Employee Relations Case Manager on 26 May 2021 copied to Rachel Fayers at 08.53am advising he was not in the correct frame of mind to attend such an important interview [61]. He said he had been in touch with his GP who recommended an immediate course of action. He referred to his longest outstanding grievance with Skanska Limited, lack of a 1-2-1 meeting, and his query regarding a car allowance.

[46]The claimant sent an email in reply to Ellen Barten explaining that due to the current situation and ongoing concerns with his wellbeing he postponed the meeting scheduled to take place on 25 May 2021 via Teams and later in the afternoon explained his situation to S Donaldson. He stated that he contacted two senior HR personnel to explain his situation more fully [60].

[47]Hayley Fox replied by email dated 26 May 2021 at 4.11pm [62] providing details of the respondent’s Employee Assistance Programme. It was stated that whilst they understood his concerns, which would be dealt with under the grievance process, they would be unable to postpone the process as it affected a wider group of people who would be negatively impacted by a postponement. If he had further concerns outside the grievance process he was invited to make contact about these. The claimant was advised that if he failed to attend an interview before the process concluded the following day (in the evening) the process would conclude and he would be removing himself from the process. The claimant was urged to rearrange his interview by close of business on the following day.

[48]The claimant sent an email to Hayley Fox and Rachel Fayers on 28 May 2021 [63] advising that he did not feel in the correct frame of mind to attend an interview. He stated that he hoped to be in a position to firstly prepare and then undertake an interview once his current anxiety and wellbeing improved.

[49]On 03 June 2021 the claimant was invited to attend the fourth collective consultation meeting and he was sent a copy of the most recent vacancy lists [65].

[50]On 08 June 2021 the fourth collective consultation meeting took place.

[51]The claimant was invited to a first one to one consultation meeting by an invitation dated 07 June 2021 which was due to take place on 08 June 2021 and he was also sent the most recent vacancy lists and a link to obtain more details about each available position. The claimant attended the first individual consultation meeting with Paul Holliday, the then Operations Manager on 08 June 2021. On 08 June 2021 potential job vacancies were circulated [67]. - 8 -

[52]The claimant was sent an email on 09 June 2021 from Ellen Barten stating that a copy of the notes and a statement of entitlement were enclosed [69]. He was advised he will receive any accrued annual leave with his final salary which is calculated towards the end of the process. He was also provided with a copy of the most up to date vacancy lists. In addition, the claimant was sent a link to the respondent’s vacancies.

[53]On 10 June 2021 the claimant sent an email to Ellen Barten raising three areas of concern including a meeting not being arranged with his line manager (also a 121 meeting having not been arranged previously), and stating that he appreciated he could not attend an interview at the given time due to circumstances he had explained but that individuals applying for the vacancies had been told not to discuss the outcome so he could not be aware of the acceptable levels of scoring, competence, qualifications and experience [70-71]. He stated that the invitation to the meeting did not indicate the purpose of the meeting. He advised that he had not received the CMO vacancy list by 08 June 2021, and that he had an additional 10 days carried over holidays to be taken into account.

[54]Ellen Barten replied on the same day advising that the claimant was formally notified that his role was at risk and attached a copy of the first email he was sent a copy of [70]. The claimant did not attend his interview and Ellen Barten advised that she contacted the claimant to advise that he would be required to reschedule his interview. She advised that she would send him the CMO vacancy list as soon as she had the full version, and that the additional ten days holidays carried over had been approved.

[55]A further individual consultation meeting was scheduled on 11 June 2021, but the claimant did not attend (and he declined the Teams meeting invitation at 12.37pm). Glen Haylett sent an email at 12.51pm to Lindsey Laing and Matthew Woodhead on the same day advising that the claimant declined the meeting which was due to take place at 1.00pm, he had not made any contact, and he proposed sending him a suitable email [72].

[56]The respondent distributed a list of vacancies available on the CMO on 15 June 2021 and at the same time, a link to other roles within the respondent [73-81].

[57]Hayley Fox sent an email to Paul Holliday on 16 June 2021 asking if the claimant’s grievance report could be concluded that week. Paul Holliday advised that the grievance could not be concluded that week and that if further information is not forthcoming from Skanska Limited, he could not support the claimant’s grievance. - 9 -

[58]The claimant sent an email on 17 June 2021 advising that he would like to register an interest in the Pre-Construction Surveyor role, and he requested further information. He said he attempted to apply for a role on the Morrison vacancy list for a position without success. Ellen Barten replied on the same day providing him with a copy of the PreConstruction Surveyor role Job Description and she also offered to assist with the other vacancy if he wished [86].

[59]The claimant attended the third consultation meeting which was arranged to take place on 17 June 2021. He expected the previous meeting to be rescheduled (but it was not due to the respondent’s tight timescales).

