Mr M Wetherell v Single Source Regulations Office: 6006348/2024

EMPLOYMENT TRIBUNALS

Case No 6006348/2024

Between

Mr M J WetherellClaimant

Single Source Regulations OfficeRespondent

Before

Employment Judge Woodhead

Ms G Nicholls (instructed by Counsel) for claimant

Mr T Brown (instructed by Counsel) for respondent

Date 6 October 2025

JUDGMENT

[1]The complaint of unfair dismissal is not well-founded and is dismissed. The 2 of 88 Claimant was not unfairly dismissed.

[2]The complaint of indirect age discrimination is not well-founded and is dismissed.

REASONS

[3]By a claim from presented on 22 July 2024 the Claimant brings complaints of:3.1 Unfair dismissal (actual or constructive)

3.2 Indirect age discrimination.

[4]The issues were agreed with the parties at a case management preliminary hearing on 18 November 2024, EJ Anthony presiding (“the CMPH”). Subject to three points of clarification at the final hearing the list of issues was agreed before evidence commenced and it is set out in the Appendix to this judgment.

[5]The claim centres on a regrading of roles undertaken by the Respondent which affected the Claimant.

[6]There is an order for anonymity and publication restriction made following the CMPH and documented by EJ Keogh on 6 June 2025.

THE HEARING

[7]This claim was listed for a hearing of five days but regrettably the Tribunal could only offer the parties four days (the Tribunal not being able to sit on this claim on Monday 14 July 2025). The Tribunal therefore had to reserve its decision. Day 1 – Tuesday 8 July 2025

[8]On the first day of the hearing I was provided with:8.1 A joint bundle of 1014 pages [[HB[]]. This included a set of pages starting at page 58 that were blank. I was sent an updated version correcting this problem.

8.2 Witness statements (setting out written witness evidence totalling 127 pages) for the following people:8.2.1 The Claimant of 15 pages [CWS[]];

8.2.2 Mr Neil Swift (former CEO) of 25 pages [NSWS[]];

8.2.3 Ms Hannah Nixon (Chair of the Board) of 8 pages [HNWS[]]; 3 of 88

8.2.4 Mr John Russell (current CEO) of 28 pages [JRWS[]];

8.2.5 Mr Ruaidhri Magee (HR Manager) -of 51 pages [RMWS[]];

8.3 An agreed Chronology

8.4 An agreed Cast List.

[9]The parties proposed a timetable that allowed for submissions to be concluded on morning of what had become the last day of the hearing.

[10]I made clear that anyone participating in the hearing could ask for breaks if they needed them. I reminded witnesses under oath that they were not permitted to communicate with others about the case during breaks or adjournments while they were giving evidence under oath.

[11]I spent the remainder of the first morning reading. At 14:00 I had done enough reading to start to hear the Claimant’s evidence.

[12]During cross examination the Claimant was asked questions about his assertion that Mr Swift had told him [CWS9] that “As a result of the review, he confirmed it was highly likely that my salary would be reduced”. The Claimant’s witness statement was imprecise about when Mr Swift had said this to him. In cross examination the Claimant said confidently that this comment had been made by Mr Swift on 19 July 2021. When asked how he knew this the Claimant disclosed for the first time that on the morning of 8 July 2025, when looking for his birth certificate in his garage, he had found a notebook with a handwritten note that confirmed the date (“the Handwritten Note”). He said he was happy to disclose it. This prompted Counsel for the Claimant to query whether the Claimant was referring to another undisclosed seven page ‘Timeline’ document. The Claimant confirmed that the Handwritten Note was distinct from the Timeline. There was some loss of time in discussion of how this could be resolved. The Claimant appeared to understand the importance of him not being able to talk to his instructing solicitors about his evidence or the case. It was agreed by all that, as officers of the court, the Claimant’s solicitor should be sent the Handwritten Note by the Claimant with some of the surrounding pages. They could then consider the question of privilege and disclosure and speak to the Claimant only on that point if necessary. It was proposed that Ms Nicholls not be sent the note initially and that she only be sent it and discuss it with the Claimant if necessary to help resolve the question of privilege and disclosure. The day concluded at about 16:44 with those matters being left with the parties. Day 2 – Wednesday 9 July 2025

[13]On the second morning we had hoped quickly to resume the Claimant’s evidence, it having been anticipated that the disclosure issue that arose during the Claimant’s evidence would have been resolved the previous evening/the morning of the second day. However, it transpired that: 4 of 8813.1 The Timeline had only been sent to the Respondent at 20:26pm. Counsel for the Respondent made the fair point that the Claimant’s representatives were aware of this undisclosed document before the Claimant started to give evidence and only drew the Tribunal’s and Respondent’s attention to the existence of the Timeline when the Claimant made reference in evidence to the Handwritten Note.

13.2 The Handwritten Note had not been disclosed to the Respondent (it was now confirmed to be three pages) and had only been sent to the Claimant’s solicitor at around 9:49pm the previous evening (because the Claimant said he did not think it had to be done immediately and had an important engagement the previous evening). It was not clear whether/why the Claimant had not been chased for it by his professional representatives or the urgency impressed on the Claimant given that I was told that around 6pm it had been identified that there might be questions of privilege in relation to the Handwritten Note. Ms Nicholls had not seen the Handwritten Note because she was not sure she had been given permission to see it or discuss disclosure of it with the Claimant and out of caution did not want to breach any restriction on her. She said that her instructing solicitor considered there were confidentiality/privilege questions in relation to the Handwritten Note.

13.3 Notwithstanding the discussion of the previous day about the strict limitations on communication between the Claimant under oath and his representatives (and indeed anyone else), there had been calls, short messages and two emails from the Claimant to his professional representatives that went beyond the limited permitted communication between the Claimant and his representatives (communication had only been permitted as regards the obligations to disclose (or not, if privileged) the Handwritten Note and Timeline). The Claimant’s counsel reassured the Tribunal that those calls had not been answered and messages had not been replied to save to remind the Claimant of the limited ambit of the communications that could be exchanged.

[14]The Respondent raised a number of concerns over the lack of progress and the lack of understanding that they had been afforded by the Claimant’s side as to progress and the impact on the tight Tribunal timetable that had been agreed. It was agreed that Ms Nicholls needed to see the Handwritten Note and speak to her instructing solicitor about it and then, within the confines agreed, speak to the Claimant to see how it could be resolved. We broke between 10:37 and 11:10 to allow progress to be made. At 11:10 counsel for the Claimant confirmed that the Handwritten Note had been sent at 11am to the Respondent subject to two redactions. We took a further break until 11:30 for the Respondent to consider the note and obtain an explanation from the Claimant’s side as to the reasons for the redactions. We resumed the Claimant’s evidence at 11:30, the Written Note having been accepted in redacted form (and it was sent to me shortly afterwards and three pages added to the end of the bundle). Mr Brown’s cross examination of the Claimant was, as a result of these disclosure difficulties, delayed and did 5 of 88 not conclude until after 15:00. We then started to hear Mr Swift’s evidence until around 16:30. Day 3 – Thursday 10 July 2025

[15]To try to gain time against the timetable, it being important that I have time on Friday to do some preliminary deliberations while the evidence and submissions were fresh in my mind, we all agreed to continue Mr Swift’s evidence at 9:30am. Ms Nicholls the previous day said she would try, if she could, to nonetheless conclude evidence before the end of the day. In the event it was possible to conclude the Respondent’s evidence (Ms Nixon, Mr Magee and Mr Russell in that order) before the end of the day and counsel for both parties agreed to send in written submissions at the start of the fourth day. Day 4 – Friday 11 July 2025

[16]On the morning of the final day of the hearing I read the parties written submissions and then heard oral submissions. The hearing concluded at just before 12:30pm.

FINDINGS OF FACT

[17]Having considered all the evidence, I find the following facts on a balance of probabilities.

[18]The parties will note that not all the matters that they told me about are recorded in my findings of fact. That is because I have limited them to points that are relevant to the legal issues.

Background

[19]The Single Source Regulations Office (“SSRO”) was established as a nondepartmental public body in July 2014. It is a regulator of defence spending and its sponsor government department is the Ministry of Defence (“MOD”) [NSWS1&3]. It is a relatively small organisation (tending only to have up to around 40 employees).

[20]There were difficulties in recruiting to posts at the inception of the SSRO. The SSRO therefore adopted a “spot salary” approach to remuneration to assist in the appointment of suitable candidates from the regulatory or private sector, above median rates in the public sector. It was recognised at the Board that over the medium term this would need to be revisited. Over time it was anticipated that adjustments would be needed to the structure of the SSRO and its internal and external resources.

[21]Delivering value for money (“VFM”) was important and it was anticipated that the approach to remuneration and employee costs would need to be reviewed. UK Government Investments (on behalf of the MOD) undertook a Tailored Review in 2019. At that time the then Director of Corporate Resources (“DCR”) resigned (GP). GP had undertaken the role for two years on a part time (4 days per week / 0.8 FTE) basis [NSWS5-9]. Mr Swift had undertaken the DCR role before GP 6 of 88 was appointed. Mr Swift subsequently was appointed as CEO. In the context of the Tailored Review, Mr Swift decided to recruit to the vacant DCR role on a fixed term (18 months) part time (0.8 FTE) basis. As such the Claimant was appointed, starting on 15 August 2019 (and due to run to February 2021, as Interim DCR.

[22]The Tailored Review published its final report in April 2020 and amongst its recommendations it said (ALB standing for “arms length body”) [HB214] (emphasis added): 8. Benchmarking of salaries - although operating in a niche area, maintaining some benchmarking of salaries paid and offered would help ensure salaries remain in line with comparable ALBs. […]54. The roles at SSRO are mostly senior or specialised. Part of the reason for establishing the SSRO as an independent body was so that it can set its own pay scales to recruit and retain appropriate staff. As with other ALBs in a similar position, this results in higher remuneration than if the function had remained in the Civil Service.

55. Whilst it is difficult to benchmark the staff costs of the SSRO relative to other bodies, because it is operating in a niche area and needs to pay sufficiently to recruit and retain the skills essential for its specific role, we observed from our wider experience of arms-length bodies that the staff costs are typical of those we would expect for a specialist arms-length body, including economic regulators. Recommendation 8: The SSRO maintains some benchmarking of salaries paid and offered to its executives and staff to ensure they remain in line with those for similar roles in comparable arms-length bodies.

[23]However, the Tailored Review did not do the more detailed assessment that the Beamans process (which I will come on to explain) undertook and it cannot be the case that the Tailored Review would tie the hands of the Respondent in addressing outliers identified after that more detailed later assessment. Interim (and then permanent) DCR

[24]The Claimant’s role and person specification were set out in a document at [HB77-79]. The essence of the Claimant’s role was the provision of operational support services leading the Finance, HR, IT and Security, Governance and Estate/Facilities functions. As such DCR was a senior position in the organisation. The Claimant, for example, was responsible for contact for all internal and external audit processes and he was on each of the Executive, Audit and People Committees. The Claimant also attended meetings of the Board of Directors but, although he was (interim and then permanent) Director in 7 of 88 title, he was not a Board Director and did not vote as a board director.

[25]At all times the Claimant reported to the CEO (Mr Swift and then Mr Russell). At the time of his appointment the Claimant managed approximately 9 staff (4 direct reports) and pre-existing external support contracts [HB1009]. As referenced above the Claimant worked four days per week (0.8 FTE) with ad hoc increases to full time hours (which he sometimes requested retrospectively, contrary to policy) for defined periods of time subject to the demands of the role [NSWS24]. It was not until 2023 that he requested a permanent increase to full time hours.

[26]The Claimant’s first fixed term contract of 18 months was extended in March 2021 to 30 September 2022 [HB59 / NSWS18]. I accept Mr Swift’s evidence that the Claimant understood why it was anticipated that his contract would end at that point (i.e. because of “the flux in responding to the Tailored Review” and the progression of the pandemic). Mr Swift had quite specific memory of offering to pay for some training that the Claimant was proposing to undertake but that the Claimant declined the offer on the basis that his contract would come to an end. It seems to me to have been a reasonable assumption on the part of Mr Swift that the Claimant declined because he was expecting to have to repay the training costs if he left within a period of 2 years). Mr Magee also had specific recollection (which I accept) of the Claimant having applied for other external roles at that time.

[27]By the time that his fixed term contract was due to expire the Claimant of course had the right not to be unfairly dismissed (he had two years’ service). The Respondent does not appear to have appreciated the implications of this and that the expiry of a fixed term contact constitutes a dismissal in law. It took the somewhat unusual stance of working on the basis that it could allow the Claimant’s fixed term contract to expire, advertise the role and then pick the best candidate for the permanent role it intended to create (which might have been the Claimant had he chosen to apply). The Claimant was issued with notice in the summer of 2022 and he appealed against this decision pointing out his employment rights [HB968]. It was put to Mr Magee that he would not have appealed had he expected to leave but, as Mr Magee pointed out, the Claimant might not have achieved what he hoped to in his search for external roles. It is also relevant that, by this time, the Claimant had expressed dissatisfaction with the outcomes of a review which I will come onto address and which was referred to as “Beamans”.

[28]Ms Nixon was appointed to hear the appeal and I accept her evidence that she looked afresh at the decision to dismiss. She overturned the Claimant’s dismissal in a letter of 14 September 2022 making him permanent in the role and recognising his date of continuous employment of 15 August 2019. The Claimant’s permanent contract of employment provided [72]: Termination of employment and notice period The prior written notice required from you to terminate your 8 of 88 employment will be 12 weeks. With the exception of any of the circumstances set out at paragraph (c) (i iv) below, the minimum period of notice to which you are entitled should the SSRO wish to terminate your employment is dependent upon your length of service as follows: Completed years of continuous service Notice period Up to 4 years 4 weeks 5 years 5 weeks 6 years 6 weeks 7 years 7 weeks 8 years 8 weeks 9 years 9 weeks 10 years 10 weeks 11 years 11 weeks 12 years or more 12 weeks (a) We may at our sole discretion terminate your employment without notice and make a payment in lieu of notice. You will have no right to receive a payment in lieu of notice unless the SSRO has exercised this discretion. The SSRO may pay any payment in lieu of notice in equal monthly instalments until the date on which the notice period would have expired if notice had been given. You will be obliged to seek alternative income during this period and to notify the SSRO of any such income which will or may be received. The instalment payments will then be reduced by the amount of such income received. Beamans

[29]I accept Mr Magee’s evidence that in 2018 it was realised that two female members of staff had a valid complaint that the SSRO had failed to meet its equal pay obligations. This led to an increase in the two female staff members’ salaries of £10,000 each [RMWS8]. I accept Mr Magee’s evidence that the SSRO did further audits to look for equal pay vulnerabilities and did not identify any but Mr Magee suggested to Mr Swift that a more detailed review would be prudent.

[30]I accept Mr Swift’s evidence [NSWS28] that he instructed GP to bring forward proposals for a workforce strategy. GP did so and presented them to the Board. 9 of 88 Consultation with staff was undertaken and the Board approved the strategy in March 2019. The strategy made clear a commitment to undertake an independent review of the SSRO’s remuneration policy [HB207]. Progress was then impacted by the pandemic [NSWS29].

[31]The Claimant was then Interim DCR but the Claimant was given responsibility for putting into action that independent review after a pause to allow the outcome and findings of the ongoing Tailored Review to be considered, as referred to above.

[32]On 11 November 2020 the Claimant sent an email to Mr Swift and others referring to a UK Regulators Network workshop that he had attended on pay and performance. Other members of the network were considering the type of remuneration policy review proposed by the SSRO. He shared information from other organisations and said in his email [HB217]: “A number of bodies have used Beamans for their pay review and benchmarking, and the feedback seems to be very positive, as they are used by the Cabinet Office for their benchmarking and have a very strong background in NFPs and the Civil Service. Ruaidhri –probably worth adding them to your list for tomorrow’s discussion if they are not already on it”. The Claimant developed the specification for the work to be done and oversaw the procurement exercise to appoint an independent expert to deliver the review. The expert appointed was required to provide advice on job grades / banding and remuneration, to include all of the following [HB225 at 2.11]: review all job descriptions and propose a consistent format and structure that allows the SSRO to update job descriptions and easily compare roles and transparently links to a grading and remuneration methodology. This must be capable of future review and update as managers and staff refresh job descriptions. provide a grading and remuneration methodology that links skills, experience and qualifications (as set out in the above structured job descriptions) to remuneration and reward. This must support and be capable of accommodating career progression paths, including the ability to move between grades based on an objective assessment of skills and qualifications. provide an objective assessment of all existing salaries based on a comprehensive and objective analysis of market data on similar relevant roles both in the private and public sector in geographically relevant locations. This should be supplemented with advice on how to lawfully, fairly and equitably address anomalous remuneration levels.

[33]Mr Swift, in March 2021, proposed a draft grade and job review policy to suggest how the consequences of a remuneration policy review might be handled. The Claimant responded on 22 March 2021 [HB220]: 10 of 88 I agree that your phased reduction, should it be required, is fair. In putting myself in the place of the staff group I would ask why the COO/DA/IDoCR/CE are exempt from the review? I would also ask what the appeals process is should a decision be taken to reduce a salary or lower the seniority of a role, and if there isn’t one, this should be made clear. In terms of the language, where ‘restructure’ is used I do think we need to expand this to be more explicit and explain that this includes and option, albeit as a last resort, could lead to a process being instigated that could result in redundancy. I don’t want to spook anyone, but neither would I want to dress it up, as I can guarantee someone will ask the question when the policy is released. Perhaps Alan can advise? Related, but not for this policy, if a role is deemed to be lower than the salary band currently applied, I am not sure simply giving some one more seniority or responsibility to justify the extant pay is appropriate. If there has not been an identified business need for someone to perform a task to a higher level before, simply increasing someone’s list of tasks to fit their wage leads to unnecessary wage inflation and someone doing a job that isn’t entirely necessary.

[34]Beamans were appointed by the Respondent in May 2021 and had regular calls with the Claimant, Mr Magee and Mr Swift and made regular requests for information.

[35]Beamans completed their preliminary work in July 2021 and prepared a report with their interim findings [HB272-312]. I accept Mr Swift’s evidence that Beamans’ interim report “critically evaluated the extant approach and analysed and evaluated the current rates of remuneration against external pay relativities. Their interim evaluation indicated pay levels were high and if assimilated to private sector upper quartile levels, 9 roles would be above the proposed grade maxima and 3 below the grade minima. They made a series of recommendations that would allow the SSRO to introduce and implement a revised pay and grading framework.” [NSWS36].

[36]The interim findings included the following [HB231-232]: 6. We should start by saying that there is no compunction or any legal requirement on any organisation to use any form of job evaluation. However, an analytical (factor-based) job evaluation scheme is a useful management tool and when properly developed, thorough in analysis and consistently applied, can provide a strong defence against claims for equal pay. 7. The SSRO has never adopted any formal job evaluation approach to evaluate and grade roles. Yet, judging by the 11 of 88 responses to the recent consultation on job descriptions, salary bands have clearly been interpreted as grades. This is important to note because the term ‘grade’ relates to roles who are considered to be similar in terms of their level of accountability and job demands as measured by some form of job evaluation. However, roles in each salary band have not been evaluated or measured by any evaluation scheme save informally as part of a Korn Ferry Hay (KFH) market-pricing exercise undertaken in 2019. 8. Present SSRO arrangements are based on a spot rate salary model or what in reward management terms is typically referred to as an informal Market-Pricing approach. This approach to evaluating - or more properly valuing roles – relies on judgements on internal and external relativities to determine individual rates of pay for each employee, with some account taken of perceived market rates. Using this approach, a spot-rate salary has been pin-pointed for each SSRO role within a salary band. The minima and maxima for each salary band has been approximated by HR with reference to the external market i.e. appropriate to payranges which HR consider similar to those offered by other employers for roles similar to SSRO roles in terms of job type and level of accountability. 10. This is a significant issue and one which poses a high degree of risk to SSRO. If an organisation chooses not to adopt an analytical form of job evaluation to measure roles, then it needs to be able to show that there is some other objective justification for differences in pay to avoid exposure to an Equal Pay claim. In this latter respect, although market-rate data has in the past been sought from Korn Ferry Hay (2019) and Willis Towers Watson (2018), there are no current market-rate data-sets i.e. adequate evidence, to objectively justify pay differentials between SSRO role. This informal approach does not satisfy UK equal pay legislation. Moreover, in our view, this approach is not equitable, fair or transparent; it is also potentially discriminatory.

[37]Mr Swift provided comments to Beamans on the report on 12 July 2021 aimed at adding focus on the recommendations, removing value judgments and correcting errors. He did not alter the conclusions or recommendations of the independent consultants [HB271 and NSWS37].

