Mr D Gormley v Phoenix Business Solutions (UK) Ltd: 4104260/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4104260/2024
Between
Mr D GormleyClaimantPhoenix Business Solutions (UK) LtdRespondent
Before
Employment Judge R McPhersonM Allison (instructed by Counsel) for claimantA Francis (instructed by Counsel) for respondentDate 22 October 2024
JUDGMENT
[1]In respect that the claimant was dismissed by reason of redundancy, the respondent shall pay to the claimant the sum of ONE THOUSAND NINE HUNDRED AND TWENTY-NINE POUNDS (£1,929.00) as a statutory redundancy payment.[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 the claimant the sum of FOUR THOUSAND SEVEN HUNDRED and SIXTY-NINE POUNDS AND TWENTY-FOUR PENCE (£4,769.24).[3]The claimant’s claim for unfair dismissal does not succeed and is dismissed.[4]The claimant’s claim for wrongful dismissal does not succeed and is dismissed.[5]The sum awarded in item 2 is 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 on 25 March 2024 following ACAS Early Conciliation (ACAS certificate identifying receipt of EC notification on Sunday 31 December 2023, and the issue of the ACAS Certificate on Sunday 21 January 2024) against the respondent following upon the termination of the claimant’s employment as a Legal Director with the respondent. It is argued by the claimant that the decision to dismiss was both substantively and procedurally unfair and that he was wrongfully dismissed.[2]The ET3 was presented timeously for the respondent. The claims are resisted. The respondent argues that the termination was by reason of redundancy or some other substantial reason.[3]While the respondent maintains that substantively, the reason or principal reason for termination was redundancy, the respondent accepts that, on procedural grounds, there had 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 of award.[4]The Tribunal heard evidence from the claimant, Mr Richard Chandler (former General Counsel for the respondent), Mr Brian Flack, General Counsel for the Respondent, and Ms Anne Marie Kartsounes, the respondent's Chief People’s Officer (CPO).[5]The Tribunal identified the issues to include: Termination and Redundancy[6]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.[7]The claimant seeks compensation.[8]In relation to redundancy, the Tribunal may consider whether steps were followed, so far as may have been appropriate. For the claimant, it is proposed that, in addition, consideration should be given to a failure to offer an appeal.[9]For the respondent, it is proposed that, in addition, consideration should be given to what is said to be the claimant’s fiduciary duty to the respondent. Breach of contract/ wrongful dismissal 1. What was the claimant’s notice period? 2. Was the claimant paid for that notice period? 3. Is any reduction appropriate? Findings in Fact[10]The respondent engaged the claimant as Legal Director EMEAC on Wednesday, 1 December 2021 (EMEAC being the business area of Europe, the Middle East, Africa and Canada), with APAC (being the business areas of Asia Pacific) area subsequently being added. While titled director, the claimant was not a company director of the respondent company. The claimant has considerable contractual experience within the energy industry. The claimant, although having a legal background, including that of a solicitor, was engaged by the respondent as an adviser to support sales teams on various service contracts and not as a solicitor. He was not engaged to advise on matters of employment law.[11]The respondent employed between 100 and 150 employees in the UK. While Ms Kartsounes, the respondent’s Chief People Officer (CPO), was the most senior HR employee based in the US, she was aware of the 2-year qualifying provision for statutory redundancy. The respondent, in addition, had HR staff in the UK.[12]The claimant was introduced to the respondent via Mr Richard Chandler, the respondent’s now-former General Counsel. At the time of the introduction, Mr Chandler knew that the claimant was completing work with a separate business. He considered that the claimant could continue with that interest to permit him to close off that specific work. Mr Chander also knew that the claimant operated a consultancy business, Rubislaw.[13]After the introduction, in December 2021, the claimant signed a contract of employment with the respondent (the December 2021 Contract), a schedule which identified his role as a director and his normal place of work as his home. It did not set out that the claimant was employed as a practising Scottish Solicitor. The claimant is not. The claimant was engaged as an experienced lawyer advising the respondent on risks arising from contracts for services provided by the respondent in the various business areas. The claimant was not engaged to advise on matters of UK employment law, although in the course of employment, he was involved along with others in seeking advice on terms of a Settlement Agreement.[14]The December 2021 Contract provides that the respondent is engaged in the business of information, content and document management, providing strategic consultancy, software solutions and system integration to legal and professional services across the globe.[15]Clause 2(b) of the December 2021 Contract provided for 30 days written notice of termination. Clause 2 (c), however, provided that the respondent may terminate employment with immediate effect by giving notice, whether orally or in writing, that it is exercising its right to do so under 2 (b), and that it would make a payment in lieu of notice for the remainder of the notice period (subject to tax and other deductions) and provides that employment will terminate on the date the employee is notified.[16]Clause 5 of the December 2021 Contract provided: '‘Other Employment. Employee will at all times perform the duties required under this Agreement and will devote substantially all productive time, skill, and energy to performing these duties for Company. While in Company’s employ, Employee will not engage in any other employment or business activity, including without limitation, transaction business or providing services similar or relating to the Company’s Business without Company’s advance written consent.” The Company’s Business is identified as the business of information, content, and document management, providing strategic consultancy, software solutions, and system integration for legal and professional services across the world.[17]The claimant continued to operate his consultancy work despite the terms of Clause 5. He did so on the basis that, so far as he was aware, there was no conflict. However, the claimant did not take any steps to notify the respondent of this decision to allow them to carry out conflict checks, nor did he seek written consent.[18]Clause 7 of the December 2021 Contract provided that other than within the discharge of his employment, the claimant shall hold respondent non-public information confidential.[19]Clause 16 of the December 2021 Contract provided that it may not be varied except in writing, signed by both the claimant and the respondent CEO. It was not.