Employment Judge R McPhersonMr E Stafford (instructed by Solicitor) for claimantWyvis One Estate Ltd for claimantRespondent Represented by: for claimantMs G Donald (instructed by Solicitor) for claimantDate 21 November 2023
JUDGMENT
The unanimous judgment of the Employment Tribunal is that:[1]The claimant’s claim for unfair dismissal does not succeed and is dismissed.[2]The claimant is awarded two weeks gross pay in relation to the respondent's failure to consult the claimant and is ordered to pay to the claimant the sum of ONE THOUSAND AND THIRTY-FOUR POUNDS AND THIRTY-SEVEN PENCE (£1,034.37).[3]The claimant’s application for reinstatement is refused.[4]The respondent made an unauthorised deduction from wages contrary to section 13 of the Employment Rights Act 1996 and is ordered to pay to the claimant the sum of ONE THOUSAND FIVE HUNDRED AND EIGHTY-FOUR POUNDS AND NINETY-SEVEN PENCE (£1,584.97) in respect of pay in lieu of accrued untaken holiday outstanding on termination.[5]The respondent failed to give the claimant a written statement of employment particulars as required by section 1 of the Employment Rights Act 1996. Under section 38(3) of the Employment Act 2002, the Tribunal orders the respondent to pay the claimant two weeks’ gross pay in the sum of ONE THOUSAND AND THIRTY-FOUR POUNDS AND THIRTY-SEVEN PENCE (£1,034.37).[6]The sums awarded in items 2 and 4 (not 6) are expressed gross of tax and national insurance. It is for the respondent to make any deductions lawfully required to account to HMRC for any tax and employees’ national insurance due on these sums, if applicable.
REASONS
[1]The claimant’s ET1 was presented Monday 5 June 2023 following ACAS Early Conciliation (ACAS certificate identifying receipt of EC notification on Tuesday 11 April 2023, and the issue of the ACAS Certificate on Monday 15 May 2023) against the respondent following upon the termination of the claimant’s employment as a General Farm Worker with the respondent. It is argued by the claimant that the decision to dismiss was both substantively and procedurally unfair, that the respondent had fundamentally misunderstood the claimant’s role, and that the respondent “is subsequently recruiting to replace the role of General Farm Operative.” For the claimant, it was acknowledged that the claimant had received statutory redundancy payment. Notice was further given that the respondent had failed to provide written particulars and paid the relevant accrued holiday pay of 30 days it being argued that the claimant was entitled to carry across holiday pay from previous leave year.[2]ET3 was presented timeously for the respondent. The respondent argues that the termination was by reason of redundancy, following upon which the respondent paid statutory redundancy pay and notice pay and asserted to have paid accrued holiday pay.[3]On 13 July 2022, the Tribunal directed that the claimant should confirm, within 3 weeks, what he sought by way of remedy if the claim succeeded (that is, by 3 August).[4]On 21 July 2022, for the claimant, it was confirmed that the claimant seeks reinstatement and compensation, that he had not applied for any roles but regularly peruses newspapers for employment opportunities and that the claimant had taken no further steps to minimise his loss.[5]On 11 August 2022, the respondent set out that it would argue that the claimant had failed to minimise his loss, it having been indicated that he had not applied for roles but regularly perused newspapers for employment purposes. The respondent further argued that as the claimant had not originally pled a claim for reinstatement (in the ET1), it was not competent to now seek this.[6]The Tribunal on 14 August 2022 confirmed that the Tribunal was not persuaded that it was incompetent to seek the remedy of reinstatement. The intimation was made well in advance of the Final Hearing, affording sufficient time to take instructions; reinstatement is the primary remedy, and the claimant would be prejudiced if not allowed to seek it.[7]The Tribunal heard evidence from the claimant together with two of his former colleagues, Mr Gordon Beattie, his former Line Manager, and Mr John Chalmers, a former employee who had been a stalker on the estate, together with the respondent witnesses, Mr Stuart O’Sullivan a Director of the respondent company and Mr Hugh O’Donnell the respondent’s self-employed Estate Factor.[8]While the respondent maintains that substantively the reason or principal reason for termination was redundancy, the respondent accepted that, on procedural grounds, the claimant was unfairly dismissed, there having been no relevant process around consultation. However, in accordance with Polkey v A E Dayton Services Ltd 1987 IRLR 503 (Polkey), there should be a reduction to Nil.[9]The Tribunal identified the issues to include: Termination and Redundancy[10]Issues for the Tribunal, where redundancy is relied upon, may include whether a dismissal wholly or mainly attributable to the fact that the requirements of that business for employees to carry out work of the particular kind the claimant was employed in, in the place where the employee was employed by the employer had ceased or diminished.[11]The claimant seeks reinstatement in terms of s114 of the Employment Rights Act 1996 (ERA 1996) together with compensation (failing which compensation).[12]In relation to Redundancy, the Tribunal may consider whether steps were followed, so far as may have been appropriate, which may include whether the Tribunal is satisfied that the respondent: 1 . Consulted giving as much notice as may be reasonable; and 2. Considered alternatives to redundancies; and 3. Applied an objective criterion for selection and consider whether any pool adopted for selection is one which a reasonable employer could have adopted; and 4. It is understood that in addition to dismissal, the claimant is arguing unfair selection. The issue is not only the sole or principal reason for dismissal, but rather the sole or principal reason for selection; and 5. Informed employees of any scores and give employees the opportunity to contest same; and 6. Gave any appropriate time off to seek employment and 7. Paid all monies due; and 8. Whether the employer kept records of these steps. Provision of Terms and Conditions[13]in terms of s1 of ERA 1996, the claimant was at the materia! time entitled to receive from their employer not later than two months after the beginning of the employee's employment, a written statement of the major terms upon which he is employed. Section 38 of the Employment Act 2002 (EA 2002) makes provision for an award in relation to same.[14]In terms of Regulations 13, 14, 16, and 30 of the Working Time Regulations 1998 and s 13 of the Employment Rights Act 1996, a worker is entitled to holiday pay. At the termination of employment, that worker is entitled to accrued but untaken holiday pay for that year.[15]Thus, when each of the claimant's employment came to an end, the issue would include was he paid all of the compensation he was entitled under Regulation 14 of the Working Time Regulations 1998:a. What were the dates of the claimant's leave year?b. How much of the leave year had elapsed at the effective date of termination?c. In consequence, how much leave had accrued for the year under Regulations 13 and 13A?d. How much paid leave had the claimant taken in the year?e. How many days remain unpaid?f. What is the relevant net daily rate of pay?g. How much pay is outstanding to be paid to the claimant?[16]Subsequent to the conclusion of the evidential hearing both parties provided written submissions after exchange. Findings in Fact[17]The respondent company owns and manages the operation and running of Wyvis Estate, which extends around 25,000 acres in the Highlands near Evanton, Easter Ross.[18]The estate has, since around 1980, had a number of wild boar in a fenced area. No relevant licence had been secured for the wild boar.[19]The claimant, who was 75 at the date of termination of his employment, had been employed as a General Farm Worker had been employed by the respondent to work on the Wyvis Estate from Sunday 1 June 2014, to Monday 3 April 2023, with his employment from 2011 being confirmed as a General Farm Hand although no written terms of employment were provided to the claimant in the period of his employment. The claimant had been employed on Estates in roles for most of his adult life.[20]The claimant was principally engaged by the respondent in supporting Mr Gordon Beattie, Estate Manager and the claimant’s Line Manager. The claimant had various roles, including transporting feed and regularly replenishing various feed sites for a roaming wild deer herd, on the estate situated and reached by driving along an approximately 6-mile single-track road leading from the farmyard alongside and beyond Loch Glass, a task which could take around 2 to 3 hours a day. Further, the claimant’s role also included separate tasks involving care for (including feeding and maintaining fencing) the wild boar kept fenced in (over 5 acres) in an area around 2 miles from the farmyard, a task which would take around 45 minutes a day. While the feeding of wild boar could, from time to time, be carried out by other employees, the Tribunal concludes that the task fell principally to the claimant. The number of wild boar varied from time to time and could reach 100 to 120. The claimant carried out other ancillary roles, including some grass cutting on the estate, spraying weeds, cleaning equipment, feeding ducks and cutting trees.