Employment Judge CowenMs Rokad counsel for claimantMr Francis counsel for respondentDate 28 October 2022
JUDGMENT
[1]The claimant’s claim for unlawful deduction for wages between 17 April 2020 and 30 October 2020 succeeds.[2]The claimant’s claim for unfair dismissal succeeds.[3]A Polkey deduction is made to the compensatory award which limits the award to four weeks of earnings.
REASONS
[1]By an ET1 dated 9 September 2020, the claimant brought claims for Unfair Dismissal, Breach of Contract, Unlawful deduction from wages and Holiday pay. By the time of the hearing these issues had been narrowed to Unfair dismissal and unlawful deduction of wages.[2]At a Preliminary Hearing the final merits hearing was listed for two days on 16 &17 August 2021. The final merits hearing was heard by CVP. The claimant was represented by Ms Rokad of counsel and Mr Francis of counsel, represented the respondent. We were unable to hear closing submissions in the time available and so both parties agreed that they would prefer to make written submissions, rather than return at a later date. Unfortunately, these submissions did not reach me and therefore there was a delay. The parties provided the submissions once again, before the judgment could be written.[3]In accordance with the directions made at the Preliminary Hearing, the parties provided a bundle of documents and the claimant provided a witness statement for himself. The respondent provided witness statements from Mr Neal Nordstrom, Mr Todd Pickering and Mrs Sally O’Connor. All of them provided oral evidence at the hearing. Mr Pickering and Ms O’Conner were resident in Brisbane, Australia and attended by CVP and provided their evidence. Mr Nordstrom was resident in California, USA and also gave his evidence by CVP. Permission for the respondent’s witnesses to give evidence from overseas was granted at a Preliminary Hearing on 26 May 2021.[4]A list of issues was placed in the bundle by the respondent, but was not agreed by the claimant prior to the hearing. The parties agreed that the hearing should be limited to issues relating to liability and the issue of Polkey reduction if there was an unfair dismissal.[5]The issues before me were therefore;5.1 Unfair Dismissal5.1.1 Was the Claimant dismissed for a potentially ‘fair’ reason? Was redundancy the reason for the Claimant’s dismissal?5.1.2 2. Did the Respondent follow a ‘fair’ procedure in dismissing the Claimant?5.2 Unlawful Deduction from Wages5.2.1 Did the Claimant suffer unauthorised deductions from his wages between April 2020 and October 2020, by way of a reduction in his monthly salary?5.2.2 Did the Claimant agree to a reduction in his monthly salary?
The Facts
[6]The claimant was employed as the President EMEA on 15 May 2014, by the respondent, an international company which supplies inflight entertainment systems to the airline industry. The claimant reported to the CEO, Mr Withers. The company had initially been formed in Australia, but from January 2019 it had been funded by US equity sources.[7]At the start of the Covid-19 pandemic in March 2020 the respondent recognised that the suspension of international air travel would lead to significant financial problems for the whole company, which was already facing difficulty due to the grounding of the Boeing 737 Max fleet worldwide. Discussions were entered into immediately amongst the ExCo, a committee of Vice -Presidents which included David Withers, the CEO and Neal Nordstrom. They considered how the company should respond to the collapse of the airline industry and the effect this would have on their business. Ultimately, they considered redundancy and furlough options in the UK and elsewhere.[8]The respondent’s HR Business Partner Mr Pickering was located in Australia and was attempting to advise various managers in a number of different countries, all of which had different rules and requirements relating to government backed support for employees. Mr Pickering was not aware of the specific requirements of the UK Coronavirus Job Retention Scheme (aka furlough scheme), as he did not research or read the scheme himself. He was unaware that there was a requirement that staff give written agreement to being placed on furlough. Instead, he placed reliance on the claimant as the local manager to inform him of the terms.[9]On 16 March 2020 the ExCo agreed that a number of staff across the whole company would be ‘stood down’. This was a company scheme to try to save costs. There were four different types of stand down – some involved working reduced hours, some which stopped work altogether, others continued their normal hours; all of them involved a reduction in pay.[10]On 17 March 2020 the claimant was sent a letter to say he would be ‘stood down’ from 23 March 2020. He was told that he would not be paid full pay, but would receive 50% pay for two weeks, followed by no pay for two weeks. He would be allowed to take his annual leave for some time. The claimant was asked to provide the same letter to his employee group at the same time. His input was requested in compiling a strategy for the business to respond to the pandemic. He was not asked for his consent to this action. The claimant agreed to a period of unpaid leave and assisted in advising other employees of the same.[11]The claimant continued to be involved in discussion of how the respondent would deal with its staff in the UK and recommended that the respondent use the UK furlough scheme which provided up to £2,500 per month per employee. In mid April the respondent was successful in its application to join the scheme, together with the requirement that those on the scheme should not continue to work. The claimant was informed on 17 April that he was on ‘total standdown so we can access the HMRC’s funding model’. The letter indicated that he should return to duties on 1 June 2020. The letter did not seek the claimant’s agreement to furlough, nor to any deduction from his salary payments.