Mr K Gallagher v McKinnon’s Auto and Tyres Ltd: 4106291/2022
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4106291/2022Venue GlasgowHearing 4 October 2023
Between
Mr Kevin GallagherClaimantMcKinnon’s Auto and Tyres LtdRespondent
Before
Employment Judge L WisemanDate 10 March 2026
JUDGMENT
The tribunal decided the discussion between the parties on the 1 August 2022 was a pre-termination negotiation and is inadmissible in these proceedings in terms of section 111A Employment Rights Act.
REASONS
[1]The claimant presented a claim to the Employment Tribunal on the 21 November 2022 alleging he had been unfairly dismissed.[2]The respondent entered a response admitting the claimant had been dismissed for reasons of redundancy but denying the dismissal had been unfair.[3]The hearing today was a preliminary hearing to determine the following issues:(i) were the discussions held between the parties subject to “without prejudice” privilege;(ii) are the discussions prevented from disclosure by either party on that basis;(iii) were the discussions “protected discussions” in terms of section 111A Employment Rights Act 1996 and(iv) are the discussions prevented from disclosure by either party.[4]The tribunal heard evidence from Ms Anne McKenzie, Director; Mr Steven McKinnon, Director and the claimant. The tribunal was also referred to a number of jointly produced documents. The tribunal, on the basis of the evidence before it, made the material findings of fact set out below.[5]The respondent’s representative, in his submission to the tribunal, confirmed it no longer relied on the position that the discussions were subject to without prejudice privilege. Accordingly the only issue for determination by the tribunal was whether the discussions were protected discussions in terms of section 111A Employment Rights Act and if so, was anything said or done that was improper, and if so, to what extent should section 111A apply. This concession by the respondent limited the material findings of fact necessary for this tribunal to find.
Findings of fact
[6]The respondent is a small family run business supplying and fitting tyres and carrying out some general repairs to private motor vehicles.[7]The family (Ms McKenzie and her two brothers) also own a company, McKinnon and Forbes Ltd (based in Paisley) which is involved with the service, repair and maintenance of commercial vehicles.[8]The respondent company employs six employees. The claimant commenced employment in October 2017 and was employed as the Branch Manager until his dismissal on the 22 August 2022.[9]The claimant contracted Covid in June 2022 and was absent for approximately 2 weeks. The claimant returned to work for one week but then broke his foot. The claimant was absent from work from 8 July until the termination of his employment.[10]The claimant was invited (by text message – page 45) to attend at the Paisley office on Monday 1 August for a return to work meeting.[11]Ms McKenzie arranged this meeting because the claimant had been absent from work for some weeks and was due to return to work, but she also wanted to have an “off the record” discussion with him because during his absence she had found the Directors could cover the depot without the need for a manager.[12]Ms McKenzie had taken HR advice before arranging the meeting.[13]The claimant attended the meeting. Ms McKenzie asked the claimant about his foot and was told it was “getting there” and the claimant was waiting to see a specialist. Ms McKenzie then told the claimant she wanted to have an “off the record without prejudice” discussion with him regarding the manager’s role. The claimant was told that during his absence the Directors had covered his role and had decided they could continue to do this and so no longer needed a manager in the depot. The claimant was offered the sum of £10,000 and told this was more than he would be entitled to if made redundant. The claimant was also told that if he accepted the sum a compromise agreement would be signed, but if he rejected it then the company would go through a redundancy procedure. The claimant was given 48 hours to consider the offer.[14]The claimant was shocked by what had been said and stated he was there to return to work. Ms McKenzie told him that would not be happening. The claimant told Ms McKenzie that he wanted to discuss it with his family and he left the meeting.[15]The meeting was conducted without any aggression or raised voices.[16]The claimant text Ms McKinnon later that day (page 47) saying “can you explain the 2 offers you’ve put to me again”.[17]Ms McKinnon replied (page 47/48) with a message entitled “Without Prejudice” stating the job role was no longer required because Ms McKenzie and Mr McKinnon were covering it and would continue to do so. A compromise agreement of £10,000 was on offer, or the lesser payment of statutory redundancy. The text set out holiday pay and notice.[18]The claimant replied to that text (page 49) by asking for a breakdown of the figures again because his head was “scrambled” and he could not remember.[19]Ms McKinnon replied to this (page 49) with another message entitled “Without Prejudice” and provided a breakdown of the figure of £10,000.[20]The claimant sent a further text the following day (page 51) asking what the reason was for wanting him to leave. Ms McKenzie responded to this to confirm the reason was redundancy. Credibility and notes on the evidence[21]There was a significant dispute in the evidence of the respondent’s witnesses and the claimant’s version of events at the meeting on the 1 August.[22]The claimant told the tribunal that after being asked how his foot was, Ms McKenzie had said she was going to make it easier for him and they were going to make him an offer which was to be accepted or he would be made redundant. He was told the offer was worth more to him and that he should take it or he would get less. Ms McKenzie told him to sign the document, which was on the table, or he would be made redundant. Mr McKinnon said it was £10,000. Ms McKenzie asked if he was going to sign it. The claimant said he was there to return to work, but Ms McKenzie said that would not be happening. The claimant said he wanted to discuss it with his family and as he got up to leave Ms McKenzie said she wanted an answer from him in 48 hours. She followed him out of the room and said she did not want him going anywhere near the depot. The claimant replied that he was not listening to her and had done nothing but try his best for the company. Ms McKenzie replied that he had done nothing but give her fucking grief and headaches.[23]The claimant asserted nothing had been said about the meeting being confidential, or off the record or without prejudice: this had only appeared on the subsequent text messages. There had also been no mention of the Directors covering his role. Ms McKenzie had said to the claimant that his heart wasn’t in the job, he didn’t open on Saturdays, he didn’t want to be responsible for the control of stock, his performance wasn’t good and he had been off a long time.[24]The tribunal, in considering the claimant’s version of events, had regard to the fact that he repeatedly told the tribunal that he had been “shattered” at the meeting; that his brain was “fried”, his head was “scrambled” and that he was “in shock”. The claimant invited the tribunal to accept that all of these emotions related to his memory of the figures only, and that he perfectly recollected what had been said at the meeting. The tribunal had difficulty accepting the distinction drawn by the claimant. The tribunal accepted that the nature of the discussion on the 1 August undoubtedly came as a shock to the claimant and the tribunal considered the impact of this – in terms of the claimant being “shattered”, “in shock”, his head being “scrambled” and his brain being “fried” – was that he left the meeting understanding the gist of what had been said, but not the detail. The tribunal could not accept that it would be reasonable not to recollect the figures but to recollect what had been said. The tribunal concluded the claimant’s evidence was not entirely reliable for this reason.[25]The tribunal did not accept the claimant’s evidence that a compromise agreement had been on the table. The tribunal reached that conclusion for a number of reasons: firstly, the claimant stated in his claim form that he received nothing in writing at the meeting; secondly, if there was a compromise agreement on the table, why did the claimant not take it away to consider and thirdly, there appeared to be no dispute regarding the fact the claimant was given 48 hours to consider the verbal offer made at the meeting.[26]The tribunal preferred the evidence of the respondent’s witnesses. The tribunal found Mr McKinnon to be a credible witness. He had not played any role at the meeting other than to be present for support for Ms McKenzie. He, however, provided a useful and measured insight into what had happened at the meeting. He confirmed that HR advice had been taken prior to the meeting and that they had been told to “make sure” to tell the claimant the meeting was off the record and without prejudice. Mr McKinnon recalled that the claimant had asked what “without prejudice” and “compromise agreement” meant, and he had explained it to him.[27]Mr McKinnon also confirmed that the claimant was told the Directors had covered the depot when he was off and that they no longer needed a manager in the depot. The sum of £10,000 was put forward and the claimant had been told that if he did not accept it they would have to “start looking down the line at a redundancy package, which would be less money”. Mr McKinnon confirmed there had been no hostility: there had been a normal conversation and Ms McKenzie had dealt with the facts and figures.[28]The tribunal also found Ms McKenzie to be a credible witness although at times in cross examination she was reluctant to concede points until pushed (see below). Ms McKenzie told the tribunal that the respondent had taken HR advice to ask how to go about taking control of the business themselves. A compromise agreement had been discussed so that more than statutory redundancy could be offered. This situation had arisen because Ms McKenzie and Mr McKinnon had covered the depot in the claimant’s absence and were content that this could continue and therefore there was no requirement for a manager in the depot. The fact the respondent had sought advice before arranging the meeting with the claimant, lent weight to the respondent’s evidence regarding what was said at the meeting. Respondent’s submissions[29]Mr Milne informed the tribunal that the respondent was no longer relying on without prejudice privilege, and therefore the issues for the tribunal to determine were whether all or part of the discussion on the 1 August 2022 was protected in terms of section 111A Employment Rights Act and if so, whether anything improper was said or done and if so, to what extent section 111A should apply.[30]Mr Milne noted a number of allegations had been made regarding the behaviour of Ms McKenzie and Mr McKinnon. He submitted all were without foundation and on close examination it would be seen that the claimant’s case was fundamentally flawed.[31]A number of assertions made by the claimant during his evidence in chief (“aye whatever”; “take £10,000 – worth more”; “he’s given you nothing but fucking grief and headaches”) had either not been put to the respondent’s witnesses or had not been mentioned in the written correspondence of the 3 August. Mr Milne suggested that if comments had been made by Ms McKenzie, the claimant would have referred to them in the subsequent correspondence. The first mention of this made by the claimant was at the meeting on the 22 August when he had just learned of his dismissal. He clearly had an axe to grind and the tribunal should draw an adverse inference from the timing of this.[32]Mr Milne invited the tribunal to prefer the evidence of the respondent’s witnesses. The claimant had repeatedly said his head had been “scrambled” and “fried”. It was submitted his credibility and reliability were in dispute.[33]Mr Milne submitted that in terms of section 111A Employment Rights Act, an offer had been made and discussions held. The key issue was whether there had been any improper conduct by the respondent. Mr Milne referred to the ACAS Code and acknowledged the general rule was that an employee would be given 10 days to consider written terms. In this case, written terms had not been put to the claimant. A verbal offer had been made and in the circumstances being given 2 days to consider was reasonable.