Mr P Cook v OH Assist Ltd T/a Optima Health: 4100026/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4100026/2025Venue GlasgowHearing 23 – 25 June 2025 Deliberations – 25 and 27 June 2025
Between
Mr P CookClaimantOH Assist Limited t/a Optima HealthRespondent
Before
Employment Judge D HoeyMrs A Cook for claimantLay Representative for claimantMr R Bradley for respondentCounsel [Instructed for respondentby Messrs ESP for respondentSolicitors Ltd] for respondentDate 15 July 2025
JUDGMENT
[1]The complaint of victimisation is dismissed, the claimant having withdrawn this complaint at the Hearing.[2]The claimant’s dismissal was not unfair and that complaint is dismissed.[3]Of consent, the respondent shall pay to the claimant the sum of £166.89 (ONE HUNDRED AND SIXTY SIX POUNDS AND EIGHTY NINE PENCE), less any deductions required by law, that being one day’s gross pay that the respondent had deducted from sums due to the claimant, in breach of contract.
REASONS
[1]The claimant had brought claims of unfair dismissal, victimisation and breach of contract. The claims were defended. The claimant was represented by his wife who had a law degree and understood the legal principles and procedure.[2]The Hearing began by a reminder of the overriding objective and the need for both parties to work together to assist the Tribunal in ensuring that everything that was done was fair and just with due regard to cost and proportionality. A discussion took place as to how evidence was taken and the importance of ensuring relevant questions were put to each witness to ensure both parties’ cases were fairly put to each other’s witnesses and that relevant evidence was led. The parties were reminded that the Tribunal would only consider evidence that had been agreed or that was led before it. Case management[3]The parties had worked together to focus the issues in this case. At the outset of the Hearing the parties agreed what the issues were. The parties were also able to agree timing for witnesses and the parties worked together to assist the Tribunal in achieving the overriding objective, in dealing with matters justly and fairly taking account of the issues, cost and proportionality.[4]The Tribunal was able to ensure that that relevant questions were put to each witness and that the claimant’s case was advanced. By the submissions stage, the claimant had withdrawn the victimisation complaint, agreement had been reached as to the sum due to the claimant by way of the breach of contract complaint and the dismissal was said to be unfair because of the pooling issue and the way in which the appeal was handled.
Evidence
[5]The parties had produced a joint bundle of 353 pages. The Tribunal heard evidence from Ms Jackson (the HR manager who had been involved in the process in pooling the claimant), Mr Harrison (who took the decision to dismiss the claimant) and Mr Paxton (who deal with the appeal and was Mr Harrison’s line manager), and the claimant. Relevant questions were put to each witness to ensure the parties’ respective cases were tested.
Facts
[6]The Tribunal is able to make the following findings of fact which it has done from the evidence submitted to it, both orally and in writing. The Tribunal only makes findings that are strictly necessary to determine the issues before it (and not in relation to all disputes that arose nor in relation to all the evidence led before the Tribunal). The Tribunal only records facts it found as necessary to determine the issues in this case.[7]There were few material facts in dispute in this case and where there was a conflict in evidence, the conflict was resolved by considering the entire evidence and making a decision as to what was more likely than not to be the case with regard to what was written and said at the time (when viewed in context). The parties had agreed some of the key facts which was of assistance to the Tribunal.
Background
[8]The respondent is a provider of occupational health and well being services to employer entities across the UK. The respondent employs around 1700 staff who work in various locations, mostly from home. The claimant was employed from 13 November 2019. The roles[9]Mr Harrison was the head of business intelligence and the claimant’s line manager (at the point of his dismissal). Hr Harrison was responsible for ensuring reports to internal users and customers were accurately and promptly delivered and that data is sourced and processed. Mr Harrison was responsible for 2 main teams which were used to perform these functions.[10]The first team was the data warehouse or data engineering team. That team was responsible for interpreting architectural plans for the systems and putting in place the relevant technology and ensuring it is relevant, safe and effective.[11]The second team was the reporting team which carries out a different role and is responsible for bringing the data together and producing reports.[12]A small number of unique roles also sit within Mr Harrison’s team. That includes the senior data insights analyst and product owner roles. These were roles which were not responsible for carrying out the work done by either team and had specific and unique functions, roles and tasks.[13]The claimant carried out the senior data insights analyst role. That role was all about looking at and interpreting data on behalf of the business and customers as required. It required knowledge and application of statistical techniques and the ability to summarise data and identify trends with a view to informing decision making. The claimant was also responsible for providing specific reports to 2 main clients. The claimant’s role was unique and at a higher level than the roles within the reporting team into which he was nominally placed. As an example of the level of seniority, the claimant was paid 40% more than the analysts in the reporting team and 27.5% more than the reporting team manager. His role was unique. Cost savings needed and reduction in workload[14]On around December 2021 the claimant transferred to Mr Harrison’s side of the business. The only change was his line manager. His role did not change which remained as set out above. From that date the claimant was nominally in the reporting team but his role did not alter and he was responsible for providing the services of the senior data insights role.[15]The reporting team was managed by a manager, who was at a lower level within the respondent’s business than the claimant’s role. It was the reporting manager who provided the claimant with additional tasks where there was insufficient work for him to do. There were also around 4 junior staff employed in that team, whose role was management information analyst. Their role was to provide reports only (and not interpret or identify trends). Due to a diminution in their work, the team reduced to 2 by the time of the claimant’s dismissal. The reporting work was diminishing due to automation.[16]When the claimant transferred to Mr Harrison’s team, the work the claimant was employed to do had diminished. This was in part due to the claimant’s ability to automate work he had been engaged to do. There was also a reduction in the amount of specialist work the claimant was employed to do from within and outwith the business. This reduction was likely to continue. He had also been responsible for providing bespoke reports and services to specific clients. The work needed for those clients was substantially decreasing and some of the business was no longer done by the respondent.[17]The claimant’s role was unique and more senior than the others within the reporting team but as the work the claimant had been employed to do had diminished the claimant had been given work that would ordinarily have been directed to the junior members of that team on an ad hoc basis to fill his time. While the claimant on occasion carried out the work done by the management information analysts, he was still engaged to provide (and did provide) the tasks set out in his job description which formed the vast part of his daily role.