[20]After signing the December 2021 Contract, the claimant continued to operate and offer business advice beyond his employed role. After signing the December 2021 Contract, the claimant did not seek the respondent's permission to continue offering such business advice. He did not write to the respondent to permit it to carry out any conflict checks. No general implied or actual permission was granted that the claimant could continue to offer his professional services to alternate businesses while working for the respondent. In the course of his employment, the respondent was unaware of the claimant’s continued engaging in business activity.[21]On Tuesday 12 April 2022, the claimant issued an email from his respondent email regarding a Settlement Agreement. The agreement provided a settlement agreement style that the respondent used and details of the settlement terms, including payment. External counsel revised the agreement and sent it to the claimant on 12 April 2022 (the April 2022 Settlement Agreement and Email Exchange). The claimant did not take steps to send the same to his personal email at or about this time to provide a style.[22]In around November 2022, Mr Chandler left the respondent's employment; although he was not replaced, the claimant acted as General Counsel for a period.[23]On or around Wednesday 27 September 2023, Ms Kartsounes, the respondent’s Chief People’s Officer (the CPO), approved two weeks of paid holiday for the claimant (for a planned vacation in New Zealand) to be taken from around 15 December 2013 following upon discussions with the claimant.[24]Before 9 October 2023, the respondent had decided to streamline and alter how its legal team would be used. This involved providing additional responsibility to the respondent sales team and managers to negotiate contracts without direct internal legal support using a set of guidelines (referred to as a playbook). This restructuring reduced the need for an internal legal team, including broadly removing the role carried out by the claimant.[25]Consequently, the CPO prepared for a remote (video) discussion with the claimant, at which the claimant would be advised of that decision. In particular, the CPO prepared a Termination Discussion Script (the Script) with 14 Bullet Points, including setting out that the discussion was confidential; the respondent was appreciative of the claimant’s hard work; that the respondent had spent some time thinking through its best approach; the respondent had determined that they would continue to outsource a portion of their legal work; they would leverage Mr Brian Flack as an internal resource to manage internally, [a USA-based lawyer qualified in New York DC, and Washington) and, who by October 2023, operated within the respondent in a joint role, including Head of Legal Structure and, around this time, interim General Counsel]; and due to respondent restructuring the claimant’s "role has become redundant and as a result of this, the company is having to part ways with you”, expressing that this was difficult news; the company was sensitive and respected the claimant’s sentiments, and further set out as planned, scripted narrative at: 1. Bullet Point 9; the notice period is 30 days "and we need you to transition during this time”; 2. Bullet Point 10: "Given this, we will provide you with an additional 60 days' salary in the next available payroll as a goodwill gesture. This payment will be paid without deductions...” 3. Bullet Point 11: "Accordingly, your notice period will commence today and end on November 6 (can say 15th)” [being Monday 6 November 2024 and Wednesday 15 November 2024], 4. Bullet Point 12: "You will also receive a payment in lieu of any unavailed holidays as on the last date of your employment with the Company." 5. Bullet Point 13: The claimant required to return all company property, submit business expenses as soon as possible and reminding the claimant that he continued to be bound by confidentiality provisions and post-termination restrictions in his contract, including non-solicitation, noncompete, intellectual property rights etc as well as obligations contained in the non-disclosure agreement; and finally, 6. Bullet Point 14:” We will confirm all of this to you in writing.”[26]On Sunday, 8 October 2023, the CPO sent the claimant a remote video meeting invite; no agenda/subject was provided.[27]On Monday, 9 October 2023, during the remote video meeting with the claimant (the 9 October Video Call), the CPO sought to follow the Script. However, she did not disclose that she sought to follow any document to the claimant. The CPO did not communicate all the Script Bullet Points, including bullet points 10 and 11.[28]During the 9 October Video Call, the CPO described a plan she had not set out in the Script, namely that the respondent would pay the claimant until the end of the calendar year. This was to assist the claimant in securing alternate employment. The claimant subsequently referenced this element of the 9 October Video Call in his email reply of 14 November 2023.[29]During (and following) the 9 October Call, the claimant did not understand that the respondent intended to communicate that notice (of termination of the claimant’s employment) started as at the 9 October Call, nor that his employment would cease either of 6 November (that is Monday 6 November 2023) or indeed 15 November (Wednesday 15 November 2023) or indeed that there was a defined date of cessation.[30]The 9 October Video Call lasted around 18 minutes. Despite what the CPO had set out at the final bullet point 14 of the Script, the respondent did not subsequently confirm any of what was set out to the claimant in the 9 October Video Call in writing until the email of Monday November 13, 2023.[31]Following the 9 October Video Call, the claimant hoped to hear that the respondent’s acquisition of a separate business Exigent would cause the respondent to reconsider their expressed decision regarding his role.[32]On Tuesday 10 October 2023, the claimant and Mr Brian Flack, discussed what the claimant was working on again by video. Mr Flack in October 2023, operated within the respondent in various roles, including Head of Legal Structure and, around this time, interim General Counsel. Before this date, Mr Flack had limited interaction with the claimant. Although Mr Flack spoke about the restructuring plan generally, no matters regarding the termination of the claimant’s employment were discussed, as Mr Flack was content to leave matters with the CPO. The claimant offered to assist Mr Flack in relation to matters in the final business quarter of the year (October to December), the revised playbook, which the claimant put up on the share site and understood that the offer was accepted. The CPO discussion was not discussed, and the claimant just carried on working.