[34]Mr Milne submitted the respondent had not been aggressive and no offensive words had been used. It had not been unreasonable for the respondent to set out the offer and explain what would happen if it was not accepted.[35]Mr Milne submitted the discussion on the 1 August passed the first hurdle. Further, there had been nothing inappropriate at the meeting in terms of aggressive behaviour or offensive words. Mr Milne accepted the claimant had been surprised by the fact of the discussion taking place. He submitted there was nothing improper about the fact no notice had been given. He accepted it was best practice for notice of such a meeting to be given and to allow the employee to be accompanied, but failure to do so did not render it inappropriate.[36]Mr Milne invited the tribunal to reject any submission that pressure had been placed on the claimant. He submitted it was not pressure to explain what would happened if the offer was not accepted. Further, a redundancy process did not necessarily mean the claimant would be made redundant.[37]Mr Milne invited the tribunal to find in the respondent’s favour and find the conversation on the 1 August was not admissible and that averments in the ET1 should be deleted. The evidence regarding the meeting on the 1 August should be limited to a return to work meeting taking place and the claimant being asked how his foot was. Claimant’s submissions[38]Mr Lee submitted there were three criticisms of the process adopted by the respondent:(i) the claimant had been threatened with redundancy if he refused the offer. He had been told he would be “made redundant and out of a job anyway”;(ii) the claimant was put under undue pressure by being given 48 hours to give a definitive answer and(iii) he had attended the meeting expecting a return to work meeting.[39]Mr Lee accepted the 10 day period referred to in the ACAS guidance applied to a written agreement, but submitted, logically, a person would need to issue a written agreement and give 10 days in order to gain protection.[40]The respondent had misrepresented the purpose of the meeting and this was inappropriate conduct. The claimant had been told it was a return to work meeting and out of the blue it turned into something else.[41]Mr Lee referred the tribunal to the cases of Faithorn Farrell Timms LLP v Bailey 2016 IRLR 839 at paragraph 47 and Harrison v Aryma Ltd UKEAT/0085/19 at paragraph 56. Mr Lee also referred to the ACAS Statutory Code of Practice and Guidance regarding Settlement Agreements and to the guidance regarding improper behaviour. Mr Lee submitted that even taking the respondent’s case at its highest, there had been improper behaviour arising from undue pressure being placed on the claimant (brought to the meeting under false pretences; given only 48 hours to provide a definitive response to the offer and told he would be made redundant and out of a job if he did not accept). Furthermore, the claimant had not been offered to be accompanied at the meeting.[42]Mr Lee submitted that for these reasons the conversation on the 1 August was not protected and should be admitted in evidence. Discussion and Decision[43]The tribunal firstly had regard to the terms of section 111A Employment Rights Act which provides that evidence of pre-termination negotiations is inadmissible in any proceedings on a complaint under section 111 (that is, complaints of unfair dismissal). This is subject to anything said or done which in the tribunal’s opinion was improper or was connected with improper behaviour. Where there is improper behaviour, anything said or done in pretermination negotiations will only be inadmissible as evidence in a claim to an employment tribunal to the extent that the tribunal considers it just.[44]The term “pre-termination negotiations" means any offer made or discussions held, before the termination of the employment in question, with a view to it being terminated on terms agreed between the employer and the employee.[45]The tribunal also had regard to the ACAS Guidance on Settlement Agreements.[46]The first issue for the tribunal to determine is whether there have been pretermination negotiations in this case. The tribunal noted Mr Lee did not directly concede this point albeit his submissions focussed solely on the question of whether there had been improper conduct. The tribunal found as a matter of fact that the claimant was called to a meeting on the 1 August, and at that meeting, discussions took place regarding entering into a compromise agreement to end the claimant’s employment because the claimant’s role at the depot was no longer required in circumstances where the role was going to continue to be covered by the Directors. A verbal offer of £10,000 was made to the claimant. The tribunal was satisfied that on those facts, pre-termination negotiations had taken place.[47]The next issue for the tribunal to determine is whether there was any improper behaviour in terms of anything said or done in relation to the pre-termination negotiations. The ACAS Guidance makes clear that what constitutes improper behaviour is ultimately a matter for the employment tribunal to decide on the facts and circumstances of each case. It includes but is not limited to behaviour that would be regarded as unambiguous impropriety under the without prejudice principle. The Code gives examples of improper conduct which includes putting undue pressure on a party by, for example, not giving a reasonable period of time to consider an offer and saying the employee will be dismissed if the proposal is rejected.[48]Mr Lee, in his submissions, took issue with three points and the tribunal considered each of these in turn. Firstly, the claimant had been invited to, and therefore expected to, attend a return to work meeting. There was no dispute regarding the fact the claimant was invited to attend a return to work meeting and that he did not know a protected conversation was going to take place. Ms McKenzie was asked in cross examination whether she had misrepresented the purpose of the meeting. Ms McKenzie rejected that suggestion and said she had wanted to get the claimant in to work for a chat. She had wanted to see how his foot was. The question was put to Ms McKenzie again and she replied “..well.. yes”.[49]The tribunal, in considering this point, acknowledged Mr Lee’s point that as a matter of fairness, an employee should be given notice of the type of meeting they are to attend, so there are no surprises. We balanced this with the fact that if an employee is told in advance that an employer wishes to have a protected conversation or pre-termination negotiations, the reaction to that is unlikely to be positive. There is a risk the employee will refuse to attend and the relationship will be soured.[50]The tribunal considered there is a difference between fairness and improper conduct. The tribunal further considered the respondent had a reason for adopting the approach it did, and that was to ensure the claimant attended the meeting. The respondent’s conduct in doing so was not improper because the claimant was provided with details of the figures, and a breakdown of the offer the same day and given time to discuss the matter with his family, which is what he wanted to do. The tribunal concluded, given these facts, that there was no improper conduct in the actions of the respondent.[51]The second challenge raised by the claimant was that he was told that if he did not accept the offer he would be made redundant and out of a job anyway. There was a dispute between the evidence of the claimant and the respondent’s witnesses on this point. The claimant supported his position by pointing to what had subsequently happened. The tribunal, in considering this point, noted that Ms McKenzie accepted, in cross examination, that they (the Directors) had already decided they were taking over the manager’s job. She was asked whether, if the claimant refused the offer, he was “going anyway”. Ms McKenzie responded “he was going through a redundancy process”.[52]The tribunal noted in text messages sent on the 2 August (page 51) the claimant asked why he was being asked to leave, and was informed his position “has been made redundant”. The tribunal accepted the respondent’s evidence that it did not immediately follow from this that the claimant would be made redundant and his employment come to an end. The respondent had to explore suitable alternative employment.[53]Mr McKinnon told the tribunal that the claimant was told that if he did not accept the offer they would have to start looking down the line at a redundancy package.[54]The tribunal, for the reasons set out above, preferred the evidence of Ms McKenzie which was supported by Mr McKinnon and was satisfied the claimant was not told that if he did not accept the offer he would be made redundant. The tribunal considered it was not improper for an employer to make clear to an employee what would happen if the offer was refused. The tribunal concluded there was no improper conduct in circumstances where the claimant was not told he would be made redundant if he refused the offer. The position was clear that whilst his role would be made redundant, that did not necessarily mean he would be made redundant.[55]The third challenge raised by the claimant related to the length of time he was given to consider the offer. Mr Lee placed reliance on the ACAS Code which provides for a period of 10 calendar days to be allowed to consider an offer, whereas the claimant had only been allowed 48 hours. The tribunal noted the ACAS Code provides that as a general rule a minimum period of 10 calendar days should be allowed to consider the proposed formal written terms of a settlement agreement. The parties in this case were not at that stage: no written offer/written terms of a settlement agreement had been put to the claimant. A verbal offer was made to the claimant and he was given 48 hours to consider that. The claimant could have accepted the offer, rejected it, or come back with a counter-proposal which might have led to further negotiations.[56]The claimant contacted the respondent after the meeting and asked for the financial details to be provided to him and for a breakdown of the figures. The respondent provided this information on the day it was requested.[57]The tribunal noted the claimant wished to discuss the offer with his family. There was no suggestion that he had not had sufficient time to do this.[58]The tribunal acknowledged a more generous amount of time could have been given to consider the offer, particularly as the discussion had been a shock to the claimant. The tribunal did not however consider the time allowed to be inappropriate or to amount to improper conduct on the part of the respondent, because there was no evidence to suggest the claimant had had insufficient time to either seek advice or discuss the matter with his family.[59]The claimant asserted during his evidence to the tribunal that Ms McKenzie had been aggressive and used offensive words as he was leaving. The tribunal preferred the evidence of Ms McKenzie regarding this matter and found as a matter of fact that the discussions which took place were not hostile and that no aggressive or offensive comment had been made as the claimant was leaving. The tribunal did accept Ms McKenzie told the claimant not to return to the depot, but in the circumstances of the discussions taking place, the tribunal considered this appropriate and not unusual.[60]The tribunal, having had regard to all of the above points, concluded there was no improper conduct on the part of the respondent. The tribunal decided the pre-termination discussions held on the 1 August 2022 are inadmissible in terms of section 111A Employment Rights Act and cannot be referred to by the parties in the proceedings. The averments in the ET1 relating to the protected discussion should be deleted and if this matter cannot be agreed, parties should make an application to the tribunal for further directions.
Introduction
[1]This final hearing took place at the Glasgow Tribunal. The claimant (C) gave evidence on his own behalf and led evidence from his partner, Ms Claudette Alexander (CA). The Respondent led evidence from Ms Anne McKenzie, Director (AM) and from Mr R McKinnon, Director (RM). Evidence in chief was taken from the witnesses orally. R produced a bundle of productions running to 126 pages and C produced a separate volume, running to 30 pages.