[38]Beamans’ view was that, if adopted and implemented effectively and consistently, their recommendations would be a proportionate means of achieving a legitimate aim (that is a fair pay structure based on market rates). 12 of 88

[39]I accept Mr Swift’s oral evidence that the Beamans exercise had been to ensure that the rate of pay applied was upper quartile in the sector. However, Mr Swift identified that, if adopted, the recommendations, would have negative impacts on some employees and he discussed with Beamans how those effects could be removed or mitigated [NSWS40]. I accept Mr Magee’s evidence that [RMWS16] “scrutinising and potentially altering pay can be very contentious and emotive in any organisation and so it needed to be handled with the utmost care and sensitivity”. 19 July 2021 – allegation that NS indicated that the Beamans outcome was predetermined

[40]The Claimant alleged that on 19 July 2021 Mr Swift [CWS9] confirmed to the Claimant that “As a result of the review, […] it was highly likely that [the Claimant’s] my salary would be reduced”. The Claimant said that he was shocked that Mr Swift had told him that before the process had started. This is the subject of the Handwritten Note which says [HB1015]: “highly likely that my salary would also be reduced”. I have taken into account the Claimant’s evidence and an email he sent on 31 August 2021 to Mr Magee which said (amongst other things) [HB615] “Whilst no decisions have yet been formally reported, Neil has told me that my current role will be impacted by these recommendations. It is therefore important to recognise that my observations are made with the expressed understanding that any negative changes to remuneration and job title/standing will not be introduced until two years’ post report approval and adoption, and I therefore consider this to be an objective statement.”

[41]I accept the Respondent’s submission that the Handwritten Note was written after a call with Mr Swift and not during that call because of the tenses use in the Handwritten Note. Whilst documents prepared close to the time of a disputed event clearly should carry weight, here I consider that the Handwritten Note, does not accurately reflect what Mr Swift actually said in his call with the Claimant. I found Mr Swift’s evidence (both in his witness statement [NSWS32 and NSWS44] and under cross examination) to be compelling and the Claimant himself, in oral evidence, acknowledged Mr Swift to be an honest man. I accept that Mr Swift, was careful at the time to be clear with all staff members that what the report recommended had not been agreed by the board. I think that it is more probable that Mr Swift said to the Claimant that there would be a process to match to roles and agree bands and that if implemented it could have impact on the Claimant (not that it would definitely or was highly likely). As Mr Swift said, the Claimant would have recognised and understood what the consequences might be of Beamans’ recommendations (i.e. that his role/grade/salary could be affected) but not that it would necessarily happen and the Claimant was able to raise and discuss those issues. I accept Mr Swift’s evidence that “conducting a review and then not adjusting salaries where identified would have defeated the purpose of the review, because it would have maintained identified pay disparities, giving rise to the potential for complaints about unequal pay or discrimination as well as more general complaints about 13 of 88 pay disparity. It was therefore an integral part of the process that salaries which were unjustifiably high would be reduced and those that were unjustifiably low would be increased, but this was not directed at the Claimant or any employee”. I accept the Respondent’s submission that it is not plausible that Mr Swift as CEO would suggest to the Claimant that there was a high likelihood of a detrimental change to his terms and conditions of his employment before a process intended to resolve that issue had been completed and that for Mr Swift to have done so would have had no positive or useful purpose and could only cause problems. August 2021 - Beamans report issued to employees

[42]The Beamans findings were sent to employees in August 2021. A period of consultation with employees followed which was led by Mr Magee (line managed by the Claimant). FAQ’s and other documents were produced in that process. An FAQ circulated on 7 September 2021 by Mr Magee recorded [HB348]: As Heads of and Expert Practitioners and Directors are in the same pay band would it be possible for an Expert to be paid the same or even higher than a Director? The appropriate grade level for each role will be based on an evaluation of the job demands of the role and not on job title. It should not be presumed that a role will be assimilated to a particular grade based on job title. Roles which are assimilated to a pay-band will be paid within the defined pay-range for that pay-band. The starting position of individual roles within each pay-band will be determined by existing salary levels.

[43]As things stood in August 2021, reporting into the CEO were [HB1009]:43.1 The Claimant as Interim DCR (Grade 1) with four direct reports at Grades 2 to 4 with a team of five people under them.

43.2 Mr Galpin as COO (Grade 1). Mr Galpin sat on the board of directors and had four direct reports at Grade 2 with a team of around 23 people (including vacancies) underneath them.

43.3 Employee A (Expert) (Grade 1). The expert had no direct reports but was a specialist.

[44]Under Beamans’ proposals grades would be converted to bands. The COO would move up to occupy a new Band 0. The Claimant would be in Band 1 and Employee A would move down to Band 2 (becoming less senior than the Claimant and the COO [HB1010]. Reporting lines remained the same.

[45]Before the Beamans review, in 2020/2021 the pay bands were [NSWS35]: 1. Director: £129,265 (min) £150,809 (max) 2. Head of: £107,721 (min) £129,265 (max) 14 of 88 3. Senior Analyst: £86,176 (min) £107,721 (max) 4. Analyst: £64,632 (min) £86,176 (max) 5. Junior Analyst: £48,959 (min) £64,632 (max) 6. Support and Officer: £22,621 (min) £48,474 (max)

[46]Under Beamans proposals the pay bands were proposed as follows [HB328]: 0 Exec Director £95,200 – £137,000 1 Director & 2 Heads of/Expert Practitioners £84,000 – £120,000 3 Leading Practitioners/Senior Managers £66,000 – £94,500 4 Senior Practitioners/Managers £51,000 – £73,000 5 Executive Advisory Positions £39,000 - £56,000 6 Senior Administration Positions £30,500 – £44,000 7 Administration Positions £23,200 – £34,000

[47]The Claimant provided comments on 31 August 2021 [HB614-5] as follows which Mr Magee passed, on a confidential basis to Mr Swift the same day adding his own comment “Considering the feedback I wondered if there is any need to re-visit the corporate governance framework at some stage?”: Dear Ruaidhri – further to your email of August 3rd regarding the Beamans’ report, please see below my feedback relating specifically to the grading of salary bands for Executive Directors and Directors. The report proposes adding an additional band relating to ‘Directors’. I do not support this particular proposal for the following reasons: - Currently, the Executive Committee has a membership of four: CEO; COO; Defence Advisor; and Interim Director of Corporate Resources. The proposed introduction of a grade below that of Executive Director would, depending on which role was to be graded at the ‘director’ level (and a clear statement from Neil indicates this will apply to the DoCR role), potentially obstruct the current ability to challenge and inform decisions. Whether true or not, seniority is inevitably perceived to be where one sits within the salary banding and currently, the only difference between Executive Directors and Directors is membership of the Board; this will change when half the EC members are Grade 0 and the other half Grade 1. - In terms of the new grade, on the basis of salary, Directors are 15 of 88 being positioned as being of equal value to Heads of/Expert Practitioners. The proposed ‘job evaluation & grading’ methodology talks about ‘decision making’ but does not permit for overall corporate responsibility and leadership to be taken into account. Directors are often required to make board-level recommendations based on experience and expertise, as well as taking control of everyday issues relating to the workforce that do not feature within the corporate plan. Directors are expected to do this, Heads of/Expert Practitioners are not, and therefore I would not support both grades attracting the same salary band. Notwithstanding this, on an exceptional basis, salaries to HO/EP could exceed that of a Director should market conditions dictate, and I have no objection to the proposed ‘pivotal role allowance’. - In defining the roles of Executive Director and Director, there is insufficient clarity as to how these are to be differentiated. Currently, the DoCR has responsibilities laid out in the Corporate Governance Framework to deliver against core corporate objectives; similarly, the Corporate Risk Register shows that the identified risks are owned by one of the CEO, COO and DoCR. Given these current conditions, I cannot see how any objective decisions can be made to ‘demote’ the role of DoCR based upon the criteria given in the report. - The report states that the CEO has the final say in any decisions made. I would suggest that for roles that report directly to the CEO, any appeal should be heard by a member of the Board or an appointed independent person. Whilst no decisions have yet been formally reported, Neil has told me that my current role will be impacted by these recommendations. It is therefore important to recognise that my observations are made with the expressed understanding that any negative changes to remuneration and job title/standing will not be introduced until two years’ post report approval and adoption, and I therefore consider this to be an objective statement. Because of the very specific comments contained within this consultation response I wish for the comments to be restricted to you and the Chief Executive only unless expressed permission is sought from, and granted by, me to share it with specific, named individuals.

[48]The Claimant said [CWS33] “On 11 November 2022, Mr Magee sent out the pay policy that SSRO was consulting with staff on [535-539], I would have attended consultation with everyone else but at this point I was still waiting for a response to my concerns in my email of 31 August 2021 [614-616]”. I was not taken to any evidence of the Claimant having sought, or followed up for, a response to 16 of 88 these comments. Comments were addressed via a central FAQ document and I do not consider that any failure to respond to a particular comment was a reason for the Claimant not to have attended consultation. 28 October 2021 – job analysis forms issued [HB 367 and HB373]

[49]On 28 October 2021, Mr Magee sent out final copies to all staff of documents which the Claimant had helped to draft. He confirmed “In addition there is an all teams meeting on Tuesday in which questions about Beamans can be raised”. One of the attachments to Mr Magee’s email was a job analysis form [HB373- 385] within which employees could set out examples of their day-to-day tasks, decision-making and seniority. 19 November 2021 – deadline for job analysis forms [HB617]

[50]On 5 November 2021 Mr Magee send out a further email with details on Beamans’ process [HB391]. That email confirmed that the deadline for employees to complete their job analysis questionnaires was 19 November 2021. He said the grading of roles would done by 31 January 2022 and that decisions would then be communicated. He notified staff of a drop-in session on 9 November 2021 at which staff could raise any further concerns. The Claimant attended this drop-in session. His evidence was that as he was representing the SSRO as a director he did not feel able and was not willing to share his concerns in a public forum.

[51]The job analysis that the Claimant completed for his own role was at [HB617]. The Claimant’s oral evidence under cross examination that, through his completion of that job analysis he had demonstrated that his role was at Executive Director level under the proposed Beamans Bands, was not persuasive and the Claimant was right to accept that under cross examination that he had not demonstrated that his role was at Executive Director level. I accept the Respondent’s submission that the Claimant did not, either at the time, or in evidence at the hearing seriously pursue a case that his role was at that level. I further accept the Respondent’s submission that the Claimant’s contentions that the Director role was “arbitrary”, “only existed in the Chief Executive’s mind” and that “there was no established explanation for what would make a task at Director level versus what would push it up to ‘Executive Director’ level,” were unsustainable in light of the Role Classification Framework available to the Claimant [HB405, 408, 411, 415—416]. Role classification

[52]As Mr Magee explained [RMWS 35] the completed Job Questionnaires had to be signed off by line managers and each Director (including the Claimant) was tasked with undertaking a preliminary or “initial match” for each of their direct and indirect reports by reference to the Outline Role Classification Framework [HB404] before of the formal panel grading process took place.

[53]The Claimant and Mr Magee met with Beamans for the purposes of agreeing the approach to be taken, which involved starting with the lowest grades and 17 of 88 working up to the “Heads Of” roles. They used a template form to capture comments/analysis to demonstrate and evidence the ultimate decision against the agreed Classification Framework [HB427].

[54]The Executive Committee and Mr Magee then met with Beamans on 20 January 2022 for a Matching Introduction/Best Practice session, delivered by Beamans [HB428].

[55]A panel then undertook the formal objective grading of each role against the Role Classification Framework which comprised of relevant Director/line manager and an expert from Beamans. When it came to the grading of the Claimant’s role (and other Directors’ roles) Mr Swift attended as the line manager. Mr Swift completed the Claimant’s matching form initially and that was then reviewed and the outcome agreed by the panel [HB629].

[56]I accept that this review was carried out objectively, without bias or favour, in accordance with the Best Practice guidance and applying the agreed Role Classification Framework. Mr Swift was also well placed in this regard because he had previously undertaken the Claimant’s role.

[57]I accept Mr Magee’s evidence that [RMWS39] there were aspects of the Claimant’s role that leaned towards the ‘Head Of/Expert Practitioner’ band. However, Mr Swifts initial assessment matched the Claimant’s role to the ‘Director’ band and that was confirmed. I accept that there was no aspect of the Claimant’s role that fitted within the new ‘Executive Director’ band.

[58]After all the panels had concluded their work Mr Magee prepared the grading outcome letters for each member of staff. As Mr Magee explained [RMWS40]: “Each letter confirmed the band into which each role had been assimilated and the salary range for that band (as applied at that time). For employees whose existing salary was above the pay band maxima of the band into which their role had been assimilated, the letter confirmed the pay protection arrangements that would apply (and that had been communicated to all employees throughout the process). The letters made clear that salaries would remain at their existing (higher) level until the earlier of:• Any re-valorisation of the band which brings your existing salary within the band range; or

• A period of two calendar years from the date of implementation (1 April 2022), at which point your salary will be adjusted to the maximum point on the band at that time.”

[59]The pay protection was designed to allow affected employees time to make arrangements to absorb any reduction in pay at the end of the two year period.

[60]As Mr Magee also explained [RMWS41-21]: 18 of 88 “during the pay protection period those employees whose salaries were above the new pay band maxima were not entitled to consolidated pay awards (since it would have the effect of increasing those employees’ salary and therefore compounding any adjustment required at the end of the pay protection period), but they were entitled to non-consolidated pay awards. The Claimant was given non-consolidated pay awards annually.”; and 60.1.1 He and Mr Swift “were of the view that a revalorisation exercise, if undertaken before the end of the pay protection period, may dispense with the need to adjust salaries of some of the employees affected in any event” and “the employee who faced the greatest salary adjustment would soon be retiring (before the end of the pay protection period)”. 21 February 2022 - Job classification outcomes

[61]The Claimant had had the opportunity to comment on the wording of an email that Mr Magee subsequently sent to staff on 21 February 2022 [HB446] which said: Following on from the questionnaires that you completed that described your role and its associated responsibilities, the review process has now been completed and each role has been graded against the classification framework that has been developed by Beamans. You will find attached to this email the classification framework that the panel used to assess roles based on the job factor questionnaires that were submitted. Do please read this and let me know if you have any general questions. In terms of the next steps, we will meet with each of the Heads to brief them on the grades that have been matched to each post within their teams. Following these briefing sessions, letters detailing the grade awarded to each role will be emailed to the postholder. Beamans will be hosting two follow-on Q&A sessions that are open to all, at 12:00pm on the 2nd and 4th of March. These sessions are designed for you to be able to ask any questions you might have around the matching process they are not mandatory and you do not need attend both the sessions. These sessions are designed to give you all an opportunity to ask questions you may have on the process that has been followed, but are not suitable for raising and discussing individual matching decisions. If you have a query about the grade matched to your role please discuss this in the first instance with your line manager. Line Managers will be able to clarify questions around job factors but they will not be in a position to comment on matching decisions. If after having discussed your grade with your manager you remain uncertain, you will be able to submit a request for review to Neil and this will be detailed in your individual matching letter. We would hope to have any queries concluded by the last week in March. However, as has been consistently stressed throughout the process, we are open to being flexible on deadlines as we want to get this important piece of work right. 19 of 88 The organisation will formally adopt the pay bands on 01 April 2022 (please note that any matching decisions that may result in a need to alter salaries will not take effect until 01 April 2024, and any changes will be discussed with individuals directly). I am very happy to answer any questions you might have and I know the panel is very grateful to everyone for the time and effort you invested in your job factor questionnaires. These have hugely helped to achieve reliable and objective matching outcomes. February 2022 - working under protest comment

[62]Whilst dated 15 February 2022, the pay band matching decision letters were sent out to employees the following day on 22 February 2022 [HB 602-613, 632]. The Claimant’s letter said: […] I am writing to inform you of the outcome of the process to match individual roles to pay bands using the role classification framework developed and adopted for use by the SSRO. The framework was shared with all staff on 3rd August 2021. Your role has been assessed and placed within band 1, which has a salary range of £84000-£120000. You will be assimilated into the band on your existing salary. We convened a panel to carry out the matching process. Supported by Beamans, the panel considered the evidence you provided in the role questionnaire you completed. The matching decision was concerned with the requirements of the role and did not reflect or imply any degree of performance assessment for an individual, nor where an individual should be placed within the pay band. Assimilation into your matched pay band Where your existing salary exceeds the band maximum, your salary will remain at its current level until the earlier of:• any re-valorisation of the band which brings your existing salary within the band range; or

• a period of two calendar years from the date of implementation (1 April 2022), at which point your salary will be adjusted to the maximum point on the band at that time. Where your existing salary is below the band minimum, an increase to your salary will be considered from the date of implementation (1 April 2022) subject to affordability, which we will discuss further with you. 20 of 88 Future progression within each pay band will be in accordance with the grading framework. Next steps To assist you to understand the matching process and the decision that has been made, a further Q&A session is being arranged with Beamans. I would encourage you to attend and ask any questions you have about the framework and the general approach. If you have specific questions then please do in the first instance discuss these with your line manager and, if needed, your Director. If you disagree with the assessment after discussion, you can request a review of the matching decision. Reviews will be considered by Neil as Chief Executive, after which he will share a final matching decision with you. If you would like to request that your matching decision is reviewed, please discuss this with your manager and alert me as HR manager. Where possible, any requests should be submitted by 11 March at the latest. Any request for a review should be accompanied by a statement demonstrating and providing evidence in writing on one or more of the following: a) Why you believe your role does not fit the grade/band definition it has been matched to; b) Why you believe it fits a different grade/band definition; c) Details of the significant element of job content that was not presented in the job factor questionnaire to the original grading panel and, if possible, an explanation of why this was omitted; d) Details as to what aspect of the ‘Role to Grade/Band Match’ process has not been followed. I will be attending the planned Q&A sessions, but in the meantime please do not hesitate to contact me if you wish to discuss anything.

[63]The pre and post Beamans position on salaries was a result of the pay banding proposals being accepted was as follows (discounting the pro rata reductions for fractional working): Before63.1.1 Mr Galpin – Grade 1 (and after the Beamans process promoted to the new Band 0) 21 of 88

63.1.2 Expert – Grade 1: £129,265 [HB240]

63.1.3 Claimant – Grade 1: £129,265 [HB240]

[64]Mr Galpin, the Claimant and Employee A/the Expert were all on the same FTC salary of £129,265 [HB240], albeit the Claimant and Employee A/the Expert were on 0.8 and 0.6 FTC contracts respectively [RMWS48].

[65]Mr Magee’s undisputed witness evidence on the salaries and ages of the six negatively affected employees was as follows [RMWS48]: The ‘Expert’: FTE salary was £9,265 in excess of the pay band 2 maxima of £120,000 as at February 2022 and he was 58 years old at that time (DOB 1964). Since this employee’s role was 0.6 FTE, the actual excess and pay band maxima were proportionately less. The ‘Secretary’: Salary was £18,478 in excess of the new pay band 6 maxima of £44,000 as at February 2022 and she was 59 years old at that time (DOB 1962). Manager: Salary was £15 in excess of the new pay band 5 maxima of £56,000 as at February 2022 and he was 38 years old at that time (DOB 1983). Head of: Salary was £3,000 in excess of the new pay band 2 maxima of £120,000 as at February 2022 and he was 48 years old at that time (DOB 1973). Data Expert: Salary was £320 in excess of the new pay band 6 maxima of £44,000 as at February 2022 and she was 44 years old at that time (DOB 1978). The Claimant: FTE salary was £9,265 in excess of the pay band 1 maxima of £120,000 as at February 2022 and he was 52 years old at that time (DOB 1969). Since the Claimant’s role was 0.8 FTE, the actual excess and pay band maxima were proportionately less.

[66]It was the Claimant’s case that he in February 2022, having had the outcome, told Mr Swift that he was “working under protest”. This is perhaps an unusual thing to have said at this time because it is normally something said by an employee when a change has been implemented that affects them at that time. There had at this time been no change and the Claimant had a right to ask for a review if he disagreed with the decision. The Claimant did not put in writing that he was ‘working under protest’ until 7 November 2022 [HB635]. In cross examination the Claimant asserted that he had made clear that he was doing so in a lot of conversations. He said that his witness statement should have made this clearer. I set out below my findings in this regard.