[21]The respondent did not have a formal system of requesting holidays. There was no written agreement at all regarding holidays (including setting out the holiday year) and no agreement that an employee could carry across unused holidays from the preceding year.[22]In or around 2011, Mr Hugh O’Donnell was appointed as a self-employed factor for the estate, having day-to-day oversight of the operation of the estate for the respondent company, which is operated by its two directors, Mr Stuart O’Sullivan and Ms Theodate Coates. Mr O’Sullivan, who is based in the US, attends the estate (other than during covid) regularly and has weekly io discussions with Mr O’Donnell regarding the operation of the estate.[23]On the morning of Wednesday, 26 October 2022, the claimant was in attendance on the estate when Mr Hugh O’Donnell asked why the claimant had not attended work on the preceding Mondays 17 and 24 October. The claimant explained that he was attending physiotherapy following knee replacement surgery. There followed a heated exchange.[24]In an undated letter issued to the claimant at the end of October 2022, signed by Mr O’Donnell (the respondent’s October 2022 undated letter), he referenced the conversation on 26 October 2022 and further referenced a heated exchange between the claimant and suggested that the claimant had described he would be resigning, and accurately set out that the claimant removed personal belongings and set out. “If I have not heard from you by 5pm on Wednesday 2nd November, / will treat your actions on Wednesday 26th October as notice of your resignation and will arrange for a payment to be made to you in lieu of your notice period. If it is your intention to remain as an employee of Wyvis estate, please note that you are suspended from your role with us. During your suspension, you are not required to carry out any of your duties and you should not attend the Estate unless authorised by me in advance to do so. You must not communicate with any of our employees, contractors or 30 > customers unless authorised by me. You will continue to receive your basic salary and benefits in the normal way. The decision to suspend you does not constitute disciplinary action and does not imply that you are guilty of any misconduct.”[25]The respondent’s October 2022 undated letter which confirmed that the claimant had been suspended on full pay also set out that the suspension followed a heated exchange.[26]On Wednesday 2 November 2022, in response to the respondent's October 2022 undated letter, the claimant arranged for the issue of a short email (the claimant's email response to the respondent's October 2023 undated letter) to Mr O’Donnell, which set out: “During the discussion on Wednesday 26 October, I never said anything about resigning and have no intention of resigning. The only reason I removed my personal belongings was because you suspended me until you decided what to do. I have no intention of resigning from Wyvis Estate.”[27]The claimant’s email response to the respondent's October 2022 undated letter, did not set out any allegations regarding Mr O’Donnell’s condition on 26 October 2023. It did not dispute that a heated exchange had taken place. It did not suggest that the description set out by Mr O’Donnell in the respondent's October 2022 undated letter was inaccurate.[28]On Friday 4 November 2022, Mr O’Donnell issued a further letter to the claimant (the respondent’s 4th November 2022 letter), which described that he had reflected on the concerns raised in connection with both the claimant’s existing and planned knee replacement surgery and “the knee injury you alleged that you suffered” and set out that the claimant was required to attend for a remote Occupational Health report. It described that the purpose was “so we can assess whether you are fit to carry out your current role as a General Farm Hand” if not time scale for return, whether the condition was likely to recur or affect the claimant’s ability to undertake duties in the future, or future attendance at work. The respondent’s 4th November 2022 letter described that if the claimant did29. not agree to the report being disclosed or failed to attend, “we will have to make decisions without the benefit of this medical information and opinion on whether you are able to carry out your role for us. This could include reaching a decision about whether it is appropriate to terminate your employment under our capability procedure.” The respondent’s 4th November 2022 letter, set out that the claimant would30. remain on suspension while the respondent awaited the medical report and reminded the claimant of the terms of suspension.[31]On Tuesday 8 November 2022 1. At 3.41 pm, the claimant’s wife issued an email on behalf of the claimant, which set out that the respondent's 4th November 2022 letter was received by the claimant’s wife on Saturday 5 November, and he had seen it on Saturday 6 November. That email further asked how the medical examination would be carried out remotely and set out that he wished to seek advice on signing the consent form. 2. At 3.59 pm, Mr O’Donnell confirmed that he would respond as soon as possible.[32]On Wednesday 9 November 2022, Mr O’Donnell issued an email, which was blind copied to the Stuart O’Sullivan respondent Director and the respondent lawyers, which noted that the claimant wished to obtain legal advice and set out that as the claimant was suspended, the respondent was anxious to proceed with the report as soon as possible, it described that the Occupational Health assessors had indicated that the OH assessment could be carried out via video remote system or the phone and that doctors would carry it out.[33]On Friday 11 November 2022, the claimant’s wife issued an email on behalf of the claimant (the claimant’s wife’s November 2022 email), which stated “My solicitor has asked me to email you to confirm the basis for my suspension. If it’s on the basis of an allegation against me which the first letter seems to indicate, please confirm what the allegation is. Alternatively, is this a medical suspension which the letter dated 4th November seems to indicate. Once I have thus confirmed in writing, I will take advice and get back to you with a response in relation to the OH assessment”.[34]The claimant’s wife’s November 2022 email did not set out any allegations regarding Mr O’Donnell’s condition on 26 October 2022. It did not dispute that a heated exchange took place on 26 October 2022. it did not suggest that the description set out by Mr O’Donnell in the October 2022 undated letter was inaccurate.[35]On Tuesday 15 November 2022, Mr O’Donnell issued an email which was blind copied to Stuart O’Sullivan and the respondent’s lawyers, describing the respondent’s position that it wasn’t clear why the reason for suspension was being asked about “when the issue in hand is whether you consent to” attending for medical examination and consent to report being disclosed and “In any event, the position is as set out in my letters of 26 October 2022 and 4th November 2022. The email continued, “Please advise me of your position” regarding consent by return and by 5pm on Wednesday 16 November 2022 at the latest. It is not in your interest, or that of the employing entity, for this to become a protected matter" and concluded “>4s / have explained already, if you do not attend the medical examination or attend but do not consent to the examiners report being disclosed to us, decisions will have to be made about your continued examination with the benefit of medical information"[36]This final sentence of Mr O’Donnell’s email of 15 November repeated the position in the respondent’s 4th November 2022 letter. Subsequently, the claimant confirmed his consent to the OH assessment in late November 2022.[37]In late November 2022, Mr O’Donnell issued a report to the two members of the respondent Board (The November 2022 Board Report). This was for an annual Board meeting consisting of Mr O’Sullivan and Ms Theodate Coates the directors of the company.[38]The November 2022 Board Report set in relation to General Operations that the day to day operations of the estate were subject to significant disruption and the claimant was currently suspended, alleging that that was “due to inappropriate behaviour and medical problems which we believe affect his ability to carry out the duties on the Estate. It should be noted that in every case where an employee had left the employment of the Estate, Alec’s unacceptable behaviour has been noted as one of the main reasons for leaving. He has been asked to submit to medical examination to determine whether he is capable of returning to work”.