[18]Rather than dismiss the claimant as redundant at the point he transferred to Mr Harrison’s team (when the work the claimant had been employed to do had begun to diminish), the respondent chose to retain the claimant and utilise the skills he had to perform the complex work that remained. It was possible the senior work could pick up. The claimant had important knowledge and skills in relation to the role and the respondent chose to maintain the status quo in the hope of an increase in demand for that work. If there was insufficient senior work, the claimant would be given other duties that would otherwise have gone to the more junior reporting team members. The reporting team manager allocated tasks to the claimant that she would otherwise have allocated to the more junior employees in that team. If the work the claimant was engaged to provide arose, that work would be given to the claimant and the other work reallocated. The junior work was allocated to the claimant to fill his time on an ad hoc basis.[19]It was becoming clear that there was a diminution in the need for the work the claimant did, the senior work, both within and outwith the business. The respondent did not take immediate action to address the reduction in the duties for which the claimant was employed to do was because of the pressure upon Mr Harrison’s team generally due to various integrations taking place, following a number of acquisitions and other business pressures. Cost savings needed[20]Around April/May 2024 Mr Harrison met with his line manager, Mr Paxton. Mr Paxton was the respondent’s chief information officer responsible for running the IT department including all end user IT, infrastructure, applications and information management. He was also responsible for the security of the entire operation. Mr Paxton set Mr Harrison a number of objectives for the coming year. One of the objectives given to Mr Harrison (and other managers throughout the business) was to achieve cost savings. The direction of travel for the respondent’s business was to reduce cost as a result of decreasing profitability and a new owner. One important way this would be achieved was to automate as much as possible. This involved significantly reducing manual tasks. Other cost savings were being explored and consideration being given to headcount reduction amongst other savings. A redundancy situation arises[21]When the issue as to cost savings was raised, Mr Harrison considered those within his team. While the reporting work was diminishing and likely to continue to do so, the unique role of the senior data insights analyst was identified as a potential role that could be removed and a cost saving achieved. While work within the reporting team had also reduced (and was likely to reduce) 2 team members had left leaving 2 management analysts and a manager which was sufficient to carry out that work. Mr Harrison had visibility of the requirements of the business for those within his teams and he saw that the role the claimant was employed to do was in diminishing demand and was a role that could achieve cost savings with less impact upon the business. The claimant’s role was unique. There were no other roles that stood out in the way the claimant’s did. There remained a business need for the other roles. Mr Harrison considered each role and other ways to reduce cost. He concluded at that time that one role within his time would be subject to redundancy consultation, that carried out by the claimant. Redundancy consultation[22]The next consideration was the process to be followed. Mr Harrison and Mr Paxton considered whether it was necessary to create a selection pool from which a selection could be made given the conclusion that the unique role the claimant carried out would be placed at risk of redundancy. It was Mr Harrison’s decision but he discussed matters with Ms Jackson and Mr Paxton who had oversight of what the claimant did. While the claimant had carried out some of the lower level work carried out in the reporting team, his role was to carry out the senior role and he had only been asked to carry out the reporting team work to fill his time. Mr Harrison concluded a pool of one was fair following discussion with Ms Jackson who had considered the role the claimant did and others within the organisation. Having analysed the roles, a pool of one was considered appropriate and fair given the unique nature of the claimant’s role and that it was more senior to that of the reporting team. The reporting team would continue to provide the work they did. Mr Harrison considered the pooling issue with the help of the HR Manager.[23]Mr Harrison considered that the claimant’s role was unique and as he was spending at least 80% of his time on that work, the claimant would be placed in a pool of 1. His role was unique and no longer required in the business. The others within the reporting team carried out fundamentally different roles and work and were at a significantly more junior role than the claimant. The work allocated to the claimant to fill in his time was not work he was contracted to do but was work he was given to do in order to fill his time, in the hope the more senior work would pick up. That more junior work was also decreasing given the drive to automation. While there would still be periods when that work would peak (at the start of the year for example when reports were due or at the start of some months) the amount of work was reducing and likely to continue to significantly reduce as time moved on.[24]A pack was prepared setting out the rationale and approach as to the position. As Mr Harrison had not gone through a redundancy process before, Mr Paxton provided Mr Harrison with a template that he had used before which Mr Harrison was able to populate in light of his knowledge of the work the claimant had done and the commercial position and the proposal.[25]An initial discussion took place on 28 October 2024. At this meeting the claimant was shown the briefing note which set out the background. The claimant was told that his role was at risk of redundancy because the commercial needs of the business had changed. He was told one to one meetings would take place on 30 October 2024 and 6 November 2024 to allow the claimant to ask any questions, raise any issues and explore alternatives. Mr Harrison was open to consider all options and explore any alternatives.[26]The first consultation meeting took place on 30 October 2024. At this meeting which the claimant attended with Mr Harrison and an HR officer, reference was made to the discussion at the meeting of 28 October 2024 when the claimant had been advised of the change in strategy from legacy reporting to automated solutions. The claimant agreed that his role was at risk of becoming redundant. He understood the changes in the business and how the service was changing. He had taken steps to identify alternative roles in the intervening period (by checking the respondent’s intranet and vacancy position). He had also checked with ACAS. He told Mr Harrison he believed he should be slotted into the Business Intelligence Developer Role, a vacancy he had identified.[27]Mr Harrison had considered whether there were any alternatives suitable for the claimant and determined none matched his skill set directly. He had identified the Business Intelligence Developer Role and considered the claimant’s suitability for the role but reached the view that as the role required a different skillset and experience. The role was senior and required the candidate to “hit the ground running”. It involved a different skillset from that the claimant who had not shown experience of the skills needed. Mr Harrison did not consider the role to be a suitable alternative but the claimant was told he should apply for the role and he would be guaranteed an interview to show if in fact he did have the skills.[28]The claimant was told that the respondent was looking at consulting on all issues arising with the consultation period ending on 13 November 2024. Mr Harrison wished to explore all options prior to reaching a conclusion. Other than asking about enhancement redundancy payment, no further questions were asked and no other issues arose.[29]On 4 November 2024 the claimant sent Mr Harrison and the HR adviser an email with a paper setting out his views. Having reflected further on matters, he wished to challenge the decision to make his position redundant as he believed in retrospect only 20% of the role was disappearing. He also asked why he was being place in a pool of one and raised a number of other points. His paper showed a breakdown of the work that was done by the claimant and the number of hours spent over a particular period.