Mr D Shaw v MK Professional Services Ltd and RISM Ltd: 4102810/2023
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4102810/2023Venue Aberdeen via CVPHearing 27 and 28 November 2023
Between
Mr D ShawClaimantMK Professional Services Ltd and RISM LtdRespondent
Before
Employment Judge BrewerDate 4 December 2023
JUDGMENT
[1]The claimant’s claim for unfair dismissal succeeds against the first respondent. E.T. Z4 (WR)[2]The claimant’s claim for wrongful dismissal succeeds against the first respondent.[3]Ail claims against the second respondent fail and are dismissed.
REASONS
[1]This case was listed to be heard over two days which, on the face of it, was more than sufficient time given that there were only two witnesses. In the event no evidence was heard on day one which was taken up with argument and submissions about various preliminary matters and the fact that by around 2:45 pm Mr Bourke said that because of an unspecified mental health condition he needed a further period of time to prepare himself to deal with the evidence.[2]In the circumstances I agreed to adjourn for the rest of the first day and agreed a timetable for the hearing on day two which, by and large, was adhered to although that did mean that we did not finish the evidence and submissions until just after 5:00 pm and, in the circumstances, I reserved my decision which I set out below.
Issues
[3]Following discussions on day one the issues which I must decide are as follows: 3.1. given the defect in the early conciliation certificate for the first respondent, does the Tribunal have jurisdiction to hear the claimant 's claims against the first respondent? (there are subsidiary questions which arise from this should I determine that the first respondent was the claimant’s employer at the effective date of termination and that I have no jurisdiction to hear the claimant’s claims against that respondent but for the reasons which follow I will not set those out here), 3.2. at the effective date of termination who was the claimant’s employer, 3.3. at the effective date of termination did the claimant have more than two years continuous service with his then current employer, 3.4. what was the reason for the dismissal, 3.5. was the reason a potentially fair reason within the meaning of section 98, Employment Rights Act 1996, 3.6. if so, was the dismissal fair, 3.7. if not, what remedy applies, 3.8. was the claimant wrongfully dismissed?
Relevant Law
[4]I set out here a brief description of the applicable law. Respondent’s details on EC Certificate[5]The relevant parts of the Tribunal’s Rules are as follows: Rejection: substantive defects “12 (1) The staff of the tribunal office shall refer a claim form to an Employment Judge if they consider that the claim, or part of it, may be... (f) one which institutes relevant proceedings and the name of the respondent on the claim form is not the same as the name of the prospective respondent on the early conciliation certificate to which the early conciliation number relates... (2A) The claim, or part of it, shall be rejected if the Judge considers that the claim, or part of it, is of a kind described in sub-paragraph (e) or (f) of paragraph (1) unless the Judge considers that the claimant made an error in relation to a name or address and it would not be in the interests of justice to reject the claim." Continuous service/correct respondent[6]There are a number of legal provisions related to these linked questions as follows: Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) transfer and continuous service[7]A relevant transfer is defined in Regulation 3 of TUPE as follows: “A relevant transfer 3. (1) These Regulations apply to— (a) a transfer of an undertaking, business or part of an undertaking or business situated immediately before the transfer in the United Kingdom to another person where there is a transfer of an economic entity which retains its identity; (b) a service provision change, that is a situation in which— (i) activities cease to be carried out by a person (“a client”) on his own behalf and are carried out instead by another person on the client’s behalf (“a contractor”); (ii) activities cease to be carried out by a contractor on a client’s behalf (whether or not those activities had previously been carried out by the client on his own behalf) and are carried out instead by another person (“a subsequent contractor”) on the client’s behalf; or (iii) activities cease to be carried out by a contractor or a subsequent contractor on a client’s behalf (whether or not those activities had previously been carried out by the client on his own behalf) and are carried out instead by the client on his own behalf, and in which the conditions set out in paragraph (3) are satisfied... . (3) The conditions referred to in paragraph (1)(b) are that— (a) immediately before the service provision change— (i) there is an organised grouping of