[39]The November 2022 Board Report, so far as relevant to the claimant’s role, did not set out that there were any operational changes and or diminution in the work which, but for the suspension, the claimant would have carried out.[40]On Monday 19 December 2022, the respondent issued instruction to the occupational health assessment provider (the respondent’s December 2022 instruction to OH), which described that the claimant was currently “Absent from work”, and that the reason for the referral was “Fitness for work assessment. Performance deterioration” and provided in summary of the absence that the claimant “has been absence from work since 26 October 2022 pending our receipt of a medical report addressing...” the following questions: 1. being whether the claimant “is currently fit to carry out his role as a General Farm hand. Please ensure that the detail of the job description is considered. This has been provided separately by email. Please also ensure that The claimant’s “general health is assessed by reference to the job description, not just the fact that he has had knee replacement surgery on one of his knees and is due to have knee replacement surgery but does not yet have a date for this procedure.” 2. If the claimant “is not currently fit to carry out his role as a General Farm Hand, whether he is likely to be able to return to work in that role in the future and if so, the likely timescales... 3. If the claimant was currently fit to carry out his role as a General Farm whether his “general physical health likely to affect to his ability to undertake his duties in the future and/or his future attendance at work. If so, what would the likely impact be?” 4. Whether the claimant will need to continue with any medication or medical treatment following his return to work, and if so whether this would impact his ability to undertake his duties and/or necessitate time off work (and if so, how much)[41]The respondent’s December 2022 instruction to OH set out additional information “As detailed above” the claimant “has been employed for nine years during that.” Mr O’Donnell had “observed a general deterioration in his ability to perform aspects of this his role I need to understand whether from a medical perspective he's capable of safely performing all aspects of his role. ” The claimant “underwent knee replacement surgery approximately 14 months ago on one of his knees he was absent from work for approximately 13 weeks thereafter in order that he could recover from the procedure he continues to attend regular physiotherapy appointments in relation to the knee he had surgery on which requires absence from work.” The claimant “has advised that he is due to have knee replacement surgery on the other knee but that he does not yet have a date for that procedure.”[42]On Tuesday 20 December 2022, the video Occupational Health appointment took place with Dr Greg Irons MBChB MFOM. In advance of same, and having seen the respondent’s December 2022 instruction to OH, the claimant prepared some handwritten notes for his own reference and use in the video Occupational Health assessment.[43]On Wednesday 28 December 2022, the December 2022 OH Report prepared by Dr Irons (and dated Tuesday 20 December 2022) was issued to the respondent (the Respondent’s December 2022 OH Report) following review by the claimant.[44]The respondent’s December 2022 OH Report set out that the claimant described that in September 2022, both his knees were injured, that the claimant was absent for around four days but returned to work "He advised that he requested the incident be recorded, which led to a heated discussion with management, resulting in his subsequent suspension.” It did not set out that the claimant made any allegation regarding Mr O’Donnell’s condition at the time.[45]Dr Irons, in the respondent’s December 2022 OH Report, set out that “In terms of his physical capacity” the claimant “does not appear to be significantly restricted. Investigations have identified arthritis in his left knee and this will require knee replacement in due course. He experiences occasional discomfort in the knee for which he takes over the counter painkillers.[46]Further, Dr Irons set out in the respondent’s December 2022 OH that the claimant "describes and demonstrated at assessment good range of movement in both knees is able to squat and crouch without particular difficulty. He can stand for extended periods of time and there is no limit to his walking distance. Since his surgery, has been advised to use a stick in the right hand to assist on uneven ground and help remove some of the pressure from his left knee. He is able to ascend stairs without difficulty but leads with his right leg while descending. He is able to access vehicle cabs safely and drives a manual car on a daily basis out with work. He continues to work on his allotment and enjoys dancing in his free time although he is more careful of his right knee since his operation”.[47]In response to the 4 questions posed, Dr Irons set out: 1. “In my opinion” the claimant “is fit for his role as a general farmhand. . . he has regained a good level of mobility. His prior level of physical fitness has no doubt helped with that”, describing that further knee replacement appeared to have been scheduled as a routine procedure and retained a good level of function in his left knee. 2. “I believe” the claimant “is fit to continue in his role as a General Farm Hand. He does not appear to have any significant physical restrictions, he has a good underlying level of physical fitness...” 3. You may wish to consider some adjustments in relation to” the claimant’s “medical conditions. The arthritis in his left knee is likely to progress. I am unable to provide a definitive timescale for this. It is possible that he may experience a flareup of the arthritis in his left knee from time-to-time and this may affect his mobility. I would expect it could be managed with appropriate anti-inflammatory and pain killing medication, but his capacity for more physical activities may need to be restricted if this occurs. Once” the claimant “has undergone his left replacement, then his fitness for the role should be reassessed. In the meantime, he should continue to use a stick to assist him when negotiating uneven ground. You may wish to consider conducting a practical assessment to ensure that he is able to lift and mobilise safely. ” 4. Dr Irons described that it would be important that the claimant continue to check his blood sugar throughout the day, especially prior to operating machinery “He will require time off in the future following his left total knee replacement, however this is some way off, I believe this may be better assessed nearer the time. The claimant’s “medical conditions are both longer term and without appropriate treatment would impact his activities of daily life. You may wish to consider that this may meet the criteria for disability as defined in the Equality Act 2010 and take this into account when reviewing any adjustments.”[48]Mr O’Donnell did not and does not agree with the assessment of Dr Iron as confirmed in the Respondent’s December 2022 OH Report in relation to the 1, 2nd and 3rd questions set by him.[49]On Saturday 7 January 2023, the claimant issued a communication to the respondent's lawyers (the claimant’s 7th January 2023 communication) addressed to Mr O’Sullivan stating “I would be grateful if you could forward the enclosed letter to Mr Stuart O’Sullivan and not Hugh O’Donnell”, the accompanying letter described what was set out as the claimant’s account of events in September 2022 and that the claimant had been off work for 4 days before returning to work, that he could not find the accident book, and that when requested by Mr O’Donnell, the claimant had provided a statement. The claimant further alleged that upon confirming to Mr O’Donnell that he had been absent on 17 and 24 October to attend physiotherapy and in responding to whether his knee was getting better, he alleged it was until an incident on 20 September. The claimant alleged that Mr O’Donnell was immediately irate, and that Mr McDonnell suggested that the incident was only alleged by the claimant. The claimant further alleged that Mr O’Donnell began pointing his finger in the claimant’s face and “was so close I could smell alcohol on him. Things became heated on both sides despite his letter saying I was aggressive and threatening - but so was he. He then told me I was suspended until he decided what to do with me. He walked across towards where John (Chalmers) and the estate guests were and I could hear him say “that got rid of that nutter”. The claimant alleged that both Mr Beattie and Mr Chalmers, along with the estate guests, were witnesses. The claimant’s 7th January 2023 communication, made further allegations 50. regarding an accident book, and, after setting out the claimant’s then account of subsequent events, including issue of the respondent’s OH Report, the claimant commented, “If you didn't receive the report, I can send you a copy. I have had no further word from Hugh regarding my employment/suspension. I have been concerned that given Hugh is the only person dealing with the situation I am in of which he was “involved” I find myself in the position of being painted a liar and at no time have I been given a right of reply to anyone other than Hugh. I don’t like that Hugh is dictating who I can speak to. I have known the Beattie family far longer than I have worked at Wyvis and many of the contractors I have known and been friendly with. I have been employed at Wyvis approximately 14 years, although Hugh did not put me on the books until under 9 years ago.”