[60]The claimant informed Paul Holliday that he had attempted to apply for an alternative role he had seen on the vacancy list but was unable to complete his application because he was apparently unable to log into the system. He said he would continue to try but refused to state for which prospective job he was having difficulty applying, and Paul Holliday was therefore unable to assist him any further in relation to it. This was further compounded in that he did not express any interest in the CMO vacancy previously sent to him on 18 May 2021.

[61]The claimant was annoyed that this meeting remained his final consultation. He stated that he had not received the current updated list of jobs prior to it and therefore saw no point in attending the second meeting. Paul Holliday did not consider this to be a reason to not attend because they could have addressed that at the meeting itself.

[62]The claimant then raised the issue of Paul Holliday Chairing this meeting, stating that Paul Holliday did not know him, and it should be his manager instead. Paul Holliday informed him that at this stage of the restructure, he, and others like him, did not yet have a permanent manager assigned, because they had not completed the process and therefore they were unable to assign in that regard yet.

[63]The claimant had been assigned Terry Penny as an interim manager for the duration of the restructure because the claimant’s former manager at Skanska Limited had not transferred over in April 2021. The claimant was reminded that this meeting was concerning the redundancy of his position, not his suitability for others. It was explained that his appointment in this context was based on his seniority.

[64]He was informed at that meeting that he was due to be made redundant on 17 August 2021 (if the respondent were unable to find him suitable alternative employment henceforth), that he was entitled to 10 weeks’ pay in lieu of notice and that he would be placed on garden leave for the duration of this period. The claimant stated that he would be raising concerns about the fairness of the process and - 10 - reiterated that he had been elected as an employee representative for the process.

[65]On 22 June 2021 the claimant was notified that the claimant’s grievance was not upheld by Paul Holliday. He was provided with a right of appeal.

[66]On 02 July 2021 (incorrectly dated 02 June 2021), the claimant was sent a letter following the conclusion of the final individual consultation meeting on 17 June 2021 [91-93]. In this letter he was advised that: “As discussed during the consultation period, a potential redundancy situation arose due to the negotiation of a proposed restructure with Cadent, several activities were identified as not in-scope in relation to the new structure. This has unfortunately resulted in the loss of roles across the new CMO hence the current position. … We confirmed that as of the date of the meeting on the 17 June 2021 we have been unable to identify any way of avoiding your role being made redundant or an alternative suitable position for you to date and therefore you are regretfully redundant. … You have confirmed your interest in the Pre-Con Surveyor role on the CMO and another vacancy of which you are considering which you have chosen not to share with us. These will be reviewed as a potential suitable alternative. You will be contacted regarding the CMO role shortly to arrange an interview. We will continue to send you details of vacancies across MGroup.”

[67]The claimant was advised that he was to receive 10 weeks’ notice pay and he would be placed on garden leave until 29 August 2021 when his employment would come to an end. In the interim, the claimant was advised that if he secured an alternative role, notice would be rescinded. The claimant would also receive payment in respect of his accrued annual leave entitlement and a redundancy payment of £8,160.00. The claimant was advised that any appeal should be sent within five working days.

[68]The claimant appealed in relation to his grievance outcome. He provided further details in his email dated 02 July 2021. Hayley Fox advised by email dated 05 July 2021 that a Teams call would be helpful to clarify his grounds of appeal. The claimant provided his availability on 06 July 2021 and he advised that they need to discuss the apparent lack of clarity and full response with all the documentation from Skanska Limited in line with any Company grievance policies and TUPE law and guidelines. - 11 -

[69]On 12 July 2021 the claimant provided his appeal and grounds in relation to his redundancy to Ellen Barten. A copy of his email is at pages [103-104] of the Hearing Bundle.

[70]By letter dated 14 July 2021 the claimant was invited to a stage 2 appeal hearing on 27 July 2021 to discuss his appeal one dated 16 March 2021 in regards to the outstanding grievance with Skanska, appeal two dated 29 June 2021 in regards to car allowance and appeal three dated 12 July 2021 in regards to the claimant’s recent redundancy.

[71]On 27 July 2021 the appeal meeting took place. The appeal notes are at pages [122 – 130] of the Hearing Bundle.

[72]The claimant sent an email to Lindsey Laing and Hayley Fox on 16 August 2021 advising that he had only applied for one role, for which he was interviewing for that week. He stated he presumed that the process would be concluded prior to his leaving date. Andy Clark replied on the same date advising that the aim would be to conclude the process that week.

[73]The claimant attended an interview in relation to the role he applied for on 18 August 2021 and he was advised in an email from John Scrivener, Head of Programme London CMO that “Thank-you for your interest in this position, as per my phone call today and to confirm that you were not successful in your interview yesterday for role of PreConstruction Engineer.”

[74]On 17 August 2021 the claimant received three separate letters confirming the outcome of his grievances and his redundancy appeals, copies of which are at pages [107 – 116].

