Employment Judge McGoughIn person for claimantDate 21 January 2025
JUDGMENT
The Claimant’s complaint of unfair dismissal fails and is dismissed.
REASONS
[1]The Claimant was employed by the Respondent as a Technician. She brought a complaint of unfair dismissal contrary to section 94 of the Employment Rights Act 1996 (ERA).[2]The Respondent's position is that the Claimant was fairly dismissed by reason of[3]Early conciliation started on 20 June 2024 and ended on 17 July 2024. The claim form was presented on 17 July 2024. The Respondent submitted its response on 21 August 2024.
THE HEARING
[4]The Claimant represented herself and the Respondent was represented by Ms Sandra Berns of Centric HR Limited. The parties had not agreed a bundle of documents, so there were two bundles before the Tribunal. The Claimant's bundle which ran to 51 pages (Claimant Bundle) and the Respondent's bundle which ran to 83 pages (Respondent Bundle). In the hearing it was agreed to refer to the pdf numbers for the Claimant Bundle, which was not paginated.[5]I heard evidence from the Claimant and one witness from the Respondent: Mr Dale Greatrix, one of the two directors of the Respondent.[6]The Claimant had not prepared a formal witness statement for herself. The Tribunal proposed that the document the Claimant had prepared at pages 19 - 28 of the Claimant Bundle be treated as her witness statement This approach was agreed by the Claimant and the Respondent.[7]I heard submissions from the Claimant and Ms Berns on behalf of the Respondent. THE ISSUES The issues to be determined were identified as follows:
THE ISSUES
[8]What was the reason or principal reason for dismissal? The Respondent says the reason was redundancy.[9]If the reason was redundancy, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the Claimant. The Tribunal will usually decide, in particular, whether:9.1 the Respondent adequately warned and consulted the Claimant;9.2 the Respondent adopted a reasonable selection decision, including its approach to a selection pool;9.3 the Respondent took reasonable steps to find the Claimant suitable alternative employment;9.4 dismissal was within the range of reasonable responses[10]If applicable, in terms of remedy:10.1 Should the Tribunal order reinstatement or re-engagement?10.2 If so, on what terms?10.3 If there is a compensatory award, how much should it be?10.4 What basic award is payable to the Claimant, if any?10.5 Would it be just and equitable to reduce the basic award because of any conduct of the Claimant before the dismissal? If so, to what extent?
FINDINGS OF FACT
[11]The Respondent’s business is a hair dressing salon in Aldridge, trading under the name of Francesco Group Aldridge. The Respondent is a franchisee of the 'FG Hair Group' and provides hair cutting, styling and colour services. The Respondent's business is run by husband and wife, Dale and Gemma Greatrix and at the time of the Claimant's dismissal it employed 8 people, including the Claimant and including Mr and Mrs Greatrix. It is set out in the Claimant's employment contract (page 23 of the Respondent Bundle) and the Claimant agreed in her oral evidence that she is employed by the Respondent, not the wider FG Hair Group.[12]The Claimant commenced employment with the Respondent on 23 March 2022 and performed the role of Technician until her dismissal on 22 May 2024. The Claimant had had a previous period of employment with the Respondent between 12 September 2017 and 29 May 2021. Given the almost 10 month break in the Claimant's service, the Tribunal finds that this previous period of employment was not relevant to the Claimant's claim. The contract of employment[13]The Claimant’s contract of employment was shown at pages 23 – 31 of the Respondent Bundle. She was employed to work 37 hours per week, Wednesday to Saturday, which included a 30 minute unpaid break each day. The Claimant was therefore paid for 35 hours per week.[14]At the time of her dismissal she was being paid at the hourly rate of £11.44 (the National Minimum Wage). The Claimant was also entitled to commission depending on meeting commission targets. The Claimant's commission target was not set out in her employment contract. In his oral evidence Mr Greatrix explained that the weekly commission target for the Claimant's role was takings of £1,600 per week. The Claimant’s role[15]It is not disputed between the parties that the Claimant's role was as a standalone colour technician. Whilst the Claimant was qualified to cut hair, she specialised in colour treatments. It was not disputed that this was the Claimant's preference. She would help out other stylists with cutting and styling if needed, for example if a stylist was running behind, but this formed a very small part of her activity. Clients were not booked in with the Claimant for cutting or styling; the Claimant's appointments were for colour treatments. The Claimant confirmed in her oral evidence that she was not comfortable cutting hair.