[51]In mid-January 2023, Mr Beattie had a tractor accident, which had the effect of removing him from attending on the estate.[52]On Wednesday 25 January 2023, Mr John Chalmers emailed Mr O’Donnell (Mr Chalmers's January 2023 email) “Hello. As the wild boar on Wyvis Estate are not licenced we are being forced to get rid of the animals. Either by being rehomed or dispatched. I will find as many homes over the coming weeks and keep you posted on the outcome.”[53]Mr Chalmers's January 2023 email, while acknowledging the absence of a relevant licence, did not suggest that there were records of the number of wild boar (for licencing, animal welfare reasons or otherwise). The rehoming and dispatch process of the boars was impacted by some of the sows being pregnant.[54]In mid-February 2023, Mr Beattie’s employment was terminated.[55]On Wednesday 15 February 2023, Mr Chalmers’ employment with the respondent terminated.[56]In February 2023, Mr Colin Murray, whom the claimant named in his letter of 7 January 2023 in connection with an event in September 2020, returned to work. Mr Murray was not engaged in a similar role to that of the claimant.[57]In the later part of 2022 and in the first couple of months of 2023, Mr O’Sullivan’s attention was on areas unrelated to the claimant. The respondent, in the first couple of months of 2023, put matters related to the claimant, who remained suspended on full pay, to one side. As identified in the respondent's November 2022 Board report, the respondent considered the day-to-day operations of the estate to be subject to significant disruption.[58]In or around March 2023, the respondent received advice from a consultant from Nature Scotland who advised that changes should be made to the thenexisting practice of feeding deer, as it was not in line with a roaming herd and the deer were becoming too tame in consequence.[59]The respondent concluded by 3 April 2003, following upon the advice from Nature Scotland regarding the deer and having identified the requirement to “gef rid of the” wild boar as described by Mr Chalmer’s January 2023 email, that the Estate was able to operate without a General Farm Hand, and the other remaining roles including grass cutting carried out by the claimant could be absorbed by other employees.[60]On Monday 3 April 2023, at 4.56 pm Mr Stuart Sullivan issued an email to the claimant (the April termination notice email) which set out “Attached please find a letter notifying you of the redundancy of your employment with Wyvis One Estate Ltd. I am sending this letter to the email address you have used throughout your employment with us. A copy has been mailed to you.”[61]The letter accompanying the termination notice email was signed by both respondent Directors, Mr O’Sullivan and Ms Coates (the 3rd April 2023 Termination letter) set out the respondent’s position in response to the claimant’s allegations involving both Colin Murray and Mr O’Donnell set out in the claimant’s 7th January 2023 communication, and further described that: “The decision to seek a medical report in respect of you was made, in part, in light of the fact you had reported to Hugh that your recovery following the knee replacement surgery had been impacted by your legs being hit by the metal boiler pot. There was therefore a concern about your ongoing health and whether you were able to safely carry out your role. The medical report we received in respect of you, which was prepared following a video consultation with you, advised that we may wish to consider conducting a practical risk assessment in respect of you to ensure that you are able to lift and mobilise safely. Having reflected on this suggestion, we considered that it would be prudent for us to follow it. We were therefore considering who would be suitably qualified and experienced to undertake such a risk assessment in respect of you and we intended to come back to you shortly with details of arrangements for such an assessment. in the meantime, however there has been a development regarding your role as General Farm Hand with Wyvis One Estate Ltd - see further below Redundancy Your role as General Farm Hand with Wyvis One Estate Limited is redundant.[62]In summary, the claimant was advised that his role was redundant with immediate effect, the claimant would receive statutory redundancy payment and be paid nine weeks’ notice with holiday pay. The claimant had not been consulted, there was no offer to explain why the decision to terminate was immediate.[63]Prior to the removal of the wild boar the estate was spending several thousand pounds a year on the feed for the wild boar.[64]At the date of termination, the respondent did not employ other General Farm Hands. The respondent employed around five other employees, including a Head Stalker who operated on the hills on stalking duties and another employee based in the Woodshed, who had skills in the operation of machinery. The claimant’s role was not comparable to any other employee. As of 3 April 2023, there had been a diminution in the work which the claimant would, but for his suspension, have carried out in respect of both feeding of deer and feeding of wild boar.[65]Further, as of the date of the termination, the respondent was continuing to operate a cull/removal process of the wild boar as a continuation of the process identified by Mr Chalmers in his email of 25 January 2023.[66]The respondent’s decision to terminate the claimant’s employment by reasons of redundancy was not conflated with issues around suspension and or other matters raised by the claimant; it reflected the fact that the respondent's requirements for the claimant to carry out work of the kind in which he would have been engaged but for the suspension had diminished and were expected to cease or diminish. The decision to terminate the claimant’s employment did not require to be taken at any scheduled respondent Board meeting and could be taken at any time. By March 2023 Mr O’Sullivan’s attention was no longer on areas unrelated to the claimant and did not require to put matters related to the claimant to one side.[67]As of the date of termination and subsequently, there had been no vacancy for a General Farm Hand, nor anyone employed in that role.[68]On Monday 8 May 2023 at 10.50 a.m., Mr O’Donnell set out in an email to the claimant “/ understand that you have been in contact with" the accountants "regarding the calculation of your holiday pay. The calculation was made as follows; Your annual salary was £24,8245. There are 249 working days in 2023 plus 8 public Holidays. You are entitled to 22 days annual leave plus public holidays per annum. You should have worked 63 days in 2023 and there were 2 public holidays. The proportion of holiday you are entitled to is therefore (22)/(249/63+11/2) X £24,825/(249+110. We rounded this up to 7 days holiday entitlement. Your daily rate is £95.48 x 7 =£668.36.”[69]On Tuesday 9 May 2023 at 8.51 p.m., the claimant emailed Mr O’Donnell in response and set out, “I maintain I am due 22 days holiday, less 7 which you have paid me, as / haven’t had a holiday since April 2022. It was agreed with my manager (Gordon Beattie) that I could carry these days over to be taken this year.”[70]On Wednesday 10 May 2023 at 8.30 a.m., Mr O’Donnell emailed the claimant ‘"The Estate policy is that any holiday’s due to an employee must be taken within the calendar year to which they relate and no carry forward of unused holiday entitlement is permitted, Gordon Beattie had therefore no authority to permit you to carry over holidays. We therefore state that the holiday entitlement that you were paid is correct.”[71]In June 2023, the respondent engaged a couple as housekeepers; they were not engaged in the role formerly held by the claimant. Mr Colin Rae, in addition to his principal housekeeping role, carried out some grass-cutting.