employees situated in Great Britain which has as its principal purpose the carrying out of the activities concerned on behalf of the client; (ii) the client intends that the activities will, following the service provision change, be carried out by the transferee other than in connection with a single specific event or task of short-term duration; and (b) the activities concerned do not consist wholly or mainly of the supply of goods for the client’s use. Effect of relevant transfer on contracts of employment 4. (1) Except where objection is made under paragraph (7), a relevant transfer shall not operate so as to terminate the contract of employment of any person employed by the transferor and assigned to the organised grouping of resources or employees that is subject to the relevant transfer, which would otherwise be terminated by the transfer, but any such contract shall have effect after the transfer as if originally made between the person so employed and the transferee.” Continuous service and change of employer outwith TUPE[8]In relation to continuity of service, the following from the Employment Rights Act 1996 is relevant: “210 Introductory. (5) A person’s employment during any period shall, unless the contrary is shown, be presumed to have been continuous. 211 Period of continuous employment. (1) An employee’s period of continuous employment for the purposes of any provision of this Act— (a) (subject to subsection (3)) begins with the day on which the employee starts work, and (b) ends with the day by reference to which the length of the employee’s period of continuous employment is to be ascertained for the purposes of the provision. 218 Change of employer. (6) If an employee of an employer is taken into the employment of another employer who, at the time when the employee enters the second employer’s employment, is an associated employer of the first employer— (a) the employee’s period of employment at that time counts as a period of employment with the second employer, and (b) the change of employer does not break the continuity of the period of employment.”[9]Finally, in relation to the claim for unfair dismissal the following apply: “98 General.(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.”[10]The claimant also pursues a claim for wrongful dismissal on the basis that he has not received the correct notice pay including compensation for contractual benefits. There is simply an issue of fact to be determined about that. 11.1 shall refer to relevant case law below. Findings in fact[12]1make the following findings in fact (numbers in square brackets are references to page numbers in the bundle).[13]The claimant started employment on 18 May 1989. His employer was the Gualin Estate (“the Estate”), which was then owned by a Mr Allingham, and he was employed as a keeper and stalker.[14]On 1 November 2018 the Estate was sold to a private purchaser, Dr Modi who is the chief executive of a pharmaceutical company based in India known as Cadila Pharma (“Cadila”).[15]At or around this point the staff formerly employed by the Estate transferred their employment to the second respondent (“RISM”). This was a TUPE transfer and so continuity of employment was preserved.[16]RISM is a company registered in the Isle of Man with the registered address of[24]Athol Street, Douglas, Isle of Man IM1 1JA. its company number is 132187C.17. On or around 1 November 2022 the claimant’s employment transferred from RISM to the first respondent (“MKPS”). This was also a relevant transfer pursuant to regulation 3 of TUPE. MKPS is MK Professional Services Limited with its registered address at 114-116 Goodmayes Road, Ilford, Essex IG3 9UZ. Its company number is OE012435.18. The claimant had an unblemished employment record. There were no conduct or performance issues and by all accounts he provided excellent service first to the clients of the estate before it was purchased by Dr Modi and thereafter to fishing clients and to the new owners.19. The claimant was paid an annual salary. The salary was paid in 12 equal monthly instalments. The claimant had no specific hours of work. His contract of employment states: “Normal Hours of Work The nature of your employment requires you to be flexible in your hours of work and the hours that you are required to attend work may vary”. [87]20. In practise, outside of the fishing season the claimant tended to work around 4 days each week, but during the fishing season he would work seven days, six of those dealing with the fishing clients and, on the seventh, the Sunday of each week, preparing for the forthcoming week.21. The claimant was going to retire from his employment at the end of the 2023 fishing season, so at the end of September 2023 [50].22. The position in relation to line management of the claimant is somewhat opaque.23. Throughout this matter the claimant dealt with the person he considered to be his line manager and indeed who held the position of Estate Manager, Mr Jasdeep Sodhi. However, the evidence of the first respondent was that Mr Harsh Joshi had been employed in November or December 2022 to replace Mr Sodhi, Until early January 2023 Mr Joshi was in India undertaking induction. However, even when he was in Scotland, from early January 2023, it appeared that he was then undertaking a handover with Mr Sodhi and that appeared to be ongoing at the effective date of termination of the claimant’s employment. 