Mrs F Beattie v Originel Ltd T/a The Rubicon Partnership: 8000572/2024

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8000572/2024

Between

Mrs Fiona BeattieClaimant

Originel Limited t/a The Rubicon PartnershipRespondent

Before

Employment Judge M Sangster

Date 30 September 2024

JUDGMENT

No response has been presented to this claim and an Employment Judge has decided to issue the following judgment on the available material under rule 21:

[1]The respondent unfairly dismissed the claimant and is ordered to pay to the claimant the sum of £19,548.03 net; being Compensation for loss of employment of £19,210.43 net (being salary from date of termination of employment to 30 September 2024 at £2561.39 net per month, less 2 weeks’ pay paid in lieu of notice) and £337.60 in respect of pension contributions to end June 2024;

[2]No award in respect of unpaid pension contributions prior to May 2023 is made on the basis that such claim was not lodged within 3 months of the date of the last alleged deduction from wages.

[1]The claimant’s complaint of unfair dismissal does not succeed and is dismissed.

[2]The respondent was in breach of contract by dismissing the claimant without reasonable notice. The respondent is ordered to pay to the claimant the net sum of £1,395.68, being damages for breach of contract.

[3]The respondent failed to give the claimant a written statement of particulars of employment in respect of her role as Head of Client Operations, as required by section 1 of the Employment Rights Act 1996.

[4]In consequence of the claimant succeeding in a claim of a kind mentioned in Schedule 5 of the Employment Act 2002 (namely breach of contract), and the respondent having failed to issue the claimant a written statement of particulars of employment, the Tribunal awards the claimant two weeks’ pay (capped at £643 per week), that is £1,286, in accordance with s38(3) of the Employment Act 2002.

[5]The respondent failed to furnish the claimant with itemised pay statements in accordance with section 8 of the Employment Rights Act 1996.

[6]The claimant’s complaint of unauthorised deductions from wages, in respect of pension contributions, is dismissed following withdrawal.

REASONS

[1]The claimant presented a complaint of unfair dismissal, breach of contract, unauthorised deductions from wages and failure to provide wage statements and a statement of terms and conditions of employment.

[2]The respondent admitted that the claimant had been dismissed, but stated that the reason for dismissal was redundancy, which is a potentially fair reason for dismissal. The respondent maintained that they acted fairly and reasonably in treating redundancy as sufficient reason for dismissal. They denied that the claimant was entitled to any further payments.

[3]At the outset of the proceedings the claimant stated that she was no longer insisting on her complaint of unauthorised deductions from wages, which related to pension contributions, indicating that she now understood that this fell within the jurisdiction of the Pensions Regulator, rather than the Tribunal.

[4]The respondent led evidence from the following individuals:a. Elenor Stewart (ES), Managing Director of the respondent;

b. Ruari Cannon (RC), Director & Head of Digital for the respondent; and

c. Lynn Wassell (LW), independent appeal manager.

[5]The claimant gave evidence on her own behalf.

[6]Parties lodged a joint bundle of documents, extending to 183 pages, in advance of the hearing. One further document was added to the bundle during the course of the hearing.

Issues to be Determined

[7]The issues to be determined in this case were:a. Was the dismissal fair or unfair in accordance with s98(4) of the Employment Rights Act 1996 (ERA)?

b. Was the claimant wrongfully dismissed?

c. Did the respondent fail to comply with the requirements of section 1 and/or section 8 ERA?

d. If any of the claimant’s complaints succeed, what is the appropriate remedy? Findings in Fact

[8]This Judgment does not seek to address every point about which the parties have disagreed. It only deals with the points which are relevant to the issues which the Tribunal must consider in order to decide if the claim succeeds or fails. If a particular point is not mentioned, it does not mean that it has been overlooked, it simply means that it is not relevant to the issues to be determined. The relevant facts, which the Tribunal found to be admitted or proven, are set out below.

[9]The respondent’s business was established by ES in 2015. It principally provides executive coaching, via ES. As at 2021, there were two other employees, RC (ES’s son) and a part time administrator. RC was creating a digital platform ‘My Contribution’, to facilitate performance management and coaching for employees.