[67]The Claimant did not request a review of the pay band matching decision. 22 of 88 June to September 2022 [HB968] – FTC termination and appeal

[68]At this time and as recorded above, the Respondent gave the Claimant notice of the termination of his employment on the expiry of his fixed term contract and the Claimant successfully appealed that decision. 26 September 2022 – Pay Management Guide issued in draft

[69]On 26 September 2022 Mr Magee sent all staff an email with respect to consultation on a pay management policy which read [HB470]: Following on from the Beamans work earlier this year we have now all had our roles matched to our new pay bands within the new salary structure. We had highlighted that in order for the organisation to be able to ensure that the structure continued to support the organisation in managing remuneration in a clear, transparent and fair way we would need to adopt a Pay Management Policy. Here is a link to this policy which we would like to consult with you about Consultation Material [hyperlink], The policy is designed to help us all understand how the organisation will manage remuneration in the coming months and years. We would be very keen to hear any thoughts and views you may have which you can share with me, [the Claimant], your line manager or Director. I will schedule two drop in sessions in which you can raise any questions you might like to: 12 October 12-13:00 3 November 12-13:00. The consultation period is due to end on 15 November. If you have any questions do please let me know.

[70]On 3 November 2022 Mr Swift sent all staff an email as follows [HB533]: Dear all For those unable to make the org call yesterday I have summarised the key messages below. […] Pay management guide We are currently consulting with you all on a draft of the pay management guide, prior to its introduction from 1 April 2023. Thanks to everyone for their input so far. There is another drop in session at lunchtime today so do please take part if you were unable to make the first session or have further input to share. I’ll leave it to [the Claimant] and [Mr Magee] to run the session but happy to engage directly if 23 of 88 needed. The intention is to reflect on the feedback and make any changes that are needed before seeking final approval from the People Committee in the new year. I’ve asked that when that is done that [the Claimant] and [Mr Magee] schedule a further session to explain the way forward to you all. 2022/23 Pay award We spent considerable time and effort and were successful in persuading MinDP to agree a 3% rather than 2% pay remit application this year. This was the maximum allowed within the Treasury Guidance. There are a range of constraints in applying this but in summary the People committee agreed that this will be distributed to all eligible staff (not those whose salaries are above their grade boundaries nor those staff who have been appointed this year post 1st April 2022), and: - the differential application of a consolidated pay award to eligible employees within the overall limits to the pay budget imposed by the pay remit (with greater weighting to staff at the bottom of each grade); and - that existing non-consolidated award schemes should continue to operate with amounts available for distribution increased in accordance with the agreed pay remit. There is no revalorisation this year so any pay awards made will not take salaries above existing grade boundaries. I have asked [the Claimant] to plan for one early next financial year in time to support next year’s pay remit submission. A consolidated award will be applied to all eligible employees who were in post on 1 April 2022 and who remain in post at the time the award is processed (November), backdated to 1 April 2022. 7 November 2022 – the Respondent confirms the Claimant will not get a pay

award

[71]On 7 November 2022, consistent with the email of 3 November 2022, Mr Magee sent the Claimant a letter confirming that the Claimant’s salary would remain unchanged and not increased under the pay award [HB634].

[72]The Claimant replied the same day to Mr Magee as follows [HB635]: Thanks Ruaidhri, and my position remains unchanged insofar as I do not recognise the process that has been followed and the decisions that have been applied to my salary, and the resultant negative impact that this creates. My initial concerns raised during the first consultation have still to be addressed and I therefore continue to work under protest. I 24 of 88 believe unilateral changes to my terms and conditions of employment cannot be applied without my agreement, which has not been sought and is not forthcoming.

[73]Mr Magee sent the email on to the CEO, Mr Swift who replied to the Claimant as follows on 18 November 2022 [HB636]: Thank you for your email of 7 November, which Ruaidhri has forwarded to me. In order to avoid any confusion, I thought it best to set out the SSRO’s position on the matters you raised. Pay grade matching The SSRO commissioned Beamans in May 2021 to undertake a review of our approach to employee reward. Beamans provided a report in July 2021, which set out the findings of their review and recommended replacing the SSRO’s historic spot salary structure with a new approach. Included in the Beamans report were proposals for: · a clear, holistic reward strategy; · a set of reward principles, including that pay and benefits should reflect market rates; · a factor-based job evaluation and grading framework; · new pay ranges around clear market reference points, with an approach to assimilation; and · future pay management. We shared the findings of the Beamans review with all staff in August 2021, holding dedicated lunchtime Q&A sessions and inviting feedback. That feedback did not detract from the broad approach and the Board agreed in September 2021 that the SSRO should adopt the new grading framework. We developed a job evaluation methodology to consistently apply the new framework and facilitate non-discriminatory, impartial judgments about job roles and challenges. The proposed approach was communicated to all staff in October 2021 and workshops were held in November 2021 to help staff understand the process and how to complete job evaluation questionnaires. In evaluating your role, we considered the questionnaire that you completed and the evidence provided against the following factors in the grading framework: · knowledge, skills & expertise; 25 of 88 · relationships (contacts & communications); · problem solving/decision making; · resource management; and · impact. The outcome of the assessment of your role, which was set out in Ruaidhri’s letter to you of 15 February 2022 placed it within band 2. This band currently has an FTE salary range of £84,000 to £120,000, which your salary exceeds. As explained in that letter, and throughout the process, in this situation your salary will remain at its current higher level until the earlier of: i.any re-valorisation of the band, which brings your existing salary within the band range; or ii.the end of a two year pay-protection period from the date of implementation, at which point your salary will be adjusted to the new grade. Your salary will be the maximum point on the band at that time (currently £120,000 and adjusted to 0.8 FTE). The outcome letter offered you the right to appeal the grading decision and asked that, where possible, any request for an appeal be made by 11 March 2022. We shared the details of the grading framework with all staff in February this year and arranged additional meetings at which staff could raise questions about the grading framework and the process followed. We have been transparent throughout the development and application of the new grading framework. In addition to the matters outlined above, we provided regular updates at the Open Forum meetings and organisational update meetings. We also offered individual meetings with any employee who may have had questions or concerns about the process. We recognised and made clear to all employees in the findings of the Beamans review, and thereafter, that a possible outcome of the exercise may be assimilation to grades which attract a lower salary. This is one of the potential consequences of regularising historic pay policies and structures. I note you say that you raised questions as part of the consultation process which were unanswered, but I do not appear to have a record of those. In any event you did not exercise your right to appeal the grading decision by 11 March 2022, and nor did you request any further time to do so. One of the potential outcomes of an appeal would have been to overrule the grading decision and, if that were to have happened, any concern you had over implementation of the decision would have fallen away. Your reference to working under protest (which I believe is the first time 26 of 88 you have made this known) and to the SSRO making unilateral changes to your conditions of employment, is presumably reference to the SSRO giving effect to the above grading decision. It has never been the SSRO’s intention to unilaterally change your contract of employment. We will make every effort to obtain your voluntary agreement to the contractual changes before the pay protection period lapses in April 2024. If, despite those efforts, we are unable to agree between us the proposed changes and your salary remains above the top of band 2 at the end of the pay protection period, we would give notice to terminate your current contract in accordance with its terms and offer reengagement on a new employment contract which incorporates the proposed change. Of course this is a measure of last resort and we hope not to be in a position where we need to take that course of action. It is also entirely possible that, by that time, re-valorisation of the pay bands will mean that the differential between your current salary and the top of band 2 will either be de minimis, or indeed that there will be no reduction applied to your salary at all. Pay award Your email does not expressly refer to the outcome of the 2022/23 pay award decision, but since it was sent in response to Ruaidhri’s letter of 7 November which confirms the outcome of this year’s pay award decision I thought it best to further clarify the position. Pay awards are discretionary and entitlement to any pay award is not automatic. Your employment contract provides as follows: “Your salary will be reviewed annually and may be increased from time to time at the SSRO’s discretion. You will be notified in writing of any increase to your salary. However, there is no obligation to award an increase.” As explained in the letter, the SSRO received ministerial approval for an overall award of 3%. In September 2021, the People Committee decided to use an objective approach of distributing this year’s award differentially between employees based on their position within a particular grade. For those whose salary is currently above the top of their pay band, it was decided that no pay award would be given. Of course, existing non-consolidated awards (such as the award you received in April this year) continue to operate, with amounts available for distribution increased in accordance with the agreed pay remit. Going forward we intend to implement a Pay Management Guide from April 2023, which will provide a framework for pay arrangements, including the distribution of pay awards. We circulated a draft of the guide to all employees on 26 September 2022 and ran a consultation on this until 15 November 2022. As part of that exercise, we have held two 27 of 88 lunchtime drop-in sessions for anyone to ask questions or to raise any concerns and will shortly be releasing a set of FAQs based on the feedback and questions received so far. I will also make myself available to anyone who wishes to discuss the proposed guide. Any feedback you can provide to this will be welcomed and I would urge you to do this if you have not done so already. Both Ruaidhri and I continue to make ourselves available to discuss any aspect of the grade matching decision process, or the pay award. I would also remind you that we have an Employee Assistance Programme available, which is a confidential service operated by Health Assured who can offer confidential expert advice if needed. Contact and access details can be found on the SSRO’s intranet page. Kind regards,

[74]I find that this is a fair and accurate summary of the events. I also find that the Claimant had not, prior to his 7 November 2022 email, made clear to the Respondent that he was working under protest. The Claimant did not challenge, in any reply, Mr Swift’s 18 November 2022 contention that the Claimant had, on 7 November 2022, mentioned working under protest for the first time (see also RMWS58 as I accept that he also had not heard the Claimant say this). I accept the Respondent’s submission that the Claimant had demonstrated his ability to write in robust terms and contest other matters.

[75]The Claimant’s email of 7 November 2022 could not constitute an appeal/request for review of the Respondent’s grading decision [CWS25] not least because:75.1 it postdated the deadline by nearly eight months;

75.2 on 28 June 2022 he had sent an email (related to the termination of his fixed term contract) saying [HB968]: “As you know, I dispute the findings of the Beaman’s review and to date have yet to receive any form of acknowledgement or response to the matters I put to you in writing as part of the consultation process. Had I received answers to my questions, I would have formally appealed the decision made on the basis of unfairness and poor process.”.

75.3 the Claimant’s oral evidence under cross examination on the question of whether he had appealed was not coherent. He said he had formally appealed by saying he was working under protest [CWS25]. But, even if said (and I find it was not), that could not be taken as an appeal and it did not comply with the reasonable requirements of the letter dated 15 February 2022 (sent 22 February 2022). His email of 28 June 2022 made clear that he did not consider that he had formally appealed. He said that he did not go down the recognised route because he did not think he would get a fair hearing. However,

(i) there is no basis for the asssertion 28 of 88 that he would not get a fair hearing

(ii) it is in any event not a plausible position for the Claimant to take given that he felt able to challenge other decisions of the Respondent and get a fair hearing (he challenged the termination of his fixed term contract and, as will become clear, raised grievances) and

(iii) this was not the reason he gave in his 28 June 2022 email. The Claimant tried to answer this by drawing a distinction between appealing and formally appealing and saying that his 28 June 2022 email was not a reference to a formal appeal. This would imply that his comment about working under protest constituted an informal appeal but that is contrary to what the Claimant said at paragraph 25 of his witness statement. The Claimant ultimatelty accepted in cross examination that he did not have a response to this and that he was confused. However, he continued to maintain the untennable stance that saying he was working under protest could stand as a formal appeal when (even if it had been said) fell considerably short of the reasonable review process requirements.

[76]On 22 November 2022 the Claimant wrote to Ms Nixon as follows about his salary review [HB643]: Further to my objection to the Chief Executive’s decision to enforce a salary correction which you have previously been made aware of, I should be grateful if you would confirm that the Board is to maintain the Chief Executive’s position that any member of staff who refuses to accept a unilaterally imposed reduction in pay at some point in the future shall be dismissed. For your information, I copy below a statement included within an email that Neil Swift sent to me on 18 November last: “It has never been the SSRO’s intention to unilaterally change your contract of employment. We will make every effort to obtain your voluntary agreement to the contractual changes before the pay protection period lapses in April 2024. If, despite those efforts, we are unable to agree between us the proposed changes and your salary remains above the top of band 2 at the end of the pay protection period, we would give notice to terminate your current contract in accordance with its terms and offer re-engagement on a new employment contract which incorporates the proposed change.” I should be grateful if you would confirm or otherwise the Board’s position in this regard.

[77]On 1 December 2022 Ms Nixon fairly replied to the Claimant as follows [HB644]: Subject: Email of 22 November 2022 I refer to your email to me of 22 November 2022 in which you have 29 of 88 sought the Board’s position on the way in which the SSRO will give effect to the outcome of the job evaluation exercise which was notified to you in February. I note that you have copied the SSRO’s Non-Executive Board members into the email. I respectfully request that, in future, you do not involve Non-Executive Board members in matters which are within the Chief Executive’s remit without his consent. You should raise these matters directly with the Chief Executive in the first instance who will decide the extent to which Board involvement is appropriate, having regard to due process and the Corporate Governance Framework. If, having raised the matter with the Chief Executive you have enduring questions or concerns, I would be happy to talk with you directly about those and how they can properly be escalated. I cannot accept, however, employees acting in a way which could (whatever your intentions) be perceived as undermining the Chief Executive or organisational authority, when procedures for raising concerns and corporate governance are clear and there is (so far as I can see) no reason for these procedures not to have been used. Turning to the substance of your email which concerns the way in which the SSRO intends to give effect to the outcome of the job evaluation exercise, we fully expect this to be a result of negotiation and voluntary agreement with those employees affected. To be clear, we do not at this stage anticipate having to terminate employment contracts and then reengage employees on revised terms. I have been sighted on the full version of the Chief Executive’s email to you of 18 November, from which you cited only an extract, and he is correct when explaining that such a measure would only ever be a last resort. We would never take such action lightly and any action we do take would only be in accordance with the law as it stands at the relevant time. The SSRO must ensure that job roles are assigned to pay bandings based on a rational and objective job evaluation methodology which supports non-discriminatory, impartial judgements about those job roles and challenges. In circumstances where employees whose salaries are, for historic reasons, in excess of the pay band maximums, it would be neither reasonable nor rational for the SSRO to disregard the job evaluation methodology or pay grading framework and to allow pay disparity to continue indefinitely, not least because of the risk of equal pay claims. We fully recognise however that a reduction in salary, however small, may have an impact on employees and, for that reason, we have set a two-year period of pay protection for those employees affected. The Chief Executive also explained in his email that, by the end of the pay protection period in 2024, re-valorisation of the pay bands may well 30 of 88 mean that no reduction would be needed to your current salary at all. What is important now is that discussions and negotiations to reach agreement with affected employees are constructive, that all alternatives are explored and that we all remain focused on reaching a consensus. To that end, I will ask Neil to take forward plans for a programme of individual consultation with those affected, including interaction with the proposed revalorisation exercise. Do let me know if you have any questions on the content of this letter.

[78]On 17 May 2023 Mr Swift sent employees the final version of the pay management guidance following consultation, assistance by staff representatives and final approval from the People Committee in March 2023 [HB540]. 3 July 2023 – Mr Russell comes into post as CEO

[79]On 3 July 2023 Mr Russell started as the Respondent’s new CEO.

[80]I accept Mr Russell’s [JRWS21] evidence that in July 2023 he asked the HR Manager to commission an independent consultancy to conduct a ‘revalorisation’ exercise for the Respondent to assess whether, due to inflationary impacts, the new pay band ranges needed to be uprated to remain market competitive. The outcome was not a recommendation on how any pay grade boundaries ought to move, but a suggestion that any shifting of the boundaries target the lower pay bands more than the higher ones. In July 2023 the Respondent’s People Committee (at that time a formal sub-committee of the Respondent board) whose remit included employee renumeration agreed increases to the pay band minima and maxima backdated to April 2023 as follows:• Grades 0-2 by 2%.

• Grades 3-7 by 4.5%.

[81]It was also decided that, except in exceptional circumstances, another revalorisation exercise would not be undertaken for at least three years.

[82]On the day that Mr Russell started in post the Claimant sent him and Ms Nixon an email to ask for an extension of three months to an arrangement that Mr Swift had put in place (temporarily increasing the Claimant’s hours to 1 FTE - above his 0.8 FTE permanent contract)). The arrangement was due to expire on 17 July 2023. The Claimant asked for this extension to be agreed by 5 July 2023 to meet that month’s payroll cut off deadline, so it required urgent attention.

[83]Mr Russell took the reasonable decision, having investigated the circumstances, to let the arrangement to expire as per the previous agreement because the agreement to extend the Claimant’s hours was based on a need to cover the lack of a Senior Governance Manager (SGM) and to support an office move to 100 Parliament Street. By that point the office move had been successfully 31 of 88 completed and the SGM had been appointed. Mr Russell explained his decision on a call with the Claimant on 4 July 2023. He also made it clear to the Claimant that he was not expecting the Claimant to carry out a full-time role in 0.8 FTE hours and proposed that they discuss what might need to change to make his workload reasonable (if it was not). I accept that Mr Russell also said that he was committed to reviewing the longer term demands of the Claimant’s role. I accept Mr Russell’s evidence that the Claimant was very unhappy with his decision, raised several different points of concern about his feelings on how he had been treated by the organisation and his mental health and then ended the call abruptly. I accept that Mr Russell is an experienced people manager including building relationships where there has been discord. I accept that his intent was to support the Claimant, build a relationship with him and work through the issues. Later that day the Claimant told Mr Russell that he was ill and would be on sick leave. Mr Russell showed concern and referred the Claimant to the EAP and asked for the Claimant’s consent to refer him to OH for assessment. The Claimant was on sickness leave up to and including 8 October 2023.

[84]On 14 September 2023 Mr Russell sent an email to the Claimant [HB646] which was supportive with respect to OH recommendations and returning the Claimant to work. He asked the Claimant to complete a stress risk assessment. His email also said: “Separately, you raised in your email of 5 September your previous request to extend your hours to 1.0 FTE. We discussed this request at our meeting on 4 July and I committed to undertake an assessment of whether the demands of your role justified it being full-time. I had been awaiting your return to start that process but given its importance to you and to avoid further delays, I intend to initiate that assessment now. The assessment will be conducted by Veran, the firm that you had appointed to review another role in the SSRO. Assuming your input is required before your return to work, please confirm you are happy to be contacted about this. In addition to our call next Tuesday, if you would like to talk through any aspects this email please do let me know.” 22 September 2023 – Meeting between the Claimant and Mr Russell

[85]On 22 September 2023 Mr Russell, Mr Magee and the Claimant had a meeting. Mr Magee recorded the key points in an email to Mr Russell (worded as an email to the Claimant) which the Claimant accepted was accurate [HB955] and said: Following your meeting with John on Friday, which I think we can all agree was a very positive one, here are the actions you and John agreed (the numbering below reﬂecting the numbered requested actions in your completed Workplace Stress Assessment Questionnaire): 32 of 88 1. It was agreed that you would be allowed an out-of-time appeal of your role grading decision of February 2022, which John will Chair. 2. Agreed that this would be subject to the outcome from point 1 above. 3. We explained that the SSRO and the board are committed to our adopted REACH behaviours and that any deviation from these can and should be dealt with under our existing procedures. In relation to your request that a complaints procedure be introduced, it was conﬁrmed that there was already such a process in place in the form of a grievance procedure which is set out in the Staff Handbook and that a grievance could be raised against anyone at the SSRO. You conﬁrmed that you did not wish to raise a grievance at this time. 4. Covered under point 3 above. 5. As agreed in your meeting with John in July, prior to your sickness absence, an independent review of your role will be undertaken to establish whether its demands reﬂect a full-time or part-time position. It was agreed that the SSRO would approach Veran to undertake the review or seek a suitable alternative if they lack the capability. 6. Your proposed phased return to work was provisionally agreed subject to the outcome of a second OH referral (referred to below):a. First 3 weeks at 2 days a week, with daily manager check in [potentially w/c 9th, 16th, 23rd October];

b. Next 3 weeks at 3 days a week, with start and end of the week manager check in [potentially w/c 30th October and 6th and 13th November];

c. From week 7 return to normal 4 days a week, with weekly manager check in [potentially w/c 20th November]. For non-working time, we conﬁrmed that you could elect to use annual leave. Based on the proposed phased return to work from 9th October set out above this would result in a total of 14 days of annual leave being utilised. (if you could let us know your intentions this would assist with budgeting). 7. It was conﬁrmed that you are entitled to apply for ﬂexible working for the purposes of contractual home working, and you said you would do this on your return to work. 8. We discussed and considered the points you had raised about 360- degree performance reviews. You said that you thought the responses you had received as part of the reviews were not made in good faith – you conﬁrmed that you would be content to receive criticism if you had a 33 of 88 right to reply through John. We would therefore propose that if you share who you requested feedback from that John could follow up with those colleagues willing to privately share with John to better understand their remarks. We would therefore be grateful if you could let us know which colleagues from whom you had requested 360-degree feedback. Additionally: You agreed to participate in a further OH review to establish if you are now ﬁt to return to work given the actions to facilitate your return, having regard to your health. We will be in touch with you this week to agree the proposed questions for OH to consider. In relation to the previous OH reference of “independent facilitation” between you and the SSRO, you conﬁrmed that you did not see the need for this. We are greatly looking forward to seeing you back at work, hopefully next month, and in the interim if there is anything we can do to help do please just ask.

