Dr J Fraser v The Parochial Church Council of St Mary and St Peter, Staines and Reverend J Samadi: 3313145/2020
EMPLOYMENT TRIBUNALS
Case No 3313145/2020
Between
Dr J FraserClaimantThe Parochial Church Council of St Mary and St Peter, Staines and Reverend J SamadiRespondent
Before
Employment Judge George
Members
Mr L Hoey Mr A KapurMr A Gloag (instructed by counsel) for claimantMr H Menan (instructed by counsel) for respondentDate 27 November 2024
JUDGMENT
[1]The complaints of sex and race discrimination are not well founded and are dismissed.[2]The claimant was unfairly dismissed.[3]Had a fair process taken place there is a 40 percent chance that the claimant would have been dismissed by reason of redundancy. It is just and equitable that a 40 percent deduction be made from compensation to take account of that chance.[4]The remaining issues will be determined at a remedy hearing on 20 January 2024. Separate case management orders are made.
REASONS
[1]In this hearing we have had the benefit of a joint bundle of documents that had a number of additions made to it through the course of the hearing. It is divided into three sections, Volume A, B and C. At the outset there were some 890 odd pages in the total hearing file, but the page numbering restarts from 1 when the volumes start. The expansions were to Volume C and by the end of day 5 that ran up to page 390. In these reasons we refer to page numbers as page A1, 2 … or as the case may be; page B1, 2… or as the case may be and page C1, 2… or as the case may be. However, the claimant and her supporting witnesses also produced exhibits to their witness statements and sometimes it has been easier to find a relevant document in those exhibits and the reasons will make clear where that is the case. Those exhibits are referred to by the initials they bear so the pages in the claimant’s exhibit are JARF page 1, 2.. or as the case may be.[2]The claimant gave evidence in support of her claims, and she had four supporting witnesses; her husband, Mr J E Fraser, Mrs S E Hobart, Mrs G R Forster. There was also a written statement from Mr C D Salkfield, who was not present because of health reasons, and we were asked to take his statement into account and give it such weight as we felt appropriate in all the circumstances.[3]The respondents called four witnesses; the second respondent, The Reverend Samadi, gave evidence and we also heard from three members of the PCC; Mrs R Payne, the Treasurer, Ms A Leach, who is one of the Church Wardens, and Mrs L Moulton, who is the Lay Vice Chair.[4]The evidence was concluded by the end of Wednesday of last week and the parties exchanged written submissions and we heard short oral submissions in response yesterday.[5]The claim arises out of the claimant’s employment jointly by the two respondents as a Director of Music at the Parish Churches of St Mary and St Peter, Staines.[6]Her continuous employment started on 28 November 2010. The contract of employment at page B1 incorrectly states her continuous employment to be from 12 January 2012. It has been accepted by the respondent in the grounds of response to be 28 November 2010 and there is an addendum at B9 that makes that clear.[7]Her employment ended on 20 June 2020 and the respondents state that she was dismissed by reason of redundancy. Following a period of consultation that took place between 20 August 2020 and 4 October 2020, the claimant presented a complaint to the Employment Tribunal on 1 November of the same year complaining of unfair dismissal, sex discrimination and race discrimination.[8]She initially brought the claim against the PCC alone but successfully applied in September 2021 to join the Reverend Samadi as a joint respondent. She provided Further and Better Particulars of her Claim as directed at the preliminary hearing on 8 September 2021.
The Issues
[9]The issues for the tribunal to decide are those set out in the agreed list of issues at page A64. It was confirmed by the representatives that the schedule of alleged acts of discrimination were not relied on as free-standing allegations but as relevant background. The only complaint of direct discrimination is based on the act of dismissal which is relied on both as an allegation of race discrimination and an allegation of sex discrimination. The claimant set out in paras.12(1) to (12) of her further particulars of claim details of certain historic or background matters. The question for us is what the facts of those historic incidents were and whether inferences might be drawn from them about the basis for the dismissal. It was confirmed in the further and better particulars at page A39 and orally in the hearing that the historic matters were relied on as background only and not as core allegations which is it necessary for us to decide in order to resolve the dispute between the parties.[10]Race in this case is national origins because the claimant is originally from United States of America.
Findings of fact
[11]We make our findings of fact on the balance of probability taking into account all of the evidence both documentary and oral which was admitted at the hearing. We do not set out in this judgment all of the evidence which we heard but only our principal findings of fact, those necessary to enable us to reach conclusions on the remaining issues. Where it was necessary to resolve conflicting factual accounts we have done so by making a judgment about the credibility or otherwise of the witnesses based upon their overall consistency and the consistency of accounts given on different occasions when set against contemporaneous documents where those exist. In particular, we are only making findings in relation to the background matters where it is necessary to do so. It is not necessary for us to make findings about the majority of those allegations.[12]One other matter of background that we should mention is that Mr Fraser, the claimant’s husband, was between late 2012 and about October 2014 treasurer of the parish. At that time that was the Parish of Staines, which comprised three churches, the two churches that comprised the parish of the first respondent and also Christchurch.[13]We turn to the events of January 2016 first of all. The claimant explained that she had a meeting about then with the then incumbent. It is alleged in Mr Gloag’s closing submissions, paragraph 12, that in this meeting pressure was put on the claimant to leave her post and that an inference of sex and nationality discrimination can be drawn.[14]The claimant produced a manuscript note that is at Exhibit JARF page 9. We read the note in full, and we compare it with the email of 21 January, at page C14, which appears to be a report by the incumbent to the PCC on that meeting. It is apparent that there was an attempt by the minister in the 19 January 2016 meeting to negotiate lower fees to pay the claimant for weddings and funerals. In the context of that discussion, alleged comments that the claimant has recorded such as “The writing is on the wall” and “Where someone like [the claimant] would look for another job, London?” appear to us to be part of the negotiation. An alternative reason for the comments other than sex or nationality was apparent on the claimant’s own evidence and the contemporaneous email. In that email the incumbent quotes the claimant’s own email to him where she relied on her standing as a professional musician with advanced qualification and long experience as justification for the fees she charges, saying “I expect to be paid as such”.[15]We have no doubt that her skills justify the fee that she was paid at that time. However, the minister comments to the PCC that he and the claimant had agreed a short-term freeze on fees and that he had told her that he was not sure that the parish could afford, or wanted, a professional musician of that calibre. This puts an entirely different slant on the words than that suggested by Mr Gloag. There is nothing on the face of the email from which to infer that the incumbent was influenced by considerations of sex or nationality in making comments which were about the cost to the parish of paying for the claimant. We can see that the claimant has been hurt by what she takes as a slight on her professionalism, but we do not read the email in that way. We read it as expressing concern to the PCC about affordability not about whether the level of fees is justified in themselves.[16]We do not need to make findings about whether, as alleged by Mrs Moulton, that incumbent was brusque with everyone. He moved to Christchurch probably in late 2018 but certainly before the central events of the redundancy. There is no suggestion that he influenced the decision making of the Standing Committee or the PCC of the Parish of St Mary and St Peter when they made their respective decisions. His historic behaviour, whatever it may have been, is not relevant to the discrimination claim based on dismissal.