[72]After the termination of the claimant’s employment, the claimant made limited efforts to seek alternative employment by reading the newspapers and making contact with people he knew although did not keep records of same. The claimant did not and would not have considered certain alternative jobs such a delivery driver with a different employer as he considered that he would have been required to speed, he would not have considered a role working on a till in a supermarket as he was an outside worker. After September 2023 he make enquiries at an alternate Estate for any role and with a building company and a plastering business for a labouring role. The claimant has not secured alternate employment. Submissions[73]Both parties provided detailed written submissions. It is not considered necessary for the sake of brevity to set out the submissions.[74]The respondent submissions set out that the claim should not succeed (under the exception of failure to provide written particulars in respect of which the award should be limited) extended to over 19 pages covering background, unfair dismissal, holiday pay, failure to provide a contract of employment, (proposed) Findings in Fact, (the respondent proposed assessment of) witnesses, unfair dismissal, including the reason for dismissal, reasonableness, remedy, mitigation, reinstatement, holiday pay and responses to the claimant’s submissions. For the respondent, it was argued that the claims should be dismissed in summary. As a number of cases are set out below, it is not considered necessary to list all cases referenced, although the respondent additionally referred to, and the Tribunal has noted, the Court of Appeal in Kelly v PGA European Tour [2021] EWCA Civ 559 [Kelly].[75]The claimant’s submissions which argued that claimant’s claims should succeed, extended over 83 paragraphs and 17 pages and covered the issues, (proposed) chronology, whether the dismissal was for a substantially fair reason, whether the dismissal was procedurally fair, whether the dismissal fell within the band of reasonable responses (the claimant proposed assessment of) witnesses, contract of employment, holiday pay, remedies for unfair dismissal, reinstatement, basic award, compensatory award including losses to date of hearing and future losses, Polkey, Failure to mitigate loss, conclusions on remedy and responses to the respondent's submissions. As a number of cases are set out below it is not considered necessary to list all cases referenced, although the respondent additionally referred, and the Tribunal has noted, the Court of Appeal in Digital Equipment Co v Clements [1997] IRLR 140; King v Eaton ( No 2) [1998] IRLR 686 [King]; Andrews v Software [2000] Ltd [2007] IRLR 568 [Andrews]; Grayson v Paycare [2018] UKEAT/1079/17 [Grayson]; Hill v Governing Body of Great Tey Primary School [2013] IRLR 274 [Hill], Conclusions on witness evidence[76]The Tribunal heard evidence from the claimant together with witnesses called for the claimant Mr Chalmers and Mr Beattie[77]The Tribunal concludes that each of the claimant witnesses sought to be straightforward in their recollection of matters within their knowledge; however, none of the claimant witnesses were employed on the estate at the relevant time being March 2023, when the Tribunal concludes the respondent decided upon redundancy. Further, while the claimant, in his evidence, repeated allegations first set out in his letter of 7 January 2023, and which had not been raised by the claimant in any communication earlier regarding the condition of Mr O’Donnell on 26 October 2022, so far as material the Tribunal concludes that the claimant’s recollection is inaccurate as was that of Mr Chalmers and so far as was relevant Mr Beattie.[78]Further, and while there was a dispute about the number of wild boars, ultimately, the Tribunal found the evidence of both Mr O’Donnell and Mr O’Sullivan to be more consistent and reliable, and despite the absence of any consultation process was preferred on material aspects of the claim. Redundancy[79]The respondent has the burden of proving that it dismissed for a potentially fair reason.[80]In this case, the respondent argues that the reason was redundancy.[81]Accordingly, the Tribunal must see whether, in the circumstances of this case, the conditions set out in s139 ERA 1996 are met.[82]Section 94 ERA 1996 provides that an employee has the right not to be unfairly dismissed. It is for the respondent to show the reason (or principal reason if more than one) for the dismissal (s98(1)(a) ERA 1996).[83]That the employee was redundant is one of the permissible reasons for a fair dismissal (section 98(1)(b) and (2)(c) ERA 1996).[84]Where dismissal is asserted to be for redundancy, the employer must show that what is being asserted is true, i.e., that the employee was, in fact, redundant, as defined by statute. 85. s139 of the Employment Rights Act 1996 (ERA 1996), provides. Redundancy(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 or intends to cease— (i) to carry on the business for the purposes of which the employee was employed by him, or (ii) to carry on that business in the place where the employee was so employed, or (b) the fact that the requirements of that business— (i) for employees to carry out work of a particular kind, or (ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.(2) For the purposes of subsection (1) the business of the employer together with the business or businesses of his associated employers shall be treated as one (unless either of the conditions specified in paragraphs (a) and (b) of that subsection would be satisfied without so treating them). (6) In subsection (1) “cease” and “diminish” mean cease and diminish either permanently or temporarily and for whatever reason,”[86]An employee is dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to the fact that his employer has ceased, or intends to cease, to carry on that business in the place where the employee was so employed or the fact that the requirements of that business for employees to carry out work of a particular kind have ceased or diminished, or are expected to cease or diminish (s139(1 ) ERA 1996).[87]In Safeway Stores pic v Burrell [1997] IRLR 200 (Burrell), the EAT identified a 3-stage test for considering whether an employee is dismissed by reason of redundancy. A Tribunal must decide: -a. Whether the employee was dismissed?b. 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?c. If so, was the dismissal of the employee caused wholly or mainly by the cessation or diminution?[88]The correct approach in relation to redundancy (s139(1)(b)(i) of ERA 1996) remains, as set out in similar worded Northern Irish legislation considered by the House of Lords in Murray v Foyle Meats [2000] 1 AC 51 (Murray); namely the legislation should be interpreted simply, the focus is on the employer’s requirement for employees, and whether that has diminished, it being then a factual question whether that situation was what caused the dismissal.[89]In Murray the House of Lords emphasised the importance of following the statutory wording, Lord Irvine said that two questions had to be addressed: “The first is whether one or other of the various states of economic affairs exists. In this case, the relevant one is whether the requirements of the business for employees to carry out work of a particular kind have diminished. The second is whether the dismissal is attributable, wholly or mainly, to that state of affairs. This is a question of causation.”[90]Issues for the Tribunal where redundancy is relied upon would include whether a dismissal wholly or mainly attributable to the fact that the requirements of that business for employees to carry out work of the particular kind the claimant was employed in, in the place where the employee was employed by the employer had ceased or diminished.[91]If satisfied of the reason for dismissal, it is then for the Tribunal to determine, the burden of proof at this point being neutral, whether in all the circumstances, having regard to the size and administrative resources of the employer, and in accordance with equity and the substantial merits of the case, the employer acted reasonably or unreasonably in treating the reason as a sufficient reason to dismiss the employee (s98(4) ERA 1996).[92]In applying s98(4) ERA 1996, the Tribunal must not substitute its own view for the matter for that of the employer but must apply an objective test of whether the dismissal was, in the circumstances, within the range of reasonable responses open to a reasonable employer.[93]The House of Lords in Polkey v A E Dayton Services Ltd 1987 IRLR 503 (Polkey) held that “/n the case of redundancy, the employer will not normally have acted reasonably unless he warns and consults any employees affected or their representative, adopts a fair basis on which to select for redundancy and takes such steps as may be reasonable to avoid or minimise redundancy by redeployment within its own organisation”.[94]If the Tribunal finds that the respondent has shown the reason, in this case, redundancy, then I must consider, as per s98(4) ERA 1996, whether, in the circumstances, the action taken by the respondent falls within the band of reasonable responses of a reasonable employer in those circumstances and in that line of business. Specifically, this means determining whether (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee. Here, the burden of proof is neutral.