[75]The outcome of the claimant’s grievance appeal dated 11 August 2021 stated at page [110]: “Overall, I would comment that the process followed to complete this grievance by Skanska does appear to be long; certainly longer than MES would intend to take in such matters. I can understand your concerns regarding this and the unanswered questions that remain. As stated, while I am extremely sympathetic of your position with regard to your experiences as a Skanska employee, I am not in a position to be able to comment further on another organisation’s processes nor am I able to investigate further for reasons outlined above.” In terms of the second grievance appeal, the claimant’s appeal was upheld and on review of the evidence it was accepted that the claimant should have received the high level of car allowance since his promotion which took effect from 07 August 2017.

[76]The claimant’s appeal against his dismissal due to redundancy was not upheld and Mr Clark said that overall in his investigations he felt that the consultation process was fair, open and followed statutory guidelines as well as the respondent’s processes and procedures. He - 12 - commented that the exercise had to be completed in a set timeframe, which meant that delaying the process for one individual would have impacted on a large number of people involved in the process. He set out a number of further detailed grounds for not holding the appeal in his letter and he addressed the concerns raised by the claimant in detail.

[77]The claimant’s employment terminated by reason of redundancy on 29 August 2021.

[78]The claimant received 10 weeks’ notice pay, his outstanding holiday entitlement, his backdated car allowance and his redundancy pay.

[79]The claimant says he applied for around 10 to 12 jobs after his employment with the respondent had ended, although these were not in the same or within a similar role to his profession or in terms of his role he had with the respondent. He did not want to apply for work in the same sector. He applied for roles as a caretaker. The claimant’s job applications and documents were not provided to the Tribunal.

[80]The claimant’s updated Schedule of Loss (to 23 April 2023) comprising two pages was appended to the claimant’s witness statement.

[81]The claimant contacted ACAS on 15 November 2021 and he received his ACAS Early Conciliation Certificate on 16 December 2021.

[82]The claimant commenced his Employment Tribunal claim on 28 December 2021.

[83]The respondent entered a response on 08 March 2021. Observations

[84]On the documents and oral evidence presented, the Tribunal makes the following essential observations on the evidence restricted to those necessary to determine the List of Issues:

[85]We were presented with three files of documents, which contained a significant number of documents which we were not referred to. In relation to the third file, which the claimant insisted was important to his case (and delayed the start of the evidence until the following day), only one page was referred to within the claimant’s cross examination.

[86]Although there were missing documents from the redundancy process, we were able to identify the timeline and key events from the available documents within the Hearing Bundle to which we were referred. - 13 -

[87]Mr Holliday’s and Mr Clark’s witness evidence was on the whole clear and consistent with the documentation. We accepted their evidence in terms of the reasons why the claimant’s role was made redundant, the redundancy process that was followed, and the reasons giving for dismissing the claimant (namely redundancy). We accepted that redundancy was the genuine reason for the claimant’s dismissal.

[88]We noted that a significant amount of the claimant’s evidence was focussed on his two grievances, which related to his employment with Skanska Limited. The claimant did not provide a specific or detailed explanation in his evidence in terms of why he believed his dismissal was unfair. However we considered this along with the documents to which the claimant referred in his witness statement and in terms of the claimant’s detailed grounds of appeal that were provided to the respondent at the material time in July 2021.

[89]We further noted that the claimant’s evidence did not contain any information or details in relation to why the claimant believed that his dismissal was contrary to sections 103 or 105 of the Employment Rights Act 1996 “the ERA 1996”), other than when prompted by the Tribunal about this he referred to the document numbered 937 in the third file. That document did not specify who it was sent to or from and we noted that it dated back to 11 February 2021.

The Law

[90]To those facts, the Tribunal applied the law – Unfair dismissal

[91]It is for the respondent to show the reason (or principal reason if more than one) for the dismissal (s98(1)(a) of the Employment Rights Act 1996 [“the ERA 1996”]). That the employee was redundant is one of the permissible reasons for a fair dismissal (section 98(1)(b) and (2)(c) of the ERA 1996). Where dismissal is asserted to be for redundancy the employer must show that what is being asserted is true i.e. that the employee was in fact redundant as defined by statute.

[92]An employee is dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to the fact that his employer has ceased or intends to cease to carry on that business in the place where the employee was so employed, or the fact that the requirements of that business for employees to carry out work of a particular kind have ceased or diminished or are expected to cease or diminish (s139(1) of the ERA 1996).

[93]In Safeway Stores plc v Burrell

[1997] IRLR 200

the EAT indicated a 3-stage test for considering whether an employee is dismissed by reason of redundancy. A Tribunal must decide: - 14 -a. Whether the employee was dismissed?

b. If so, had the requirements of the employer’s business for employees to carry out work of a particular kind ceased or diminished, or were they expected to cease or diminish?

c. If so, was the dismissal of the employee caused wholly or mainly by the cessation or diminution?

