Employment Judge N WalkerMr R Downey (instructed by Counsel) for claimantMr A Watson (instructed by Counsel) for respondentDate 23 April 2026
JUDGMENT
The claimant’s claim for unfair dismissal succeeds.
REASONS
Claim
[1]The claimant Luke Cunningham claimed unfair dismissal against his former employer MMT Limited.
Evidence
[2]The Tribunal had an agreed bundle of evidence. During the course of the hearing the Tribunal received some additional documents from the respondent.[3]The Tribunal heard evidence from the following witnesses for the respondent:3.1 Mr Nick Rudd, Director of Consulting for the respondent, and the claimant’s line manager;3.2 Mr Mark Rodseth, Chief Technical Officer of the respondent;3.3 Ms Rebecca Crook, Chief Executive Officer of the respondent3.4 Ms Krystina Feilden, People Director for the respondent.[4]The Tribunal also heard evidence from the claimant.
Facts
[5]The respondent is a company in the MSQ group. The claimant commenced work with another MSQ company called Brave Spark on 1 January 2015. I was told there was a decision to restructure the MSQ group as a result of which the claimant was transferred to work for the respondent.[6]The respondent was described as a digital experience agency which specialises in the design and build of digital solutions and helping customers to modernise and transform their digital experiences and infrastructure.[7]A number of different individuals or groups of individuals who previously worked on technology in other group companies were moved into the respondent. Although the companies were separate legal entities, the respondent was wholly owned by the parent company and there was effectively a reporting structure between companies. As part of this reorganisation, the claimant, who had been Chief Technology Officer at Bravespark, became an employee of the respondent. In the course of this change of employer, his job title was changed.[8]Mr Ben Rudman, the Chief Executive of MSQ, the parent company, appeared frequently in the documentation. Mr Rudman was also a director of the respondent. Individuals within the respondent company would take instructions from Mr Rudman. Additionally, MSQ financed certain work and was regarded as the client for whom the work was developed. Again, this meant that Mr Rudman, as the MSQ representative, could give instructions. Ms Crook, the Chief Executive Officer of the respondent, described Mr Rudman as her line manager.[9]In August 2024 discussions took place about the claimant becoming an employee of the respondent. In an email from Ben Rudman, he said to Mr Rudd and others referencing the claimant: “He will come with a very small amount of revenue to start with, again which I am going to confirm in the next few days but Mark, John Prior and Pete T are all very excited about what he is building out from an AI pov and it could be a key part of how we deliver services to clients across MSQ (not just MMT) going forward. He has a great technology brain and so we need to think carefully on how best to deploy him which the Nicks and Mark should talk about in due course”.[10]An e-mail sent by Mr Rudman dated 2 September 2024 to HR notes that the claimant’s job title will be “something like creative technologist”. He also asked Mr Rudd if he had has had any discussions with the claimant about this. If not, he was asked to do so. The claimant was to report to Mr. Rudd as Director of Consulting and was therefore part of the consulting team, not the technology team. The claimant said the title of creative technologist was his choice and that Mr Rudd had proposed something more generic like technical director or strategic consultant.[11]The written statement terms and conditions of employment in the bundle were signed by Jess Duxbury, HR Assistant for the respondent. The statement confirms that the claimant’s appointment with the respondent commenced on 2 September 2024 and his continuous service dated back to 1 January 2015. The job title was Creative Technologist. The contract also stipulated: “however you may be required to undertake other duties from time to time”.[12]In his ET1 the claimant states that his work was primarily on three “live workstreams” being JUMP, NIMBUS and Visa Navigate. However, before he transferred to the respondent he had been working on a software system called MMAP. He also started a system called Jump. when he transferred to the respondent, he carried on working on both of those products. Delivering MSQ Jump AI[13]In October 2024 a document was prepared about the Jump system called “Delivering MSQ Jump Ai”. The front page indicated it set out priorities, business case, cost and time frames. P150 At one point it explained: “The team have already planned the foundational requirements and can now progress to full production within five months.”[14]This document referred to MMAP in the presentation slides, as having been assessed and green-lit to become the engine powering the internal processes. MMAP was described as the foundational system or engine onto which other systems including JUMP were to be attached. I understand there was no distinct budget for MMAP.[15]The Jump phase one delivery cost breakdown in the Delivering MSQ Jump Ai document set out the claimant as the cloud systems engineer and also the senior server side engineer. Those two roles were expected to take him 117 days. The budget was £166,231. Following that document, the respondent made a strategic decision to proceed with JUMP using MMAP as the engine. The budget for Jump was approved. The budget came from MSQ, the parent company, and that company was regarded as the client for this project.[16]During the hearing, the respondent argued that Jump was only a prototype which would need to be built out properly by fully experienced software specialists, if it was thought viable. The claimant disputed this.[17]The evidence supports the claimant’s contentions. The Delivering MSQ Jump Ai pack does include a slide on future work (or Jump phase two) which was to build on the AI foundation. That indicated that in subsequent phases, work would be required to measure the success of phase one and iterate features and functions and build in real time improvement loops into the experience. However, the approval and budget for Jump phase one was for the build out of a viable product. The respondent has argued that see delivering MSQ Jump AI pack was a marketing tool, and as such the references in it to the claimant’s role were not to be taken seriously. However, MSQ was part of the same group. The personnel involved at MSQ knew the staff at the respondent. Mr Rudman was the Chief Executive of MSQ, and he represented that company in relation to the Jump project. He had previously commented on the claimant’s technical ability. As the client who was paying for the product was a group company, there was no need to put names in to slots for the sake of it. Moreover, Mr Rudman knew the claimant’s ability. It is my conclusion that the references to the claimant as the cloud systems engineer and senior server side engineer in that document were genuinely intended to reflect his role in the development of this project.[18]Jump did not progress as quickly as hoped. Numerous documents within the bundle indicate that the claimant was called on by various staff members to assist with efforts to seek new business. He was stretched by these pressures as well as work on the Jump project as there are indications that there was insufficient time for him to continue the project development as well as recording in a documentary form, the cloud architecture and engineering involved.[19]On 2 January 2025, Ms Crook had been appointed Chief Executive Officer of the respondent. At that time the respondent was performing poorly from a financial perspective. Ms Crook made some changes to the business approach one of which was to require most staff to be assigned to a billable project and not to have staff carried on payroll while they were waiting to be assigned to new billable work (referred to as being on a bench).[20]On 10 March 2025 a new Chief Technology Officer, (“CTO”) Mark Rodseth commenced work with the respondent. Mr Rodseth initially reviewed the technology projects being carried out by the respondent. When Mr Rodseth looked into MMAP, he was concerned.[21]On 27 March 2025 Mr Rodeseth messaged Mr Vishal Vaskar, the Principal Cloud Architect for the respondent, attaching a diagram of MSQ Cloud Architecture taken from the October presentation I believe, stating: “This is what Luke is building (From a doc) Re: our discussion, serious concerns that he is building his own complex cloud workflow orchestration engine which is going to create a major support, maintenance and evolution headache in the future.[22]Mr Rodseth continued two minutes later stating: “im going recommend we pause the project and do an evaluation”. The message trail continues, “We should be starting small and doing a poc on a platform that does most of this. Mr Rodseth then sent a link to what I understand was an example of a platform that could do the required work, saying: ‘then test and learn and scale when needed”.[23]The exchange with Mr Vaskar continue with Mr Vaskar commenting that it all looked promising with a low upfront cost commitment and stating we should probably do some sort of user story mapping/MVP planning and then look at the tech stack. His messages continued: “might get people working on this really annoyed though”. Mr Rodseth responded that the impact of not getting this right is much larger than annoying a few people.[24]Mr Rodseth attached two documents which were effectively sections of the report which he was drafting. He followed that with a message saying: “essentially saying, let's pause and make sure we're headed in the right direction”.[25]The next day, 28 March 2025, Mr Rodseth messaged a group of other managers stating he was linking up and seeing how they could join forces. He then referred to Mr Vaskar being due to look at the cloud platform side of MMAP and JUMP. He said he had been looped in and he wanted to see if they could do the following as a group. He then set out a list of what he wanted the claimant to walk them through which was the following:• what is the project and what business need does it meet• what is the technology solution• what’s the current state• what’s on the road map• code base and architecture walkthrough of MMAP and JUMP. He finished stating this will it be important context for the cloud architecture review.[26]While Mr Rodseth had been looking into the respondent’s technology projects, work had been continuing on Jump. Ben Rudman was clearly anxious for quicker progress to be made and for there to be something to show their colleagues. On 28 March 2025 Calum Scrimgeour emailed Ben Rudman stating that he had finished the updated Jump project plan and created a PowerPoint presentation rather than the granular detailed plan. This document appears in the bundle and Mr Scrimgeour described it as covering the following: A summary Key milestones and delivery dates Critical paths The approach for gathering feedback from the wider MSQ group A high-level timeline for each project phase[27]Ben Rudman emailed back saying he had added a JUMP wheel which was aiming to show a “mapping” of what they were currently doing and all the workstreams. All this was in preparation for a meeting due to take place a in a few days at which there would be a walkthrough of the state of play of items under development, and they could get feedback from Mr Rodseth and Mr Vaskar on the infrastructure. 1 April meeting between Mr Rodseth, Mr Vaskar and the claimant abut Jump.[28]On 1 April 2025, after the messages between Mr Vaskar and Mr Rodseth, there was a meeting between the claimant, Mr Vaskar and Mr Rodseth to enable the claimant to explain the MMAP framework. The meeting took about 2 hours.[29]On 2 April 2025 Mr Vaskar messaged Mr Scrimgeour trying to obtain documentation for MMAP. He said they had the first show and tell session with the claimant, and it was very insightful. There had to be some solutions architecture documentation. The copy of the message in the bundle is curtailed but the gist was that there had to be something to show consumers how they would integrate all the core components of MMAP.[30]Mr Scrimgeour replied saying he appreciated that, but he wasn't keen to shift the focus away from the critical path development and he would raise it with Mr Rudman so that he was aware there was a blocker on the infrastructure review time. After that there was a further exchange between Calum Scrimgeour and Ben Rudman about the priorities that the claimant should have. The exchange between 3 and 7 April refers to the fact that Mr Cunningham had recently been told to focus on the critical path development but was now being asked to work on documentation and architecture diagrams. That would impact on the timeline they had just set out. Mr Rudman responded that they ought to do the documentation. MMAP Assessment[31]On 3 April, Mr Rodseth shared an executive report prepared by himself and Mr Vaskar called MMAP Assessment. It expressly noted that JUMP and Nimbus were consumers of MMAP and those products were not evaluated as part of this exercise.[32]The recommendation was a complete change of the previous approach. They proposed that MMAP should be replaced by standard architecture provided by a large supplier to avoid the need to maintain and support MMAP. This meant that there would need to be changes made to JUMP. At that stage it wasn't clear how JUMP would be progressed. Mr Rodseth suggested a pause for further assessment.[33]The executive summary said it provided a technology assessment of the MMAP framework, recommendations to move forward and commercial impact of the recommendation. The recommendations were:33.1 to pause development on MMAP independent projects (Jump and Nimbus).33.2 reset on platform objectives and use cases,33.3 identify technology options that can deliver on objectives and use case.33.4 Build an MVP [minimum viable product] on a selected option to show value and create a foundation for evolution and scale.[34]The MMAP Assessment report explained the reasons why the recommendation was to move away from the MMAP architecture. They were that to continue the existing custom build would require significant investment to address critical gaps in the documentation, maintainability, cloud-readiness, compliance, performance, scalability, cost and security - all of which were already well handled by mature, industry standard platforms. Also, the MMAP Assessment explained certain benefits of that sort of migration. It stated the assessment was based on a review of the MMAP code base and a walkthrough of the solution by Mr Cunningham.[35]Under a section headed “Observations”, the report noted that MMAP is a custom built AI workflow orchestration engine built on a combination of what in understand to be three computer coding languages. There were various technical points raised in relation to MMAP in a section headed “Critiques” contained in the report.