[12]The claimant was paid his full salary in April 2020. This was an error, as the respondent was able to reduce this to the £2,500 maximum of the furlough scheme. The claimant and one other employee were overpaid. On 20 April Mr Pickering said that he would talk to the claimant about the error and ask if he would agree that instead of taking money back from him, they would use his annual leave balance to reverse it instead. There was email correspondence between the claimant and Ms Kruger about the amounts and the deductions. On 23 April 2020 the claimant sent Ms Kruger an email agreeing to deductions being taken from his pay (furlough amount) to recover the overpayment which had been made to him.[13]The claimant was placed on the furlough scheme in April, but continued to be included in email conversations and online meetings about the continued structure of the EMEA team. Mr Pickering did not challenge the claimant over his continued involvement in the management of EMEA, whilst on furlough. Ms O’ Connor’s view was that it was a commonly accepted practice to work whilst on ‘standdown’.[14]In May 2020 the claimant exchanged emails with Mr Pickering about further meetings with all staff to discuss headcount reductions. He was therefore aware that this was being considered at this time. It also showed that the claimant continued to undertake some work tasks, despite being on furlough. On 11 May the claimant wrote to Mr Withers to say that if those in the UK on furlough continued to work, they and the company would be breaching the law.[15]Mr Withers stood down as CEO in May 2020 and Mr Nordstrom took over. Mr Nordstrom reconsidered the future direction of the company and its’ survival. The claimant emailed Mr Nordstrom in May 2020 to indicate his views on the continued situation for the EMEA staff. Whilst the claimant was not a member of ExCo, he now reported to Mr Nordstrom and they met weekly online to discuss issues privately.[16]The claimant spoke with Mr Nordstrom on 15 May via mobile phone and then by Teams on 24 May to discuss the operational needs of the EMEA team. During these conversations they discussed other members of the team and a 50% reduction in costs. There was no conversation with regard to the claimant’s position being potentially redundant. Mr Nordstrom did not take any advice from Mr Pickering or Ms O’Connor with regard to the process of redundancy in the UK.[17]Mr Pickering wrote to the claimant on 2 June indicating that his furlough was to continue to the end of June 2020 and would then be reviewed.[18]On 9 June Mr Nordstrom and the Board took the decision to make the claimant redundant. This was based on Mr Nordstrom’s recommendation. It was considered that there was insufficient work for the claimant to do, as the company focused on delivering the products which were currently on order, rather than on further sales.[19]On 9 June Mr Nordstrom contacted the claimant and asked to speak to him. A meeting took place on 10 June 2020 between them. There are no respondent notes of this meeting.[20]On 11 June Mr Nordstrom asked Ms O’Connor to draft a letter to the claimant outlining his redundancy entitlement and the terms of his departure. He informed Ms O’Conner that the claimant was “in agreement in principal with our proposal”. The email also highlights that the claimant has told Mr Nordstrom that whilst he remains on furlough he should not be working. Mr Nordstrom asks Ms O’Connor to “ limit his time to the mandatory turnover of equipment and information. …. asked that he be available to consult with us regarding the handling of the rest of the team”.[21]There was no list of vacancies within the business at this time, so any possible alternative vacancies were unknown to the claimant. However, any recruitment process was run by either Mr Pickering or Ms O’Connor and therefore they would have details of any existing vacancies, if asked. At the time of the claimant’s redundancy there had been a global freeze on hiring.[22]Mr Nordstrom’s view was that no-one was safe from redundancy and that Gene Connolly was the better person to continue to cover the sales role on a global basis than the claimant. The claimant considered there to be an ‘America first’ policy.[23]On 12 June the claimant told Mr Nordstrom that he had discovered that there had been a confidential email to staff within EMEA indicating that another member of staff was taking over EMEA. This was prior to any announcement or agreement about the claimant leaving the business. Mr Nordstrom apologised to the claimant for this. The claimant’s name was not included in an email sent to members of ExCo in relation to those being made redundant.[24]It was not until later in the day that Ms O’Connor emailed the claimant to tell him how much he would be paid on termination and to indicate he would remain on furlough during his notice period. The claimant replied to Ms O’Connor to ask for his total redundancy entitlement calculation and pension and benefits entitlement. She sent the claimant the answers to his questions by email on 19 June 2020. There was a dispute between the claimant and respondent over his entitlement to accrued holiday pay and other remuneration.[25]On 22 June the claimant appealed against the decision to terminate. He indicated that he considered the selection grounds for redundancy to be unfair and not to have followed a fair process. He also asserted that the retention of contractors was unfair and ignored his suggestion on how to avoid redundancy at all. Up until receipt of this Mr Nordstrom and Ms O’Connor had believed that the claimant was in agreement with the decision to terminate his employment.[26]Ms O’Connor spoke to the claimant on 29 and 30 June with regard to his appeal. She took no notes of the conversation at all. The claimant’s notes indicate that he raised the fact that there had been no consultation with him at all and no attempt to avoid or reduce the number of redundancies. There was no discussion about the number of individuals considered for redundancy, nor the selection criteria used.