Mr P Richter v Atomics Educational Trust (formerly Tees Valley Collaborative Trust): 6018788/2024
EMPLOYMENT TRIBUNALS
Case No 6018788/2024
Between
Mr P RichterClaimantAtomics Educational Trust (formerly Tees Valley Collaborative Trust)Respondent
Before
Employment Judge Mr J S BurnsIn person for claimantMr P Keith (instructed by Counsel) for respondentDate 5 June 2025
JUDGMENT
[1]The claim of unfair dismissal succeeds.[2]The compensation payable by the Respondent is £30723 as calculated in the Reasons.[3]The Recoupment regulations apply as explained in the Reasons.[4]The Respondent must pay the Claimant £9023 by 19/6/25 and the balance of total award, once the regulations have been complied with.
REASONS
[1]This was a claim of (ordinary) unfair dismissal.[2]I heard evidence from the Respondent’s witnesses Dr Nichole Munro, (CEO) Sharon Boyes (HR) and Sarah Moyo (Appeal Officer) and then from the Claimant. The statements from his witnesses Ms E Chapman and Sam Matthews were agreed so they were not cross-examined, The other documents were in a bundle of 405 pages, a supplementary bundle of 229 pages, a Respondent’s remedy bundle of 92 pages and Respondent’s written submissions on remedy.
Findings of fact
[3]The Claimant worked for the Respondent continuously from 31/8/1998. Immediately prior to his dismissal on 10/9/2024 he was employed as a Liaison Manager. The Respondent is a Multi-Academy Trust based in Guisborough, North Yorkshire.[4]The Claimant worked at the Prior Pursgrove Academy in Church Walk, Guisborough which was about 10 miles by road from the Claimant’s home in Stokesley, Middlesbrough. He provided support and guidance to the students. He managed various other support staff. His work included providing cover teaching when the normal teaching staff were absent. His particular focus was on working with students who had special educational needs or disabilities (SEND). His annual salary in 2024 was £39512.[5]In 2024 the Respondent, lead by its newly-appointed CEO Dr Munro, decided that it needed to restructure in order to try to improve its operation and become more successful and competitive. This initiative was supported by a review from an ex-Ofsted inspector Anne Haywood which suggested that a number of improvements could be made, including in the SEND area of work. One of the aims of Dr Munro’s proposed restructure was to separate the teaching from the support services functions.[6]The Respondent started consulting with affected staff in March 2024 and allowed staff whose roles would be potentially affected by redundancy to apply to fill new roles.[7]The Claimant applied for the internal vacancy of Deputy Head (“DH”) in the SEND (Special Educational Needs and Disability) Endeavour team which was being created. The application was strongly supported by the Claimant’s line manager (for 18 years), who had detailed knowledge of the Claimant’s experience and capabilities. On a fair reading of the written submissions and observations of his Line Manager, the Claimant had in abundance the experience, skills and capabilities to fully perform the DH role.[8]His application was assessed by Dr Munro and Ms Boyes who had little first-hand knowledge of the Claimant. No formal suitability assessments were carried out. However, they correctly established that although the Claimant had done some ad-hoc cover teaching, the Claimant’s primary role prior to the restructure had not been a teaching one.[9]Written essential criteria had been produced for the new DH role. The first two of these were that the holder of the role should be qualified to degree level in a relevant subject and have a professional teaching qualification or qualified teacher status. On the Claimant’s own case he did not meet these requirements. Hence this was a case in which on a practical level the Claimant could have performed the role well but he was debarred from doing so by his lack of formal qualifications stipulated in advance as entry requirements which he could not comply with.[10]The Claimant held only a Level 4 certificate in psychology obtained as part of CPD in 2021 and a 7307 introductory short course completed in 2006. Also, despite claiming to have obtained 9 GCSEs, there was no evidence of this in the Respondent’s records, and no documentary evidence of this has been produced subsequently.[11]The Claimant adduced in evidence guidance from a government website called “getinto teaching” which includes the following “You do not always need a prior teaching qualification or an academic degree to start teaching in further education. Many further education training providers offer funded teacher training on the job, so you can start immediately.” This not particularly relevant as the question is whether the Claimant without teaching qualifications was suitable to be a Deputy Head of teachers rather than whether he was suitable to start teaching.[12]The Claimant,while admitting that he did not have adequate formal teaching qualifications, suggested that he should be permitted a trial period in the DH role during which time he would be able to study part-time for the necessary formal teaching qualification. In evidence at the Tribunal he was inconsistent as to how long that might have taken, but accepted at one point the Respondent’s witness‘s suggestion that it could have taken as long as two years. 