[30]The information the claimant supplied showed that in one month around 30 of the 160 hours were spent on tasks ordinarily given to the junior reporting team members. Those tasks had been given to the claimant as a result of the reduction in the tasks he was employed to do. The claimant had been carrying out his specialist role in the remainder of the time. Mr Harrison considered the material the claimant had provided and considered the position generally in light of his knowledge of the team and the work the claimant did on a day to day basis. Mr Harrison was satisfied that the reduction in the work for which the claimant had been employed was such as to justify his role becoming redundant. There was and continued to be a diminution of the need for the work the claimant did. He also considered that as the role the claimant did was unique, and was a role the claimant was carrying out for the vast majority of his time, it was reasonable to proceed with a pool of one. The information the claimant provided was a small snapshot of the work the claimant did, a large amount of which was reducing.[31]At the consultation meeting on 6 November 2024 which the claimant attended with Mr Harrison and the HR adviser, the claimant was given a response to the issues he had raised, which Mr Harrison had fully considered. The role the claimant believed he was suitable required different skills and experience which the claimant did not appear to possess but if he wished to be considered for it, he could apply (and he would be guaranteed an interview). He would be given the chance to show the skills he did have (if, for example, he had gained skills outside the role he had carried out).[32]Mr Harrison had considered the issue as to pooling. The only role that was disappearing within the team at this time was the role the claimant was carrying out. It was a role that was no longer sustainable in light of the respondent’s business needs (a matter the claimant had previously conceded). The claimant’s role was unique and he was the only person employed to carry it out and did spend the vast majority of his working time carrying out the specialist tasks. The claimant had been given other duties to fill his day as the pipeline of work in respect of the senior work had not yielded more work. The work the junior staff did was also declining and forecast to continue to decline given the way in which the business was changing. The management information analysts team had already decreased from 4 to 2.[33]Given the role which was in scope was a unique role, a role that was completely different to the role carried out by the reporting team and a role that no one within the team carried out except for the claimant, it was decided to proceed with the pool of 1. The claimant’s reply upon being given that information was to say: “It is good to close the loop. It confirmed my thoughts. That is fine Thanks for doing that.” He did not further dispute that issue.[34]There having been no further issues or questions, Mr Harrison decided to consider matters further and make his decision. Mr Harrison did so and the claimant met with Mr Harrison and the HR officer on 13 November 2024 when the claimant was advised that as the respondent was moving away from legacy reporting mechanisms and focus on self service automation and given his role was unique, in the absence of any alternative ways to secure the necessary savings, his role was redundant and the claimant was being dismissed by reason of redundancy. The rationale[35]Mr Harrison considered how best to deal with the economic situation and decided that it would be appropriate to place the claimant in a pool of one by virtue of the fact that he was carrying out a unique role which had been maintained by providing work that more junior members of the team would do. Having applied his mind to the situation, he concluded a pool of one was appropriate, having taken Mr Jackson’s advice in light of the other roles within the business. Mr Harrison provided the claimant with the rationale which he accepted. The claimant did not dispute the position and accepted that his role was redundant given the diminution of work. He did not raise the issue of the pool again.[36]Mr Harrison considered alternatives to dismissal. There was no suitable alternative work but the claimant was told he would be offered an interview in respect of other vacancies. The claimant chose not to apply for any other role.[37]On 13 November 2024 the claimant was sent a letter headed “notification of redundancy” which confirmed the outcome of the meeting that day and he was given the right to appeal. Appeal[38]The claimant appealed against the decision by email dated 15 November 2024. He set out 3 main reasons why he believed his dismissal was unfair. First he argued there was no genuine redundancy situation as there was residual work remaining which he could do. Second he argued that the selection was “subjective rather than objective” as he argued it was based on his job title and not the work he carried out. Finally he said ACAS guidance suggested he should have been given the alternatives roles. The claimant did not expressly raise any issue with him having been placed in a pool of one.[39]The claimant set out what he wanted to happen following his appeal: “Based on these three points my redundancy does not meet the criteria set by ACAS and is therefore a case of unfair dismissal. As this is the case I expect either of these options below from you. 1 A settlement agreement that will waive my rights to pursue a claim of unfair dismissal with the amount to me of £20,000. 2 A document from the company stating you do not agree so I can pursue payment via the courts. I do not want a meeting and I am putting you on notice should there not be a successful resolution I will be raising an unfair dismissal claim.”[40]Mr Paxton, Chief Information Officer, Mr Harrison’s line manager, heard the appeal. Mr Paxton had been involved in the process at the earliest stage as Mr Harrison’s line manager. He had set Mr Harrison with the objectives (which included cost cutting), but it was Mr Harrison’s decision to dismiss the claimant as line manager.[41]Mr Paxton considered the appeal afresh and each of the points the claimant had raised and more generally assessed the process that Mr Harrison had taken the claimant through and the rationale for the decision reached. Mr Paxton was aware that Mr Harrison had not gone through a formal redundancy process before and Mr Paxton wished to assess what had occurred and ensure that the claimant had been treated fairly. Mr Paxton had not been involved in the consultation process or Mr Harrison’s decision and considered matters objectively.[42]By letter dated 28 November 2024, running to 4 pages. Mr Paxton set out in detail his decision on each point in detail. Mr Paxton had undertaken detailed inquiries in relation to the decision to dismiss the claimant, spoken with Mr Harrison and assessed the business case and process followed. He had also taken HR advice.[43]In relation to the assertion that the claimant’s role had only reduced by 20%, it was noted that the claimant’s role was Data Insights Analyst and that role had become redundant. There was no business need for the work carried out by that role. The work the claimant had been given to fill his time was work ordinarily given to the analysts, who were junior to the claimant (and paid considerably less than the claimant). The claimant was also at a senior level to the manager of that team. The reporting team’s work was also reducing due to automation.[44]It was noted that the claimant had agreed at the first consultation meeting on 30 October 2024 that the claimant’s role had become redundant. Mr Paxton did not agree that 80% of the claimant’s role remained. It was Mr Paxton’s view in fact that 80% of the claimant’s core duties had reduced. The first ground was not upheld.[45]With regard to the second ground of appeal, Mr Paxton concluded that the role of Data Insights Analyst had become redundant due to the work that role provided no longer being required. The decision was objective.