[33]On Thursday 12 October 2023, the claimant replied by email to a colleague who had asked about his welfare, thanking the colleague for asking, describing that he was “sad and angry that without any notice other than his contractual notice” the claimant and a colleague “have been pushed out from our close legal function for doing our jobs”. The claimant, who remained angry and dissatisfied at what he described as being pushed out, described what he considered were risks for the respondent arising from the restructuring. While referencing the provision of contractual notice, the claimant did not describe that he had been notified that the notice had been activated and that he was now in a contractual notice period of 30 days. No actual termination date had been notified to the claimant at this time.[34]On Friday 13 October 2023, the claimant issued an email from a separate (to the respondent) business email Lex Energy at 8.23 am which described, “Following my review of the" named business “Contract please see attached qualifications tables in relation to which I make the following comments” making five numbered paragraphs including pointing out that it was governed by Singapore Law “a jurisdiction in which I am not qualified” and if the recipient has “any misgivings or reservations about any terms it would be prudent to seek the advice of appropriately qualified Counsel” and summarising what was set out about termination.[35]On Sunday 15 October 2023, the claimant issued an email from a personal email (sky) to his (respondent) work email, which included an email to the claimant’s Rubislaw Consultancy email address had received from an individual with Lex Energy headed Kincardine Offshore Windfarm both to his email address within his own consultancy business Rubislaw Consultancy and his email at Lex Energy and which described “Further to my earlier email please find attached the consultancy contract. If you can do it I will revert to” named individual “as I’ll also need to set up an engagement letter to KWOL as we only have one now with W3G”.[36]On Wednesday 18 October 2023, the claimant sent an email chain from his work email to himself at non-respondent email (Lex Energy), which contained a respondent’s internal email chain he had received on 1 August 2023 headed “Meeting with carrier RE: liability Caps, Excess, Exclusions and Interpretation of Law ' and which set out matters around a review of the respondent’s cyber and tech policy.[37]On Thursday 26 October 2023, 1. At 10.39 am, the claimant sent an email chain from his respondent email to his personal email, which email he had been copied into on 17 October 2023 from another person within the respondent organisation, headed “Re; Update on Terms- Morae Global" and contained information relating to how the respondent would recommend agreement on business terms. 2. At 11.01 am, the claimant set an email chain from his respondent email he had been copied into on 23 October 2023 from another person within the respondent organisation headed Re: Quote Letter - Morae Global and set out the respondent’s responses including reference to matters of right of recourse against the customer.[38]On Friday 3 November 2023, the claimant emailed from his personal email to his respondent email a separate business’s terms and conditions from October 2023.[39]On Monday 13 November 2023 at 12:52 pm, the CPO sent an email to the claimant (The email of 13 November 2023), copied to a colleague in the respondent’s London-based HR Team, Ms Bryan and was headed “Checking in”\n the following terms: “Donald, hi there. I hope all is well. I apologize that we have not been in touch, as this acquisition sure has kept me on my toes. I was working with" Ms Bryant “on your departure details and wanted to confirm with you when you wanted your official last day to be. Do you want to say end of this week? Or the 15th? As you recall we will be paying you through to the end of the year so we will include this in the documentation”.[40]The CPO, when setting that she wanted to confirm with the claimant when he “wanted” (emphasis added) his last day to be, elected to set out the date options as: 1. the end of week of her email being Friday 17 November 2023, 2. “Or the 15th”; although expressed as the secondary /subsequent option, the CPO had intended the 15 to be understood to be a reference to the earlier date of Wednesday 15 November 2023. The claimant read 15 as the subsequent option to refer to his agreed departure on holiday from 15 December.[41]The claimant did not consider that he was obligated to advise the respondent regarding the possible imminent acquisition of 2 years of employment status in all the circumstances. The CPO would not have sought advice from the claimant as she considered it would create a conflict of interest to do so. The CPO who oversaw between 100 and 150 employees in the UK understood, as did her HR colleague, the effect of 2 years of continuous service being achieved.[42]On Tuesday 14 November 2023, 1. At 5.00 am, the claimant responded to the CPO’s email (above) copied to her London-based HR colleague, thanking her for enquiring about his welfare, describing that he was okay, though anxious and worried in the circumstances (the claimant’s email of 14 November 2023), and claimant set out his comments in response:a. “In terms of my official last working day in the office when you state “15th, do you mean 15th December 2023 because as you are aware, and as Brian asked me, I have been continuing doing my work and am happy to remain available through to 15 December 2023 to support the deals for the end of Q4 and effect a transition of my work and files if that assists post Exigent completion.b. You have confirmed the Company will be paying me through to the year-end so for the purposes of UK employment law, it makes sense that your email constitutes the Company’s notice to me of termination of my employment effective 31 December 2023.c. I look forward to receiving the draft exit documentation for my consideration/review.” 2. The claimant’s email of 14 November 2023 Exigent comment referred to the business acquisition that the CPO had mentioned, which the claimant had hoped would ultimately result in his role being preserved. 3. Ms Kartsounes forwarded that email to Mr Flack with her message, “Do you want him working until the 15th of December?” That was a reference to whether Mr Flack wanted the claimant working until 15 December 2023. It was known to the CPO that the claimant had booked holidays from that date. 4. Mr Flack replied to the CPO: 7 already have... getting involved. I spoke to ... yesterday about pipeline but let me confirm. Are you travelling to India this week?”. 5. The respondent’s CEO sent an email to the respondent's Managing Directors and others (not including the claimant) announcing what was described as strategic restructuring within the Legal Department, identifying that with immediate effect, Mr Flack had taken on leadership of the Legal Function having worked over the past month with each “business solution... to understand their specific requirements. The primary objective has been to identify opportunities for improvement and streamline our contract review process. This initiative aims to enhance the efficiency of our contracting process, empowering our sales teams and managing directors to expedite deals with strengthened legal support" and described a plan, broadly, to have sales teams with the Managing Directors handle the contracting process in accordance with developed guidelines and a playbook setting out acceptable negotiating positions. 