[86]The Claimant did not take up the opportunity for an out of time appeal of the role grading decision of February 2022 (one year and seven months earlier). Breen report

[87]Mr Russell asked Mr Magee to arrange an independent assessment of the Claimant’s role to determine whether it should be converted from 0.8 FTE to full time. He first contacted a company named Veran who the Respondent had used before but they did not have the necessary expertise. Mr Magee therefore sought the expertise of an HR company called Breen & Associates. They were commissioned at the beginning of October 2023.

[88]In order to understand the demands of the role Breen met with the Claimant, Mr Russell (who had been covering the role in the Claimant’s absence on sick leave, the other two directors and a sample of Claimant’s direct reports. Breen were also provided with a number of documents. Breen produced an initial report in early November 2023 concluding that the role could be performed in 0.8 FTE hours. The report was critical of the Claimant (in particular his leadership skills and capability) and the Respondent felt that it went beyond what had been asked for. I accept as plausible that the Report reviewed the Claimant’s performance because the Claimant himself had stated in the review process that he needed to be full time because of the lack of capabilities in his team members, Breen investigated that and disagreed.

[89]Understandably not wanting to make the situation with the Claimant worse, Mr Russell asked for another version of the report to be produced which was “less inflammatory”. The revised version was received on 14 November 2023. It reached the same conclusion and Mr Russell met with the Claimant the following 34 of 88 day to explain his decision based on the report’s findings [HB661]. The Claimant did not respond to well to the decision and was quite aggressive on the call. After the call the Respondent sent the Claimant the Breen report and the Claimant reacted negatively to the criticisms of him that remained in the report (notwithstanding that the more inflammatory comments had been removed).

[90]Mr Russell asked Mr Magee if his instinct was correct that the Claimant should not have a right of appeal. Mr Magee confirmed that position on the basis that it was a straight forward management decision and the Claimant not been promised a right of appeal.

[91]On 17 November 2025 Mr Russell sent the Claimant an email as follows which I accept as being an accurate reflection of the meeting [HB958]: I thought it important to note the main points of our discussion on 15/11/23 on the outcome of the independent review looking at whether your current role should remain as four days a week or be increased to ﬁve days. I conﬁrmed that we had received the draft report and I wanted to share the outcome with you as soon as possible. I said that the review has found that your current role is deliverable in four days a week with the current teams and resources at your disposal. This conclusion was reached through an independent and objective process following the consultant’s wide-ranging assessment. I promised to share the report with you as soon as possible. I acknowledged that this was clearly disappointing for you, but I saw no reason to dispute the ﬁndings of the reviewer and I had previously promised to abide by its ﬁndings in reaching my decision, whatever the outcome. You raised a number of points in the discussion that followed where in summary you do not accept the ﬁndings and believe that you are overworked and unable to deliver the current requirements of the role without additional resources. You said your team was much smaller than in the past. You also indicated that you do not believe your current team is able to deliver for you which necessitates further work by you, some of which, in the past, was undertaken by the previous CEO. I said that I did not accept that analysis and that I felt your role had an acceptable workload with an experienced team, which is not currently carrying any vacancies. I said that I think we will need to work together to understand the best way for you get the most out of your team. I also asked that you commit to continue to deliver your current role (accepting that you are on a graduated return to work). Though I accept that my decision was a difﬁcult message to hear, at times I felt you became agitated and aggressive in your tone during our conversation, and I had to remind you of my expectations of personal behaviour in workplace conversations. You apologised. 35 of 88 I then talked about our need to negotiate going forward to reach agreement on a new contract by April next year and that I was open to hear suggestions from you about how we could ‘close the gap’ between your current salary and what it will move to next year. I said that I thought we should focus on what would work for you and the organisation to resolve this issue so that we can move forward positively and productively. I said that I had some ﬂexibility to negotiate a resolution. You did not commit to come back to me on what would work for you, but I am now reiterating this offer. I feel conﬁdent we can reach a positive conclusion. I have subsequently received your email requesting details of who you can appeal my decision to. To clarify, I commissioned an external review of your role, without any obligation to do so, to assist me in making a management decision about whether the demands of your role might warrant it changing from a 0.8 FTE part-time role to a full-time one. I conﬁrm that there is no right of appeal against my management decision. I am of course happy to discuss the content of the report as part of our normal course of 1:1 meetings, now that you have been provided with a copy. Moving forward, as a sign of good faith I would suggest that you might consider whether there are extra responsibilities you would be prepared to take on that would allow me to consider some adjustment to your working hours which would help maintain your current overall remuneration level from April 2024. I will schedule a follow up meeting with you next week to discuss further.

[92]There was a further meeting between Mr Russell and the Claimant on 22 November 2023 in which the Claimant expressed his ongoing dissatisfaction with the outcome and continued to press for an appeal.

[93]I accept that Mr Russell made no interventions in the findings of Breen’s independent report (other than those referred to above), that it was an independent assessment which the Respondent was reasonably entitled to accept and that it was reasonable for the Respondent not to offer an appeal in the circumstances. As Mr Russell made clear under cross examination, owing to the Claimant’s sickness absence, Mr Russell had worked with the Claimant’s team and had his own understanding of the work that the Claimant undertook and so the demands of the Claimant’s role.

[94]At the 22 November 2023 meeting (and consistent with his previous email) Mr Russell also understandably raised the need for the Respondent and the Claimant to agree a new contract that would align with the pay and grading structure that had been implemented in the organisation following the Beamans review (the Claimant’s pay protection period for his contract was due to expire in April 2024). Mr Russell wanted to allow time for dialogue and negotiation of a new agreement that worked for the Respondent and the Claimant. I accept that 36 of 88 he said that the Respondent had some flexibility to negotiate and felt confident a positive resolution could be reached. He made an opening suggestion of considering some additional duties that the Claimant might be willing to take on which would represent a small increase in his working hours that would allow him to maintain his existing remuneration package after April 2024 and so that he would not be financially worse-off. I accept that he made clear that he was open to hearing the Claimant’s counter-proposals. 28 November 2023 - Claimant’s first grievance

[95]On 28 November 2023 the Claimant raised a formal grievance against colleagues TD and JM [HB708]. This was following the Claimant’s receipt of a response to a Data Subject Access Request (DSAR) of February 2023. The Claimant made clear that this was not part of his complaint to the Tribunal.

[96]I accept the Respondent’s submission that, by seeking to carve out this grievance and the conclusions from it, the Claimant was trying to avoid a factually unhelpful point which is nonetheless relevant context.

[97]Mr Russell acknowledged the grievance on 7 December 2023 [HB879]. 8 December 2023

[98]In early December the Claimant and Mr Russell exchanged emails with respect to the grievance process [HB665-666, 880-884], the Claimant having been invited to a grievance meeting.

[99]On 13 December 2023 Mr Russell followed up on a request that the Claimant consent to an OH referral and the Claimant consented [HB885-886]. 21 December 2023

[100]On 21 December 2023 Mr Russell sent the Claimant the following email: I hope your recovery is progressing and I am pleased to hear that your OH referral meeting has been arranged and I look forward to receiving the report so the SSRO can ensure we have a clear indication of any reasonable adjustments which it recommends be put in place for your return in the new year. I will ask Beccy to arrange a virtual meeting for 3rd January to discuss your return to work which according to your latest fit note would be shortly afterwards. In the meantime, I am keen to ensure that we have adequate time to consider options around your contract of employment from 1st April 2024. I am agreeable to allowing options to increase your weekly hours such that your (pro-rated) salary from April will align with your current (pro-rated) salary of £103,412. The aim is to address the delta of £5,492 per annum resulting from your pro-rated salary adjustment which is calculated as set out below: 37 of 88 […] I want to remain focused on looking to agree a change to your current contract working hours to maintain your salary and based on previous engagement I have assumed that you will want to pursue a home working option. Please let me know if that is not the case. Based on an estimate of your typical travel costs calculated and an assumption that your role will require attendance to the office at least once a week with additional attendance at meetings (e.g. Board, committees, SLT/EC) as needed. I have calculated an indicative travel cost delta. TRAVEL COST DELTA: Based on your last travel claim in June, the cost of home to office travel was £44.20 per trip compared to the standard claim per trip of £14.90, resulting in an additional cost of £29.30 per trip. Based on 46 working weeks and recognising your attendance at Board and Committee meetings will potentially result in at least twelve weeks when you need to come into the office more than once. Travel costs: 58 x £29.30 = £1,699.40 Based on a delta of £5,492 per annum less home working delta of £1,699.40, gives a remaining delta of £3,792.60. The additional hours required at £122,400.00 to bridge this remaining difference is the need to work an additional 1 hour and 9 minutes per week, increasing from 29.60 hours to 30.75 hours per week. CHECK: £122,400.00/37 hours 30.75 hours = £101,724 plus the travel costs of £1,699 = £103,423 per annum Whilst the SSRO still awaits the results of its budget submission and are conscious of affordability issues next year we are still keen to move forward with your negotiations and reach agreement in a timely manner. I look forward to hearing your thoughts on this option. Regards, 2 January 2024

[101]On 2 January 2024 the Claimant and Mr Russell exchanged the following emails [HB889-890]: C to JR: Subject: Absence due to ill health 38 of 88 Dear John, Please note I have been signed-off until 4 February 2024 due to workrelated depression and anxiety. JR to C: I’m sorry to hear you’re still not well. Thanks for emailing me with an update and please forward your ﬁt note by return. In line with our sickness absence procedure please in future ensure that you contact me as your line manager by phone. Given the delay in your return to work we will use tomorrow’s meeting as a keeping-in-touch meeting. Thereafter I would be looking to set up a regular meeting (at least weekly) so you can provide an update on your health and allow us to work together on the issues that need to progress during your continued absence. Please note as from tomorrow you will have exhausted your full sickness pay, which I suggest we can discuss at tomorrow’s meeting. Regards, John C to JR: Sorry John, but we agreed you would only contact me when an urgent business need arose and I do not consider this to be such an example of that. Please stick to what has been agreed and I will be in touch once I am ﬁt to do so. I do not welcome these constant demands and ask that you respect my privacy and convalescence; this also applies to your persistent demands that I accept your unilaterally imposed pay cut, which I will not accept. In terms of the matter of my pay, I believe my return to work last year was delayed at your request, so please factor in this time when calculating my pay. In order to protect my health, please do not email me without my prior consent. Should an urgent business need arise, please phone or text my personal number. 39 of 88

[102]An OH report of 2 January 2024 said (amongst other things): Mr. Wetherell told me that he also considers that he is being bullied at work by both the people whom he manages and his own management. He requested some information from his employer as a subject access request and was provided with some emails that he felt were derogatory about him. Mr. Wetherell told me that he read the emails for the first time in November 2023. Mr. Wetherell thinks that he knows who sent the emails. However, he cannot prove this as the names have been redacted. Mr. Wetherell has submitted a grievance in relation to this. However, he is unaware of any action being taken. He told me that he has been advised that he will need to return to work in order for the grievance to be dealt with. Mr. Wetherell advised me that after reading the emails about him, he no longer feels safe working alongside his colleagues and that he considers his work environment to be toxic. He advised me thathis confidence has been impacted and that reading the emails exacerbated his mental health symptoms and resulted in his current absence. 2. If work is the cause of Mike’s poor mental health, what does he and OH consider the organisation could or should be doing to alleviate this (beyond the requests he has already made and the SSRO has actioned)? I think that it may be helpful if the grievance issue can be addressed during Mr. Wetherell’s absence and that he is reassured of the process that will be followed should there be any further perceived bullying issues on his return. Mr. Wetherell would be willing to cooperate with the grievance process via written communication/email during his absence. It would appear that Mr. Wetherell feels that trust levels with his employer have been compromised. In order for a successful return to work, I think that it is important that any trust issues are addressed. Mediation could be a means of trying to move forward with this. […] At this stage, no further Occupational Health intervention is indicated, and this case will now be closed. […]

[103]As such the OH report did not say that the Claimant should only be contacted by the Respondent for urgent business matters. 40 of 88 4 January 2024

[104]On 4 January 2024 Mr Russell wrote to the Claimant as follows [HB891]: 4 January 2024 Subject: Absence, grievance and pay negotiations I write following our email exchanges of 2 and 3 January 2024. including the notification from you that your sickness absence has been extended until 4 February 2024. To ensure that your entitlement to contractual sick pay continues, please do forward the relevant fit note. I refer specifically to my email in which I suggested that we re-purpose the scheduled pre-return to work meeting as a keep-in-touch meeting and your request in response that I do not contact you during your sickness absence except for urgent business needs and with your prior consent. I am afraid that I am unable to agree to that approach, which is simply not tenable in the circumstances and inconsistent with our procedures. My email to you of 8 December 2023 confirmed that I would try to limit contact as much as is reasonably possible, which of course I will do, but I also noted that there were on-going matters which necessitated a certain level of engagement. The matters on which I need to engage with you are important as they relate directly to your health and sickness absence, your grievance, your pay and contract, and the multiple concerns you have raised about the SSRO. Indeed several of the issues appear to be matters that you say are causing your mental health condition (and therefore your continued absence from work), and so I would have thought that this is more reason to attempt to reach a resolution in order to facilitate your successful return as soon as possible. As things stand, the findings of the occupational health reports received to date have not given any indication that I should refrain from making reasonable (or any) contact during your sickness absence, and nor has there been any concerns raised that you might be unable to dial into periodic meetings with me for the purposes of keeping in touch. As has been my position since I started at the SSRO in July 2023 I am happy to offer remote arrangements where those are needed. I have also been content to implement any reasonable adjustments you may need to support your return to work, and this extends to our interactions during your sickness absence. However, as set out in the Staff Handbook. I am required as your line manager to keep in touch with you during your absence and you are encouraged to cooperate with reasonable requests to attend meetings. Given your current unwillingness to engage with me, which I ask that you reconsider, I have set out in this letter my expectations and position in relation to the pressing matters. 41 of 88 Sickness notification and management I am concerned that you are not following the SSRO's sickness absence procedures as set out in the Staff Handbook. This includes the requirement that you notify me, as your line manager, by telephone (and not text or email) on the first day of your absence and that you provide updates on your progress. I would remind you that a failure to follow the sickness absence procedure may result in disciplinary action and the SSRO withholding contractual sick pay. We want to avoid such a situation arising and I therefore ask that, going forward, you comply with the procedure. If there are any requirements which are unclear, or in respect of which you have any concerns about your ability to comply, please do let me know. I will ask Beccy to schedule short catch-up calls with you once per week and I would encourage you to attend. I can of course reschedule these calls at days and times to accommodate your ongoing medical appointments. Sickness absence and pay. I note that over the last 12 months you have had 75 days of sickness absence and your latest period of sickness, assuming it runs to 4 February 2024, will have lasted 36 working days. I confirm that your last day of full sickness pay entitlement was 2 January 2024 and so from 3 January your entitlement reduces to half pay in accordance with the terms of your employment contract. If you wish instead to use any of your remaining annual leave balance during this time (for which you would receive full pay). I am content to authorise that upon request. I note in your email of 2 January that you believed your return to work last year was delayed at my request and you have asked that I factor this into our calculation of your contractual sick pay entitlement. I refer you to our email exchanges of 4 and 5 September 2023. As you may recall, towards the end of your notified period of sickness absence I enquired whether you intended to speak to your GP about extending your sickness absence or returning to work. In response to your offer to seek another fit note from your GP I suggested that this would be a sensible approach. At no point were you prevented from returning to work and, given this extended period was covered by a fit note confriming you were not able to work, I am afraid that I am unable to extend your entitlement to full pay beyond 2 January 2024. I am happy to discuss this with you further if needed. Following our recent (and third) referral of you to occupational health, I understand that you attended the meeting with the OH doctor on 2 January 2024 and I hope that went well. I am keen to review any advice or recommendations contained within the report to determine whether 42 of 88 any further reasonable adjustments are needed and we can discuss the findings when the report is received. To date, as a reasonable adjustment, we have adapted the sickness absence management trigger points. I do wish to raise, however, the significant challenges being faced by the organisation owing to your continued and long-term absence. This is one of the reasons it is important that we can discuss, supported by the OH findings, a reasonable and sustainable return to work, as soon as possible. I have previously offered some suggestions, but if you can think of any additional measures in the meantime which might facilitate that, please do let me know. Grievance You emailed me on the 20 December to request that I progress, without holding a meeting with you, your grievance concerning allegations of bullying and harassment, which you say is evidenced in messages between SSRO employees disclosed to you under your first subject access request. I was reluctant to do this as I wanted to understand better from your perspective the issues, how you wanted the grievance resolved and to potentially seek clarifications on questions I had before progressing. As explained in my email of 20 December, I am additionally including as part of your grievance your stated concern relating to the safety of SSRO employees who suffer from mental health conditions. I have already explained that I have undertaken some preliminary work but have not finalised the matter without your involvement. However, given your unwillingness to engage with me, and your request, I am reluctantly willing to conclude the matter. I therefore intend to do so and will report back to you with my findings and the outcome, in due course. If there is further information you wish for me to consider as part of my investigation, or you have now decided that you do wish to engage with me as part of that investigation, please do let me know. Pay and contract negotiations. We have previously discussed at some length the need to agree the terms of your salary adjustment from April 2024 and you have received my latest offer which is aimed at keeping your overall remuneration package the same as it is currently (but with a very modest increase in your contracted working hours). Your latest email indicates your rejection of this offer, as you say it is a unilaterally imposed pay cut. I am of course disappointed that you do not feel able to accept the offer, which all other affected employees have done. Nonetheless, I confirm that the offer remains open to acceptance and should you wish, I am also happy to explore any alternative proposals you might have. Given the end of your pay protection period from April 2024, it is important that we attempt to reach a consensus and 43 of 88 I propose that we use our catch-up calls to progress this during your current absence. I look forward to hearing from you and hope your recovery is progressing well. All the best, […]

[105]This was an entirely reasonable piece of correspondence for Mr Russell to have sent the Claimant in the circumstances.

[106]On 11 January 2024 the Claimant failed to attend a keeping in touch call [HB895]. On 17 January 2024 the Claimant sent an to say that he would be returning to work on 23 January 2024 on a full four days per week basis. He asked to meet that Monday to discuss his grievance and DSAR materials. He declined to meet as scheduled before returning to work [HB896]. 18 January 2024 – Second grievance and instruction of Mr Feeny

[107]On 18 January 2024 the Claimant raised a second grievance, sending it to Ms Nixon [HB710]. As I will explain, the first and second grievances were investigated independently by a barrister called Jack Feeny of No5 Chambers. He scoped the grievances with the Claimant and summarised the complaints in his report as follows [HB719 and 728]: First grievancea. Whether JM and TD sent Teams messages about MW that were offensive and in breach of internal SSRO policies;

b. Whether JM and TD were “working against” MW;

c. Alleged poor performance by JM;

d. Unfair criticism of MW by JM to Jo Breen;

e. Whether trust and confidence between MW and JM and TD has been irretrievably lost. Second grievance a. In their first formal meeting JR told MW he would not increase his hours; b. The Breen report and JR’s refusal to allow MW to appeal it; c. JR persistently asked MW to agree to the new contract; 44 of 88 d. Inappropriate contact whilst MW was absent from work in December 2023 and January 2024; e. JR snaps at senior staff in meetings and doesn’t like being challenged;

f. JR is deliberately seeking to erode trust and confidence between MW and the SSRO (which also amounts to disability discrimination);

g. JR is attempting to remove MW from the SSRO before he reaches 55 (which amounts to age discrimination).

[108]Owing to the fact that the Claimant had been signed off by his GP until 4 February 2024 and yet was proposing to return to work on 23 January 2024, Mr Russell by email on 18 January 2024 understandably sought reassurance from the Claimant that he was fit to return [HB898]. Mr Russell also attached a letter setting out the arrangements that the Respondent had made for the determination of the Claimant grievance. I accept Mr Russell’s evidence that Mr Magee decided to appoint a barrister to conduct the investigation because of the complexity of the issues raised and because many of the aspects of the Claimant’s grievances were directed at members of SSRO staff, including Mr Russell. There was no one else within the organisation who was independent and able to investigate the grievance. Mr Russell, reasonably considered that the independent investigation that the Respondent had opted for gave the best chance of the outcome being accepted and the problems being resolved. The investigation was carried out during January and February 2024. Mr Feeny interviewed and sought information from the Claimant, Mr Russell and other members of staff.

[109]On 19 January 2024 Mr Russell allowed the Claimant to remain off work on exceptional paid leave (from 22 January 2024 – 4 February 2024) rather than telling the Claimant that he could not come back and had exhausted his full sick pay [HB899]. I accept that this is an example of the Respondent exercising favourable discretion towards the Claimant.

[110]On 31 January 2024 Mr Russell wrote to the Claimant as follows [HB903]: Thank for sending through your most recent ﬁt note. Based on this my expectation is that you will return to work on Monday 5 February, resuming your contracted hours and role responsibilities. I have noted the request for one month’s homeworking as set out in the ﬁt note and conﬁrm that I will agree to this. I will ask Beccy to set up a return-to-work meeting for us on Monday morning. We have a scheduled a keep in touch meeting tomorrow where we can discuss further as needed. I would appreciate your conﬁrmation of whether you are planning to attend. 45 of 88 All the best, John 5 February 2024 – Return to work

[111]On 5 February 2024 the Claimant had a return to work meeting with Mr Russell at which Mr Magee took notes [HB682-684]. He then had the following exchange by email with Mr Magee [HB679-681, 687-693]: Claimant to RM Further to my meeting with John Russell this morning I feel that my return to the SSRO still presents me with a significant risk to my mental health and therefore I do not feel able to resume my duties whilst this situation continues. John Russell continues to harass me over my refusal to accept his unilaterally imposed reduction in pay (longer hours for the same pay is a reduction) and his assurances that this matter would be dropped are ignored. As a matter of urgency I should be grateful if you would advise me as to how I can return to work with out having to be submitted to John’s aggressive stance on my pay and his refusal to investigate policy breaches that should be reviewed internally and separately from the grievance process that is currently underway. From this morning’s meeting it is evident that John Russell is determined to enforce a pay cut that I have refused to accept on a great number of occasions. Given the ongoing process and the obvious concerns I have resulting from this morning’s meeting I would like to request that my line management responsibilities by temporarily reassigned to an appropriately senior individual until the outcome of my grievance has been reported. Given the current situation I am not sharing this email with John Russell. RM to Claimant Many thanks for your email and before responding fully I wondered if you could clarify a couple of points. When you say you do not feel able to resume your duties at the moment are these all your duties or just specific ones? You ask for line management duties to be reassigned, do you mean your line management of others or John’s line management of you? Claimant to RM 46 of 88 Hi Ruaidhri - I don’t want to place you in the middle of this as I believe you have done your very best to act objective , but I am now coming to the end of my resolve and the SSRO’s persistent harassment of me is reaching a point where, if things do not improve, I will have no choice but to engage directly with MOD. John Russell continues to do what he wants with no regard to the impacts of his actions and therefore I believe it is necessary that whilst I await the outcome of the investigation into John’s conduct it would be appropriate for me to take any leave I have left whilst an alternative line manager can be sought who I would report into. I beleive a member of the Board could undertake this temporary responsibility, or alternatively a senior member of MOD staff. Additionally, in investigating the messages that form the basis of my grievance against members of the finance team it appears a senior female member of staff felt it appropriate to discuss my performance with Jane McGovern and discussed with her her unhappiness at how I performed; therefore any proposed one-to-ones with this individual would be inappropriate and difficult for me as I expect a further grievance to be brought against her. I will continue to seek advice from my union and legal representatives on how I can best return to work and at the same time protect myself from the antagonistic behaviour that is continually deployed. John Russell persistently introduces into every conversation his determination to deliver a ‘done deal’ to the Board on the unilaterally imposed reduction in my pay, a demand I outrightly reject because of the subjective and discriminatory nature of the decision-making process applied. Can you please confirm how many days’ leave I have available and confirm I will be able to take leave with immediate effect? I would also appreciate who I should contact in relation to my request to have no further dealings with John Russell whilst the investigation into his behaviour is conducted. 19 February 2024 RM to the Claimant Please find attached the minutes of your return-to-work interview from Monday 5 February. I am also conscious that you are back from leave on Wednesday 21st February afternoon and further to the email below I wanted to clarify that I have discussed your line management and there is no practical alternative to your current reporting line and therefore you will continue to report into John. I will be in attendance at all meetings between you both 47 of 88 and these will be kept to a minimum and focused on day to day issues until the conclusion of your grievance. John will be writing to you shortly to set out the priorities for this week. 19 February 2024 Claimant to RM Thanks, Ruaidhri. With regards my line management, I have to strongly object to the stance the Board has adopted on this, and again I have to assume this is yet another attempt to force me from my position as Director of Corporate Resources. John Russell’s antagonistic and hostile behaviour towards me makes any attempt to work with him both highly uncomfortable and potentially harmful to my health. Until a successful mediation process has been completed and John Russell has had a chance to reflect and alter his aggressive style of management I do not see how I can return to an arrangement where I can have any form of contact with this individual that permits me to feel safe. The proposal that you attend all meetings has been attempted before, and in our last meeting John Russell still felt it appropriate to harass me about my contract of employment. The SSRO has a duty of care towards all its employees and members, and this simple dismissal of my reasonable request is reflective of the wider attitude of the leadership towards its refusal to enact our promoted REACH behaviours. The request to have a temporary line manager in place whilst this unfortunate issue is dealt with is entirely appropriate, proportionate and practicable, and by simply saying it is not, without providing any form of evidence as to why, is disappointing. Please note that as this is a situation entirely of the SSRO leadership's making any attempt by the SSRO to dismiss me citing a break down in trust and faith as a valid reason to dismiss me for ’some other substantial reason’ shall be robustly contested. The SSRO is obligated to ensure my working environment is safe and to not engineer a situation where faith and trust has been deliberately eroded entirely through its own actions and unilaterally-imposed changes to my terms and conditions of employment. With the above in mind, please revert to the Board or, if necessary, someone of an appropriate level of seniority within the MOD, and provide me with a point of contact ahead of any return. 20 February 2024 RM to the Claimant Evening Mike 48 of 88 Thanks for your email. We have considered all reasonable alternative line management arrangements, but as explained there simply are none that can be put in place. As you will appreciate, the Chair and non-executive Board members are not involved in the day-to-day operation of the organisation, with their remit being limited to strategic matters, rather than executive. Additionally, line management requires a significant time commitment, together with a detailed knowledge and understanding of the various workstreams and activities for which your directorate is responsible, and the time the Chair and Board members have available within the terms of their appointments is already under pressure. It would also be inappropriate for you to be line managed by an external organisation such as the MOD, who are of course the SSRO’s sponsor department. I note your concern that John may wish to discuss with you changes to your terms and conditions but given your position (which you also made clear at the meeting on 5 February) John has confirmed this will not be raised. I hope that this, together with the previous commitment given to you that meetings (for which I will be in attendance) will be kept to a minimum and concerned only with work activities, will provide you with any assurance you need. If, however, you feel you are not ready, willing and able to be managed by John because of your health, then this appears to me to be health-related absence. Clearly that is a decision you will need to make, supported by medical advice if necessary. We hope to see you back at work tomorrow afternoon but do let me know whether we should expect you. 21 February 2024 Claimant to RM Hi Ruaidhri, At the risk of repeating myself, the SSRO has an obligation under the Health and Safety at Work Act 1974 to provide me with a safe place of work. The two OH reports that have been conducted both indicate that my health has been negatively affected by the toxic environment I have had to endure, and we both know that the main causes of this toxicity remain. The SSRO, therefore, has an obligation to ensure I am not exposed to any action that may cause me harm, and the suggestion that I work with John Russell ahead of the conclusion of my grievances against him and the members of the finance team implies the SSRO is knowingly and willingly placing me in a potentially harmful situation. To be clear, I have had reassurances from John Russell previously that he would cease to contact me whilst I was off sick and would refrain from demanding that I consider his offer despite my firm and final position, and both of these promises were broken within days; I therefore am 49 of 88 unable to trust such assurances as things currently stand and am only able to consider returning to work once sufficient safeguards have been implemented. With this in mind, I am well enough to work (as confirmed by my fit-note the SSRO requested I provide) and will continue to offer myself for work, on full pay, but am unable to return under the existing conditions. Please note that any absences are as a result of the SSRO’s failure to provide a safe place of work, and should not be considered absence due to sickness. 23 February 2024 RM to Claimant Evening Mike Thank you for your email. I appreciate you stating that you are fit to work, but if that fitness to work is subject to the conditions you have outlined then it does not appear that you are currently fit to work. As such, your absence will be recorded as sick leave and I request that if you continue to be unable to work under our proposed arrangements beyond 28 February 2024 (being the 7th calendar day of your absence), you please obtain and submit a fit note. Please be aware, however, that absence from the 8th calendar day which is not covered by a fit note (to be submitted no later than the 10th day of absence) may be treated as unauthorised absence in accordance with the Staff Handbook. Do let me know if you have any questions. 26 February 2024 Claimant to RM Thanks for your email, Ruaidhri. For the avoidance of any doubt, I am fully fit and able to resume work, including attending the London office, but I will not knowingly place myself in a potentially harmful situation as a result of the SSRO’s failure to provide me with a safe place of work. I’m uncertain who is making these decisions, but given I have an extant grievance raised against John Russell and there is no one my senior on the staff, I have to assume the Board is responsible. The SSRO Board will be fully aware it has a duty of care to ensure its staff are safe and to not act in a deliberately negligent manner, and given the legal expertise on the Board I am surprised it has elected to act in such a way. In terms of your instruction that I claim I am unfit to work and seek a fit note, given that both my GP and I have advised that I am fit to work, I don’t see how you can maintain otherwise. Further, given that I am fit, to claim otherwise would be dishonest and I fail to see how I would be able to obtain a fit note given that I am fit to return to work. 50 of 88 I believe it would be appropriate for me to meet with the Board to discuss the issues that the SSRO seems to be unable to resolve sensibly and therefore request such a meeting be scheduled. I am available to meet with the Board at any time and am happy to travel to London to do this; I also believe it appropriate that all future correspondence relating to my return to work and my extant grievances be directly between the Board and me. In this regard, I will copy all my future correspondence to the Board so as to ensure there are no gaps in information and the process can run unhampered to its conclusion. I continue to be available for work, and expect to remain on full pay until such time as the SSRO can provide me with a safe working environment as per the HSWA 1974. I believe the Act takes precedent overt the stipulations contained within the staff handbook. It is unfortunate that I find myself in this position and am not being provided the support that you and the SSRO are obliged to provide under legislation and my contract. Whilst I hope that we will be able to find a way to move forward and a safe place of work can be provided, I should make it clear that it would be very disappointing if there were any attempt to instigate disciplinary action against me for absences which are the sole fault of the SSRO. In my view, such an act will have been designed to avoid having to dismiss me as per the Chair's stated position of using ‘fire and rehire’ and any such action would amount to further breaches of obligations owed to me including breaches of the Employment Rights Act 1996. I look forward to hearing from the Board directly with an offer of a date to meet and resolve this issue so that I can return to work.

[112]I find that the Respondent’s [JRWS61, 66, RMWS126] reasons for not being able to appoint a different line manager to the Claimant were clear and entirely reasonable. The Claimant’s reaction to Mr Russell’s attempts to find a resolution to the question of the Claimant’s pay following the Beamans process was not reasonable. The Respondent legitimately and reasonably wanted to resolve that question. As it had made clear on a number of occasions, the Respondent wanted to do all it could to avoid a need to terminate the Claimant’s employment and offer him reengagement on terms that reflected the outcome of the Beamans process (which the Claimant had not appealed in any event). Mr J Feeny’s report on the Claimant’s grievances

[113]On 23 February 2024 Mr Feeny had provided his report to the Respondent [HB714]. As regards grievance one, his summary conclusions were [HB726- 727]: 51 of 88 75. There is no evidence to support the grievance against JM. 76. There is some evidence to support the grievance against TD, in that a handful of messages that he sent arguably fall short of the expectation in the Code of Conduct that you treat colleagues with courtesy and respect. However, in deciding whether to partially uphold the grievance against TD I suggest the following are relevant considerations.a. Whilst some of the messages were unprofessional, gossipy, and mildly mocking of MW, viewed in their proper context, I do not consider that they can reasonably be considered to reach the threshold of breaching the Acceptable Use of IT Policy.

b. The “chartered accountant super power” joke was intended as a private joke between him and JM based on their experiences of MW publicly boasting about his qualification.

c. Accordingly, it was mocking MW’s apparent egotism, rather than his qualifications per se.

d. MW is considerably senior to TD in the organisation and, as a senior manager, should accept that he may find himself on the end of personal criticism or even mild mockery from his subordinates.

e. TD is genuinely contrite and has offered to apologise to MW for any offence taken.

[114]As regards grievance two Mr Feeny found that there was no evidence to support the grievance against Mr Russell [HB737]. Mr Feeny concluded that a separate allegation made by the Claimant against Mr Russell was not well founded and the Claimant was told this on 6 March 2024 by Ms Nixon [HB962]. Mr Feeny’s concluding recommendations were as follows [HB738]:133. It will be a matter for the relevant officer at the SSRO to decide whether to uphold any part of MW’s grievances based on the above conclusions.

134. I have addressed any misconduct issues arising out of my investigation in a separate report.

135. However, I am conscious that the working relationship between MW and the SSRO is close to irretrievably breaking down, if it hasn’t already.

136. MW was clear in our meetings that he had lost trust and confidence in the individuals he had brought the grievances against. That includes his line manager (JR) and one of his immediate direct reports (JM). For obvious reasons, that is a situation that is at risk of being unworkable and could make his continued employment untenable. 52 of 88

137. Whether that trust and confidence can be repaired depends in large part on whether MW can accept the conclusions of this report. This would include, for instance, an acceptance that he has damaged his working relationship with JM by casting aspersions against her character and competence which were not factually correct. He would also need to accept that JR has not acted out of malice in his management of him.

138. If MW is willing to reflect on these conclusions in the way I have suggested, then a pragmatic course of action would be to facilitate some form of mediation between MW and the affected employees. It is difficult to see how MW can continue to work with these individuals without such an intervention taking place and, ultimately, achieving some success. Mediation is, of course, a voluntary process and consent to it would be needed from the subjects of the grievance as much as MW.

139. Equally, if MW is amenable to the proposition, some form of refresher training on management skills with a particular focus on cultivating and maintaining good working relations may be of assistance, particularly given MW has not actively managed anyone for several months now.

140. Ultimately, the current situation is not a tenable one. The onus is now largely on MW to decide how he wishes to proceed and whether he truly wants to remain employed at the SSRO. If he does, then he must proceed in the spirit of compromise. 6 March 2024 – Claimant given outcome on grievances [HB960]

[115]Ms Nixon, having considered the content of Mr Feeny’s report, decided that the grievances would not be upheld (except that one junior member of the Claimant’s team would be invited to apologise to the Claimant for causing offence in relation to his Teams messages, which he had already offered to do).

[116]Mr Magee drafted a letter for Ms Nixon to send to the Claimant reflecting her decision and attaching Mr Feeny’s report which was sent to the Claimant on 6 March 2024 [HB960].

[117]Ms Nixon offered the Claimant the right to appeal her grievance outcome decision but the Claimant did not appeal. Offer of employment with GambleAware

[118]The Claimant entered into a contract of employment with GambleAware under which that employment was to start on 11 March 2024 [HB995, 997, 1008].

[119]Under the Claimant’s contract with the Respondent the Claimant was bound to give 12 weeks’ notice of termination [HB72]. However when, on 5 March 2024 he signed the contract to start with GambleAware, he could have given the Respondent no more than 6 days’ notice. 53 of 88 Letter of 6 March 2024 with new contractual terms and conditions

[120]On 6 March 2024 Ms Nixon sent the Claimant two letters which read as follows [HB698]: […] I am writing further to your most recent discussion with John Russell on 5 February 2024 about implementing the outcome of the SSRO’s 2022 job evaluation exercise. I believe that John has taken a number of steps over the last few months to consult with you with a view to reaching agreement over revised contractual terms in order to give effect to the outcome of the SSRO’s 2022 job evaluation exercise. The SSRO has made clear its intention to give effect to the outcome of the job evaluation exercise through negotiation with, and securing the agreement of, all affected employees. This approach has been successful in relation to the other affected employees, who have each voluntarily signed revised employment contracts. To my regret, you have expressed yourself to be unwilling, over that period, to entertain any discussion on the matter, nor consideration of the offers that John has made, including the longstanding offer which would see you retain your overall remuneration package with a modest increase to your contracted weekly working hours. A copy of the new contract terms incorporating that offer is enclosed for reference. In your discussion with John on 5 February 2024, you asked that he not raise the subject with you again (and that you would not entertain anything other than a continuation of your current contract terms). We cannot compel you to engage in consultation with us, the purpose of which is to listen to your thoughts so that we can see if we can find common ground. If you are not willing to engage with us, and are clear that your position is that you will not engage in consultation, then you have made your position clear and there can be no benefit from further consultation. There will, therefore, be no further attempts to consult with you, unless you indicate now that, in light of Jack Feeney’s conclusions, you wish to do so. This must be done by the end of this week. The SSRO must ensure that job roles are assigned to pay bandings based on a rational and objective job evaluation methodology which supports non-discriminatory and impartial judgements about those job roles and challenges. In circumstances, such as yours, where an employee’s salary is for historic reasons in excess of the relevant pay band maximum, I consider that it would not be reasonable for the SSRO to 54 of 88 disregard the job evaluation methodology or pay grading framework and to allow an unjustified pay disparity to continue indefinitely. The SSRO recognised in 2022 that a reduction in salary, however small, may have an impact on affected employees and, for that reason, offered a two-year period of pay protection for those employees affected. A central premise for the decision announced in 2022 was that this period would give employees enough time to make arrangements to absorb any reduction in pay at the end of that two-year period, which is now approaching. It was also hoped that by the end of the pay protection period in April 2024, any revalorisation of the pay bands may have negated the need for a reduction to affected salaries. As you know, however, the pay bands were revalorised in July 2023 and whilst this did result in an increase to the pay band maxima, it did not bring your current (pay protected) salary within the revalorised pay band. Therefore, in the absence of your voluntary agreement to the new terms, or any revision in your terms and conditions of employment, which is made impossible by your position that you will not engage in consultation, the SSRO must now consider whether there are any reasonable alternatives to the termination of your existing employment contract in accordance with its terms, and with an offer of re-engagement on new terms. To that end, I am inviting you to a meeting to discuss this. In light of your position thus far, I anticipate that you may not wish to attend such a meeting, but it is important that you have an opportunity to do so at this stage of the process. If you prefer to make any representations in writing, you are free to do so. We can meet in person or remotely, and you may be accompanied by a workplace colleague or a trade union representative. It is important for you to understand that if you decline to attend or make any representations, a decision will be made in your absence. That decision may be to terminate your current contract on notice and offer you employment on new terms. I have arranged a meeting for 10:00am on 15 March. Please could you confirm by 5pm on 12 March that you will or won’t be attending that meeting, any arrangements that you would like to be considered for that meeting (including whether you wish to attend remotely or in person) and that any chosen companion is also available. If your chosen companion is not available, please could you provide their times and dates of availability during the seven days after the meeting date above, and we will seek to accommodate a different meeting time. If your companion is not available within those seven days, we are very likely to wish to avoid further delay and would therefore invite you to identify an 55 of 88 alternative companion. Separately, you will have received from me the outcome of your grievances of 28 November 2023 and 18 January 2024, including the independent investigation report of Jack Feeney. In light of Mr Feeney’s findings, conclusions and recommendations, it is important that I draw to your attention that if, following the meeting process arranged above, your current employment contract is not terminated on the grounds set out earlier in this letter, or if your employment contract is terminated and you then accept the SSRO’s offer of new contract terms, there may be additional matters arising from those findings and recommendations to be addressed with you formally. I have decided that it is preferable in the circumstances to defer consideration of those matters until the question of your terms and conditions of employment has been resolved. 121. [HB700]: Subject to contract 6 March 2024 This letter sets out your proposed terms of employment. They mirror your existing terms of employment save for: 1. non-material changes, for example an update to the SSRO’s new office address; and 2. changes which aim to implement the outcome of the 2022 Job Evaluation exercise, set out below. As previously discussed, and reflecting the SSRO’s long-standing offer which seeks to keep your overall package aligned with your existing remuneration, the following changes have been incorporated:• You will be a contractual home worker, with your normal place of work being your home address. In accordance with the SSRO’s Travel and Subsistence policy, and assuming your attendance at the office is required 58 times per year, you will be able to recover your full travel expenses resulting in an additional benefit of £1,699.40 per year (58 x £29.30).

• Your hours of work will increase by 1 hour and 9 minutes each week, which equates to an additional £3,792.60 per year. 56 of 88 The total remuneration available to you under this offer is therefore £103,423, which includes a salary of £122,400 (prorated), so overall being slightly higher than your current pro-rated salary of £103,412. Contract of employment This letter is your contract of employment and sets out the terms of your employment, including the written particulars required by section 1 of the Employment Rights Act 1996. Commencement of employment Your employer is the Single Source Regulations Office (SSRO). Your employment with the SSRO began on 15 August 2019. […] Please indicate your acceptance of these terms by signing and returning to me the attached copy of this letter

[122]On 6 March 2024 Mr Russell wrote to the Claimant as follows [HB963]: I refer to your latest email to Ruaidhri of 26 February at 09:20. You will now have received from the Chair the outcome of your grievances, in light of the report of Jack Feeney of No5 Barristers’ Chambers. Given Mr Feeney’s findings, and the Chair’s decision, I again confirm that I do not intend to implement any changes to my line management arrangements with you. In the circumstances therefore, if you were to persist in refusing to be line managed by me from tomorrow (7 March 2024), and/or were to fail to carry out your normal duties, you would be treated as declaring yourself not ready, willing and able to work and, unless any period of such absence was supported by a fit note, you would not be paid for it. Any period supported by a fit note would be treated as sickness absence and subject to the SSRO’s sickness absence management procedure. In accordance with the Staff Handbook, unauthorised absence is a disciplinary matter and the SSRO reserves the right to take disciplinary action in respect of any unauthorised failure to attend work. I have been asked by the Chair to advise you that your suggestion of a meeting with the Board is declined. I have also been asked to instruct you not to seek to involve Non-Executive Board members in these on-going HR matters. If you have concerns or questions about these matters, please direct those to me in the first instance. If having done so you have ongoing concerns, please 57 of 88 raise them with the Chair who will explain how those can properly be escalated. I hope to see you back at work tomorrow. Should you have any questions, please do let me know.

[123]This was a reasonable email for Mr Russell to have sent the Claimant in the circumstances.

[124]The Claimant did not attend the consultation meeting that had been proposed by Ms Nixon. On the morning of 7 March 2024 the Claimant sent an email to Mr Russell tendering his resignation which read [HB967]: Re: Resignation Following what has been an unbearable and harmful period in my life, where I have felt a significant amount of stress and harm to my health as a result of the toxic environment that you preside over, I have no choice but to resign from my position as Director of Corporate Resources with immediate effect. Due to your behaviour, and the behaviour of others, I am unable to maintain my position safely and, as intimated by Mr Feeny in his report, the position of trust and faith has been irretrievably broken although I do not accept that this is as a result of my actions and firmly believe that this is a direct result of the leadership of the SSRO and its patently obvious antipathy and disdain towards me. It is clear it has long been the Board’s intent to dismiss me, and in knowingly acting in a deliberately negligent manner it has finally achieved what it set out to do, namely, to remove me from my position by whatever means required, irrespective of the legal or moral obligations placed upon it by the MOD and the taxpayers who fund its activity. Please note it is my intention to seek from you legal redress, not limited to an award for damages for my losses suffered and an award for the discriminatory and unlawful actions I have had to endure; because of this I will not enter into any further direct correspondence with the SSRO. Should you wish to contact me please direct your correspondence to my appointed solicitor [NAME AND CONTACT DETAILS]. I have made arrangements to return my SSRO-issued laptop, iPhone12, MiFi dongle and building pass with a member of the SSRO staff directly. Please arrange for my personal possessions to be sent to my home address. 58 of 88 Post employment

[125]The Claimant had been absent from work for a substantial period of time prior to his resignation and his duties had to be covered in his absence. As a result of that and following the Claimant’s resignation, the Respondent found that it was able to absorb the Claimant’s duties without a temporary or permanent replacement. That this happened is not unusual and I do not consider that it evidences any ulterior motive of the Respondent or that the Respondent acted as it did to avoid a substantial redundancy liability to the Claimant. The Beamans process had started in 2021 and there had been commitment to undertake it 2018. Any differences in pre and post Beamans process terms were resolved through negotiation with all other employees and it is clear that Mr Russell was trying to achieve the same thing with the Claimant and to secure the Claimant’s ongoing employment. Disputed facts that have contextual relevance

[126]Mr Magee alleged [RMWS55] “It struck me that from June 2022, around the same time that the process to bring the Claimant’s (extended) fixed-term contract to an end commenced, the Claimant’s attitude shifted - he developed a highly negative attitude towards NS, being openly critical of him. This continued even after his appeal was upheld and having secured a permanent employment contract. For example, in my regular 1:1s with the Claimant, he would frequently refer to NS as “that f**ker” and complain about the pay review and the grading process, saying that it was unfair because it was arranged to deliberately target him. This put me in a very difficult position and made me feel quite uncomfortable. I did not support the Claimant's views because, having been entrenched in the process, I knew how robust it had been and that NS and the wider Executive Committee had always played a straight bat and wanted to ensure that it was conducted in a reasonable and objective fashion, with the priority being that all employees were treated fairly.”

[127]In this regard I note Mr Feeny’s findings as follows [HB721]:42. RM agreed that TD should not have used that language, but set it in the context that others within the office would also swear, using MW as an example: RM claimed that MW would refer to NS as “that fucker”.

43. I have not asked MW to comment on RM’s assertion that he had referred to NS in those terms. That is because, even if correct, I do not consider that the occasional use of swearing when referring to line managers out of frustration meets the threshold for misconduct. Rightly or wrongly, it happens in virtually every office environment in the country. There has to be a level of tolerance towards this by the employer, particularly when the expression of frustration is directed upwards to a manager, rather than downwards to a direct report. Although TD’s message was unprofessional, it was not, in my view, in breach of the Acceptable Use of IT Policy.

[128]I accept Mr Magee’s evidence that he did not raise the fact that the Claimant had 59 of 88 referred to Mr Swift as “that fucker” formally with management because he was concerned that the Claimant might pursue a vendetta against him. I accept that Mr Magee had reason for that concern because when individuals had given the Claimant negative feedback in an anonymous 360 review he had sought to find out who they were and speak to them [HB844].

[129]The fact that Mr Magee had said to the Claimant (his manager) in another conversation “look mate, things have gone off-piste, let’s just forget it and work on improving things within the organisation” [HB844] does not suggest to me that Mr Magee would not have been concerned about the Claimant turning on him if Mr Magee had complained about the Claimant’s language.

[130]It is clear that the Claimant had used bad language in other contexts, including in email correspondence [HB972]: On 23 June 2023 in an email to the Expert: […] I can’t believe I am saying this, but the last bastard was better than the current one. Yes, I am very, very pissed off; no, I haven’t had a drink (yet) and yes, I’m seriously considering my position, as, after fours years of this shit I really need to work somewhere that genuinely looks after its staff.

[131]Given the Claimant had been aggressive in meetings and been prepared to commit such comments to email I consider that the Claimant did make the comments to Mr Magee as Mr Magee alleged at [RMWS55].

THE LAW

[132]The parties should note that I have considered but, in the interests of proportionality, may not comment on all of the law to which I was referred in submissions by the parties. Constructive unfair dismissal

[133]Under section 95(1)(c) of the Employment Rights Act 1996 (“the ERA”), an employee is dismissed if he terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.

[134]If the claimant’s resignation can be construed to be a dismissal, then the issue of the fairness or otherwise of that dismissal is governed by section 98 (4) of the Act which provides: “…. 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”. 60 of 88

[135]To succeed in establishing a constructive unfair dismissal the Claimant must establish that:135.1 there was a fundamental breach of contract on the part of the Respondent;

135.2 the Respondent’s breach caused the Claimant to resign and;

135.3 the Claimant didn’t delay too long before resigning (thereby affirming the contract of employment).

[136]The best known summary of the applicable test for a claim of constructive unfair dismissal was provided by Lord Denning MR in Western Excavating (ECC) Limited v Sharp

[1978] IRLR 27

: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment; or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract; then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of his employer’s conduct. He is constructively dismissed. The employee is entitled in these circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.”

[137]In Tullett Prebon PLC and Ors v BGC Brokers LP and Ors Maurice Kay LJ endorsed the following legal test at paragraph 20: “… whether, looking at all the circumstances objectively, that is from the perspective of a reasonable person in the position of the innocent party, the contract breaker has clearly shown an intention to abandon and altogether refuse to perform the contract.”

[138]In Courtaulds Northern Spinning Ltd v Sibson it was held that reasonable behaviour on the part of the employer can point evidentially to an absence of significant breach of a fundamental term of the contract. However, if there is such a breach, it is clear from Nottingham County Council v Meikle

[2005] ICR 1

CA; Abbey Cars (West Horndon) Ltd v Ford EAT 0472/07; and Wright v North Ayrshire Council

[2014] IRLR 4

EAT, that the crucial question is whether the repudiatory breach “played a part in the dismissal” and was “an” effective cause of resignation, rather than being “the” effective cause. It need not be the predominant, principal, major or main cause for the resignation.

[139]There is an implied term in every employment contract that an employer ‘will not, without reasonable and proper cause, conduct his business in a manner likely to 61 of 88 destroy or seriously damage the relationship of trust and confidence between employer and employee’ Malik v Bank of Credit and Commerce International SA (in compulsory liquidation)

[1997] ICR 606

, HL.

[140]Malik at paragraph 14 holds also: “the conduct must…impinge on the relationship in the sense that, looked at objectively it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer. That requires one to look at all the circumstances”

[141]Two elements arise from Malik in in determining whether there has been a breach of the implied term of mutual trust and confidence:141.1 Was there “reasonable and proper cause” for the conduct

141.2 If not, was the conduct “calculated or likely to destroy or seriously damage trust and confidence”

[142]With regard to trust and confidence cases, Dyson LJ summarised the position thus in Omilaju v Waltham Forest London Borough Council

[2005] IRLR 35

CA: The following basic propositions of law can be derived from the authorities: 1. The test for constructive dismissal is whether the employer’s actions or conduct amounted to a repudiatory breach of the contract of employment: Western Excavating (ECC) Limited v Sharp

[1978] 1 QB 761

. 2. It is an implied term of any contract of employment that the employer shall not without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee: see, for example Malik v Bank of Credit and Commerce International SA

[1998] AC 20

, 34H – 35D (Lord Nicholls) and 45C – 46E (Lord Steyn). I shall refer to this as “the implied term of trust and confidence”. 3. Any breach of the implied term of trust and confidence will amount to a repudiation of the contract, see, for example, per Browne-Wilkinson J in Woods v WM Car Services (Peterborough) Ltd

[1981] ICR 666

CA, at 672A; the very essence of the breach of the implied term is that it is calculated or likely to destroy or seriously damage the relationship. 4. The test of whether there has been a breach of the implied term of trust and confidence is objective. As Lord Nicholls said in Malik at page 35C, the conduct relied on as constituting the breach must: “impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer”. 62 of 88

[143]This has been reaffirmed in Buckland v Bournemouth University Higher Education Corporation

[2010] IRLR 445

CA, in which the applicable test was explained as:(i) in determining whether or not the employer is in fundamental breach of the implied term of trust and confidence the unvarnished Malik test should be applied;

(ii) If, applying Sharp principles, acceptance of that breach entitled the employee to leave, he has been constructively dismissed;

(iii) It is open to the employer to show that such dismissal was for a potentially fair reason;

(iv) If he does so, it will then be for the employment tribunal to decide whether the dismissal for that reason, both substantively and procedurally (see Sainsbury’s Supermarkets Ltd v Hitt

[2003] IRLR 23

CA) fell within the range of reasonable responses and was fair.”

[144]The same authorities also repeat that unreasonable conduct alone is not enough to amount to a constructive dismissal (Claridge v Daler Rowney

[2008] IRLR 672

); and that if an employee is relying on a series of acts, then the tribunal must be satisfied that the series of acts taken together cumulatively amount to a breach of the implied term (Lewis v Motorworld Garages Ltd

[1985] IRLR 465

). In addition, if relying on a series of acts the claimant must point to the final act which must be shown to have contributed or added something to the earlier series of acts which is said, taken as a whole, to have broken the contract of employment (Omilaju v Waltham Forest London Borough Council

[2005] IRLR 35

CA).

[145]The judgment of Dyson LJ in Omilaju has been endorsed by Underhill LJ in Kaur v Leeds Teaching Hospital NHS Trust. Having reviewed the case law on the “last straw” doctrine, the Court concluded that an employee who is the victim of a continuing cumulative breach of contract is entitled to rely on the totality of the employer’s acts notwithstanding a prior affirmation by the employee.

[146]In addition, it is clear from Leeds Dental Team v Rose

[2014] IRLR 8

EAT that whether or not behaviour is said to be calculated or likely to destroy or seriously damage the trust and confidence between the parties is to be objectively assessed, and does not turn on the subjective view of the employee. In addition, it is also clear from Hilton v Shiner Ltd - Builders Merchants

[2001] IRLR 727

EAT that even where there is conduct which objectively could be said to be calculated or likely to destroy or seriously damage the trust and confidence between the parties, if there is reasonable and proper cause for the same then there is no fundamental breach of contract.

[147]As re-emphasised by the EAT in the decision of Upton-Hansen Architects (“UHA”) v Gyftaki

UKEAT/0278/18/RN

, it is for the employer to advance in pleadings, assert in evidence, and prove a potentially fair reason for the dismissal, 63 of 88 and a failure to do so may preclude them from a defence to a claim of constructive dismissal.

[148]The question of whether the Claimant resigned or was dismissed is an objective one that I must determine after considering all the facts available to the parties at the time.

[149]Martin v Glynwed Distribution Ltd

[1983] ICR 511

, CA (Sir John Donaldson MR 43) is Court of Appeal authority for the position that: ‘Whatever the respective actions of the employer and employee at the time when the contract of employment is terminated, at the end of the day the question always remains the same, “Who really terminated the contract of employment?” If the answer is the employer, there was a dismissal’

[150]The corollary to this is that if the answer is the employee, then clearly there was a resignation.

[151]I had the benefit of detailed submissions from both parties on the law which I quote/summarise and accept as follows:

[152]East London NHS Foundation Trust v O'Connor

[2020] IRLR 16

is authority for the position that the mere fact that an employee was notified that his particular role was coming to an end did not mean that the objective observer would infer that the contract of employment was being terminated.

[153]Dismissal may be summary or with notice. To be effective in law, notice must expire on a certain specified day (Morton Sundour Fabrics Ltd v Shaw (1966) 2 ITR 84), or upon the occurrence of a specified event (Burton Group Ltd v Smith

[1977] IRLR 351

[154]A repudiatory breach of contract by the employer does not automatically bring the contract to an end. The repudiatory breach has to be accepted by the employee to be effective: Société Générale v Geys

[2013] ICR 117

[155]In Hogg v Dover College

[1990] ICR 39

, the EAT held, that where an employer had imposed a new contract on an employee, involving wholly new terms and a 50% reduction in salary, that the employee had been dismissed from his original post. The fact that the employment relationship continued with the same employer did not mean that the old contract had not been terminated. As succinctly summarised by Auerbach J in Rajput and Akmeemana v Sky Retail Stores Limited

[2024] EAT 46

, [23]: ‘Hogg v Dover College holds that doctrinally there can be a dismissal by the employer where the Tribunal finds that the imposition of change is so fundamental that the effect, in substance, is that the employee is being told that…his former contract was from that moment gone’. 64 of 88 This is a dismissal for the purposes of s. 95(1)(a) ERA 1996.

[156]In Alcan Extrusions v Yates

[1996] IRLR 327

, EAT, the employer imposed a continuous shift pattern, including Saturdays, Sundays and bank holidays, reduced shift premiums and withdrew overtime pay for weekends and bank holidays. The EAT concluded that the Tribunal was entitled to decide that ‘the new terms were so radically different from the old as to pass beyond mere repudiatory variation of the old contract, so that they could properly be characterised as the removal of the old contract and the offer, by way of substitution, of a new and substantially inferior contract’.

[157]Where there has been a change of terms and conditions, therefore, a Tribunal must assess where on the Alcan spectrum, if at all, a case lies; Rajput and Akmeemana v Sky Retail Stores Limited

[2024] EAT 46

, [25]: ‘the EAT identified here that, for the purposes of this doctrine, there may be(a) cases where there is a breach of contract that is not repudiatory;

(b) cases where there is a breach that is a “mere repudiatory variation of the old contract”; and

(c) cases where what the employer has done goes beyond a “mere repudiatory variation”, so that it is treated as an effective termination of the existing contract’.

[158]It is a question of fact and degree in every case whether a change in contractual terms was sufficiently radical to involve not merely a variation of the contract but its termination and replacement with a new contract, see Bampouras & others v Edge Hill University, EAT 0179/09, [69] and Alcan, [24].

[159]Jackson v University Hospitals of North Midlands NHS Trust

2023 IRLR 796

is EAT authority for the position that “a Hogg dismissal will occur where the purported variation of a contract, done unilaterally, is such as to amount, in reality, to a termination of one contract and its replacement by another” [para 45].

[160]A Hogg v Dover College dismissal must be communicated, by words or conduct to the employee. For example, the proposed contractual variation must actually have been imposed and not only mooted: Cosmeceuticals Limited v Parkin

UKEAT/0049/17/BA

, per Eady J, [13], citing Sandle v Adecco UK Ltd

[2016] IRLR 941

EAT: The means by which an employee is dismissed may thus be by conduct rather than words, which may not always be entirely unambiguous. There does, however, have to be a communication of the dismissal and that is to be tested objectively: how would the employer’s conduct or words be understood by the objective observer? See as discussed in Sandle v Adecco UK Ltd

[2016] IRLR 941

EAT: 65 of 88 “28. Turning to the specific question raised by the appeal, to the extent the claimant is saying that determining whether an employer has terminated a contract of employment for the purposes of s.95(1)(a) should allow that to be implied from an employer’s conduct, we do not disagree. The real issue, however, seems to us to be one of communication. 29. Thus, referring to the authorities relied on by the claimant as examples of cases where dismissal has been implied from the employer’s conduct, we recognise that removing an employee from the payroll can amount to termination of the employment contract (see Kirklees Metropolitan Council v Radecki

[2009] IRLR 555

CA), but we note that in that case the action in question was known to the employee (‘[Mr Radecki] was aware that his employment had been brought to an end’, per Rix LJ at paragraph 48, and also see paragraph 55 and per Toulson LJ at paragraph 47). Similarly, removing a teacher from one post and offering him different terms on a reduced salary could amount to a summary dismissal (see Hogg v Dover College, supra), but, again, the conduct in question - that from which dismissal was to be implied - was communicated to the employee (per Garland J: ‘He was being told that his former contract was from that moment gone’). […] 40. Did the ET thereby err? We can see the argument that an ET might get overly fixated on the issue of communication - failing to remind itself as to the language of s.95(1)(a), which requires merely that the employee’s contract ‘is terminated by the employer (whether with or without notice)’. Whilst we can see why an ET might look for express language before finding a dismissal under s.95(1)(a) - the employer’s decision to terminate the contract should be unequivocal - and we can see a real danger from lack of certainty, we accept that certainty is not the only relevant criterion. A dismissal may be by word or deed, and the words or deeds in question may not always be entirely unambiguous; the test will be how they would be understood by the objective observer. Further, as the case law shows, an employer’s termination of a contract of employment need not take the form of a direct, express communication. It may be implied by the failure to pay the employee (Kirklees), by the issuing of the P45 (Kelly v Riveroak Associates Ltd

[2005] All ER (D) 216

(Nov)] or by the ending of the employee’s present job and offer of a new position (Hogg). In each of those cases, however, there was a form of communication; the employee was made aware of the conduct in question, conduct that was inconsistent with the continuation of the employment contract and in circumstances where there were no other contraindications. The question is: 66 of 88 given the facts found by the ET, given what was known to the employee and to the relevant circumstances of the case, what is the conclusion to be drawn? Has the employer communicated its unequivocal intention to terminate the contract?

[161]Cumbria County Council v Dow (No. 2)

[2008] IRLR 109

is authority for the position that where it is clear from the contractual documents that the parties have agreed to effect changes by a fresh contract, that must be decisive. The courts must give effect to the parties' chosen mechanism. However, the mere fact that an employer issues a document which purports to be a new contract will not suffice. That would be to allow the employer unilaterally to dictate the mechanism to be adopted, which would be inconsistent with fundamental contractual principles. Both parties must consent to this mechanism being adopted. The task in each case is to determine the intention of the parties. This involves establishing whether there is evidence objectively to show that there was an agreement as to the mechanism to be adopted.