[46]Finally, Mr Paxton considered the assertion no alternative had been considered. It was noted that the claimant had not challenged Mr Harrisons’ assessment that the claimant did not possess the necessary experience and skills for the senior role that he had identified. He set out in detail why the role was not suitable for the claimant. He noted that the claimant had been told that he had been given the opportunity to apply for the role if he wished to be considered for that (or any other role) but the claimant had not done so.[47]Mr Paxton considered the process and decision generally and concluded that the approach taken was fair and reasonable and the appeal was dismissed.[48]The claimant’s last day of employment was 13 November 2024. Observations on the evidence[49]The Tribunal considered the evidence carefully and in context of all the evidence before this Tribunal, both in writing and that presented orally.[50]Ms Jackson, HR Manager, explained how the respondent’s systems worked and confirmed that a decision as to the pooling of the employee had been considered carefully. She explained that she had supported Mr Harrison with regard to the procedure and considered the position with regard to pools. She had taken time to assess the claimant’s role and that of others. She confirmed that the claimant’s role was unique and that it was Mr Harrison who made the relevant decisions.[51]Mr Paxton was clear and consistent. He genuinely considered the claimant’s case on its own merits. He was candid, for example, about expressing his concern about hearing the appeal when he had, to an extent, been involved in the process (for example in having met with Mr Harrison and Mr Jackson). The Tribunal found his evidence to be credible and accepted his evidence that he had given Mr Harrison assistance in the redundancy process, principally by providing him with a template he had used before, which Mr Harrison was able to populate in light of his knowledge of the claimant and the rationale for their proposal. It was Mr Harrison who had made the decisions in question. Mr Paxton had tasked My Harrison with objectives which included cost cutting, and it was Mr Harrison who had identified the claimant’s role as at risk and his decision to proceed in the way he had. Mr Paxton had only been involved at the initial stage and not in terms of consultation (or making the decision). He candidly explained that he was initially concerned about dealing with the appeal given his involvement but the Tribunal was satisfied that he genuinely applied his mind to the decision he had to take and assessed the facts fairly and fully. Mr Paxton took the time to assess what Mr Harrison had done given it was Mr Harrison’s first experience of this process. Mr Paxton fully and fairly considered the process and reasons. The Tribunal was satisfied Mr Paxton applied his mind objectively to the appeal, evidenced by the detailed and considered outcome.[52]Mr Harrison dealt with each of the issues before him in a detailed and fulsome way. The Tribunal found his evidence clear and cogent. The claimant himself also accepted the evidence Mr Harrison gave since he decided, having had the benefit of the evidence, to withdraw his claim for victimisation, accepting that the protected acts were in no sense a reason for his treatment.[53]The Tribunal accepted the rationale Mr Harrison gave for identifying the claimant’s role as being at risk of redundancy. The commercial reasoning was clear. The Tribunal noted the time taken by Mr Harrison to consider the process, which included the issue of pools and redundancy process generally. Mr Harrison carefully considered the options open to him and explained in detail why he opted to proceed in the way he did. There was a clear business case for proceeding with the claimant’s role given its unique nature and a clear case for proceeding with a pool of one. From the evidence in this case, the Tribunal, as an industrial jury and with the benefit of the non legal members’ considerable expertise was able to find that even if earlier consultation had taken place with the claimant as to the issue of the pooling, the outcome would have been precisely the same. The commercial rationale given by Mr Harrison would have been unaltered despite the claimant’s different view and the Tribunal was satisfied that would have been the position irrespective of what the claimant had set out and believed, from the material before the respondent (and laid before the Tribunal). Mr Harrison had made the decision as to the process to be adopted, working with the HR team.[54]The claimant was clear and candid. He was a skilled professional in his role and was naturally unhappy at losing his job and given the clear skill base he had, the claimant found it difficult to understand his dismissal. While there had been a suggestion as to the alternative role having been withdrawn, the claimant conceded that he did not in fact apply for that role (despite accepting he had been told he would be guaranteed an interview to show his skill set and suitability for the role). He had also not challenged the decision as to pools once he had been told the rationale, either at the subsequent consultation meetings (when he could have raised any issues or concerns, which would have been considered in a meaningful way as the other issues had) and he chose not to raise that issue upon appeal either (arguing that the decision was “subjective” based on his job title). The claimant accepted the reasons given as to the pool position at the time. It is also notable that the claimant did not raise any issue at the time or suggest that there was any concern with Mr Paxton dealing with the appeal.[55]With regard to factual disputes, the key dispute related to whether or not the claimant’s duties had in fact reduced by 80% or 20%. The Tribunal found Mr Harrison had a keen eye for detail. He was also in a position to know what the claimant did in relation to the teams for which he was responsible, given his oversight to the way in which work was allocated (via a ticket system). While Mr Harrison did not oversee the claimant on a day to day basis, he was able to view the work the claimant had done from his perspective and assess that as against the work the respondent did. He had also a working relationship with the reporting team manager. The claimant naturally was focused on his position and strongly believed (latterly) that his workload had not materially reduced. That contradicted what he had accepted at the initial stages of the redundancy consultation process. The Tribunal found Mr Harrison’s position to be more likely than not to be the case and preferred his evidence where it disagreed with the position the claimant set out.[56]This was not a science but an art and a question of impression and degree. The Tribunal recognised the difference in position and approach. Having assessed the evidence, the Tribunal preferred the carefully considered and detailed position set out by Mr Harrison as to the claimant’s workload in light of the context and commercial position. The claimant’s day to day tasks were those required of him in terms of his contract (the senior position he undertook). Those duties formed the majority of his day to day activities. While he did carry out other work (which were ordinarily given to those within the reporting team), most of his actual work was in relation to the senior tasks, which were diminishing. The Tribunal accepted Mr Harrison’s assessment that there had been a clear diminution in the requirements for the work the claimant was employed to do and that he was dismissed solely because of that. The Tribunal accepted his evidence that the work the claimant ordinarily did substantively and fundamentally differed from the work of those within the reporting team. The Tribunal found that Mr Harrison’s decision to place the claimant in a pool of one in light of the context to fall within the range of responses open to a reasonable employer for the reasons set out below. Law – Unfair dismissal[57]The Tribunal has to decide whether the employer had a reason for the dismissal which was one of the potentially fair reasons for dismissal within section 98(1) and (2) of the Employment Rights Act 1996 and whether it had a genuine belief in that reason. One of the potentially fair reasons is redundancy (which the employer requires to establish as the reason).