[94]If satisfied of the reason for dismissal, it is then for the Tribunal to determine, the burden of proof at this point being neutral, whether in all the circumstances, having regard to the size and administrative resources of the employer, and in accordance with equity and the substantial merits of the case, the employer acted reasonably or unreasonably in treating the reason as a sufficient reason to dismiss the employee (s98(4) of the ERA 1996).

[95]In applying s98(4) of the ERA 1996 the Tribunal must not substitute its own view for the matter for that of the employer but must apply an objective test of whether dismissal was in the circumstances within the range of reasonable responses open to a reasonable employer.

[96]The Tribunal considered the EAT’s decisions in Eaton Ltd v King & Others

[1995] IRLR 75

and E-Zec Medical Transport Service Ltd v Gregory [2008]

UKEAT/0192/08

, and British Aerospace v Green

[1995] IRLR 433

in the Court of Appeal. When considering whether the circumstances of the claimant’s dismissal fell within the range of reasonable responses open to a reasonable employer the Tribunal should consider whether the respondent’s choice of any selection criteria fell within a range of reasonable responses available to a reasonable employer in all the circumstances and whether based on the evidence before the Tribunal the scoring was applied in a fair and objective manner. The Tribunal’s task, however, was not to subject any marking system to a microscopic analysis or to check that the system had been properly operated but it did have to satisfy itself that a fair system was in operation.

[97]It is generally for the employer to decide on an appropriate pool for selection. If the employer genuinely applied its mind to the question of setting an appropriate pool, the Tribunal should be slow to interfere with the employer’s choice of the pool. However, the Tribunal should still examine the question whether the choice of the pool was within the range of reasonable responses available to a reasonable employer in the circumstances (Capita Hartshead v Byard

[2012] IRLR 814

[98]A fair consultation would normally require the employer to give the employee “a fair and proper opportunity to understand fully the matters about which [he/she] is being consulted, and to express [his/her] views on those subjects, with the consultor thereafter considering those views properly and genuinely.” (Per Glidwell LJ in R v British Coal - 15 - Corporation and Secretary of State for Trade & Industry ex parte Price and others

[1994] IRLR 72

) cited with approval and as applicable to individual consultation by EAT in Rowell v Hubbard Group Services Ltd

1995 IRLR 195

, EAT “when the need for consultation exists, it must be fair and genuine, and should… be conducted so far as possible as the passage from Glidewell LJ’s judgment suggests”. A fair consultation process must give the employee an opportunity to contest his selection for redundancy (John Brown Engineering Ltd v Brown and ors.

1997 IRLR 90

, EAT).

[99]The House of Lords in Polkey v A E Dayton Services Ltd

1988 ICR 142

held that “in the case of redundancy, the employer will not normally have acted 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 its own organisation.” The House of Lords’ ruling firmly established procedural fairness as an integral part of the reasonableness test in S.98(4) ERA. Their Lordships decided that a failure to follow correct procedures was likely to make an ensuing dismissal unfair unless, in exceptional cases, the employer could reasonably have concluded that doing so would have been ‘utterly useless’ or ‘futile.’

[100]If the Tribunal decides that the dismissal is procedurally unfair, as part of considering the issue of remedy it ought to consider the question whether the employee would have been fairly dismissed in any event, and/or to what extent and/or when. This inevitably involves an element of speculation (Software 2000 Ltd v Andrews and ors

2007 ICR 825

, EAT). “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. 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” (see Software 2000 Ltd v Andrews and ors

2007 ICR 825

, EAT per Mr Justice Elias, the then President of the EAT). Unfair dismissal – s 103 of the ERA 1996

[101]Section 103 of the ERA 1996 states: “103 Employee Representatives (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more - 16 - than one, the principal reason) for the dismissal is that the employee, being— (a)an employee representative for the purposes of Chapter II of Part IV of the Trade Union and Labour Relations (Consolidation) Act 1992 (redundancies) or regulations 9, 13 and 15 of the Transfer of Undertakings (Protection of Employment) Regulations 2006, or (b)a candidate in an election in which any person elected will, on being elected, be such an employee representative, performed (or proposed to perform) any functions or activities as such an employee representative or candidate. (2)An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee took part in an election of employee representatives for the purposes of Chapter II of Part IV of the Trade Union and Labour Relations (Consolidation) Act 1992 (redundancies) or regulations 9, 13 and 15 of the Transfer of Undertakings (Protection of Employment) Regulations 2006.” Unfair dismissal – s 105 of the ERA 1996