6. Due to time zone differences, no findings have been made regarding the precise time the subsequent emails were sent[43]The claimant’s email of 14 November 2023 described what made sense to the claimant in the context that he had previously been advised by the CPO that he would be paid until the end of the calendar year and that she had agreed to a holiday for the last two weeks of that year. It was not intended nor offered as legal advice for the benefit of the respondent.[44]The respondent did not issue any prompt response communication to the claimant’s email of 14 November 2023, suggesting to the claimant that his email of 14 November 2023 was a misinterpretation of what they had proposed and that the claimant’s employment had been terminated, or was to be in early course - whether by express reference to Clause 2 (c) of the December 2021 Contract or otherwise, nor any direction that the claimant should stop working. The CPO’s email to Mr Flack in response to the claimant’s email asking Mr Flack whether he wanted the claimant working upto 15 December was issued because the respondent had not formed a concluded view as to when the claimant would cease working. The respondent did not set out to the claimant that they intended to treat his email as their own legal advice. Had they done so, the claimant would have been able to remind the respondent that it was for the respondent to seek their own legal advice regarding matters around the termination of the claimant’s employment. In any event, they did not rely on the claimant’s email of 14 November 2023 as amounting to legal advice to them.[45]The respondent, including the CPO and her London-based HR colleagues, did not respond in any way to the claimant’s email of 14 November 2023 until the issue of the December 2023 Redundancy Letter, nor was it suggested to the claimant that he should not continue working as he had proposed.[46]On Wednesday 22 November 2023, the claimant sent the April 2022 Settlement Agreement and Email Exchange from his respondent email to his personal (sky) email address. He had not previously done so.[47]On or about Friday 24 November 2023, the respondent made payment to the claimant of the monthly net pay of £5,478.78 and issued a payslip showing monthly earnings of £9,333.33 before deductions, Nl and further identified salary sacrifice “pension” of 2 sums cumulatively amounting to £1,310 (the November 2023 Payslip). The November 2023 Payslip issued by the respondent did not refer to any payment or part of the payment as being payment in lieu of notice or otherwise arising from termination of employment nor any accrued holiday pay as being included.[48]On Wednesday 13 December 2023, the respondent’s CPO, while based in the USA, signed a letter addressed to the claimant at his home address issued from the respondent’s London office headed “Notice of Redundancy” addressed to the claimant’s home address (the December 2023 Redundancy Letter). While the December 2023 Redundancy Letter referenced previous discussions it did not specify when those took place. It described a change in the respondent operation “As discussed, we are changing the way we currently handle our legal matters. We will continue outsourcing a portion of our legal work, and the business will lead the other portion internally. In this new structure, we will not have an ongoing need for someone to undertake the Director role within the Legal Department, and therefore, unfortunately, your role is redundant.”[49]The December 2023 Redundancy Letter described that the claimant had agreed to “serve your 30 days’ notice in your employment, in accordance with your contract of employment dated 1 December 2021... with an official termination of 15 December 2023 (The Termination Date).”[50]The December 2023 Redundancy Letter concluded that: “You are entitled to reasonable (and paid) time off during working hours prior to the termination of your employment to look for a new job or arrange training for your future employment. If you want to take any such time off, please contact Brian Flack to make arrangements. The Company very much regrets that it has become necessary to make your role redundant. I would like to thank you for your hard work for the Company and wish you all the best for your future career." (emphasis in bold added).[51]On Thursday 14 December 2023, at 9.10 pm, a Senior Associate for the CPO sent an email (the evening of 14 December 2023 email) to the claimant, which included the December 2023 Redundancy Letter as an attachment and set out, “I hope you are well. The attached was sent to your Morae address on the 13th but we received an out of office. Please find the attached regarding your last day, as discussed. I would like to arrange a courier to collect your equipment, please let me know when a suitable time for collection would be. Let me know if you have any questions”.[52]The evening of 14 December 2023 email, was inaccurate so far as it suggested the claimant’s last day had been agreed upon.[53]The claimant was given written notice of date of termination with effect from 15 December 2023, by virtue of the December 2023 Redundancy Letter received by email issued at 9.10pm on Thursday 14 December 2023.[54]As of Friday 15 December 2023, the claimant was out of the UK on a twoweek pre-agreed vacation in New Zealand.[55]On Tuesday 26 December 2023, at 8pm the claimant emailed the respondent describing that he had not been able to respond to the December 2023 Redundancy Letter, which he had received (he described as on 14 December 2013) whilst on vacation and had not been able to reply due to intermittent connectivity while travelling in New Zealand and his requirement to consult an employment lawyer (the claimant’s email of 26 December 2023) The claimant set out, “to be absolutely clear, I have not at any time agreed to the termination date of 15th December 2023. Instead it has been imposed on me. The letter represents the first written notice I have had of the termination of my employment with effect from that or any other date. Consequently I am additionally entitled to full pay and benefits in lieu of my notice plus the statutory redundancy payment. NB: The limiting of my pay in lieu of notice to salary only in clause 2 (c) in my contract does not apply as you have not provided me the notice required for that purpose. In addition to those sums, the holiday pay and the ex-gratia payment refer to (which is unconditional and not offered without prejudice). I consider that I have been dismissed unfairly through lack of genuine consultation and a total failure to consider means to avoid my redundancy.....”