[95]The Tribunal should consider three key strands as to whether a redundancy was fair: selection, warning and consultation and alternative employment.[96]Where normal procedural steps would have been utterly useless or futile, it might be reasonable for an employer to conclude that the usual procedural steps would not need to be taken, as per Polkey. However, as set out in Heron v Citylink-Nottingham [1993] IRLR 372 (Heron), the employer’s belief that they have no alternative but to make an employee redundancy does not obviate the need for consultation, the need for immediate decision could be supported only if it was not possible for the dismissal to take place at a later date, the purpose of consultation is to take into account the employee’s views and could, in any event, be beneficial to the employee even if no alternative was found.[97]Finally, if the Tribunal finds that there was a dismissal and such dismissal was procedurally unfair, I must consider whether there should be a reduction to reflect the chance that had a fair procedure been undertaken, the claimant would have any event been dismissed as per the principles in Polkey.[98]The respondent referenced Moon v Homeworthy Furniture (Northern) Ltd 1976 IRLR 298 [Moon] in which the employees wished to contend that a factory should not have been closed, the employer having closed the complete factory and the whole workforce was made redundant, on the grounds that it was not economically viable. The EAT held that a Tribunal may look only to see if a redundancy situation exists. It may not consider whether it should exist. The employer closed a factory on the grounds that it was not economically viable. The employees wished to contend that the factory should not have been closed. The EAT noted that in the Tribunal, the claimant representative accepted that was a cessation of work and, therefore, closure. Held, dismissing their appeal from the refusal of the Tribunal to consider that question, that there was no jurisdiction to determine whether or not a redundancy situation ought to exist, but only whether it did exist. As approved and summarised by the then President of the EAT HHJ Burton in Scott & Co v Richardson [2005] EATS/0074/04 (Richardson) in hearing a complaint of unfair dismissal arising out of redundancy, a Tribunal can investigate the origin of the redundancy situation, including questions such as unfair selection or lack of notice, but it has no jurisdiction to investigate the reasons for creating the redundancies.[99]For the claimant, reference was made to Ladbroke Courage Holidays v Asten [1981] IRLR 59 [Asten]. In Asten, the claimant had been employed in various temporary and permanent positions between 1978 and 1980, when he was dismissed summarily and without warning. The employer had argued that the dismissal was on grounds of redundancy because their requirement for employees to do maintenance work had diminished when planning permission for extending a clubhouse was refused as it had been envisaged that Mr Asten would be carrying out this work during the winter period 1979/80. The Tribunal rejected this argument but accepted the alternative proposition that the dismissal was for some other substantial reason, namely instructions to the regional controller to reduce the wages bill. The EAT dismissed the appeal, noting that the Tribunal had set out “There was no evidence of any decision to number of maintenance workers" and holding that the Tribunal had not erred in stating that an employer who relies on business re-organisation or economic necessity to justify dismissal should produce evidence to prove the re-organisation or need for economy and that it, in that instance, it was material to know whether the respondent was making profits or losses.[100]On reasonableness, the overriding test is whether the employer’s actions at each step of the redundancy process fell within the range of reasonable responses. The respondent identified the EAT decision in Williams & Others v Compair Maxam Ltd [1982] ICR 156 (Compair Maxam) in which a number of factors were set out as relevant to the question of fairness summarised here as follow: 1. Were employees warned and consulted about the redundancy? 2. If there was a union, were their views sought? and 3. Were any selection criteria objectively chosen and fairly applied? 4. Was the selection made fairly in accordance with the criteria? 5. Was any alternative work available?[101]Where the Tribunal concludes that there was procedural unfairness in the dismissal, it should ask itself whether or not, had the procedure been a fair one, the claimant would have been dismissed in any event (Polkey). Re-engagement[102]Section 112 of ERA 1996 provides that: ‘(1) This section applies where, on a complaint under section 111, an employment tribunal finds that the grounds of the complaint are wellfounded. (2) The tribunal shall—(a) explain to the complainant what orders may be made under section 113 and in what circumstances they may be made, and(b) ask him whether he wishes the tribunal to make such an order. (3) If the complainant expresses such a wish, the tribunal may make an order under section 113. (4) If no order is made under section 113, the tribunal shall make an award of compensation for unfair dismissal (calculated in accordance with sections 118 to 126...) to be paid by the employer to the employee.” 1 03. Section 113 of ERA 1996 provides that; “7 7 3 The orders. An order under this section may be (a) an order for reinstatement (in accordance with section 114)[104]Section 116 of ERA 1996 provides, in relation to the choice of Order that: “(1) In exercising its discretion under section 113 the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account—(a) whether the complainant wishes to be reinstated,(b) whether it is practicable for the employer to comply with an order for reinstatement, and(c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement. (2) If the tribunal decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement and, if so, on what terms. (3) In so doing the tribunal shall take into account— (a) any wish expressed by the complainant as to the nature of the order to be made, (b) whether it is practicable for the employer (or a successor or an associated employer) to comply with an order for re-engagement, and (c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his re-engagement and (if so) on what terms. (4) Except in a case where the tribunal takes into account contributory fault under subsection (3)(c) it shall, if it orders re-engagement, do so on terms which are, so far as is reasonably practicable, as favourable as an order for reinstatement. (5) Where in any case an employer has engaged a permanent replacement for a dismissed employee, the tribunal shall not take that fact into account in determining, for the purposes of subsection (1)(b) or (3)(b), whether it is practicable to comply with an order for reinstatement or re-engagement. (6) Subsection (5) does not apply where the employer shows— (a) that it was not practicable for him to arrange for the dismissed employee’s work to be done without engaging a permanent replacement, or (b) that— (i) he engaged the replacement after the lapse of a reasonable period, without having heard from the dismissed employee that he wished to be reinstated or re-engaged, and (ii) when the employer engaged the replacement it was no longer reasonable for him to arrange for the dismissed employee’s work to be done except by a permanent replacement.”[105]It is not considered necessary, for the sake of brevity, to set out what Section 117 of ERA 1996 provides in relation to the enforcement of an Order for Reinstatement or Reengagement and Compensation.[106]Reflecting s112 to s117 of ERA 1996 set out above, reinstatement is one of the 'primary remedies’ for unfair dismissal (Rao v Civil Aviation Authority [1992] ICR 503, unsuccessfully appealed to the Court of Appeal on other grounds [1994] ICR 495 and Central & Northwest London NHS Foundation Trust v Abimbola (UKEAT/0542/08), para. 14.[107]The EAT set out in Timex Corporation v Thomson 1981 IRLR (Timex) that the first stage “only requires the [employment] tribunal to “have regard” to matters of practicability. In our judgment there is no need for an [employment] tribunal to reach a final conclusion that re-engagement is practicable before making any such order. If, having made an order for re-engagement, it proves not to be practicable to perform it there are no adverse consequences for the employer.”[108]Thus, the final conclusion as to practicability is made when the employer finds out whether they can comply with the Order in the period prescribed.[109]Guidance has also been given that the test of practicability is not a possibility. The employer does not have to show that re-engagement was impossible. It is a matter of what is practicable in the circumstances of the employer’s business at the relevant time. While a Tribunal should carefully scrutinise the reasons advanced by the employer, due weight should be given to the judgment of the management.