24. Following the purchase of the Estate by Dr Modi, the claimant regularly corresponded with Mr Sodhi at the following email address: Jasdeep.sodhi@cadilapharma.co.in. 25. 1 also note that at all of the material times during this case Mr Joshi had the email address harsh.joshi@cadilapharma.com.[26]The claimant also had correspondence with other individuals al! of whom had an e-mail address ending with “@cadilapharma”. These included Amit Pathak and Murgan Thevar (see for example [52]).[27]In November 2022 the claimant asked the respondent to consider revising his off-season working days from 4 to 2. The matter was never resolved, the claimant continued to work four days each week and although he regularly worked Monday to Thursday, given the provisions of his contract I am satisfied that he could have chosen any four days to work and indeed which hours to work on any of those days. It also follows that strictly speaking as a matter of contract the claimant did not require permission to change the number of days he was working.[28]On 31 January 2023 the claimant was sent a letter from an organisation called Absolutely HR Limited (AHR) [54 - 56], The letter states that it is written on behalf of “your employer” and that AHR Had been engaged by that employer to “deal with any employee and employment and HR matters on the estate". AHR is Mr Bourke’s HR consultancy.[29]The letter stated that the claimant's role was "under threat of redundancy” and states “currently, you are the only person employed to carry out your role and the only person employed by your employer in that role on the estate".[30]Having put the claimant at risk of redundancy the letter goes on to explain that, given his age and length of service, he has reached the maximum redundancy payment and also the maximum statutory notice period of 12 weeks. Curiously the letter says that these “figures and facts for your notice at present. . . are indicative amounts only” (although no monetary amounts are referred to in the letter). The letter goes on to say that “a// of this is based on what I am currently aware of and this is something that we would need to see in terms of some proof, should this become necessarf. It appears from this that the claimant was being or might be asked to prove his iength of service.[31]The letter then moves to discuss the process going forward and although it was confirmed that there would be a meeting to “discuss this further” it also stated that there was no “formal consultation period’ and “we need to have a meeting and discuss any thoughts you may have on this, and to seek input from you regarding this situation”. It is unclear who the “we” was a reference to, and also, rather confusingly and potentially contradictory, given that no process was set out, that “the purpose of a meeting is to explain the process as well and how it affects you”. The letter confirms that although “no decision has been taken finally regarding the redundancy and the closure of your role”, nevertheless “from today, due to this, you do not have to attend work, and I can confirm you will still be paid”.[32]Given the content of the letter and notwithstanding the suggestion that no final decision had been taken, I find as a fact that it was inevitable that, had nothing else intervened, the claimant would have been dismissed as redundant,[33]There followed an e-mail to the claimant from AHR sent also on 31 January 2023 which invited the claimant to a meeting on the following Monday, 6 February 2023 [57]. The e-mail confirmed that it is sent “on behalf of your employer3’ again without saying to that employer is. The meeting was to be by zoom and confirmed that the claimant should refrain from attending work.[34]On 1 February 2023 the claimant sent an e-mail to AHR [58/59] confirming that he would attend the meeting on 6 of February 2023 and that “RISM Ltd have not provided me with an updated contract but I can have my salary and the many benefits that were available to me from my previous employer, Mr. David Allingham verified by him”. From this, and indeed from the claimant's evidence before me, it is quite apparent that as late as February 2023 the claimant considered that he was still employed by RISM and that his previous employer was the Estate. 