[36]There was a section headed Plan & Commercial Impact, which repeated the proposal to pause current development on MMAP and JUMP. It suggested potentially re-invigorating MMAP as part of Nimbus when the next content migration project was sold in. It proposed evaluating options against platform goals. It referred to “define MVP” followed by “implement MVP”. It also set out a core team required which included part time commitments from a business sponsor, product owner, technical architect cloud platform architect as well as full-time back-end engineer using a coding language called Python and front end engineer using a coding language called React.[37]Additionally, the MMAP Assessment set out a timescale for this change, which would take 10 weeks. The timescale envisaged options being evaluated in Week 2. In Week 3 they would start the architecture design and platform setup. The MVP build was to take place between Weeks 5 and 10. 7 April email from Mr Rudman[38]On Monday 7 April Mr Rudman e-mailed Mark Rodseth (copying Rebecca Crook and Nick Rudd) referring to the recommendations Mr Rodseth had made. He accepted the change of strategic direction and the decision to stop using MMAP. He commented: “the document was succinct clear and gives a series of next steps. It all made sense. It was frustrating and disappointing to see that the MMAP software is in this position.”[39]Mr Rudman referred to this putting them back timewise in terms of where they need to be achieved what they needed to be achieving across MSQ and looked like it had been a waste of time and money for a chunk of the work done so far but it was preferable to find this out now than further down the line. He then said he was happy to follow recommendations on page 3 (which was the Executive Summary) but wanted to review certain things.[40]In that email, Mr Rudman asked specifically for Mr Rodseth to lead on moving JUMP forward. He said: “we need to get it moving this week pls”. Mr Rudman wanted to kick off the strategic alignment element and bring together the people necessary for options evaluations. He also said that they needed to ensure the work done on Nimbus, Jump and MMAP was fully secured and under MMT’s control.[41]Mr Rudman said: “We are going to need to pause work on the current MMAP work stream and manage LC accordingly (see point above). From the discussion we briefly had you don't feel he is able to undertake any work on this pivot, which he is not going to react well to so you and Nick R had better align on approach etc as we are going to need to give him the initial feedback from the assessment that you and Vishal have done.... There is actually a JUMP monthly update meeting on Thursday at 2pm but based on the above it would be helpful to understand whether we should continue with this and whether we plan to feedback to LC on the state of play before then.”[42]It is clear that Mr Rudman accepted the proposal to stop the development based on MMAP as the engine but wanted Jump to continue without delay under Mr Rodseth’s leadership. It is also clear that Mr Rodseth had talked to Mr Rudman and expressed the view that he didn't feel the claimant was able to undertake any work on the future arrangements for Jump.[43]The work on a reset for Jump started quickly, as Mr Rudman had requested. On Thursday 10 April Mr Rodseth emailed Mr Rudd, Pete Trainor and Mr Vazkar about Jump reset, saying he had been working on a Mural Board mapping out current state of Jump and set up for future state. They could use this as the basis for strategic review/reset. Redundancy Decision[44]Meanwhile, the messages show that between 7 April and 15 April the decision to make the claimant redundant had been decided and Mr Rudd was tasked with carrying it out. The next steps were all about Mr Rudd working with HR to get a process together for a redundancy as can be seen from the messages between Mr Rudd and HR.[45]On Tuesday 15 April 2025, Mr Rudd messaged Ms Reynolds, who was running HR as a maternity cover for Ms Fieldman. He indicated that he was messaging two people saying he was after some advice. There followed an explanation of their proposal which was to speak to the claimant that day about pausing the primary project he was working on. His message said: “Hi both, I'm after some advice. With LC we are likely to make the role redundant. Are there any considerations around this? Can you pull together what the package would look like, any key timings or concerns. FYI, we will speak to him today about pausing the primary project he is working on. As such this won’t be a performance thing. It will be the work has changed and the role is no longer needed as we will change direction.” The exchange continued over a matter of about 2 hours with Mr Rudd explaining the following to Ms Reynolds: “The plan was to bring LC up to speed with the fact that we have been working on an assessment of the AI initiatives and based on that we are looking at alternative options to meet the desired outcomes. We still want work documented so we can see what we have and what can be used. That work on what next hasn't started but it will not include LC. We plan on having that factual conversation today and then following up with the impact in a short time frame, e.g. a few days tops. The reality is the new approach won't use the current foundations that LC has developed. Based on the initial views of the work to date, we do not believe LC is a fit for the likely new direction and we do not have work for that specific role. Does that work?”[46]Senior management had approved the decision as can be seen from the message thread, as Mr Rudd continued explaining: “Rebecca and Ben are both aware and aligned but obviously we need to get the process and timings right.”[47]The next day, on Wednesday 16 April, Ms Fielden became involved. Ms Fielden had been on maternity leave. She explained she was back in today and she could work on this. She then said she would pull together the templates and paperwork so they could work on this together.[48]Mr Rudd responded on Thursday 17 April saying thanking Ms Feilden saying: “Mark R [Rodseth] is out today so I will send over the rationale on Tuesday when I can double check it with him. It is broadly as discussed but I want to make sure the terms we use are correct. It will be around a pivot to using market available tools which will deliver the main business outcomes faster with less risk and technical debt”. The Tuesday referred to would be 22 April 2025, i.e. immediately after the Easter break.[49]On 17 April Ms Crook messaged Mr Rudd stating: “we need to move quickly on this which I know I've shared with both of you and I know you said Luke is asking questions. I think the best way forward is the conversation happens on Tuesday or Wednesday latest and if LC asks about shares the default is we will raise that with MSQ and be in touch to clarify the detail. Hope that makes sense I'm around Tuesday if you need to chat this through/any queries.”[50]It was the Easter break between 18 and 21 April 2025. On Wednesday 23 April 2025 a meeting had been scheduled for Mr Trainor, Mr Scrimgeour, the claimant and some others to demonstrate Jump to various people including Mr Rudman and Mr Rodseth. It was referred to as a JUMP monthly meeting. However very early that morning a message was sent out on behalf of Mr Rudman to say that he had to travel to another location earlier than expected and the meeting was being moved. In practice it was never rearranged.[51]The respondent argues that these messages were merely an effort to ensure that the redundancy situation they had identified was addressed correctly. Mr Rudd said this was the situation in his evidence. I do not accept that is the position based on the documents themselves. I consider the clear meaning of these message threads is that a decision had been made to dismiss the claimant. The messages show that Mr Rudd was instructed to deal with it and he was working with HR and trying to determine a process to achieve that. The messages also show that Ms Crook and Mr Rudman had been involved in the decision to dismiss the claimant. It is clear from the various messages referred to above that the proposal to dismiss the claimant had been formulated between 7 and 15 April and the respondent had decided to follow a redundancy procedure, rather than a performance process, in order to dismiss the claimant. Selection Pool[52]Ms Feilden became involved on her return from maternity leave on 16 April. Miss Feilden explained to the Tribunal that she returned on a phased basis and was therefore able to take on the HR role in relation to the proposed redundancy. Ms Feilden said that she was certain that in preparation for the potential redundancy, there had been a consideration between herself and Mr Rudd about the claimant’s role and they had considered a job description. She told the Tribunal that the claimant’s title was a new title to her, despite her having been in the same business sector for some years. She therefore wanted to understand it. However, the job description which Ms Feilden and Mr Rudd recalled looking at could not be located.[53]Mr. Rudd said that he discussed the claimant's role and his workload with Ms Fielden and they considered whether any other duties were interchangeable with the claimant’s. They concluded there were none as he was the only employee employed as a Creative Technologist and he worked the majority of his time directly on the Jump platform which was directly impacted by the strategic business plan. They did not consider it was necessary to pool any other roles with the claimant’s role.[54]The respondent admitted that having been unable to locate the job description which Mr Rudd and Ms Fielden claimed to have considered, Mr Rudd and Ms Feilden had (during the course of the legal proceedings) recreated what they thought that job description looked like.[55]In short, the evidence of both Mr Rudd and Ms Fielden is that they considered a job description for the claimant before deciding that his job was unique and therefore, he should be the only person in contention for the redundancy. This lacks credibility when compared with the documentation.[56]First, there is no evidence at all that a job description was ever prepared. The claimant was never shown a job description. In his oral evidence, Mr Rudd said there would have been some discussion of what the claimant was going to do, but he did not maintain they ever discussed a job description. The claimant says there never was one shown to him. The claimant transferred from BraveSpark during the course of Ms Fielden’s maternity leave and he was given the new title at that time. It was not a job that the respondent was seeking to fill. Rather the claimant says he chose the title. If any job description was drawn up, it would have to have been done by someone in HR such as Ms Fielden’s maternity cover, Ms Reynolds, or Ms Duxbury who signed the claimant’s statement of terms and conditions of employment. There are no records of either of them, or anyone else preparing any such documentation, nor any reference to it in the bundle.[57]Secondly, there was no record made of any meeting at which the purported discussion between Mr Rudd and Ms Fielden when they say they reviewed the claimant’s job description took place. There were no messages sent about it either. Mr Rudd and Ms Fielden say that they considered a job description that they later could not locate. As this is a technology business, any documentation which is created is in digital format and it would be extraordinary if it could not be traced.[58]Thirdly, the decision to dismiss the claimant was already made. Mr Rudman had acknowledged in his 7 April email that he had spoken with Mr Rodseth and he understood that Mr Rodseth did not think the claimant was able to undertake any work on the pivot. Mr Rudd’s messages on 15 April made reference to “the work on what next hasn’t started but it will not include LC”. He also referred to needing to get their terminology right. The suggestion that the respondent was preparing to reduce the workforce more generally and actually considered pooling the claimant is inconsistent when examined against previous messages which had only been about the claimant.[59]Fourthly, Ms Fielden’s message immediately on her becoming involved, while she was in her very early days if not the first day of her return from maternity leave, was that she would draw up the redundancy documentation. It was clear from Mr Rudd’s messages that both Mr Rudman and Ms Crook were already on board and had approved the situation. Ms Fielden’s message does not indicate she was doing anything other than preparing paperwork for a process of making the claimant redundant. Moreover the paper work prepared for Mr Rudd to use to open the consultation with the claimant did not refer to any consideration of a pool.[60]In short, there are no documents indicating anything other than redundancy documentation being drawn up to deal with the claimant’s dismissal. It is my conclusion based on the sequence of events and documents, that Ms Fielden simply assisted in preparing documentation for a redundancy which someone else had determined should be carried out and there was no discussion about a pool between Mr Rudd and Ms Fielden. Redundancy Consultation[61]On Thursday 24 April 2025 a meeting took place between Mr Rudd and the claimant. In preparation for that notes for that were prepared, probably by Ms Fielden and Mr Rudd. They were to be used for a verbal conversation, and I have no doubt they were used as a script by Mr Rudd. The notes show the explanation to be given was that the business had decided to move away from MMAP. Instead, they were going to buy in and configure where feasible. This would provide a firmer cost base in which they would be more able to make informed decisions in the future. They would move to more industry standard solutions. There was no demand from clients for a creative technologist. It meant there was no longer the level of work to sustain the creative technologist’s role and the claimant’s role was at risk of redundancy. The notes state the business had explored alternatives to redundancy. Jump as not mentioned as such. The explanatory notes made no mention of any consideration of a pool.[62]The notes did address alternative employment and explained why the respondent did not think there were any other options open to the claimant. They said they had:61.1 considered using the creative technologist for new business, however the demand pipeline was not big enough to sustain the role within the business;61.2 thought about using the role across MSQ, however there wasn't enough tech demand across the group to sustain it;61.3 thought about roles within and outside the department, however they were not backfilling roles within the consultancy department. There did not appear to be suitable alternatives that would match the claimant’s experience. They currently had an Experience Designer and Product Lead role available. The creative technologist was heavily utilised within one specific area only. The skillset could not be matched to upcoming client demand.