[56]The claimant remained angry and dissatisfied with the respondent. Alternate roles created due to the restructure and acquisition were junior, with a salary between £30,000 and £33,000, representing a very significant drop in income compared with the claimant’s salary of around £124,000. The claimant would not -have elected to relocate to-a different country such as South Africa, to secure a lower-paid role with Exigent[57]On or about 29 December 2023 (page 43), the respondent paid the claimant monthly net pay of £5,478.78 and issued a payslip showing monthly earnings of £13,784.61, including payment of £9,538.45 in respect of (accrued) holiday pay and further identified salary sacrifice “pension” sum of £1,000 (the December 2023 Payslip). The December 2023 Payslip did not refer to any payment or part of the payment as being payment in lieu of notice or otherwise arising from the termination of employment, nor did it identify any payment in respect of redundancy pay. The respondent did not pay statutory redundancy nor any notice pay.[58]After the termination of the claimant’s employment, the claimant made efforts to seek alternative employment, applying for in excess of 90 roles of varying levels although many were at a Senior level commensurate with the claimant’s experience. The claimant is currently receiving Job Seekers Allowance, paid at £90.50 per week. Submissions[59]Both parties provided detailed written submissions. It is not considered necessary to set out the submissions for brevity; aspects of both submissions are, however, set out below.[60]The respondent’s 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 41 paragraphs over 21 pages and covered beyond the initial introduction, a reminder of the respondent proposed issues and outline position, arguing that notwithstanding failures to warn, consult, offer alternative role and absence of any formal mechanism for appeal it did not follow that the claimant was entitled to significant or any compensation on the facts including that the claimant would not have acquired qualifying service had his employment terminated in mid-November (it being argued that this was the respondent’s intention until the claimant suggested otherwise). Had a formal redundancy process been followed, the outcome would be the same.[61]Further, in accordance with Boston Deep Sea & Ice Co v Ansell [1888] 39 Ch.D.339 [Boston Deep Sea Fishing], significant deduction on a just and equitable basis should be made. In respect of wrongful dismissal in respect of (what is argued to be) admitted misappropriation of the respondent’s confidential information in the period immediately before the termination, and the claimant had sought to delay his termination to attain qualifying service in breach of implied contractual duty of fidelity and /or fiduciary duties.[62]Further, the proposed factual background is set out. In relation to unfair dismissal, on whether a redundancy situation existed, it is argued that the respondent was pursuing a cost-saving strategy. Further, in relation to whether the dismissal was fair or unfair against the context that when a decision was made, the claimant did not have qualifying service, and the right to unfair dismissal arose after the termination had become a fait accompli. In relation to Compensation, it was noted that for a Basic Award, just and equitable reductions are not applicable in redundancy. For a Compensatory Award, the question is what is just and equitable arises with reference to Polkey v AE Dayton Service Ltd [1988] ICR 142 (Polkey). Reference is further made to Grantester Construction (Eastern) Ltd v Attrill [2013] UKEAT/0327 (Attrill), Software 2000 Ltd v Andrews & others [2007] UKEAT/0533 (Software 2000) and CEX Ltd v Lewis [2007] UKEAT/0013 (CEX) arguing that the Tribunal can assess what was likely to have happened had a fair process been followed.[63]In relation to what the respondent argues was the claimant’s misconduct, reference is made to W Devis & Sons Ltd v Atkins [1977] AC 931 [Atkins]; the Tribunal could not take account of misconduct which had come to light after dismissing, in the assessment of whether a dismissal was fair or unfair but could do so when assessing compensation and on the facts, the claimant has suffered not injustice it being argued that the claimant admitted to misappropriating confidential information in the period immediately before the termination in breach of Clause 7 of the December 2021 Contract, and paid consultancy was in breach of clause 5. Further, it is argued that the claimant sought to delay his termination to attain qualifying service, which is argued to be in breach of an implied duty of fidelity and/or fiduciary duty. Reference is made to Ranson v Customer Systems Pic [2012] IRLR 769 [Ranson], Although it is conceded (per Ranson) that this duty does not require an employee to subjugate their interests to those of the employer, it requires an employee to carry out the job they are required to do loyally. Reference further is made to Nottingham University v Fishel [2000] ICR 1462 [Fishel]. It is argued that the claimant owed as an incident of the duty of fidelity and or as a matter of fiduciary obligations: to act solely in the interest of the respondent when giving advice, to avoid conflicts when giving advice, and to decline to advise the respondent if it was impossible to avoid such conflict. Further, it was argued that whilst not a regulated solicitor at the material time, it was said to be relevant that solicitors in Scotland (and England & Wales) impose duties. In relation to quantum, the respondent refers to Hardie Grant London Ltd v Aspden [2011] UKEAT/0242 [Aspden] and in relation to deductions Digital Equipment Co Ltd v Clements [1988] ICR 258 [Clements].[64]In relation to Wrongful Dismissal, the respondent argues for nil notice pay award having regard to Boston Deep Sea Fishing or in the alternative, such a claim should be reduced to take account of accrued but untaken holiday and further reduced to reflect two days paid notice given.[65]The claimant’s submissions which argued that the claimant’s claims should succeed, extended over 32 paragraphs and 21 pages and covered the issues for determination; the claimant analysis of the evidence, reason for dismissal setting out that the claimant did not put at issue that s139 Redundancy, and in particular (1) (b) (i) ERA 1996 is satisfied here, drawing attention to the December 2023 Redundancy Letter and argues that on the evidence the Tribunal should find redundancy as the reason for dismissal; on effective date of termination referring to Mitie Security (London) Ltd v Ibrahim [2010] UKEAT/0067 [Mitie] together with Heseltine Lake & Co v Dowler [1981] ICR 222 [Dowler], Morton Sundour Fabrics Ltd v Shaw [1967] 2 IRT 84 [S/raw], Rai v Somerfield Stores Ltd [2003] IRLR 124 [Rai] and Geys v Societe Generale London Branch [2012] UKSC 63 [Geys] arguing that the first time effective notice of termination is by the letter of 13 December 2023, the claimant’s actings were in accordance with an understanding that his employment terminated on 15 December 2023 as notified and thus he was only given and paid for 2 days’ notice.