Issues to be determined
[2]During the preliminary discussions, I identified the issues to be decided by the Tribunal in relation to both liability and remedy. There was no objection to my characterisation of the issues, as follows:a. R admits that it dismissed C on 22 August 2022. What was the reason or principal reason for dismissal? R says the reason was redundancy or some other substantial reason ‘SOSR’.b. If the reason was redundancy or SOSR, did R act reasonably in all the circumstances in treating that as a sufficient reason to dismiss C? The Tribunal will usually decide whether: i. R adopted a reasonable selection decision including its approach to the selection pool; ii. R adequately warned and consulted C; iii. R took reasonable steps to find C suitable alternative employment; iv. Dismissal was within the range of reasonable responses.c. The parties agreed that, in the event the claim succeeds, no basic award is payable to C pursuant to section 122(4) of ERA, R having paid C a statutory redundancy payment shortly after the dismissal.d. If there is a compensatory award, how much should it be? The Tribunal will decide: i. What financial losses has the dismissal caused C? ii. Has C taken reasonable steps to replace their lost earnings, for example, by looking for another job? iii. If not, for what period of loss should C be compensated? iv. Is there a chance C would have been fairly dismissed anyway if a fair procedure had been followed or for some other reason? v. If so, should C’s compensation be reduced? By how much? vi. If C was unfairly dismissed, did he cause or contribute to dismissal by blameworthy conduct? vii. If so, would it be just and equitable to reduce C’s compensatory award? By what proportion? viii. Does the statutory cap, in this case of fifty-two weeks’ pay (i.e £44,400) apply? (During the preliminaries, it was agreed that fifty-two weeks’ pay for these purposes was £44,400. Subsequently, in submissions, Mr Milne suggested that the fiftytwo-week cap should be calculated based upon C’s net weekly pay and should be restricted to £30,619.68. Although losses are calculated on a net basis for the purposes of calculating a compensatory award, a week’s pay for the purposes of s.124(1ZA)(b) is calculated in accordance with sections 220- 229 of ERA (in C’s case section 221) on a gross basis). Findings in fact[3]The following facts, and any further facts set out in the ‘Discussion and Decision’ section, have either(i) been found by EJ Wiseman in her judgment dated 31 October 2023 which binds this Tribunal;(ii) have been found to be proved on the balance of probabilities after hearing evidence at the hearing diet in January 2026;(iii) were agreed by the parties; or(iv) (where indicated) are within judicial knowledge. The facts found are those relevant and necessary to my determination of the issues. They are not intended to be a full chronology of events. Facts adopted from EJ Wiseman’s Judgment[4]The respondent is a small family-run business supplying and fitting tyres and carrying out some general repairs to private motor vehicles.[5]The family (Ms McKenzie and her two brothers) also own a company McKinnon and Forbes Limited (based in Paisley) which is involved with the service, repair and maintenance of commercial vehicles.[6]The respondent company employs 6 employees. The claimant commenced employment in October 2017 and was employed as the Branch Manager until his dismissal on the 22nd of August 2022.[7]The claimant contracted COVID in June 2022 and was absent for approximately 2 weeks. The claimant returned to work for one week but then broke his foot. The claimant was absent from work from 8 July until the termination of his employment. Further facts found based on evidence / agreed matters at the January 2026 hearing[8]At the material times when C was employed, R had three directors and six employees including C. The directors were Anne McKenzie (AM), Robert McKinnon (RM) and Stephen McKinnon (SM). SM has sadly since passed away. The shareholding of R was owned by AM, RM and SM. The three directors of R were also the directors of McKinnon & Forbes Limited (M&F). The shareholding in M&F was split between AM, RM, SM as well as their father. Th two companies were associated employers for the purposes of s.231(b) of ERA.[9]In August 2022, R employed:a. a Branch Manager (C);b. a part time receptionist;c. Two Tyre Fitters;d. a mechanic; ande. an apprentice mechanic.[10]M&F had a contract with their commercial customer, City Building, for the supply of tyres at City Building’s Darnock Street site. M&F sub-contracted this work to R. One of R’s tyre fitters, Mirek, was based at the Darnock Street site. The rest of R’s employees were based at R’s garage in East Kilbride (EK).[11]M&F operated a commercial workshop in Paisley to repair, MOT and maintain HGVs. M&F also had a parts supply business. In total, M&F employed 7 or 28 employees at the material times. The workshop was much bigger than that operated by R and dealt with different vehicles to R (HGVs as opposed to domestic cars). The technical experience needed to service HGVs differs and HGV mechanics have different qualification routes. M&F employed 8 mechanics and 2 apprentices. M&F’s workshop was overseen by a workshop manager (Tommy Hunter). Mr Hunter was an HGV Technician with autoelectrical qualifications. From time to time, he helped out ‘on the tools’, carrying out MOTs for HGVs to assist the other HGV mechanics. M&F operated a body shop which carried out panel beating repairs, managed by Liam Ormiston. C had no qualifications or technical experience which would allow him to work on vehicles in the workshop or body shop at M&F. M&F also employed a couple of office staff, a couple of individuals in the staff department, an employee in the City Building Wash Bay and three drivers. M&F’s customers were businesses whereas R’s customer base was individuals (retail). C’s work experience prior to his employment with R was in other garages on the retail side, servicing domestic cars.[12]In September 2017, R issued C with a ‘Principal Statement of Terms and Conditions of Employment’ (the Contract). It recorded that C was contracted to work 40 hours per week between 8 am and 5pm Monday to Friday but that he was expected to work those hours as were necessary to discharge his role effectively. C routinely worked 42.5 hours between Monday and Friday. He also worked Saturday morning during some periods of his employment though this had ended by early 2022 when the East Kilbride Garage ceased to open on Saturdays.[13]C’s duties included opening the branch in the mornings, delegating jobs to the other employees, dealing with customers, booking their cars in for MOTs, liaising with staff; telephoning customers to advise them of any issues identified with their cars and to discuss the work required, supplying Mirek with stock for the City Building contract, removing old tyres from Mirek’s site and being responsible for answering R’s call out phone number 24/7. C was not a qualified mechanic. He had experience of fitting tyres to domestic cars which he did from time to time to help out. He also sometimes drove customers’ cars from their homes to the garage for MOTs etc then dropped the cars back to the homes of the customers. These tended to be individuals C had personally introduced to the business such as family members, friends and neighbours. C’s role was not wholly desk based. As well as fitting tyres, he sometimes picked up and collected customers’ cars. Additionally on Thursdays he would attend at the City Building site to see the City Building representative and to check tyres and from time to time travelled to M&F in Paisley to collect tyres.[14]In 2021 and 2022, C had had sickness absence as follows: 19 January 2021 to 1 February 2021 (back pain / injury) (10 working days); 2-23 August 2021 (back and leg pain) (15 working days); 23-30 August 2021 (Back pain) (6 working days); 20 – 30 June 2022 (Covid) (9 working days); and 11 July to 1 August 2022 (broken foot) (15 working days).[15]C, therefore, had 31 days’ sickness absence in 2021. In 2022, by the time of his dismissal in August, he had 22 days’ sickness absence.[16]At some stage in around 2021 or 2022, R had indicated a proposal that they would send a psychotherapist named C Thompson to the EK site one or two days a year as a staff benefit. The idea was that the employees could have access to Mr Thompson, if they felt a chat would be helpful.[17]C suffered a bereavement in 2022 a few months before his employment ended when he lost a young family member and he was struggling with grief. R’s engagement of a psychotherapist to attend EK did not transpire in the period before C’s employment ended. C felt disappointed not to have had the opportunity to take up this service.[18]During the period of C’s employment, the directors of R had concerns about the management of the tyre stock at the EK site. There were a number of potential explanations including poor recording by employees or suppliers delivering orders which were short on the specified order. C was frequently involved in discussions with the directors about stock discrepancies. The directors did not view the matter as a disciplinary one and they did not suspect C of any ‘foul play’. However, it was a source of frustration for them that C was not successfully managing to resolve or improve the stock issues from month to month. C also felt some frustration because he had suggested the introduction of a particular stock management tool to the directors which he believed would improve the situation but which the directors did not take up. The directors did not, during his employment, raise formally with C a requirement to improve R’s performance with respect to stock control issues or put in place any performance improvement plan. This was not an issue which either C or R viewed at the time as posing a potential threat to C’s continued employment.[19]The directors also had some concerns about a relatively high turnover of staff at R during C’s tenure as Branch Manager. More than 15 employees had departed R’s employment during C’s tenure. The directors had a concern that C’s management style may have been a contributory factor. It is not established on the evidence that C’s management style was a factor for all or for a majority of the employees. Two employees cited C as a reason for leaving. The directors did not, during his employment, raise formally with C a concern about C’s management style or about the staff turnover or put in place any performance improvement plan. Again, neither C nor R viewed this issue at the material time as one which might pose a threat to C’s continued employment.[20]Notwithstanding a degree of disgruntlement on the part of the directors about the stock and staff turnover issues, there was generally a good working relationship between the directors and C. The day-to-day communications between C and the directors were reasonably amicable.[21]During C’s periods of absence in 2021 and 2022 (both sick leave and any annual leave), his duties were absorbed by AM, SM and RM. Other employees at EK were also asked to ‘step up’ from time to time and take on some duties which would have been covered by C had he been in attendance.[22]At the end of the business day on Friday 8 July 2022, C fractured his left foot at the end of the business day on Friday 8 July 2022 when dropping off a customer’s car to the customer’s home. On Saturday 9 July 2022, C was Xrayed and a double fracture was identified. He was given a protective boot to wear and was in considerable discomfort. He contacted R that day, though he wasn’t due in work until Monday 11 July. He informed both RM and AM on 9 July of his accident. He advised of the fracture. AM thought (wrongly as it turned out) that C might still be capable of attending work and suggested that R could send a car to collect him to come to work on the Monday. C explained he was not fit to do so. He was upset by AM’s suggestion which he viewed as an unfeeling one.[23]After C had been absent for a week, on Monday 18 July 2022, AM contacted C about processing his sick pay. In relation to C’s previous spell of absence in June, C had grumbled on 5 July to AM about only being paid SSP when he was off with Covid. On 18 July, during the call, AM asked C if he was taking holiday for the preceding week or whether he would be paid sick pay. She told him that he would need a sick note (which had not yet been provided). When AM asked C about taking holiday, she was aware that, if C’s absence were recorded as sick leave, he would be paid SSP only but that if his absence were processed as holiday, he would be paid his full salary. C replied that it should be recorded as ‘sick’.[24]C then consulted his doctor and was signed off as unfit for work. On Sunday 24 July, he updated AM that he would not be fit to return the following day though he hoped to be back on Thursday 28 July. AM replied, “Hi Kevin, no worries. We weren’t expecting you this week anyway, so just keep in touch and let me know how you are.” On 27 July, AM messaged C to ask him how he had got on at a physio appointment. C replied, “Hi Anne, that’s me back, I have a double fracture, I’m going to see a orthopedic [sic] specialist tomorrow evening but regardless I will be in on Monday [1 August 2022].” AT that time, C’s GP’s fit note had not expired and was not due to do so until some time considerably after 1 August 2022.[25]There was no fall out between C and AM regarding whether his leave should be processed as holiday or as sickness absence. When C told her it should be recorded as sick leave, she did so without protest and processed SSP for him.[26]R had experienced a reduction in turnover over the last year and the profits were not as high as the directors had expected. C’s salary, at around £44,000 p.a. was the highest salary of any of R’s employees.