35.The meeting went ahead on 6 February 2023. There are no notes of that meeting, and it is unclear what was discussed however it was followed up on 9 February 2023 by an e-mail from Mr Bourke of AHR, who conducted matters throughout on behalf of the claimant’s ‘employer’ in which it was stated that he, Mr Bourke, had “spoken to Indian HR” and goes on to say that he “spoke with Mr. Johnson sir directly. . . and he is global head of HR’. The claimant was asked by Mr Bourke to find out what he could about his terms and conditions and the benefits he had enjoyed in is employment.[36]Given that the evidence was that MKPS has no presence in India I find as a fact that the reference is here to a business in India is a reference to Cadila. Given that there is no suggestion that the claimant was employed by Cadila, a pharmaceutical company, it remains entirely unclear why Mr Bourke was in communications with that company about the claimant.[37]In response, on 10 February 2023 the claimant provided a list of benefits which he had received from his former employer, the Estate/Mr Allingham [64/65],[38]There followed an exchange of emails between the claimant and Mr Bourke essentially dealing with the calculation of redundancy pay and what the claimant might receive on the termination of his employment [see for example 68, 69].[39]On 21 February 2023 the claimant was invited to a meeting to take place on Friday 24 February 2023 [71/72], The purpose of the meeting was “to discuss where things are with you at the present time... so that we can get everything agreed moving forward'' and it seems that the reason for the short notice for the meeting is that the global head of HR for Cadiia was in Scotland.[40]In his response, also sent on 21 February 2023 [71], the claimant said that he would meet on 24 February and he asked Mr Bourke: “could you please send me an outline or agenda of what matters you want to discuss as I have I did all the information required for my redundancy’.[41]It is also dear that on or before 22 February 2023 Mr Bourke had a copy of the claimant 's contract because he said so, in terms, of 22 February 2023 [70]. It follows that before the proposed meeting on 24 February 2023 which, on the face of it, was at least in part to discuss the claimant's entitlements on termination of his employment, the claimant’s employer had a copy of the claimant 's most recent contract (in fact he had only ever had one contract with his original employer which subsisted throughout his employment) and a verified list of the benefits he enjoyed as an employee.[42]On 23 February 2023 the claimant sent an e-mail to AHR and Mr Sodhi [74]. in that e-mail he stated that he had accepted being made redundant with good grace, he simply wanted to be paid what he was entitled to but that he saw no benefit in going over everything that had already been discussed in early February. He stated that he had confirmed the benefits he was in receipt of and ended the e-mail as follows “this has been dragging on now for nearly a month and neither my wife nor I have any desire to go to a meeting at Gualin with any of you as the place holds too many happy memories of the past and this would create a problem for us”. 43.1 find as a fact that the claimant was not refusing to attend a meeting with his employer or anyone else, he was merely expressing his view that he could not see the need for a meeting but that in any event he did not want to go to a meeting on the Estate.[44]Mr Bourke responded to the claimant's e-mail on the morning of 24 February 2023 with a holding response simply stating that he would “formally respond today on behalf of your employed [75].[45]In fact, the next communication which the claimant received was a letter dated 28 February 2023 sent by e-mail from Mr Bourke. It is for the first time in that email where the claimant’s employer is identified as MKPS [76].[46]The letter appears from [77]. It is a letter of dismissal. The key part of the letter is at [80] where Mr Bourke says: S/4W2810/2023 Page 12 ayour employer attempted to hold a second meeting with you to discuss your employment You agreed to attend and then you decided not to, in fact, informing your employer, that you would not attend a meeting, either on 23rd of February, or indeed at any point. . . your employer, based on not only your actions (refusing to attend the meeting) but on your words (stating you would not attend any meeting in Gualin) in the opinion of your employer (MKPS) believe that the essential working relationship which has to be present between employer and employee no longer exists and that it has fundamentally broken down... It would seem to your employer, that you have no desire to remain their employee, given that you have now both refused to attend a meeting and that you have also refused to meet the global head of HR, Mr. Johnson, who came to Gualin to meet with you, all the way from India... the decision to dismiss you, was taken by Harsh Joshi, who is the Estate Manager for MKPS in Gualin based on the information contained in this e-mail. . .”,[47]The claimant remained confused as to who his employer was and in an e-mail of 1 March 2023, he asked Mr Bourke to confirm who it was he was working for [82].