[102]S 105 of the ERA 1996 sets out as follows: “s105 Redundancy. (1)An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if— (a)the reason (or, if more than one, the principal reason) for the dismissal is that the employee was redundant, (b)it is shown that the circumstances constituting the redundancy applied equally to one or more other employees in the same undertaking who held positions similar to that held by the employee and who have not been dismissed by the employer, and (c)it is shown that any of subsections (2A) to (7N) applies. (2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (2A)This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those specified in subsection (1) of section 98B (unless the case is one to which subsection (2) of that section applies). (3)This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those - 17 - specified in subsection (1) of section 100 (read with subsections (2) and (3) of that section). (4)This subsection applies if either— (a)the employee was a protected shop worker or an opted-out shop worker, or a protected betting worker or an opted-out betting worker, and the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was that specified in subsection (1) of section 101 (read with subsection (2) of that section), or (b)the employee was a shop worker or a betting worker and the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was that specified in subsection (3) of that section. (4A)This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those specified in section 101A. (5)This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was that specified in section 102(1). (6)This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was that specified in section 103. (6A)This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was that specified in section 103A. (7)This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those specified in subsection (1) of section 104 (read with subsections (2) and (3) of that section). (7A)This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those specified in subsection (1) of section 104A (read with subsection (2) of that section). (7B)This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those specified in subsection (1) of section 104B (read with subsection (2) of that section). (7BA)This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those specified in section 104C. - 18 - (7BB)This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those specified in section 104E. (7C)This subsection applies if— (a)the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the reason mentioned in section 238A(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 (participation in official industrial action), and (b)subsection (3), (4) or (5) of that section applies to the dismissal. (7D)This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one specified in paragraph (3) or (6) of regulation 28 of the Transnational Information and Consultation of Employees Regulations 1999 (read with paragraphs (4) and (7) of that regulation). (7E)This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one specified in paragraph (3) of regulation 7 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (unless the case is one to which paragraph (4) of that regulation applies). (7F)This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one specified in paragraph (3) of regulation 6 of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (unless the case is one to which paragraph (4) of that regulation applies). (7G)This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one specified in paragraph (3) or (6) of regulation 42 of the European Public Limited-Liability Company Regulations 2004 (read with paragraphs (4) and (7) of that regulation). (7H)This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one specified in paragraph (3) or (6) of regulation 30 of the Information and Consultation of Employees Regulations 2004 (read with paragraphs (4) and (7) of that regulation). …” Regulation 7 of TUPE

[103]Regulation 7 of the Transfer of Undertaking (Protection of Employment) Regulations 2006 (“TUPE”) provides that: - 19 - “Dismissal of employee because of relevant transfer 7.(1) Where either before or after a relevant transfer, any employee of the transferor or transferee is dismissed, that employee shall be treated for the purposes of Part X of the 1996 Act (unfair dismissal) as unfairly dismissed if the sole or principal reason for his dismissal is— (a)the transfer itself; or (b)a reason connected with the transfer that is not an economic, technical or organisational reason entailing changes in the workforce.

(2) This paragraph applies where the sole or principal reason for the dismissal is a reason connected with the transfer that is an economic, technical or organisational reason entailing changes in the workforce of either the transferor or the transferee before or after a relevant transfer.

(3) Where paragraph (2) applies— (a)paragraph (1) shall not apply; (b)without prejudice to the application of section 98(4) of the 1996 Act (test of fair dismissal), the dismissal shall, for the purposes of sections 98(1) and 135 of that Act (reason for dismissal), be regarded as having been for redundancy where section 98(2)(c) of that Act applies, or otherwise for a substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held. (1) Where either before or after a relevant transfer, any employee of the transferor or transferee is dismissed, that employee is to be treated for the purposes of Part 10 of the 1996 Act (unfair dismissal) as unfairly dismissed if the sole or principal reason for the dismissal is the transfer. (2) This paragraph applies where the sole or principal reason for the dismissal is an economic, technical or organisational reason entailing changes in the workforce of either the transferor or the transferee before or after a relevant transfer. (3) Where paragraph (2) applies— (a)paragraph (1) does not apply; (b)without prejudice to the application of section 98(4) of the 1996 Act (test of fair dismissal), for the purposes of sections 98(1) and 135 of that Act (reason for dismissal)— (i)the dismissal is regarded as having been for redundancy where section 98(2)(c) of that Act applies; or - 20 - (ii)in any other case, the dismissal is regarded as having been for a substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held. (3A) In paragraph (2), the expression “changes in the workforce” includes a change to the place where employees are employed by the employer to carry on the business of the employer or to carry out work of a particular kind for the employer (and the reference to such a place has the same meaning as in section 139 of the 1996 Act).

(4) The provisions of this regulation apply irrespective of whether the employee in question is assigned to the organised grouping of resources or employees that is, or will be, transferred.

(5) Paragraph (1) shall not apply in relation to the dismissal of any employee which was required by reason of the application of section 5 of the Aliens Restriction (Amendment) Act 1919 to his employment.