[58]Once an employer has shown a potentially fair reason for dismissal within the meaning of section 98(2), the Tribunal must go on to decide whether the dismissal for that reason was fair or unfair which involves deciding whether the employer acted reasonably or unreasonably dismissing for the reason given in accordance with section 98(4).[59]Section 98(4) provides that the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer): “Depends on whether in the circumstances (including the size and administrative rescores of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and shall be determined in accordance with equity and the substantial merits of the case.”[60]What a Tribunal must decide is not what it would have done but whether the employer acted reasonably; Grundy (Teddington) Ltd v Willis HSBC Bank Plc (formerly Midland Bank plc) v Madden 2000 ICR 1283. It should be recognised that different employers may reasonably react in different ways and it is unfair where the conduct or decision making fell outside the range of reasonable responses. The question is not whether a reasonable employer would dismiss but whether the decision fell within the range of responses open to a reasonable employer taking account of the fact different employers can equally reasonably reach different decisions. This applies both to the decision to dismiss and the procedure adopted.[61]Mr Justice Browne-Wilkinson in his judgement in Iceland Frozen Foods Ltd v Jones ICR 17, in the Employment Appeal Tribunal, summarised the law: “The starting point should always be the words of section 98(4) themselves. In applying the section, a Tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the Tribunal) consider the dismissal to be fair. In judging the reasonableness of the employer’s conduct, a Tribunal must not substitute its decision as to what was the right course to adopt. In many (though not all) cases there is a band of reasonable responses to the employee’s conduct in which the employer acting reasonably may take one view, another quite reasonably take another. The function of the Tribunal, as an industrial jury, is to determine whether in the circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which the reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair, if it falls outside the band it is unfair.”[62]In terms of procedural fairness, the (then) House of Lords in Polkey v AE Dayton Services Ltd 1988 ICR 142 firmly establishes that procedural fairness is highly relevant to the reasonableness test under section 98(4). Where an employer fails to take appropriate procedural steps, the Tribunal is not permitted to ask in applying the reasonableness test whether it would have made any difference if the right procedure had been followed. If there is a failure to carry out a fair procedure, the dismissal will not be rendered fair because it did not affect the ultimate outcome; however, any compensation may be reduced. Lord Bridge set out in this case the procedural steps which an employer in the great majority of cases will be necessary for an employer to take to be considered to have acted reasonably in dismissing.[63]If following a fair procedure would be utterly futile, the dismissal would be fair but that is very much an exceptional case - See Choudhury P in Gallacher v Abellio Scotrail Ltd UKEATS/0027/19 who emphasised any case where the employer argues that to have gone through procedures would have been futile must be examined carefully and it is only in rare cases would such an argument succeed.[64]Redundancy is defined in section 139 of the Employment Rights Act 1996 as arising where the dismissal is wholly or mainly attributable to the fact the employer ceases or intends to cease to carry on the business for the purposes she was employed or in the place she was employed or where there is a cessation or diminution of the requirements for employees to carry out work of a particular kind or to carry out work of a particular kind in the place they were employed.[65]“Redundancy” is defined at ERA 1996, section 139 as follows: “(1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to – (a) the fact that his employer has ceased, 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.”[66]The reason for a dismissal may be redundancy in circumstances where the employee’s own job was not work of the particular kind for which the requirement had ceased or diminished (see Murray v Foyle Meats Ltd [1999] ICR 827). It is the requirement for employees to do work of a particular kind which is significant. The fact work is constant or increasing is irrelevant. Provided fewer employees are needed to do work of a particular kind there is a redundancy situation – McCrea v Cullen 1988 IRLR 30. It is important to consider whether the dismissal was attributable to the diminution or cessation of the requirements of the employer for employees to carry out work of particular kinds (which could involve work of several kinds) – Contract Bottling Ltd v Cave EAT/525/12.[67]The starting point for principles determining the fairness of a redundancy dismissal is Williams v Compair Maxam [1982] ICR 156. Issues of unfairness may arise if there is insufficient warning (to enable employees to understand what is likely to happen and to plan), insufficient consultation (to agree how dismissals would be effected to limit the hardship where possible), a fair process of selection (avoiding, where possible, total reliance on subjective views of managers with a degree of objectivity and ensuring the process is fair in accordance with the criteria) or insufficient efforts to identify alternative employment. This provided guidance and the Tribunal should ensure the employer acts fairly and reasonably on the facts.[68]An employer must act reasonably at each stage of the process. Thus the Tribunal should be careful to assess whether the respondent acted reasonably in its choice of pool and process, making sure the employer did genuinely consider the position. In this regard the Tribunal should assess each stage of the process to consider whether the approach taken fell within the range of reasonable responses open to a reasonable employer on the facts. Consultation must be meaningful and commenced at a point prior to a decision having been taken to ensure the employer approaches matters with an open mind and consults fairly in relation to each relevant issue.[69]The issue as to the fairness of a dismissal by reason of redundancy when considering pooling was considered in Mogane v Bradford Teaching Hospital 2022 EAT 139. In that case HHJ Beard said that the formative stage of a redundancy process is where consultation ought to take place according to the principles from Williams. This is because that means that a consultation can be meaningful and genuine. Consultation, to be fair, should occur at a stage when what an employee advances at that consultation can be considered and has the potential to affect the outcome. He noted that while a Tribunal should not easily interfere with the employer’s decision as to the pool, the Tribunal should ensure that it considered whether the pool is one that a reasonable employer could adopt in all the circumstances. He considered that the implied term of trust and confidence means an employer would not act arbitrarily between employees.[70]On the facts in that case the Employment Appeal Tribunal found that the decision to dismiss the claimant had been made before any level of consultation with the claimant had taken place. Thus he noted the decision on pool and the claimant’s dismissal had been taken “long before” any consultation had commenced which resulted in an arbitrary choice in connection with the end of the claimant’s fixed term contract.[71]The Tribunal has also not explained why it was fair to have proceeded to have dismissed without consulting about this issue. The Tribunal must explain its decision as to the reasonableness of the process (which applies to both consultation and pooling). In the specific circumstances of that case the Employment Appeal Tribunal found the claimant was effectively dismissed before any consultation had taken place. The absence of any meaningful consultation at a stage when the employee had the potential to change the decision is indicative of an unfair process and a Tribunal would require to give reasons for finding such a dismissal to be fair. That case was remitted to another Tribunal to consider afresh.