[17]The claimant relies upon a number of incidents most of which do not allege that anything was said or done which is expressly linked to sex or nationality. The other matters that the claimant alleges are the Madarassy “something more” in the sex discrimination claim (see para.89 below) is that the previous post holders were all male and she was the first female director of music. There is no direct evidence that in a similar situation a comparable person was or would be treated more favorably and no overtly discriminatory conduct to draw an inference from. The claimant’s knowledge of the employment history of her predecessors is negligible and she does not give evidence of comparable situations in which they were treated differently to her. Rather she says that she did not know that they received treatment which they regarded as slighting or undermining their professionalism. This assertion of the absence of ill treatment is not evidence of more favourable treatment in a comparable situation. We do not need to address each allegation explicitly but focus on a few.[18]The claimant alleges that she was excluded from organisation and involvement in the “Proms” concerts. In the claimant’s submissions and her paragraph 5, this was said to be from 2013 onwards. However, Mrs Hobart (the claimant’s witness) and her husband organised the concerts before 2015. When Mrs Moulton was asked about this, and it was suggested to her that each year another British male organist was hired she said that was not the correct way of expressing it, “the same British male organist who had been there from the beginning” she said was a better way of explaining the situation.[19]Paragraph 2 of he claimant’s contract, which at page 5, sets out the key tasks of her role and that does not expressly cover organization or playing at concerts. Dr Fraser gave oral evidence that concerts were part of her role or became so. There is evidence that she did organize one and was asked to do so by Mrs Moulton as we see later in the chronology. However, in relation to the “Proms” concert, she clearly could not be required as an employee to perform or organise it within her base salary.[20]There is some common memberships of the PCC and the Organising Committee. The fund raiser concert is part of fundraising for the organ fund. However, we do not think that the claimant (if she was excluded at all which we do not accept) was being excluded from something which was a core part of her duties. We note emails at page C4 where the claimant is asked what her fee would be for carrying out particular tasks at the 2015 concert. We do not think this is something that is really fair to describe as her being excluded. Page C5 shows that a fee was negotiated for that work and the claimant’s response was “Fine with me”. So it seems to us that participation to this event was by invitation; the committee decided the programme and had to no doubt balance the cost of putting on the programme with their aim of raising funds for the organ. There is no reason to think that they did not decide the programme for the visiting organist who came year after year.[21]The claimant’s statement at her paragraph 5 alleges that she was often restricted to American music. In fact, the email at C4 is an example where she was asked to direct British music. It appears that the only direct connection with nationality is that her allegation that there were comments made in poor taste about whether she would be willing to play British patriotic music because she is American. We do not know who is said to have said that but no direct link to the dismissal made out. We think that these incidents are not matters from which inferences can be drawn about the reasons for the subsequent decisions of the PCC.[22]The then incumbent was mildly critical of the claimant’s organisation of a fundraising concert, and she complained that she was upset by that in an exchange of emails in Exhibit JARF pages 13 to 17. In our view there is nothing in the wording from which to infer that sex or nationality had anything to do with the incumbent’s criticisms which seemed to be directed towards what he saw as insufficient time to organise the planned event.[23]In paragraph 15 of the claimant’s witness statement, she alleges that a comment was made by Father Jenner that “If you want to hear good singing don’t go to church”. This may well have caused offence but even on the claimant’s account it appears not to have been directed at the choir let alone at the claimant personally. It may be an example of an event which caused the claimant to feel unappreciated but does not support an inference of discrimination on a specific protected ground.[24]With effect from 1 August 2018, the Parish of Staines ceased to exist, and two new parishes were created: the Parish of Christchurch, Staines and the Parish of St Mary and St Peter, Staines. The previous incumbent moved to Christchurch by approximately the end of the year and the first respondent entered a vacancy where there was no minister.[25]At around this time the pattern of Sunday services at St Peters was a 9.30 am Eucharist service with a robed choir and 11.00 am service following a model of worship called Heaven @ 11. There were, broadly speaking, two congregations for Sunday services and also some individuals, like Mrs Moulton, who attended each of the services from time to time. The claimant did not plan the music which supported worship at the 11.00 am service. There was also a Sunday morning service at St Marys for which Dr Fraser played the organ. There were, no doubt, other midweek services with which Dr Fraser was not involved but she organized choir practice and ran a hand bell group.[26]There was a parish meeting of the new parish on 18 October 2018 at which trustees and officers of the first respondent were appointed. Mrs Moulton became Lay Vice Chair of the PCC. Mrs Payne joined the PCC and therefore became a trustee at this point. The claimant’s contract of employment transferred by TUPE transfer to the new parish . Anna Leach became the Church Warden from the St Mary’s congregation in about 2018. There are a total of three Church Wardens of the first respondent.[27]Mrs Moulton held a series of meetings from November 2018 to Febraury 2019 with the then paid consultant treasurer and also with Mr Fraser, in his capacity as previous treasurer. She met with the claimant as part of her drive to understand the organisation and finances of the new parish as indeed was the purposes of her meetings with the consultant treasurer and with Mr Fraser. The reason why she spoke to the claimant in particular was that there were inconsistencies and errors in the ways that expenses were allocated between the Music Fund (comprised of the accumulation of choir fees for weddings and so on) and the general fund. The claimant met with Mrs Moulton for that reason on 15 December 2018 and again on 18 February 2019.[28]With effect on 31 January 2019, the paid consultant treasurer’s services were dispensed with and at some point after that Mrs Payne became the Treasurer of the Parish.[29]We do not need to resolve whether it was only at the meeting of 18 February 2019, as said by Mrs Moulton, that she told the claimant that she was overpaid or whether, as the claimant alleges, that was also said at 15 December 2018 meeting. Certainly, by no later than the meeting with Mr Blackwell in January 2019 approximately, Mrs Moulton had received information that caused her to think that the claimant was paid more than was reasonable. Mrs Moulton now accepts that at all times the claimant was paid in accordance with the RSCM Guideline rates.[30]There was a further meeting between the claimant and Mrs Moulton on 8 October 2019 in a garden center. The question of the claimant’s salary was raised again, and she informed Mrs Moulton that she was paid in accordance with those RSCM rates.[31]The claimant complains that she continued to be excluded, in particular from planning a joint Sunday service on 10 March 2019. When first cross-examined about this service, she stated that the service had not been a Heaven @ 11 service. However, between day 2 and day 3, the respondents produced and introduced into evidence material connected with the service, which made clear that it had been a Heaven @ 11 style service held jointly between the two congregations. The claimant accepted this in her continued cross-examination, but her recollection was that her evidence the previous day had not been otherwise.