[16]The Claimant's role was different to the other staff working in the Respondent's salon. Page 60 of the Respondent Bundle sets out the staff roles at the time of the Claimant's dismissal. Excluding the two apprentices, there were 4 members of staff (including Mr & Mrs Greatrix) whose roles were cutting and colouring (referred to by the Respondent as 'multi-skilled'), one member of staff (a Senior Stylist) whose role was cutting, and the Claimant, whose role was colouring. This was not challenged by the Claimant. Respondent's financial position and downturn in colour work[17]Mr Greatrix explained in his oral evidence that the Respondent's business had been financially impacted by the Covid pandemic, the cost of living crisis, the energy crisis and increases in the National Minimum Wage. The Claimant questioned this given that she was recruited in March 2022, two years after the start of the Covid pandemic. Mr Greatrix explained that business was starting to build as the country came out of the Covid pandemic, and this is why the Claimant was recruited. He went on to explain that it was after this point, due to cost of living pressures, that fewer clients were booking appointments for cutting and colouring services, and that regular clients were returning less frequently. Mr Greatrix went on to explain that this had resulted in a 40 – 50% downturn in turnover, with little profit. The Tribunal accepts Mr Greatrix's evidence on this point. The Respondent's accounts dated March 2024 at page 58 of the Respondent Bundle show an annual profit of £24,490 and debts of £169,447. An accounts summary at page 59 of the Respondent Bundle shows a reduction in monthly profit from £3,982.14 in March 2023 to £119.07 in March 2024.[18]Mr Greatrix also explained, which is accepted by the Tribunal, that there had been a drop in demand for colour treatments since around August 2023. Demand had been slowly dropping from that time until the time that the Claimant was put at risk of redundancy in May 2024. This is supported by information in the minutes of a meeting between Salon Directors at the 'Francesco Hair Salon' franchise (page 64 of the Respondent Bundle). Section 2 of the minutes state that "Group Colour % remains at low 30's with a target of 40%". In his oral evidence, Mr Greatrix confirmed that this was a problem across the group and the 40% target was set by the Respondent's franchisor. Mr Greatrix explained that in his view at the time, if the demand carried on dropping, there would be no standalone colour technician role.[19]Mr Greatrix explained, and the Tribunal accepts, that the Respondent was trying to pre-empt where the Respondent's business would go in the future. The Tribunal accepts Mr Greatrix's evidence that, because of the way the Respondent's business was going, he and Mrs Greatrix decided that they needed staff to be multi-skilled, that is, performing cutting, styling and colouring services so that they were as fully utilized as possible during the working day. Where a member of staff could both cut and colour, they could fill their time up with colours and cuts throughout the day.[20]It is not disputed between the parties that the Claimant's role was to perform colouring services. Mr Greatrix explained, which was not challenged by the Claimant, that:20.1 being a standalone colour technician meant that the Claimant had a number of hours in a working day where she would not be utilized;20.2 on some days there would only be 3 – 4 colour treatments for the Claimant to carry out which could mean 4 hours of 'down time', i.e. time not utilized by the Claimant, because she was a standalone colour technician. On a Saturday this would be out of a total of 9.5 hours (the Claimant worked 9 am to 7 pm with a 30 minute unpaid break – set out in the Claimant's employment contract at page 25 of the Respondent Bundle);20.3 there was more demand for cutting services than colour treatments, because clients needing cutting services would come back more frequently;20.4 multi-skilled staff could fill up their time with cuts because there were more cutting appointments. The redundancy process[21]The Respondent asked the Claimant to attend a meeting on 8 May 2024, the Claimant's first day back at work after a short holiday. The meeting was attended by the Claimant, Mr and Mrs Greatrix, and the Respondent's HR consultant, Sandra Berns. At the meeting, the Claimant was informed that her role was at risk of redundancy. The Claimant was told, and it was confirmed to her by letter from Mr & Mrs Greatrix dated 8 May 2024, that this was because there was not enough colour work available – there had been: "a considerable downturn in demand as a result of the rise in the cost of living. Fewer people are using this service; regular customers are not returning as often. This is in addition to our rising costs of overheads. In particular, the responsibilities involved in your role as [sic] have reduced to the point where there is not enough work to cover your salary. Consequently, even looking at the prospects for future bookings, it is unlikely that we will [be able to sustain your role OR have sufficient workload for your role." See page 32 of the Respondent Bundle.[22]In that letter, the Claimant was told that there would be a period of consultation, which the Respondent expected would last for approximately two weeks. She was informed of the dates on which consultation meetings had been arranged (14 and 21 May 2024) and that the purpose of the meetings was to "review the situation and discuss your proposals, as well as any questions or concerns you have". The letter also informed the Claimant that: "Throughout this period, I will meet with you to discuss alternatives whereby your employment could be protected. I ask you to consider and put forward suggestions at our consultation meetings which you feel are relevant to the aim of avoiding redundancy."