(6) Paragraph (1) shall not apply in relation to a dismissal of an employee if the application of section 94 of the 1996 Act to the dismissal of the employee is excluded by or under any provision of the 1996 Act, the 1996 Tribunals Act or the 1992 Act.” Submissions

[104]The Tribunal were provided with a copy of written submissions on behalf of the respondent. The respondent’s representative then clarified and amplified these further in their oral submissions.

[105]The respondent’s representative cites the following authorities:105.1 Manchester College v Hazel

[2014] ICR 989

;

105.2 Nationwide Building v Benn

[2010] IRLR 922

(the Respondent’s undertaking was reorganised as part of the transfer, wherein certain functions, such as the claimant’s, became diminished and it is respectfully submitted that this constituted an ‘organisational’ reason);

105.3 Drake International t/a Drake Ports Distribution Services v O’Hare EAT 0384/03/TM; Look Ahead Housing & Care Limited v Odili and Mendes

UKEAT/0437/07/MAA

; and Amazon.co.uk Ltd & Hurdus

UKEAT/0377/10/RN

;

105.4 Williams v Compair Maxam Ltd

[1982] IRLR 83

; and

105.5 Polkey v AE Dayton Services LTD

[1988] AC344

[106]The claimant made oral submissions. In the first part of his submissions he provided detailed comments in relation to the - 21 - respondent’s written submissions and he challenged a number of these. The claimant then proceeded to make submissions in support of his complaints including that he believes that he was singled out because he was a known point of contact in relation to his colleagues.

[107]The claimant said he had to chase the respondent in order to be given a job interview. He then said Mr Holliday would have known him in terms of one of the top 200 in his field in the country and that whatever he would have done at his interview, he suggested that the decision was pre-ordained and that the respondent wanted to manage him out of the business.

[108]The claimant referred to the fact that he had lost his main living and that he loved his job. He indicated that he no longer wanted the pressure of a high-powered job.

[109]We took parties’ submissions into account fully prior to making our decision. Discussion and Decision

[110]On the basis of the findings made, the Tribunal disposes of the issues identified at the outset of the hearing as follows: S 98(2) ERA 1996 Issue 1.1 What was the reason or principal reason for dismissal?

[111]We considered the terms of section 139 of the ERA 1996 which states: “(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— (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.”

[112]Having considered the respondent’s reasons for dismissing the claimant, the evidence we heard and the documents to which we were referred, the Tribunal were satisfied that the requirements of the respondent for employees previously employed by Skanska Limited including the claimant in the role of project manager who had transferred to the respondent on 01 April 2021, had significantly diminished. This was related to the end of the Triio contract and the start of the CMO contract. Not only had geographical coverage of the - 22 - contract reduced from East of England to the London region, but also the work under the new contract was more focussed on administration rather than hands on engineering.

[113]The respondent’s representative submitted that the required restructuring following the April 2021 TUPE transfer and pursuant to the new CMO contract with the Client Cadent Gas Limited met this definition and the situation was therefore, one of genuine redundancy.

[114]We accepted Mr Holliday’s and Mr Clark’s evidence in relation to the reason for dismissal being redundancy, and further, that their reasons and the basis for the same was genuine. We took into account the numbers of employees to be made redundant, and there were thirtyfive individuals who were at risk of redundancy (twelve of whom accepted voluntary redundancy and twenty-three required to be selected).

[115]Under section 98(2)(c) of the ERA 1996, we note that redundancy is a potentially fair reason for dismissal. Issue 1.2 – Selection for dismissal because he was an elected representative and had raised grievances

[116]It was not disputed that the claimant was elected by his colleagues firstly at Skanska Limited as an employee representative with regards to the TUPE process which concluded at the end of March 2021 (“TUPE Employee Representative”).

[117]It was also accepted by the respondent that up to 07 June 2021 the claimant was an elected representative in relation to the redundancy process carried out by the respondent (“Redundancy Employee Representative”).

[118]We did not accept the claimant’s contention that he was selected for dismissal for the reason or principal reason that he was a TUPE Employee Representative and/or a Redundancy Employee Representative. We are satisfied on the evidence we read and heard that the claimant was dismissed for the sole reason of redundancy.

[119]We noted that the respondent encouraged the election of employee representatives during their redundancy process, the claimant was invited to four collective consultation meetings and provided with information to disseminate to those project managers which he represented. The respondent engaged with the claimant as an employee representative during the redundancy process.

[120]The claimant contended that he was selected for dismissal because he had raised grievances previously. However, he did not bring those grievances in his capacity as an employee representative in terms of section 103 of the ERA 1996. Even if he had done so, we did not accept that those grievances were the sole or principal reason for his - 23 - dismissal. Both grievances related to historic matters relating to the claimant’s employment with Skanska Limited. As we noted in our findings of fact, both grievances were ultimately investigated and determined by the respondent. The respondent’s approach was considered as a whole supportive, open minded and Mr Clark supported the claimant’s car allowance grievance in the appeal.