13.In years past the Claimant had been urged to study to obtain formal teaching qualifications but for various reasons had failed to do so.[14]Dr Munro and Ms Boyes met the Claimant on 12/6/24 and told him that he would not be considered for the DH role. This refusal of his application for the DH role was the main focus of his complaints while his employment continued and subsequently in his ET claim.[15]The Respondent offered the Claimant an alternative role as Student Liaison Lead (SLL) working across two sites, namely at Prior Pursgrove Academy (ie his old work place) and at the Stockton Sixth Form College, at Bishopton Rd West Stockton-on-Tees, which is about 12 miles by road along a more difficult route from the Claimant’s home in Stokesley Middlesbrough.[16]The new SLL role would have been similar to the Claimant’s old role in that it would have included student support and liaison but different in that it would not have included any informal cover teaching nor any management. It offered annual pay of only £34559 which if accepted by the Claimant would have amounted to a cut in his pay of £4953 per year.[17]The Claimant declined the alternative role, giving three reasons, firstly that it would not include any management function and would be a demotion, secondly that it would involve him in working at two sites whereas he had previously been working at just one, and thirdly that the pay was too low.[18]On 26/6/24 the Claimant was issued with a notice of dismissal for redundancy.[19]His internal appeal was dismissed by a panel headed by Ms Moyo on 14/8/24.[20]The Respondent’s notes of the appeal hearing include the following “PR was asked by the panel he had considered accepting the offer of the student Liaison Lead and completing the teaching qualification. PR stated that he could not afford the pay cut”.[21]The Claimant’s last day of employment was 10/9/2024.[22]The Respondent at the time had a formal restructure and redundancy policy which included the following: “Pay protection: For those individuals accepting redeployment a period of pay protection will be offered in an attempt to keep individuals in work. The period of pay protection will be determined in the context of affordability and in the light of any other relevant circumstances and will be agreed with individuals and on each occasion of a redundancy/restructuring programme being proposed”[23]It is unclear whether either Dr Munro or Ms Moyo were aware of this part of the redundancy policy. It seems likely that Ms Boyes in HR would have been aware of it. However, no-one mentioned it to the Claimant at the time and the Claimant became aware of it only during the course of the Tribunal hearing.[24]For purposes of the 2024 restructure and redundancy exercise Dr Munro and Ms Boyes, without repealing or withdrawing the Respondent’s redundancy policy, issued a consultation document in March 2024 which included tucked away in Appendix 12 the following “Stepping down arrangements. The Trust is not offering a gradual drop in salary for staff who are unsuccessful in securing an equivalent role within the proposed structure, unless otherwise dictated by TUPE arrangements.“[25]The trade union (of which the Claimant was not a member) apparently did not object to this particular statement when the document was consulted on.[26]In her oral evidence, although not before this, Dr Monro explained that she had decided not to offer pay protection because she felt that all the roles should be “benchmarked” and that if she allowed this to one employee, others might want it also. She accepted that although statutory requirements prevented pay falling below certain minimum levels, there would have been no legal impediment to the pay for a redeployed role being increased to match the pay which the redeployed employee had enjoyed before redeployment.[27]The Respondent submitted that even if the Claimant had been offered the SLL role with payment protection, he would have turned it down, because he had turned it down after he had been told that he would not get the DH role, and so he opted to be made redundant. This does not follow at all. He turned it down when he was offered it without pay protection.[28]The Respondent also submitted that the low pay offered with the SLL role did not make that role unsuitable for the Claimant, alternatively it was not that low pay which made him turn the SLL role down, because he applied for the DH role which (after applying the Respondent’s pay scales) would have also given him pay of only £34490. (ie similar to the SLL pay). However, there is no evidence that the Claimant knew when he applied for the DH role that if he accepted it his pay would be cut. The Claimant stated in his oral evidence that although he had not liked the idea of taking the SLL role, if he had been offered it with pay protection - ie his old salary- he would certainly have taken it because he “would have done absolutely anything to keep his job with the Respondent for which he had worked since when he was 19 years of age in 1998”. I accept this evidence.