[23]The Claimant was informed that she could be accompanied by a colleague or a trade union representative in the consultation meetings that were arranged for 14 and 21 May 2024.[24]On 11 May 2024 the Respondent wrote to the Claimant placing her on paid leave for the remainder of the consultation period stating this was because the Claimant had told clients about the redundancy consultation and spoken to her employer disrespectfully (page 34 of the Respondent Bundle). The letter mentions the situation being distressing for both parties and asks the Claimant not to contact Mr or Mrs Greatrix by email. It also reminds her not to speak to clients about the situation. In her oral evidence, the Claimant said that to the best of her knowledge she had only spoken to one other staff member, Andy, about the situation. She explained that she didn't speak to any clients about it and she refuted that she was disrespectful to Mr or Mrs Greatrix. She explained that her understanding was the atmosphere in the salon was uncomfortable and that was the reason she was placed on paid leave. The Respondent has not provided any evidence about what the Claimant said to Mr or Mrs Greatrix, which clients it alleges the Claimant spoke to or what it alleges she said to them. The Tribunal accepts the Claimant's evidence that the atmosphere in the salon was uncomfortable and (as outlined in the letter of 11 May to the Claimant) that situation will have been distressing for both parties, but the Tribunal does not find, on the evidence provided, that the Claimant told clients about being put at risk of redundancy.[25]In the same letter, the Claimant was invited to a redundancy consultation meeting on 15 May 2024, to be conducted remotely over Zoom. The letter stated that the meeting would be recorded and explained that the purpose of the meeting was "to discuss whether there were alternatives to redundancy to mitigate being at risk of redundancy and avoid this situation where possible." The letter also reminded the Claimant she could be accompanied by a colleague or a trade union representative if she wished.[26]The first redundancy consultation meeting was held on 15 May 2024 and the notes of the meeting are at pages 36 – 38 of the Respondent Bundle. The meeting was attended by the Claimant, Mrs Greatrix and Ms Berns. At the start of the meeting the Respondent outlined the reasons why redundancy was being considered and why the Claimant was at risk of redundancy (page 36 of the Respondent Bundle): "Trading circumstances not good/cost of living increased and overheads. No sustained demand for colour technician – current customers not re-booking with regular frequency Not enough colourist work for your role. Cannot meet costs of salary."[27]The Claimant disagreed with some of this, stating that she felt there was enough work for her role. The parties then discussed roles carried out by other members of staff and whether they were multi-skilled. The Respondent made three suggestions as potential alternatives as set out in the notes of the meeting: "1. Gemma suggested being multi-skilled and being able to cut hair would be beneficial as Shanna would be able to pick up cutting and colouring for her clients. 2. Gemma could consider short-term working or lay-off whilst the demand for colour was low – however, she did not seem to think this would resolve the situation in 4-5 weeks and redundancy could still apply anyway. 3. Gemma would consider Shanna working across 5 days instead of 4. Tuesdays were busier and Shanna could pick up some of the colour work."[28]The Claimant responded as follows, as also set out in the notes of the meeting (pages 36 & 37 of the Respondent Bundle): "1. Shanna stated she did not enjoy cutting and did not wish to do this. In any case it was her opinion that the cost of future courses and time out would defeat the object for the salon. 2. Shanna agreed that lay off would not resolve the issue. 3. Shanna stated that Tuesdays were quiet in her opinion and that working on this day would not help."[29]According to the notes of the meeting, which have not been challenged by the Claimant, there was a further discussion about other solutions in the context of the Respondent having to take into account the running of the business, overheads, workload and management. Mrs Greatrix said she would be happy to give the Claimant time out and courses to refresh her cutting skills if the Claimant was willing to carry out cutting services. The Claimant agreed in her oral evidence that alternatives were discussed with her in the consultation meeting and she explains that she put forward her arguments against the alternatives. In particular, she disagreed that working on Tuesdays would help, because she understood that there had been multiple occasions where members of staff had found that Tuesdays were quiet.[30]Other matters discussed in the meeting were the Claimant's length of service, the length of her notice period, the amount of holiday she had taken and the amount of statutory redundancy pay that would be payable to the Claimant if she was dismissed for redundancy (pages 37 & 38 of the Respondent Bundle).[31]The Respondent sent a letter to the Claimant on 16 May 2024 enclosing the notes of the first consultation meeting the day before, confirming the arrangements for a second consultation meeting on 21 May 2024, and enclosing a schedule outlining payments that would be due to the Claimant if she was dismissed on the grounds of redundancy (pages 39 and 40 of the Respondent Bundle).[32]The second consultation meeting was held on 21 May 2024 via Zoom. The Claimant joined 11 minutes after the arranged start time (due to technical issues dialing in), by which time Mrs Greatrix had left the call. The meeting was therefore attended by Ms Berns on behalf of the Respondent. The notes of the meeting are at pages 41 – 44 of the Respondent Bundle and a transcript of the call is at pages 45 – 54 of the same bundle.[33]Ms Berns re-capped the reasons why the Claimant's role was at risk of redundancy (see paragraph 26 above). The Claimant disagreed that the Respondent wasn't busy enough on the basis that the Respondent had just (in March 2024) taken on a new stylist. She explained that she didn't enjoy cutting but she would do it if, for example, a stylist is running behind. She explained she knew how the business ran and that she knew she was covering her wage. She also explained to Ms Berns that she had recently seen some clients when she was out shopping and that Mr Greatrix had told these clients she was off sick, which the Claimant found awkward given that she was not off sick. She told Ms Berns that for this reason she was happy to take redundancy although she was not happy with the statutory redundancy payment she had been offered.[34]Ms Berns told the Claimant that Mrs Greatrix had explained to her the issue was not just the Claimant's wages, but about being able to multitask. The Claimant mentioned she had spoken to ACAS and Ms Berns said she would be happy to speak to ACAS about the redundancy pay calculation. She explained to the Claimant that her break in service in 2021 meant that the Claimant had two years' complete service and that the calculation she had provided to the Claimant was the Claimant's legal entitlement. The Claimant suggested that the Respondent could pay more than the legal minimum, to which Ms Berns responded that the Respondent did not have a policy to pay more than the legal minimum and that this would not be possible given the reason for the redundancy being necessary was affordability.[35]The Claimant went on to question the financial reasons given for the proposed redundancy, raising with Ms Berns the cost of stock and the cost of sending other staff on colour courses if there is not enough colour work in the salon. The Claimant raised this again in her evidence and when cross-examining Mr Greatrix. Mr Greatrix explained in his oral evidence, which the Tribunal accepts, that the colour courses were not a cost for the Respondent. This was because:35.1 The salon was required, under its franchise agreement with FGH, to send new stylists (that is, the stylist recruited in March 2024) on certain training courses so they are FGH trained. This training is provided by FGH at no extra cost to the Respondent – it is covered by the franchise administration fee paid by the Respondent;35.2 The two trainees are required to attend courses as part of their NVQ qualification. This cost is also covered by FGH; and35.3 The Wella course attended by Mrs Greatrix was also free of charge. This provided by Wella without charge after the Respondent left L'Oreal.[36]Towards the end of the meeting, Ms Berns asked the Claimant if there were any other 'Francesco' salons she thought she could potentially work at. The Claimant mentioned she could potentially go to Streetly or Walsall, and she would see what they had when she applied for jobs. She went on to repeat that she was "more than happy to take the redundancy, but I just want to take in [sic] consideration, obviously, the pay." (Page 52 of the Respondent Bundle.) In her oral evidence, which is not disputed, the Respondent did not follow up with the Claimant about roles in other 'Francesco' salons.[37]Ms Berns explained the payments that the Claimant would receive if she was made redundant, including two weeks' pay in lieu of working her notice period. The meeting concluded with Ms Berns explaining she would pass on all of the Claimant's comments to Mr and Mrs Greatrix and that she would have an answer from them by the following day (page 53 of the Respondent Bundle). Redundancy decision and right of appeal[38]In his oral evidence, which the Tribunal accepts, Mr Greatrix stated that he and Mrs Greatrix had hoped that the Claimant would take on the multi-skilled role that was being offered to her as an alternative to redundancy. Given that she had turned down the alternative options that had been presented to her, Mr and Mrs Greatrix decided that the Claimant's role was redundant due to there not being enough colour work to sustain a stand-alone role.[39]Mr Greatrix requested that Ms Berns write to the Claimant confirming the termination of her employment on the grounds of redundancy. The letter is at pages 55 and 56 of the Respondent Bundle. In the letter, sent on 22 May 2023, the Respondent informed the Claimant that she was not required to work her notice and that the termination date was therefore 22 May 2024. The Claimant was informed in the letter that she would receive a payment in lieu of her notice period. The letter also set out that the Claimant had a right of appeal and that she should she wish to appeal she should email Anya Dellicompagni (setting out the email address) by 30 May 2024 outlining her grounds of appeal. Ms Dellicompagni works for the Respondent's franchisor, FG Hair Group.