[27]The three directors decided during the period of C’s absence that they could remove the Branch Manager role from the structure and absorb C’s duties among themselves. A catalyst for this decision was C’s sickness absence in July 2022 and his previous absences in 2021 and 2022 when the directors had covered C’s duties among them. This experience had led the directors to conclude that it was viable for them to absorb C’s duties on a permanent basis as they had done so relatively frequently in recent times because of C’s sickness absence in addition to his annual leave. They identified that they could save C’s salary costs under the proposal.[28]C briefly returned to work prior to the expiry of his sick line on 1 August 2022. On 2 August 2022, AM sent to C two text messages. In these, she told C that “your position has been made redundant”. In the second message, she repeated this statement and also told him that “the directors will be covering this going forward.” Given their proposal, R did not require C to attend work and he did not resume his normal duties at any time before he was dismissed.[29]C’s confirmation that he did not wish to take holiday during his sickness absence was not a factor in the decision of AM or the other directors to remove the post of Branch Manager from the staff structure. Nor did AM perceive she had had a fall out with C or hold any personal animosity towards him because of his absence or otherwise. Neither AM nor any of the directors were influenced by any such factors in the decision to make redundant the Branch Manager post.[30]On 3 August 2022, AM sent C a letter requiring him to attend a meeting on 4 August 2022 with herself and SM in the role of notetaker. The letter confirmed the purpose of the meeting was to “Discuss potential redundancy situation”. The letter explained: “During the process we will discuss and explore ways of avoiding and reducing the number of potential redundancies, you will be given the opportunity to make suggestions and raise any questions you may have and consider any possible suitable alternative employment within the organisation.” The letter informed C that he was entitled to be accompanied by a work colleague or trade union representative.[31]Because of the short notice, C requested that the meeting be rescheduled to the following week and R agreed. On 4 August 22, AM sent C a further letter, this time inviting him to a meeting on 11 August 2022 at M&F’s premises in Paisley. The letter advised the meeting would be attended by RM with SM in attendance as notetaker. The letter was otherwise in the same terms as the letter of 3 August with respect to the purpose of the meeting and entitlement to be accompanied.[32]The meeting went ahead on 11 August 2022 in Paisley. It started around 9 am and lasted 14 minutes. C was unaccompanied. C recorded the meeting electronically. RM and SM were in attendance. RM explained the meeting was to discuss “a possible job redundancy”. RM said, “it’s proven while you’ve been off, basically on furlough, sick, holiday, that the role has been absorbed by other directors and staff members.” RM continued, “sickness, holidays, so indicates to us potentially that there’s no other requirement for the role. It’ll result in a cash saving for the business. Obviously, you’re the highest salary. We’ve got rising costs, a decent profit and pretty much from our point of view that’s kinda all we have to say… you’ve had a 5 day period to have a think …so I don’t know whether you’ve had any thoughts about other roles within the business that you might have thought about..”[33]RM clarified that the meeting was not to say C was going to be made redundant. He said “obviously, we have to go through a process”. C explained he had been unable to get trade union representation. RM told him there had to be a consultation and that C needed to think about what his role was and whether it could be changed. He repeated that C was the highest salary and said that profits had never been fantastic and costs were rising. He said that SM and AM especially had had to absorb much of C’s role and that they had already done so (referring to periods when C was absent). RM told C that other members of staff were also helping out. RM said the consultation period was to see whether C could still stay in the same role or in a different role. He said they’d had people in the past who had come back and said “well, I’ll take this or I’ll take that”.[34]C asked if what RM was saying was that C could still do the same role but on a wage cut. RM clarified that he was not suggesting anything but saying that C needed to come back to them after 48 or 72 hours with suggestions for them to consider. During that meeting no substantive suggestions were made. RM encouraged C to come back with any suggestions by email. RM advised they would send the notes of the meeting to their HR consultants and wait for them to get back to R.[35]Later that day, AM sent C a letter which included the following text: I refer to our consultation meeting held earlier today 11.08.2022 we informed you that the company anticipates having to make redundancies in the near future. I am regretfully writing to confirm that it is likely that your position is at risk and you should regard the receipt of this letter as warning notice of that potential redundancy. Over the next week or so I will meet and formally consult with you on a regular basis to discuss alternatives whereby your employment could be protected. I would also ask you to personally consider and put forward alternative proposals and suggestions at your consultation meeting which you feel are relevant with the aim of avoiding redundancy. On a personal note, may I say how sorry I am this situation has come about, and I wish to assure you that this is no reflection upon your ability or commitment to the company, it merely reflects the difficult trading circumstances in which the company is operating. As discussed, I arranged a further consultation meeting with you on Wednesday 17.08.2022 at 09.00 at McKinnon and Forbes Limited, Paisley to review the situation. You may, if you wish, be accompanied by a fellow employee or trade union representative at this meeting.[36]Although AM’s letters of 3, 4 and 11 August referred at times to ‘redundancies’ in the plural, in fact the directors were only contemplating a proposal to make C’s role redundant at the time the letters were sent. They did not envisage removing other posts either within R or within M&F at that time.[37]The meeting went ahead on 17 August 2022 at M&F’s premises in Paisley. It was attended by AM with RM present as notetaker. C was present and unaccompanied. He again recorded the meeting which lasted 9 minutes. RM began by asking C if he had had a think about any suggestions or ideas about how they might avoid the situation.[38]C said, “well obviously I’ve no commercial experience so there’s no point in me trying to say I can work down here [at M&F in Paisley], plus you’ve got Tommy managing here as yous know so you don’t need a manager here, plus I’ve no body shop experience so there’s nothing really here, isn’t there not?”[39]RM responded that R and M&F were two totally different companies and words to the effect that they were just concerned with East Kilbride, not Paisley.[40]C went on to make comments about his performance record during his time with R. He suggested that the business wasn’t in profit before his arrival. He referred to business he had brought to R. He referred to retail business footfall from individuals he had brought to R and also to some business customers he said he’d introduced to M&F. He said he had given unrivalled customer service to R’s customers. He expressed doubt that the directors would be able to cover his role properly, particularly when other staff were taking their holidays. He suggested that neither AM nor SM had the technical experience he had nor the know how about the branch. He said words to the effect that he didn’t feel it was fair that he was the one who had been pushing to drive the business, yet he was the one who was going to get ‘put out the door first’. He said he would be willing to take a wage freeze.[41]As far as other positions were concerned, C asked what else there was in East Kilbride. RM replied that it was for C to think about it. C said that he didn’t see any other position in East Kilbride for somebody. He asked what other position there would be for him other than managing and pointed out that managing was what he had done. He said, “I don't see anything else other than East Kilbride, I don't, not unless yous can turn round and tell me that there is something but I don't.” RM did not respond directly to this query. R did not have any vacancies at that time. Nor did M&F have any vacancies. However, RM did not explain this to C in an explicit way. He did not, however, disagree with C when C suggested he could not see any other vacancies. RM ended the meeting by advising that the directors needed to sit down together and contact their HR consultants and return to C.[42]C was not fit at the material times to perform the duties of a tyre fitter because he had back pain problems and trouble bending down in addition to his foot fracture. C did not raise the possibility of his taking a tyre fitter’s job during the consultation because he knew he was incapable of performing those duties. R didn’t raise the possibility of C performing a tyre fitter’s tole. They had no vacancy for a tyre fitter at the time and C was also debilitated, to their knowledge, with his broken foot.[43]On 18 August 2022, AM sent an email to C. She said she had arranged a follow up meeting on Monday 22 August 2022. She explained that RM was on holiday so she would chair the meeting. On that date, AM also sent a letter to C in the following terms: NOTIFICATION OF A FINAL REDUNDANCY MEETING You are required to attend a meeting … on 22 August 2022…The meeting will be chaired by Anne McKenzie, Director. Steven McKinnon will attend as notetaker. The purpose of the meeting is to conclude the consultation period. I should remind you that as the meeting could lead to your contract being terminated by reason of redundancy. You are entitled to be accompanied by a work colleague or trade union representative. …[44]The meeting went ahead on 22 August 2022, conducted by AM with RM as notetaker. C was unaccompanied, and he recorded the meeting which lasted 6 minutes. AM began by saying that the main point C had suggested at the last meeting was the pay freeze. She said that she and SM and RM had had a think about it but that unfortunately I was not going to make any real difference “because we’d already decided that we were going to be taking over the managerial responsibilities and issues within the depot so… a pay freeze isn’t really going to stop that situation occurring.”[45]C asked AM if they had considered the rest of his points and she replied to the effect that the other points were not really suggestions or ideas as to why he would keep his job. She said things she would look at were suggestions like a reduction in hours, a reduction in pay or taking a different job. C pointed out that there wasn’t another job within the branch and AM agreed there wasn’t another managerial role and said consideration that she would have taken on board was the pay freeze but that wasn’t going to help the situation. She said that after considering that, with regret, they were going to serve C with formal notice of redundancy. She advised they would send a letter confirming this. C asked for a copy of all notes. He had not been sent notes from either of the two prior meetings.[46]Later on 22 August 2022, AM sent a letter to C in the following terms: You were informed by letter on 11th August 2022 that the company had identified a potential redundancy situation. You were assured that everything possible would be done to avoid compulsory redundancies throughout a formal meaningful consultation period. You attended consultation meeting on 17th August 2022 to discuss all alternatives. Unfortunately, it has not proved possible to find any alternative to the problem, other than to make compulsory redundancies. As a result, therefore, you are redundant and this letter is to be treated as formal notice of dismissal due to redundancy. Your length of service... entitles you to ...1 month’s notice... which will commence on 22nd August 2022 and you will be paid in lieu of any notice owed to you and you will finish work immediately. … you will be entitled to redundancy payment on termination of your employment with this Company. … On a personal note, I am sorry that your employment with the company has ended. May I take this opportunity of wishing you well in the future.[47]C was offered no appeal. He was paid a statutory redundancy payment of £3,426. He was also paid in lieu of one month’s notice (£4,008.33 before deductions).[48]Following the termination of his employment, C did not feel fit to apply for any jobs in the remainder of 2022 because of his broken left foot which wasn’t healing well and an understanding he held during some of that period that he would likely need an operation which he felt would be highly disruptive in the early stages of a new role and which he feared would be offputting to potential employers. He was latterly told the operation was not required. C sought private physiotherapy treatment in October 2022 to supplement his NHS treatment. His foot fracture progressed to a ‘non union’ and he required rehabilitative physio. C had also had a history of lower back pain (which he had also experienced before he was dismissed) which continued after his dismissal. From October 2022, C reported persistent high intensity pain and functional limitation in his left foot to his physiotherapist. He also reported to his physiotherapist that he was experiencing stress and anxiety, mood disturbance, emotional exhaustion and sleep disruption. He reported that these became more pronounced over time. In 2024, C was diagnosed with osteoarthritis in his left hip. At some stage between his dismissal and the January 2026 C was prescribed anti-depressant medication.