[32]The reason that the claimant was not involved in planning was that the style and format of service was not the one that she prepared the music for. The fact that the claimant was reluctant to accept her change in evidence is a factor which causes us to think that she sees some of the historic matters thought the prism of her belief that she had been excluded.[33]Mrs Moulton says that, as a result of her investigations, she came to the view that the financial situation of the parish needed action, particularly with regard to funding the activities of the parish.[34]Mrs Payne sets out in her paragraphs 4 to 16 various matters that had come to her attention that caused her to think that the financial position needed a change of direction and we take those into account in full. But, in those, she sets out what she found when she started looking at the accounts. Matters which impacted on her thinking included the reduction in cash at the bank from £144,702 in August 2018 to £107,953 in the period to December 2018, see her paragraph 7 and then further to £98,408, see her paragraph 16, by December 2019. As at the end of 2019, when she looked forward, her assessment was that there would be a deficit for 2020 and she saw this as an unsustainable reduction year on year in the cash available to fund the activities of the parish.[35]The Reverend Samadi was inducted into the parish on 26 September 2019. Not only was he new to the parish but this was his first parish. He had no previous experience as an employer and indeed did not appear to appreciate that the claimant was jointly employed by him and the PCC until the redundancy process started. He told us “No one told me that the minister from time to time is the employer. I didn’t see the contract until the process for redundancy started.” Indeed, he does not appear to accept even now that he is the claimant’s joint employer saying that he does not accept the decision to join him as a respondent.[36]We have been taken to paragraph B20 in the Church Rules which is in exhibit JARF page 30. This states that: “The functions of appointing any organist choirmaster or director of music and of terminating the appointment of any organist, choirmaster or direct of music shall be exercise able by the minister with the agreement of the Parochial Church Council.”[37]This provision may be why the minister is the joint employer because the minister exercises the functions of terminating the appointment with the agreement of the PCC or, in default, (according to B20) the archdeacon.[38]The Reverand Samadi described the available HR advice in terms which suggest surprisingly limited resources available to him and the PCC. The diocese HR appears, from what he said, to be more aimed at the HR concerns of the diocese employees and not with the employees of individual parishes. He said that he obtained most assistance from ACAS although DAS Law was also available to him.[39]The last PCC meeting before the induction in September 2019 was minuted (pages C72 and C73). Point 7 of the minutes records that there is a hope that the parish will finish the year with a running cost surplus. However, we also note the cost saving measures which were reported in that meeting. Shortly before it in the bundle (page C69) there is a printout dated 8 July 2019 showing a deficit of just under £3,500. That is an excess of expenditure over income as at the date of the print out. Mr Fraser was at pains to point out during his evidence that these print outs show a date on which the printout is generated, and they record the unaudited entries in the system as at that date. That means that they can be subject to change over the course of subsequent months as any inaccuracies or late postings are ironed out.[40]The claimant’s first one to one with her new line manager and joint employer was on 10 October 2019. She gives evidence in her paragraph 33 that he appeared angry. She also makes a specific allegation that in a later meeting on 16 January 2020, see her paragraph 36, he kept repeating the phrase “I am your Vicar”. Although she does not give any context to that discussion in her witness statement, she refers to her manuscript notes of the encounter that (exhibit JARF page 20). Those notes suggest that there may have been a disagreement or discussion about the format of the Deanery Evensong. The Reverend Samadi gave evidence that it is open to him to change the format of services and we infer that this may not be a position that the claimant entirely agrees with. His approach to being challenged, as we will see, seems to be to take decisive action such as calling the police at the incident in February, and the decision to dismiss. This suggests to us that he may well have sought to assert control in relation to the format of the Service. Broadly we accept the claimant’s evidence about this second incident.[41]As the end of the 2019 financial year (1 January to 31 December 2019) approached, there was a Standing Committee Meeting on 7 November 2019. The Standing Committee comprises the three church wardens, the secretary (although on that occasion she gave her apologies), the lay vice chair, the treasurer and the minister. It was reported on 7 November that an analysis of the income and expenditure for 2019 anticipated break-even at the end of October. It was suggested to Mrs Payne in cross-examination that the financial report to that Standing Committee suggested no financial crisis. The minutes are at page C100. It was suggested by Mr Gloag that, prior to the January Standing Committee, the minutes of this meeting and, indeed, the September meeting, suggested that there was no financial crisis.[42]The Standing Committee meeting was followed by a PCC meeting on 14 November 2019 that has minutes at page C102. It was suggested that, likewise, the report to the PCC presented a picture of no particular problems or concerns and argue that the picture that Mrs Payne presented to the Standing Committee meeting on 9 January was different to that in the previous two meetings.[43]We reject that argument. Our view is that Mrs Payne recognised throughout 2019 that there was an unsustainable situation in terms of cash expenditure. It is not fair to say that it was only in January 2019 that she presented a picture that the finances were not in good health. We think that the PCC were given accurate information about the finances in November 2019 but not in such stark terms as were described on 23 January 2020 at the PCC meeting.[44]The agenda for the Standing Committee meeting on 9 January 2020 is at page C117. A Data Development printout on page C118 dated 8 January shows an excess of expenditure over income for the year ended 31 December 2019 of £10,207. The minutes record virtually nothing about a discussion about staff costs, see page C115. They simply record the question being asked about whether costs savings could be made by looking at posts and salaries. The collective view of the Standing Committee by the end of the meeting was that removing the claimant’s post of Director of Music should be considered because the salary was believed to be “very high relative to our income” (from Ms Leach’s statement, paragraph 6), and to amount to a high proportion of salary costs (Mrs Payne’s statement, paragraph 19). The Standing Committee also thought that the key tasks of the organist/director of music role could be carried out by others, ideally on a voluntary basis. The Minutes deliberately did not include this discussion for reasons of confidentiality.[45]A PCC meeting was due to take place on 23 January 2020. It is alleged by the claimant that numerous regulations for setting up this meeting were not complied with. The aspects we particularly note are that the motion to consider staff redundancies or, as Ms Leach puts it in her paragraph 6, the notion of making the director of music role redundant is not on the agenda. The five members of the PCC including Mrs Forster, who were not present, would not have known that they were going to be absent from such an important meeting. The regulations provide for a specific vote to be taken to sanction putting to the PCC meeting a motion that is not on the agenda. This was not done. Therefore, the PCC on 23 January appears not to have considered the wisdom, or otherwise of making this decision when so many were absent. We agree with the claimant that these deficiencies are part of the circumstances relevant to whether or not the decision taken was fair or unfair in all the circumstances.