[40]Following the termination of her employment, the Claimant did not email Ms Dellicompagni. However, in her oral evidence, which the Tribunal accepts, the Claimant explained that she called Ms Dellicompagni who informed her that the matter was a matter for the Respondent. The Claimant did not follow this up with the Respondent or Ms Berns, but I accept that the Claimant did attempt to contact Ms Dellicompagni as set out in the letter of 22 May 2024, albeit not by email as the letter directs. It is not clear why Ms Dellicompagni responded as she did to the Claimant if she was the person set down by the Respondent to deal with the Claimant's appeal. Claimant accessing the Respondent's computer system[41]On 8 & 9 May 2024, the Claimant accessed the Respondent's computer system 27 times via her mobile telephone. Some of these occasions were in the evening or late evening after the salon had closed. When asked about this in cross-examination, the Claimant agreed she had accessed the system and explained that she had authority from Mr and Mrs Greatrix to access the system in this way (they had given her a code to do so). This was not disputed by the Respondent. The Claimant went on to explain that she was looking at who the Respondent was moving her clients to if she was to be made redundant. She explained that all she could see on the system was clients' names and what they were booked in for. She could not access their personal details, she did not have authority for that. The Tribunal accepts the Claimants evidence on this point.[42]On the morning of 9 May 2024, the Claimant took pictures on her mobile phone of a computer screen in the salon showing her "dashboard" on the Respondent's computer system for the months ending 29 February 2024 and 30 April 2024. Among other things, the "dashboard" data showed "re-booking rates" of 52.83% and 59.57%. See pages 43 and 44 of the Claimant Bundle. At the top the screen, it showed that the account logged into the system was Mrs Greatrix's account. In cross examination the Claimant was asked why she had logged into the salon computer system as Mrs Greatrix. The Claimant explained that it was on a salon computer, that whoever was in the salon first would log on and didn't then log out, and that people in the salon would use the computer whoever had logged in with their account first. The Claimant also explained that it must have been Mrs Greatrix who had logged in because the Claimant did not know Mrs Greatrix's pin to log in. The Tribunal accepts the Claimant's evidence on this point.[43]In the late afternoon of 9 May 2024, the Claimant took further photographs of financial data on the salon computer system, although in these pictures it cannot be seen which account was logged in to the system (pages 37 – 40 of the Claimant Bundle). These screenshots showed the amount of takings by each member of staff for different periods of time (the time periods themselves were not shown on the screenshots).[44]In cross examination it was put to the Claimant that she was accessing the Respondent computer system at those times in order to access client information. This was strongly refuted by the Claimant, explaining she did not have the ability to access to the clients' personal details, as Mr & Mrs Greatrix had not given her that authorization on the system. The Tribunal is satisfied that, following the meeting the day before, when the Claimant was told she was at risk of redundancy due to a downturn in colour work, the Claimant was accessing the computer system to find information about her work statistics for her to use in the redundancy process. There is no evidence that the Claimant accessed or copied clients' personal details when she accessed the computer system. Claimant's new business[45]After the termination of her employment, the Claimant set up her own business, a small salon offering colour, cutting and styling services (page 72 of the Respondent Bundle). The Claimant signed a rental agreement on 13 June 2024, and the rental period started the same day. The Claimant explained in her oral evidence, which the Tribunal accepts, that her new salon is a small rented room that is part of a larger established salon, consists of 3 hairdressing chairs and a backwash, and took approximately three days to set up.
THE RELEVANT LAW
[46]An employee has the right not to be unfairly dismissed by their employer. Sections 94 and 98 ERA, provide: 94 The right An employee has the right not to be unfairly dismissed by his/her employer. 98 General(1) In determining …. whether the dismissal of an employee is fair or unfair it is for the employer to show- (a) the reason (or if more than one, the principal reason) for the dismissal; and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it— … (c) is that the employee was redundant, or … (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)- (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and (b) shall be determined in accordance with equity and the substantial merits of the case.[47]If a dismissal is asserted to be on the grounds of redundancy, the employer must show that the employee was in fact redundant under section 139(1) ERA. The relevant section here is section 139(1)(b), namely: 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— … (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. … (6) In subsection (1) “cease” and “diminish” mean cease and diminish either permanently or temporarily and for whatever reason.[48]In determining whether a dismissal is on the grounds of redundancy, a Tribunal must decide (as set out in Safeway Stores plc v Burrell [1997] IRLR 200, which was approved by the House of Lords in Murray & another v Foyle Meats Ltd (Northern Ireland) [1999] IRLR 562):48.1 Was the employee dismissed?48.2 If so, had the requirements of the employer's business for the employees work of a particular kind ceased or diminished or were they expected to cease or diminish?48.3 If so, was the dismissal of the employee caused wholly or mainly by the cessation or the diminution? Only if the answer to all three stages is yes, will there be a redundancy dismissal.[49]A Tribunal will not look behind the employer's decision or require it to justify how or why the diminished requirement has arisen, provided it is genuinely the reason for the dismissal – Moon v Homeworthy Furniture (Northern) Ltd [1976] IRLR 298.[50]Reference in s139 ERA to "work of a particular kind" means the requirements of the business for employees to do work of a particular kind, rather than work for which a particular employee was employed. That is, the focus is on the role, not the individual employee(s). See Murray & another v Foyle Meats Ltd (Northern Ireland), above.[51]In determining the question of reasonableness it is not for the Tribunal to impose its standards and decide whether the employer should have behaved differently. Instead, it has to ask whether “the dismissal lay within the range of conduct which a reasonable employer could have adopted” as set out in the case of Iceland Frozen Foods v Jones [1982] IRLR 439.[52]Among the relevant factors that a reasonable employer may expect to consider in a redundancy context are:52.1 Whether the selection criteria are objectively chosen and fairly applied;52.2 Whether the employees were warned and consulted about the redundancy;52.3 Whether any alternative work was available. (See Williams v Compare Maxam Limited 1982 ICR 156.)[53]The leading case on reasonableness is Polkey v AE Dayton Services Ltd 1988 IRLR 503, in which the House of Lords held that an employer will normally not act reasonably, and a dismissal will therefore be unfair, unless it:53.1 Warns and consults about the proposed redundancy;53.2 Adopts a fair basis on which to select for redundancy; and53.3 Takes such steps as may be reasonable to avoid or minimize redundancy by deployment within its own organisation (that is, consider suitable alternative employment).[54]The size and administrative resources of the employer will be relevant to the question of reasonableness and could affect the nature and degree of formality of any consultation. However, it does not excuse a small employer from failing to consult at all.[55]The “range of reasonable responses” test applies not only to the actual decision to dismiss, but also to the procedure adopted by the employer in putting the dismissal into effect - Sainsburys Supermarkets Ltd v Hitt [2003] IRLR 23.[56]The reasonable response test applies to the "pool" from which the redundancies are to be drawn - Hendy Banks City Print Limited v Fairbrother and others EAT 0691/04. The question of how the pool should be defined is primarily a matter for the employer to determine. It would be difficult for the employee to challenge it where the employer has genuinely applied his mind [to] the problem – Taymech v Ryan EAT 663/94.[57]An example of an employer reasonably deciding to place an employee in a "pool" of one is Wrexham Gold Club Co Limited v Ingham EAT 0190/12, whereby an employee who was the only carrying out their particular role (a golf steward) was placed in a pool of one.[58]Fair consultation will involve: consultation while proposals are at a formative stage; adequate information on which to respond; adequate time in which to respond; and conscientious consideration of the response to the consultation – R v British Coal Corporation and Secretary of State for Trade and Industry, ex parte Price [1994] IRLR 72.[59]Tribunals must not put themselves in the position of the employer and consider what they themselves would have done in the circumstances. A Tribunal must not decide what it would have done if it had been management, but whether the employer acted reasonably. A decision must not be reached by a process of the Tribunal substituting itself for the employer and forming an opinion of what it would have done had it been the employer (see Grundy (Teddington) Ltd v Willis 1976 ICR 323, QBD; and HSBC Bank plc (formerly Midland Bank plc) v Madden 2000 ICR 1283, CA.[60]The ACAS Code of Practice on Disciplinary and Grievance Procedures expressly states that it does not apply to dismissals for redundancy (see second paragraph of the Foreword to the Code). There is no ACAS Code of Practice in respect of[61]The absence of an appeal does not of itself made a redundancy dismissal unfair. If the original selection for redundancy was in accordance with a fair procedure, the absence of an appeal is not fatal to an employer's defence. However, it is one of the factors to be considered in determining fairness and whether the employer's approach fell with in the 'band of reasonable responses' (see Gwynedd Council v Barratt 2021 EWCA Civ 1322).
CONCLUSIONS
[62]The Tribunal found both the Claimant and Mr Greatrix to be credible witnesses who were truthful in their evidence to the Tribunal. There were differences between the parties about the Respondent's reason for putting the Claimant at risk of redundancy and the Claimant's reason for turning down alternatives that were offered by the Respondent. Both parties had clearly, and understandably, found the situation leading to the redundancy process and the process itself difficult, and each party's perception of the other's decisions and actions was sometimes viewed through that prism. This may at times have led to both the Claimant and the Respondent reaching certain conclusions about the intentions of the other, however the Tribunal found both the Claimant and Mr Greatrix to be credible witnesses. What was the reason or principal reason for dismissal[63]The first issue the Tribunal is required to decide is whether the reason or principal reason for the Claimant's dismissal was redundancy, and therefore a potentially fair reason in accordance with section 98(1) and (2) ERA.[64]The first part of this issue is whether the requirements of the Respondent for employees to carry out work of a particular kind had ceased or diminished or were expected to cease or diminish. The Tribunal concludes on the facts found above that this has been established. The Respondent had experienced a downturn in demand for the work carried out by the Claimant, namely, specialised colour treatments for the reasons set out at paragraphs 18 - 20 above.[65]The second part of this issue is whether the Claimant was dismissed wholly or mainly because of the diminution in the requirements for colour work. The Tribunal's conclusion on this point is that this was the case. The Respondent needed to optimize the working time of the employees working in the salon to help improve its financial position and decided that to do this it needed employees to carry out multiskilled roles. The Claimant was the only stand-alone colour technician and had periods of downtime which the Claimant wanted to optimize by the Claimant carrying out cutting services in those "down" periods. (Paragraphs 19 and 20).[66]As set out in Moon v Homeworthy Furniture (Northern) Ltd (paragraph 49 above), the Tribunal need not look behind an employer's decision or require it to justify how or why the diminished requirement has arisen, provided it is genuinely the reason for the dismissal. Furthermore, it is the Respondent that has the discretion to determine how it wishes to organize the work carried out by its employees. It is not for the Tribunal to substitute its view on the best way to do this.[67]The Tribunal therefore finds that the test in Safeway Stores plc v Burrell (paragraph 48 above) is satisfied and therefore that the reason for the Claimant's dismissal was Was the dismissal fair[68]The second issue the Tribunal is to decide is whether the Claimant's dismissal was fair or unfair pursuant to section 98(4) ERA. When considering this question, the Tribunal must determine whether the Claimant's dismissal was within the range of conduct that a reasonable employer could have adopted (Iceland Frozen Foods v Jones, paragraph 51 above), often referred to as the "band of reasonable responses".[69]In particular, the Tribunal must decide whether the Respondent:(a) warned and consulted about the proposed redundancy;(b) adopted a fair basis on which to select for redundancy; and(c) took such steps as may be reasonable to avoid or minimize redundancy by deployment within its own organisation. (Polkey v AE Dayton Services Ltd, paragraph 53 above.) Each of these is dealt with in turn below. (a) Did the Respondent warn and consult the Claimant?[70]The Tribunal's findings of fact show that the Respondent warned the Claimant that her role was at risk of redundancy in the meeting on 8 May 2024 and this was followed up in a letter on the same date. In her evidence, the Claimant submitted that it was unfair for her not to have been given the opportunity to be accompanied at this meeting.[71]The Tribunal does not agree with this submission. The purpose of this meeting was to inform the Claimant that her role was at risk of redundancy and that there would be a redundancy consultation process which the Respondent expected would last around two weeks and involve two redundancy consultation meetings. Furthermore, whilst it may be best practice for an employer to allow an employee to be accompanied at a redundancy consultation meeting, it is not a requirement under the 'ACAS Code of Practice on disciplinary and grievance procedures', which does not apply to redundancy consultation meetings. The Tribunal is therefore satisfied that the Respondent acted reasonably and within the band of reasonable responses in respect of this meeting and the letter which followed.[72]The Respondent then carried out a consultation process which consisted of two consultation meetings with the Claimant on 15 and 21 May 2024, at which the Claimant was offered the opportunity to be accompanied by a trade union representative. The Tribunal is satisfied that these meetings took place while the proposals were at a formative stage and that the Respondent gave the Claimant adequate information about its proposals (that is, the downturn in colour work and the proposal that the Claimant fill her downtime with cutting services) – see paragraphs 21, 22 and 26 above. The first consultation meeting took place one week after the Claimant had been informed her role was at risk of redundancy and the second consultation meeting took place 6 days after the first consultation meeting (paragraphs 26 - 36 above). On that basis, the Tribunal is satisfied that the Claimant was given adequate time in which to respond to the proposals.[73]The Respondent did not spell out to the Claimant why only she was at risk of redundancy and discuss that particular point with her during the consultation meetings. However, the nature of the Respondent's proposal (filling downtime with cutting services and the Claimant being in the only role that did not involve cutting services (other than in exceptional circumstances)) meant that this issue was addressed as part of the consultation, albeit indirectly.