[49]Following his dismissal in August 2022, C felt that it would not be ideal to start a job with a new employer and then have to go off for an operation which deterred him from applying for roles. C initially lived entirely on savings for a year or so.[50]He made some endeavours to seek work in around March / April 2023 when he applied to two companies. He was not successful. In September / October 2023, C was offered a post as a driver collecting and transporting parts but he did not take the position as he did not feel fit to do so because of back pain.[51]C was in receipt of a Personal Independence Payment at some stage in late 2023 as well as another sickness related state benefit. C and his partner applied for Universal Credit around May 2024 and began to receive this around December 2024.[52]In May 2025, C sustained a further fracture, this time to his right foot/ankle.[53]In January 2026, C’s GP recorded in a report that C has a history of chronic widespread debilitating pain including lower backpain when walking which was recorded to be ‘likely secondary to known spinal stenosis’. At that time, C was awaiting review in the neurosurgical clinic and the report recorded that C’s legs could give way at times due to the pain. The report recorded that C was on regular analgesia and that the chronic pain was having a negative impact on his mental health. The report recorded he was on regular antidepressant medication. Facts within judicial knowledge[54]It is within the judicial knowledge that the rate at which statutory sick pay (SSP) was paid for eligible absences between 6 April 2022 and 5 April 2023 was £99.35 per week. It is within the judicial knowledge that(i) SSP was payable for a maximum of 28 weeks(ii) if the gap between periods of incapacity was 8 weeks or less, the periods should be linked; and(iii) employers start paying SSP on the fourth day of incapacity. Observations on the evidence[55]Because of the procedural history, by the time of the hearing considerable time had elapsed since C’s dismissal (around three and a half years). In addition, during the hearing, C sought to raise in cross examination various matters pre-dating his dismissal by a number of years, including some allegations which dated back to 2017 or 2018.[56]It is fair to reflect that for all witnesses the passage of time and the historic nature of the events had a detriment impact on the quality and specificity of recollections. It is also right to acknowledge that the memories of C as well as of AM and RM may have been affected by bereavements and grief suffered by these witnesses. In C’s case, as noted, he had sadly lost a young family member not long before his employment ended which has had enduring effect on his mental health. AM and RM also sadly lost their brother, SM, who was involved in the redundancy decision and process and who was diagnosed with cancer not long after C’s dismissal. I do not underestimate the emotional impact of these difficult circumstances for all concerned and recognise that the associations made more difficult the process of giving evidence for all three witnesses.[57]My impression was that neither C nor R’s witnesses sought to mislead the Tribunal in the evidence they gave but, perhaps to a greater extent than usual, where there was a lack of contemporaneous documentation to support the event, the evidence was characterised by significant lapses of recollection of the detail / timeline.[58]Many of the areas of conflict were not particularly material to the issues I have to decide and it is unnecessary to comment on these. This is not a case where I am charged with assessing C’s performance in his role or his competence in relation to particular elements of his duties. I have confined my findings on such matters to those necessary to decide the question of the reason or principal reason for the dismissal.[59]I make comment on two other evidential matters. C put to AM and RM in cross examination an allegation that in 2018, RM told C that AM was having an issue with a member of staff at M&F and that when AM was under stress and falls out with someone, she wanted to get rid of them and that this was not healthy. AM was not alleged to have been present during the conversation. She denied any knowledge of this. She denied having fallen out with the individual and observed that the individual remained employed by M&F. RM’s evidence was that he could not recollect the conversation to which C referred (which was alleged to have taken place some 8 years previously). C did not himself give any account of the alleged conversation with RM during his own evidence. In the circumstances, there is insufficient evidence to establish the conversation took place. In any event, I have found that there was no fall out or personal issue between AM and C at the time she and the other directors made the decision to make C’s role redundant. I record for completeness that, even if it had been established that the 2018 conversation took place as C described when questioning R’s witnesses, it would not have led me to infer that AM was motivated by a personal vendetta of some sort against C in her decision-making in July / August 2022.[60]Secondly, C introduced evidence of two text messages dated 2 August 2022. There had been an initial objection taken by Mr Milne to the admissibility of these messages which were labelled ‘without prejudice’. I gave the opportunity to hear argument about the admissibility of those messages and indicated I would adjourn briefly to deliberate before giving a determination on the question. Mr Milne considered the matter and elected not to pursue his objection. (Admissibility issues had been considered previously in this case by Employment Judge Wiseman but the judgment of 31 October 2023, though it refers to these particular messages, gives no express ruling regarding their admissibility). In the absence of an objection, I have included findings in fact about the messages. Relevant Law Unfair dismissal
Relevant Law
[61]Section 94 of ERA provides that an employee has the right not to be unfairly dismissed. It is for the employer to show the reason or the principal reason (if more than one) for the dismissal (s98(1)(a) ERA). That the employee was redundant is one of the permissible reasons for a fair dismissal (s98(2)(c) ERA). Another is ‘some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held’ (SOSR) (s.98(1)(b)).[62]Section 139(1) defines a redundancy situation: 139 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.[63]For the purposes of sub paragraph (1)(b), the question of whether the requirements of a business for employees to carry out work of a particular kind have ceased or diminished in a reorganisation context will turn on the facts of the individual case. In Robinson v British Island Airways Ltd [1977] IRLR 477, the EAT said: 'In truth a reorganisation may or may not end in redundancy; it all depends on the nature and effect of the reorganisation.'[64]In Sutton v Revlon Overseas Corpn Ltd [1973] IRLR 173, NIRC, a chief accountant was dismissed and his work re-allocated amongst three former colleagues. The firm had no diminution in the amount of accounting work generally, but they no longer took the view that it was necessary to have a chief accountant post. The NIRC accepted this was a redundancy situation. The need for an employee to undertake the particular work of a chief accountant had ceased. The court approved the submission that: 'the requirements of a business for employees to carry out work of a particular kind can diminish in two different ways. The work itself may cease or diminish […] Alternatively, a re-organisation or mechanisation may enable the same work to be performed with fewer employees'.[65]In Kingwell v Elizabeth Bradley Designs Limited All ER [2003] (D) 74 (Jul), employees worked in a part time capacity and due to a downturn in business, they reduced to one day per week. This new system proved inefficient and costly and didn’t result in the anticipated business improvement. The employer decided they required just two full time members of staff. There was no dispute they would be doing the same work and working the same number of hours as the part time employees had formerly done. The first instance tribunal decided they were not redundant and not entitled to redundancy payments. The EAT disagreed. There could be, and was, both dismissal caused by a business re-organisation and dismissal due to redundancy. For good and commercial reasons the employer re-organised the business so that the same work was carried out by fewer employees. Consequently, they were dismissed as the requirements of the business for employees to carry out work of a particular kind had diminished.[66]A dismissal arising from a business reorganisation might not meet the statutory test for a redundancy situation but might yet be a dismissal for SOSR. The courts have held that there is a need for a sound, good business reason for the reorganisation (Hollister v National Farmers' Union [1979] IRLR 238, Bowater Containers Ltd v McCormack [1980] IRLR 50, Genower v Ealing Hammersmith and Hounslow Area Health Authority [1980 [IRLR] 297). The Tribunal should be satisfied that there is some discernible advantage to the business (Kerry Foods Ltd v Lynch [2005] IRLR 680, EAT).[67]In general, it is not open to an employee to argue that their dismissal was unfair because their employer should not have reorganised its business in the way that it did or should not have decided to make employees redundant following that reorganisation (Moon v Homeworthy Furniture [1976] IRLR 298).[68]If satisfied of the reason for the dismissal, it is for the Tribunal then to determine (applying a neutral burden of proof) whether in all the circumstances, having regard to the size and the 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). In applying s98(4) ERA, the Tribunal must not substitute its own view of the matter for that of the employer but must apply an objective test of whether dismissal was in the circumstances within the range of reasonable responses open to a reasonable employer.[69]In Polkey v AE Dayton Services Ltd 1988 ICR 142, the House of Lords held that: “in 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 minimize redundancy by redeployment within its own organisation.”[70]It will be a question of fact and degree for the Tribunal to consider whether consultation with the individual and/or his union was so inadequate as to render the dismissal unfair. A lack of consultation in any particular respect will not automatically lead to that result. The overall picture must be viewed by the Tribunal up to the date of termination to ascertain whether the employer has or has not acted reasonably in dismissing the employee on the grounds of redundancy (Mugford v Midland Bank [1997] IRLR 208).[71]In Freud v Bentalls Ltd [1982] IRLR 443, a case concerning an individual rather than collective redundancy, the EAT considered the nature of consultation. It said: “In the particular sphere of redundancy, good industrial relations practice in the ordinary case requires consultation with the redundant employee so that the employer may find out whether the needs of the business can be met in some way other than by dismissal and, if not, what other steps the employer can take to ameliorate the blow to the employee. In some cases (though not this one) the employer may be able to suggest some re-organisation which will obviate the need for dismissal;” (para 14). The EAT further observed that 'in virtually all cases the employer if he consults will find out what steps he can take to find the employee alternative employment either within the company or outside it.'[72]Generally to be fair, consultation will take place when the proposal is at a formative stage both in cases involving collective and individual redundancies (Mogane v Bradford Teaching Hospitals NHS Foundation Trust [2023] IRLR 44 para 24). In that case the decision on the pool (of one) was made before any consultation meetings with the claimant based on the forthcoming expiry of the particular employee’s fixed term contract. The first instance tribunal found the dismissal was not unfair. On the facts there, the EAT concluded this resulted in an arbitrary choice and held that, without an explanation as to why deciding on a pool of one before consulting would be reasonable in the particular circumstances, the first instance Tribunal had not provided sufficient reasons to explain its decision.[73]In order to effect a fair dismissal in a redundancy situation, an employer must usually look for alternative work and satisfy itself that it is not available before dismissing for redundancy. The duty on the employer is to take reasonable steps; not to take every conceivable step to find the employee alternative employment (Quinton Hazell Ltd v Earl [1976] IRLR 296).[74]In Quinton Hazell, the EAT considered the earlier EAT decision in Vokes Ltd v Bear [1973] IRLR 363. In Vokes, an employee was made redundant with no attempt to see whether he could be employed elsewhere in the group of around 300 companies in circumstances where at least one group company had an advertised vacancies for senior managers shortly after C was dismissed. The EAT upheld the Tribunal’s finding of unfair dismissal. It stated, ‘We find ourselves in full agreement with the way in which the tribunal expressed themselves. It would have been the simplest of matters to have circulated an inquiry through the group to see if any assistance could be given to the employee in the very difficult circumstances in which he would shortly find himself.’ In Hazell, the EAT distinguished Vokes where not a single reasonable step had been taken by the employer. In Hazell, the first instance tribunal had found the employee's dismissal for redundancy unfair on the basis that such efforts, if any, made by the employers to find the employee an alternative post within the Burmah Oil Group were not made energetically. The EAT ruled that the tribunal had misdirected itself as to the effect of Vokes. In Hazell, the EAT observed the employer did have consideration for Mr Earl and they did wonder whether he could be placed somewhere else including the possibility of other lower paid jobs but reasonably ruled these out because of Mr Earl's seniority. The appeal against the finding of unfair dismissal was allowed.