[121]We noted that only two of the individuals who were identified as at risk of redundancy were elected employee representatives on the basis of the information we had and the evidence before us.

[122]We found that the reason for the claimant’s dismissal was redundancy. We therefore considered in terms of section 105 of the ERA 1996, if the reason or the principal reason for which the claimant was selected for dismissal was that specified in section 103 of the ERA 1996 (per section 105(6) of the ERA 1996).

[123]The respondent’s representative submits that under s105(1)(b) ERA (1996), the circumstances constituting the redundancy applied equally to one or more other employees in the same undertaking who held positions similar to that held by the claimant and who were not dismissed – all employees were required to participate in the process – the claimant alone refused.

[124]We concluded that the reason or principal reason for which the claimant was selected for dismissal was not that specified in section 103 of the ERA 1996. We were satisfied based on the evidence that we read and heard that the claimant’s selection for dismissal was not in any way whatsoever connected to either of the claimant’s roles as an employee representative (that he was a TUPE Employee Representative and/or a Redundancy Employee Representative).

[125]Having considered the evidence before us, the claimant’s complaints that he was dismissed pursuant to sections 103 and/or 105 of the ERA 1996 are not well founded and they are hereby dismissed. Issue 2 – TUPE

[126]It was not disputed that there was a TUPE transfer from Skanska Limited to the respondent and that a number of project managers including the claimant were transferred to the respondent on 01 April 2021 (“the TUPE transfer”), and that their terms and conditions remained unchanged.

[127]The claimant contends in the alternative that his dismissal was for the sole or principal reason of the TUPE transfer or a reason connected with the transfer. The respondent’s representative contends that the claimant’s dismissal was solely or in the alternative principally mandatory restructure which commenced following the TUPE transfer. - 24 -

[128]As we set out in our conclusions earlier, we determined that the reason for the claimant’s dismissal was redundancy. In those circumstances, paragraph (1) of Regulation 7 of TUPE does not apply. In any event we were not satisfied that the reason or principal reason for the claimant’s dismissal was the TUPE transfer.

[129]Paragraph (3) of the TUPE Regulations states that (where paragraph (2) applies) that paragraph 1 shall not apply without prejudice to the application of section 98(4) of the ERA 1996, for the purposes of section 98(1) and 135 of that Act if the reason for dismissal is redundancy where section 98(2)(c) of the ERA 1996 applies (or otherwise for a substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held).

[130]Paragraph (2) of Regulation 7 of TUPE applies where the sole or principal reason for the dismissal is a reason connected with the transfer that is an economic, technical, or organisational reason entailing changes in the workforce of either the transferor or the transferee before or after a relevant transfer. The burden of showing this is on the respondent.

[131]The respondent asserts that the claimant was dismissed for an Economic, Technical and Organisational reason, entailing changes in the workforce after the TUPE transfer from transferor Skanska Limited to the respondent transferee on 1 April 2021.

[132]Having considered the documentary evidence and the oral evidence before us, we were satisfied that the claimant’s dismissal was an economic, technical or organisational reason entailing changes in the workforce of either the transferor or the transferee before or after a relevant transfer. We considered that the respondent had lost the contract with Cadent, and that the new contract was of an administrative nature and involved less hands-on engineering. The new contract also covered a significantly smaller geographic area. We were satisfied in all the circumstances and on the evidence before us, that the respondent had shown that there was an ETO reason.

[133]Having considered the evidence before us, the claimant’s complaints that he was dismissed because of a relevant transfer pursuant to paragraphs 7(1) and (2) of the TUPE Regulations are not well founded and they are hereby dismissed. Issues 3 and 4 – Fairness of dismissal Issue 3.1 Did the respondent reasonably consult with the claimant?

[134]We concluded that the respondent reasonably consulted with the claimant considering all the circumstances. As an employee - 25 - representative, the claimant attended four collective consultation meetings during which information was shared with those present in relation to a number of matters including the restructure and the need to reduce the number of employees who carried out work of a particular kind, along with details of the selection process that would be followed. The claimant was also advised about the expression of interest and selection interview process and the respondent’s Employee Assistance Programme. He was invited to send any queries to Ellen Barten, who was supportive on a number of occasions. Issue 3.2 Did the claimant engage reasonably in the consultation process?