Relevant law
[29]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 –a. 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, orb. 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”[30]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.’[31]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.[32]It is not the function of the Industrial Tribunal to decide whether it would have thought it fairer to act in some other way: the question is whether the dismissal lay within the range of conduct which a reasonable employer could have adopted. Thus the tribunal should not impose its own views as to the reasonableness of selection for redundancy but should ask whether the selection was one which an employer acting reasonably could have made. Drake International Systems Ltd v O’Hare EAT 0384/03
Conclusions
[33]The Claimant did not raise any formal procedural issues about the consultation process or the appeal[34]The Claimant challenged the need for the Respondent to carry out the restructure at all. The Respondent is entitled to decide for itself how it wishes to arrange its business and in the absence of bad faith or a decision which falls outside the range of reasonable decisions, (neither of which are evident in this case) the decision to restructure and the form of the new structure are matters for the Respondent and are not subject to interference by the Tribunal.[35]There was a genuine restructure as a result of which the Respondent had a reduced need for employees to carry out work of a particular kind, namely work by staff who were not qualified as teachers doing a mixed role including pastoral work and some informal ad-hoc teaching at a single site. I find that the Claimant’s old role was redundant and that this was the reason for his dismissal.[36]The Claimant complains that the DH role, his application for which was refused, was extremely similar to his old role and that he had more than enough experience and expertise to have made a success of the role if he had been allowed to perform it. There is significant evidence in the form of the support he received from his line manager, and also from his witnesses for the Tribunal, to suggest that he was probably correct about this.[37]However, it does not follow from this that Dr Munro’s decision that the role should be filled by a teacher with formal teaching qualifications, was unreasonable. The teaching and liaison/pastoral functions were being separated and the Claimant was not a qualified teacher. The DH would manage qualified teachers. It was not inappropriate for this to be done by a qualified teacher only. It was not outside a range of reasonable responses for the Respondent to stipulate essential requirements including the holding of formal qualifications, even if the Claimant could not comply with them. Once this point is reached, it does not matter for purposes of this tribunal claim whether or not the Claimant (practically speaking) would have been able to carry out the role.[38]The best which the Claimant could offer in terms of his lack of the necessary qualifications was to say he would attempt to study for teaching qualifications, against a background of having failed to do so over many years previously.[39]It was well within a range of reasonable responses for Dr Munro to decide that the Claimant was not suitable or sufficiently qualified for the DH role and to refuse his application for it.[40]The Respondent’s pay protection policy was applicable but the Respondent kept quiet about this and without adequate explanation, or evident justification, ignored it and proceeded under a new inconsistent scheme which stated in an appendix that it would not be providing this significant benefit.[41]The redundancy policy had not been repealed or withdrawn. The wording of the pay protection policy within it is mandatory - under it the Respondent, complying with it, did not have a choice as to whether or not to offer pay protection, but only as to how long it should last. The failure to offer pay protection was a clear breach of the policy.[42]If the Respondent wanted to “benchmark roles” or do anything else contrary to its obligation under the pay protection policy, then it should have changed the policy first after proper consultation.[43]The fact that a TU did not complain about this is does not mitigate the unreasonableness because it is not shown that any of its members on whose behalf it was consulted were suffering a pay cut on redeployment, and in any event a wrong is not corrected by a lack of complaint.[44]The fact that the Claimant was not alive to the pay protection policy and did not identify the policy at the time also does not mitigate. He made it clear that a significant reason why the alternative SLL role was un-acceptable to him was because of the pay cut. At the appeal hearing when asked, that was the only reason he is recorded as having given for his decision not to accept it.[45]In final submissions the Respondent took a pleading point, saying that the Claimant’s complaint that he should have been offered the SLL role with pay protection is not stated in his ET1 or in his witness statement and was not the main focus of his case, which had been the fact that he was not given the DH role. However, there were no further particulars asked for by the Respondent and I was referred to no list of issues. The Tribunal’s task in a case like this is to consider the legal principles summarised above. I do not regard the fact that the focus of the Claimant has been directed to an unsuccessful point, precludes or limits me in my application of the well-known principles in section 98(4) and the case law which establish the basic obligations of fairness incumbent on an employer carrying out a restructuring and redundancy process.[46]In these circumstances the Respondent, whose policy it was, and Dr Munro, Ms Boyes and Ms Moyo, all of whom had constructive if not actual knowledge of the pay protection policy, should have offered the Claimant the benefit of it to help him accept the SLL role, without him having to ask specifically for it.[47]The Claimant had extremely long service and he was a hard-working and loyal employee who had much to offer and who was highly valued by his line manager and many other colleagues. Even before the restructure, he was on a modest salary. The pay cut which the withholding of the pay protection would have imposed on him would have exceeded 12 percent, and he was asked to accept that while at the same time accepting the extra travel costs which he believed he would have incurred by having to commute to two different sites including the second site which was a longer and more difficult car journey from his home. 48. in the particular circumstances of the case I find that the Respondent acted unfairly in withholding pay protection from the Claimant, thereby breaching its obligation to take such steps as were reasonable to avoid or minimise redundancy by redeployment within its own organisation, and that this fell outside the range of reasonable responses available to an employer in the circumstances.[49]Hence the claim of unfair dismissal succeeds.
Remedy
[50]The Claimant did not wish me to consider re-instatement or re-engagement.[51]The Claimant received a redundancy payment so he is not entitled to a basic award.[52]It was conceded in submissions that no-one else apart from the Claimant would have been in contention for the SLL role. I have found that had the Claimant been offered the SLL role with pay protection he would have accepted it.[53]The Claimant in evidence stated that he would have hoped that he would have been given pay protection for at least 6 months. However, this period is not mentioned in the pay protection policy nor was the period discussed or considered during the consultation, as it should have been. In these circumstances I must consider not what the Claimant stated he would have hoped that the minimum period would have been, but rather what the Respondent, acting reasonably and fairly and having regard to the terms of the pay protection policy in the particular circumstances, would have done.[54]After receiving the judgment on liability, the Respondent applied to adduce further evidence on the subject of how long it would have provided pay protection had it applied the pay protection policy to the Claimant. I admitted this evidence and was taken to documents generated in restructuring/redundancy exercises annually from 2014 to 2018. These all arose out of cuts/alterations to teachers’ hours - who were given pay protection for the equivalent of a three months’ notice period over the summer before any new reduced pay started with the beginning of the first term of the next academic year on 1st August.[55]An example reads as follows: “Faculty Managers /Deputy Faculty Managers; Although it is intended that the new staff structure be adopted by the start of the Summer Term, no one will have their pay reduced before 31st August 2014. The College is not offering a gradual drop down in salary for staff who are unsuccessful in securing a Faculty Manager or Deputy Faculty Manager post. Those affected staff who qualify for a redundancy payment will receive the relevant payment and following a one day break in service where applicable, will take up a new post and receive the relevant salary for that post immediately. “[56]Ms Boyes was recalled to give evidence about this. She said that she thought that if the pay protection policy had been applied to the Claimant, the same three month period would have been on offer. She agreed that there was no reference to individual consultation or agreement or to the pay protection policy itself in these earlier documents. The period of grace had been applied unilaterally across the board to a class of employees affected by a change in the teaching hours.[57]The Claimant was also recalled to give evidence about this - his submission was that these claimed examples of three months protection were not comparable to his situation as they related to changing teachers’ hours rather than carrying out an individual discussion with a particular individual who was being redeployed.[58]I do not regard 2014-2018 examples as illustrative of the proper operation of the pay protection policy but rather examples of its breach, if it was in force at those dates. The pay protection policy is set out in paragraph 22 above. It required an individual discussion with persons whose employment was at risk, based on their particular circumstances with a view to reaching an agreement which would keep them in employment. These earlier examples date from 6 years and more before the events under examination in this case and do not show any individual consideration, but rather a blanket approach unilaterally imposed. Furthermore, they make no reference to the pay protection policy as it is referred to in the redundancy policy, begging the question again as to whether the latter was even considered when these documents were produced.[59]After receiving further submissions about this, I find that if a manager or senior officer acting in good faith had sat down with the Claimant with a view to properly applying the pay protection policy by seeking an agreement with him as to a period of pay protection which would allow him to accept the SLL role, then taking into account the Claimant’s long service and abilities, the relatively small sums involved, and the hardship which would be caused to the Claimant by such a (for him) significant cut in his pay, the Respondent acting reasonably would have agreed to protect his pay for at least one year from 1/9/2024.[60]The question then arises as to what would be likely to happen after the period of pay protection ended. The Claimant by then might have managed to secure a better paid job within the Respondent, perhaps with the assistance of having obtained teaching qualifications. Given his poor track record in his previous attempts to obtain such qualifications, I am not persuaded that this would have been likely. It is more likely that he would then have left the Respondent’s employ in any event to try to obtain better paid employment, as he did when faced with a pay cut in 2024.[61]Hence the period of loss starts on 10/9/24 and ends on 1/9/25, a period of one year less 9 days and that is the period which I regard it as just and equitable to award compensation for.[62]The Claimant’s salary was £39,512.04 per annum, net £29,916.96 per annum, net £81.96 per day[63]It was not suggested that the Claimant has failed to try to mitigate his financial losses. He has adduced evidence of numerous unsuccessful job searches. In the period since dismissal on 10/9/24 to date 5/6/25 he has managed to earn only £2800 and he estimated that by 10/9/25 he would have managed to earn only another £2800 as a self-employed trainer. His losses in net income over the period of loss year since dismissal are likely to be £29916- £737 (9 days pay) - £5600 = £23579.[64]As a career-loss approach to the pension loss is unjustified, I calculate it based on the employer’s pension contribution of 17.5% applied to one year less 9 days gross pay = £6744.[65]I add £400 for loss of statutory rights[66]Summary Salary loss. £23579 Pension loss £6744 LOSR £400 Total £30723.[67]The Recoupment Provisions apply as the Claimant has received Job Seeker’s allowance. The prescribed period is 10/9/2024 to 5/6/25. The prescribed amount is £21700 (net pay for 9 months less 5 days) The difference between the prescribed amount and the total award is £9023. The Claimant’s NI number is JM640722C.