[66]In relation to whether the respondent acted fairly and impact, reference was made to Polkey and De Bank Haycocks v ADP RPO UK [2023] EAT 129 [De Bank]; Williams v Compair Maxam Ltd [1982] IRLR 83 [Compare Maxam]. The claimant does not accept any duty on the claimant to put the respondent's interests above his own, reference made to Ranson. Further reference is made to W Devis & Sons Ltd v Atkins [1077] AC 931 [Atkins] in respect employer may not rely on misconduct which comes to light after dismissal to justify dismissal.[67]Regarding losses, the claimant relies upon the schedule at pages 39 to 40 of the bundle (subject to additional future loss, including 26 weeks after the Tribunal decision). Regarding the order of adjustments to the losses, these should be applied in the order set out in Clements. While the claimant accepts the Tribunal in principle entitled to make a Polkey deduction, the Tribunal should take account of relevant evidence; the exercise involves a degree of speculation; however, in Software 2000, it was recognised there will be instances where it is not possible to reconstruct what would have happened. In this context, the claimant points to the absence of any process.[68]In relation to post-dismissal information regarding pre-dismissal events: firstly, the claimant argues that the claimant owed no duty to advise the CPO of the consequence of her actions (or inaction) in not dismissing the claimant before she acquired 2 years of service. Secondly, in relation to the consultancy work, and while there was some divergence between the claimant and Mr Chandler, what was permitted, the truth was that what was agreed upon was not clear. Thirdly, in relation to the claimant accessing and forwarding out with the company, while on the face of it, this breaches the confidentiality clause, this was explained as, in effect, harvesting of styles.[69]The claimant argues that the Tribunal should consider justice and equity overall.[70]Regarding the wrongful dismissal and having regard to Boston Deep Sea, it is argued that the conduct cannot be said to be fundamentally inconsistent with continued employment, and thus, the claimant is entitled to unpaid notice, which is 28 days’ salary. Conclusions on witness evidence[71]The Tribunal concludes that each of the witnesses sought to be straightforward in their recollection of matters within their knowledge; however.[72]The claimant is mistaken in his recollection that it was permissible for him to continue to offer external consultancy beyond the limited extent of finishing off an existing piece of work this is inconsistent with the December 2021 Contract which he elected to sign. The claimant is mistaken in his recollection that he would have accepted a significantly lower-paid role. The claimant expressed anger with the respondent's decision, as set out on 12 October 2023 continued. Further, it is noted that the claimant continues to rely upon the calculation of post-termination Compensatory Loss based not on a lowerpaid role but on his pre-termination earnings.[73]Mr Chandler's evidence on matters of substance was straightforward, although he is mistaken to the extent that it was suggested that it would be permissible for the claimant to continue to offer external consultancy (beyond finishing off an existing piece of work); this is inconsistent with the December 2021 Contract.[74]Ms Kartsounes is mistaken in her recollection that she followed the Script addressing all of the 14 bullet points set out in the 9 October Video Call. It is noted that despite Bullet Point 14, she did not confirm what was discussed during same in writing. The claimant’s evidence in relation to the 9 October Video Call is preferred as being consistent.[75]Mr Flack’s evidence on matters of substance was straightforward. Redundancy[76]The respondent has the burden of proving that it dismissed for a potentially fair reason.[77]In this case, the respondent argues that the reason was redundancy.[78]Accordingly, the Tribunal must see whether, in the circumstances of this case, the conditions set out in s139 Employment Rights Act 1996 (ERA 1996) are met. 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). That the employee was redundant is one of the permissible reasons for a fair dismissal (section 98(1)(b) and (2)(c) ERA 1996).[79]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. 80. s139 of 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,"[81]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?[82]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.[83]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.”[84]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.[85]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).[86]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.[87]The House of Lords in Polkey v AE Dayton Service Ltd [1988] ICR 142 (Polkey) at 162 "... in the case of redundancy, the employer will not normally act reasonably unless he warns and consults any employees affected or the representatives, 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 his own organisation... It is quite a different matter if the tribunal is able to conclude that the employer himself at the time of dismissal acted reasonably in taking the view that, in the exceptional circumstances of the particular case, the procedural steps normally appropriate would have been futile could not have altered the decision to dismiss and therefore could be dispensed with.”[88]There is no ACAS statutory Code of Practice for redundancy equivalent to the ACAS Code of Practice on Disciplinary and Grievances, which does not apply to redundancy dismissals.[89]The EAT in Safeway Stores pic v Burrell [1997] ICR 523 (Burrell) described a three-stage approach for the Tribunal in assessing whether there was a redundancy: 1. was the employee dismissed? if so, 2. 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? if so, 3. was the dismissal of the employee caused wholly or mainly by the cessation or diminution.[90]The EAT described that: “There may be a number of underlying causes leading to a true redundancy situation; our stage 2. There may be a need for economies; a reorganisation in the interests of efficiency; a reduction in production requirements; unilateral changes in the employees' terms and conditions of employment. None of these factors are themselves determinative of the stage 2 question. The only question to be asked is: was there a diminution/cessation in the employer's requirement for employees to carry out work of a particular kind, or an expectation of such cessation/diminution in the future [redundancy]?”.[91]The test set out in Burrell was endorsed by the House of Lords in the case of Murray v Foyle Meats Ltd [1999] ICR 827 (Murray).[92]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.[93]The Tribunal should consider three key strands as to whether a redundancy was fair: selection, warning and consultation and alternative employment.[94]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.[95]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.