[27]She erroneously believed that the claimant had accepted his redundancy by his statement on 1 July that he was going to announce to his staff that he was being made redundant. She did not send an outcome letter for this hearing, as she was hospitalised for a short time after this.[28]The respondent announced on 27 July 2020 that the claimant would remain on furlough during his notice period.[29]The claimant’s employment terminated on 30 October 2020.[30]The Law Redundancy Redundancy is defined by s. 139(1) Employment Rights Act 1996 (‘ERA’) as “(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”.[31]For a dismissal to be fair under s.98 ERA, the respondent must establish that the reason for the dismissal was one of the potentially fair reasons under s.98(1). These include redundancy.[32]If the reason for the dismissal is a potentially fair one, then the Tribunal must consider whether, in all the circumstances of the case, the respondent acted reasonably in treating redundancy as a sufficient reason to dismiss the claimant: Williams v Compare Maxam Ltd [1982] IRLR 83, EAT[33]The Tribunal is also obliged to consider under s.98(4) whether a reasonable procedure was applied to the dismissal. This was considered in Polkey v A E Dayton Services Ltd [1987] IRLR 503; where the process was set as;33.1 Warn and consult employees about the proposed redundancy and33.2 Adopt a fair basis on which to select for redundancy, including from an appropriate pool and using selection criteria, and33.3 Consider any available offer of suitable alternative employment within the organisation.[34]The Tribunal must also consider, where there has been a failure to follow a proper procedure, whether a proper procedure would have led to the claimant being dismissed in any event. If so, a reduction can be made to the any compensatory award to reflect such a chance.[35]In doing so, the Tribunal will consider what was actually known by the employer at the time and the views taken by them at the time.[36]Unlawful Deduction from Wages The claimant claims that the respondent has breached s.13 ERA by failure to pay him an amount owed to him, which was not an authorised deduction either by a statutory provision or by his contract, or by him signifying in writing his consent to the making of the deduction.[37]The Tribunal will first consider what amount is ‘properly payable’ by way of reference to the contract and statutory provisions.[38]A contractual variation can be made orally or in writing. However, the respondent may also rely on the claimant continuing to work under the varied contract, to show that the employee has agreed to the contractual variation. See Abrahall v Nottingham City Council [2018] IRLR 628.[39]A number of cases have been heard on the impact of the Coronavirus Job Retention Scheme (‘furlough’) on the law of variation of contractual terms. These include the ET case of Docherty v CCRS Brokers Ltd and Re Carluccio’s Ltd [2020] IRLR 510, EAT.[40]In order for a variation to be implied, the Tribunal must be satisfied that the inference is unequivocal and therefore must take into account the circumstances of the case.[41]The claimant was not expressly asked by the respondent to agree to being placed on ‘standdown’, nor to be placed on the furlough scheme. The documentary evidence sent to employees does not highlight that they have the choice not to agree with these proposals.[42]In relation to the standdown notification in March/April 2020– the claimant was told that he would not be paid as per his contract entitlement. Whilst he was part of the management of the respondent who were formulating and enacting the standdown terms, he was also an employee who was entitled to the same requirements to legally vary his contract. However, the claimant clearly understood and acknowledged the notification of standdown, in his email of 19 March, saying he was “OK without changes” after which he continued to work. This amounts to acceptance of the changes which were proposed by the respondent.[43]The claimant was paid his full pay in March 2020, but by April 2020 when the furlough scheme started, the company sought to recover what they considered to be an overpayment. They did discuss this with the claimant and there is evidence of an agreement as to how the money would be recouped.[44]The claimant indicated that he would be willing to have reduced payments for the following two months in order to balance the overpayment. This was an agreement made between the claimant and the respondent. There was therefore no unlawful deduction from wages, as the claimant agreed to this variation by consenting to the overpayment being recouped. Had the claimant not been in agreement with the variation he would have shown opposition at that point, but did not do so. The deductions made up to 17 April 2020 were not unlawful.[45]In relation to the furlough scheme - Mr Pickering did not research or become familiar with the terms of the UK furlough scheme. The Tribunal recognised that there was a lot of emergency work going on at that time and that Ms O’Connor was stood down from her employment for a period of 4 weeks and then returned on very limited hours, so was not readily available to him for management or support.[46]However, given that Mr Pickering was engaging with a statutory scheme and was applying for the respondent to receive funding from the UK government, he ought to have taken the time to ensure that the terms of the UK furlough scheme were followed by the respondent. He could have taken legal advice, but did not do so. He ought to have been aware that the respondent was required to ask individuals for their agreement to be placed on furlough and their acquiescence to a reduction in salary payments.