Mrs L Thomson v Scottish Police Authority: 4101709/2019

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4101709/2019

Venue Glasgow

Hearing 19 & 20 November 2019

Between

Mrs L ThomsonClaimant

Scottish Police AuthorityRespondent

Before

Employment Judge N Buzzard

Mr A Gibson (instructed by Solicitor) for respondent

Date 15 December 2019

JUDGMENT

The Judgment of the Tribunal is that the claimant was not dismissed and accordingly, the claimant’s unfair dismissal claim cannot succeed and is dismissed.

REASONS

[1]The claimant in this claim pursued a claim of unfair dismissal only.

[2]The respondent did not accept that the claimant had been dismissed. It was the respondent’s position that the claimant had retired on a voluntary basis.

The Law

[3]For there to be a valid claim of unfair dismissal a claimant must establish that they have been dismissed. If this is disputed, the burden of proof to show a dismissal has occurred falls on the claimant. If this burden of proof is not met, and the claimant is not found to have been dismissed, no claim of unfair dismissal can succeed. E.T. Z4 (WR)

[4]The relevant definition of dismissal for the current case is set out in s95 of the Employment Rights Act 1996 (“ERA”) as follows: 95 Circumstances in which an employee is dismissed. (1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2), only if)— (a) the contract under which he is employed is terminated by the employer (whether with or without notice),… or (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.

[5]At the outset of the hearing the legal basis upon which the claimant sought to establish she was dismissed was discussed. It was noted that the claimant was not legally represented at the hearing. The claimant was, at the outset of the hearing unable to state with certainty if she was seeking to argue she was dismissed under the scope of s95(a), commonly referred to as an ‘actual’ dismissal, or if she was dismissed under the scope of s95(c) commonly referred to as a ‘constructive’ dismissal.

[6]The claimant’s claim is that her employment terminated under a scheme operated by the respondent called the ‘SPA Voluntary Redundancy/Early Retirement Scheme’ (the “Scheme”). This much was common ground between the parties. The claimant identified two alternative arguments regarding the status of that termination of employment:• that the respondent had accepted her application for voluntary redundancy, and as a redundancy termination it was an actual dismissal (under s95(a)ERA); or in the alternative

• that the claimant had only applied for, and then taken, voluntary retirement as a direct response to circumstances which entitled her to resign and argue she was constructively dismissed (under s95(c)ERA).

[7]It is noted, and was conceded by the respondent’s representative, that the documentation produced by the respondent in relation to the Scheme used the terms ‘Voluntary redundancy’; ‘Early Retirement’, ‘Redundancy Retiral’ and similar in an interchangeable and unhelpful way. This was a significant factor which resulted in the claimant’s uncertainty regarding the status of the termination of her employment and whether she argued it was a constructive or actual dismissal.

[8]The parties in submissions did not refer to a relevant and specific authority regarding circumstances very similar to that in the claimant’s case. The case of Birch and Humber v University of Liverpool

[1985] IRLR 165

, was considered before reaching a determination in the claimant’s case. In that authority members of a University's technical staff had applied for voluntary retirement under the University's ‘Retirement Compensation Scheme’ following an announcement of the need for a reduction in staff numbers to reduce costs. This was found by the EAT not to be a dismissal. In reaching this conclusion the Nolan J stated: '' … the fact than an employee has no objection to being dismissed, or even volunteers to be dismissed, does not prevent his dismissal, when it occurs, from being a dismissal within the meaning of the Act. We do not read the judgment as encroaching in any way upon the distinction which exists in law between a contract which is terminated unilaterally (albeit without objection, and perhaps even with encouragement from the other party) and a contract which is terminated by mutual agreement. The phrase “consensual dismissal” which the [employment] tribunal used seems to us, with respect, to blur this critical distinction. In every case it will be necessary to determine what it is that has had the effect, as a matter of law, of terminating the particular contract, and on the undisputed facts of the present case it seems to us clear for the reasons already given that the termination was effected by mutual agreement and not by dismissal'.'