[110]I note the Court of Appeal decision in Nothman v London Borough of Barnet (No2) [1980] IRLR 65 CA (Nothman). In Nothman, the Court of Appeal indicated that a lack of confidence in the employer and its management suggested that an employee would not operate as a satisfactory employee if reinstated and thus would be a relevant matter to be taken into account.[111]The Tribunal is to determine the question of reasonable practicability as at the date it is considering making an engagement order, at which stage it has to form a preliminary or provisional view of practicability. The respondent has a further opportunity (section 117(4)) to show why a re-engagement order is not practicable if it does not comply with the original order and seeks to defend itself against an award of compensation and/or additional award that might otherwise then be made under section 117(3).[112]In United Lincolnshire Hospitals NHS Foundation Trust v Farren [2017] ICR 513 (Farren) the EAT considered an appeal from a Tribunal where that was a different factual matrix, the Tribunal having made findings in fact that a claimant had committed an act of misconduct in question, asked itself whether the employer had established what a serious allegation was. The EAT commented. "40. That, however, was not the correct question for the tribunal. As the case law makes clear (see Wood Group Heavy Industrial Turbines Ltd v Crossan ...), it had to ask whether this employer genuinely believed that the claimant had been dishonest, and . . . whether that belief had a rational basis. It was, after all, this employer-—not some other and certainly not the employment tribunal—that was to re-engage the claimant. The issue of trust and confidence had to be tested as between the parties in order to determine, even on a provisional basis, whether an order for re-engagement was practicable, whether it was capable of being carried into effect with success, whether it could work”.[113]Regulation 2 of the Working Time Regulations 1998 (“WTR”) defines a ‘relevant agreement’ and requires that such an agreement be in writing and be legally enforceable (at least if it is not part of a workforce or collective agreement).[114]Regulations 13, 13A and 14 of the Working Time Regulations 1998 (“WTR”) give workers a statutory right to 5.6 weeks paid holiday per year, made up of basic leave of 4 weeks and 5 additional leave of 1.6 weeks, with the maximum aggregate of the basic and additional entitlement is 28 days, a right to payment in lieu of any outstanding holiday entitlement when the employment relationship ends.[115]Regulation 13(5) provides for pro rata accrual where the Claimant has only worked for part of the year.[116]Regulation 14(3)(b) provides a formula for calculating the payment due under Regulation 16 where there is no written contract of employment. 11 7. Regulation 30 provides that a worker has the right to bring a claim if they are denied the entitlement to paid holidays.[118]Section 13 of the Employment Rights Act 1996 (ERA 1996) provides that an employer shall not make a deduction from a worker's wages unless:a. The deduction is required or authorised by statute or a provision in the worker's contract; orb. The worker has given their prior written consent to the deduction.[119]A deduction occurs where the total wages paid on any occasion by an employer to a worker is less than the amount of the wages properly payable on that occasion. Wages are properly payable where a worker has a contractual or legal entitlement to them (New Century Cleaning Co Limited v Church [2000] IRLR 27 [Church]) Discussion and Decision Redundancy/Unfair Dismissal[120]In the present case, the respondent accepts that they did not consult giving as much notice as may be reasonable (they did not consult at all). However, so far as relevant the respondent applied an objective criterion for selection in identifying the claimant role as the sole General Farm Hand at the material time and having regard to tasks including those related to the wild boar and wild roaming deer herd identified that the requirements of that business for employees to carry out work of a particular kind in the place where the employee was employed by the employer had diminished and or were expected to cease or diminish.[121]The respondent did not consider there were alternatives to redundancies.[122]The respondent applied an objective criterion for selection and identified, in effect, a pool adopted for selection being a pool of one, which a reasonable employer could have adopted with regard to the role carried out by the claimant.[123]The respondent did not inform the claimant of any scores nor give the claimant any opportunity to contest same. The respondent did not, as it did not consult, give any time off to seek employment; however, at the material time the claimant was suspended on full pay, there was no practical impact beyond the lack of consultation.[124]The respondent paid all monies it considered were due, including statutory redundancy and pay in lieu of notice, and it paid what was calculated as accrued holiday pay.[125]The documented evidence supporting the respondent’s position consisted of Mr Chalmers January 2023 email, which recorded that the respondent, owing to licensing issues was being ‘"forced to get rid of the animals. Either by being rehomed or dispatched” with Mr Chalmers describing that he would find as many homes “over the coming weeks” and keep Mr O’Donnell posted on the outcome. That was further summarised in the respondent letter of 3 April 2023 that “the decision has been taken that wild boar will no longer be kept on the Estate due to the regulatory and administrative burden this creates. A cull/removal process is underway.” It was not suggested that there were any independent records kept of the number of wild boar, against same the Tribunal accepts the evidence of Mr O’Donnell and Mr O’Sullivan on their evidence on the number of wild boar and the consequent reduction.[126]The Tribunal accepts the evidence of Mr O’Donnell and Mr O’Sullivan in that the respondent received advice from Nature Scotland which had the effect of changing the previous practice of feeding the deer on the estate, that change being, as set out, in the respondent letter of 3 April 2023 that they “will no longer feed the Estate deer following advice received from Nature Scotland”. Both Mr O’Sullivan and Mr O’Donnell explained that the advice was to the effect that the process of operating several feeding sites along a deer feeding route in effect along a single-track road of several miles from the Farn Yard alongside (and beyond) Loch Glass took away from what was a wild roaming deer population.[127]In relation to both these outcomes, the requirements of the employer’s business for employees to carry out work of a particular kind ceased or diminished or were expected to cease or diminish. The Tribunal accepts the respondent’s evidence that this diminution was in respect of the work carried out by the claimant.[128]The respondent contends that the claimant was dismissed for the reason of redundancy. The claimant argues that in all the circumstances of the case, there was an unfair dismissal, with the principal reason not being that of any redundancy, and in any event, the redundancy procedure (including the absence of consultation) was unfair.[129]In all the circumstances, it is understandable that the claimant viewed and continues to view the respondent’s position with considerable suspicion, not least given the respondents’ singular failure to engage in any consultation process. It could not be said there was any reasonable need for immediacy of the respondent’s decision set out on 3 April 2023, which followed a period of ongoing suspension on full pay from 26 October 2022. Against that background, however, the Tribunal accepts that the respondent’s position during the suspension period had altered, including having regard to the ongoing reduction of the wild boar and the change in the feed of the deer. While the boar feeding could, from time to time, be carried out by other employees, the Tribunal concludes that the task fell principally to the claimant.[130]In particular, the Tribunal concludes that the dismissal of the claimant was wholly or mainly attributable to the fact that the requirements of that business for employees to carry out work of the particular kind the claimant was employed in had diminished. Both in consequence of the decision arising from the lack of licence for wild boar and the advice from Nature Scotland.[131]There was a consequential diminution of the work the claimant was employed in. The Tribunal accepts that the respondent identified that it was able to reallocate the claimant’s remaining tasks to colleagues in addition to their existing tasks. The allocation of grass cutting, which the Tribunal accepts was not the principal role of the claimant, to Colin Rae, in addition to his housekeeping role, does not alter this assessment.