[47]The limit in relation to furlough pay represented a significant reduction in income for the claimant and was to be for longer than the 4 week standdown proposal by the respondent. The respondent ought to have taken time to ensure that the claimant understood that this would amount to a substantial variation to his contract. There is no evidence to suggest that the respondent sought to clarify the claimant’s personal agreement to this scheme.[48]The fact that the claimant had outlined the scheme to Mr Pickering is not of itself evidence of his agreement to be placed on the scheme himself. I recognise that the claimant’s actions as a manager are not necessarily the same as his actions on his own behalf.[49]Furthermore, the claimant indicated to the respondent on more than one occasion that if he were placed on furlough then he ought not to be undertaking any work. This aspect of the furlough scheme was disregarded by the respondent who expected him to continue to engage with emails and calls. This alert by the claimant amounts to an indication that he does not agree with the actions of the respondent.[50]Whilst the claimant continued to work on behalf of the respondent, he had made it clear that he did not agree with the respondent’s actions under the furlough scheme. This did not amount to acquiescence to the variation. The lack of request by the respondent for the claimant to agree to being placed on furlough and the continued expectation that he work, indicate that the terms of the furlough scheme were not adhered to. There was not therefore an intention by both parties to vary the contract to align with the terms of the furlough scheme. A variation in line with the furlough scheme, including a deduction from the claimant’s contractual pay cannot be inferred from his actions.[51]The payment of the claimant between 17 April 2020 and his dismissal amount to a series of payments which were an unlawful deduction of his salary.[52]Unfair Dismissal The respondent had faced a downturn in work prior to the Covid pandemic as a result of the grounding of the Boeing fleet. This made a significant impact on the finances of the respondent. They were already looking to make cutbacks and costs savings as a result of this, when the Covid pandemic hit in March 2020. The pandemic meant that most worldwide airlines stopped flying/reduced their flights and therefore reduced the need for new equipment and maintenance of inflight entertainment systems.[53]The respondent therefore faced a significant decline in its business and as the pandemic developed the length of the impact became more uncertain.[54]The company sought to make significant cutbacks, asking the claimant and other regional Presidents to consider 50% reductions in costs.[55]The definition of redundancy in the Employment Rights Act includes a reduction in the requirement for employees to carry out work of a particular kind. In this case, the requirement to have three regional Presidents ceased and the company decided to reduce that requirement in order to save costs.[56]It is not for the Tribunal to go behind the business decisions of the company. The Tribunal can only consider whether those in the company who made the decision to reduce the number of employees required, did so on genuine grounds. Given the situation being faced by the respondent at this time and the industry uncertainty, their decision to reduce costs was a genuine decision. The reason for dismissal as redundancy was therefore potentially a fair reason.[57]The claimant was informed that he had been selected for redundancy on 9 June 2020 by Mr Nordstrom. This was the first time he had been informed of the respondent considering making his dismissal. There had been no consultation at all as to possible redundancy. This amounts to a complete failure to abide by the procedure set out by ACAS and by the case authorities.[58]In a call on 10 June Mr Nordstrom and the claimant discussed his departure. No notes of this call were made, other than by the claimant. No justification or reasoning as to the selection of the claimant was given on that day, or after. No selection criteria, or scoring was referred to. Once again, this is a breach of a fair procedure.[59]The respondent’s pleaded case that the claimant was in a pool of one is not supported by the respondent’s own evidence which lacks any consideration of a pool or selection criteria. There were three geographical areas each with a Presidential role. It is arguable therefore that the Presidents of the other two areas ought to have been placed in the pool with the claimant and a skills based selection criteria applied to each of them to select a Global Head of Sales.[60]There is no evidence that alternative employment was considered or offered to the claimant to avoid dismissal.[61]I have also considered the appeal hearing which gave the claimant an opportunity to seek clarification and raise the points on which he objected to his dismissal. No outcome to this appeal was sent to the claimant in writing.[62]The respondent entirely failed to provide the claimant with a fair procedure. He had no opportunity prior to the decision making to influence the outcome and whilst he was given an appeal, the chance of him persuading the company to recant its decision was not realistic. The dismissal of the claimant was therefore unfair.[63]Polkey I am obliged to consider whether there ought to be a reduction to the claimant’s compensatory award due to the principals applied in Polkey. Had a fair procedure been applied to this redundancy process, would it have made a difference to the outcome and if so, by how much.[64]I have accepted the respondent’s submission that this was a genuine redundancy situation. The respondent was in a very difficult financial position in June 2020 with uncertainty over the length of time it would take to return to normal business conditions.[65]Had the claimant been consulted over the redundancy I do not believe that it would have ultimately made a difference as Mr Nordstrom would have chosen to retain Mr Connolly over the claimant in any event. There were no alternative vacancies suitable for the claimant and nothing he raised would have changed the financial position of the company at that time.[66]I do find that had the claimant been given the courtesy of a full period of consultation, he would have remained in the employment of the respondent for a further 4 weeks.[67]Conclusion Having made the decisions above, the parties are asked to consider whether they might be able to agree the level of compensation to be paid to the claimant.[68]If the parties are unable to agree then they should notify the Tribunal by 28 February 2022 and the case will be listed for a remedy hearing with a time estimate of 1 day.