[135]The claimant was advised about the selection interview process in the collective consultation meetings, and he was provided with a job description relating to the interview on 25 May 2021. The claimant did not attend the interview. The claimant explained that this was due to his frame of mind at the time. However, he did not indicate to the respondent when he would be available to attend an interview at the material time, despite the respondent providing him with the timescales for concluding the interview process (which was within two days of the original interview date). We were not satisfied with the explanation in terms of why the claimant did not engage with the respondent in this manner during the redundancy process in the circumstances. We considered the claimant’s contention that the respondent did not specifically elicit further details about the claimant’s state of mind and therefore they could not fully assess this. The claimant was attending work at the time and he was engaging with the respondent by email. The respondent provided the claimant with the Employee Assistance Programme information on more than one occasion. Issue 3.3 Did it consider alternatives to dismissal?

[136]We were satisfied that the respondent considered a number of alternative options to dismissal prior to dismissing the claimant. Ellen Barten provided lists of job vacancies to the claimant and also a link to more general vacancies available within the respondent. The claimant was invited to attend an interview for a project manager role, which he did not attend. During the appeal process he attended an interview in relation to the pre-construction surveyor position, a role which he was ultimately not offered. That was the only vacancy at the time that the claimant had specifically identified and applied for. The claimant was offered support with that application. Issue 3.4 and Issue 4

[137]We considered that the respondent’s use of selection interviews was within the range of reasonable responses and that the claimant was notified of the selection process during the collective redundancy consultation. We were advised that a selection matrix would not have been appropriate as the respondent had not received all the personnel - 26 - documents from Skanska limited, and we were referred to emails relating to documents not being provided by Skanska Limited until late in the process.

[138]The respondent’s representative submits that the method chosen for selection of candidates for redundancy, i.e., individual selection interview, was the most fair and objective method available in the circumstance. For instance, it is submitted it was fairer than use of a selection matrix in this particular post TUPE transfer situation. Furthermore, the respondent’s representative points out that both collective and individual was thoroughly and duly applied and completed well in advance of any notice of dismissal being served or redundancy dismissals made.

[139]We considered the fact that the respondent’s communications were rather poor on a number of occasions (and that several of their communications could be described as average at best). We noted that the respondent used phrases in their communications to the effect that the claimant will be deemed to removed himself from the process (rather than warning the claimant in plain English that the claimant was likely to be dismissed by reason of redundancy). On that basis we considered that the respondent’s communications with the claimant were not as clear as they could have been. However, even with the respondent’s poor communications, we concluded that a reasonable employee would have been able to ascertain what was taking place and to fully engage in the redundancy process.

[140]We also found that the respondent could have been more sympathetic with respect to the claimant’s wellbeing with regards to his nonattendance at the interview on 25 May 2021. The company kept referring to the timeline that they had to follow and the impact on the other individuals involved in the process. We considered whether a short delay would have been reasonable in the circumstances. However, the claimant did not indicate to the respondent when he would be able to attend an interview. Additionally, the respondent were required to complete the interviews to take place within two further days, i.e. by 27 May 2021. The respondent had reasonable and genuine concerns in terms of their contractual responsibilities to their client (Cadent).

[141]The respondent’s representative submits that in those circumstances dismissal was the only appropriate option available to the respondent, and that the respondent did first consider the presence of any other suitable alternative employment available for the claimant, and the claimant failed to apply for those potentially suitable alternative roles which became available.

[142]The email advising the claimant of the outcome of his application for the pre-construction surveyor role was sent a few days before his employment ended and the claimant was not provided with any reasons - 27 - in terms of why his application was not successful. We considered that these were clearly evidence of poor practice on behalf of the respondent.

[143]Having highlighted our considerations and any concerns in respect of the redundancy process, we concluded that the process as a whole was fair and reasonable in terms of section 98(4) of the ERA 1996.

[144]We considered the process as a whole and we concluded that the respondent reasonably selected the claimant for redundancy.

[145]We were satisfied that there was a genuine and fair process followed in relation to the claimant’s dismissal. Accordingly, the respondent’s reason for dismissal (for the reason of redundancy) was a fair reason for dismissing the claimant in terms of section 98(2)(c) and (4) of the ERA 1996. Considering the circumstances (including the size and administrative resources of the respondent) we are satisfied that the respondent acted reasonably in treating it as a sufficient reason for dismissing the claimant and we determined the same in accordance with equity and the substantial merits of the case. The respondent’s decision to dismiss the claimant was within the bands of reasonable responses open to a reasonable employer in the circumstances.

[146]The claimant’s claim for unfair dismissal pursuant to sections 94 and 98 of the ERA 1996 is not well founded and it is hereby dismissed.

Conclusion

[147]The Tribunal was satisfied that there was a fair reason for the claimant’s dismissal namely redundancy.

[148]The Tribunal considered whether the dismissal was fair and reasonable in accordance with Section 98(4) of the ERA 1996 including the size and administrative resources of the employer and found that dismissal was fair and reasonable in all the circumstances. The Claimant was not unfairly dismissed.

[149]The claimant’s complaints are dismissed in their entirety.