[9]This decision, and the comments of Nolan J were 'wholeheartedly endorsed' by Ackner LJ. At the Court of Appeal Slade LJ added that when deciding whether or not the contract had been terminated by the employer: “the authorities … require one to look at the realities of the facts rather than the form of the relevant transactions'”

[10]Accordingly, the question of whether a voluntary early retirement when faced with a potential redundancy amounts to a dismissal is a question of fact to be determined by the specific circumstances of the case, considering as put by Ackner LJ: ''Was there any pressure placed upon the employee to resign and if so was the degree of pressure such as to amount in reality to a dismissal?''

The Evidence

[11]The Tribunal heard from the claimant in person. For the respondent the Tribunal heard evidence from the claimant’s former line manager, Mr Peter Blair. In addition, the Tribunal were provided with an extensive bundle of documents.

[12]The findings of fact set out below were largely not in dispute. Where there was a dispute, the respective conflicts of evidence are set out along with reasons for the conclusion reached on that disputed point. Any points below where there is no discussion of how the finding of fact was reached are points that were not materially disputed in the content of the witness and documentary evidence heard.

[13]The claimant was employed by the respondent from 31 March 2003 until the termination of her employment on 27 September 2018. Since 2014 the claimant had worked as a Recruitment Manager within the ‘People and development, recruitment’ business area. Her line manager in that role was Mr Blair. The claimant was the first person to have that role who was not a serving police officer. This was a Band K level role. Prior to 2014 the claimant had various roles with the respondent, all involving recruitment work, all at bands below Band K.

[14]The claimant’s case was the role she took in 2014 was not a permanent role, it was temporary role for 18 months created due to ongoing pressures relating to police officer recruitment numbers. The claimant continued in this role until the termination of her employment. Mr Blair gave evidence that he had understood the claimant’s role to have been permanent as at the time of the termination of her employment, not a temporary role.

[15]In mid-2017 the respondent appointed a new Director of People and Development, Jude Heliker. This was as part of a planned wider organisational change and restructuring of the People and Development function within the respondent. The claimant gave evidence that she became aware of the restructuring from around 12 June 2017.

[16]The evidence of Mr Blair was that Jude Heliker had significant input into to the structure of the team that would report to her, following her appointment. The claimant, having initially suggested that Jude Heliker had designed the structure with a view to removing the claimant’s role, confirmed that she did not contend that the new structure had been designed with any thought to her individual role or employment, and that Jude Heliker had not sought to remove the claimant personally.

[17]In around mid-October 2017 the claimant gave evidence that she became aware that as part of the restructure the role she had been undertaking since 2014 was at risk. The evidence did not suggest that this was a result of a formal notification or similar. The claimant had been involved in the presentation of a paper regarding the restructure, which was dated 26 October 2018, and was included in the bundle of documents.

[18]The claimant’s evidence was that during November 2018 the possibly that there would, in addition to the new structure, be a temporary project based role she could fill was raised. Hereafter this is referred to as the “Project” role. Mr Blair’s evidence was that this possible Project role was always subject to budget approval, and whilst it was discussed with the claimant it could not, at that time, be offered. It was common ground between the parties that the Project role had been no more than a proposal which as matters transpired was not and had never been given funding approval.

[19]The claimant was formally notified that her role was at risk by letter dated 15 January 2019, which invited her to a 1-2-1 consultation meeting on 25 January 2019. The letter of invite specifically states that: “The meeting will provide the opportunity to discuss the impact of the new structure on your own post and the process by which staff will be assimilated into the new structure.”

[20]Within the new structure was a role with the title ‘Head of Recruitment and Selection’. This role was at Bank M, two bands above the Band K role the claimant was at that time performing. The structure included a more direct line of reporting than previously, so did not include as many roles at Band K, specifically the reporting line excluded a Bank K level person performing the claimant’s role.