The Facts
[1]The Respondent shall pay the Claimant £29,670.48 in respect of unlawful deduction of wages.[2]The Respondent shall pay the Claimant £9,480.64 in respect of unfair dismissal.[3]The Claimant’s application for reconsideration is dismissed.
Background
[4]A Judgment in favour of the Claimant in his claims for unlawful deduction of wages and unfair dismissal was made on 7 February 2022. The Claimant applied for reconsideration of that judgment in an application dated 20 February 2022 and received on 1 March 2022.[5]Directions were given for the Respondent to reply to the reconsideration application and for a 1 day hearing for reconsideration and remedy to be listed.[6]A hearing in relation to reconsideration and remedy was held by CVP on 4 July 2022 where both parties were represented. Submissions were made by both counsel and an amended Schedule of Loss was provided.[7]The Judgment of 7 February 2022 outlined that between 17 April 2020 and the Claimant’s dismissal on 30 October 2020, the Claimant was subject to an unlawful deduction of wages. It also decided that the Claimant was unfairly dismissed, but that his employment would only have continued for a further four weeks if a fair process had been applied. His damages were therefore limited to four weeks. Submissions Unlawful Deductions[8]The Claimant asserted that it was necessary in the interests of justice for me to reconsider my decision in respect of two aspects of the claim. This was necessary as the Judgment had not reflected the evidence provided by the parties.[9]The first point was that the Claimant was entitled to 25% of his salary between 23 March and 17 April 2020, due to the fact that when they commenced the furlough scheme, the Respondent backdated their application to 23 March.[10]The Claimant also submitted that the Claimant is entitled to 19 days pay between 23 March 2020 and 17 April 2020 at £70.58 per day in addition to the payment for unlawful deduction which was made in the Judgment.[11]The Respondent submitted that the Claimant’s application in relation to the unlawful deduction was misconceived as the agreement in relation to ‘standdown’ was not a simple 50% reduction, but was 50% for two weeks, followed by no pay for two weeks. Further that there was an agreement to recoup the overpayment made in March 2020 from the April and May 2020 payments. The Respondent asserted that a reconsideration was therefore not necessary in the interests of justice. Polkey deduction[12]The Claimant asserted that the decision in paragraphs 63-66 of my Judgment were wrong and should be reconsidered. The Claimant asserted that I ought to have considered whether the Respondent could fairly have dismissed the Claimant and what the chances of that were.[13]He asserted that it was wrong for me to conclude that it would have taken four weeks to have completed a fair procedure, due to the evidence which was before me. Namely, the fact that Mr Nordstrum would have had to take the matter to the Board and that there may have been other factors which would have contributed to the decision on whether to dismiss. The Claimant asserted that without further evidence I could not make a decision on this point.[14]The Claimant also submitted that without further evidence I could not assess why Mr Nordstrum would have preferred Mr Connolly in any event, and further, that the finding that there ought to have been a pool of three Presidents for the position of Global Head of Sales means that I could not say with any certainty that the Claimant would have been chosen for redundancy.[15]The Claimant also asserted that the Respondent did not lead evidence on alternative roles, which means I could not conclude that there were not alternative suitable vacancies.[16]The Respondent asserted that the Claimant’s application are matters for appeal not reconsideraton, but goes on to address them in any event. They asserted that I have summarised the law correctly in paragraph 63 of the Judgment and set out my reasoning in paragraphs 63-66. They also said that an assessment of Polkey involves an element of education speculation about what would have happened in a counterfactual world.[17]The Respondent further submitted that it was acceptable to conclude that, as the Board had followed Mr Nordstrum’s decision, in the counterfactual world they would also do so. Ultimately the Respondent submitted that if the Claimant wishes to challenge the Judgment, then he may do so by appeal.[18]The Respondent pointed out that paragraph 22 of the Judgment gives the reasons which the Claimant says are missing and therefore there is no ground for reconsideration on this point.[19]The Respondent pointed out that the arithmetic approach to Polkey decisions is not appropriate and that I may use discretion to determine the chances of being chosen for redundancy and the time taken to go through the procedure.[20]Finally the Respondent pointed to the factual finding that there were no alternative vacancies and the fact that this had been part of the Respondent’s witness evidence at the hearing.