[63]On Friday 25 April Ms Feilden emailed the claimant explained she was the People Director for the respondent and wanted to introduce herself. She understood there had been meeting between the claimant and Mr Rudd the previous day. She was attaching the documentation detailing when a further consultation meeting with Mr Rudd would be as well as the employee support pack. She stated that as they continued to: “assess and explore the best path forward, the business is committed to considering all viable options before making any final decisions, especially when it comes to potential redundancies”. She then told the claimant he could provide strategic alternatives to her and Mr Rudd by 1 May at 1:00 pm. The claimant was told he was invited to contribute his insights and propose any strategic alternatives he believed could help the business avoid redundancies while still achieving its operational goals. The next consultation meeting was going to be on Tuesday 6 May 2025. In practice, this was confusing for the claimant as he then spent some time developing alternative strategic options which the respondent rejected because the strategic direction had already been determined.[64]The documentation referred to by Ms Feilden in her email was a letter dated 24 April 2025 headed up “Invite to a second consultation meeting” which was to take place on 6 May 2025. The letter explained that Mr Rudd had discussed the business case and rationale for proposed business changes, the reason why the claimant was being put at risk of redundancy and talked him through the new business proposal which was attached to the letter. They also talked through what was involved in the consultation process. Again, there was no mention of any consideration of the pool.[65]Following the meeting on Thursday 24 April, the claimant spent some time trying to persuade people that MMAP was a viable product. He messaged Mr Rodseth referring to the fact that Mr Rudd had reiterated the decision regarding MMAP. The claimant wished to understand further and had been working on a demo of the capabilities they would be able to pull together. He wanted to show the demo to Mr Rodseth. On Friday 25 April there was a demo at which the claimant showed some of his work to Mr Rodseth and subsequently emailed him referring to that and explaining why the documentation had not been in a repository as there had been no budget for it.[66]The claimant raised a number of points in an e-mail to Ms Fielden, copied to Mr Rudd, dated 25 April 2025. He questioned the business case and said he thought that they had misunderstood what MMAP was. He asked whether there had been any analysis of costs based on the projected scenario, giving an example of whether they could state what the projected AI services and features that they were expecting to deploy that have informed this decision. He thought that he could demonstrably prove that MMAP could deploy a new emerging market solution faster than having to integrate a new industry standard solution. He asked what specific industry standard solution was being considered. He also thought that MMAP was written in various languages which were industry stranded programming languages and intentionally designed in multiple languages to capitalise on a diverse ecosystem of developers. In relation to the reference to the lack of documentation and deployment pipelines he thought the lack of documentation could be solved in days and said that this was largely a consequence of there being no budget for MMAP and hence no Azure portal subscription for MMAP to deploy to. He could set up standardised deployment overnight. Jump’s Future Development[67]The notes prepared for the discussion with the claimant to give him the first warning of his impending redundancy show the focus was on MMAP. This is repeated in the business case summary document that was prepared. In the course of the hearing the focus was on Jump. This is because in fact the claimant had spent most of his time over the previous months working on Jump. Mr Rudd gave evidence that the spreadsheet in the model showed that Jump consisted of 85% of the claimant’s workload between February and April 2025.[68]While the respondent’s witnesses said that Jump was paused with no visibility as to when it would restart, the documents show that Mr Rudman wanted to move ahead with Jump quickly. He had tasked Mr Rodseth with progressing it as noted in his 7 April email. Mr Rodseth had sent an email dated 10 April to get work on Jump moving and showing he was thinking about how to progress it. The MMAP Assessment had set out a 10 week process for the pivot to preparing the MVP based on a third party engine rather than MMAP. On 28 April Mr Rudman emailed Mr Rodseth and others referencing an AI session at the in the afternoon setting that he had half an hour and he wanted to get an update on the on Jump following on from session they had 10 days ago, (presumably on or about 18 April). He said: “we need to really try and get a clear plan in place for it and hopefully get to get some quick wins so please come armed with thoughts on how we think we can move this forward.” On-going Consultation Process[69]On 29 April, Mr Rodseth and Mr Rudd met with the claimant for a demonstration of the Jump platform at the claimant's request. The claimant showed them capabilities of the Jump solution. Mr Rudd gave evidence that this showed some front end experience but did not include any view on how the solution was built or orchestrated and some items in the demo had been added by the claimant recently even though he's been requested to stop developing Jump. They had requested to see documentation, but this was not provided. Mr Rudd said there was nothing within the extensive demo that convinced him or Mr Rodseth that it would be a viable foundation from which to continue development, and they subsequently discussed and agreed that Jump was not suitable for future business needs.[70]Agan, the evidence on that point lacks credibility when the sequence of events and the documents are considered. In practice, Jump could only have been dropped if Mr Rudman had agreed as he was the client for Jump, and the most senior executive involved. The previous day Mr Rudman had been keen to progress Jump. There is nothing to suggest that Mr Rudman had been persuaded to change that view. Moreover, Jump was not dropped at that time as, later, considerable time was spent by a new contractor, Mr Crossley, hired a few weeks later by the respondent to adapt and progress it. He spent several months on Jump, only winding it down in December 2025.[71]In addition to consultation meetings, there were other meetings called Wellbeing meetings, with the claimant. On 30 April Ms Feilden and Mr Rudd held a wellbeing meeting with the claimant and on 2 May 2025 Ms Fielden sent a recap of their discussion. Prior to that on 30 April, the claimant had sent a lengthy email asking for answers to a series of questions and saying he could not provide a strategic alternative by the deadline. It seems his questions were now aimed at enabling him to provide an alternative proposal that would retain the investment in Jump, pivot to Mr Rodsworth's preferred technical solution without abandoning everything, minimise bespoke development, widen the broader team awareness to allow a bigger workforce to contribute and retain MMAP for Nimbus and avoid starting from scratch for Hive and future Nimbus operations. He also added other suggestions for reductions in his role that would help minimise the financial pressure on the business, without completely removing him.[72]Mr Rudman was kept abreast of progress by Ms Fielden. On 1 May Ms Fielden messaged Mr Rudman at MSQ about the meeting she and Mr Rudd held with the claimant on the 30 April. Her message indicated that she thought the claimant was unprofessional in the meeting, dismissive about the Mr Rodseth’s capability to assess AI, and also dismissive of Mr Rudd and his ability to be a consultation manager. She said she was just giving Mr Rudman a heads up, but he should let her know she if he wanted to discuss it.[73]On 1 May Mr Rodseth emailed the claimant asking him to check in the code for the application he had demonstrated. The claimant sent a further response and strategic alternatives for the consultation by email on 8 May 2025. This appears to have been a link to a set of slides and addressed the results of JUMP, the AI strategy, a comment on creative technology and strategic alternatives.[74]A few emails from Ms Feilden following the claimant’s strategic alternatives indicate that the management tea were deciding how to respond to the claimant’s questions and strategic alternatives. The next consultation was likely to be scheduled early in the next week, (which would be the week commencing 16 May). On 12 May, Mr Rudd reminded the claimant to check in the code to which he replied that he would as soon as they had concluded the redundancy process. The messages and notes of the consultation meetings show that the claimant’s main focus was on challenging the strategic decisions made by the respondent in reliance on Mr Rodeseth’s assessment. In this email he argued that he wanted to demonstrate that Jump could not be delivered via Mr Rodseth’s AI strategy.[75]The invitation to the second consultation meeting was reissued by a letter dated 15 May 2025. It appears to be a very similar letter to the previous one but with revised dates showing a rescheduled consultation meeting on 19 May 2025. Meanwhile, on the same date, Ms Feilden emailed Rebecca Crook and Mr Rudd regarding the claimant’s laptop use. She addressed them as: “Hi Team” and then explained that she was working through some of the details with IT about the redundancy that they were working on next week. They were concerned about securing information on the laptop. It appeared the claimant had not accessed his company laptop since 19 November 2025 despite having been told to use the company laptop and agreeing to do so. He was using his own personal laptop, and if he was made redundant, they would need to transfer information from that to the company.[76]Meanwhile on the same day, 15 May, Ms Fielden sent out an email headed “Team Member Update” updated them on the redundancy process which she and Nick Rudd were managing. She explained they were currently going through the redundancy process with the claimant. She told them there had been a request from the claimant that he be able to present his work on MMAP and JUMP. She stated that having consulted with “Nick [Rudd], Mark [Rodseth] and Ben [Rudman] it had been decided that as Mark was advising MSQ on the strategic direction of AI that this request will be declined. She explained she had wanted to update them as this would be communicated to the claimant in his second consultation meeting and he may be frustrated. She wanted them to direct any questions to her or Nick Rudd if they received them.[77]Mr Rudd had instructed the claimant to deposit the documentation and code and on 15 May the claimant responding that he would happily check in all the code once they had concluded redundancy process but his concern at the moment was to try to demonstrate JUMP to the SLT and to the Board as he believed that they could not deliver it via the new AI strategy.[78]Essentially, Mr Rodseth and the claimant had different visions of how they could achieve the business’s objectives. The claimant thought he could accommodate some of the points raised by Mr Rodseth, but he also thought Mr Rodseth had not taken on board all of the opportunities and the benefits of his proposal and wanted them to be compared. However, the respondent was not prepared to consider his alternatives. Mr Rodseth’s advice to drop MMAP and buy in that type of resource had been adopted. The management team of Mr Rodseth, Mr Rudman and Mr Rudd had decided to decline the claimant’s request for a demonstration to SLT and the Board as they were intent on following the strategic approach recommended by Mr Rodseth. 19 May - Second consultation meeting[79]The meeting on Monday 19 May was a lengthy meeting held in two parts, the first one taking approximately an hour and a quarter and the second one about an hour and a half all on the same day with a break in between. There are two separate transcriptions of the meeting which I understand was at least one of which was prepared by AI. A lot of the meeting was taken up by the claimant pushing for an assessment of his alternative strategy and basically being told that the strategy had been decided. The claimant then moved on to describing ways in which the respondent could still utilise his services. He made references to other work he was involved in and the potential for new work coming from a few areas, in particular a client called Marshalls.[80]The claimant had talked about the fact he could do other roles, listing out: tech director, developer, cloud engineer, architect. Mr Rudd expressly stated that he didn’t think anyone was questioning the claimant’s technical abilities. He said: “I don't think anyone's like question your technical capabilities more the fact that we don't have those vacancies in the business and suitable alternative roles you know, either in the UK or when we've looked overseas and I think also that what you're seeing is that we've not back filled a number of the roles that we've where people have moved both in technical consultancy and other spaces as well, so you know, unfortunately that isn't an option”.[81]Another issue discussed during the meeting was the importance of the claimant’s time being billable and the alternative work he was doing or might possibly do. The claimant pointed out that he had not recorded time on other projects but there was work he did on a system called Visa Navigate. He also referred to a pitch to a firm called Marshalls for a project which might lead to work for him.[82]The consultation process then began to move very quickly. A further letter was prepared by Ms Feilden on the same day as the second consultation meeting, so dated 19 May, and sent to the claimant on Tuesday 20 May. That letter invited the claimant to a final consultation meeting to be held on Thursday 22 May. The purpose of that meeting was to provide an update on the further strategic alternative submitted by the claimant and to discuss any available vacancies or alternative to employment. The claimant was told that if the outcome was that he was selected for redundancy he would be served with a redundancy notice and his last working day would be on or around Friday 23 May 2025.[83]The claimant responded to this asking for that meeting to be delayed to allow the Marshalls project to go through to see if they won that business. He understood there was to be a meeting with Marshalls on Friday 23rd May and asked to defer until after that meeting. His request for that short delay was refused. Grievance[84]On 22 May, before the final consultation meeting, the claimant raised a formal grievance regarding the proposed redundancy of his role. He did not believe the redundancy was genuine or that the company had consulted meaningfully or considered reasonable alternatives and he wanted that grievance to be considered before the redundancy was progressed. When it became clear that the company intended to proceed with the final consultation despite the claimant’s grievance, he wrote a further grievance which he said was a final comprehensive grievance detailing the evidence, procedural failings and legal concerns. He complained about a lack of genuine consultation and that the decision appeared pre-determined. He complained about ignoring his ongoing work and revenue for Visa and Marshalls. He argued there was a continuing need for technical AI experience as the new tools still required work. He said ongoing AI initiatives were clear from a company-wide meeting held on 21 May in which the senior leadership made announcements celebrating current AI projects and outlining future plans. They announced the formation of an AI steering committee to direct the company's AI strategy. The claimant argued that the intent was clearly for strong AI initiatives not to scale them back. The claimant noted that there appeared to be a subtext that his technical approach was not aligned with expected standards. He argued that factors such as the number of development languages used or the deployment strategy or documentation format were solvable engineering considerations and had the opportunity been offered, he would have adapted immediately to the evolving requirements under the new CTO. Final Consultation meeting – 22 May 2025[85]The final consultation meeting went ahead on 22 May 2025. The transcript indicates that the claimant was told that the Marshalls meeting was a wideranging meeting and not specifically to sign off on the business proposition he had referred to so that there was no value in deferring until after that meeting. He was also told that Visa, another project he had referred to, appeared to be winding route down and the fee had reduced so that that did not meet the expectation the suggestion he had made that it would cover a significant part of his salary.[86]The claimant’s grievance was raised. Mr Rudd explained to the claimant that if he wasn't unhappy with any of the outcomes, he was entitled to appeal the decision and there was a process for that. The respondent did not consider there was any need to delay or deal with the grievance separately.[87]There was a discussion about the situation with Jump and the fact that it was paused. The claimant pointed out that he was well placed to work on it when attached to a different platform. Mr Rudd and Mis Feilden responded that they didn't have visibility as to when the investment would start again and that was one of the challenges. Mr Rudd said they were still working through what the future investment would look like, what shape it would take and how they would use the investment or whether they would need more or less investment. They still need to pause and go back to the board for approval. Mr Rudd said: “The reality is you know there is a strategic pivot on the way we're trying to approach things so you know the reality is we will do things differently moving forwards now. How they get delivered is still a work in progress. So that's part of the challenge. “ The claimant responded that from his position the project will continue. It was purely a change in technical approach. If anything, the budget was likely to increase it seemed. He said: “it's the case that all these skills required to deliver on that will still sit within my skill set and I can absolutely deliver against it and I can deliver against it in whatever capacity Mark needs that's happening so. Because there's been no process through which Mark and I can discuss that. .. it seems to me there's a viable alternative to redundancy here which is to allow me to contribute to that process and it looks like there wasn't going to be that opportunity.”[88]Mr Rudd stated that he thought the bit they were unclear on was budgets and process to proceed. They had not got that budget buttoned down or agreed with anybody or any timelines. They needed all of that resolved before they can look at how they actually delivered the outcomes they needed. Mr Rudd explained that they would need to go back to the Board for approval unless they could do everything for what they had left which he didn’t think would be the case. Notably, Mr Rudd did not suggest the claimant did not have the technical expertise required.[89]There was a short break and then they reconvened. In the final meeting Mr Rudd stated that there was no alternative to redundancy they could see at the moment. He then went on to say: “Because of all the reasons we've gone through so unfortunately the outcome is that the role was selected for redundancy’. They looked to the alternatives but there were none they could find that worked. They had exhausted all the avenues available to them and the claimant was being made redundant. A letter dated the same date confirmed the outcome and that the claimant was being made redundant and his last day was 23 May.[90]Mr Rudman was still being kept informed. On 23 May 2025 there was an exchange of messages between Mr Rudman and another individual at MSQ, Dan Yardley, who had some oversight on the claimant’s share entitlement, about with the claimant's redundancy stating: “Afternoon. LC (ex Bravespark director) is about to get a letter rejecting his appeal for redundancy etc. Do you want/need to see any of this - am assuming not and only flagging so you are aware and as he can/has been tricky and has threatened to take us to a tribunal”. Mr Yardley responded that he was fine and already knew. Given the date of the message, the reference to an “appeal” must have been a reference to the claimant’s final consultation meeting, rather than the formal appeal which took place later.[91]The claimant was expected to do a handover on his last day being Friday 23rd May. He did some degree of handover, but before he was able to complete it his access to the respondent’s systems was completely shut down. On Tuesday 27th May he sent in an e-mail account from his personal e-mail explaining that and attaching the document outlining steps to gain access to services and service running Visa Navigate. Appeal[92]On 29 May the claimant appealed against the redundancy decision. He also submitted a final grievance. The basis of his appeal was that he had been told the decision would not change and his 60 slide alternative plan and request to present the Jump AI platform to the MSQ leadership were rejected outright. He said no skills audit or redeployment discussion took place. The AI work from MSQ that he was fully utilised on was continuing with a different technical direction, one that he had the requisite skills to contribute to.[93]The claimant referred to the final consultation meeting in which he said Mr Rudd confirmed then and in the second meeting that the business now intends to deliver AI solutions using various third party products and related tooling. This would require development and a skill set he had. He had spent ten years in multi cloud development. His expertise was still required, and the role had not ceased to exist. He also thought the Visa contract continued to pay a retainer for his availability and Visa had contacted him directly for assistance. He thought the Marshals matter was also doing a sign off and would have required his involvement had the redundancy process not been hurried through.[94]The claimant referred to the speed of events after the second consultation which left no practical opportunity to evaluate alternatives or complete a structured handover. He asked the company to rescind his redundancy and redeploy him to complete the AI Jump work, ongoing Visa support and the Marshals project. Consultancy[95]Colleagues working on the Visa Navigate project struggled with it and the claimant voluntarily added a Q&A session with them after his employment ended to try to assist. Even that did not solve the matter and therefore he told them if they wanted further assistance, he would have to be given a short term paid consultancy contract. It seems the claimant worked for one day on 3 June 2025 which was sufficient to resolve the difficulties. Appeal process[96]On 4 June 2025 Ms Feilden notified the claimant that she had assigned Ms Crook as the appeal manager to hear his appeal. There was some delay in arranging for the appeal process to go ahead but on 7 July 2025 a letter was written to confirm details for the appeal. The hearing was scheduled for 10 July 2025 at 2:00pm. It took place by Teams. The letter explained the purpose of the hearing will be to enable you to share any further information that you feel relevant for your appeal.[97]The hearing notes show that the appeal hearing took the format of Ms Crook asking a few questions. That same day a draft letter was prepared to confirm the decision on the appeal. The letter was an outline template which set out the five grounds taken as the grounds for appeal and then listed out questions and things to consider. The final paragraph gave options to uphold the dismissal, rescind it or refer to alternative employment opportunities. Appeal Outcome Letter[98]The appeal outcome letter was dated 23 July 2025 and addressed the points of appeal as follows. Lack of genuine consultation/predetermination98.1 In relation to the argument that there had been lack of genuine consultation and predetermined outcome, the outcome letter stated that the claimant’s underlying concern was that the respondent did not share the business strategy around why the product JUMP would be changed, the letter stated they did not have to provide full strategic business changes to employees, but steps were taken to inform you of the proposed strategy with additional meetings scheduled to talk through this and answer any questions. The letter also stated that the business took steps to try to reduce the risk of redundancy, looking for other roles across the business as well as the wider MSQ network. Ms Crook was satisfied that all reasonable steps were taken to consult with the claimant throughout the entire process demonstrating there was no predetermined outcome. Ignoring ongoing work and income stream98.2 In relation to the contention that the respondent had ignored ongoing work and revenue from the Visa and Marshall projects, Ms Crook said she was satisfied that this was reviewed. Both companies were assessed. The Visa work was imminently ceasing with no renewal, and the Marshals project was speculative. There was no “bench” of people in the business to hold for further potential speculative project work. She also confirmed that the work scope for Marshalls was not yet confirmed or signed off. Continuing need for technical AI expertise98.3 In relation to the argument that there was continuing need for technical AI expertise, the letter stated that Ms Crook was satisfied an objective comprehensive skill set and competency level analysis was undertaken to understand specific technical expertise required by the business and whether the current skill set and competency level you have could be used in any available current or future requirements of the business. This analysis was also run in conjunction with how the business maintains a workforce structure where skill sets match client needs and therefore are financially sustainable. Exclusion from the AI steering committee98.4 There was a reference to the claimant's complaint that he was excluded from the AI steering committee. He was told that that consisted of three senior leadership members to ensure there was a defined strategic direction for MMT limited. The Jump project was outside that remit because it was an MSQ initiative.[99]Relating to Jump, the letter stated: “We conducted a comprehensive review of all roles and skill sets against the new strategic direction of the Jump project. Unfortunately, the review confirmed that your role is no longer required in the new approach as the work will be organised in an alternative way. We always look at a business as to whether we can upskill our team given the fast changing landscape of technology. An assessment was made during the consultation whether in this instance this would reduce or remove the risk of redundancy. The outcome of this was that in this instance it was deemed that the skill requirements were too high.” The appeal was rejected.[100]The objective comprehensive skill set and competency level analysis which Ms Crook referred to was not identified by the respondent, nor was any assessment of upskilling the claimant. The only assessment I was made aware of was Mr Rodseth’s view. He did not meet with the claimant to discuss his skills or check his CV and qualifications according to the evidence. Other vacant roles[101]On 4 June 2025 the respondent went live with an advert for a role for a Principal Cloud Consultant they were seeking to fill on a system called Workable. Applicants were being reviewed by Mark Rodseth and Mr Vasker.[102]The respondent had a number of prominent full-time roles available across the group between March and July 2025 and of those two were in the UK being a Principal Cloud Consultant from June 2025 (see above) and a Senior CS engineer in July 2025. In the USA there were two roles in March 2025 in June 2025 for cloud engineering. In Barcelona in May 2025 in June 2025 there was first a role for a senior FE engineering, secondly a senior SS engineer. FE means front end engineering and SS means service side engineering.[103]The respondent eventually recruited somebody for the Principal Cloud architect role. During the hearing some documentation prepared to authorise this job was disclosed but this was dated as at the date when the contract was about to be drawn up. Clearly someone authorised the advertising of the role before 4 June 2025, but no documentation relating to this earlier stage was disclosed. The respondent argued this role was irrelevant in any event as it was to relieve Mr Vaskar and share his workload as he was overworked and it was a more senior position than the claimant had occupied.[104]After the claimant’s employment ended, on 25 June 2025 the respondent engaged an individual called Mr Crossley who had previously worked with Mr Rodseth as a Principal Software Engineer. Mr Crossley, was I was told by Mr Rodseth, hired to support Mr. Rodseth to finalise his thinking and build out the revised strategy. I was informed that Mr Crossley started working on Jump 2 in mid-July 2025 and was then made permanent. He spent his time working on Jump and other matters but, from the time sheets, it is clear that a great deal of his time was spent on Jump. Mr Crossley continued working on Jump until about December 2025, although by that stage it was only 2.7% of his total time. Eventually the Jump project was mothballed.[105]There was no documentation in the bundle to show what led to Mr Crossley’s appointment, for example when it was decided to recruit for that need and how Mr Crossley was identified as a suitable employee. However, I was told by the respondent that Mr Crossley’s skill set was different from the claimant’s. Mr Rodseth said the person they needed to work on Jump 2 would need to be someone capable of building a Minimum Viable product or MVP. They needed someone with experience in building enterprisescale cloud platforms with a focus on quality, security and engineering best practice, skills he argued the claimant did not have. Mr Rodseth said a Principal Software Engineer was the most senior technical authority within a software engineering team.[106]In effect the respondent argued that Mr Crossley, as a Principal Software Engineer, had a higher skill level in designing, developing building and maintaining software applications than the claimant. Mr Rodseth argued that a creative technologist ‘s role was to build demonstrations to inspire and win business and that role would be measured on creative problem solving and speed of experimentation and the ability to communicate technical possibilities to a non-technical audience. He argued that the claimant simply built Jump at a proof of concept stage. That was a demonstration of a product to be shown to a small, controlled group of people and never intended for general use. It was solely to illustrate and validate a concept. Claimant’s Role[107]A significant issue in contention in the case was the question of what the claimant’s role actually was. Although he was recorded as Creative Technologist, the Delivering MSQ Jump AI documentation prepared for MSQ for Jump phase 1, set out the delivery cost breakdown and recorded the requirements for various staff including a cloud systems engineer and senior server side engineer. The claimant’s name was put against both roles and was costed for it.[108]Mr Rodseth provided a summary of his view of what different roles involved. He distinguished them all from the role of a “creative technologist”. I have noted Mr Rodseth’s contentions. He also contended that the title Creative Technologist was applicable to somebody who would use code as a means to explore and demonstrate what is possible with emerging technology, building rapid prototypes and proof of concepts. A creative technologist would build small working demonstrations using artificial intelligence tools and show them to clients and colleagues to prove what is possible. However, Mr Rodseth said the claimant was not responsible for infrastructure, system availability or operation and did not build fully scaled products and did not have the skill set to achieve this.[109]I have noted that the claimant’s title was one which, apparently, he chose. Ms Feilden stated that despite her number of years in HR in that industry, it was not a title she had come across previously. Although various of the respondent’s witnesses told me what they thought it should mean, the documentary evidence suggests that their thoughts about the meaning of the title did not actually describe the claimant’s work.[110]Mr Rudman, when he messaged about moving the claimant into the respondent in August 2024, said he has a great technology brain and so we need to think carefully on how best to deploy him. The title “creative technologist” was not a role the respondent was seeking to recruit into. The respondent had decided to transfer the claimant (along with others with the technology expertise) into the respondent. The claimant’s previous title had been Chief Technology Officer. At the time of his recruitment into the respondent Mr Rudd suggested other titles.[111]Despite being “a great technology brain”, the claimant was moved into the consulting team under Mr Rudd, rather than the engineering team.[112]The dispute on the nature of the claimant’s role centres on whether the claimant had a broad knowledge, but not an in-depth skill set, or whether as the claimant asserts he had a broad knowledge, and an in-depth skill set.[113]At a late stage in the consultation the claimant described what he thought his role involved which was anything within the range of technology and creativity. He referred to the fact that it covered the whole gamut of skills in his skill set which was cloud engineering, back end development, front end development, design and everything else. He explained that fundamentally the role creative technologist was a very broad ranging role. Mr Rudd did not demur from that description and had previously agreed that the claimant’s skill set was broad. The claimant argued that he was extremely experienced and well able to carry out full design and development of cloud architecture projects.[114]There was no job description prepared for the claimant. The claimant transferred with the products he had worked on at BraveSpark which included MMAP and Jump. He arrived in September 2024 and in October 2024 the presentation, Delivering MSQ Ai, took place. That presentation and the budget in it was approved. The claimant’s time was primarily spent on developing Jump over the next few months leading up to the MMAP Assessment as the respondent pointed out.[115]In her witness statement, Ms Crook says that the claimant’s main project was Jump. She explained that Ben Rudman of MSQ had commissioned the respondent to build Jump and she then referred to the Statement of Work for Jump which was in the bundle. This was a draft or incomplete statement of work document. It was not signed and did not include a number of details such as the budget but appeared to reflect what was included in the Delivering MSQ Jump AI presentation document. It described the Project Overview for Phase 1. It was to focus on building and deploying four foundational applications that demonstrate the potential of multi agent Ai, laying the groundwork for future expansion. It then listed out 6 applications and set out the project objectives as:• Deliver innovative AI driven solutions that improve operational efficiency and creativity• Enable MSQ staff to leverage AI for routine and strategic tasks• Lay the foundation for an AI driven ecosystem at MSQ, setting the stage for future phases of Jump. Out of scope for Phase 1 was integration with third party platforms outside of initial SharePoint integration, advanced customisations or extensions beyond the defined deliverables for phase one and post launch support and maintenance, which would be covered in subsequent phases. The document included success criteria which included deployment of applications with no critical defects, staff training and documentation delivered and positive stakeholder feedback on the utility and ease of use of the applications. This Statement of Work was not for a small protype but clearly for a useable product.[116]The claimant also worked on a project for Visa called Visa Navigate although that did not take up very much time and was to some extent at least being wound down or shortly to be wound down. A third project was called Nimbus. That was a content migration tool to enable content to be moved between websites where for example a company designed a new website. Again, I was told that was not expected to demand a great deal of the claimant’s time.[117]Ms Crook said in the appeal outcome that there had been an objective comprehensive skill set and competency level analysis to understand the specific technical expertise required by the business and whether the current skill set and competency the claimant had, could be used in any available current or future requirement of the business. There is no evidence of such an assessment.[118]Ms Crook also said in her witness statement, when she was explaining the appeal outcome, that Mr Rudd and Mr Rodseth both agreed that the claimant lacked the skill set to develop Jump in the way that MSQ then required. However, she went on to say that she discussed it with Mr Rudd. It is not clear if she discussed the situation with Mr Rodseth. Ms Crook then argued that, as the claimant’s line manager, Mr Rudd had good oversight of the claimant’s work and his skill set, strengths and weaknesses and his skill set was incompatible with upskilling as the business’s skill requirements were too different or markedly higher than he skills which the claimant possessed. This was the view of Mr Rodseth. Mr Rodseth reached that view by 7 April, if not before. He reached that view without any investigation which might be described as an objective comprehensive analysis of the claimant’s skills, relying instead on his initial view of the MMAP architecture taken from the Delivering MSQ Jump AI presentation, and then on what he described at one point as a “walk through” the Jump product. At no time did Mr Rodseth ever consider the claimant’s CV or discuss his technical background and knowledge with him.[119]Mr Rodseth stated that the claimant’s role was unique in the business and there were no other individuals with that job title and no other roles directly impacted by the decision to pause the development of Jump. He said he had spoken to Mr Rudd about the implications of the strategic business plan and considered whether any other duties or roles were interchangeable with the claimant’s and concluded there were none. He also considered whether any roles in the engineering team, which he headed up, were suitable. In his witness statement Mr Rodseth stated: “In these conversations I told Nick that I would not hire Luke as an engineer sitting in my team, as he did not have the skill set to occupy an engineer role.” There were at the time no vacant engineering positions according to Mr Rodseth.[120]In reaching a conclusion I have borne note of the evidence of Ms Crook that the claimant was building Jump according to the Statement of Work. The comments made by Mr Rodseth to Mr Vaskar when he first obtained the flowchart of the MMAP architecture was that the claimant was building his own complex cloud workflow orchestration engine. Mr Rudman was keen to have the Jump product. Mr Rudd in the consultation agreed the claimant’s technical skills were not in issue when responding to the claimant saying he could do other roles such as tech director, developer, cloud engineer, architect.[121]I do not regard it as plausible that the claimant was simply building a small working demonstration as would be the case if Mr Rodseth’s description of a creative technologist genuinely described the work the claimant was doing. The claimant moved from BraveSpark to the respondent bringing the products that he was working on with him. In October 2024 there was a presentation about Jump which resulted in a budget being set of about £161,000 which MSQ agreed to fund on the basis that the project, Jump, would be a fully developed and useable product as the result of that investment. It may have needed further refinement as described in Phase 2, but it was intended to be a developed product which could be used at the end of phase one.[122]Therefore the outcome of all of this is the respondent was fully aware that the claimant was engaged in the development of a viable product and that he had a skill set which involved a broad, but high level ability, to ensure engineer and create a minimum viable project at the level of a cloud systems engineer or senior sever side engineer. According to Mr Rodseth, a senior Server-side engineer is essentially a software engineer and that role describes someone who designs, builds, and maintains software applications.
Issues
[123]Both parties accepted the claimant was dismissed. What was the reason for his dismissal? Was it a potentially fair reason? The respondent argues that it was redundancy.[124]Was there a redundancy situation. That is - had the requirements of the business for work ceased or diminished or were they expected to cease or diminish? (Section 139 of the Employment Rights Act 1996)[125]Has the respondent shown that was that the reason for the claimant’s dismissal?[126]If the reason was redundancy, was the claimant’s dismissal procedurally fair? The claimant argues that it was unfair and therefore the requirements of section 98(4) are not met by reason of the following:126.1 The selection pool was unfair. When did the employer addressed the pool? The selection pool was only one person and did not include other relevant employees. Did the employer consult before deciding on the pool?126.2 The consultation was inadequate. It lacked information about: a) the background to the redundancy scenario b) there was a lack of a proper assessment of the claimant’s skills c) exploration of alternative roles was not carried out properly126.3 The claimant could have been redeployed into other roles. The claimant argues that another job was advertised – Principal cloud architect. He also says he was suitable for a Technical Director role126.4 The Appeal was flawed. The appeal outcome relied upon an assessment of the claimant’s skills not discussed or disclosed to the claimant126.5 Overall the claimant argues that the consultation was not genuine and the outcome was predetermined The Submissions Claimant’s submissions[127]The claimant argued that a key question for the Tribunal was what was the reason for the dismissal? The respondent argued it was redundancy, but the claimant disputed this. No other reason has been advanced for the claimant's dismissal. If the respondent proved that the claimant was redundant, this would be a potentially fair reason for dismissal and then the Tribunal would have to consider whether the respondent acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the claimant.[128]I was reminded of key cases setting out the requirements for a redundancy. Safeway Stores Plc v Burrel [1997] ICR 523, Murray v Foyle Meats Limited [1999] ICR 827, Capita Hartshead Ltd v Byard [2012] ICR 1256, Mogane v Bradford Teaching Hospitals NHS Foundation Trist [2023] IRLR 44 and De Bank Haycocks v ADP RPO UK Ltd [2025] ICR 265. Valimulla v Al-Khair Foundation [2023] EAT 131.[129]The claimant argued that he was honest and truthful, but the respondent’s witness evidence was less than satisfactory. There was a lack of clarity on the question of the assessment of the business requirements or precisely what work of a particular kind had been reduced was expected to reduce and who determined the selection pool would only comprise the claimant. The argument that the work of a creative technologist had diminished was contradictory because the claimant’s work on the Jump project was not the work of a creative technologist as described by Mr Rodseth in his evidence. For that reason, Mr Rodseth alleged that at the time of the claimant's dismissal, the Jump project was at the proof of concept stage. This was inconsistent with the contemporaneous documents. The phase one business case for Jump set out a development plan for a production or MVP phase of the project. Mr Rodseth had accepted in cross examination that the business case set out a plan for an MVP for version but maintained it was just a plan and refused to accept that the Jump project had already moved to production phase and the claimant was responsible for such production.[130]The claimant also argued that the evidence of both Mr Rudd and Ms Fielden about the existence of some sort of job description for a creative technologist, which they said they had reviewed before deciding on the pool of one, was unreliable and made reference to the subsequent evidence they gave on cross examination when they each varied that position.[131]The claimant also referred to Ms Crook’s evidence and her statement in which she claimed not to have been involved in the decision to put the claimant’s role at risk of redundancy nor the process that followed. The documentation that had been put in the bundle was redacted documentation from the SARS request. This was subsequently disclosed in an unredacted form, which showed the redaction had obliterated relevant comments by Ms Crook. The redacted comments showed her closer involvement in the decision making. The claimant argued the redacted comments show that the exchange was directly about the timing of the dismissal on the grounds of redundancy and not as previously suggested because moving forward with the claimant was important as it would become evident to him that there was a potential redundancy position.[132]The claimant referred to messages which the claimant argued showed that the decision to dismiss the claimant had been taken before the reason for that dismissal was created, and by 17 April there was a decision to dismiss the claimant but justify it by reference to him being redundant.[133]The claimant argued that there was evidence showing that the business requirement had not ceased or diminished as there was still a requirement for employees to carry out product development and proof of concept work. If there was no other reason for the dismissal, the Tribunal must conclude the claimant was unfairly dismissed.[134]In the alternative, the claimant argued that if the respondent satisfied the Tribunal that the creative technologist role was redundant, the dismissal of the claimant was not as a result of that state of affairs. The claimant was utilised in developing Jump as a back end engineer. The budget for the Jump project did not include a creative technologist, rather the claimant was being utilised in a different role. He was actually deployed to build the production version of Jump. Even if the creative technologist role was redundant, that did not cause the claimant’s dismissal.[135]The claimant argues that the respondent acted unreasonably in treating redundancy as a sufficient reason dismissing him and also argued that:135.1 the outcome was predetermined,135.2 there was no meaningful or effective consultation,135.3 the respondent neither applied its mind to the pool for selection or acted unreasonably in deciding to limit the selection pool to just the claimant,135.4 the respondent failed properly to explore or consider alternatives to dismissal, particularly redeployment of the claimant as principal cloud architect,135.5 the respondent failed to act upon the claimant’s grievance before deciding to proceed with dismissal135.6 the appeal was not impartial, failed to consider the claimant’s grounds of appeal and relied upon an assessment of his skills which was neither put to the claimant nor properly investigated. Respondent’s submissions[136]The respondent reminded me of the requirements of section 139 of the Employment Rights Act and of case law which explained how that should be interpreted including the cases of Whitbread PLC trading as Whitbread Bernie Inns v Flattery and others EAT/287/94, Safeway Stores v Burrel [1997] ICR 523, Murphy v Epsom College [19785] ICR 80, BBC v Farnworth EAT/1000/97 and Shawkat v Nottingham City Hospital NHS Trust (No 2) [2002] ICR 7.[137]The burden of proof was on the respondent prove the reason for dismissal or, if more than one the principal reason. The reason, I was reminded was highlighted by Underhill LJ in Beatt v Croydon Health Services NHS Trust [2017] IRLR 748. It connects the factor or factors operating on the mind of the decision maker which causes them to take the decisions, or, as it is sometimes put, what “motivates” them to do what they do.[138]The respondent pointed out that it is not open to the Tribunal to investigate the commercial and economic reasons prompting an employer’s decision to implement redundancies. James W Cook and Co (Wivenhoe) Limited v Tipper [1990] ICR 716.[139]My attention was drawn to cases about consultation and selection for redundancy being Capita Hartshead Limited v Byard [2012] ICR 1256 and Wrexham Golf Co Ltd v Ingham UKEAT/0190/12. Mr Z Valimulla v Al-Khair Foundation [2023] EAT 131.[140]I also had my attention drawn to cases about alternative employment Modern Injection Mouldings Ltd v Price [1976] IRLR 172 and Quinton Hazell Ltd v Earl [1976] IRLR 296. Octavius Atkinson and Sons Ltd v Morris [1989] ICR 431 CA. Maguire v London Borough of Brent EAT/0084/13[141]The respondent referred to the nature of its business as the only business within the MSQ group which specialised in the design and building of digital solutions and said that in practical terms this involved building a website, application or other digital experience. I was told that the clients were substantial clients and software solutions developed by the respondents had to be built to a high standard. All employees the respondent had to be working on the projects that were chargeable to clients and their skill sets needed to match the client’s needs. The only employees not required to be billable were in the senior leadership team. Some employees were partly billable or 100% billable. All billable employees were to spend some of their time working on pitching new ideas to clients or existing clients. There was a policy that there was no “bench” which was the practice of having employees on payroll waiting until client work came in. Specifically, because of the respondent’s poor financial performance, Ms Crook had implemented the policy of no bench after joining in January 2025.[142]The respondent referred to the fact that one of the issues in the case was what the claimant’s role was. The respondent relied on the fact the claimant was a creative technologist, and this could be understood by reference to the evidence of Mr Rodseth and Mr Rudd. The respondent refuted the claimant’s suggestion that he in fact operated as a cloud systems engineer and/or senior service side engineer. The respondent argued that the role that the claimant performed was a generalist role rather than a specialist role. The respondent pointed the fact that claimant’s position in the organogram was in the consulting team not in the Engineering team. The claimant relied on one document in a slide deck produced in October 2024 which had been prepared to set out the business case for Jump in order to secure funding and that it only proved that the work he was going to be doing fell within the scope of a cloud systems engineer and a senior server side engineer. He was not carrying out the entirety of either of those roles. This was consistent with his generalist creative technologist role. He could perform elements of those roles but not the entire role.[143]The respondent argued with that they had reviewed the technology strategy and the direction and investment in AI product development as well as reviewing the Jump product. Mr Rodseth and Mr Vaskar did a deep dive analysis following which Mr Rodseth presented his analysis in a meeting on 2 April and thereafter in the strategic business plan. The recommendation was that they pause development on MMAP and its dependent products including Jump and move away from the MMAP architecture. This was because there were various critiques of them and the MMAP platform. It was Mr Rudman’s e-mail to Mr Rodseth on 7 April 2025 stating that he was happy to follow the recommendations on Page 3 of the executive summary which led to the pausing of all work on MMAP and dependent products.[144]Mr Rodseth formed the view as part of his review of MMAP and confirmed in his later review of Jump that the claimant did not have the skill or ability to do the work required to get those projects to production grade system.[145]The work that the claimant was employed to do on MMAP and Jump madeup the vast majority of the work he'd been doing from December 2024 to March 2025. This was at the point when he was dismissed. The MMAP/ Jump project remained paused and there was no visibility as to what decision would be reached on continuing the project or when that decision would be made. There was no pipeline of work to keep the claimant employed. There were no new clients for Nimbus and the Visa Navigate project was winding down. It did not bring in sufficient income to justify the claimant’s continued employment. There was a potential business opportunity with Marshalls, but it had not been confirmed and there was no indication of it being signed off soon.[146]The work the claimant been carrying out, which was creative technologist work, had considerably diminished to almost nothing. There was no need to retain the creative technologist without being able to bill their work. Future work on Jump would be done by more specialist roles then the claimant’s tech creative technologist role. This would be a different need for work of a particular kind and therefore on all fours with BBC v Farnworth.[147]The respondent disputed the claimant's position that there was no dimunition of the work because the work on Jump was carrying on. Firstly, the work was not carrying on. It had been paused, and there was no clear sign of when it would resume. Secondly, when further work was required, It would be a different kind of work. It would involve more specialised software engineering work than the generalist work that the claimant was employed to do. The respondent argued that diminished need for employees to carry out the particular kind of work done by the creative technologist was the reason for the claimant's dismissal and this could be seen from the evidence of Mr Rudd. The claimant had presented no alternative reason for dismissal.[148]As regards procedural fairness the respondent had followed an extensive programme of consultation with claimant Involving numerous lengthy meetings which addressed all of the points which the claimant had raised.[149]As regards the claimant’s argument that the consultation was not carried out at a formative stage in the process, the respondent rejected this arguing that the business decision was made prior to the start of the redundancy process. The decision was to pause work not to cancel it entirely. Had the claimant presented a convincing case, either in his demonstration of Jump on 29th April or in his slide deck or any consultation meeting for un-pausing the projects, the respondent would have listened and acted accordingly.[150]Other arguments the claimant has raised were that the consultation was inadequate because he was given insufficient information about the background to the strategic business plan. The respondent rejected that, pointing to the various meetings and the lengthy engagement between the claimant and Mr Rudd about that decision. The claimant also argued that Mr Rodseth was not involved in the consultation meetings and so the claimant was unable to make his arguments directly to Mr Rodseth, who understood the technical detail to a greater extent than Mr Rudd. It was within the range of reasonable responses for Mr Rudd to run the consultation process given he was the claimants line manager. He did that with more support on technical issues where required from Mr Rodseth.[151]Regarding the claimant’s argument that the decision to dismiss him was pre-determined, the respondent’s witnesses were consistent on the fact that decision was not pre-determined and the consultation was genuine. The claimant was told consistently that no final decision had been reached, and he was given extensive opportunities to give his input before any final decision was reached. Ms Fielden gave evidence on this. The claimant relies on Internet chat internal chat messages demonstrating that decision, but the respondent argued they only showed that Mr Rudd was seeking HR advice and they were formulating the correct way to proceed after pausing work on MMAP and Jump.[152]The claimant has indicated that he did not regard it as fair that his grievance had not been investigated separately. The respondent argued there was no need for this. It was an entirely reasonable process to follow.[153]In relation to procedural fairness on the selection for redundancy and a pool of one, the key question was whether the respondent had applied its mind to the question of whether there should be a selection pool and if so whether their decision was reasonable. Mr Rudd explained that as part of the process he discussed with Ms Fielden whether any other duties or roles were interchangeable with claimant’s and they concluded they were not. Accordingly, they did not consider it necessary to pool any other roles with the claimant’s role.[154]Mr Rudd also consulted Mr Rodseth about other roles and Mr Rodseth assessed the claimant did not have the skill set to be bumped into any other already occupied engineering roles.[155]The claimant’s argument that he should have been pooled with other engineering roles was not reasonable or correct. This argument required the Tribunal to be persuaded that no reasonable employer would have chosen the pool of one. In relation to the evidence given by the claimant in which he suggested that he should have been pooled with Graham Carr, this had not been raised in his particulars of claim or by his counsel and in the cross examination of the witnesses.[156]The respondent had looked for alternative employment for the claimant but there was no new role available on Jump at the time. Mr Rodseth said he had mapped out the core team required, but none of the roles had been approved. In the event the respondent recruited a principal software engineer (Ali Crossley) but not until after the claimant's dismissal. There was no evidence to suggest this rather been identified or advertised prior to the claimant's dismissal. Even if it had, it would not have been suitable because Mr Rodseth had assessed what was required and the claimant’s skills and description did not match his description of someone being the most senior technical authority within a software engineering team. For that reason, the respondent would not have been required to offer it to the claimant.[157]There was a principal cloud consultant role, but this was not suitable as an alternative to the claimant because it was a highly specialised role involving taking on some of the work done by Mr Vaskar. This was work for Vodafone and Caesar accounts. It was clear the claimant did not have the technical expertise to do the role and this role involving being embedded within the client. The client also interviewed candidates and had their say in their selection. Ms Crook gave evidence that on her understanding of the claimant’s skills and experience, he would not have been suitable, and they would not have put him forward as a candidate. The salary was significantly different which highlights the difference in expertise. Additionally, the role was not advertised until 4th June which was after the claimant had left and it was expected there would be a long lead time before that individual could start because Vodafone operated a three month work cycle and Ceaser operated a 6 month work cycle. The respondent would not have been able to put the claimant on the bench for several months even if the clients had been prepared to accept him.[158]The Technical director role referred to in the claimant's ET1, was not a role suitable for the claimant as the respondent determined at the time.[159]On the appeal, the respondent’s position is that Ms Crook took a careful and appropriately thorough approach to the appeal. She was not obliged to conduct a rehearing of the entire matter. She set out her consideration of the issues raised by the claimant in the outcome letter. The claimant also appeared to argue that Ms Crook was not a suitable person to hear the appeal because she had been heavily involved in the decision to dismiss the claimant. The respondent rejected that and said that she had merely encouraged staff to start the process quickly because it was important the process was done diligently but with no time voids where there was no information because it was a highly stressful time. As regards the suggested complaint that Ms Crook did not discuss the claimant’s skills and competency with him before reaching her decision, she was able to rely on Mr Rodseth’s review and there were no potential suitable alternatives which the claimant could have put forward for, which required consulting with him about his skills and competency.
The Law
[160]Statute Section 139 Employment Rights Act 1996(1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to— (a) the fact that his employer has ceased or intends to cease— (i) to carry on the business for the purposes of which the employee was employed by him, or (ii) to carry on that business in the place where the employee was so employed, or (b) the fact that the requirements of that business— (i) for employees to carry out work of a particular kind, or (ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.(2) For the purposes of subsection (1) the business of the employer together with the business or businesses of his associated employers shall be treated as one (unless either of the conditions specified in paragraphs (a) and (b) of that subsection would be satisfied without so treating them). Section 98 - Employment Rights Act 1996 (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this subsection if it— (c) is that the employee was redundant, or (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.[161]Case law Redundancy – generally. I have quoted key paragraphs or summarised key cases below, but I have read all the cases I was referred to. Safeway Stores v Burrel [1997] IRLR 200 at 201 The correct approach for determining what is a dismissal by reason of redundancy in terms of s.139(1)(b) involves a three-stage process:(1) was the employee dismissed? If so,(2) had the requirements of the employer's business for employees to carry out work of a particular kind ceased or diminished, or were they expected to cease or diminish? If so,(3) was the dismissal of the employee caused wholly or mainly by that state of affairs? In determining at stage 2 whether there was a true redundancy situation, the only question to be asked is, was there a diminution/cessation in the employer's requirements for employees (not the applicant) to carry out work of a particular kind, or an expectation of such a diminution/cessation in the future. The terms of the applicant's contract of employment are irrelevant to that question. It is impermissible for the industrial tribunal to rewrite the words of the statute to import a further stage, that there must be a diminishing need for employees to do the kind of work for which the applicant was employed. At stage 3, in determining whether the dismissal was attributable wholly or mainly to the redundancy, the tribunal is concerned with causation. Thus, even if a redundancy situation arises, if that does not cause the dismissal, the employee has not been dismissed by reason of redundancy. Whitbread PLC trading as Whitbread Bernie Inns v Flattery and others EAT/287/94 Although the Act refers to a temporary ceasing of the business this is not intended to cover a short period of 4 weeks or so during which the premises are to be refurbished and after which the business is always intended to continue. We interpret s 81(1)(a) in conjunction with s 81(3) as being restricted to situations where the business ceases for a significant period even if there is an intention in the future to open it, but not a situation where the operation is closed temporarily for refurbishment. If that is right the respondent has failed to show an admissible reason for dismissal and the dismissals are automatically unfair . . ." BBC v Farnworth EAT/1000/97 Mr Segal has taken us to other passages in Harvey where the learned editors explore the meaning of "work of a particular kind" at paragraphs E844 et seq. The first paragraph of the text to which Mr Segal drew our attention reads: "There is a redundancy situation where the requirements of the business for employers to carry out work of a particular kind have ceased or diminished or are expected to cease or diminish. So an employee is redundant as defined when he is dismissed because his particular specialism is no longer required, even if he is replaced by an employee with a different specialism so that, overall, the requirements of the business for employees have not ceased or diminished." In the succeeding paragraphs, under the respective heading "Specialist skills", "Skill not person" and "Skill not qualifications" by reference to reported cases, the textbook suggests conclusions. Under the first of these headings, the textbook suggests that it is a question of fact for the tribunal to determine whether an employee's work is sufficiently specialised for him to be regarded as different from other comparable employees. Under the second of these headings, the textbook states: "The statute enquires what are the requirements of the business for employees to do work of a particular kind. The personal attributes of the employee are not therefore relevant except in so far as they reflect upon his ability to perform the relevant tasks." The text is illustrated by the decisions in Vaux (Supra) Loudon v Crimpy Crisps Ltd (1966) 1 ITR 307. Under the third, by reference to Pillinger (1979) IRLR 430 and Kleboe (1971) 7 ITR 201, the textbook suggests that the cases deny the relevance of the employee's qualifications as such, except in so far as they imply special skills, attributes or knowledge. Mr Segal, in our judgment correctly, submitted the textbook correctly stated the law in these passages. Selection Pool Capita Hartshead Ltd v Byard [2012] IRLR 814 My emphasis in bold. Silber J at para 31 gave this summary: ''Pulling the threads together, the applicable principles where the issue in an unfair dismissal claim is whether an employer has selected a correct pool of candidates who are candidates for redundancy are that (a) “It is not the function of the [Employment] Tribunal to decide whether they 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” (per Browne-Wilkinson J in Williams v Compair Maxam Limited [1982] IRLR 83); (b) “…the courts were recognising that the reasonable response test was applicable to the selection of the pool from which the redundancies were to be drawn” (per Judge Reid QC in Hendy Banks City Print Limited v Fairbrother and Others (UKEAT/0691/04/TM); (c) “There is no legal requirement that a pool should be limited to employees doing the same or similar work. The question of how the pool should be defined is primarily a matter for the employer to determine. It would be difficult for the employee to challenge it where the employer has genuinely applied his mind [to] the problem” (per Mummery J in Taymech v Ryan EAT/663/94); (d) the Employment Tribunal is entitled, if not obliged, to consider with care and scrutinise carefully the reasoning of the employer to determine if he has “genuinely applied” his mind to the issue of who should be in the pool for consideration for redundancy. Consultation In the case of Mugford v Midland Bank [1997] IRLR 208, the EAT summarised the state of the law as follows: 1) Where no consultation about redundancy has taken place with either the trade union or the employee the dismissal will normally be unfair, unless the [employment] tribunal finds that a reasonable employer would have concluded that consultation would be an utterly futile exercise in the particular circumstances of the case. 2) It will be a question of fact and degree for the [employment] tribunal to consider whether consultation with the individual and/or his union was so inadequate as to render the dismissal unfair. A lack of consultation in any particular respect will not automatically lead to that result. The overall picture must be viewed by the tribunal up to the date of termination to ascertain whether the employer has or has not acted reasonably in dismissing the employee on the grounds of redundancy. The following guidance was given by Glidewell LJ in the case of R v British Coal Corpn and Secretary of State for Trade and Industry, ex p Price [1994] IRLR 72, at [24]: ''24. It is axiomatic that the process of consultation is not one in which the consultor is obliged to adopt any or all of the views expressed by the person or body whom he is consulting. I would respectfully adopt the tests proposed by Hodgson J in R v Gwent County Council ex parte Bryant, reported, as far as I know, only at [1988] Crown Office Digest p 19, when he said: “Fair consultation means: (a) consultation when the proposals are still at a formative stage; (b) adequate information on which to respond; (c) adequate time in which to respond; (d) conscientious consideration by an authority of the response to consultation.”'' It was held in Mogane v Bradford Teaching Hospitals NHS Foundation Trust [2022] EAT 139, [2023] IRLR 44, that the requirement for consultation is particularly important in a case where the employer has used a 'pool of one' when making that particular employee redundant. In such a case, it is important that the consultation takes place at a formative stage, before the decision is taken to operate such a restricted pool. In Valimulla v al-Khair Foundation [2023] EAT 131, [2024] IRLR 713 it was affirmed that the employer must still go through a fair procedure. Per HHJ Katherine Tucker : In respect of Ground 2, in view of the lack of any meaningful consultation regarding this key issue in this case, namely why the claimant was placed in a pool of one, despite other staff performing the same role, albeit at different locations, I consider that there can only be one outcome, namely that the dismissal was procedurally unfair. The authorities are clear: consultation is a necessary ingredient for a fair process. There would need to be a particular reason why a redundancy dismissal where consultation had not taken place about an issue which was key to selection could be fair. Job coming available after dismissal Unfair action subsequent to dismissal cannot render the dismissal unfair as noted by the Court of Appeal in Octavius Atkinson & Sons Ltd v Morris [1989] IRLR 158. In that case a dismissal was held not to be unfair in circumstances where alternative employment became available very shortly after a summary dismissal but was not offered to the employee.
Conclusions
[162]This was a case in which the claimant was dismissed. It is for the respondent to prove the reason for that dismissal. The respondent argues that the reason was redundancy. The claimant disputes this. Many of the key points are fact dependant and my conclusions on the facts are set out in detail in the fact section of this judgment. Where that is the case, I am not going to repeat the detail fully again.[163]I carefully considered the respondent’s argument that the claimant was dismissed from his role by reason of redundancy. In the ET 3 the respondent argued that this was because the requirement for the claimant to carry out work of a particular kind was expected to cease or diminish. Subsequently in this hearing and in written submissions the respondent’s counsel argued that the work had ceased. The respondent’s argument centred around the role that the claimant performed and specifically the fact that the claimant was employed as a creative technologist. The respondent argued this had a specific meaning that the claimant would have understood. It also argued that his technical skills and ability had been assessed by Mr Rodseth.[164]Following the Safeway Stores rationale, I am required to consider the position in three stages. First, I have to consider whether the claimant was dismissed, which he was. If so, the second question is: had the requirements of the employer's business for employees to carry out work of a particular kind ceased or diminished, or were they expected to cease or diminish?[165]If I conclude the work of a particular kind had ceased or diminished or was expected to do so, then the next stage requires me to consider whether the dismissal of the employee was caused wholly or mainly by that state of affairs?[166]As the claimant was dismissed the first main question is whether the work of a particular kind had ceased or diminished. That raises an unusual question. Normally it is clear what work is in issue, but here it was somewhat less clear. The explanation of the business rationale prepared for Mr Rudd to start the consultation and explain the position to the claimant did not refer to Jump but rather to MMAP. The initial explanation give to the claimant was that the work on MMAP was ceasing. That position changed during the consultation and the focus of the hearing was on the work on Jump having ceased for an undetermined period. I have therefore focused on Jump. The work on MMAP did stop but the claimant was not spending much if any time on that when it did stop. I was told repeatedly by the respondent that the work on Jump was paused. The work that the respondent relied upon as having ceased or diminished was the work on Jump. Further I was told that there was no visibility on when that work would restart or how. This assertion was made by several witnesses, but it contrasts with the documentary evidence. The instruction from Mr Rudman given to Mr Rodseth on 7 April was to lead on Jump and get it moving this week. Mr Rodseth on 10 April was communicating with others about Jump and how to move it forward. On 18 April there was some discussion about Jump involving Mr Rudman and on 28 April Mr Rudman messaged referring to that and telling them they really needed to get a clear plan in place for it. He wanted to move it forward. The documentary evidence shows that Mr Rudman was keen to move Jump forward after the claimant’s redundancy had started. The MMAP Assessment appeared to refer to Jump when it laid out a 10 week timetable for the pivot.[167]Once the claimant’s redundancy consultation was underway Jump may have been paused, but there was little or no disclosure about that situation. Shortly after the claimant was dismissed, Mr Crossley was recruited and he then began work on Jump in July 2025. If there was a real pause when nothing was happening on Jump, it was at most between the end of April 2025 and July 2025 when Mr Crossley began work on it. It may well have been a shorter pause as we have no information about Mr Crossley’s engagement or what happened as a result of the 28 April meeting that Mr Rudman’s messages refer to.[168]Given Mr Rodseth had clear instructions to lead on Jump from Mr Rudman and there were chaser emails about the Jump project, I have no doubt that there was always an intention that it should proceed. The fact is that eventually, around December 2025, the respondent dropped the Jump project but that was not intended at the date of the claimant's redundancy consultation or dismissal.[169]If there was a short pause, we do not know why. We have an intimation from Mr Rudd during the consultation that they would have needed Board approval for the budget for Jump if it was for more than the previous budget already allocated but the situation I have before me is that the respondent’s disclosure relating to Jump simply stops from 28 April and there is nothing, not even any messages referring to Mr Criossley’s recruitment later on. While Mr Rudman accepted the proposal in the MMAP Assessment to drop MMAP as the engine for other applications, he clearly did not accept an open ended pause on Jump. If there was a pause on Jump during May and June, that situation is more akin to the Whitbread case than to a situation as contemplated in section 139 of the Employment Rights Act.[170]However, if the claimant really did different work to that which was later required, the respondent ‘s submission that the situation is in fact on all fours with the BBC v Farnworth case is important. In that case, the work that the claimant did would have ceased or diminished.[171]Arguing the case as being on all fours with BBC v Farnworth is not the way the respondent ran most of the case. The respondent did not set out a case saying that work on Jump was planned to continue, but rather that they had no idea when it would be sorted out or what budget would be applied or what services would be required. Nevertheless, in their evidence, the respondent’s witnesses did argue that the claimant would not have been able to carry out the more sophisticated and skilled work. In submissions, the respondent said that the BBC case applies. It is therefore important to consider the claimant’s work and any future work needs for Jump.[172]As it happens the claimant’s title never described his work in the sense that Mr Rodseth would have had the Tribunal conclude. Mr Rodseth gave evidence about the different roles that the various titles indicated. In practice, Mr Rodseth knew the claimant was working on a large project as I have noted. In fact, this immediately caused him to message Mr Vaskar. Mr Rodseth’s suggestion that the claimant was just carrying out a small project is inconsistent with the evidence of other witnesses and the documentation. The assertion that the claimant was only creating a pro forma version of Jump was not borne out by any documentation. A budget was allocated with a view to the project being up and running. The claimant was assigned roles within that documentation by people who understood what work he was actually doing on the substantive development of the Jump application. The view expressed in documents by Mr Rudd and Mr Rudman was that the claimant was a skilled technologist. Mr Rudd accepted in the consultation meeting that the claimant and could carry out a number of roles. Ms Crook referred to the claimant primarily working on Jump and she referred to the Statement of Work which I have cited.[173]None of the respondent’s witnesses were entirely reliable when it came to the issue of the claimant’s work. Ms Crook in the appeal, and in her witness evidence, stated that the claimant’s skill set had been carefully considered. Ms Crook went so far as to say in the appeal outcome letter that had the respondent considered whether the claimant’s skill set could be upskilled to the necessary level by training. She said in this instance it was deemed that the skill requirements were too high. However, the argument that the claimant’s skill set had been considered is not borne out by any documentary evidence. Mr Rodseth had seen the claimant’s work on MMAP and later looked at Jump but had not interviewed the claimant about his skills or looked at his CV. Mr Rodseth’s knowledge of the claimant’s actual range of ability was gleaned from a look at some code for MMAP and a meeting whose purpose was to walk through what had been built so far.[174]The claimant’s previous role at BraveSpark was Chief Technology Officer, the same title that Mr Rodseth had. I assume the role at BraveSpark was for a smaller company, but nonetheless it indicates that the claimant had a technology background sufficient to be able to lead its technology strategy. Mr Rudd, during the consultation, accepted the claimant was able to carry put a number of technology roles. Mr Rudman referred to the claimant as having a great technology brain.[175]I conclude, looking at all the evidence, that the claimant’s main work was the major development work on creating a viable product called Jump and that had not ceased or diminished. It fell within the ambit of a cloud systems engineer and senior server side engineer as referenced in the Delivering MSQ Jump AI October 2024 document. That work was to continue. At most there was a short temporary cessation. I regard that as within the situation in Whitbread PLC trading as Whitbread Bernie Inns v Flattery. The pivot to a different underlying engine from MMAP did not alter that. In the circumstances, I cannot accept the respondent’s argument that the work of the particular kind that the claimant performed had ceased or diminished or that any need for employees to work on Jump was work of a different kind. I am aware that Mr Crossley had a different title and was paid more than the claimant, but I cannot read much into this.[176]When determining the reason for dismissal, the respondent reminded me that it is necessary to consider the reason operating in the mind of the person who decides upon dismissal. I bear in mind the claimant’s argument that it is not clear who made the decision to make the claimant redundant.[177]On the face of it, Mr Rudd as the claimant’s line manager, carried out the consultation process and according to Ms Fielden in her witness statement, he decided upon dismissal in the last consultation meeting. In practice I have explained that I do not accept that characterization of events. It is clear that Mr Rudman played a large part in any decision making. Mr Rudman wrote an e-mail on 7 April to Mr Rodseth, copying in Ms Crook and Mr Rudd and referencing the AI strategy and MMAP review. He said he was happy to follow the recommendations on Page 3 of the executive summary of the MMAP software. Mr Rodseth was charged with moving Jump forward. Mr Rudman expressly noted that from the discussion they had briefly, Mr Rodseth had told Mr Rudman that he didn't feel the claimant was able to undertake any work on the pivot (being the pivot to move away from MMAP to a third party AI system). In that e-mail Mr Rudman made it clear he wanted to secure the work on Jump and Nimbus and he didn't want anyone to regard that as wasted time. The same day he sent an e-mail to Callum Scrimgeour Instructing him to move to the documentation, which message was echoed by Mr Rodseth. On 15 April Mr Rudd checked in with Liz Reynolds and HR about the plan to make the claimant redundant. I have already set this out in detail. Mr Rudd’s message was not about a redundancy situation, but about dealing with the claimant. I conclude that Mr Rodseth had made a clear decision that he did not want to work with the claimant, and the senior management, Mr Ruman and Ms Crook, decided to bring that about before any consultation took place, tasking Mr Rudd with dealing with it.[178]While the respondent is correct to say that it is not for the tribunal to question any commercial decisions that have been made, there is a distinction between questioning a commercial decision and identifying a sham decision. In this case as noted by Mr Rudman at the outset, Mr Rodseth did not regard the claimant as a fit. Mr Rodseth wanted the claimant out. If anything, the claimant, far from being a generalist, had actually worked on creating a project that Mr Rodseth told Mr Vaskar, was too big and too ambitious. It is therefore my view that Mr Rudd did not make the decision to dismiss the claimant on 22 May, as indicated by the outcome letter. The decision had already been made some time before. Indeed, it was made before consultation began.[179]Mr Rudman did not give evidence. The witnesses who gave evidence all argued that the decision was made at the end of a lengthy consultation, but I have found this was not the case. The work which the claimant was doing was continuing or, at most pausing for a short period of time insufficient to amount to redundancy. Nobody amongst the respondent’s staff who made the decision have told me what operated in their mind in the period when the decision was actually reached. All I have is the 7 April e-mail showing that Mr Rodseth did not want to work with the claimant and did not regard him as a fit. It is therefore my conclusion that the respondent has failed to show that the reason for the claimant’s dismissal was a potentially fair one falling within section 98(2) of the Employment Rights Act.[180]If I had concluded that work of a particular kind had ceased or diminished or was expected to do so, then the next stage required me to consider whether the dismissal of the employee was caused wholly or mainly by that state of affairs. Since I have found that the work that the respondent relied on of developing Jump had not ceased or diminished, or there was not more than a short temporary cessation of the nature addressed in the Whitbread case, the dismissal of the claimant was not caused by that state of affairs. The work on MMAP had ceased, but respondent did not rely on that. I have followed the approach in Safeway Stores v Burrel, but that analysis does not lead me to determine that the reason for the dismissal was redundancy. No other reason was put forward. Therefore, the respondent has failed to meet the requirements of section 98(1) of the Employment Rights Act. If the reason was redundancy, was the claimant’s dismissal procedurally unfair?[181]Once an employer satisfies the Tribunal that the reason is one falling within section 98(2) of the Employment Rights Act, the next question is to consider Section 98(4). For the sake of completeness, I have gone on to consider the aspects of the procedure which the claimant alleges were not fair and which the claimant argues rendered the dismissal unfair. .[182]The claimant argues that the “Pool” was unfair. In raising this issue, the following matters arose. The pool was only one person and did not include other relevant employees. When did the employer address the pool? Should the employer have consulted first before deciding on the pool?[183]Capita Harsthead Ltd v Byard instructs Tribunals to consider with care and scrutinise carefully the reasoning of the employer to determine if he has genuinely applied his mind to the issue of who should be in the pool for consideration of redundancy. The respondent’s evidence was that the pool was genuinely considered by Mr Rudd and Ms Fielden before they began the consultation. I have explained in the fact section of this judgment why I reject this evidence. Although both Mr Rudd and Ms Fielden contended that they had actually discussed the pool, the contemporaneous evidence is sufficiently clear to show that at no time did anyone at the respondent genuinely address the question of the pool.[184]Even if there had been any consideration of the pool, there was no effort to consult with the claimant before the pool was actually determined. The respondent does not suggest there was any consultation over the size of the pool. Rather the respondent argues that the claimant carried out a unique role and thus the pool was inevitable and there was no one else with which the claimant could be pooled.[185]It is not for me to suggest what the pool should have consisted of. There were other staff who might have had some crossover with the claimant in the engineering team. The claimant’s role was not the unique role of a creative technologist that Mr Rodseth portrayed. The claimant was carrying out the development work on a viable product - Jump. At no stage did the respondent ever genuinely analyse what the claimant was doing, or his skill set. By determining, without any real analysis of the claimant’s role and without consultation, that the claimant should be in a pool of one, that made his dismissal almost inevitable. In such a situation, there should have been consultation with the claimant over the pool. There was none. That, according to cases such as Mogane v Bradford Teaching Hospitals NHS Foundation Trust, and Valimulla v Al Khair Foundation is a particularly important failure.[186]The claimant also argues that consultation was inadequate because of:(a) a lack of information about the background to the redundancy scenario,(b) a lack of a proper assessment of the claimant’s skills c) a failure to explore alternatives to dismissal properly[187]The respondent argues that there were a large number of meetings and that every effort was made to consider all of the claimant’s comments. There was no doubt there was there were a large number of meetings with the claimant about the redundancy. The claimant was given information about the background to this strategic decision to drop MMAP. Subsequently the emphasis changed and the rationale for the claimant being redundant switched to Jump. This led to some confusion and all that the respondent explained was that Jump was paused with no visibility over when or how it would be resumed because of the decision to stop using MMAP as the engine. Given the respondent was clearly considering how to keep Jump, while attaching it to a third party engine, it is likely there was more the respondent could reasonably have explained about that situation.[188]The consultation meetings often took quite a lengthy amount of time. However, as the case law makes clear, consultation in order to be genuine should have some possibility of considering the matter and the decision should not have been firmly made. There was a lack of a proper assessment of the claimant’s skills. This was a significant failure. Despite the number of meetings and the emphasis in the documentation on the claimant being able to put forward alternative strategic options, the decision had been firmly made, and the respondent did not consider anything other than the strategic plan adopted in response to Mr Rodseth's report.[189]The claimant argues that the appeal was unfair in that Ms Crook relied upon an assessment of the claimant’s skills not discussed or disclosed to the claimant. No assessment has been disclosed in the course of these proceedings, and it is my conclusion that no assessment of the nature referred to by Ms Crook was ever made. The only assessment of the claimant’s skills was a cursory assessment made by Mr Rodseth early on which led him to decide that not only would he not want the claimant to work on the strategic pivot for Jump so that it was based on an engine delivered by a third party rather than MMAP, but also he would not offer him a role and the technology team. The appeal was not a fair process as considerable emphasis was placed by Ms Crook, as her reason for rejecting the claimant’s appeal, on matters which were simply incorrect.[190]The claimant argues that the process was unfair because alternative employment was not fairly considered. One aspect of a fair procedure is the expectation that the employer will try to find alternative employment for the employee, will offer the employee any suitable alternative employment and will give them an opportunity to apply for other alternatives. The claimant points primarily to the Principal Cloud Architect job, which was advertised. I accept the respondent’s explanation that the Principal Cloud Architect role was intended to address Mr Vaskar’s overload. I do not know when it was decided to commence recruitment for this role as the respondent did not produce disclosure on it until the middle of the hearing and then the document disclosed was a retrospective authorisation. I am unable to assess when the respondent decided they would try to recruit for this role and whether in fact the claimant’s skill set was sufficient to make this a potential role which should have been discussed with the claimant. Given the findings I have made in relation to this dismissal, I do not think it is necessary for me to make a finding on this point.[191]As regards other posts, I do not know when the respondent decided to engage Mr Crossley, but it is far from clear that role was not in fact largely replacing the claimant. Again, I do not think it is necessary for me to make a finding on this point given the other findings I have made.[192]Overall the procedural failings, particularly over the consideration of the pool and the consultation on that point, as well as the appeal, were significant. Even if I am wrong about the dismissal being for redundancy and therefore the analysis moves to section 98(4) of the Employment Rights Act, the procedural failings I have described made the dismissal unfair.[193]The claimant argues that the dismissal was unfair as the outcome was predetermined. It is my conclusion that that is a correct assertion, and it explains much of the procedural failures. From the outset, the decision to dismiss the claimant was reached as I have noted in the facts section of this judgment. Mr Rudd’s messages to HR show that the respondent’s concern was how to construct a process which would appear to be fair, despite the fact the decision was a firm decision and had already been concluded. As such the dismissal must be unfair.[194]In reaching these conclusions, I have reviewed the respondents’ submissions carefully.[195]I am aware that the claimant considers that the failure to address his grievance separately was part of the procedural unfairness. It is not clear to me that that was a failing and I have not based my decision on that point.[196]In all the circumstances, I consider the claimant’s dismissal was unfair. Approved by: