M De RosaClaimantMr F Smoes (Global Chief Commercial Officer) English/Italian Interpreter: Ms Manuela CastelloRespondent
Before
Employment Judge Mr J S BurnsIn person for claimantDate 29 July 2025
JUDGMENT
[1]The Claimant was unfairly dismissed.[2]By 12/8/25 the Respondent must pay £24885.46 to the Claimant
REASONS
[1]I heard evidence from the Claimant. The Respondent’s witnesses Cesar Mendieta, (Chief Operations Officer), Ins Arnold, (Chief Executive Officer) and Luzmila Alvarado (Financial Controller) had served witness statements but failed to appear at the Hearing and at Mr Smoes’s request I read their statements. I gave them less weight as the witnesses did not appear for cross-examination.[2]The documents were in a bundle of 133 pages from the Claimant and a bundle of 97 pages from the Respondent.[3]I adjourned the hearing on 28/7/25 to 29/7/25 so that the Claimant could travel to the UK in order to give evidence.
Findings of fact
[4]The Claimant worked for the Respondent, which trades in diamonds at Hatton Garden, from 23/2/22 until 12/7/2024.[5]The Claimant was issued a written contract which stated that she was hired as a Production Manager. Her duties were not otherwise described in the contract. Her position was subsequently changed to Operations Logistics Manager with expanded responsibilities and she was given a pay rise without an updated contract, or any other changed written employment particulars despite her repeated requests for formalization of her new role.[6]On 12 July 2024, at 4:30 p.m., one hour before the end of the Claimant’s shift, and without prior warning or notification, she was called into a meeting with Mr Mendieta and Ms Arnold who informed her that her position was being made redundant, effective immediately, and she was asked to leave the office.[7]The fact that the decision had already been made prior to the meeting is confirmed in Mr Mendieta’s witness statement which reads “prior to the meeting on 12th July ….. it was determined that the role occupied by Miss De Rosa was no longer viable for the company…. at the outset of the meeting, Miss De Rosa was informed of the company’s decision to make her role redundant …”[8]The Claimant requested written confirmation of what she had been told and was subsequently sent an email on 15/7/2024. This email read as follows: “Dear Maria, I am writing to you regarding your consultation with Iris Arnold on Friday, the 12th of July, concerning the redundancy of your role within Novita Diamonds UK. As discussed, we are providing a written summary of this matter. Novita Diamonds UK has been part of a global review of team structure and composition. This directly relates to changes in the UK and global trading conditions for Novita Diamonds and the wider jewellery industry. Unfortunately, as part of this review, it has been determined that the role you currently fill is no longer viable for the company. We have not made this decision in haste and the decision comes with careful consideration. We have carefully considered alternative options but there are no available vacancies (or foreseeable vacancies) within the company, and the company does not intend to rehire for the role…...If you accept this redundancy, please confirm via return email. Alternatively, you have the right to appeal our decision. To do so, please provide an appeal letter on or before the 19th of July, outlining the reasons for your appeal. We understand this is a difficult situation and are here to support you through this process. Regards,..”[9]The Claimant raised a grievance on 16/7/24 stating that “My concerns regarding the redundancy process are as follows: Lack of Proper Consultation: I was not adequately consulted about the redundancy situation, which is a legal requirement. Unclear Selection Criteria: The criteria used to select employees for redundancy were not clearly explained or applied fairly. Failure to Explore Alternative Employment: No effort was made to explore potential alternative roles within the company for me. Given these points, I believe my redundancy was not conducted fairly or lawfully, constituting unfair dismissal …”[10]The Respondent replied on 17/7/24 including the following “Selection Criteria Due to significant changes in market conditions, your role has been determined as no longer sustainable within our company structure. Given the unique nature of your position, the small size of the company, the inability for the company to continue the role, and the lack of similar roles within the organisation, the standard redundancy selection criteria, were not applicable. “We explored potential alternative employment opportunities within the company to mitigate the impact of redundancy, but there are no open vacancies and we do not anticipate needing to hire in the near future. … You mentioned that no effort was made to explore potential alternative roles within the company. During the decision-making process, we reviewed possible redeployment opportunities within Novita Diamonds. Unfortunately, given the current restructuring and the lack of available roles, now and anticipated in the future, there were no suitable vacancies that matched your skills and experience. This was communicated during the consultation meeting.”.[11]This response makes it clear that prior to the meeting at the outset of which the Claimant was told she was being dismissed the Claimant had already been put in a pool of one, no selection criteria were applied to choose between possible candidates for redundancy and, if the Respondent considered redeployment opportunities at all, it had already reached the conclusion that there were none.[12]The Claimant’s grievance was treated as it she had appealed, and the Respondent tried to facilitate that, but in fact no appeal hearing ever took place. On 22/7/2024 the Claimant, having taken legal advice, stated that she was unable to attend because of her current health condition, and instead she invited the Respondent to make proposals for an amicable settlement.
Relevant law
[13]As to whether the employee was redundant section 139(1) of the Employment Rights Act 1996 provides as follows: “For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to – the fact that his employer has ceased or intends to cease –(i) to carry on the business for the purpose of which the employee was employed by him, or (ii) to carry on that business in the place where the employee was so employed, or the fact that the requirements of that business –(i) for employees to carry out work of a particular kind, or (ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish”[14]Where redundancy is established by the employer as a potentially fair reason for dismissal under Section 98(1) and (2) of the Employment Rights Act 1996, then section 98(4) must be considered which provides as follows: “Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) depends upon 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.’[15]Where redundancy is established, the employer will normally not act reasonably unless he warns and consults any employees affected or their representative, adopts a fair basis on which to select for redundancy and takes such steps as may be reasonable to avoid or minimise redundancy by redeployment within his own organisation Polkey v. A E Dayton Services LTD [1987] IRLR 503 at para 28.[16]Proper consultation involves consultation when proposals are in a formative stage, adequate information on which to respond, adequate time in which to respond, and conscientious consideration of the response. R v British Coal Corp ex parte Price 1994 IRLR 72 at para 24.[17]To warn of impending redundancies and then to announce the result does not comply with the duty: Rowell v Hubbbard Group Services Limited [1995] IRLR 195.[18]In King v Eaton Ltd no 2 1998 IRLR 686 it was held that Tribunal has discretion as to whether the employer can lead evidence as to damages to show that breach of procedure would have made no difference and employee would have been dismissed anyway. The question is “Can one sensibly reconstruct the world as it might have been or would this mean embarking on a sea of speculation?” This depends on whether omission is merely procedural or more fundamental and substantive. Requirements regarding Statement of Initial and Changed Employment Particulars[19]Section 1 Employment Rights Act 1996 requires employers to give a worker a written statement of employment particulars. Those required particulars included subsection 1(4)(a) “the scale and rate of remuneration” and 1(4)(f) “the title of the job which the worker is employed to do or a brief description of the work for which he is employed”.[20]Section 4(1) states that if there is a (subsequent) change in any of the matters which are required in the initial statement, then no later than one month after the change, a written statement of the change/s must be given by the employer to the employee.[21]Section 38 Employment Act 2002 states that if a claim as listed in Schedule 5 to the Act (which list includes unfair dismissal) succeeds and at the time when the proceedings began the employer was in breach of its duty in sections 1 and or 4 (as referred to above), the Tribunal must award the Claimant at least 2 weeks’ pay and may if it considers it just and equitable in all the circumstances, award 4 weeks’ pay.
Conclusion
[22]The Respondent’s witnesses have failed to appear to give evidence to prove any potentially fair reason for dismissal. I am not satisfied that there was a genuine redundancy situation as the Logistics Operations function continued. If this was simply a cost-cutting exercise such a reason would have to be supported by proper financial information which is lacking in this case. 2.2 No prior notice or consultation occurred before the meeting on 12/7/24 which opened after all the final decisions had been made, including that the Claimant was to be dismissed and that no redeployment opportunities existed.[23]As stated in ex parte Price “Proper consultation involves consultation when proposals are in a formative stage, adequate information on which to respond, adequate time in which to respond, and conscientious consideration of the response”. None of that occurred here.[24]Once a purported redundancy dismissal has occurred then the employer can offer an appeal but there is no mechanism to compel the dismissed employee (who by then may have lost trust in the employer or be suffering ill health, as in this case), to comply, and in any event an appeal facility after the event is no substitute for and does not excuse the lack of proper consultation at the initial decision-making stage.[25]The Claimant was unfairly dismissed.[26]I have a discretion to consider what would have happened if the Respondent had acted fairly by warning the Claimant that she was at risk of dismissal and carrying out a proper consultation. However, there is a lack of reliable evidence as to the real situation in the workplace and given the fundamental and substantial breach of the fairness requirement, I decline to embark on a sea of speculation about this.[27]The Claimant had suffered from various health problems prior to her dismissal, including mental ill-health, which deteriorated after dismissal. Shortly after her dismissal in July 2024 she left London and returned to live with her parents in Italy. At short notice the Claimant was unable to find suitable alternative work in Hatton Garden, where she had been employed for the previous seven years. Without her salary she was unable to pay her rent in London and she needed emotional as well as financial support at home. She remains in July 25 still living with her parents. Unfortunately, she is still suffering from insomnia, anxiety and depression and taking medication. I find that she is a hard-working person who would have obtained suitable replacement work if she was fit to do it and it was reasonably available to her. The Respondent has not shown that the Claimant has not taken steps reasonably available to her to try to mitigate her loss.
Remedy
[28]Notice pay: The Claimant was entitled under her contract to four weeks’ notice of termination. The Respondent was entitled to make a payment in lieu of notice and paid the Claimant the net amount after deductions from the 4 weeks’ gross pay amount of 4 x £769.23 =£3076.92. She received that sum and so is not entitled to any future notice pay.[29]Basic award/Redundancy payment The Claimant received a redundancy payment of £1286. Her statutory entitlement was 2 x £700 = £1400 so she is due £114[30]Compensation for loss of statutory rights £350[31]Compensatory award: Loss of earnings. The Claimant served a schedule of loss claiming loss of earnings for 8 months. I regard this as being the correct period to award and that it is just and equitable to do so. 8 months net pay = £21547[32]Pension loss (employer contribution) 5% of £40000 = £166.67 per month x 8 = £1336[33]Award under section 38 Employment Act 2002 for failure by Respondent to provide an updated statement of employment particular re changed role and increased salary: 2 weeks gross pay 2 x £769.23 = £1538.46[34]TOTAL award £24885.46 J S Burns