[75]In Hendy Group Limited v Kennedy [2024] EAT 106, the EAT summarised these authorities and emphasised that reasonableness is the cornerstone. In that case, the EAT did not uphold a ground of appeal that the tribunal below applied the incorrect test in considering whether the employer had properly considered alternative employment. The EAT said the judge’s conclusion was that the employer did nothing in terms of alternative employment. The employee was told that he could apply for jobs on the website. HR communicated with him via an email to which he did not have access. HR did not tell managers that he was at risk of redundancy. The EAT pointed up an absence of evidence of other steps a reasonable employer might have taken, such as, for example, speaking to employees about where their interests might lie, assisting in identifying other roles, encouraging conversations about different roles even if that meant demotion. The EAT held it was open to the tribunal on the facts of that case to determine that that approach was one which no reasonable employer would have adopted.[76]The compensatory award is such amount as the Tribunal considers just and equitable in all the circumstances, having regard to the loss sustained by the employee as a result of dismissal insofar as attributable to actions of the employer. The compensatory award is to be assessed so as to compensate the employee, not penalise the employer and should not result in a windfall to either party (Whelan v Richardson [1998] IRLR 114).[77]A claimant has a duty to use reasonable endeavours to mitigate their losses. The burden of proving an unreasonable failure to mitigate lies with the respondent (Fyfe v Scientific Furnishing Limited [1989] IRLR 331. However, where an employee fails to look for any jobs at all, this is likely to be sufficient to discharge the employer’s burden of proof. It is then for the claimant to explain why such a failure was reasonable (Hilco Capital Ltd v Harrington [2022] EAT 156).[78]Where a Tribunal concludes a dismissal was unfair, it may find that the employee would have been dismissed fairly in any event, had the employer acted fairly, either at the time of the dismissal or at some later date. The Tribunal must assess the chance that the employee would have been dismissed fairly in any event then the reduce the losses accordingly. Such reduction may range from 0% to 100% (Polkey). Submissions[79]Both Mr Milne and the claimant gave oral submissions. The entire content of both submissions has been carefully considered and taken into account in making the decision in this judgment. Failure to mention any part of these submissions in the judgment does not reflect a lack of consideration. The submissions are addressed in the ‘Discussion and Decision’ section below, in which I set out where the submissions were accepted, where they are not, and the reasons for this. Discussion and Decision The principal reason for the dismissal[80]R admits it dismissed C. I begin by considering the reason or principal reason for C’s dismissal. Both of R’s witnesses explained this was because they had, as a result of absences by the claimant, had experience of absorbing his duties and that this led them to identify, in effect, that the could remove his post from the structure at R without replacing him with the associated cost saving to the business.[81]C asserted latterly during the hearing, when giving his evidence, that the reason for his dismissal that he had refused to characterise his sickness absence as annual leave when asked if he wished to do so by AM on 18 July 2022. This asserted reason was not foreshadowed in his Claim and C did not put in cross examination to AM (or RM), who gave their evidence before C gave his, that this was the reason for his dismissal.[82]C did, however, ask AM about a conversation he said he’d had with her on the 5th July 2022 when, he put to her, he had expressed disgruntlement that he wasn’t getting paid for his recent sickness (between 20 and 30 June 22). AM’s response was that she didn’t remember the asserted conversation on 5 July but that she did remember offering for C to take holiday so that he would get full pay instead of just SSP. It was apparent from AM’s message of Monday 18 July (produced to the Tribunal) that C had not, by that date, provided AM with a fit note to cover the 5 days he had already been absent from 11 to 15 July 2022. There was no evidence to support C’s suggestion that AM resolved to dismiss C because of his refusal to have his absence treated as holiday. At the time when AM made the enquiry on 18 July 2022, the circumstances were that she hadn’t received a sick line and that, according to the account C put forward in his question to AM, he had recently complained to her about not receiving full pay for the previous absence. I accept AM was motivated to ask C about the possibility of recording his absence for the week commencing Monday 11 July 2022 as holiday because(a) she had, by 18 July when she raised the matter, received no GP certificate to cover the period and(b) C would be paid less (the SSP rate) if it was characterised as sickness absence. I do not find, on the balance of probabilities that C’s declining to take his absence as holiday was causative or even a contributory factor in the decision R took to dismiss C.[83]I do accept, however, that C’s absences levels more generally had an influence on R’s decision to dismiss C. R appears to implicitly accept this in paragraphs 8 and 18 of its Grounds of Resistance (GOR). R also appears to acknowledge that other factors including its concerns about stock, staff turnover and profit margins were relevant to the matter (paragraphs 9-11 of the GOR). Mr Milne accepted in his submissions that there were other factors at play. However, he pointed out that R only has to show that redundancy (or SOSR) was the principal reason for dismissing.[84]I considered the evidence of R’s witnesses which was essentially unchallenged as to their reasons for dismissal. C challenged the fairness and accuracy of AM’s and RM’s perceptions about his part in the staff turnover and of attributing stock discrepancies to him personally. He did not, however, challenge in cross examination their account of their realisation that they could operate the business without a Branch Manager by absorbing his duties.[85]I conclude, on balance, that the directors’ gripes about stock and staff turnover were secondary matters in the decision they took. R had access to an HR consultant but had not initiated any processes in relation to any perceived under performance on C’s part in respect of these issues. I am satisfied that these matters would not individually or cumulatively have led R to dismiss C absent the more fundamental dawning in July 2022 that they could save a significant salary cost by stripping out C’s role altogether. R does not deny that this dawning was precipitated by C’s second absence in quick succession in the summer of 2022. I accept that C’s absence was undoubtedly a catalyst for R to reconsider its business structure.[86]C was concerned to emphasise at length in his evidence the genuineness of his absences in June and July 2022. He did not go so far as to suggest that R was motivated to dismiss him because the directors doubted the genuineness of his incapacity for work. In any event, I am satisfied that R accepted both these absences were genuinely caused by a lack of fitness for work and that they were not motivated to dismiss by any belief that C was malingering.[87]Unfortunately for C, the reality of working for a micro employer was that his absence from the business demanded more hands-on involvement from the directors which, in turn, highlighted to them the scope to run without a manager. It afforded them a ‘preview’ of how that could operate in practice. Ultimately, however, I am satisfied that it was the precipitated decision to reorganise the business and remove the Branch Manager role, rather than C’s absence of itself, which was the principal reason for the dismissal. There was no evidence that R’s directors had any agenda at the time to replace C in post with another manager less prone to absence (and they did not do so). The principal reason C was dismissed was not that he was absent, but that R decided to absorb the duties of his post among the directors and other existing staff to save his salary costs. Was the reason a redundancy as defined in ERA?[88]I consider next whether the established reason for the dismissal falls within the definition of redundancy in section 139 of ERA. Mr Milne cited Kingwell in this regard and maintained that there was indeed a redundancy situation. C said that there was no cessation or diminution of his role and he pointed out that RM had admitted that staff had to step up to help.[89]I conclude that the test in subsection 39(1)(b)(i) is satisfied on the facts of this case. The requirements of R’s business to carry out work of the kind carried out by C - the work of a Branch Manager of R’s EK site - had ceased or diminished or was expected to do so. I acknowledge that, post-restructuring, R still had a requirement for some or all of the work C had carried out but its requirement for employees to carry out that work was expected to cease or diminish. Some of the former Branch Manager duties would be ‘farmed down’ to more junior individuals at the site while most would be ‘farmed up’ to the directors. Notwithstanding the absorption of the duties by these individuals, no individual director nor any other individual member of staff would, postrestructure, be carrying out work of the particular kind previously carried out by the Branch Manager on a like for like basis. For each such individual, there would be some degree of overlap with that work, but the work of each Director or of others would not, post-restructure, be of the same ‘particular kind’ as C’s had been pre-restructure.[90]In coming to this conclusion, I apply the principles in Sutton and Kingwell. If I am wrong to hold that that R’s reason for dismissing meets the technical requirements of section 139 of ERA, I would, have found that R’s restructuring reason for dismissing C amounted to ‘some other substantial reason of a kind to justify the dismissal’. There was compelling evidence from AM and RM that there was a sound, good business reason and discernible business benefits in terms of costs savings in removing this management layer.[91]C sought to advance an argument in his submissions that the idea that a garage doesn’t need a manager is ‘ludicrous’. He said that all garages he had worked in, including small family businesses, were run with managers. However, the Tribunal has no remit to assess whether the respondent was wise or correct to take the business decision it did with respect to the reorganisation of its structure either for the purposes of determining whether the reason was redundancy or an ‘SOSR’. R does not need to show, and I do not need to find, that it adopted an ‘optimal’ business model. I am satisfied that R perceived there were discernible business benefits to its proposal, namely a substantial reduction in its wage bill, and that this was a substantial reason of a kind to justify the dismissal. Section 98(4): Did R act reasonably in treating its reason as a sufficient reason to dismiss C?[92]Having found that the reason was redundancy, I go on to consider whether in all the circumstances, having regard to R’s size and the administrative resources, and in accordance with equity and the substantial merits of the case, R acted reasonably in treating this reason as a sufficient reason to dismiss C for the purposes of section 98(4).[93]‘Pooling’ decision: I begin by considering whether R acted reasonably in placing C in a so-called ‘pool of one’. I consider separately later in the judgment the distinct but related question of whether R’s consultation about its pooling decision was adequate, and in particular whether the timing of the consultation was reasonable. In C’s Claim at paragraph 16.2.3, it is asserted that R failed to reasonably define the appropriate pool for selection. It is said that C was one of two branch managers across R’s business. It is further asserted that C was a qualified mechanic. As such it is said in the Claim that it was unreasonable for R to restrict its pool for selection to the East Kilbride site only.[94]At the hearing, however, C made it very clear that, notwithstanding the terms of the Claim prepared by his representative at the time, he was not, in fact a qualified mechanic. This was also R’s understanding at the time of the redundancy consultation process. There was no scope to pool C alongside qualified mechanics whether at East Kilbride or at Paisley as C could not have carried out the duties of a mechanic’s role. Although C’s Claim implied he was taking the position that he ought to have been pooled alongside Tommy Hunter, the manager of M&F, my understanding of C’s position at the hearing was that he did not seek to make this argument. Mr Milne referred to Wrexham Golf Club v Ingham UKEAT0910/12/RN as authority that, where an employer has properly applied its mind and identified a pool of one, it would be difficult to challenge. Mr Milne maintained that R did not act unreasonably in failing to pool C with Tommy Hunter (or any other employees).[95]I consider C was sensible not to pursue the pleaded argument that R acted unreasonably in failing to pool C with Mr Hunter. The EK Branch Manager role was distinct and not comparable to that performed by Mr Hunter at M&F in Paisley as C prudently acknowledged both during the consultation process and at the Tribunal hearing. C neither had the experience nor qualifications to carry out the duties of Mr Hunter’s post, such that it would have been futile to pool them together as C would have had no prospect of being retained over Mr Hunter to take up the management of M&F’s operation.