[72]That case was considered more recently in Valimulla v Al-Khair Foundation 2023 EAT 131 in which HHJ Tucker considered the foregoing authority in a situation where an employee was placed in a pool of one where others, doing the same role in other locations, had not been considered and no consultation took place on that matter. The Employment Appeal Tribunal found that the Tribunal had not questioned whether the selection of the particular employee was fair or not which required a consideration of the selection process, and the pooling issue.[73]The Employment Appeal Tribunal accepted there was no singular process to deal with redundancy situations but the “litmus test” is one of reasonableness as to the process and decision making of the employer. The Tribunal must consider whether the employer genuinely applied their mind as to the pool issue and determine whether the pool selected fell within the range of reasonable open to a reasonable employer.[74]On the facts the Tribunal had failed to explain why it found the process to be fair where the consultation had taken place after the time the claimant could make meaningful proposals about being placed in a pool of one. No explanation was given from the facts the Tribunal found as to why consultation in that case could be meaningful in respect of that important issue (that is, before a final decision has been reached and in good time to allow the employer to consider the employee’s position and respond).[75]The claimant in that case had expressly raised the issue about being placed in a pool of one but no reasons were given as to why so doing (and the position as to consultation) fell within the range of reasonable responses or otherwise. Consultation is a necessary ingredient of a fair process and there needs to be particular reasons why a redundancy dismissal is fair where consultation did not take place about an issue that was key to the selection . The matter was remitted to a fresh Tribunal to consider.[76]Section 98(4)(b) requires tribunals to determine the reasonableness of a dismissal ‘in accordance with equity and the substantial merits of the case’. Equity, in this context, is equivalent to ‘fair play’. As Lord Simon stated in W Devis and Sons Ltd v Atkins 1977 ICR 662 ‘the reference to “equity and the substantial merits of the case” merely shows that the word “reasonably” is to be widely construed’.[77]The reasonableness of the decision to dismiss is scrutinised at the time of the final decision to dismiss – at the conclusion of the appeal process (West Midland v Tipton 1986 ICR 192). This was confirmed in Taylor v OCS 2006 IRLR 613 where the Court of Appeal emphasised that there is no rule of law that only a rehearing upon appeal is capable of curing earlier defects (and that a mere review never is). The Tribunal should consider the disciplinary process as a whole and apply the statutory test and consider the fairness of the whole disciplinary process. If there was a defect in the process, subsequent proceedings should be carefully considered. The statutory test should be considered in the round.[78]The appeal is part of the process to dismiss and should be considered in assessing the reasonableness of the dismissal on the round. It has been shown that a failure to consult an employee before dismissal can be cured at an appeal hearing after the date of dismissal — see Lloyd v Taylor Woodrow Construction 1999 IRLR 782. In that case the Employment Appeal Tribunal held that that the Employment Tribunal had been entitled to find that the defect in consultation prior to dismissal had been cured by the rehearing at the appeal stages. Submissions[79]The respondent had provided the claimant with detailed written submission which he was able to consider. Both parties were able to provide oral submissions on the final day and answer questions from the Tribunal. The submissions of both parties have been fully taken into account. While the Tribunal had advised the parties upon submissions that it had hoped to be in a position to issue an oral judgment, due to the issues arising at the submissions stage and the amount of material the Tribunal had to consider, the parties were advised that regrettably it was not possible to proceed with an oral judgment. The Tribunal wished to consider in detail the 2 cases referred to above with regard to pools in light of the facts of this case. Decision and discussion[80]The Tribunal considered each aspect of the claim the claimant advanced in turn in light of the evidence and applicable law and was able to reach a unanimous decision with particular assistance having been gained from the non legal members’ industrial expertise and insight. Unfair dismissal – Reason for dismissal[81]The first issue that arose in this case was what the reason or principal reason for the claimant’s dismissal was. The respondent argued that it was redundancy in that it was wholly or mainly attributable to the fact that the requirements of the respondent’s business for employees to carry out work of a particular kind, had ceased or diminished or were expected to cease or diminish in accordance with the provisions of section 139(1)(b)(i). The claimant’s agent argued there was no genuine redundancy situation and this process had been a sham designed to remove the claimant.[82]The Tribunal considered this issue carefully. Applying Safeway Stores plc v Burrell 1997 ICR 523 the Tribunal had to consider whether the employee 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 caused wholly or mainly by the cessation or diminution?[83]The parties agreed that the claimant was dismissed. It was also clear that the respondent’s need for employees to carry out the work done by the claimant and the reporting team with whom he worked in 2024 had diminished and were expected to diminish further. The background cause of this diminution was the need to cut costs and the reduction in the claimant’s data insight analyst reporting responsibilities together with the respondent’s strategy to move away from legacy reporting mechanisms and maximise automation as much as possible.[84]The Tribunal fully accepted Mr Harrison’s evidence that the respondent needed to make cost cuts and as a result he required to reduce his department’s costs. That was not disputed by the claimant.[85]It is relevant to note that consultation with the claimant began on 28 October 2024 and the claimant (as a minimum) 20% of his role was disappearing. The respondent’s position, which the Tribunal accepted from the evidence, was that in fact the claimant’s senior duties had reduced by 80% with the fill in work (which would ordinarily have been given to the junior reporting team members) amounting to 20% of his workload, which was dependent upon the pipeline of work for the senior tasks, the job the claimant was employed to do.[86]In the course of the consultation meeting of 30 October 2024 the claimant agreed there was a redundancy situation and that “it makes sense to make role redundant”. The claimant understood the rationale for his role being at risk and accepted it.[87]The Tribunal was satisfied from the evidence, which was compelling and clear, that there was a diminution of work. The work the claimant required to do had significantly reduced with that reduction likely to continue. The respondent had waited a considerable period of time to ascertain whether the senior work would yield either internally or externally but that did not materialise and was unlikely to do so. It was also clear and compelling from the evidence that the reporting team’s work was reducing due to automation and the work was expected to diminish further. There was therefore a genuine redundancy situation Reason for the dismissal[88]The final question the Tribunal needs to answer is what the reason for the dismissal was. This is the key question. On this case the Tribunal finds the dismissal of the claimant was caused wholly or mainly by the diminution in work. The reason for the claimant’s dismissal was redundancy as per section 98(2)(c) of the Employment Rights Act 1996. The sole reason for the claimant’s dismissal was that there was insufficient work for him to do. His dismissal was therefore for a prima facie fair reason, namely redundancy.