[48]In response, Mr Bourke stated as follows: “MKPS are a wholly owned Cadila company, in the same way that RISM are or were. All Estate staff transferred from one Cadila company (RISM) to another (MKPS) in December 2022. That name has been on your paysiip since then. The estate has not been sold and it is still owned by Dr Modi”.[49]However, in his evidence to the Tribunal, Mr Joshi confirmed that the owner of MKPS was a man called Mr Kumar and there is no evidence that either of the respondents was ever owned by Cadila.[50]On 1 March 2023 the claimant sent an e-mail in which he states that he wished to appeal “the offer that you have set out” [86]. That appeal was never responded to. 51.The effective date of termination of the claimant’s employment was 28 February 2023.[52]The claimant commenced early conciliation on 1 March 2023 in relation to the first respondent and on 14 April 2023 in relation to the second respondent.[53]The claimant received his early conciliation certificate in respect of the first respondent on 12 April 2023 and in respect of the second respondent on 17 April 2023.[54]The claimant presented his claim to the Tribunal on 26 April 2023.[55]Having set out the facts above I now turn to the questions I am required to answer. The jurisdiction questions Continuous service[56]The first question relates to the claimant’s length of continuous service.[57]The respondents’ position is that at the effective date of termination the claimant’s employer was MKPS. The difficult position which that could create for the claimant is that if his employment transferred from RISM to MKPS in November 2022, given that RISM is an undertaking which is not situated in the UK, on one view there could not therefore have been a transfer of an undertaking from it to MKPS given that regulation 3(1)(a) of TUPE requires that the transferor business or undertaking is situated in the UK immediately before the transfer.[58]If there was no TUPE transfer of the claimant’s employment from the second respondent to the first respondent, then the correct analysis is that he had been dismissed by RISM and had taken up a new job with MKPS (although given his ignorance of this scenario that presents considerable difficulties in relation to whether a contract could ever have been formed between MKPS and the claimant as there appears to have been no offer or acceptance). If this had been what had occurred, then at the effective date of termination the claimant’s continuous service with MKPS was no more than a few months and he would not have sufficient service to claim unfair dismissal nor any entitlement to a redundancy payment.[59]On behalf of the claimant Mr Allison submitted that there is no evidence of a TUPE transfer from RISM to MKPS, that the claimant remained employed by RISM throughout and that therefore the correct respondent is RISM.[60]Based on the evidence given by Mr Joshi and on the fact that the claimant’s pay during the relevant period was being received from MKPS, and despite the lack of any other documentation I see no reason not to accept the evidence of Mr Joshi that all the staff working at the Estate who were formerly employed by RISM transferred that employment to MKPS from November or December 2022. I should add that much of Mr Joshi’s evidence was vague and unclear but as his cross examination proceeded so his evidence became more focused and more credible which I shall deal with in a bit more detail below. 61.That leaves the question of whether the change in employer from RISM to MKPS preserved the claimant's continuity of service. Given that these companies are not associated for the purposes of the Employment Rights Act 1996, as neither one of them owns the other nor are they both controlled by the same third party, there would have to have been a TUPE transfer for continuity of employment to be preserved. 62.In his submissions, Mr Allison makes the point that although RISM was registered in the Isle of Man and was not therefore an undertaking situated in the United Kingdom, its employees were in fact engaged to work in Scotland and therefore the ‘undertaking’ of RISM, the provision of services to the Estate, was in fact situated in the United Kingdom immediately before the transfer.[63]On balance I accept the force of his argument. Regulation 3(1)(a) defines the transfer of an undertaking as the transfer an economic entity which retains its identity and regulation 3(2) defines an economic entity as an organised grouping of resources which has the objective of pursuing and economic activity.[64]In this case the organised grouping of resources was the staff and equipment used to service the Estate and there is no doubt that immediately before the transfer, that economic entity was situated in the United Kingdom.