[96]Adequacy of warning and consultation: I turn to whether R adequately warned and consulted C. There is no dispute that R notified C of the redundancy situation and that a process followed involving three meetings between C and R. I consider the reasonableness of the process and the consultation which took place. I remind myself that I require to assess the objective reasonableness of the process as a whole. I discuss individual elements which C has raised in turn below, before going on to assess the process on a holistic basis.[97]AM’s impartiality. It was asserted in the Claim that AM was not suitably impartial to decide matters. This point was not, however, pursued at the hearing. C did not cross-examine AM on her impartiality and did not take this point forward in his submissions. C stated during his submissions that there was no fall out between him and AM and agreed at other points in the hearing that the working relationship had been good.[98]AM’s texts of 2 August 2022. In his submissions, C acknowledged the process but said there was only ever going to be one outcome. He said that R’s suggestion that he had a chance of retaining a job was untrue and asserted that the two messages of 2 August showed that he had no such chance. He complained that despite his 4.5 years’ service, the decision was made unduly quickly – within one week of his last absence.[99]Mr Milne disputed C’s interpretation of the messages of 2 August. He said they did not indicate that the decision to dismiss was predetermined. He pointed out that the text says ‘your position has been made redundant’ [my emphasis]. Mr Milne said this showed that the decision had been made only that C’s role was redundant; it did not show that R had decided to dismiss C. Thereafter, Mr Milne observed that C was invited to and did attend redundancy consultation meetings. While the prospect of C retaining employment was slim given the circumstances, said Mr Milne, R did not act outside the band of reasonable responses by giving an opportunity to consult with C on alternatives.[100]I remind myself that it will be a question of fact and degree for the Tribunal to assess whether consultation has been so inadequate as to render the dismissal unfair (Mugford). It is fair to observe that the opening of the subject by R in AM’s messages of 2 August 2022 was poorly communicated. AM did not characterise the redundancy scenario as provisional or as a proposal and the messages didn’t provide any notice that a process of consultation was to follow. She said, ‘Your position has been made redundant’ and later, ‘Your position has been made redundant, the directors will be covering this going forward.’[101]The messages were blunt and brief. Although it is well established that an employer is not obliged to adopt all or any of the views expressed by an employee with whom it consults (R v British Coal Corp & Anr ex p Pryce [1994] IRLR), in general consultation should take place when a proposal is at a formative stage (Mogane). The statements in AM’s messages of 2 August gave a strong sense that the decision to eliminate C’s role in particular from the structure had already been taken. The messages lacked any suggestion that this proposal was provisional or was subject to consultation with C. Nor did the messages explain at that point that there would be any consultation at all either about the selection decision or about whether dismissal might be avoided by considering redeployment options or other alternative proposals.[102]Mr Milne’s observation that the messages only referred to C’s position being redundant and did not state that C himself was redundant is undoubtedly correct. He is right that there is a distinction between stating that a position has been ‘made redundant’ or deleted from a structure and stating that the person in the position is being or will be made redundant. However, it was clear from C’s evidence and submissions that he was oblivious to such a distinction at the time he received AM’s messages and indeed that he remained so by the time of the Tribunal Hearing. C understood the messages to mean that he was being told he was leaving his employment. It was entirely reasonable and foreseeable that he would interpret them in this way. The distinction between a post and a postholder being redundant, though familiar to lawyers and those working in the HR field, is not necessarily obvious to the layman. Nothing in the messages conveyed that C could draw reassurance that he might yet be retained in employment notwithstanding the redundancy of his position. It was or ought reasonably to have been foreseeable by AM when she sent the messages that C would interpret them in the way that he did which was that his fate was sealed.[103]It must be acknowledged that this was not the end of the story and that the next day (3 August), R sent a more circumspect letter to C, inviting him to attend a meeting to discuss a ‘potential redundancy situation’, That letter also explained there would be a process which would involve the discussion and exploration of ways of avoiding or reducing the number of potential redundancies and that the claimant would have the opportunity to make suggestion and consider suitable alternative employment. As we, know, three meetings did ensue.[104]However, notwithstanding these steps by R, damage had been done which proved unsalvageable. C’s conviction, based on AM’s initial messages, that the matter had been pre-determined by the directors endured and jaded his view of the genuineness of the consultation that followed. He did not believe that R was approaching the consultation with a truly open mind. It was quite foreseeable that the initial 2 August messages should promote such scepticism. Having heard the directors’ evidence, I accept on balance that they did genuinely consider the points C put forward at the meetings, including the qualities he had brought to the role and the suggested wage freeze. They communicated to him that having considered these points, they rejected his proposal that his role be retained on a frozen wage, as was their prerogative. However, for all that R did genuinely consult with C in the meetings that followed, it remained understandable that C continued to perceive that their mindset was closed based on the original messages. For AM to initiate the communication of C’s potential redundancy in the stark and unqualified way she did was not objectively reasonable in all the circumstances.[105]Consultation about alternative employment: There are two facets to this which are interrelated. I deal with them both in this section. The first is whether R consulted adequately with C in relation to the matter of potential redeployment to alternative roles. The second, intertwined issue is whether R took reasonable steps to find C alternative employment.[106]In his Claim paper apart, C narrates that, in the course of the meetings of 11 and 17 August, C was invited to make suggestions about alternative employment but when he asked RM if R had any suggestions, he was told it was a matter for C only. The paper apart also narrates that C was expected ‘only to make suggestions regarding the Respondent’s East Kilbride branch’. In his submission, C repeated that he was told it was only EK. He said, ‘Why couldn’t I have went to Paisley and worked?’ (sic). At another stage in his submission he asserted that R never discussed alternative employment. He also suggested he maybe could have worked in M&F’s parts department. Mr Milne noted that C recognised at the time that there were no alternatives for him at M&F and that he never brought up the possibility of work in the parts department during the process.[107]One asserted weakness is the limitation of parameters of the ‘search’ for alternative vacancies to R’s operation in East Kilbride for the purposes of the consultation. I agree that this approach did not fall within the range of reasonable responses. The relative proximity of M&S’s operation in Paisley was such that it would be reasonable to consider redeploying C to work at that site. I acknowledge that M&F was a different legal entity, but it was an associated company for which the staffing structure and possible vacancies or lack thereof were well known to the directors of R (who were also directors and shareholders of M&F). I acknowledge that the nature of M&F’s business was different and that C’s experience and skills lay in businesses serving domestic car owners. While that may well bear upon C’s suitability for particular roles at M&F, it does not seem to me to be an objectively reasonable basis for refusing to entertain any discussion or consideration of suggestions in relation to that company. The reasons for constricting the discussion to R’s EK operation and inviting only suggestions for alternatives in that workplace were not explained by RM at the time, nor did he nor AM explain them at the Tribunal hearing. (I refer here specifically to the question of the breadth of the search for potential alternative employment as distinct from the ‘pooling’ decision). I acknowledge that, as it happens, there were no live vacancies either at R’s site in EK or at M&F’s site in Paisley at the material times (though, as discussed below, this was not communicated to C at the time in a direct fashion). I am not persuaded that this absence of live vacancies, which applied to both sites, gave reason to confine the consultation to C’s suggestions about EK only.[108]C’s complaint that R never discussed alternative employment is not accurate. However, it is fair to acknowledge that R’s approach to the matter was to invite suggestions from C (about EK), and not itself to give any information about the vacancy situation from its perspective. Of course, R was correct to give C an opportunity, if he wished, to suggest and make a case for a possible new role or roles which had not previously been considered by R. However, I found R’s lack of forthcomingness about the absence of any live vacancy in East Kilbride (or Paisley) troubling. At the meeting on 11th August, RM did raise the question of other positions. 109. He seemed to place an onus on to C to identify possible positions. RM told C, “you’ve had a 5 day period to have a think …so I don’t know whether you’ve had any thoughts about other roles within the business that you might have thought about..” The lack of straightforwardness about the vacancy situation continued at the next meeting. On 17 August, C acknowledged his lack of commercial experience and said in relation to possible jobs at M&F “so there’s nothing really here, isn’t there not?” Instead of answering plainly that M&F didn’t have any vacancies, RM pointed out they were different companies and limited the scope of the discussion to East Kilbride. Later on, when C asked what else there was in East Kilbride, RM replied that it was for C to think about. Later still, when C said, “I don't see anything else other than East Kilbride … unless yous can turn round and tell me that there is something,” RM did not give the direct answer that they had no proposed vacancies, albeit C could make suggestions.[110]There was no reason that R could not invite C to put forward suggestions he might think could be created while being candid and transparent that no live vacancies were otherwise under consideration at either workplace. The omission to answer C’s questions in a direct way risked C’s confusion about what exactly the staffing position was, or was proposed to be post-restructure. This was perhaps particularly so in light of R’s puzzling references in the correspondence to making ‘redundancies’ (plural). This pluralization was not a one-off typo but appeared in three different letters. Without a clear understanding of the proposed new structure, the role or roles affected in a small team and any existing or proposed vacancies (or the absence of them), one can see that it could be excessively difficult for an employee to engage meaningfully in the process of consultation. R, acting reasonably, could be expected to provide clarity on these basic matters to encourage a focused and meaningful consultation. I remind myself that the test is whether R’s approach lay in the range of reasonable responses for a small employer of R’s size and resources. I assess this question later in the judgment based on a consideration of the process as a whole.[111]I turn to the related but, on the facts here, distinguishable question of whether R failed in its duty to make reasonable efforts to find alternative employment for C. The earlier findings about the adequacy of R’s approach to consultation about alternative employment might appear to tend towards a conclusion that there was a failure in this duty by R. I acknowledge the two questions may often be inseparable such that frequently a failure to adequately consult about alternative employment will also entail a failure to make reasonable efforts to look for alternative employment. However, the reasonableness question posed by section 98(4) must be assessed looking at the process holistically. In this case, notwithstanding the weaknesses in R’s approach to the consultation, to his credit, C did engage with the process. Despite R’s coyness, C considered the redeployment possibilities for him, and he correctly inferred and articulated to R that there was a lack of alternatives in EK and at the Paisley site. Although RM latterly told C on 17 August that consideration was restricted to EK and did not extend to Paisely, this was after C had pondered his prospects at the Paisley site and identified a tentative but correct conclusion that there was nothing there for him. He did this at a time when he thought it was open to him to make suggestions in relation to either site, there having been no indication in R’s letters of 4 and 11 August or at the meeting on 11 August that consideration of alternatives was to be restricted to EK.