Remedy
[21]The parties accepted that the Tribunal will be require to carry out the calculation of the award as the parties have not yet been able to agree the value of the quantum.
The Law
[22]Rule 70 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 states that a Judgment may be reconsidered upon application by either party or by the Tribunal’s own volition where it is necessary in the interests of justice. As with all rules in the tribunal, it must be exercised within the bounds of the overriding objective.[23]The case of Outasight VB Ltd v Brown UKEAT/0253/14 sets out HHJ Eady views that the interests of justice is a discretionary ground, which is wide. However it is not boundless.[24]The reasons for a reconsideration do not include where there has been an error on the part of a representative, but may include where new evidence has come to light since the hearing, or the parties and the employment judge had a misunderstanding of the law.[25]Such grounds are in contrast to the basis of an appeal to the Employment Appeal Tribunal, where the party making the appeal considers that the Employment Judge made an error of law, or came to a conclusion which no reasonable Tribunal could have reached, based on the evidence before it.[26]With regard to the law on unlawful deductions, I refer to paragraphs 26 to 40 of the 7 February 2022 Judgement.[27]With regard to the law on Polkey I refer to paragraph 63 of my earlier Judgment and the case of Polkey v A E Dayton Services Ltd [1987] IRLR 503 where it was specifically said that compensation can be awarded for the period of time in which the employee would be employed if the procedure had been fair.[28]A further example of compensation being limited in these circumstances was set out in Mining Supplies (Longwall) Ltd v Baker [1988] IRLR 417, [1988] ICR 676, where a dismissal was held to be unfair for lack of consultation and the EAT held that had a week was a reasonable period for consultation. Compensation was therefore limited to that period.[29]It is open to me to reconsider any part of my Judgment if it would be in the interests of justice to do so, under rule 70.[30]The Judgment of 7 February 2020 set out at paragraph 10 that; “On 17 March 2020 the claimant was sent a letter to say he would be ‘stood down’ from 23 March 2020. He was told that he would not be paid full pay, but would receive 50% pay for two weeks, followed by no pay for two weeks. He would be allowed to take his annual leave for some time...... The Claimant agreed to a period of unpaid leave and assisted in advising other employees of the same”.[31]I therefore found in the Judgment that prior to the instigation of the furlough scheme (which I found was not validly agreed with the Claimant and led to an unlawful deduction of wages), the Claimant had agreed with the Respondent to be paid 50% for two weeks and then 0% for two weeks. Over the period of four weeks, this is the same as being paid 25% in each week.[32]I did not, as the Claimant asserts, find that he agreed to a standdown at 50% between 23 March 2020 and 17 April 2020. The Claimant’s application fails to take into account the Judgment at paragraph 10.[33]The Claimant’s application that there was an underpayment during this period does not take account of the factual findings of the Judgment which set out the basis for the overall conclusion. The application for reconsideration is made on an erroneous basis and no additional amount is owed. If I did not make it sufficiently clear in my Judgment, then I do so now; The amount paid to the Claimant prior to 17 April 2020 was correct and in accordance with the agreement reached between the parties to vary his payment due to a contractual ‘stand down’. Thereafter, the Respondent asserted that the Claimant was paid in accordance with the UK Government furlough scheme. In my Judgment this was an unlawful deduction from wages, as he had not agreed in writing to enter into the scheme, as was required. I therefore do not allow reconsideration of this aspect of my Judgment on this point and confirm my Judgment of 7 February 2022. Polkey reduction[34]It is in the interests of justice to ensure that the parties understand the basis of any Judgement of the Tribunal. Where that is questioned by either of the parties, it is appropriate to explain further, or amend, if appropriate. I am therefore content to consider the issue of the Claimant’s application.[35]My decision that the Claimant would have been dismissed in any event after four weeks, did not expressly state that the dismissal would have been fair. The Judgment did say in paragraph 63 “Had a fair procedure been applied to this redundancy process”. I accept that this did not spell out my consideration that it was possible for a fair dismissal to have occurred and therefore I take the opportunity now to do so, having considered the points made by the Claimant and the evidence referred to at the hearing.[36]The Respondent’s evidence indicated that they had the benefit of a specialist HR department, albeit not based in the UK and specialist lawyers. It therefore was possible for them to have known and followed a redundancy consultation process which followed the statutory requirement and ACAS guidance.[37]The evidence also showed that the Claimant was available to be consulted with, as he was in communication with his employer throughout the furlough period.[38]Given that Mr Nordstrum had taken his views to the Board, who had supported them in relation to the actual dismissal, I have no reason to believe that he would not have acted in a similar manner in the ‘counterfactual’ world referred to by the Respondent, where Polkey is considered. Likewise, I have no reason to believe that the Board would not have supported his view of any pool for redundancy.[39]It is clear from the evidence of both parties that the financial situation for the Respondent was genuine and very difficult, with no known end date. I am therefore satisfied that a redundancy process which included the Claimant and the two other Presidents of Sales at that time, would have resulted in a dismissal.[40]In considering whether the Claimant would have been chosen had a pool selection occurred, I accept that I did not have details of the other members of the pool. Evidence was not provided by either party. The evidence before me from Mr Nordstrum indicated that his preference was for Mr Connolly to take on the Global role over the Claimant (see paragraph 22 Judgment). I understood that a direct choice had been made by Mr Nordstrum as an informed CEO. Whether this is considered as a pool, or merely a direct choice, the evidence suggest that the outcome would have remained that Mr Connolly would be chosen over the Claimant. I therefore concluded, based on the evidence I was provided, that the Claimant would have been chosen for redundancy, even if a pool and a fair procedure had been applied. I see nothing in the Claimant’s submission to make me consider that this decision was erroneous.[41]Finally in response to the Claimant’s submission that in the absence of evidence of the Claimant turning down alternative roles, I could not find that he would not have avoided redundancy by accepting a lower paid role. The Claimant once again has omitted to make reference to my finding of fact that there was “no alternative vacancies suitable for the Claimant” (paragraph 65 Judgment). This was based on the evidence of Ms O’Connor and is set out at paragraph 21; “There was no list of vacancies within the business at the time, so any possible alternative vacancies were unknown to the Claimant. However, any recruitment process was run by either Mr Pickering or Ms O’Connor and therefore they would have details of any existing vacancies, if asked. At the time of the Claimant’s redundancy there had been a global freeze on hiring “.[42]I find, based on this evidence that there were no suitable vacancies at the time of the Claimant’s dismissal and therefore he would not have been able to avoid redundancy by accepting an alternative role.[43]For these reasons the Claimant’s application for reconsideration in relation to the issue of Polkey is dismissed and I confirm my Judgment of 7 February 2022. Compensation[44]In light of my Judgment dated 7 February 2022 and this Judgment, the Respondent must pay the Claimant the difference between the amount he was paid between 17 April 2020 and 31 October 2020 and his full salary, in compensation for his unlawful deduction of wages. £1059.66 x 28 = £29,670.48[45]Further, the Respondent must pay the Claimant a basic award reflecting 6 x 1.5 x £538 = £4,842.00[46]A compensatory award limited to 4 weeks of the difference between £1413.43 and the received amount of £353.77, i.e 4 x £1059.66 = £4,238.64[47]A further award in relation to loss of statutory rights in the sum of £400.
The Law
[1]The Respondent applied for a reconsideration in an application dated 8 November 2022. Unfortunately, this did not come to my attention until 15 March 2023, when it became apparent that there was correspondence which I had not seen at the time it arrived.[2]In response to that application, the Claimant also made an application for reconsideration, dated 16 November 2022. This was brought to my attention in December 2022.[3]I am not aware that the Tribunal has received any response from the Respondent in respect of the Claimant’s application.[4]I would like to apologise to both parties for the delay and any confusion which has arisen and will respond to both applications in this judgment. General[5]The Claimant asserts that submissions in relation to remedy were not made by either party at the hearing in July 2022. Both parties were aware that the matter was listed for the purposes of both remedy and reconsideration at that time. Skeleton arguments on behalf of both parties were received by the Tribunal which referred to and addressed issues of remedy. The Claimant’s schedule of loss was also referred to. I am therefore satisfied that both parties had knowledge of the purpose of the hearing and the opportunity to orally address any issues which they considered appropriate.[6]I note that neither party is applying for a further hearing on the issue of remedy generally and therefore do not consider that the judgment on remedy requires to be reconsidered generally. Respondent’s application[7]The Respondent’s application sets out that a basic award was made in the Judgment of 3 November 2022 in the sum of £4,842. It is asserted by the Respondent that under s.122(4)(b) ERA, that the amount of the statutory redundancy pay made to the Claimant should be set off against this sum.[8]The Claimant is aware of this application. His representative wrote to the Tribunal on 16 November 2022 making reference to the Respondent’s application, but not making any submission either to support or object to it.[9]I therefore consider that both parties have had ample opportunity to express their views on the Respondent’s application and I am able to decide this matter without recourse to a further oral hearing.[10]It is correct to say that s. 122(4) (b) states that:- (4)The amount of the basic award shall be reduced or further reduced by the amount of— (a)any redundancy payment awarded by the tribunal under Part XI in respect of the same dismissal, or (b)any payment made by the employer to the employee on the ground that the dismissal was by reason of redundancy (whether in pursuance of Part XI or otherwise).[11]On the basis that the basic award was made in respect of a dismissal for redundancy and that the Claimant does not dispute that a redundancy payment was made to this amount, it is correct to say that this amount ought to have been set off under the statutory provisions. I can see no objection by the Claimant to suggest that this would be inappropriate and therefore I will amend the sum award to deduct the £4,842. Claimant’s application[12]I note that the Claimant’s application was received by the Tribunal on 16 November 2022. It refers to the fact that it has been served on the Respondent’s representative. I am informed that no response from the Respondent has been received by the Tribunal. I therefore consider it appropriate to proceed to consider that Claimant’s application as follows:-[13]I have referred once again to the evidence and submissions placed before me at the hearing on 4 July 2022. I note that the Claimant’s application for reconsideration on that occasion was supplemented by counsel’s written submission, as well as her oral submissions. At paragraph 2.8 of her skeleton argument counsel refers to net figures and not gross figures, as now asserted. These were the figures which the Claimant placed before me and which were accepted. I appreciate and understand that the Claimant now realises that this was erroneous and that an application to reconsider has been made.[14]The Judgment of 3 November 2022 followed on from the finding of unlawful deduction of wages and held that the Claimant ought to have been paid his full salary for the period between 17 April 2020 and 31 October 2020, a period of 28 weeks.[15]I note that under s.62 ITEPA 2003 the sums will be taxable.[16]With reference to the payslips (B001) and the Claimant’s Schedule of Loss (A036) I note that the Claimant’s full weekly gross salary (not including car allowance) was £2,431.35. The amount payable under the furlough scheme was £2500 gross per month (£576.92 per week, not including car allowance). This amounts to a loss of £1,854.43 gross per week.[17]As I set out at paragraphs 31 to 33 of my Judgment (3 November 2022), the Claimant did not suffer any unlawful deduction of wages prior to 17 April 2020. Hence any recoupment by the Respondent of any overpayment during that period can be ignored for the purposes of calculating the amount due to the Claimant. The only compensation I have awarded reflects the fact that the Claimant did not agree to being placed on furlough and therefore he ought to have been paid full pay, not furlough pay during that period.[18]Equally, the calculation does not take account of the ongoing car allowance which was paid to the Claimant, as this was not an unlawful deduction. I therefore do not agree with the calculations made by the Claimant in the application, although I accept that an award of gross is required.[19]I have considered B003 to B009 and note that the Claimant was paid £2500 each month gross. The calculation is therefore a loss of £1,854.43 per week (see paragraph 16 above) x 28 weeks. A total award of £51,924.04.[20]In respect of the compensatory award. The Claimant seeks to challenge the use of the figure £353.77. This figure was the amount set out by the Claimant in their Schedule of Loss (A036) and no alteration was made to this during the course of the hearing in July 2022.[21]Upon undertaking the calculation myself, it would appear correct to say that the sum of the payslips between 25/4/20 and 25/10/20 (B03 to B09) is £9488.75. This is pay for a period of 28 weeks; an average of £338.88. This includes the payment of car allowance. The net full pay set out on B001 is £1,413.33.[23]The net loss is therefore £1,074.55 per week. I awarded a loss for 4 weeks, hence a total of £4,298.20 is the appropriate total.[24]In conclusion, I vary my judgment of 3 November 2022 to the following:-a. Unlawful deduction of wages £51,924.04b. Basic award £4,842 Less statutory redundancy payment made (£4842)c. Compensatory award £4,298.20d. Loss of statutory rights £400