[65]Even if I am wrong about that then I am entirely satisfied that the transfer of the employees from RISM to MKPS was a transfer pursuant to regulation 3(1)(b) of TUPE, that is to say it was a service provision change where activities ceased to be carried out by a contractor on a client's behalf, in this case RISM and instead were carried out by another person on that client's behalf, in this case MKPS. In a regulation 3(1)(b) transfer there is no geographic limitation.[66]In short, I am satisfied that there was a TUPE transfer from RISM to MKPS and thus as at the effective date of termination the claimant had around 34 years continuous service. ECC defect[67]The second question relates to what the respondents referred to as a defect in the early conciliation certificate relating to the first respondent.[68]In that early conciliation certificate, the claimant provides an address for the first respondent in India. The respondents argued that MKPS has no presence in India although no evidence was led to underpin this statement. 69.lt is wholly understandable that the claimant believed that, once he was aware of the existence of MKPS, and without anyone providing him with any further details, he presumed they were based in India at the same address as he had for Cadila. The reason for that is obvious: all of the claimant’s correspondence until Mr Bourke and AHR contacted him, was with people who had Indian names and e-mail addresses which ended with @cadilapharma; the claimant had been told expressly by Mr Bourke that both RISM and MKPS were wholly owned subsidiaries of Cadila; and he was also expected to meet, and Mr Bourke was clearly taking instructions from, the global head of HR of Cadila.[70]The position under the Tribunal’s rules is that an incorrect address on an early conciliation form is not a substantive defect. In order for me to decline jurisdiction it would have to be in the interests of justice to do so and in my view that is not the case here. Notwithstanding the incorrect address, both respondents responded to the claimant's claim, both instructed Mr Bourke to act on their behalf, the first respondent produced a witness, Mr Joshi, who attended the hearing to defend MKPS against the claimant’s claims. Relevant documents have been provided. In all the circumstances it is in my view clearly in the interests of justice to allow these claims to proceed. 71. 1 have therefore dealt with the first three issues as follows: 71.1. the Tribunal does have jurisdictions to hear the claimant’s claims, 71.2. at the effective date of termination of the claimant’s employment, the claimant’s employer was the first respondent, MKPS, and 71.3. at the effective date of termination of the claimant’s employment, he had more than two years continuous service, indeed he had more than 30 years continuous service. The reason for dismissal[72]Given the findings above. In the rest of this judgement references to the respondent means to the first respondent, MKPS.[73]The burden of proof in an unfair dismissal claim is on the respondent to show what the reason was for dismissal. As Cairns LJ said in Abernethy v Mott Hay and Anderson [1974] IRLR 213, "A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee”.[74]In this case the respondent said that the reason for dismissal was some other substantial reason.[75]Although a redundancy process was underway at the date of the claimant's dismissal, it is dear from the documentation in the bundle that no notice of dismissal by reason of redundancy had ever been given even though it was inevitable that he would have been dismissed for that reason in due course.[76]The purported substantial other reason given by the respondents is the breakdown in the working relationship between the claimant and his employer. Following Harper v National Coal Board 1980 IRLR 260, EAT, so long as an employer can show a genuinely held belief that it had a fair reason for dismissal, that reason may be a substantial reason provided it is not whimsical or capricious. The question for the Tribunal will be whether the person who dismissed the claimant genuinely believed that the relationship between the respondent and the claimant had irretrievably broken down.[77]The use of a breakdown in relationships as a substantial other reason is not one which has found great favour with the EAT for entirely understandable reasons.[78]In McFarlane v Relate Avon Ltd 2010 ICR 507, EAT, Mr Justice Underhill, then President of the EAT, commented that referring to trust and confidence in the context of dismissal was ‘unhelpful9as in almost all cases where an employee is dismissed for something he or she has done, the employer will have lost trust and confidence in him or her. It was more helpful to focus on the employee’s specific conduct rather than use such general terminology.