[46]The minutes of this meeting at page C123 paragraph 8 record that the PCC was told that, after a legacy of £10,000, there was a loss for 2019 of £11,000. This must reflect the unaudited figures and therefore be drawn up on a cash basis. Those figures were put before the Standing Committee on 9 January based on the printout of 8 January. The PCC are also told that only £12,000 is available in general funds to cover day to day expenses and all other funds are restricted or designated for other purposes. This was not untrue, but it did not present the PCC with the choice of reallocation of reserves and that was open to them. They were told that the budget for 2020 predicts a deficit on the basis of expected expenditure. The minutes do not say how much that was. Mrs Hobart’s recollection was that they were told it was approximately the same as the Director of Music’s cost and that appears to be what Mrs Forster was later told, although she was not present at the meeting itself.[47]The email of Mrs Payne of 11 February 2020 at page B110, seems to us to reflect what the PCC were told at the 23 January meeting as minuted. It is therefore a reliable source of evidence about what other details they were told. It predicts a deficit for 2020 for St Peters of £10,600 and for the parish as a whole, of £6,800, slightly more than half of the cost of the claimant. That page, page B110, collates the separate categories that were analysed by Mrs Payne, and information set out in writing in the attachment to the email that was sent on 11 February is probably the same as the information she provided to the PCC. Point 8 in the minutes at C123 is the discussion of finances that took place in the presence of the claimant before she was asked to leave the meeting.[48]Mrs Moulton gave evidence that the cost saving measures that she drew up - and that are reflected in the document at page C121 - were also provided to the PCC and that is reflected in the minutes. She also gave evidence that the tables at C268 were provided. This information was not so much inaccurate as subject to a caveat that should have been made clear, namely that the year end might change up or down before the audited accounts were provided. However, it is apparent that the big expense in the paper that Mrs Moulton drew up at page C121 are the total staff costs of £39,000. As I have said, the claimant left the meeting before staff costs were discussed.[49]We accept that Mrs Payne’s prediction that a deficit for 2020 was genuinely done. Genuinely done in the sense that it was genuinely her pre-estimate of what the expenditure and income would be if the parish continued on its current course. Page B114 to 117 are the detailed projections that were categorised into the document that was then circulated to the PCC.[50]The claimant complains that partial incorrect and misleading information was presented to the PCC when they made their decision. The information was not incorrect as at that point in time but the conversation that Mrs Hobart had with the treasurer even the following day shows that changes that amount to a significant proportion of the totals can happen over a fairly short period of time because, by that time, the deficit was showing as some £7,000.[51]It is argued on behalf of the claimant that the audited accounts show that in fact there was a surplus for 2019. However, that argument ignores the fact that the audited accounts are done on an accruals basis not a cash basis.[52]We are satisfied that the expenditure of the settlement to Christchurch was excluded from the audited accounts for 2019 because the payment, whilst made in 2019, was attributable to 2018. On the other hand, it appears in the outgoing for the end of year cash analysis presented by Mrs Payne. If you account for that actually the picture deteriorated between the Febraury printout and the audited accounts.[53]Taking into account all the several accounts of the meeting of 23 January 2020 we think that the PCC do not appear to have been told that the year end could be worse or could be better when the dust settled. Mrs Hobbart certainly fixed upon the deficit and the projected deficit, and no doubt others did too. They had the option of choosing to continue to fund the director of music post from reserves and we are not satisfied that this was made clear to them. The Standing Committee clearly regarded that as inadvisable. But that was a decision for the whole PCC to make.[54]Answers in response to tribunal questions cause us to think that at the PCC meeting there was no real consideration of alternatives such as the cost of the other five staff. Details of those staff and what they were paid is at page C111. Another alternative that does not appear to have been considered is negotiating a reduction in hours with the claimant. The PCC appears to have believed that they needed to make a decision on redundancy of the post then and there. Whereas, for reasons we will explain, the most they should have been asked to do was to consent to the start of a redundancy process.[55]The Standing Committee were confident that volunteers to carry out the key tasks of the claimant would be found. But it was improbable that that would have no impact on the type and quality of music in the religious services. Time for consideration of the impact on that of the parish income was called for as well as time for consideration of the impact on the community because the proposal concerned the activities of St Peters in particular.[56]Language used in the minutes makes it absolutely clear that the PCC voted to make the post of direct of music redundant on 23 January. It is argued that it was merely a decision to open the consultation, but we reject that. There are a number of reasons why we reject that. Firstly, the language in the minutes is absolutely patent and those minutes were approved at the extraordinary PCC at which the importance of care in language was discussed. It is not merely a question of whether the right legal language is used, it is a question of whether the minutes reflect the decision that was taken. Next, there is no other meeting that which the PCC decides to make the post redundant. So, given that the PCC is the joint employer, even if the decision makers do not have B20 in the forefront of their minds, the employer needs to at least agree to, if not decide on, the redundancy of the employee. The EPCC meeting of 2 March 2020 did not include a vote on whether to make the post redundant did not include a vote on whether to make the claimant redundant as can be seen below. The only point at which it is clear the PCC did that was 23 January.[57]The claimant was called for a meeting which took place on 24 January and “what she was told was then repeated in an email which is at page B37. Many thanks for coming to meet me and Anna Leach on Friday 24th January 2020. We were able to share with you that the PCC have voted by a majority to make the paid post of Director of Music redundant. We are deeply sorry that the parish finances are not in a position to sustain the salary of this post and enable us to achieve financial stability and growth. As I mentioned to you, our meeting marked the beginning of the consultation period in which you have time to reflect on our proposal and come back with any questions or suggestions. In line with my desire to give you adequate time for this, I suggest that the consultation period be for a duration of two weeks from 24th January 2020. I also pointed out to your redundancy rights, specifically to your entitlement to redundancy notice and pay according to the number of full years that you have served the parish.”[58]Again, that email states that the post is to be made redundant not that consideration of making the post redundant is to take place. We are satisfied that that is because that is what was decided by the PCC.[59]Furthermore, there were apparently public statements made that the post was to be made redundant. Mrs Moulton held a meeting with Mrs Forster and Mrs Hobart on 17 February 2020 and, amongst other things, that included her telling them that they should accept the result of the democratic vote of the PCC. That statement implies that this was settled decision of the PCC and therefore it cannot reasonably be described as a proposed removal of the music director post.[60]It is not simply a question of using legally correct language. The point of consultation is that the employee should be consulted at a time when they can influence the decision. It is therefore important to identify when the decision was taken and what exactly was decided. There was, in substance, no prospect of the claimant influencing the decision to make the post redundant after 23 January 2020 because no further meeting was called, and she was not consulted before that meeting.