[21]The claimant’s 1-2-1 consultation meeting took place as scheduled on 25 January 2019. The meeting was with the claimant’s line manager, Mr Blair. There were notes of the meeting in the bundle of documents, which neither the claimant or Mr Blair suggested were in any material way an inaccurate record of what was said and discussed.

[22]Mr Blair confirmed to the claimant that a role matching exercise had been undertaken between the claimant’s role at that time and the new Band M role. The claimant was informed that an 80% role match was needed for her to be automatically placed in the new role, and she had only been 62% matched. It was also specifically confirmed to the claimant that the Project role and two potential Band I roles in the new structure were at that time still awaiting approval.

[23]At the meeting the claimant was informed of the option of choosing to leave the respondent under the Scheme. It was explained to the claimant that under Voluntary Redundancy (“VR”) she would get a fixed lump sum incentive of £10,000 in addition a service based payment. The alternative under the Scheme, voluntary early retirement (“VER”) would entitle her to up to four compensatory added years (“CAY”) to her pension in addition to a service based lump sum calculated in the same way as the service based lump sum for VR.

[24]The claimant accepted that it was explained, and she understood, that the respondent had a policy that they would not make staff compulsorily redundant. Accordingly, the claimant was told at that meeting that her options were:• leave employment under the Scheme; or

• enter a supernumerary pool of employees pending redeployment; or

• be redeployed if a suitable post could be found.

[25]The claimant further confirmed in her evidence that she understood the following regarding the Supernumerary pool:• employees in the Supernumerary pool had their terms and conditions of employment protected; and

• it would only after being in the Supernumerary pool for 12 weeks or more that the claimant would lose her entitlement to the enhanced terms of departure (lump sum and CAY) under the Scheme;

• the claimant could remain in the Supernumerary pool for as long as it took to find her a suitable alternative role; and

• she could elect to take VER and leave the supernumerary pool without loss of benefit provided she did so within 12 weeks (her notice period).

[26]By email of 29 January 2018 Mr Blair outlined the two potential roles (the Band M role and the Project role) to the claimant. He further informed the claimant that he would draft a job description for the Project role and forward that to her. It was suggested to the claimant, in that email, that the Project role could be an alternative to the Band M role if the claimant applied for that role and was not successful.

[27]In accordance with the respondent’s policies the claimant submitted a document headed “counter proposal”, dated 8 February 2018, responding to the matters discussed at her 1-2-1 consultation meeting on 25 January 2018. In that document the claimant identified what she considered to be significant and important gaps in the proposed new structure. She did not make any specific proposals to change the structure. It was not disputed between the parties that the claimant had never had a formal response to her counter proposal document. The evidence of Mr Blair was that no response was needed given the document did not actually contain any proposals. The claimant’s “counter proposal” document did refer to the Project role, and indicated that the claimant was awaiting the job description to enable her to consider the role.

[28]The claimant’s evidence was that she sought details of her entitlement under the Scheme around the start of March 2018.

[29]The formal announcement of the restructure was made to all staff by email dated 15 March 2018.

[30]The claimant was sent the proposed job description for the Project role on 23 April 2018. On 25 April 2018 she was notified that the Project role had not been approved for funding, so would not be created.

[31]The deadline for applications for the Band M role was 26 April 2018. The claimant had been aware of the role since January 2018, and it had been formally advertised for applications from 13 April 2018. The claimant’s evidence was that she had her application for this role fully prepared and ready to send. Her evidence was that this had been prepared as a fall-back position should the Project role not get approval to be created. Despite this, when the Project role did not get funding, the claimant decided on 26 April 2018 not to submit the fall-back application she had prepared. The claimant was cross examined at length about why she had not applied, given the application was ready to send it could not have logically been that she did not have time to prepare the application. The claimant’s evidence, under cross examination, was that she was concerned she would not be capable of getting the role or doing it, as it would have been a promotion to a strategic level to which she had not been matched. The claimant stated that had she been wanted for the role she would have simply been matched into it without having to apply. This was not accepted by Mr Blair. The claimant was not able to give a cogent explanation of why she had prepared the application as a fall-back position and then not fallen back on the application.