[79]Furthermore, in Leach v Office of Communications 2012 ICR 1269, the EAT admonished the tendency of parties to assume that ‘loss of trust and confidence’ (another way of looking at relationship breakdown) automatically brings obligations under an employment contract to an end, which it does not. The EAT emphasised the importance of identifying why the employer considered it impossible to continue to employ the employee — in that case, the employer’s need to avert damage to its reputation. On appeal, the Court of Appeal concurred. 80.lt is important for Tribunals to be aware of the distinction between a SOSR dismissal for relationship breakdown and a conduct dismissal for the employee’s fault in causing that breakdown and Tribunals should be on the lookout in such cases to see whether an employer is using the rubric of SOSR as a pretext to conceal the real reason for the employee’s dismissal. 81.1 consider that the test I must apply in determining the fairness of a SOSR dismissal is as follows: 81.1. what is the reason given for the dismissal, 81.2. was that a substantial reason, 81.3. did the respondent act reasonably or unreasonably in all the circumstances, including the respondent’s size and administrative resources, in treating that as a sufficient reason to dismiss the claimant, and 81.4. was the dismissal fair or unfair in accordance with equity and the substantial merits of the case.[82]J turn then to the first question and what the respondent said caused the breakdown in the relationship.[83]J stress that the fact that the breakdown of the relationship is said to have been caused by the conduct of the claimant does not mean that the reason for dismissal was conduct. The respondent may well consider that their relationship breakdown and the circumstances of the case amount to a substantial reason for dismissal.[84]There were two parts to the breakdown, the first was the claimant’s failure to attend the meeting on 24 February 2023 and the second was either his refusal to attend any further meetings with the respondent or alternatively his refusal to attend any further meetings with the respondent on the Estate.[85]If the respondent was relying on the fact that the claimant refused to attend any further meetings with the respondent, they will have fallen in to error as he did no such thing. The letter of dismissal refers to both the claimant’s refusal to attend any further meetings with the respondent and his refusal to attend any further meetings with the respondent on the Estate. Mr Joshi was unable to assist in clarifying the cause of the purported breakdown in relationship between the claimant and MKPS notwithstanding that he was taking responsibility for the dismissal decision.[86]The second important question is: what evidence was there from which the respondent could reasonably conclude that the relationship between the claimant and his employer had actually broken down?[87]At the date of dismissal, the claimant had an unblemished 34-year history of working on the Estate. His unchallenged evidence was that he had an excellent working relationship with everyone including the owner, Dr Modi, the owner’s family and the Estate’s fishing clients many of whom returned every year to fish.[88]Although it is clear that in a SOSR dismissal no particular procedure is required, the fact remains that the claimant had no warning that he faced the prospect of dismissal other than by reason of redundancy, which he had accepted, simply because he did not attend a meeting with his employer and expressed a wish not to have any further meetings on the Estate.[89]In this context the evidence of Mr Joshi is highly significant because it is the respondent’s case that the decision to dismiss was his and it seems to me to follow that the question whether the relationship between the claimant and MKPS had broken down irretrievably was one he had to turn his mind to. In my judgment he entirely failed to do so. 90. 1 can summarise Mr Joshi’s evidence as follows: 90.1. the language of relationship breakdown was not his but Mr Bourke’s, 90.2. other than the meeting on the 24 February and the wish on the part of the claimant not to have any further meetings on the Estate, there were no other relationship issues between the claimant and MKPS, 90.3. it was reasonable for the claimant to want to know what the meeting on 24 of February was to be about, 90.4. he, Mr Joshi, had no significant involvement with the claimant given that although he had been appointed as Estate Manager, at the date of the claimant's dismissal he was still in a handover period and in effect Mr Sodhi was continuing in the role and he undertook the redundancy discussions with the claimant, 90.5. he, Mr Joshi really only approved the dismissal letter drafted by Mr Bourke and that the only reason his name was on the letter, as he put it (because in fact his name was not on the letter, Mr Bourke’s name was on the letter) was because he was “leading the estate”.