[132]The Tribunal concludes that the respondent ultimately acted reasonably in treating this diminution as a sufficient reason for dismissing the claimant by reason of redundancy in all the circumstances. In the circumstances, there was a pool of one. The position of the claimant was unique within the business at the time of redundancy.[133]The respondent, fairly, does not seek to argue that the respondent consulted adequately with the claimant. There was no consultation. That was clear from the language deployed in the respondent’s letter of 3 April 2023.[134]The Tribunal concludes that a 2-week estimation for the respondent to have followed a fair redundancy procedure from the outset as being a reasonable estimation in all the circumstances. While the respondent had set aside consideration of the claimant’s position for a period prior to its consideration, which led to the respondent’s letter of 3 April 2023, the Tribunal does not accept that the respondent would not have addressed itself with a reasonable degree of promptness thereafter.[135]Taking the process as a whole, the Tribunal accepts that the respondent had ultimately fairly and reasonably applied selection criteria to determine that the claimant would be made redundant.[136]At the date of termination, there were no suitable alternative roles.[137]In all the circumstances in relation to the question of whether the dismissal of the claimant fell within the range of reasonable responses, the Tribunal is conscious to avoid substituting its view for that of the employer and accepts that the decision of the respondent fell within the range of reasonable responses.[138]In relation to the question of a fair procedure, there was no consultation at all. That cannot be regarded as fair in this instance. However, the respondent paid the correct statutory redundancy payment and paid the relevant notice.[139]In the circumstances, the claimant did not suffer a financial loss beyond which the Tribunal concludes would have been a 2-week consultation period and which would have amounted to a fair redundancy process. It is not just and equitable to make any award beyond the 2 weeks beyond which the Tribunal concludes the claimant, following consultation, would have been subject to redundancy.[140]The question of whether the Tribunal is satisfied that the claimant acted reasonably to mitigate his loss in the circumstances does not arise, nor does any question of whether there ought to be any reduction in the compensation payable on the basis that the claimant would have been dismissed in any event.[141]In conclusion, the Tribunal accepts that the claimant was dismissed, further that the requirements of the employer’s business for the claimant to carry out work of the particular kind he was engaged to do had diminished, and the dismissal of the claimant was caused wholly or mainly by that diminution.[142]The principal reason for the selection and dismissal was a potentially fair one, namely redundancy, in accordance with Sections 98(1) and (2) (c) of the Employment Rights Act 1996 (ERA 1996).[143]The Tribunal concludes that in all the circumstances, having regard to the size and administrative resources of the employer, and in accordance with equity and the substantial merits of the case, the employer acted reasonably in treating the reason as a sufficient reason to dismiss the employee (s98(4) ERA 1996).[144]The Tribunal has reminded itself that applying s98(4) ERA 1996, the Tribunal must not substitute its own view for the matter for that of the employer but should apply an objective test of whether the dismissal was in the circumstances within the range of reasonable responses open to a reasonable employer.[145]When considering whether the circumstances of the claimant’s dismissal fell within the range of reasonable responses open to a reasonable employer, the Tribunal should consider whether the respondent’s choice of any selection criteria fell within a range of reasonable responses available to a reasonable employer in all the circumstances. The Tribunal has considered the respondent’s initial failure to recognise that there was a redundancy situation. Notwithstanding that failure, the Tribunal, on the available evidence, concludes that it is unable to interfere with the effective choice of a pool (of one) and concludes that the respondent had genuinely applied its mind to the pool. The Tribunal considers that in ail the circumstances, the choice of the pool was within the range of reasonable responses available to a reasonable employer in the circumstances.[146]The Tribunal concludes that the dismissal of the claimant was wholly or mainly attributable to the fact that the requirements of that business for employees to carry out work of the particular kind the claimant was employed in had diminished. The claimant was dismissed due to redundancy. Had the respondent consulted, that would have taken a period of 2 weeks after which the claimant’s employment would have terminated due to redundancy. Discussion and Decision Reengagement[147]While in the context of the decision above, the question of re-engagement does not arise, had the Tribunal accepted the claimant's submission in relation to that issue, the Tribunal would not have accepted the claimant’s submission on the question of re-engagement. There was no evidence of any vacancy for the role of a General Farm Hand. In those circumstances and applying the approach set out in s 114 and s116 of ERA 1996, whether the claimant wishes to be reinstated to his former post, it was not practicable to do so. Thus, no order would have been made for reinstatement.[148]Further and in the context of the claimant’s letter of 7 January 2023 setting out criticism of Mr O’Donnell, who the Tribunal concludes was the more senior person for the respondent the claimant would engage with on a practical basis the Tribunal concludes it could not be said that an Order for engagement was practical, it could not be said that it was capable of being carried into effect with success.[149]There was no written agreement to vary the leave year. Therefore, the claimant’s leave year ran from the date he commenced employment and annually thereafter from the anniversary of that date (Reg 13(3)(b) and 13A(4)). That is to say it ran from 1 June to 30 May each year.[150]No evidence of any relevant Policy document referred to in the respondent's email of 10 May 2023 was adduced. The parties did not agree on what the holiday entitlement was.[151]There was no contractual provision entitling the claimant to roll over his accrued but untaken holiday pay from the relevant holiday year. While the respondent asserts that the holiday year was January to December, they issued no written particulars to the claimant, nor was any evidence adduced demonstrating agreement between the parties; in the absence of the same, the Tribunal concludes that the holiday year operates from the anniversary of the claimant’s start date.[152]Therefore, as per Regulation 14(1)(b) of the Working Time Regulations 1998, the claimant’s holiday pay claim is limited to the proportion of leave to which he is entitled in the leave year under Regulation 13(1), less the leave he had already taken. The claimant, in his email of 9 May 2023, in effect, accepted that he had taken holidays by April 2022. There was no contractual agreement providing for carry-over of unused holidays.[153]There was no contractual agreement setting out the holiday year; as such, it operated from 1 June of each year rather than, as the respondent accountant had assumed the calendar year.[154]As of the date of termination, the claimant had accrued a holiday entitlement of 23.6 holidays in in final holiday year. He was paid for 7 of that accrued entitlement and, as such, is entitled to 16.6 days accrued holidays at £95.48 being £1,584.97(gross). Provisions of Terms and Conditions[155]The respondent accepted it had failed to provide any written terms and conditions. The Tribunal, in all the circumstances, having regard to Section 38 EA 2002 and Schedule 5 of EA 2002, the Tribunal makes an award of 2 weeks’ pay in respect of the failure to provide written particulars. While the Tribunal recognises that the respondents operate a small business, the Tribunal does not consider that it would be unjust and inequitable to do so. The Tribunal does not, however, consider that an award of 4 weeks’ pay is just and equitable, having regard to the size of the respondent’s business.
Conclusion
[156]The claimant’s claim for unfair dismissal does not succeed for the reasons set out above and his claim is dismissed. In respect that the respondent failed to consult, the claimant is awarded 2 weeks pay reflecting the period that a fair consultation period would have taken being £1,034.37.[157]The claimant’s application for reinstatement is refused.[158]The claimant’s claim for outstanding accrued holiday pay succeeds in the sum of £1,584.97.[159]The claimant’s claim in relation to failure to provide written particulars succeeds and the claimant is awarded 2 weeks’ pay being £1,034.37.