[10]The claimant is a People and Transformation Leader with 25 years’ experience. She has a background in Human Resources and is an Associate member of the Chartered Institute of Personnel and Development. She is the sole director of a limited company which provides consultancy services.

[11]The claimant and ES knew each other, prior to the claimant’s employment with the respondent. At the end of 2020, it was agreed that she would join the respondent, working on a part time basis. It was agreed that she would work three days per week, flexibly, that her job title would be Head of Client Operations, and that she would be paid £40,000 per annum.

[12]The claimant’s employment with the respondent commenced on 1 March 2021. She was not provided with a statement of terms and conditions of employment on the commencement of, or during, her employment. She did not request this at any point during her employment. On occasion, during her employment, she did not receive pay statements from the respondent.

[13]The claimant continued conduct work in relation to her own consultancy firm, and to assist her husband in relation to his catering business, on days she was not working for the respondent.

[14]The claimant’s responsibilities with the respondent included:a. Finance issues, including bookkeeping and cash collection from clients, which initially took up at least half of the claimant’s working time with the respondent;

b. HR issues, which were minimal given the size of the respondent’s business; and

c. Client and supplier liaison in the development and pilot of the respondent’s digital platform, My Contribution (MC).

[15]There was also an intention that the claimant would secure and service her own clients, in due course.

[16]In mid-August 2023 the respondent took the decision to move to automatic cash collection, using direct debit and Go Cardless. This was completed at the start of September 2023. The remaining finance responsibilities, which the claimant had previously also undertaken, were administrative in nature and were absorbed by the part-time administrative assistant, in addition to her existing duties. Digitising cash collection accordingly left a significant gap in the claimant’s responsibilities, as her responsibilities in relation to financial matters had previously taken up around half of her working time with the respondent.

[17]It was initially mooted that the claimant would, to replace her finance responsibilities, take on the role of Project Lead for the first launch of MC into a client’s business (the Project Lead Role). That would involve her managing the client relationship, coaching the client’s senior team, and facilitating 3- hour workshops, which the client had stipulated at an early stage required to be presented every Tuesday and Thursday, in both the morning and afternoon (the Client Workshops). The Client Workshops were to take place from the start of October 2023, until at least the end of December 2023.

[18]It did not however prove possible for the claimant to take on the Project Lead Role. It was taken on by RC instead, with him assuming responsibility for this from 20 September 2023 and remaining in that role thereafter. It did not prove possible for the claimant to undertake the Project Lead Role for the following reasons:a. The claimant was unable to attend a critical meeting with the client at 4pm on 20 September 2023. The meeting had been arranged to finalise arrangements for the launch of MC into the client’s business, including finalising the content of the Client Workshops and agreeing roles and responsibilities going forward. The claimant was unable to attend as she was in London at an induction for a new contract in relation to her own consultancy business. She communicated to the respondent’s administrative assistant that she would not be able to attend the meeting 11 minutes before it started. RC stepped in at the last minute to run the meeting in the Project Lead Role.

b. On 22 September 2023, the claimant indicated to the respondent that the new contract which she had taken on, through her own consultancy firm (following the induction in London), involved her running project calls on a Tuesday and Thursday for the next 12 weeks. She stated that she would investigate whether this could be changed and confirm, if it could, by 25 September 2023. She did not however provide confirmation that the dates could be changed. Instead, on 4 October 2023, the claimant asked ES if it would be possible for the Client Workshops to be moved to Monday, Wednesday and Friday. It was not. The respondent had already committed to the Client Workshops being held on a Tuesday and Thursday, in accordance with the client’s requirements, and the Client Workshops were due to commence the following week.

c. The claimant was due to be on annual leave from 5-23 October 2023. She was accordingly only available to run the Client Workshops, on her own, from November 2023, but was not able to run them all, due to her other commitments.

[19]A significant proportion of the claimant’s previous duties no longer required to be undertaken in the respondent’s business going forward: there was no longer a pilot of MC (as it had moved to the launch phase with a client), and cash collection was now automated. The respondent accordingly concluded that the claimant’s role was at risk of redundancy. As the claimant was unable to take on the Project Lead Role initially envisaged/proposed, the respondent considered alternative duties which could be undertaken by the claimant.

[20]A meeting was arranged with the claimant for 26 October 2023, immediately following the claimant’s return from annual leave. At that meeting the claimant was informed that her role was at risk of redundancy, but that the respondent wished to work with the claimant to identify an alternative role which she could undertake. They were keen to retain her in the business and to create a role for her, so she could assist them to grow and develop the business. A letter, dated 31 October 2023, confirmed that the claimant’s role was at risk of redundancy and invited her to a consultation meeting to explore ways of avoiding redundancy, to give the claimant the opportunity to make suggestions and raise any questions, and to consider possible suitable alternative employment.

[21]The consultation process continued until January 2024, with meetings taking place on 15 November 2023, 14 December 2023 and 8 & 12 January 2024. While the claimant initially suggested that her finance responsibilities be brought back in house (i.e. the automation of payments reversed), that proposal was rejected by the respondent. Automation was introduced as, in August 2023, the respondent was owed £150,000 by clients. That had created significant cash flow issues for the respondent. This was however no longer a business risk, due to the automation of payments. Discussion at the consultation meetings then focused solely on alternative employment, as no other alternatives to redundancy were identified. In addition to the meetings, there were ongoing ad hoc discussions with the claimant regarding a potential alternative role. An outline of the areas the potential alternative role could cover were sent to the claimant on 19 December 2023 and a formal role profile, for the alternative role of ‘Head of Operations’, was sent to the claimant on 12 January 2024.

[22]On 19 January 2024, the claimant had been due to attend an online meeting, at 14:30, with RC and software developers. The meeting was to discuss how to extract data from the MC platform and create useful/relevant reports from that data. It had been discussed that this was an area that could be included in the claimant’s proposed new role, as she had experience of this in an HR context. The meeting started 15-20 minutes late, which was not unusual. At 14:52, as the claimant was not on the call, RC tried to send the invite to her in an alternative format, by email. The claimant did not respond, and the meeting required to be postponed and rearranged. At 22:00 that night the claimant sent RC an email stating that she had just logged back on (presumably having logged off before the email sent at 14:52), stating that she had been caught up in dealing with an issue regarding her husband’s catering business all day.

[23]Whilst the claimant may not have had experience of every item stated on the role profile which was provided to her, ES believed that the claimant had the skills to enable her to undertake each aspect, and this was the role which the respondent required to be undertaken. The claimant’s stated position, at that time, was that the proposed role was not suitable for her, so was not a reasonable alternative to redundancy. Despite numerous discussions with the claimant, ES did not understand why that was the case. She felt the claimant was refusing to articulate this. She did not understand why she was refusing to do so. On 22 January 2024, ES sent an email to the claimant, asking her to explain, in writing, the rationale for her conclusion that the role was not suitable, so was not a reasonable alternative to redundancy. The claimant did not respond.

[24]ES was frustrated at the claimant’s lack of response and the lack of progress regarding the alternative employment proposed. She was beginning to suspect that the claimant was not in fact committed to the business. She felt the business was effectively paralysed by lack of progress, that matters could not continue indefinitely and that, in the absence of the claimant confirming to her why she felt that the role was unsuitable, so that could be considered, she required a decision from the claimant.

[25]On 31 January 2024, ES sent a letter to the claimant confirming that the claimant’s role was redundant, but that she could accept the role of Head of Operations, with a 4-week trial period, if she wished. Attached to the letter were a role profile and Contract of Employment, containing standard terms. The Contract of Employment was drafted by a solicitor, on the instructions of ES. It stated the claimant would continue to work 3 days per week, in return for a salary of £40,000, and indicated that at least one month’s notice was required, if either party wished to terminate the employment relationship. The letter stated that the respondent considered the role to be ‘suitable alternative employment’ and that the offer required to be accepted by close of business on 2 February 2024. It was later clarified that this meant that the offer was open for acceptance until 5pm.

[26]The claimant did not accept the offer. Instead, she sent an email to ES at 18:20 on 2 February 2024 indicating that she would consider the role profile and proposed contract, but had not yet done so. She gave no timescale for when she would do so. She stated ‘I believe there is a difference between what is a suitable alternative role for me, suitable in that it matches my skillset etc. and the list of things that the company needs to get done, some of which, as discussed previously, are not within my experience or skillset.’

[27]ES sent a letter to the claimant on 5 February 2024 confirming that, as she did not accept the offer of suitable alternative employment, her employment was terminated by reason of redundancy. The letter confirmed that the claimant would be paid a statutory redundancy payment of £1,929, plus 2 weeks’ pay in lieu of her statutory notice period.

[28]The claimant appealed against the respondent’s decision to terminate her employment, stating that her role was not redundant, process was not followed, the role offered was not suitable and her dismissal was therefore unfair.

[29]The respondent arranged for an independent person, LW, to hear the appeal. The appeal meeting took place on 20 February 2024. At the appeal meeting the claimant confirmed that she felt her previous role had been ‘re-distributed’, and that she could not take on the Project Lead Role, as she had other commitments on a Tuesday and Thursday. In relation to the further alternative role proposed, she did not believe it was suitable, as it did not fit her skillset. She stated however that she had not reviewed the role profile, or the Contract of Employment provided on 31 January 2024, in detail. Following discussion, it was noted that she had experience of 6 out of 8 of the tasks indicated in the role profile, and felt confident with 5 of them.

[30]LW confirmed, by letter dated 23 February 2024, that the claimant’s appeal had been unsuccessful, and she believed that the respondent had acted reasonably in taking the decision to dismiss the claimant.

[31]The respondent had no vacant roles at the time the claimant’s employment terminated and has not hired any employees since that date. Submissions

[32]Ms O’Donnell, for the respondent, summarised the respondent’s understanding of the facts and submitted, in summary, that:a. The respondent dismissed the claimant for redundancy, a potentially fair reason for dismissal.

b. The respondent acted fairly in dismissing the claimant for that reason: she was selected fairly, consulted with and alternatives were considered. A fair procedure was followed.

c. No further sums are due to the claimant in respect of notice.

d. No award should be made in respect of failure to provide a written statement of employment particulars, or failure to provide pay statements.

[33]The claimant indicated that she did not wish to make a submission. Relevant Law Unfair dismissal

Relevant Law

[34]S94 ERA provides that an employee has the right not to be unfairly dismissed. It is for the respondent to show the reason (or principal reason if more than one) for the dismissal (s98(1)(a) ERA). That the employee was redundant is one of the permissible reasons for a fair dismissal (section 98(1)(b) and (2)(c) ERA). Where dismissal is asserted to be for redundancy the employer must show that what is being asserted is true i.e. that the employee was in fact redundant as defined by statute.

[35]An employee is dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to the fact that his employer has ceased or intends to cease to carry on that business in the place where the employee was so employed, or the fact that the requirements of that business for employees to carry out work of a particular kind have ceased or diminished, or are expected to cease or diminish (s139(1) ERA).

[36]In Safeway Stores plc v Burrell

[1997] IRLR 200

the EAT indicated a 3-stage test for considering whether an employee is dismissed by reason of redundancy. A Tribunal must decide: -a. Whether the employee was dismissed?

b. If so, 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?

c. If so, was the dismissal of the employee caused wholly or mainly by the cessation or diminution?

[37]If satisfied of the reason for dismissal, it is then for the Tribunal to determine, the burden of proof at this point being neutral, whether in all the circumstances, having regard to the size and administrative resources of the employer, and in accordance with equity and the substantial merits of the case, the employer acted reasonably or unreasonably in treating the reason as a sufficient reason to dismiss the employee (s98(4) ERA). In applying s98(4) ERA the Tribunal must not substitute its own view for the matter for that of the employer, but must apply an objective test of whether dismissal was in the circumstances within the range of reasonable responses open to a reasonable employer.

[38]The House of Lords in Polkey v A E Dayton Services Ltd

1988 ICR 142

stated that ‘in the case of redundancy, the employer will not normally have acted reasonably unless he warns and consults any employees affected or their representative, adopts a fair basis on which to select for redundancy and takes such steps as may be reasonable to avoid or minimise redundancy by redeployment within its own organisation’. Wrongful dismissal

[39]Wrongful dismissal is a claim for breach of contract – specifically for failure to provide the proper notice. The Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994 gives the Tribunal jurisdiction to consider breach of contract claims where the claim ‘arises or is outstanding on the termination of the employee’s employment’ (Regulation 3). Discussion & Decision Unfair Dismissal

[40]The Tribunal referred to s98 ERA, which sets out how a Tribunal should approach the question of whether a dismissal is fair. There are two stages: firstly, the employer must show the reason for the dismissal and that it is one of the potentially fair reasons set out in s98(1) and (2) ERA. If the employer is successful at the first stage, the Tribunal must then determine whether the dismissal was fair or unfair. This requires the Tribunal to consider whether the employer acted reasonably in dismissing the employee for the reason given.

[41]The Tribunal referred to the definition of redundancy in s139(1) ERA. That states that an employee is dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to the fact that their employer has ceased or intends to cease to carry on that business in the place where the employee was so employed, or the fact that the requirements of that business for employees to carry out work of a particular kind have ceased or diminished, or are expected to cease or diminish.

[42]The Tribunal considered each of the factors set out in Safeway Stores plc v Burrell. It was not disputed that the claimant was dismissed, so the first element was satisfied. It is clear that the respondent introduced automated cash collection in August/September 2023. This led to the diminution of the finance related tasks which the respondent required its employees to undertake. Those which remained were administrative in nature and absorbed by the part time administrative assistant, in addition to her existing tasks. This resulted in approximately half of the claimant’s workload disappearing. The requirement for employees to carry out work of a particular kind had accordingly diminished. The second test was therefore also satisfied. In relation to the final point, the Tribunal was satisfied that the claimant’s dismissal was wholly caused by the fact that the claimant’s role diminished with the automation of cash collection. Discussions regarding an alternative role started from that point, but the respondent was not able to identify a role which the claimant could undertake, and she was prepared to accept. The Tribunal were accordingly satisfied that there was a genuine redundancy situation. The Tribunal were also satisfied that the claimant was dismissed solely as a result of that.

[43]The Tribunal then considered s98(4) ERA. The Tribunal had to determine whether the dismissal was fair or unfair, having regard to the reason shown by the respondent. The answer to that question depends on whether, in the circumstances (including the size and administrative resources of the employer’s undertaking) the respondent acted reasonably in treating the reason as a sufficient reason for dismissing the employee. This should be determined in accordance with equity and the substantial merits of the case. The Tribunal was mindful of the guidance given in cases such as Iceland Frozen Foods Limited v Jones

[1982] IRLR 439

that it must not substitute its own decision, as to what the right course to adopt would have been, for that of the respondent.

[44]In considering whether the respondent in this case acted reasonably in treating redundancy as a sufficient reason for dismissing the claimant, the Tribunal had regard to the guidance laid down in Polkey in relation to whether the respondent acted reasonably in treating redundancy as sufficient reason for dismissal. Taking each factor in turn, the following conclusions were reached. Warning and consultation

[45]The Tribunal was satisfied that there was adequate warning and consultation in this case. The claimant was informed that her role was at risk of redundancy, and a consultation process would follow, at the meeting on 26 October 2023. This was then confirmed in writing in the letter to the claimant dated 31 October 2023. Numerous consultation meetings were then held with the claimant, at which she had the opportunity to raise questions and to put forward suggestions for ways to avoid redundancy. She is an experienced professional, with HR experience and expertise. She had the opportunity and ability to raise issues. Any points she raised were considered and addressed. Fair basis for selection

[46]The Tribunal was satisfied that the respondent acted reasonably in determining that the claimant was a risk of redundancy. She was a senior employee in an extremely small business and the tasks which she had been undertaking had reduced significantly. There were no other employees who could, feasibly, have been selected for redundancy in the circumstances. Consideration of alternative employment

[47]The respondent entered into extensive and protracted discussions with the claimant in an attempt to secure alternative employment for her. The respondent was unable to identify any role which the claimant was able and willing to undertake. Having engaged in extensive discussions to try to identify a suitable alternative role for the claimant, it was appropriate for the respondent to specify a time limit for acceptance of the formal offer. The time provided was reasonable in the circumstances: the content of the role had been under discussion for a considerable period, the claimant is an experienced HR professional who has, she stated, ‘issued millions of contracts’, and the proposed contract was, as the claimant acknowledged, in standard terms. The claimant did not however respond within the deadline and the email she then sent was equivocal, suggesting that she remained of the view that the role was not suitable. In these circumstances, it fell within the range of reasonable responses open to the respondent to proceed to terminate the claimant’s employment. It is not the case, as suggested by the claimant, that the respondent could not take any action unless and until they received from the claimant a formal, written, rejection of the role.

[48]Whilst the claimant indicated that she felt that the role formally offered to her on 31 January 2024 was not suitable, she was unable to identify, or point to, any role that was suitable. The respondent had no vacancies.

[49]The Tribunal was satisfied, in the circumstances, that there were no further steps which the respondent ought reasonably to have taken to avoid or minimise redundancy, by redeployment within its own organisation. Conclusions re unfair dismissal complaint

[50]Given these findings, the Tribunal concluded that the respondent acted reasonably in treating redundancy as a sufficient reason to dismiss the claimant. Dismissal of the claimant fell within the range of reasonable responses open to a reasonable employer in the same circumstances.

[51]The claimant’s complaint of unfair dismissal does not therefore succeed and is dismissed. Wrongful Dismissal

[52]The claimant was not provided with a statement of employment particulars on the commencement of her employment.

[53]The claimant received two weeks’ pay in lieu of her statutory notice entitlement, following the termination of her employment with the respondent. She claims that she ought to have been entitled to a reasonable notice period, of either one or three months.

[54]The common law rule is that a reasonable period of notice must be given. What amounts to a reasonable notice period will depend on the facts of the particular case, including the employee’s length of service, his or her status, and what is usual in the particular profession in question.

[55]The claimant was provided with a proposed contract of employment on 31 January 2024. Whilst she did not accept that offer, the Tribunal felt the terms were relevant, in that they included a provision stating that at least one month’s notice was required. ES stated in evidence that she had asked a solicitor to draw up a contract for the claimant, containing provisions which would be normal for someone in that role. She provided the contract to the claimant with that notice period included, so clearly did not object to it. Whilst the claimant raised some concerns during the appeal and in her evidence to the Tribunal, in relation to the terms of that contract, the length of the notice period was not one of them.

[56]In these circumstances, and taking into account the claimant’s status (which was similar to that proposed in the new role), length of service and role, the Tribunal concluded that a reasonable period of notice in this particular case was one month. The respondent was in breach of contract by failing to pay the claimant in respect of a reasonable period of notice on the termination of her employment. The claimant received payment in lieu of 2 weeks’ notice (£1,196.30 net), on the termination of her employment. She was entitled to payment in lieu of one month’s notice, namely £2,591.98 net. She is therefore now entitled to the balance, namely £1,395.68 net. Statement of Employment Particulars & Itemised Pay Statement

[57]The claimant was not provided with a statement of employment particulars, in respect of her role as Head of Client Operations, as required by section 1 ERA. Given this, and the fact that the claimant’s wrongful dismissal complaint succeeds, the Tribunal is required to make an award equivalent to 2 weeks’ pay (capped at £643), namely £1,286. The Tribunal concluded that it was not just and equitable to award a higher sum. The respondent is a small organisation, with limited resources, and the claimant did not request a written statement at any point, despite having a background in HR and having responsibility for HR matters in the respondent’s organisation.

[58]The respondent accepted that, on occasion, the claimant was not provided with an itemised pay statement, as required by section 8 ERA. Whilst the respondent was in breach of the requirements, there was no loss or detriment to the claimant in not being provided with an itemised pay statement, on occasion. The claimant was paid a fixed salary. The amount she was paid, and the deductions from salary, did not change month to month. The claimant has not asserted that she required to see the payslips for any particular purpose, or that any sums deducted from her salary were incorrect. The claimant was aware that pay statements were held in the respondent’s office and she could request these at any time. In these circumstances, the Tribunal declined to make any monetary award in respect of the breach of section 8 ERA.