[162]Wellworthy Ltd v Ellis EAT 915/83 is authority for the position that an employee may resign in circumstances that amount to a constructive dismissal not only where his or her employer has already committed a fundamental breach of contract but also, in certain circumstances, in anticipation of such a breach. However, there is a risk that an employee may act too hastily in resigning before the nature of the threatened breach is clear. In Sangarapillai v Scottish Homes EAT 420/91, the employee was given a different job title in a salary review and resigned before the completion of that review. The EAT upheld an employment Tribunal’s finding that there had been no fundamental breach of contract at the time of the dismissal.

[163]The writers of IDS put it at Vol. 14, Ch. 1, [1.41]: as follows ‘…Vague or conditional proposals of a change in terms, conditions or working practices will not amount to an anticipatory breach and will not justify an employee resigning and claiming constructive dismissal…’

[164]TSB Bank plc v Harris

[2000] IRLR 157

holds that it is always a question of fact whether the employee resigned in consequence of a repudiatory breach of contract. The implied term of trust and confidence in the context of dismissal

[165]Johnson v Unisys Ltd

[2001] IRLR 279

is authority for the position that it is not appropriate to apply the implied term of trust and confidence to a dismissal. The implied term of trust and confidence is concerned with preserving the continuing relationship which should subsist between employer and employee. It does not apply to the way that relationship is terminated. An implied term cannot contradict an express term in the contract that the employer was entitled to dismiss without cause on giving due notice. 67 of 88 Unfair Dismissal

[166]The test for unfair dismissal is set out in section 98 of the Employment Rights Act 1996. Under section 98(1), it is for the employer to show the reason (or, if more than one, the principal reason) for the dismissal, and that it is either a reason falling within subsection (2), e.g. conduct or (98 (1) (b)) some other substantial reason of a kind such as to justify the dismissal or an employee holding the position which the employee held.

[167]Under s98 (4) ‘… the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) 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 shall be determined in accordance with equity and the substantial merits of the case.’

[168]As such tribunals must decide whether it was reasonable for the respondent to dismiss the claimant for the potentially fair reason in all the circumstances of the case. I have reminded myself that the question is whether dismissal was within the band of reasonable responses open to a reasonable employer. It is not for me to substitute my own decision for that of the Respondent, unless there is only one possible outcome from the application of the relevant legal principles to the case (London Ambulance Service v Small Court of Appeal [2009]).

[169]The range of reasonable responses test (or, to put it another way, the need to apply the objective standards of the reasonable employer) applies to all the procedural and substantive aspects of the decision to dismiss a person from their employment. The objective standards of the reasonable employer must be applied to all aspects of the question whether an employee was fairly and reasonably dismissed. (Sainsbury’s Supermarkets Ltd v Hitt

[2003] IRLR 23

, CA)

[170]I accept that when considering the question of the employer’s reasonableness, I must take into account the disciplinary process as a whole, including the appeal stage (Taylor v OCS Group Limited

[2006] EWCA Civ 702

). The Tribunal must focus on what information and circumstances were present and in the mind of the dismissal and appeal managers at the time they made their decisions (West Midlands Coop v Tipton [1986]).

[171]In reaching my decision, I must also take into account the ACAS Code on Disciplinary and Grievance Procedures. By virtue of section 207 of the Trade Union and Labour Relations (Consolidation) Act 1992, the Code is admissible in evidence and if any provision of the Code appears to the tribunal to be relevant to any question arising in the proceedings, it shall be taken into account in determining that question. A failure by any person to follow a provision of the Code does not however in itself render him liable to any proceedings. Code of practice on dismissal and re-engagement

[172]I accept the Respondent’s submissions on this code of practice as follows: 68 of 88 36. The statutory Code of Practice on dismissal and re-engagement did not apply in the circumstances, because it did not come into force until 18 July 2024, but it provides helpful guidance on R’s approach. 37. Paragraph 3 of the Code provides: If employees and/or their representatives do not agree to some or all of the contractual changes proposed by the employer, the employer may, as a last resort, dismiss employees, before either offering to re-engage them, or offering to engage other employees, in substantively the same roles, in order to effect the changes. This is referred to as “dismissal and re-engagement”. 38. The purpose of the code (paragraph 5): is to ensure that an employer takes all reasonable steps to explore alternatives to dismissal and engages in meaningful consultation with a view to reaching an agreed outcome with employees and/or their representatives. The code also seeks to ensure that the employer does not raise the prospect of dismissal unreasonably early, or put undue pressure on employees by threatening dismissal where this is not, in fact, envisaged. 39. The Code of Practice recommends, as good practice (and as R did):a. Information sharing and consultation with affected staff (§22, §28).

b. Setting out the new terms of employment in writing (§52).

c. Raising the prospect of dismissal and re-engagement if an agreed outcome cannot be reached (§31).

d. Re-examination of its proposals, taking into account any feedback from employees (§33).

e. Treating dismissal and re-engagement as an option of last resort (§47). Indirect discrimination

[173]Section 19 EqA provides:(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. 69 of 88

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.

(3) The relevant protected characteristics are— age; disability; gender reassignment; marriage and civil partnership; race; religion or belief; sex; sexual orientation.” Meaning of provision, criterion or practice “PCP”

[174]Chief Constable of West Yorkshire Police v Homer

2012 ICR 704

, SC, [17], per Baroness Hale provides: ‘The law of indirect discrimination is an attempt to level the playing field by subjecting to scrutiny requirements which look neutral on their face but in reality work to the comparative disadvantage of people with a particular protected characteristic’

[175]The phrase Provision, Criterion or Practice is to be construed widely in accordance with the EHCR Code. “Provision” means any contractual or non-contractual provision or policy. “Criterion” means any requirement, pre-requisite, standard, condition or measure applied whether desirable or unconditional. “Practice” means the employer’s approach to a situation if it does happen or may happen in the future. All that is necessary here is that there is a general or habitual approach by the employer Williams v Governing Body of Alderman Davies Church in Wales Primary School

[2020] IRLR 589

[176]Generally PCP’s suggest that there is a state of affairs that exists or would exist if the situation were to occur again. It means that there are things that an employer does do or would do should the issue arise in the future. A one off decision can also be a provision Starmer v British Airways Plc

[2005] IRLR 862

EAT. This may include a one off act or decision only applied to one person, but similarly, one off acts and decisions are not automatically PCPs Ishola v Transport for London

[2020] EWCA Civ 112

. Group disadvantage 70 of 88

[177]For a case of indirect discrimination to succeed, there must be both personal disadvantage and group disadvantage to those who share their protected characteristic(s).

[178]The correct test for this is not whether there was an adverse effect on the group, but whether a seemingly neutral requirement has a discriminatory impact Eweida v British Airways Plc

[2010] EWCA Civ 80

[179]In doing so, the Claimant does not need to prove why a PCP is having the effect of disadvantaging the group they belong to, they just have to prove that the PCP was having that effect. Also, the Claimant does not need to prove that all people belonging to the comparison pool are in fact disadvantaged. Some will be some who will not be. What is for the Claimant to prove on balance is that the group is particularly disadvantaged as a result of the PCP whether or not it actually affects all of that group Essop and Naeem v Home Office (UK Border Agency) and Secretary of State for Justice

[2017] UKSC 27

[180]The Claimant must also show that those who share the same protected characteristic were put at a particular disadvantage, which is not defined by the Equality Act 2010. This has been determined by the ECJ as meaning “that it is particularly persons [with the relevant protected characteristic] who are at a disadvantage because of the measure at issue” Chez Razpredelenie Bulgaria AD v Komisia za Zashtita ot Diskriminatsia C-83/14

[2015] IRLR 746

. It has nothing to do with how grave the disadvantage is or that the disadvantage has to be unique to that particular group. The group simply has to be at more of a disadvantage compared to a comparator group who have also been subjected to the PCP.

[181]The comparator group or pool of people must be people who do not share the protected characteristic relied upon, but who are in circumstances that are not materially different from the particularly disadvantaged group (Statutory code of practice paragraph 4.18). In addition, the pool must be one that realistically tests the allegation of indirect discrimination being made by the Claimant (Ministry of Defence v DeBique

[2010] IRLR 471

EAT). Ultimately, regardless of the pleaded case and submissions by the parties, the Tribunal has the ultimate discretion to decide what the correct pool is because if the tribunal gets the pool wrong that has been found to be an error of law (Naeem v Secretary of State for Justice

[2014] IRLR 520

EAT). Personal disadvantage

[182]The Claimant must also prove that the PCP put them at the disadvantage complained about and that the disadvantage they have is the same as the disadvantage their group has because of the words “that disadvantage” in s19 (1)(c). Causation 71 of 88

[183]Both the group disadvantage and the personal disadvantage must be caused by the application of the PCP rather than because of any particular characteristic. In Essop and Naeem v Home Office (UK Border Agency) and Secretary of State for Justice

[2017] UKSC 27

Lady Hale said at paragraph 25: “A second salient feature is the contrast between the definitions of direct and indirect discrimination. Direct discrimination expressly requires a causal link between the less favourable treatment and the protected characteristic. Indirect discrimination does not. Instead it requires a causal link between the PCP and the particular disadvantage suffered by the group and the individual. The reason for this is that the prohibition of direct discrimination aims to achieve equality of treatment. Indirect discrimination assumes equality of treatment - the PCP is applied indiscriminately to all - but aims to achieve a level playing field, where people sharing a particular protected characteristic are not subjected to requirements which many of them cannot meet but which cannot be shown to be justified. The prohibition of indirect discrimination thus aims to achieve equality of results in the absence of such justification. It is dealing with hidden barriers which are not easy to anticipate or to spot”.

[184]If the Claimant is not affected by the PCP themselves, for example by there being a height restriction of 5ft 9 inches or above, and they are taller than this, then their claim fails. Similarly, if on average the group relied upon was taller than 5ft 9 inches, then it cannot be said that the PCP caused the group to be disadvantaged either. So in cases where the PCP does not produce a simple outcome of having two results for the group, namely compliance or non compliance, but has a scale of effect, then, following McNeil and others v R&C Comrs

[2019] EWCA Civ 1112

, the correct approach is to look at the average impact over the group.

[185]In addition, a person will still have a claim if they are personally disadvantaged by a PCP applied to a group of people that they do not belong to themselves, which causes that group a particular disadvantage Chez Razpredelenie Bulgaria AD above. Justification

[186]I accept the Respondent’s summary of the law in respect of justification:26. The test of justification under s. 19(2)(d) EqA 2010 requires the employer to demonstrate that the relevant PCP was a ‘proportionate means of achieving a legitimate aim’.

27. For an aim to be legitimate it must be, ‘legal,…not…discriminatory in itself, and…represent a real, objective consideration’, see EHRC Employment Code at [4.28].

28. Baroness Hale observed in Chief Constable of West Yorkshire Police v Homer

[2012] ICR 704

, [22] that the test of justification pursuant 72 of 88 to s. 19(2)(d) EqA is now well settled. A provision, criterion or practice is justified if the employer can show that it is a proportionate means of achieving a legitimate aim: ‘To be proportionate, a measure has to be both an appropriate means of achieving the legitimate aim and [reasonably] necessary in order to do so’. ‘Reasonably’ is added per Lord Keith in Rainey v Greater Glasgow Health Board

[1987] ICR 129

, 142–143.

29. As Mummery LJ explained in R (Elias) v Secretary of State for Defence

[2006] 1 WLR 3213

, [151]: …the objective of the measure in question must correspond to a real need and the means used must be appropriate with a view to achieving the objective and be necessary to that end. So, it is necessary to weigh the need against the seriousness of the detriment to the disadvantaged group.

30. Mummery LJ went on, at [165], to commend the three-stage test for determining proportionality derived from de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing

[1999] 1 AC 69

, 80: First, is the objective sufficiently important to justify limiting a fundamental right? Secondly, is the measure rationally connected to the objective? Thirdly, are the means chosen no more than is necessary to accomplish the objective?

31. The more serious the discriminatory effect found, the greater the justification required, and vice versa: ‘…The more serious the disparate impact on women, or men as the case may be, the more cogent must be the objective justification’, see Barry v Midland Bank plc

1999 ICR 859

, HL, 870E.

32. Whether the aim(s) pursued by a respondent is/are legitimate is a question of fact for the Tribunal. They must correspond to a real (as in genuine) need on the part of the respondent. However, the aim(s) need not have been articulated or even realised at the time the measure was first adopted; the legitimate aim relied upon may be an ex post facto rationalisation, see Seldon, [60] per Baroness Hale; there is no requirement that the justification must have consciously and contemporaneously featured in the employer’s mind, see Seldon, [70] per Lord Hope.

33. A respondent may rely on several aims at the same time and the aims relied upon may be linked to each other or may be relied upon in the alternative, see Fuchs v Land Hessen

[2012] ICR 93

, [44], [46]. Where a respondent relies on a number of aims it is not enough for the Tribunal 73 of 88 to apply the proportionality test to each individually; it must also apply a holistic approach to the package overall: BAE Systems (Operations) Ltd v McDowell

[2018] ICR 214

, [55] (a direct age discrimination claim).

34. It is not enough that a reasonable respondent might think the measure justified. The Tribunal itself has to weigh the needs of the respondent, against the discriminatory effects of the provision in question, see Hardy & Hansons plc v Lax

[2005] ICR 1565

, CA [31-32]. However, as the Court of Appeal made clear in that case, the requirement that the means chosen to achieve the aim be ‘necessary’ does not require the employer to establish that the particular measure in issue was the only course open to him. It is not a test of absolute necessity. See to like effect Cadman v Health and Safety Executive

[2004] IRLR 971

, [31], in which Maurice Kay LJ said: The test does not require the employer to establish that the measure complained of was 'necessary' in the sense of being the only course open to him. That is plain from Barry. … The difference between 'necessary' and 'reasonably necessary' is a significant one …

35. In other words, a PCP might be justified even if there was a less discriminatory way of achieving the relevant aim.

[187]Coventry County Council v Nicholls

[2009] IRLR 345

is authority for the position that an employee declining to agree to revised terms and conditions of employment does not amount to a good defence to an equal pay claim brought by a woman. ANALYSIS AND CONCLUSIONS

[188]I accept the following written submission of the Respondent: 5. The first central issue is whether HN’s 6 March 2024 letter, attaching a written offer of new terms subject to contract, constituted an express dismissal of C [25], §21. 6. If not, the second central issue is whether R “breached the implied term of trust and confidence” by seeking “not only to increase the Claimant’s working hours but reduce his pay” [25], §22.a. C’s evidence-in-chief (and cross-examination of R’s witnesses) ranged substantially beyond his pleaded claim as to the alleged breach of contract on which he relies. The issue whether there was a fundamental breach of contract is far narrower than that evidence (which does not allege a fundamental breach of contract in respect of, for example, a decision not to vary C’s contract in his favour from 0.8 FTE to 1.0 FTE, or the process by which that was done, or by 74 of 88 virtue of a request for evidence of C’s qualifications, or in the context of an earlier decision not to renew C’s fixed-term contract, which was the subject of a successful appeal).

b. Employment Judge Baty on 1 July 2025 refused C’s applications for specific disclosure on the basis of the irrelevance of the classes of documents sought to the issues in the claim.

c. As will have become clear from the evidence, there were issues in the employment relationship other than the implementation of the Beamans review. C has decided in this claim (since the outset), not to allege that other matters constituted part of a fundamental breach of contract. That decision was no doubt a considered one by C (who has been advised by Penningtons Manches since 2021). And it is not open to C now to seek to complain about other matters as alleged components of a fundamental breach, because that is not his pleaded claim, or the case that R has prepared to meet. Express dismissal on 6 March 2024?

[189]The Respondent did not expressly dismiss the Claimant by issuing to him either or both of the letters of 6 March 2204 for the following reasons:189.1 The letter marked “subject to contract” [HB700] (“Letter B”) must be read in the light of the letter of the same date, also from Ms Nixon, that started “I am writing further to your most recent discussion with John Russell on 5 February 2024 about implementing the outcome of the SSRO’s 2022 job evaluation exercise” [HB698]. (“Letter A”).

189.2 Letter B referred to proposed terms saying, “this letter sets out your proposed terms of employment”.

189.3 Letter B ended as follows “Please indicate your acceptance of these terms by signing and returning to me the attached copy of this letter.”. As such Letter B was an offer which the Claimant could choose to accept or reject, it was not a contract being imposed on him by the terms of either Letter A or Letter B. It could not reasonably be interpreted as a statement of terms to which the Claimant was already subject.

189.4 The terms in Letter B did not come into effect because the Claimant did not accept them.

189.5 There was nothing in either Letter A or Letter B that imposed the terms on the Claimant.

189.6 I have taken into account the entire content of Letter A but note in particular that it said (my emphasis): There will, therefore, be no further attempts to consult with you, unless you indicate now that, in light of Jack Feeney’s 75 of 88 conclusions, you wish to do so. This must be done by the end of this week. This left it open to the Claimant to allow negotiations. The letters cannot be interpreted as a dismissal on the basis that the Claimant had no intention of negotiating in circumstances where the Respondent was clearly leaving open that possibility. The letter went on: Therefore, in the absence of your voluntary agreement to the new terms, or any revision in your terms and conditions of employment, which is made impossible by your position that you will not engage in consultation, the SSRO must now consider whether there are any reasonable alternatives to the termination of your existing employment contract in accordance with its terms, and with an offer of re-engagement on new terms. To that end, I am inviting you to a meeting to discuss this. In light of your position thus far, I anticipate that you may not wish to attend such a meeting, but it is important that you have an opportunity to do so at this stage of the process. If you prefer to make any representations in writing, you are free to do so. We can meet in person or remotely, and you may be accompanied by a workplace colleague or a trade union representative. It is important for you to understand that if you decline to attend or make any representations, a decision will be made in your absence. That decision may be to terminate your current contract on notice and offer you employment on new terms. I accept the Respondent’s submission that the Respondent had made clear that it did not intend to impose varied terms and conditions of employment (and, in the absence of agreement, intended to dismiss the Claimant on notice, and offer different terms and conditions).

[190]Letter A noted that the Claimant had previously made clear his refusal to engage in consultation but Letter A nonetheless offered the Claimant a further opportunity to engage in consultation in the event that the Claimant had changed his position (as might have been the case with the Claimant understanding the outcomes of his grievances). As such the Respondent gave the Claimant until the end of that week to indicate whether he wished to engage in consultation and invited him to a meeting to discuss the consequences. As the Respondent submitted:190.1 The Claimant was therefore informed that the decision in those circumstances, at that meeting, might be the termination of his current contract on notice with the offer of new terms and conditions. 76 of 88

190.2 This is entirely inconsistent with Letter A or Letter B letter constituting the imposition of new terms and conditions on the Claimant that day.

190.3 Neither Letter A nor Letter B suggested that the Claimant’s terms and conditions of employment would change.

190.4 It is clear that the Respondent’s position on 6 March 2024 was that the Claimant’s employment would (unless the subject of a consensual variation) continue on his existing terms and conditions until at least the end of his contractual notice period (of 4 weeks: [72]), which could run in the circumstances from no earlier than 15 March 2024.

[191]All of these matters point to there having been no communication of dismissal to the Claimant (by variation of his terms and conditions, or by the imposition of a new contract) on 6 March 2024.

[192]The Claimant submitted: “[…] the Respondent was seeking to impose changes to the terms and conditions of employment or, as the Claimant says was bound to happen ahead of 1 April 2024, fire and re-hire or offer new terms by the Respondent’s position. It is accepted that, on the face of it, the authorities in this area relate to circumstances where the employer has imposed those changes. The Claimant submits that it is arguable that the Respondent was seeking to impose those changes and the effect was one and the same.” I do not accept that submission and it does not help the Claimant to assert that it was plain that the Respondent intended to implement Beamans and that the Claimant was plainly not going to accept a proposal which would result in him working longer hours for the same pay (i.e. that termination and reengagement was a fait accompli and so he was de facto dismissed). The option to expressly terminated the existing contract cannot here be pre-empted by the Claimant saying that it was an inevitability and so had happened anyway. That would be an unjust finding in circumstances where the Respondent had worded its correspondence carefully and clearly and where the Respondent was evidently trying to make a last effort to see if there were “any reasonable alternatives to the termination of [the Claimant’s] existing employment contract in accordance with its terms, and with an offer of re-engagement on new terms”.

[193]The Claimant was not expressly dismissed. Did the Respondent breach the implied term of trust and confidence

[194]The Claimant has pleaded a narrow basis for his complaint of constructive unfair dismissal, relying only on the assertion that the Respondent sought to increase his hours and reduce his pay [HB25 para 22].