Procedure
[89]The fact that the claimant was dismissed for a potentially fair reason does not mean the dismissal was fair. The Tribunal must consider the procedure the employer adopted and assess the fairness of the approach taken, as industrial jury, applying the law as set out above. The Tribunal considered each stage of the process and assessed whether the procedure that was adopted in this case fell within the range of reasonable responses open to a reasonable employer in light of the facts.[90]Having done so and having carefully viewed the evidence the Tribunal found that the consultation was fair, genuine and meaningful. It began on 28 October 2024 with notice of being at risk and the explanation of the rationale and approach to be taken. The claimant understood what was taking place and why. The claimant had adequate time in which to respond and did do so on 4 November 2024.[91]The claimant’s response was considered by Mr Harrison whose position was set out for the claimant on 6 November 2024. There was a detailed exchange about the alternative role of Business Intelligence Developer and in answer to the questions asked in the email of 4 November 2024. There was no suggestion by the claimant in his appeal that he had not had the opportunity to put forward his views or that the consultation was a sham.[92]The respondent considered alternatives, accepting that dismissal was a last resort. The claimant had the offer of interview for the Business Intelligence Developer vacancy but did not apply. The claimant had also seen all of the other available roles within the respondent’s business at the time but again did not apply for any of them. The respondent genuinely looked for alternatives to dismissal and considered dismissal of the claimant as a last resort. He was offered a guaranteed interview in respect of any vacancy to ensure the claimant was given the chance to show any skills he had and his suitability for any role. The claimant chose not to apply for any role. The pooling issue[93]The claimant’s first of two challenges as to the fairness of the dismissal lay in the respondent’s decision that the claimant should be in a pool of one. The Tribunal considered this in detail in light of the facts and authorities in this area. The Tribunal is mindful of the requirement that the respondent engage in consultation in a meaningful way at a formative stage to ensure that it acts fairly and reasonably in all the circumstances at each stage of the process.[94]The respondent in this case genuinely applied its mind to the issue of pooling. The Tribunal found the decision taken fell within the range of reasonable responses available to an employer in the circumstances. While some reasonable employers might well have chosen to pool the reporting team members (possibly including the reporting team manager), the Tribunal was satisfied that an equally reasonable employer would have proceeded as Mr Harrison did. The Tribunal accepted counsel for the respondent’s submission that it was not outside the band of reasonable responses for the respondent to place the claimant in his own pool. This was a decision reached having considered the authorities in detail in light of the facts in this case and applying the industrial expertise of the panel having taken time to consider the issue.[95]The work of the other reporting team members (and manager) were separate and distinct. Their role fundamentally differed from what the claimant did. The claimant’s role was unique and the requirements of that role had diminished. The reporting team (and its manager) were more junior to the claimant. The claimant’s role was unique and it was fair to place him in a pool of one.[96]The respondent genuinely and in detail carefully considered the pooling issue before commencing the consultation. At the 6 November 2024 consultation meeting the claimant was given a direct response to the concern he had raised, which the claimant accepted. While there was no direct consultation on the pool issue, the claimant understood and accepted the rationale at the time. On appeal claimant argued the decision had been “subjective” but he understood and accepted the rationale when he was given it.[97]The facts before this Tribunal differ from the 2 cases relied upon by the claimant. Further, the Tribunal must apply the statutory wording in assessing the fairness of the dismissal in this case. The claimant’s agent argued that the authorities in this area support the proposition that a failure to consult in relation to a pool of one would always amount to an unfair dismissal. The law is, however, more nuanced than that, given what the cases say.[98]The position in this case is that the decision as to the pool and rationale therefor was explicitly raised and explained to the claimant during the consultation process. That differs from Mogane supra where the decision to dismiss the claimant had been made before any consultation with the claimant and where the decision on pool and the claimant’s dismissal had been taken “long before” any consultation had commenced which resulted in an arbitrary choice in connection with the end of the claimant’s fixed term contract.[99]In the case before this Tribunal, the claimant was explicitly told about the rationale for proceeding with a pool of one. The claimant subsequently challenged the issue and the respondent provided a response which the claimant accepted. This was not a case where the pooling question necessarily determined the dismissal issue. It was possible that alternatives to dismissal could have been identified. Dismissal was not a certainty. The respondent in this case genuinely and meaningfully applied its mind to the pooling issue, consulted the claimant about avoiding dismissal and considered the pooling issue when raised by the claimant.[100]Consultation with the claimant had commenced while he had been placed in a pool of one but the respondent had not closed its mind to any matters raised by the claimant. The claimant understood why he was pooled himself and accepted that decision. The response the claimant was given identified his unique role and his seniority. He understood and accepted that explanation when it was given. No amount of consultation with the claimant as to that issue would have altered the position. The approach the respondent took in this case on the facts fell within the range of reasonable responses.[101]In this case there are clear and compelling business reasons for not including others within the pool. This is not the case where others were doing the same work as the claimant (which was the position in Valimulla supra, where there were others doing identical work at a different location). In this case the role the claimant did was unique and demonstrably more senior than those in the reporting team (and its manager). The claimant accepted his role had become redundant at the first consultation meeting. While some employers may reasonably have placed him in a pool with the other junior staff, equally reasonable employers could do what happened in this case. While the claimant did similar work to the other staff to fill his time, the junior reporting team (and manager) did not do what the claimant did. The claimant’s role was genuinely unique and the pipeline for the work he was employed to do was drying up. He spent the vast majority of his time on the more senior (unique) work. It was reasonable to place the claimant in a pool of one (and to not have consulted with him sooner on that issue on the facts of this case given the unique nature of his work, his seniority and the context and claimant’s acceptance of the position).[102]Applying the principles from Valimulla, the Tribunal assessed the process followed both in respect of the selection process and the pooling issue, applying the “litmus test” of reasonableness to the process and decision making of the employer. The Tribunal found the respondent genuinely applied its mind as to the pool issue and that the pool selected fell within the range of reasonable responses open to a reasonable employer, recognising different equally reasonable employers can act in different ways.