[74]For the reasons set out above, the Tribunal concludes that the Respondent consulted with the Claimant about the proposed redundancy and that its conduct in this regard was within the band of reasonable responses. (b) Did the Respondent adopt a fair basis on which to select[75]The Claimant was the only employee put at risk of redundancy, that is, she was in a "pool of one" and, in effect, automatically selected for redundancy. The Claimant questioned why she was put at risk of redundancy given her high takings in the salon (paragraph 33 above). However, as set out in the Tribunal's findings of fact above, the reason for the proposed redundancy, and the reason only the Claimant was put at risk of redundancy, did not relate to individual employees' takings. The Respondent needed the salon to operate more efficiently and so its proposal was to optimize the employees' working time by filling as much "down time" as it could with cutting services. The Claimant was the only person in a standalone colour technician role. She carried out very little cutting. Applying Taymech v Ryan, the Tribunal concludes that the Respondent genuinely applied its mind to the pool for selection and that, in placing the Claimant in a "pool of one" in those circumstances, the Respondent acted reasonably and within the range of reasonable responses. (c) Did the Respondent take such steps as was reasonable to avoid or minimize by redeployment[76]The Respondent offered three options to the Claimant to try to avoid the proposed redundancy dismissal (paragraph 27 above). Two of these options (Tuesday working and redeployment to a multi-skilled role) were discussed in some detail at the first and second consultation meetings. The Claimant's position was that she did not agree that Tuesday working would help (she contested the idea that there would be enough work on a Tuesday) and that she did not want to do cutting services (paragraphs 28 and 29 above). The Claimant did not want to try either of these options. The Claimant's evidence has shown that she concentrated on disagreeing with the underlying rationale for the options but did not put forward any alternatives that she thought might work instead. The Tribunal concludes that the steps taken in this regard by the Respondent were reasonable and within the band of reasonable responses.[77]In the second consultation meeting, there was some discussion about whether there might be vacancies at other 'Francesco' salons (paragraph 36 above). This was not followed up by the Respondent. However, given the size and administrative resources of the Respondent, which is a very small employer, and that other 'Francesco' salons are not part of the Respondent's organisation to the extent that they would be associated employers of the Respondent (which is simply a franchisee of the FG Hair Group), the Tribunal does not conclude this was unreasonable in the circumstances. Appeal[78]The Respondent and Ms Dellicompagni of the FG Hair Group failed to deal with the Claimant when she called Ms Dellicompagni after her dismissal, and therefore there was no appeal of the Respondent's decision (paragraphs 39 and 40 above). The Tribunal has considered whether that failure made the dismissal unfair. Applying the principles of Gwynedd Council v Barratt (paragraph 61 above), the Tribunal concludes that this failure does not make the dismissal unfair, on the basis that Respondent had otherwise acted within the band of reasonable responses in respect of the redundancy process and in respect of its decision to dismiss the claimant on the grounds of redundancy. Respondent's submissions about the Claimant's conduct[79]In its closing arguments the Respondent made various submissions about the Claimant's conduct.[80]The Respondent submitted that:79.1 the Claimant was preparing to set up a competing salon while still employed by the Respondent;79.2 the Claimant "engineered" her redundancy (by rejecting the alternative role that was offered) in order to seek to secure financial benefits (by asking for more redundancy pay) as a springboard for launching her own business in competition with the Respondent;79.3 the Claimant is in breach of various post-termination restrictive covenants in the Claimant's contract of employment by setting up in competition nearby, soliciting staff from the Respondent, and downloading client information for her advantage; and79.4 this conduct is evidence of the Claimant being vexatious towards the Respondent.[81]The Tribunal does not accept the Respondent's submissions on these points for the following reasons:80.1 there is no evidence to show that the Claimant was preparing to set up her new business before the termination of her employment on 22 May 2024. In her oral evidence, which the Tribunal accepts, the Claimant strongly refuted that this was the case by explaining it took very little time to set up the room she rented from 13 June 2024;80.2 there is no evidence that the Claimant "engineered" her redundancy. It is very common for employees to ask for an additional or enhanced redundancy payment, particularly if the statutory minimum payment is low, as was the case here. Whilst other employees in the Claimant's position may have accepted one of the alternatives being proposed, the Tribunal accepts that the Claimant genuinely did not agree that Tuesday working would help and genuinely did not want to undertake cutting services as part of her role;80.3 whether or not the post-termination restrictive covenants in the Claimant's contract are enforceable and whether or not the Claimant was in breach of those restrictive covenants after the termination of her employment is not relevant to the issues to be decided in this claim.[82]The Respondent also submitted that the Claimant has subjected the Respondent to a vexatious claim. The Tribunal does not agree. There were genuine issues to be considered about the Claimant's dismissal as part of her claim, including her selection and the extent to which she had been consulted about that as part of the consultation process.[83]Considering all of the above, the Tribunal concludes that the Claimant was fairly dismissed on the grounds of redundancy and her claim for unfair dismissal is dismissed.