[195]I accept the Respondent’s submission that the Respondent seeking to agree revised terms and conditions with the Claimant was not capable of amounting to a breach of the implied term of trust and confidence. I do not accept the Claimant’s submission that the Johnson and Unisys exemption does not apply. 77 of 88

[196]As referenced above, the Claimant could accept or reject the revised terms and conditions of employment set out in Letter B. As the Respondent submitted, the Claimant had made increasingly clear that he rejected not only the revised terms offered to him but also that he was not prepared to negotiate with the Respondent at all. Letter A made it clear that the Respondent would respect the Claimant’s decision not to negotiate but at the same time countenanced, and left open, the opportunity for the Clamant to ‘come to table’. As such and as the Respondent submitted, the Respondent’s “conduct in seeking to agree revised terms which removed any reduction in pay were evidently aimed at maintaining the relationship of trust and confidence between the parties, not destroying it”.

[197]I accept the Respondent’s submission that what the Claimant was really unhappy about was not that his employer was seeking to negotiate with him, but that the Respondent would not allow him to remain on his pre-Beamans terms and conditions. The Claimant may have thought that by holding his line he might be able to retain his existing terms.

[198]Of course the Respondent reserved the right to use its contractual right to terminate and in my judgment, had the meeting on 15 March 2024 not resulted in a negotiated agreement, the Respondent would have been able fairly to dismiss in the circumstances (taking into account that the Beamans process was robust and fair and engaged with employees in a reasonable manner). I address this more fully in respect of the indirect discrimination complaint and refer also to my comments below on the statutory code of practice on dismissal and reengagement.

[199]However, the Respondent’s reference to its contractual right to terminate the contract on notice and its warning to the Claimant that it was contemplating the need to do so was not capable of amounting to a breach of contract. As the Respondent submitted, termination of employment does not engage the implied term of trust and confidence (the Johnson v Unisys exemption).

[200]I also accept the Respondent’s submission that an indication that the Claimant’s contract might be terminated in accordance with its terms could not breach any other express or implied term, where there was an express contractual right to dismiss on 4 weeks’ notice [HB72].

[201]I accept the Respondent’s submissions that, although not applicable, the statutory code of practice on dismissal and re-engagement was closely reflected by the approach taken by the Respondent in the Beamans process. The Respondent also did not need to terminate and reengage any member of staff because (accepting that other members of staff’s employment came to an end for other reasons) a negotiated agreement was achieved with all others bar the Claimant.

[202]I accept that in the circumstances that presented themselves in this claim, the Respondent’s proposals (which were a starting point for discussion, not an end point or a best and final offer) could not have amounted to a breach of the 78 of 88 implied term of trust and confidence (anticipatory or otherwise). The Claimant could have discussed more favourable terms than those proposed by Mr Russell but the Claimant refused to take part in any negotiation and maintained an intransigent stance. I accept the Respondent’s submission that this might have been because the Claimant misunderstood the potential for dismissal and reengagement to be fair as a matter of the right not to be unfairly dismissed.

[203]The Claimant complained that the Respondent had pointed out to him that he was the only affected employee who had not agreed revised terms and conditions. It was reasonable for the Respondent to have pointed this out to him because it might have been information useful to the Claimant in deciding his own approach.

[204]Whilst going beyond the pleaded claim, I accept the Respondent’s written submissions as follows:204.1 The Claimant was a senior employee, reporting to the CEO, attending the SSRO Board, and on a FTE salary in excess of £122,000 at the time of his resignation;

204.2 The Claimant did not —either at the time, or in evidence—seriously pursue a case that his role was at Executive Director level. His job analysis form did not demonstrate this and he did not appeal the role classification either at the time of decision on 15 February 2022 or when given an opportunity for an out of time appeal in September 2023. The Claimant’s assertion that he had no faith in the appeal process holds no water. If he genuinely did not have faith then that was not a reasonable conclusion to have reached (in particular given he raised grievances and asked to appeal the decision not to convert his part-time role to full-time).

204.3 The role classification framework was robust and the distinction between the Director and Executive Director level roles had sound reasoning [HB405, 408, 411, 415—416].

204.4 The fact that there was a pay band common to bands 1 and 2 in the Beamans structure did not constitute a demotion of the Claimant and it is not uncommon for pay between grades to overlap wholly or partially. As the Respondent put it, organisational grade and pay are independent, and an organisational grade is not determined by pay. The fact that a lower band employee might be paid more than a higher band employee does not undermine the seniority of the higher band employee, it can just be a function of economics. It is also not uncommon or egregious for an employee to sit at the top of their pay band.

204.5 The Claimant was nonetheless not prepared to put forward a cogent basis for why he alone should not be subject to the outcome of the Beamans review and, as the Respondent submitted, this was even where the 79 of 88 Beamans exercise had been to ensure that the rate of pay applied was upper quartile in the sector.

204.6 Nor was the Claimant at any point prepared to countenance any change whatsoever to his terms and conditions of employment: he considered any increase in his working hours to be unacceptable as a matter of principle, where the degree of increase was plainly relevant to reasonableness. Mr Russell’s proposal of an additional 69 minutes over 4 days equated to 17.25 minutes in addition per day. This is not a substantial increase given the Claimant’s seniority.

204.7 The Claimant did not complain about the Respondent’s decision to proceed with the Beamans review and to implement its findings and I find that it was also objectively reasonable for the Respondent to have done so (and something for which R had reasonable and proper cause). This matter is addressed in more detail below, in the context of the Claimant’s complaint of indirect age discrimination.

204.8 The Claimant has not proved that the Respondent, by seeking to negotiate revised terms and conditions with him, which avoided any reduction in pay while giving effect to the outcome of the Beamans review and role classification process, conducted itself without reasonable and proper cause in a manner calculated or likely to damage the relationship of trust and confidence. Did the Claimant resign in response to the breach and was there in any event a fair reason for dismissal?

[205]I do not need to go on to determine these questions given my findings above on the unfair dismissal claim. However I can see the force of the Respondent’s contention that the Clamant did not resign in response to the breach.

[206]I consider that, had I found that the Claimant was dismissed, the Respondent, as per its submissions, would have demonstrated a fair reason for dismissal and that the dismissal was fair in all the circumstances of the case.

[207]The Claimant was not therefore unfairly dismissed (constructively or otherwise). Indirect age discrimination The PCP Regrading employees

[208]The Respondent submitted that it did not have a practice of re-grading employees and that to say that it did would not be an accurate statement on the evidence, since the role classification involved the re-grading of some employees, with others not being regraded, and in particular (and importantly), the Claimant was not re-graded from Director level). It submitted that if the pool 80 of 88 were to consist only of those who were re-graded, it would be different to the pool of those to whom the Role Classification Framework was applied.

[209]The Claimant disputed this contention saying that, although the Claimant moved from Grade 1 to Band 1, this was in the context of a different landscape in which there was a new, more senior Band 0. Mr Galpin moved from Band 1 to the new top Band 0 which meant that the Claimant was no longer in the top band.

[210]I conclude that the PCP should be viewed broadly and that the Respondent did have the PCP of re-grading employees and that the effect of the PCP for the Claimant was that he was regraded because, whilst he fell into Band 1 (having been previously Grade 1), that became a lower Band because of the introduction of the new more senior Band 0. Beamans process and Role Classification Framework

[211]The Respondent accepted that the Beamans process, and the Role Classification Framework were PCPs applied to its workforce (other than the CEO). I accept this submission. Particular disadvantage – regrading?

[212]Mr Magee’s witness evidence at [RMWS44-47] was:45. The roles of 38 employees were subject to the grading process. Of those, 13 (or 34%) were aged 50 or over.

46. Of the six employees whose salaries exceeded the assimilated pay band maxima, 4 (or 66%) were aged 50 or over.

47. There was also one employee whose salary was below the assimilated pay band minima and which was therefore increased as a result of the grading process. That one employee (or 100%) was aged 50 or over.

[213]The Claimant contended that 6 of the 38 employees were negatively affected by the regrading. Of those 6, 3 were over 50 years old. The Claimant, Employee A and Employee B were 52, 58 and 59 respectively. Employee A and the Claimant’s salaries were £9,265 above the pay band maxima (noting their 0.8 and 0.6 full time equivalent status) and Employee B’s salary was £18,478 above the pay band maxima. She retired at some stage during the process. Employee C, whilst not negatively re-graded, was 54 years old and was £912 shy of the top of her band meaning that her salary would be capped after a negligible pay rise.

[214]The Claimant’s central witness evidence on the question of age discrimination (which was not materially expanded on in oral evidence) was:214.1 CWS36: I was not the only one impacted by this change. There were three others who were demoted like I was: Employee A (aged approximately 59 at the time), Employee B (aged approximately 62) and Employee C (aged 81 of 88 approximately 54). One other member of staff aged over 55 was not subjected to the same decision. At the time of the re-grading, I was 54 years old. Their pay band review confirmation letters are at [602-603] (Employee A), [606-607] (Employee B) and [608-609] (Employee C). The bundle contains other example pay band matching decision letters. I cannot comment on the others, but I am aware that the employee at pages [604-605] was not demoted when his pay band was confirmed.

214.2 CWS45(a): Unfair and discriminatory treatment due to my age. This related to the demotion and pay evaluation exercise, my workload and level of responsibility increasing to the extent that I found it impossible to complete it within my contracted hours. I referred to Mr Swift's attempts to dismiss me from my role and the eventual revocation of this.

214.3 CWS60: In my view, it is clear that the majority of those impacted by the 2022 re-grading exercise were older employees (including Employees A, B and C). Others were affected, yes, but the majority were those who were older. I believe a principal reason for the SSRO targeting older staff was due to redundancy. The Civil Service redundancy rules state that anyone aged 55 or above must be offered early retirement before redundancy. Obviously, this would have been very costly to the Respondent and much more expensive than redundancy payments. I believe the SSRO were planning to restructure and remove my role and possibly the other roles which were impacted negatively. I am aware that they have not filled my role since I left which to me suggests a restructure was their plan from the beginning.

[215]The Claimant contended in submissions:215.1 Mr Magee was not able to put much detail to paragraph 45 and 46 of his own witness statement, when asked about the 9 employees who were 50 and over and not negatively regraded. I accept this submission and that Mr Magee said it was the COO i.e. the individual referred to at paragraph 47 of his witness statement (the person who was aged 50 + and had their salary increased) and a Band 4 employee. No other evidence was adduced by the Respondent on those other employees.

215.2 It is clear that of those employees adversely affected by the regrading, the two employees whose salaries were negatively regraded by negligible amounts were 38 years old and 44 years old (£15 and £320 respectively).

215.3 The three employees who were 50+ were materially adversely impacted by the regrading.

[216]The Respondent submitted that the Claimant, through this, had not proved specifically that re-grading particularly disadvantaged those over the age of 50 (indeed, one employee over 50—and only an employee in that age group - was particularly advantaged by re-grading). 82 of 88

[217]Whilst ‘regrading’ is the word used in the list of issues, I consider that it has clearly been used to refer to the broader Beamans’ process outcomes including the salary banding decisions which went hand in hand with the regrading.

[218]I consider that the pools for comparison are:218.1 Employees who are 50 years of age and over and who were regraded (in the broad sense explained above) - Group

a. A. It is clear that there were 13 employees that were over 50 years of age. They were all regraded because the introduction of the Band 0 above them meant that they were lower in the grading structure than before.

218.2 Employees who are under 50 years of age and who were regraded (in the broad sense explained above) - Group

b. B. This group comprised 25 employees who, for the same reasons set out above were all regraded.

[219]Six employees were negatively subject to the alleged disadvantage of being on salaries that exceed the salary cap and so negatively impacted. Three of those employees were in Groupa. A. Three of them were in Group

b. B. Proportionally 23% of those in Group A were negatively impact in this way ((3/13)x100). Proportionally 12% of those in Group B were negatively impact in this way ((3/25)x100). Therefore on this analysis a greater proportion (11% more) of those in the 50 years of age and over were negatively impacted. I consider that this disparity is material and shows that the Claimant’s group were subject to a particular disadvantage. Particular disadvantage – Beamans process and Role Classification Framework?

[220]The Respondent accepted that the Beamans review and post-Beamans grades, and the application of the Role Classification Framework to roles following the Beamans review, negatively affected those employees as set out at [RMWS48] (as reproduced in my findings of fact), and that this was particularly disadvantageous to those in the age group 50+. The Respondent said that this was not the pleaded PCP and so could not be relied upon by the Claimant. However, for the reasons I have explained, I do not consider that ‘regrading’ should be interpreted so narrowly. Proportionate means of achieving a legitimate aim?

[221]The Claimant contended that the Respondent had not established that the PCP was a proportionate means of achieving a legitimate aim. The Claimant argued that the Tailored Review, which was the catalyst for Beamans, had said that: “because [the SSRO] was operating in a niche area and needs to pay sufficiently to recruit and retain the skills essential for its specific role, [it was] observed from [the] wider experience of arm’s length bodies that the staff costs are typical of those [they] would expect for a specialist arms-length body” 83 of 88 and that the Recommendation 8 stated that: “the SSRO maintains some benchmarking of salaries paid and offered to its executives and staff to ensure they remain in line with those for similar roles in comparable arm’s length bodies” [emphasis added] [HB216].

[222]I do not accept this submission. The Tailored Review did not do the more detailed assessment that the Beamans process undertook and it cannot be the case that the Tailored Review would tie the hands of the Respondent in addressing outliers identified after that more detailed later assessment. The Tailored review cannot have intended that the Respondent should be bound to pay unjustifiable amounts to individuals.

[223]I consider that the Respondent has been able to establish that the regrading / Beamans process (including how the findings were implemented) and Role Classification Framework were a proportionate means of achieving a legitimate aim for the reasons submitted by the Respondent. The Respondent had a legitimate aim of ensuring that job roles were assigned pay bandings based on a rational and objective job evaluation methodology which supported nondiscriminatory, impartial judgments about those job roles and not allowing pay disparities identified by that job evaluation methodology to continue indefinitely:223.1 The relevant disadvantage was a proportionate means of achieving the legitimate aim of ensuring that job roles were assigned pay bandings based on a rational and objective job evaluation methodology which supported non-discriminatory, impartial judgments about those job roles and not allowing pay disparities identified by that job evaluation methodology to continue indefinitely:

223.2 The Respondent had committed to an independent review of its remuneration policy since July 2019 [HB207], with a view to ensuring fairness and affordability and with due regard to its relationship with its sponsor department, the MoD. This review neither committed the Respondent to lowering nor increasing its overall paybill but was aimed at fairness and affordability.

223.3 The context to this commitment was the circumstances in which the Respondent had been established in July 2014, as described by Mr Swift at [NSWS5—6, 8].

223.4 As referenced above, the recommendations of the Tailored Review did not undermine the Respondent’s own Workforce Strategy commitment [HB207], and there was an actual historical equal pay issue [RMWS8] which exposed a legal risk if it was not addressed.

223.5 Beamans’ own interim findings stressed the benefit of job evaluation to provide a strong defence against equal pay claims and identified a high 84 of 88 degree of risk to the Respondent if it chose not to adopt an analytical form of job evaluation to measure roles, noting that an informal approach would not satisfy equal pay legislation and would be neither equitable, fair, transparent or non-discriminatory [see my findings of fact and HB231-232].

223.6 Implementing an analytical form of job evaluation (and then providing for remuneration in line with that evaluation) were therefore important to managing equal pay risk specifically, as well as ensuring more generally fair non-discriminatory pay.

223.7 Understanding pay disparities but then not correcting them would just expose and entrench equal pay risk as well as evidence unfair pay practices.

223.8 Employee intransigence (in declining to agree to revised terms and conditions of employment) would not amount to a good defence to an equal pay claim brought by a woman, on the same corporate grade as the Claimant, who was paid less than the Claimant because the Claimant refused to agree varied terms and conditions of employment. Were a woman therefore to be paid the same as the Claimant to avoid that liability, because of that, a man on the same corporate grade (e.g., the Expert) could then “piggy back” on the woman’s higher pay to claim equal pay, and the Beamans process would be entirely subverted. Therefore, drawing a line under past pay practices and putting in place a pay structure in which there was a defensible relationship between job role and pay was a legitimate aim. Otherwise, the Respondent would be exposed to ongoing legal risk, which could be no better managed in the future, as well as continuing pay practices which it considered to be unfair and not good value for money.

[224]The way in which the Respondent carried out the process was proportionate:224.1 Every negatively affected employee except the Claimant agreed to revised terms and conditions.

224.2 The process worked positively as well as negatively, increasing the pay of one employee over 50.

224.3 There was effective consultation prior to the Beamans review, after the Beamans review, in the context of the role classification process, and in the context of pay decisions which followed role classification.

224.4 The Respondent provided information about the process to its employees, including to the Claimant.

224.5 The Beamans review was carried out by independent experts.

224.6 There was no prior indication of what effect the review would have by reference to any protected characteristic—there was no evidence that it 85 of 88 would particularly disadvantage older employees, and this was not the intention of the process (which was a fair, defensible pay and grade structure).

224.7 Employees were able to appeal role classification decisions.

224.8 The Claimant was given an additional opportunity to appeal in October 2023.

224.9 Affected employees were given two years’ pay protection, providing two years in which to adjust financial matters in anticipation of change (the effect of which was clear).

224.10 There was a revalorisation of pay bands with effect from April 2023, which increased pay for grades 0—2 by 2% [JRWS21].

224.11 The Respondent sought to avoid any reduction in pay for affected staff through very modest increases in working time, and other benefits—the proposed increase in the Claimant’s working time was modest indeed (and was subject to further potential negotiation).

224.12 The Respondent actively sought to consult and negotiate with the Claimant to address the consequences of the change.

224.13 The only option put forward by the Claimant was the complete maintenance of the status quo, with no changes at all to his terms and conditions of employment in perpetuity. For the reasons set out above, that would not have been a reasonable approach, where other negatively affected employees had agreed changes, and where the continuation of pay to the Claimant at an unjustifiable level would have entrenched equal pay risk.

224.14 The Claimant has identified nothing which the Respondent could have done differently which would have been a less disadvantageous way of achieving the Respondent’s legitimate aim.

[225]As the Respondent submitted, in any event, the Respondent did not intend to discriminate against employees aged 50 and over.

[226]The claim of indirect age discrimination is also not well founded and is dismissed. Employment Judge Woodhead 6 October 2025 86 of 88 8 October 2025 ...................................................................... ...................................................................... For the Tribunals Office Appendix AGREED LIST OF ISSUES Unfair Dismissal (section 98 Employment Rights Act)

THE LAW

[1]Did the Respondent’s letter to the Claimant of 6 March 2024 constitute an express dismissal of the Claimant?

[2]If not, did the Respondent seek to increase the Claimant’s hours and reduce his pay?

[3]If so, did this constitute a fundamental breach of contract?

[4]If so, did the Claimant resign in response? [7 March 2024 - 967/964]

[5]If there was a dismissal, does the Respondent show a potentially fair reason for the dismissal, namely some other substantial reason, namely the Respondent’s regrading process?

[6]If so, was the Claimant’s dismissal fair or unfair in all the circumstances?

[7]If the Claimant is found to have been unfairly dismissed: Did the Claimant cause or contribute to such dismissal through his failure to engage in consultation with the respondent over his terms and conditions? Indirect age discrimination (section 19 Equality Act 2010)

[8]Did the Respondent apply a PCP of re-grading employees?

[9]If so, did this place employees aged 50 and over at a particular disadvantage? [The Respondent’s practice of re-grading employees placed employees in their 50s and 87 of 88 over at a substantial disadvantage in that they were more likely to be on higher salaries and therefore subject to re-grading and reductions in their salary.]

[10]If so, did this place the Claimant at a particular disadvantage?

[11]If so, was the PCP a proportionate means of achieving a legitimate aim, namely, ensuring that job roles were assigned pay bandings based on a rational and objective job evaluation methodology which supported non-discriminatory, impartial judgments about those job roles and not allowing pay disparities identified by that job evaluation methodology to continue indefinitely?

Remedy

[12]If not, was the PCP applied with the intention of discriminating against the Claimant?

[13]What financial loss, if any, has the Claimant suffered as a result of any unlawful discrimination?

[14]Should any compensation otherwise payable to the claimant be reduced by virtue of the Claimant’s failure to comply with the Acas Code of Practice on grievance procedures by not raising a complaint of indirect age discrimination and/or appealing the grievance outcome: s. 207A, Trade Union and Labour Relations Act 1992? Should any other remedy be awarded? 88 of 88