[112]R’s duty is only to take reasonable steps to find C alternative employment, not to take every conceivable step. On the facts and circumstances of this case, a ‘reasonable step’ for a small family business like R did not extend to creating a new vacancy where none existed whether within EK or M&F in circumstances where an important objective of the proposed restructure was to save salary costs and where there was no work was available elsewhere in the operation (at least without further restructuring).[113]Notes of the consultation meetings: C complains he did not receive notes at all until after he was notified of the dismissal decision and he complains that the notes were inaccurate to the extent that they exaggerated the length of the meetings. The omission to provide the notes of each meeting shortly after the meeting itself and in any event before the next meeting was less than ideal, particularly in circumstances where a dedicated notetaker was in attendance at each meeting. The notes were ultimately generated after the dismissal notice. The discrepancies they contained as to the length of the meetings were regrettable. Neither of the respondent’s witnesses offered any explanation as to how this arose. When asked, AM acknowledged they might be a few minutes out and RM was unable to give any response. On the balance of probabilities, I do not find it established that there was a wilful intention to misstate the position. On balance, I conclude that the errors likely arose from the delay in preparing the notes after the meetings and a failure to record precisely the meeting durations at the time they took place. Any prejudice to C in not receiving the notes shortly after each meeting was mitigated by the fact he recorded each of the meetings and had access to his audio record when preparing for subsequent meetings.[114]The failure to offer an appeal: It was common ground that R did not offer C an appeal. C complained about this omission in his Claim paper apart, though it wasn’t a matter he raised in his submission. In his Claim it is stated: “The respondent unreasonably failed to offer the claimant an opportunity to appeal its decision. In the particular circumstances, this was important, not least given Ms McKenzie’s continued involvement in lacking fair and sufficient impartiality to matters”. As discussed above, the point about AM’s impartiality was not pursued by C at the hearing. Mr Milne cited Gwynnedd Council v Barratt & Hughes [2021] E&W CA Civ Div 1322 as authority for the proposition that the absence of an appeal does not necessarily make a dismissal unfair and is just one of many factors to be considered. He said that it was not unreasonable in this case. There was, said Mr Milne, no evidence that R had failed to consider any relevant matter. He also pointed out that R was a small business and that each of the directors was involved at one time or other with the process pre-dismissal.[115]On the particular facts of this case, I agree that an appeal would have served no purpose. R was a small employer. It had reached a decision which lay within its managerial prerogative with respect to the requirement for the restructure. Neither it nor M&F had any vacancies to which C could be redeployed. It had considered but rejected C’s only proposal which was that his post be retained but subjected to a wage freeze. Due to annual leave commitments, it was reasonable that all three directors had been involved in the process and the original decision. In those circumstances, an internal appeal to any or all of the same directors would have had an air of artificiality and would likely have been criticised by C as a ‘tick box’ exercise. Nor was it reasonable in the circumstances that R should have appointed an external consultant to hear an appeal. Any such consultant could not realistically interfere with the unanimous decision of the directors to remove the post and there was no change with respect to alternative employment that might have been revisited on appeal.[116]Determination of fairness for the purposes of S.98(4) in all the circumstances: Assessing the process as a whole, I conclude that R did not act reasonably in all the circumstances in treating its reason as a sufficient reason to dismiss C. C was, therefore, unfairly dismissed.[117]There were significant procedural flaws in the approach taken which lay outside the range of reasonable responses open to an employer of R’s size, type and resources. The most significant defects in R’s procedure were(1) the stark manner in which notice of the redundancy situation was provided in AM’s text messages of 2 August 2026 with no initial explanation of the opportunity for consultation and no indication that the proposal was still at a formative stage;(2) the confusing correspondence repeatedly referring to redundancies in the plural with the scope to mislead as to exactly what changes were proposed;(3) the lack of confirmation about the position that R had not identified any live vacancies which could be considered as alternatives and that none existed at M&F either; and(4) the restriction of the consultation on possible alternatives to exclude M&F’s operation in Paisley.[118]I gave full consideration to the other surrounding circumstances including that some of the impact of the procedural shortcomings was mitigated to a degree by subsequent steps or discussions. I also took into account that R is a small employer with limited administrative resources (as too is M&F). I noted, however, that the directors had access to and used a specialist HR resource throughout. I concluded ultimately that these weaknesses were not trivial in nature; they cast a shadow over the process and left C with real cause for doubt about the genuineness of the consultation and with a measure of confusion about the precise nature of R’s proposal and its vacancy situation. On the other hand, C’s criticisms about the tardiness and accuracy of the meeting minutes and the failure to offer an appeal weighed much more lightly in my assessment of reasonableness. In the particular circumstances, these matters were relatively minor and they would not of themselves have led me to conclude the dismissal was unfair in the absence of the other defects.
Remedy
[119]There is no entitlement to a basic award. For the purposes of deciding any entitlement to a compensatory award, I begin by considering what financial losses the dismissal has caused C.[120]C was dismissed on 22 August 2022. He has remained unemployed to the date of the hearing. C says he has been unfit for work in any new employment essentially throughout that period. He maintains, however, that he would have been fit to return to work with R. Mr Milne submitted that C’s suggestion he could have stayed in a desk-based role with R was an attempt to sidestep an obvious flaw with this case, namely that if he was unable to return to work, his compensation would be affected by his absence. Mr Milne said that C had not discharged the burden on him to prove he was unable to work due to ill health. He argued that C could have found commensurate desk-based work within two months.[121]C made no attempts to seek alternative employment for 6 or seven months after his dismissal. At that stage, the only evidence before me of job seeking activity was that he made two applications which were unsuccessful. There was also evidence that C declined a role offered in September or October of 2023 because he did not feel fit to undertake it. In such circumstances, it was for C to explain why his failure was reasonable (Hilco Capital Ltd v Harrington).[122]On the balance of probabilities, I accept that C’s reason was that he did not feel fit to work in that period. It was not disputed that he had a broken foot, nor that he also had a history of suffering from back pain which had caused him to be absent previously during his employment with R. I accept C’s evidence that in addition to these conditions, he also experienced a decline in his mental health. I accept that this was something he was struggling with since before the dismissal following a family bereavement earlier in 2022 and that the chronic pain contributed to a decline in his mental health. It is true that there is a dearth of contemporaneous medical evidence and that the reports produced to the Tribunal from C’s doctor and his Physio were prepared much later. Nevertheless, I accept that from October 2022 onwards, as recorded in the Physio’s report, C was reporting to his physiotherapist high intensity pain and functional limitation in his foot. I also accept C’s evidence that his initial medical advice was that he would require an operation but that this medical assessment subsequently changed.[123]I accept, on the balance of probabilities that, having regard to his various health complications, it was not unreasonable for C to decline to seek alternative employment in the period following his dismissal. I am not satisfied that C unreasonably failed to mitigate his losses.[124]I do not accept, however, that C was or, but for his dismissal, would have been, fit to continue working for R in his role in the period from 22 August 2022 despite feeling unfit to apply for or undertake work of any sort anywhere else. I agree with Mr Milne that C’s position is wholly untenable in this respect. C suggested that he would have been a ‘health and safety risk’ to any other garage where he might have obtained a role. I found C’s explanation as to why he said his health situation would not have rendered C incapable of undertaking his role with R but would not have allowed him to work elsewhere unconvincing. Essentially, he said that, given he was established in his role with R, he would have more leeway to have the necessary adjustments to keep him in the workplace. For C, this argument is a double-edged sword. If he was fit to work with adjustments, then he was fit to apply for roles of a kind he could accommodate with his conditions and / or to apply for positions and seek adjustments from prospective employers as part of the process.[125]In light of the conditions as C describes them in the period post August 2022 and as supported by the (albeit non-contemporaneous) medical reports, I conclude on balance that he would not have been fit to continue to attend work at R on any sustained basis if he had not been dismissed. I find on balance that he would very quickly have gone off sick. There was an element of physicality to C’s role which entailed fitting tyres, traveling to City Building and working with the tyre stock. Had he not been dismissed, he would have continued to suffer chronic pain from his fracture as well as the other back and leg pain he experienced and the decline in his mental health resulting from his pai and his bereavement would have continued to take their toll. I note in this regard that when C did seek to return to work on 1 August 2022, he did so, on his own account, long before the expiry of his GP’s sick line which had certified him unfit for work. I further note that C did not, in the period from 1 August to 22 August 2022, attend work or undertake the duties of his post as R did not insist that he do so pending the consultation process. There is little evidence on which to base a finding that C would have been fit to remain in work and substantial evidence, mostly from C himself, that his health conditions were such that he would have been unfit to do so.[126]I find, therefore, that C’s losses in the period from 22 August 2022 would, therefore, have been limited to SSP at the rate of £99.35 per week to the extent he remained in R’s employment and had not exhausted his SSP entitlement. However, standing my findings below on the application of the Polkey principle in this case, it is unnecessary to calculate when C’s SSP entitlement would have expired.[127]I consider next whether there a chance C would have been fairly dismissed anyway if a fair procedure had been followed or for some other reason (the Polkey principle). I find that, if R had followed a fair procedure, there is a 100% chance R would have dismissed C fairly for redundancy (or if I am wrong about the technicalities of the application of section 139, for SOSR).[128]R was entitled to decide to reorganise its business and to remove C’s post, albeit in order to dismiss fairly it ought reasonably have consulted with C about the proposal when it was at a formative stage. Had R done so, and had R clearly explained the situation with respect to the absence of any vacancies within R or associated employer, M&F, I am satisfied that there is no doubt that C’s dismissal would in any event have ensued. At the hearing, there was no compelling evidence to tempt me to a different conclusion. C did not, either during the process at the time or at the Tribunal hearing identify any alternative proposal which would have led R to reconsider. Although he suggested during his submissions that he might have been capable of performing n administrative job or even a driver’s role in the parts department at M&F, no such vacancy existed and I am satisfied that R would not have been inclined to create one, given the economic drawbacks. R’s duty to make reasonable efforts to look for alternative employment for C would not have extended to creating a new vacancy within either company to undertake work they did not require covered. The process would not have taken any longer if R had proceeded without the procedural defects in the process. I find that, with a reasonable approach to the correspondence and communications, there is a 100% that R would have dismissed C fairly by 22 August 2022.[129]As I have found C would have been fairly dismissed for redundancy on 22 August 2022, it is not necessary to go on to grapple with the question of when C would have been fairly dismissed on capability grounds due to his ill health.[130]The compensatory award is, therefore, reduced to nil pursuant to the Polkey principle. As C has no entitlement to a basic award, no award of compensation is made.