[96]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 claimant identified the EAT decision in Williams & Others v Compair Maxam Ltd [1982] ICR 156 (Compair Maxam) in which several factors were set out as relevant to the question of fairness summarised as: Were employees warned and consulted about the redundancy? Were any selection criteria objectively chosen and fairly applied? Was the selection made fairly in accordance with the criteria? Was any alternative work available?[97]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). Effective Date of Termination[98]The claimant refers to HHJ Clark in the EAT decision in Mitie, at para 11: “A contract of employment is only terminated by the employer if there is a specified or ascertainable date on which the contract will cease.... Dismissal to be effective must be communicated to the employee. A warning that dismissal is likely or even that dismissal is inevitable by a certain date will not amount to dismissal. Notice to terminate a contract must either state the date of termination or contain material from which the date can be positively ascertained...”. Further notice not given in accordance with the contractual requirement is only effective if and when the deficient notice is accepted Geys. Effective Date of Termination[99]At the time of the CPO’s email of 13 November 2023, the claimant and the respondents knew, as it was apparent, that the claimant would have two years of continuous service by continuously working until 1 December 2023. The claimant understood that he would be eligible for redundancy by that date. The respondent was aware of the respondent's contract of employment recorded start date. The CPO, who oversaw between 100 to 150 employees in the UK and was supported by HR colleagues in the UK, while based in the USA, was aware of the effect of achieving two years of continuous service.[100]The claimant’s employment had not been terminated during the 9 October Video Call, nor was any effective attempt made to do so. The CPO’s email of 13 November 2023 did not constitute effective termination of employment. It neither identifies a specific, single date of communication nor gives notice of the exercise/commencement of the 30-day notice period; rather, it invited the claimant to confirm what he wanted in unclear terms.[101]In the circumstances, the claimant’s email of 14 November 2023 was not intended as legal advice for the respondent. The CPO would not seek advice from the claimant regarding matters around the claimant’s employment. To read the claimant’s email of 14 November 2023 as intending to offer legal advice would be, in the circumstances, unreasonable. The respondent did not respond suggesting they relied on the claimant's email as legal advice; rather, the CPO’s email to Mr Flack reflected the respondent’s undecided position as to when the claimant’s employment would terminate. Further, to read such communication from the claimant would, in effect, require that the claimant subjugate his interest and not express what he regarded as sensible to the respondent where the claimant was not employed to advise on same and the respondent could take its own legal advice.[102]When an employer decides to terminate the employment, they should give effective notice, including an effective termination date.[103]The claimant accepted as notice the December 2023 Redundancy Letter, received by email on the evening 14 December 2023. Basic award:[104]Section 119 of ERA 1996 sets out the provision for a basic award.[105]S122 ERA 1996 provides: “(1) Where the tribunal finds that the complainant has unreasonably refused an offer by the employer which (if accepted) would have the effect of reinstating the complainant in his employment in all respects as if he had not been dismissed, the tribunal shall reduce or further reduce the amount of the basic award to such extent as it considers just and equitable having regard to that finding. (2) Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly. (3) Subsection (2) does not apply in a redundancy case unless the reason for selecting the employee for dismissal was one of those specified in section 100(1)(a) and (b), 101A(d), 102(1) or 103; and in such a case subsection (2) applies only to so much of the basic award as is payable because of section 120. (3A) Where the complainant has been awarded any amount in respect of the dismissal under a designated dismissal procedures agreement, the tribunal shall reduce or further reduce the amount of the basic award to such extent as it considers just and equitable having regard to that award. (4) The amount of the basic award shall be reduced or further reduced by the amount of(a) any redundancy payment awarded by the tribunal under Part XI in respect of the same dismissal, or(b) any payment made by the employer to the employee on the ground that the dismissal was by reason of redundancy (whether in pursuance of Part XI or otherwise).” Compensatory Award.[106]Section 123(1) of ERA 1996 provides: “ ... the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer”.[107]Norton Tool Co Ltd v Tewson [1973] AllER 183 [Norton Tool] compensation for unfair dismissal should be to “compensate fully, but not to award a bonus”. The object of a compensatory award is to compensate an employee for financial loss as if they had not been unfairly dismissed- it’s not designed to punish the employer for wrongdoing.[108]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]).[109]An employer who discovers after the employee has been dismissed that the employee was guilty of a fundamental breach of contract, which would have justified summary dismissal, can rely on that breach to rebut a claim of wrongful dismissal (Boston Deep Sea Fishing). Redundancy/ Unfair Dismissal[110]The CPO email of 13 November 2023, while referencing the respondent “working on” the claimant’s departure details, did not give notice that the respondent was exercising its discretion under 2(c) of the December 2021 Contract, terminating the claimant’s employment with immediate effect by issue of that email (subject to meeting any net notice payment). The email of 13 November 2023 instead asked the claimant to confirm what he wanted his (official) last day to be. The email of 13 November 2023 invited the claimant to respond whether he wanted “to say” either the end of that week being Friday, 17 November, or “the 15th", expressed as the secondary option. The claimant read the reference in the email of 13 November 2023, of the secondary date of 15, as a reference to his agreed holiday departure date in December 2023.