[61]Mrs Payne sent information in writing to the PCC on 11 February as I have said. Mrs Hobbart contacted her the day after the meeting and was distressed to find that the deficit was slightly less; it was the £7,000 or so that is in the February figures rather than the £11,000 reported to the PCC. We can understand Mrs Payne’s genuinely held view that the detail of how much the deficit was was immaterial when there was a deteriorating cash picture year on year as we have explained earlier in these reasons. However, she curated the finances in the way that they were presented to the PCC and the process of consultation is partly designed to avoid immediate kneejerk decision making.[62]An offer was made on the terms of anonymity of a donation to fund the claimant in her post. That was made on 5 February 2020 and the conditions are at exhibit JARF page 36. The PCC convened an extraordinary meeting on 2 March to consider this offer. The minutes are at page C144. It is clear that the redundancy of the post was not reconsidered at this meeting. The two matters before them were an update on the redundancy process and the anonymous donation. They were advised to start calling it consultation for redundancy, but the decision had clearly already been made in substance.[63]Mrs Moulton analysed the pros and cons of the offer of an anonymous donation in her document. Conditions were specified, namely for Dr Fraser to remain in her post with present salary and duties. The money was restricted to be used for part payment of Dr Fraser’s salary and were she to leave, the balance of the money would have to be returned. We accept that it would have been unwise for the PCC to accept the anonymous donation. By this we mean that it was not merely confidential, known for example to the treasurer, but anonymous to the wider parish. The reasons that are set out by the archdeacon as why that is inadvisable seem sensible. We accept that the reluctance on the part of the PCC to accept a completely anonymous donation was genuinely held.[64]The discussion at page C146, which is part of the minutes of the extraordinary meeting, is relevant in this respect. However, as far as we can tell, the PCC did not take action to find a way to discuss the offer with the donor. The donor was anonymous but there was a known contact. No action was taken to find a way to discuss with them whether the anonymity situation could be resolved so that they were known to someone but not publicly known or whether the restrictions could be explored to see whether restrictions could be agreed to that were consistent with good charity governance. Very strong guidance by the diocese on the reasons to reject it is set out in paragraph 5.3 of the minutes and a proposal is passed to reject it for reasons that are set out in bold at page C147.[65]In the light of the diocese guidance, it cannot be said that no reasonable employer would have accepted the offer on the terms on which it was presented. However, there was an alternative open to them namely, to explore whether the impediments could be overcome. We are of the view that no reasonable employer in the position of this parish would have rejected such a large prospective donation without doing so. No reasonable employer in the position of this parish would have rejected it without exploring whether it could be made on terms which complied with their duty as trustees. Furthermore, encouraging open giving to fill the gaps sustainably was something that could have been explored had time for a proper consultation process taken place. If the PCC on reflection decided that they did not want staff salaries to be dependent on irregular giving or an occasional fund raising then that would have been a decision for them. In principle, the view of the Standing Committee that the parish should operate with a small surplus is again a decision for the parish. It is not one that Mr Fraser agrees with. Honest people may have different views about that. But the people who are in charge of managing the parish from time to time are responsible for deciding how to conduct affairs commensurate with their duties of trustees and if they decide that they should operate with a small surplus, it is a matter for them.[66]Sadly, the caretaker died unexpectedly in Febraury 2020. By that time the claimant had presented a grievance about her treatment. That is dated 31 January 2020. In it she complained that there was no prior discussion to indicate that her post was at risk before the decision was taken. She complains the financial information was biased, partial and incorrect and that the PCC meeting may have been irregularly constituted. She asks for an independent arbiter as she is complaining about the decision of her employer, and that is not an unreasonable request in the circumstances.[67]The first thing that happens after that is that on 6 February the Reverend Samadi rejected the grievance saving that the decision had not been final. However, we have rejected that characterisation of the decision of 23 January. He does invite her to work with him to explore alternatives to redundancy. Ultimately there is a meeting on 13 March which we will come to.[68]The claimant asks for a grievance meeting, as is her right in accordance with the ACAS Code and she wrote to the bishop.[69]There is then a further email from the Reverent Samadi where he states again that he wishes to arrange a meeting but, given that he was – He is not recorded as voting on the PCC, but he is a decision maker in the sense that it is his decision to make as well as the PCC as joint employer. And, as the claimant says, if she is making the grievance against her employer, it is prudent if possible for someone independent to the decision to conduct a grievance. Eventually, the Archdeacon of Middlesex was chosen, and we think that he was a suitable person to hear it. She had a grievance meeting on the same day as the extraordinary PCC, namely 2 March 2020.[70]The outcome of the grievance appears to be the email at claimant’s exhibit page 67. It expressly considers whether the redundancy process has reached the point where the notice of redundancy can be issued. We have not heard evidence from the Archdeacon. He expressly stated that he was not commenting on four bullet points and, as we read them, the first two are effectively what the claimant is grieving about. So, that email does appear to state in terms that he is not commenting on the matters that she has raised in her grievance. It therefore does not read to us like a decision on the issues she has raised. Indeed, he expressly states he is not going to consider the issues that she has raised.[71]The PCC and the Reverent Samadi accepted his decision, and they appear not question whether their employee’s grievance had been determined in substance rather relying on the fact they had been given a green light to proceed to the next stage.[72]Meanwhile, there had been a consultation meeting on 13 March and the notes from that are produced by the respondent are at exhibit JARF page 64. The claimant was apparently told that the selection criteria used by the respondent were that they considered all roles. Pausing there, if one were talking about redundancy pool for selection, that makes it appear as though the pool would include all staff. If the criterion in the first stage was cost alone, as appears to have been the case, it makes sense to put all roles into the pool. The way they said they were deciding between the roles was by seeking volunteers. However, we are not satisfied that volunteers were sought for all roles before 23 January not least because of the express need for confidentiality. There seems to have been a presumption that volunteers could be found for the claimant’s role. On the other hand, the caretaker was on unpaid leave and volunteers were fulfilling his role during that unpaid leave, so the PCC and the Standing Committee did have some actual knowledge about the prospect of finding permanent volunteers for the whole of that role.[73]The other key point from the notes of the 13 March is point 6. It is clearly stated that there would be another meeting to discuss proposals from both sides and that is repeated in a subsequent email. It is clearly the responsibility of the employer to ensure that a promised consultation meeting takes place. The Reverend Samadi says that the claimant did not put forward any dates. However, we think it is the responsibility of the employer to make sure that a fair process takes place. When they say there will be a meeting, they should arrange it.