[91]The dismissal letter does not assert that the relationship between the claimant and any specific person within the respondent had irretrievably broken down merely that the relationship between the claimant and, somewhat vaguely, his employer had broken down. I accept that a breakdown in trust and confidence is broader than a breakdown in relationships between people in the same employment, but even that requires someone in a position of authority in the employer to decide that what the employee did led to a breakdown in relationships or a breach of trust and confidence. In this case, if it was not Mr Joshi, and it clearly was not, who took the key decision?[92]Given what was said in Abernethy v Mott Hay and Anderson (above) that "A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee”, it is surprising that I had no evidence from whoever it was who actually decided that relationships had irretrievably broken down and that the claimant should be dismissed.[93]In my judgment for a respondent to evidence that it acted reasonably in concluding that relationships had irretrievably broken down, all of the relevant circumstances must be considered. The relevant circumstances in this case were: 93.1. long service, 93.2. an unblemished work record, 93.3. no performance issues, 93.4. no conduct issues, 93.5. excellent relationships, 93.6. acceptance of the proposed redundancy, 93.7. not attending one meeting, the purpose of which was unclear, 93.8. expressing a wish not to attend further meetings on the Estate 93.9. the first redundancy meeting having been held by Zoom, 93.10. not being told that the relationship was being put in jeopardy by his behaviour, 93.11. a complete lack of any procedure leading to dismissal. 94. 1 consider that to label what took place over the meeting on 24 February 2023 and the claimant’s expressed wish for any further meetings not to be on the Estate in the context set out above as an irretrievable breakdown in relationships amounts to the respondent being capricious having entirely failed to consider all the surrounding circumstances.[95]J infer from the evidence I had, and importantly the lack of evidence I have referred to above, that the purported irretrievable breakdown in relationships was a fiction, a fiction which enabled the respondent to avoid paying the claimant a redundancy payment and therefore I find that the respondent has failed to show that it had a potentially fair reason to dismiss the claimant. For that reason alone, the dismissal was unfair.[96]Even if I am wrong about that, and I do not consider that I am, in my judgment no employer acting reasonably could have concluded that what the claimant did amounted to conduct so serious that the relationship between him and his employer had broken down to such an extent that it was irreparable.[97]Therefore, I conclude that the respondent acted unreasonably in treating what the claimant did in failing to attend the 24 February meeting and expressing a wish for no further meetings to be held on the Estate as a sufficient reason for dismissing him and therefore that his dismissal was unfair for that reason. Wrongful dismissal[98]1am satisfied that the claimant's claim for wrongful dismissal succeeds.[99]The claimant was notionally paid in lieu of his 12-week notice period.[100]However, in the dismissal letter Mr Bourke confirmed to the claimant that he would be paid for accrued unused holiday up to the date of termination and therefore the claimant was not being compensated for any holiday that would have accrued during his 12-week notice.[101]Furthermore, given that the payment in lieu of notice was based only on the claimant’s salary, it is clear that he has also not been paid in lieu of the benefits he would have enjoyed in the notice period.[102]Finally, the payment in lieu of notice was based solely upon the claimant's salary but was reduced on the basis that the claimant was working only two days a week whereas he had previously worked four days a week.[103]Leaving aside whether the claimant actually reduced the number of days he worked in the off season (he says he did not and I accept that given that he was seeking the respondent’s agreement and it was never agreed) as i have indicated, the respondent seems to have calculated a week’s pay based on the claimant working four days a week and then reduced his week’s pay because, they said, he was only working two days a week. That was based on a misunderstanding of the claimant’s contract. It is quite clear from the claimant’s contract that his pay was the same each week he worked irrespective of how much he worked in that week and there was no basis for reducing his pay even if he worked fewer days or fewer hours (as indeed his pay did not increase if he worked on more days or for more hours). Further procedure[104]Notice of a one-day remedy hearing will be sent to the parties.