[32]The claimant stated in evidence that by 2 May 2018 she had decided to make an application for VER under the Scheme, so she could see the figures on offer.

[33]At a further consultation meeting with Mr Blair on 3 May 2018 the claimant stated that her preferred option was, reluctantly, VER under the Scheme. She further stated that she “had no faith or trust in her senior management team” and that she “no longer wanted to work within the organisation”. These comments were recorded in the written record of the meeting, which the claimant, specifically in relation to these comments, accepted was accurate.

[34]The claimant’s VER application was accepted on 26 June 2018, with the claimant signing to confirm she would leave under the Scheme on 3 July 2018. The claimant confirmed, in evidence, that she knew this decision was binding and she would not be able to change her mind after signing.

[35]Between the claimant’s application under the Scheme, and her final binding acceptance of a termination of employment under the Scheme, the claimant was notified of a potential additional role. The claimant’s position was that this role was essentially her permanent role, having been seconded to a temporary role for the last two years. Mr Blair disputed the claimant’s suggestion that the claimant had not been working in a permanent role in the years immediately prior to the termination of her employment. Further, Mr Blair explained in evidence that the role created was one that required the post holder to be a serving police officer, rather than a member of civilian staff. The claimant cross examined Mr Blair in detail about this, in the context of an organisational objective to reduce serving officers in such roles. Despite this, Mr Blair was clear that the role, which involved recruitment, was one for which a serving, and therefore uniformed, officer was required.

[36]The claimant’s employment terminated on 27 September 2018, on the expiry of 12 weeks’ notice from the 3 July 2018. The Submissions

[37]Both parties helpfully prepared written submissions which were not added to in any substantive way in the limited oral submissions made. The claimant’s submissions

[38]The first submission of the claimant was that she was redundant and that the Scheme documents had repeatedly referred to redundancy, including:• describing the options as “Voluntary redundancy/voluntary early retiral”;

• her payment being described as a redundancy payment with 4 CAYs;

• references to “retiring on the grounds of redundancy” and “redundancy retiral”;

• her P45 was sent under cover of a letter that states “please find attached your P45 due to your redundancy from the Force”;

• the claimant’s final salary statement of 29 September 2018 describes a lump sum payment as a “redundancy payment”;

• the Voluntary Redundancy Schedule and Confirmation document given to the claimant refers to a “redundancy payment”; and

• a statement in Scheme documents that “All employees who request voluntary redundancy/voluntary retiral or are dismissed on redundancy grounds will qualify for redundancy payments”.

[39]The claimant relied on the use of the term ‘redundancy’ in these and other similar statements as indicative that the termination of her employment was a redundancy, and as such a dismissal, even if voluntary.

[40]The claimant further submitted that there was not a fair consultation process as she was not kept fully informed of information that was relevant to potentially identifying alternatives to redundancy. The claimant went on to submit that there was not in fact a genuine redundancy situation at the date of the termination of her employment, as there was no reduction in the requirements for the work she was doing at the location the claimant was based at.

[41]The claimant did not make submissions in support of a potential claim of constructive dismissal, but did argue that she was disadvantaged prior to electing to take early retirement by a lack of proper transparency on the part of the respondent. The respondent’s submissions

[42]The respondent’s primary submission was that there was no dismissal of the claimant. The respondent argued that the claimant “resigned by reason of her acceptance of the offer of voluntary early retirement”.

[43]The respondent referred in submissions to the fact that the undisputed evidence was that the claimant had received the package of benefits due to her under the Scheme as a person volunteering to retire, conceding that the Scheme documents suggest some “strange hybrid” of VR and VER.

[44]The respondent went on to argue that the claimant had approached HR to get her VER figures, and the fact that the payment due was the same amount as, or described as, a VR does not make it a redundancy payment. Further, in oral submissions made in support of the written submissions, the respondent’s representative argued that the label placed on the payment cannot change the nature of the dismissal. The claimant was not made redundant, she chose to retire early and signed to confirm this before receipt of a generous package of ex-gratia benefits.

[45]The respondent’s representative made detailed submissions in relation to a potential argument that the claimant’s resignation could amount to a constructive dismissal. These set out the need for a repudiatory breach of contract by the respondent, which the claimant had identified during proceedings could only be the implied term of mutual trust and confidence. Reference was made to the authority of Leach v The Office of Communications

[2012] IRLR 839

, where the Court of Appeal suggested that care should be taken before concluding that there was a breach of trust and confidence. The respondent’s submission was that the alleged failings in the consultation process, even if found to exist as argued by the claimant, fall well short of the threshold of being a breach of the implied term of mutual trust and confidence.

[46]The respondent went on to make alternative submissions regarding fairness of dismissal which, given no dismissal was found, were not relevant to the determination of the claimant’s claims.

Conclusions

[47]The claimant was not dismissed. She was not made redundant, but applied for and was granted VER. The confusing descriptions in the Scheme documentation and in documents given to the claimant, including phrases like “redundancy retiral” and the frequent reference to a “redundancy payment” do not, of themselves make the reason for the claimant’s employment ending a redundancy. The Scheme was clearly trying to cover voluntary departures of staff either on the basis of VR or VER. The ex-gratia payments for these two options were materially different. The claimant accepts she was paid in line with the VER option, not VR.

[48]There is no inference or relevance to the fact that the calculation of the exgratia benefit for VER included an element equivalent and equal to a redundancy payment. The claimant was given ex-gratia benefit that included such an element. Because the respondent referred to that part of her VER benefit as a “redundancy payment” is regrettably confusing, but mere labelling of the benefit does not mean that the claimant was made redundant. This equally applies to the description of the termination of her employment set out in Scheme documents, especially noting that the Scheme covers both VR and VER. The question of whether the claimant was made redundant must be determined by looking the reality of what occurred, not the labels placed on matters by the parties.

[49]The fact that there was a restructure underway, and the role the claimant had been performing was no longer needed, is balanced against the accepted fact that the respondent’s clear policies are that compulsory redundancies will not occur. The claimant could have remained in employment, in the supernumerary pool, until an alternative substantive post was found that was she was suited to. The claimant chose not to apply for the only post advertised prior to her decision to apply for VER, and give no cogent explanation why.

[50]The claimant clearly communicated that she preferred VER to being in the supernumerary pool. This was despite the fact that she could have entered the pool for a period of up to 12 weeks and still been able to then elect to take VER under the Scheme without loss of potential benefit if she wished. The fact the claimant chose not to pursue that option is clearly indicative of the mutually consensual nature of the termination of her employment. There was no pressure placed on the claimant to resign, and the evidence suggests the claimant made a positive choice to take VER.

[51]Further, the fact that the claimant believed there was at least one other role she could have been considered for does not disturb that conclusion. The respondent is at liberty to make the need for a serving police officer to fill a role rather than civilian staff a prerequisite. The fact that the claimant believes this is counter to an organisation wide objective may suggest that that the imposition of that requirement was, in her view, a bad decision, but the merits of such decisions are not within the scope of the Employment Tribunals to assess. Such a decision, even if bad, would not change the mutually consensual nature of the termination of the claimant’s employment by VER.

[52]Accordingly, it is found that there was an agreement that the claimant’s employment would terminate by mutual consent upon her VER, in return for which she received an ex-gratia payment and additional years of pension benefit. For this reason, there is not found to have been a dismissal of the claimant and her claim of unfair dismissal cannot succeed.