[74]Once the grievance outcome was known on 17 April the Reverend Samadi sent an email termination to the claimant without further consultation with the PCC. He attempted in oral evidence to suggest that there had been email traffic with the PCC after he heard from the archdeacon and prior to him sending that note of termination. The gist of his oral evidence seemed to be as though some negative confirmatory approval was given. However, the only email we have been shown is the one informing the PCC that he had taken the step of sending a notice of dismissal. So, we regret to say that we do not believe his evidence on this point. In any event, there was no PCC meeting. By this time the country was in lockdown and we accept that there was significant impact on the activities of the parish as a result. No doubt the Reverend Samadi was prioritising the needs of the parishioners. Nevertheless, this underscores that the effective decision by the PCC was made before any consultation with the claimant.[75]She appealed her dismissal by a letter of 23 April 2020 (page B462). The points she raised were:a. that there was no redundancy situation;b. complained that the effective decision was taken before the first redundancy letter was sent to her and without any consultation;c. she complained about comments that she says were made such as her work not being worth paying for;d. she stated that the archdeacon, in his email of 17 April, raised the prosect of her making proposals to avoid redundancy, and within a couple of hours of that she was dismissed, so there was no opportunity for this to be pursued;e. She complained that she was not told of an end date for the consultation and was expecting to have an opportunity to bring proposals forward.[76]Clearly, a number of different points were raised in the appeal than were in the grievance. She made a further submission to the appeal panel (page B464), in which she pointed out that there should have been a further consultation meeting which she could have put forward other proposals to ensure the post was selffunding. It was suggested to her that she should have volunteered the proposals, but we accept that she was reasonably waiting for her employer to set a date. More to the point, no reasonable employer who had told their employee there was going to be another meeting would make decision to make her redundant without having that meeting.[77]An appeal panel was convened under the chair of a vicar from a different parish, and it met sometime after 2 September 2020, although the exact date is not quite clear. The claimant’s employment had, in fact, by then ended. Four out of the five members of the appeal panel were on the original PCC including Anna Leach and Lindy Moulton. Depending upon the resources of an organization, it is not necessarily outside the range of reasonable responses for the appeal panel and the original decision makers to have shared membership. However, we do not understand why the appeal panel could not have been dominated by people separate to the original decision.[78]The information we have about that appeal panel meeting is only that found in the email at exhibit JARF page 98 from the Archdeacon of Middlesex, who states that the Chair of the panel conclude that the decision on the grievance meant that a second hearing was neither necessary nor appropriate. The appeal panel do not seem to have had any guidance or a structured policy to explain to them what appeals are intended to do or what their remit was. It is not necessary for a fair appeal that it should be a rehearing. Indeed, in some circumstances, no appeal is within the range of reasonable responses although that is very rare and fact-specific. The letter from the Archdeacon to the claimant suggests the appeal panel themselves accepted that they were not independent and that begs the question of why a decision-making body which was independent was not convened.[79]The grievance decision was itself flawed as we have explained in para.70 above. In those circumstances the claimant has effectively not had a valid appeal. The points she raises in her grounds of appeal are not considered in substance by anyone.[80]Two further small points of detail; the male organist playing in online services following the claimant’s dismissal was unpaid and therefore is not a suitable comparator with her. We also think there is a material difference between the situation of the claimant and the caretaker, namely that the PCC and the Standing Committee having spoken to volunteers doing the role during his illness, genuinely believed that permanent volunteers to cover the entirely of that role could not be found. So, he is not a suitable comparator either. What actually happened in relation to that is that the paid hours for the caretaker were reduced so it is evidence relevant to what might have happened had the PCC taken a different course from the outset.
The law
[81]Employees are protected from discrimination by s.39 EQA. The following are the most relevant sections of the Act. Section 136 of the 2010 Act reads (so far as material): “(1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.”[82]This section applies to all claims brought before the Employment Tribunal under the EQA. By s.39(2) EQA an employer must not discriminate against an employee including by dismissing them.[83]Direct discrimination is defined by section 13 (1) EQA to be: “A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”[84]The Claimant complains that she has suffered direct discrimination on grounds of the protected characteristic of sex and, separately, on grounds of race[85]The statutory burden of proof as set out in s.136 EQA has been explained in a number of cases, most notably in the guidelines annexed to the judgment of the CA in Igen Ltd v Wong [2005] ICR 931 CA. In that case, the Court was considering the previously applicable provisions of s.63A of the Sex Discrimination Act 1975 but the guidance is still applicable to the equivalent provision of the EQA.[86]When deciding whether or not the claimant has been the victim of direct discrimination, the employment tribunal must consider whether she has satisfied us, on the balance of probabilities, of facts from which we could decide, in the absence of any other explanation, that the incidents occurred as alleged, that they amounted to less favourable treatment than an actual or hypothetical male comparator did or would have received and that the reason for the treatment was sex. If we are so satisfied, we must find that discrimination has occurred unless the respondent proves that the reason for their action was not that of race.[87]We bear in mind that there is rarely evidence of overt or deliberate discrimination. We may need to look at the context to the events to see whether there are appropriate inferences that can be made from the primary facts. We also bear in mind that discrimination can be unconscious but that for us to be able to infer that the alleged discriminator’s actions were subconsciously motivated by race we must have a sound evidential basis for that inference.[88]The provisions of s.136 have been considered by the Supreme Court in Hewage v Grampian Health Board [2012] ICR 1054 UKSC – and more recently in Efobi v Royal Mail Group Ltd [2021] ICR 1263 UKSC. Where the employment tribunal is in a position to make positive findings on the evidence one way or the other, the burden of proof provisions are unlikely to have a bearing upon the outcome. However, it is recognized that the task of identifying whether the reason for the treatment requires the Tribunal to look into the mind of the alleged perpetrator. This contrasts with the intention of the perpetrator, they may not have intended to discriminated but still may have been materially influenced by considerations of disability. The burden of proof provisions may be of assistance, if there are considerations of subconscious discrimination but the Tribunal needs to take care that findings of subconscious discrimination are evidence based. A finding that the respondents’ conduct towards the claimant was unreasonable does not of itself give rise to inferences that the motive or reason must have been because of the protected characteristic. Per Elias J in Law Society v Bahl [2003] IRLR 640 at para [99] – [100] (expressly approved by the CoA at [2004] IRLR 799.[89]Where the employment tribunal is in a position to make positive findings on the evidence one way or the other, the burden of proof provisions are unlikely to have a bearing upon the outcome. Furthermore, although the law anticipates a two stage test, it is not necessary artificially to separate the evidence adduced by the two parties when making findings of fact (Madarassy v Nomura International plc [2007] ICR 867 CA). Something more than simply unfavourable treatment and a difference in sex or race is needed before the burden of disproving discrimination succeeds. We should consider the whole of the evidence when making our findings of fact and if the reason for the treatment is unclear following those findings then we will need to apply the provisions of s.136 in order to reach a conclusion on that issue.