[103]It was important to assess whether the way in which consultation took place was fair given the timing of the process and facts. In this case the claimant was given the opportunity to make representations. Mr Harrison considered the points the claimant raised as to pool and gave the claimant a detailed response which the claimant accepted. That consultation was meaningful. The respondent approached the issue with an open mind having genuinely applied its mind to the issue and having acted reasonably on the facts.[104]Unlike the position in Valimulla, in this case the respondent gave the claimant cogent reasons why he was placed in a pool of one during the process which were accepted. Doing so was a decision that fell within the range of reasonable responses open to a reasonable employer. Consultation is a necessary ingredient of a fair process and the claimant fully understood (and accepted) the approach taken on this issue. The Tribunal found that the approach taken fell within the range of reasonable responses. Earlier consultation on the pool issue would have made no difference at all.[105]This was not a case where the employer consulted about a pool of one prior to commencing the consultation. In many (if not most) cases, such an approach will be outside the band of reasonable responses given the importance of consulting at a formative stage but there are rare cases where a failure to consult about the pool does not, by itself render the dismissal unfair. This is one of those rare cases. Relying upon the expertise of the non legal members, the failure to consult about the pooling position separately was a reasonable decision in this case because the claimant’s role was unique. He did the other (significantly more junior) work to fill his time. He was a more senior employee than both the reporting team and its manager.[106]The Tribunal carefully assessed the facts of this case and reached the unanimous view that the decision to pool the claimant on his own and to consult with him in the manner the respondent did was a fair and reasonable position to adopt, one which fell within the range of reasonable responses open to a reasonable employer on the facts of this case. The claimant knew he was being pooled on his own, understood the rationale, raised it during the consultation process and accepted the explanation at the time. The issue of the pool was considered by Mr Harrison and HR at the time.[107]The Tribunal was satisfied that even if the failure to consult about the issue as to pooling at the outset was a procedural failing, it was, exceptionally, a procedural failure of no substance since the consultation about the pool would undoubtedly have led to the same outcome. It would have been utterly futile to have consulted earlier on this matter on the facts, since the outcome would have been precisely the same, from the evidence before this Tribunal.[108]The respondent’s decision on a pool of one was not outside the band of reasonable responses and the respondent’s approach in relation to that matter did not render the dismissal unfair. Appeal officer[109]The next and final ground relied upon by the claimant in support of their contention that the dismissal was unfair was that allowing Mr Paxton to deal with the appeal rendered the dismissal unfair as he had been involved in the decision at an early stage. The claimant relied upon general rules of fairness (rather than any particular legal authority). While the ACAS Code does not apply to redundancy dismissals, the Tribunal must consider the process followed generally in light of the legal tests of fairness.[110]The Tribunal considered this in detail. The Tribunal was satisfied that Mr Paxton acted impartially in deciding the claimant’s appeal. While it may have been preferable for someone entirely independent to have dealt with the appeal, looking at how the appeal was conducted and the facts, the decision to involve Mr Paxton in the appeal in light of his detailed and objective consideration of the position, was not an approach that fell outside the band of reasonable responses. While some reasonable employers may well have avoided any doubt and engaged an independent party, in this case am equally reasonable employer could have engaged Mr Paxton to deal with the appeal given his position and limited involvement in the process. The decisions in question were those of Mr Harrison, which Mr Paxton considered afresh.[111]The Tribunal must avoid a counsel of perfection but equally must assess the approach the respondent took as against the statutory test of fairness. The question was whether the respondent acted fairly and reasonably in proceeding to allow the claimant’s appeal to be heard by Mr Paxton. Mr Paxton had been involved in the process at the earliest stage (requiring Mr Harrison to make cost savings, which applied throughout the business) but the key decisions that were taken were those of Mr Harrison. The Tribunal found Mr Paxton to have fully and fairly considered each of the points the claimant raised and to have done so in a fair and reasonable manner. The decision to involve him was not a decision that fell outside the range of reasonable responses open to a reasonable employer. It is notable that there was no challenge by the claimant at the time to Mr Paxton’s involvement in the appeal. In any event, the Tribunal was satisfied he properly and fully considered the grounds of appeal and gave a detailed and reasoned basis for rejecting those grounds. The appeal process was considered, fair and reasonable. There was, on the facts of this case, no basis to find that the approach taken in relation to the appeal was such as to lead to a finding that the dismissal was unfair taking account of size, resources, equity and the merits of this case. There was no doubt the respondent could have engaged an independent manager but the Tribunal found on the facts, with the benefit of non legal members, the failure to do so did not render the dismissal unfair applying the legal tests in this area. Dismissal falls within the band of reasonable responses[112]Taking a step back and considering all the circumstances, the claimant’s dismissal fell within the range of responses open to a reasonable employer. The Tribunal avoids applying counsel of perfection. The fact other reasonable employers may have chosen to pool the claimant with his colleagues (who were engaged on a different contract but who on occasion did similar work) or who may have chosen another manager to deal with an appeal, does not mean an equally reasonable employer could decide on the facts of this case to dismiss the claimant by reason of redundancy and do so fairly. The decision fell within the range of responses open to a reasonable employer taking account of size and resources of the respondent, equity and the merits.[113]Finally, the Tribunal took a step back to consider whether the procedure that the respondent followed in this case was a procedure that fell within the range of responses open to a reasonable employer. On the facts, and relying upon the expertise of the non legal members, it was a fair procedure. The claimant was told of the rationale and accepted it. Detailed consultation took place and the claimant’s position was fully taken into account. Genuine and meaningful consultation took place. While consultation in respect of the pool did not begin prior to the consultation, in this case that was not outside the band of reasonable responses given the exceptional facts of this case and the meaningful consultation that took place. The procedure that led to the claimant’s dismissal by reason of redundancy, including the approach to the appeal process and substance thereof, fell within the range of responses open to a reasonable employer in all the circumstances when viewed in context. Fair dismissal[114]On the facts of this case, the claimant’s dismissal was not unfair. Breach of contract claim[115]Of consent, the parties agreed the respondent was due to pay the claimant the sum of £166.89 less deductions required by law in respect of a sum that had been erroneously deducted from the payments due to the claimant.