[111]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). He was not considered for an alternative role, there was no formal mechanism for appeal. However, so far as relevant, the respondent applied an objective criterion for selection in identifying the claimant role as redundant at the material time, having regard to tasks carried by the claimant in consequence of the respondent’s decision to remove experienced legal review of contracts and provide its existing sales team with a playbook. In doing so, the respondent identified that the requirements of that business for employees to carry out work of a particular kind where the employee was employed had diminished and or were expected to cease or diminish. The Tribunal accepts the respondent’s evidence that this diminution related to the work carried out by the claimant[112]It could not, however, be said there was any reasonable need for the immediacy of the respondent’s decision as set out in the December 2023 Redundancy Letter. The respondent’s evening of 14 December 2023 email was issued to seek to reach the claimant before his agreed departure on annual leave abroad rather than any need for immediacy related to the process around redundancy. Providing a consultation period of 14 days would have allowed the claimant to communicate his views, which could have been informed by the provision of the CEO’s email of 14 November 2023 to the ' respondent’s Managing Directors and to allow the respondent to take into account the claimant’s views. It could potentially have been beneficial to the claimant, including engaging him with the process and making him aware that only significantly lower-paid roles were available, even where no alternative was found within the period.[113]While this followed the 9 October video call, the Tribunal concluded that the respondent recognised, having regard to the script, the importance of setting matters out in writing, not least to avoid any confusion, but did not do so.[114]The respondent did not consider there were alternatives to redundancies.[115]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.[116]The respondent did not pay statutory redundancy or pay in lieu of notice, although it paid what was calculated as accrued holiday pay.[117]The respondent contends that the claimant was dismissed by reason of redundancy. The claimant argues that in all the circumstances of the case, there was an unfair dismissal, and in any event, the redundancy procedure (including the absence of consultation) was unfair.[118]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.[119]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 claimant's position was unique within the business at the time of redundancy.[120]The respondent, fairly, does not seek to argue that the respondent consulted adequately with the claimant. There was no consultation.[121]The Tribunal concludes that a 2-week estimation for the respondent to have followed a fair redundancy procedure from the outset is reasonable in all circumstances. While the respondent had broadly warned the claimant in its 9 October video call of a likely outcome, there was no process at all.[122]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.[123]At the date of termination, there were no equivalent paid alternative roles.[124]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.[125]In relation to the question of a fair procedure, there was no consultation at all. That cannot be regarded as fair in this instance.[126]In the current instance, on the facts, the Tribunal concludes that it is possible to conclude what would have happened had a fair process been followed. That would have allowed the claimant to consider the significantly lower-paid roles. However, the Tribunal does not accept that the claimant would have accepted any of those significantly lower-paid roles with regard to the claimant’s anger at the respondent decision around re-organisation and noting there is nothing to suggest a willingness to consider any lower-paid alternate role, should that have been available, having regard to the claimant’s email of 26 December 2023. Indeed, it is noted that the claimant continues to rely upon calculating loss based on the pre-termination earnings.[127]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.[128]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.[129]In summary, 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.[130]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).[131]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).[132]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.[133]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 failure to recognise that there was a redundancy situation by the date of when they notified the claimant of a date of termination. 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 all the circumstances, the choice of the pool was within the range of reasonable responses available to a reasonable employer in the circumstances.[134]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.[135]While the claimant is currently in receipt of Job Seekers Allowance, he remained angered and dissatisfied with the respondent's decision. The Tribunal concludes that the claimant would not have accepted any of the 3 significantly lower-paid roles with the respondent had they been offered within a fair consultation process, which the Tribunal concludes would have lasted two weeks. The Tribunal further notes that Compensatory Loss within the bundle is calculated based on the claimant’s income continuing at the preredundancy level.[136]Had the respondent consulted, that would have taken a period of 2 weeks, after which the claimant’s employment would have been terminated due to redundancy. Compensatory Award[137]The claimant was dismissed due to redundancy. He is entitled to statutory redundancy payment, although not in the circumstances a Compensatory Award.[138]The claimant relies on the contractual notice period set out in the December 2021 Contract.[139]While Mr Chandler approached the introduction and appointment of the claimant with a degree of informality, in that he considered it permissible for the claimant to close off (finish) a specific piece of work, the claimant, who is both experienced in and advises on matters of contract, subsequently elected to sign the December 2021 Contract himself. The signing of that contract, including Clause 5, superseded any informal agreement.[140]The Tribunal concludes that the claimant's decision to continue operating his consultancy was in breach of that December 2021 Contract, particularly the terms of Clause 5. The Tribunal recognises that the claimant considered that he satisfied himself with no conflict; however, that is not what Clause 5 provided for; the claimant was engaged as a lawyer to advise on risks to the respondent but took no steps to regularise matters with the respondent consistent with the December 2021 Contract. It is considered unnecessary, in the circumstances, to draw any conclusion regarding the claimant’s actions in sending respondent email chains to his personal email, including on 22 November 2023.
Conclusion
[141]The claimant is entitled to a statutory redundancy payment of £1,929.00 reflecting the claimant’s 2 years of employment as at the date of termination, gross weekly pay of £2,384.62 (subject to the cap) and having regard to the claimant’s age.[142]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 £4,769.24.[143]The claimant’s claim for unfair dismissal does not succeed for the reasons set out above, and his claim is dismissed.[144]The claimant’s claim for wrongful dismissal does not succeed and is dismissed.[145]The role of the Tribunal is to weigh the evidence before it. This involves an evaluation of the primary facts and an exercise of judgment. The Tribunal has done so applying the relevant law.