[90]Although the structure of the Equality Act 2010 invites us to consider whether there was less favourable treatment of the claimant compared with another employee in materially identical circumstances, and also whether that treatment was because of the protected characteristic concerned, those two issues are often factually and evidentially linked (Shamoon v Chief Constable of the RUC [2003] IRLR 285 HL). This is particularly the case where the claimant relies upon a hypothetical comparator. If we find that the reason for the treatment complained of was not that of sex (or race, as the case may be) but some other reason, then that is likely to be a strong indicator as to whether or not that treatment was less favourable than an appropriate comparator would have been subjected to.[91]On a comparison of cases for the purposes of section 13 EQA, there must be no material difference between the circumstances relating to each case: s.23(1) EQA. Section 23(1) EQA is explained in the EHRC Code of Practice on Employment (2011) para.3.23 to require that the circumstances which are relevant to the claimant’s treatment are the same or nearly the same for the claimant and the comparator. As said in Shamoon, those include those circumstances that the alleged discriminator takes into account when deciding to treat the claimant as it did. Whether the situations are comparable is one of fact and degree. It may be possible to construct a picture of how a hypothetical male comparator would have been treated in materially the same circumstances from the way that individuals have been treated whose circumstances are too dissimilar for them to be a statutory comparator.[92]In relation to redundancy, it is for the respondent to prove that the reason for dismissal was a potentially fair reason set out in s.98 Employment Rights Act 1996 (hereafter the ERA). We apply the definition of redundancy in s.139 ERA. Safeway Stores v Burrell [1997] ICR 523, EAT is a case which has stood the test of time and sets out a three-stage test based on that statutory information. We need to ask whether the employee was dismissed. 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 and, if so, was the dismissal of the employee cause wholly or mainly by the cessation or diminution. There is no need under s.139 ERA for an employer to show an economic justification or business case for the decision to make redundancies. The employer does not have to show that the decision was forced upon them, and a redundancy situation can include a decision to bring in outside contractors to do work previously done by employees, or, as in the present case, to have the work done by volunteers. However, the employer’s motives may become relevant whereas, here it is alleged that redundancy is a sham and there is another discriminatory reason for dismissal.[93]Judge George suggested to the parties that Valimulla v Al-Khair Foundation [2023] EAT 131 was potentially relevant. On the question of consultation we make particular reference to paragraph 34. “Meaningful consultation does not mean simply informing staff about a decision or proposal, giving them opportunity to make representations, and then putting into effect the proposal or decision which had, in truth, already been made. Meaningful consultation means setting out a provisional proposal, along with the rationale, and providing an opportunity for feedback, comments or observations. A decision maker should consider the responses elicited through consultation with an open mind, considering whether they alter the initial proposal and why that is, if not, why not, but only then making a decision.”[94]If the tribunal finds that the dismissal was unfair and has to go on to consider whether there should be deductions from compensation then, on the authority of Polkey v A E Dayton Services Limited [1987] IRLR 503, compensation may be reduced on the basis that had the employer taken the appropriate procedural steps which they did not take then that would not have affected the outcome.
Conclusions
[95]We now set out our conclusions on the issues, applying the law as set out above to the facts which we have found. We do not repeat all of the facts here since that would add unnecessarily to the length of the judgment, but we have them all in mind in reaching those conclusions.[96]Our conclusions on the discrimination claim are and, in particular, on the historical allegations, as in those pre-Parish of St Mary and St Peter, Staines is in effect that there may have been isolated incidents which caused hurt. However, there is no basis to draw inferences that those were less favourable treatment on grounds of race or sex, let alone that the subsequent decision of these respondents was discrimination.[97]We have given consideration to the more recent events. As the respondent argues, much of the criticism of the trustees is directed towards the Treasurer, Mrs Payne, who is said to have taken an unnecessarily cautious approach and presented the finances in a way which caused panic among the PCC. This is said to have caused the PCC unnecessarily to think there was no option but to make the director of music position redundant. However, no discriminatory mindset, conscious or sub-conscious, is alleged against Mrs Payne. Her analysis of the finances was an important part of the driver of this action.[98]There was a mistaken perception on the part certainly of Mrs Moulton that the claimant was overpaid or was paid more than other organists in the area, she did receive that information from a source she trusted, the outgoing consultant treasurer, There is no reason to think that had the claimant been a man or British, and Mrs Moulton had received equivalent information, she would not have formed the same view.[99]We were invited to draw inferences that the Reverand Samadi disliked the claimant standing up to him and was influenced by her sex or nationality in relation to the decisions he made. We do not think that that is an inference justified by the facts overall. We found that his approach to being challenged was to be assertive and to seek to take control. He did that with Mr Fraser as mush as with Dr Fraser. That does not suggest difference in treatment based upon sex or race.[100]The Standing Committee genuinely held the view that there needed to be cost reduction and that it was desirable to run at a surplus rather than use up case resources. This was not a view formed overnight but throughout Mrs Moulton’s time as the Vice Lay Chair and Mrs Payne’s as Treasurer. It was formed for valid reasons. We respect Mr Fraser’s view that the parish could choose a different path and did not, as a charity, need to make a profit as though it were a small business. However, Mrs Payne, Ms Leach and Mrs Moulton genuinely believed it was necessary to cut costs to ensure that capital or voluntarily restricted funds were not expended on day-to-day expenses because that was in the interests of the parish. We accept that a parish has regular unexpected expenses and can legitimately choose to prioritise, for example, new audio-visual equipment.[101]The members of the Standing Committee from whom we heard do not themselves appear especially to value the traditional choral music which supported the 9.30am Sunday Service at St Peters. Again, that is a matter about which honest people can differ and that difference in preference is not anything to do with the sex or nationality or national origins of the claimant.[102]For those reasons we conclude that, even if the burden of proof transferred, the respondent has shown that the reasons for their decision to dismiss were genuinely what they perceived to be the redundancy situation.[103]We then go on to consider whether there was a redundancy situation within the statutory definition. On 2 January 2020, the PCC had a snapshot which showed a year end for 2019 deficit and a budgeted deficit for the following year. The respondent has shown that the requirements of the parish for the employees to carry out work of a particular kind had ceased or diminished. They have shown that because they decided they would manage with volunteers because the cash situation, in the opinion of the Standing Committee, necessitated a reduction of expenditure. They decided that they would reduce staff costs by having more tasks done by volunteers. They had already put that into action through Mrs Payne stepping in as Treasurer. The drive to replace paid staff with volunteers was not limited to the provision of music to support worship.[104]If so, was the dismissal of the employee caused wholly or mainly by the cessation or diminution of the need or requirement for employees to carry out that work? Yes, it was, although they did not properly consider alternatives that might have addressed their financial concerns.[105]We accept that there was a redundancy situation. The points raised by the claimant go more to whether there were alternatives to redundancy. It is not for the employment tribunal to second guess the genuinely considered views of the employer about their needs.[106]However, the decision to dismiss was manifestly unfair in all the circumstances. The way that the termination was decided upon was irregular. The only consideration by the PCC of whether or not the post should be made redundant was on 23 January 2020. They decided on that date that the post should be made redundant. They did not subsequently vote to consent to the termination of Dr Fraser’s appointment at the end of a consultation process. There was no notice to the PCC given that the issue would be considered on 23 January 2020 and that is another irregularity. No reasonable employer would have failed to consult the employee in advance of making the decision. No reasonable employer would have made the decision that the finances of the organisation required this post to be deleted in such haste and without considering the broader implications arising from such a decision. In particular, the reasonable employer would consider the implications for the finances of the parish should large numbers of a congregations leave, and also the impact on the congregations themselves because those are the key activities of the parish. No reasonable employer would have failed to try to explore fundraising options including, but not limited to, the anonymous offer of support to see whether it could be made unconditionally or subject only to acceptable conditions. Indeed, we note the fundraising that Mrs Moulton had encouraged the claimant to attempt in some of her earlier 2019 meetings.[107]The claimant was told there would be another consultation meeting after 13 March which did not happen, so she did not have the promised opportunity to put forward alternatives. It was her employer’s responsibility and not hers to ensure that this happened. The decision to dismiss was ultimately taken without further consultation with the PCC.[108]The grievance was not directly relevant save that it is relied on by the appeal panel as a basis for not considering the claimant’s appeal. Not only was that inadequate because it ignored the limitations of the grievance decision itself, but it also failed to consider the wider basis for the claimant’s appeal which were not limited to the points she made in her grievance. And in reality, her challenges to the decision to dismiss her were not objectively and independently evaluated. Would the claimant have been made redundant in any event?[109]It was agreed before the start of evidence that, in the event that the claimant succeeded, we would also consider whether there should be a deduction in accordance with the principles in Polkey v A E Dayton Services Ltd. As a result of our decision above, we have to go on to consider what would have happened had those specific flaws not been present because those are the particular ways in which this dismissal was unfair. In that situation, we find that the following probably would have happened: the PCC would have been presented with a complete financial information of sufficient concern that they would have decided to reduce the number of employees. We reject Mr Fraser’s suggestion that there were no grounds for concern, the cash problems were valid grounds for concern. Probably all employees would have been put at risk with a criterion for redundancy being whether the tasks could be done by volunteers and whether the income of the parish could be increased to cover necessary tasks.[110]One unknown for us is the likelihood that the other tasks could be done by volunteers. In reality, it is the prospect that the caretaker’s role would have been made redundant that is most likely to affect whether or not the director of music role was returned, because the other staff costs are relatively small sums. There would have been a consultation process starting on 24 January which genuinely explored alternatives such as fundraising and donations, subject only to conditions which were acceptable to the PCC. The possibility of reduced hours would have been considered, but we accept that had the claimant’s hours meant she only played at one church, that would reasonably not have been acceptable to the parish. Exploration of the wider parish views would have taken place although, ultimately, it is for the minister - with the agreement of the PCC - to decide whether to continue with the employment of the Director of Music and it is for the minister, with the agreement of the PCC, to decide the format of the services that are provided within the parish.[111]We cannot ignore the reality of the coronavirus pandemic, which lead to the lockdown starting in March 2020. The consultation would have taken place against the backdrop of services being cancelled or not needing music because they were forced online, when they became said rather than sung. There would also be the prospect of furlough and/or reduced hours.[112]We accept that a proper consultation could have taken place before the EPCC on 2 March 2020. That is the date on which the PCC could have been asked to make a proper decision. The following factors in favour of cutting costs by removing the director or music post would then have been present.[113]The 2019 figures of the income and expenditure of the parish still showed a deficit and, including the claimant’s salary, without more income, the 2020 figures projected a deficit. The Standing Committee reasonably wanted a sustainable financial position because they reasonably wanted to move away from the history of annual deficits and relying on capital assets for day-to-day expenditure.[114]Not all of the PCC see the type and style of the music which is the claimant’s specialty as of inherent value. That is a position which is as worthy of respect as is the view of the claimant, her husband, Mrs Hobart and Mrs Forster. It is something about which honest people can differ.[115]The objections to wholly anonymous donations and donations restricted to Dr Fraser personally continuing to hold the post rather than to support the post, whoever held it, are valid points in principle. Had those objections not been overcome, then there would have been good reasons to potentially reject even valuable offers of assistance. On the other hand, the claimant’s supporters would no doubt argue passionately, as they did in the hearing before us, that the tradition at St Peters needs to be respected and that there was a risk that parishioners and their giving would move away if the director of music was not held by a professional. There are also a number of letters from people in the community to that effect in the bundle.[116]The PCC may have chosen to value the status quo. Since the director of music post has gone the congregation at St Peters has apparently reduced more than that at St Mary’s and that suggests that Covid alone may not be the cause of the reduction.[117]It is always hard for the employment tribunal to weigh up these imponderable and competing matters which affect whether or not an individual would have remained in work. There is a prospect that had the employment continued the money paid to the claimant would have reduced if she was placed on furlough and we have not been taken through a detailed analysis of the effect of Covid on the finances of the parish. We think that a fair consultation process with, if necessary, a fair appeal, would probably have been conducted within the same timescale. We have to consider what is the prospect that the PCC would have, in this situation, consented to the termination of the appointment, or whether the Reverend Samadi’s desire for peace in his parish would have led him to decide not to terminate the employment of his director of music.[118]We have decided that it is just to reflect all of those uncertainties with a proportional deduction from compensation of 40%. That means there is a 60% chance the claimant would have continued in the post and a 40% chance that she would have been fairly dismissed for redundancy with effect on 20 June 2020. Approved by: