CASE REF: 207/03FET
CLAIMANTS: 1. James Magee
2. Irene Andrea Thompson
3. Michael Reed
4. Jim McCoy
5. Alexis Geddis
RESPONDENT: T I Solutions Limited
The unanimous decision of the Tribunal is that:-
The Tribunal makes an award of compensation to be paid by the respondent to the first claimant in the sum of £1,374.76.
Constitution of Tribunal:
Chairman: Mr N Drennan QC
Panel Members: Ms C Lewis
Mr B Collins
The claimant was represented by Ms T McKenna, Barrister-at-Law, instructed by Francis Hanna & Co, Solicitors
The respondent was represented by Mr E O'Loan, Solicitor, Tughans Solicitors
"(1) Whether there was a redundancy situation?
(2) Whether the method of selection for redundancy by interview was fair?
(3) Whether the applicant's status as a trade union member played any role in the selection for redundancy?
(4) What was the applicant's length of service, and should this have been given more weight in the selection procedure?
(5) Whether those retained had less skill and experience than the applicant and, if so, whether this rendered the selection procedure unfair?
(6) Whether there was adequate consultation.
Mr O'Loan, the representative of the respondent, subsequently made an application to introduce as evidence, on behalf of the respondent, witness statements made by witnesses of the respondent, but whom he did not intend to call as witnesses to give oral evidence. The Tribunal initially refused to consider the said application, unless any such statement sought to be introduced was in its final form, signed and dated. This, having been done, Mr O'Loan renewed his said application. The Tribunal was conscious that the Tribunal in this matter had given orders/directions for the preparation and exchange of witness statements in connection with this matter. Whilst it was aware that there had been some breakdown in relation to the said timetable for the preparation and exchange of the statements, the Tribunal noted that the claimants' representatives had been, prior to the said application, given notice of the said statements and further the ability to provide supplementary statements, where necessary. Under Rule 13(2) and (3) of the Fair Employment Tribunal Rules of Procedure 2005, the Tribunal was not bound by any statutory provision or rule of law relating to the admissibility of evidence in proceedings before the courts and, in particular, the Tribunal was able to conduct the proceedings in such manner as it considered most appropriate for the clarification of the issues and generally for the just handling of the proceedings. Further, under the said Rules of Procedure, a party is not required to attend at any hearing and is entitled to submit written representations. The Tribunal, mindful that the said Rules were subject to the terms of the overriding objective, came to the conclusion, in the above circumstances, that it should allow the said witness statements, in their final form dated and signed, to be admitted in evidence on behalf of the respondent. However, in admitting the said statements, in the above circumstances the Tribunal made it clear that the claimants' representative would be entitled to make such comment, as she considered appropriate and relevant, in relation to the contents of any such statement, so admitted, and in circumstances where she had been unable to cross-examine the maker of the said statement. In addition, the Tribunal made it clear that, in determining this matter, it would have to give consideration to the weight, if any, which could be attached to any such statement admitted in such circumstances. Mr O'Loan frankly and fairly accepted the caveat, referred to above, which the Tribunal placed on the admission of the said statements by the Tribunal.
The Tribunal therefore, in light of the foregoing, admitted, in evidence, the witness statements of the following persons, namely Flor O'Donoghue, an independent human resources consultant, retained by the respondent, Chadwick Byrd, the corporate controller for the Fred Olsen Energy Group and Director of the respondent at the relevant time, and Martin Fitzsimons, systems support manager of the respondent at the relevant time.
3.1 The Tribunal, insofar as relevant and material, made the following findings of fact.
The first claimant was, for some period prior to the events, the subject matter of these claims, a trade union representative/shop steward at the respondent. In that capacity he had represented, some time earlier, an employee in connection with disciplinary hearings which culminated in the employee's dismissal. At the employee's appeal, which was conducted on behalf of the employee by a full-time official of the union, the then managing director, Mr McCluggage, had objected to the first claimant attending the appeal. Mr McCluggage was still the managing director of the respondent when the initial announcement of the redundancies was made on or about 18 October 2002, but left shortly thereafter and was not involved in any of the subsequent relevant decisions, the subject matter of these claims. The first claimant had previously been selected by Mr McCluggage for redundancy in or about October 2000, but had successfully appealed that decision on the grounds the criteria had not been properly followed, with the assistance of his full time trade union official.
The fourth claimant, for some period prior to these events also acted as a trade union representative/shop steward at the respondent.
In determining the number of employees who would be required to provide the above support and after taking account of the support to be given to other customers and potential customers of the respondent, the respondent initially concluded it would require to reduce the number of staff, in order to provide the necessary technical support and services in the new environment faced by the respondent, by 7 persons, and also by one other person in the finance/sales/administration side of the business. Within a short period, it was decided that it was not necessary to make any redundancy in the finance/sales/administration side of the business. At that time the respondent had 20 employees, of whom 12 were involved in providing the previously required technical support. It was therefore decided that the 7 redundancies would be required to be found amongst the said pool of 12 persons. At a meeting on 6 November 2002, as set out below, the employees were so informed of the above numbers. It was not seriously challenged, during the course of this hearing that the number of redundancies required, in the circumstances, in the area of the said technical support was 7 persons and that the said pool was made up of 12 persons in total. It was not considered by the respondent that any of the said 12 employees had the necessary skills or experience to carry out any of the remaining roles in finance/sales/administration. Again, it was not suggested by any of the claimants that they could have filled any of the said roles in those other areas.
"The company cannot economically withstand the costs incurred in salaries for functions that would be underutilised. This scenario prompts the requirement for an evaluation study of all positions and the utilisation of each role. This process will identify any redundant positions and will result in a re-organisation of resources in order to remain competitive and to permit planning for the future.
All company employees were informed of the possibility of redundancy and the likely areas of impact at a collective meeting held on 18 October 2002.
You will be informed soonest once the process has been completed".
A further letter was sent, by fax, on Wednesday 6 November 2002 by Mr Simpson, confirming the review process had been completed and informing the union that there would be 7 redundancies and it was the respondent's intention to commence discussions with the relevant persons within a couple of days.
Mr Simpson responded by agreeing to a meeting, in a letter dated 6 November 2002 and sent by fax to Mr Nicholl; but stating the earliest it could be held was on Friday 8 November at 3.00 pm, as the first proposed consultation with staff affected was to take place on that Friday morning. He indicated the said meeting with employees would be used to inform them that their positions were at risk and to make them aware of the provisional selection criteria and to allow them to offer ideas or opinions. Mr Nicholl, by letter dated 7 November 2002, confirmed his agreement to the meeting, as set out above.
In relation to the selection criteria, each claimant was informed:-
"Employees will be selected for the remaining jobs through interviews. Those who match the requirements of the position most closely will be kept on. Those who do not best match the requirements will be made redundant. In order for T.I. Solutions to meet its commitments to all customers we need people in the remaining jobs to be able to fulfil the required duties. We encourage you to apply for all the positions you feel you match by informing Denise Shields by e-mail by 5.00 pm on Tuesday 12 November of which ones you wish to be interviewed for. We expect (Tribunal's emphasis) to be holding interviews on Wednesday 13 November".
The appeals procedure to be adopted by the respondent was also referred to. In addition, each claimant was given an opportunity to raise questions/make suggestions/provide ideas about the whole matter, which opportunity they exercised. Indeed, each of the claimants raised a wide variety of questions in relation to the process outlined to them above - but no specific answers were given at that time to their queries.
During the course of the meeting, Miss Shields indicated that the time scale for consultation was not limited and it would go on until the employees were satisfied. Reference was made by Mr Nicholl to the use of appraisals. A formal appraisal had not previously been used by the respondent and it was indicated, that it would not therefore be possible to use appraisals in this selection process. Mr Nicholl, did not concede the point at the time. However he acknowledged, during the course of the hearing, that, in view of the absence of such a system prior to the redundancy exercise, it would not have been practicable or possible to have a selection process, involving appraisals, in such circumstances.
Mr Nicholl was informed, at the meeting, that the respondent intended to select by means of interview, using specific technical questions relating to the requirements for each position, which would be weighted and would require specific answers. Mr Nicholl strongly registered his objections to the use of interviews. He stressed people felt under pressure at interview and therefore, in his opinion, did not perform well. Concern was also expressed about the absence of recent experience of interviews for long serving employees. He requested that the decision to use interviews should be reconsidered; and he wanted to have an opportunity to sit down and discuss with the respondent an agreed method of selection, and, in particular, having regard to the respondent's stated position at the meeting of wanting to use interviews. After such a consultation he was confident it would be possible to reach a solution about the best way to proceed. Mr Nicholl also referred to the possibility of voluntary redundancy and an enhanced redundancy package and also the payment in lieu of notice. In the Tribunal's view, no opportunity was given to Mr Nicholl, at this meeting, to put forward alternatives to the holding of interviews, which the respondent was proposing and to which he was objecting.
Who constructed selection criteria?
The relevant manager based on commercial decisions taken by the management team in relation to the revised requirements.
Was the union involved in drawing up the selection criteria?
No but we did hear their views on Friday as we heard everyone else's who was involved in the process.
Will it take into account assessments made before?
As the company must provide certain skills this procedure is designed to obtain the best possible person to fill the requirements. There have been no previous skills assessments or appraisals.
What about the person who has been adaptable for the past 26 years?
Will that come into question as part of the assessment?
No. The assessment is purely skills match.
Who wrote the job descriptions?
There are no job descriptions - the documentation distributed is the list of the requirements and functions that need to be fulfilled. These were written by the managers responsible for the roles at present ….
This document is not my job - is my job redundant?
The documentation reflects the requirements of the organisation going forward, grouped into positions. It is not a document based on any current position. At this point no position is redundant however there are a number of positions at risk of being made redundant.
What are the factors behind the weightings?
The importance of the requirement. This decision was made by the manager based on customer requirements.
Can we apply for the other jobs? (ie positions unaffected)
No. Those positions are not affected by the redundancy.
Has the union been involved?
Yes. We last met with the union on Friday and will be sending a response to the areas which they asked to be reconsidered tomorrow.
Will there be enhanced redundancy?
Will there be volunteers?
We are unable to accept volunteers. The selection method is interview in order to ensure best skills match.
During the course of the meeting, which was wide ranging, as exemplified by the answers to the questions set out above, further discussion took place in relation to the method of selection. Further questions were asked. For example, Mr Byrd explained in answer to a question about the process, in the absence of appraisals, that specific technical questions would be asked by the interviewers and the weightings were related to the importance of the functions to be fulfilled in the said post.
During the course of the discussion, Mr Byrd asked "What is the best method of doing the selection?" No-one responded and no alternative ideas were proffered to him. Indeed, the fourth claimant fairly acknowledged that there was no best method and he did not know the answer to Mr Byrd's specific question. Significantly, in the Tribunal's view, Mr Byrd responded by stating, "If you can come up with a selection method and as long as the employees in the company are treated fairly, we are happy to go along with it…".
In light of the foregoing, it was agreed to defer the applications for the specific posts until 5.00 pm on 13 November 2002. There was also agreement to have a meeting with the union on 13 November 2002 which would be to work together and come up with a system of selection which was fair to both the employees and the company.
Although the prepared answers to the questions were not in fact given to the employees at the meeting they were, in the Tribunal's view, still of some significance. In particular in relation to the question "Has the consultation period ended?" - the prepared answer states "No. We are meeting with the union official on Tuesday 19 November and will continue to consult with employees. However we do need to let people know if they are redundant as soon as possible and also the business requires us to move on with selection". Secondly - "Will there be pay in lieu of notice?" - "No. We will require employees to work their notice and continue performing professionally". Thirdly - "Will there be enhanced redundancy?" - "No".
At the conclusion of the meeting employees were informed that the interviewers would be Mr Martin Fitzsimons, Richard Cullen, who were line managers on the technical side of the respondent, and the Chairperson would be Mr Flor O'Donaghue, the Human Resources Consultant referred to earlier, and who was acting as the advisor to the respondent throughout this process.
When giving his evidence Mr Nicholl, in fairness, had no precise recollection of the above conversation; but he acknowledged that it could have been pointed out by Miss Shields, during the course of that conversation, that the company had sought from him and the employees an alternative more fair and objective method to interview, but without success. In particular, he had no recollection of stating that he could not think of an alternative method. He accepted, in the course of his evidence, to the Tribunal, albeit reluctantly, it could have been said. Regardless of the precise words which were used in this conversation, the Tribunal is satisfied that the issue of the interview arose and that Miss Shields made it clear that, in the absence of any alternative suggestion, albeit noting Mr Nicholl's objection, the company intended to proceed by way of interview. In addition, the Tribunal is satisfied that Mr Nicholl made no alternative suggestion at that time, other than there should be continuing consultation to arrive at an agreed solution. Significantly the Tribunal noted that, even in the course of his evidence, Mr Nicholl did not put forward any alternative suggestion. He accepted, as set out above, that assessment, in the absence of a previous formal system, was not appropriate. He further acknowledged that 'last in first out' was now recognised to have its difficulties and drawbacks and specifically would not necessarily result in a company obtaining a person who had the necessary skills, which the respondent required in the changed circumstances, albeit he/she might have long service.
He indicated he had not ever seen interviews used as a method of selection; but equally he was not prepared to put forward any other alternative objective system, which would have satisfactorily dealt with the needs that had arisen for the respondent to ensure it had persons with the necessary skills to fill the posts that had been identified, following the announcement by H&W of reduction in work for the respondent.
Miss Shields also informed Mr Nicholl that issues of pay in lieu of notice and enhanced redundancy were still under consideration. Miss Shields indicated the consultation with employees would continue. However she also stressed the necessity for urgency to let the employees know who was to be made redundant but also to allow the business to move on.
In addition to the telephone call, Mr Simpson wrote to Mr Nicholl on 15 November 2002 (by fax) confirming the meeting had been arranged for 19 November 2002, but also confirming that, if possible, there could be an earlier meeting. He also confirmed that several meetings had been held in relation to the interviewing process but it had been decided to proceed by way of interview, in the absence of any suggestion of a more objective method. He also indicated that 'performance' and attendance records would also be taken into account. It was not disputed, during this hearing, that the reference to 'performance' records was a reference to disciplinary type records.
We therefore will not be attending any such interview at this juncture".
Having regard to the terms of the document, the Tribunal came to the conclusion that, by 18 November 2002, Mr Nicholl had become aware, from the claimants, the interviews were to take place. However any such information came to him from the claimants not the respondent.
(a) the highest possible score that could be obtained;
(b) the weight to be given; and,
(c) the actual score awarded.
In addition, there was a document giving the scores given by the said interviewers with relevant and appropriate totals. The document also made provision for scoring, as aforesaid, in respect of:-
(i) performance linked to discipline in the absence of appraisal process;
(ii) attendance over the last 6 months, excluding periods of hospitalisation.
These criteria of 'performance' and attendance had been included, as set out previously, following the meetings with the employees and union prior to the commencement of the interview process. In the event, all the said employees obtained maximum marks in these categories and were not therefore a relevant factor in any employee's selection for any of the said posts.
However, the Tribunal was satisfied the questions set related to the specific requirements for each position and the weight given to the said questions also reflected the weightings which had been previously set against those requirements. In the Tribunal's view these questions, which were of a technical nature, were clearly designed with the said requirements in mind and to ascertain whether the applicants for each post had the necessary skills and ability for those posts; and further that, on the basis of the said questions and the answers given to those questions, each applicant for the relevant post could be objectively tested whether he/she was able to satisfy the said requirements. Whilst individual claimants, as set out elsewhere in this decision, may have had difficulties in answering certain questions, in particular in those areas with which they were not so familiar, the Tribunal noted that the questions themselves were not the subject of challenge as improper or not relevant to the said requirements, if such a system of interview was to be used. In addition, the sample answers, which had been prepared for the use of the panel, were accepted as reflecting what answer would require to be given to such questions.
In the circumstances, the Tribunal did not consider it necessary to ascertain with any certainty who were the authors of the said or indeed the sample answers, the authorship of which also remained uncertain on the evidence before the Tribunal.
The questions, being of a technical nature and directed at the set requirements did not include, as set out previously, any measurement of an individual applicant's "soft skills". In essence the exercise was, in the Tribunal's view, a purely objective exercise.
The Tribunal, having carefully examined the interview sheets and the marks given, were satisfied that the interviewers had properly and fairly recorded the answers given by each candidate for each position and had properly marked the answers given. Indeed, whilst the claimants objected, in principle, to the use of this interview process, none suggested that the interviewers had failed to record answers given or to accurately score the answers that had been given by either themselves or the applicant with whom they were in competition for the said position. The Tribunal also noted that this had been done by each of the interviewers; even though each interviewer did not have the same degree of detailed knowledge or experience of all the areas, which were the subject matter of the questions. The Tribunal was therefore satisfied, that within the terms of the said interview exercise, each applicant for the said posts had been properly and accurately interviewed and marked.
All the appeals were unsuccessful. In giving his reasons for doing so Mr Byrd relied on the fact that the selection process, by way of interview, had been designed to meet the future needs of the respondent in the changed circumstances following the reduction of the work from H&W; and that the interview process had been used because it was considered that this was the most appropriate method for matching employees to the jobs which would now be required in order to meet the requirements of the business in the changed circumstances. He noted no alternative had been suggested. He also pointed out that, prior to this situation arising, there had been no formal system of assessment, which could therefore have been used in connection with the selection criteria. He denied that the matter had been pre-determined in any way and insisted that the questions had been designed on the basis of the requirements for the remaining positions, in light of the changed circumstances and the client base which the respondent would have to deal with in the future. He did not deny that the claimants had each long and good service. This had never been part of the selection process, as it was considered by the respondent it would not achieve what the respondent required, namely finding those employees who best matched the requirements of the respondent. He referred to the fact that, in light of the pre-interview consultations, attendance and performance (ie., discipline) were included as selection criteria; though as indicated previously, in the event, these criteria played no part in the final result. He stated that volunteers had not been sought on the basis that, to have sought same, could have endangered the viability of the respondent if those with the required and necessary skills to enable the respondent to survive had volunteered.
There was considerable evidence and issues raised, in the course of this hearing, about when the information had been given to the newspaper and the normal period which would elapse between a company providing such information and publication. The claimants, and in particular the second and fifth claimant, relied on the fact that, this appointment having been announced in the newspaper, was evidence that the decision who was to get the post of Desktop Technician, in the redundancy situation, had been pre-determined prior to the interview. The person in the respondent primarily responsible for the sending of the information to the newspaper did not give any evidence to the Tribunal. Equally, no-one was called, by the claimants, on behalf of the newspaper, to confirm what had actually taken place and how the publication came to be published on 19 November 2002 and/or what was the normal period for such a marketing feature to await publication following submission by a company.
Both the second and fifth claimants suggested in evidence, on the basis of what they had been told by sources in the Newsletter Newspaper, that the normal period was short and the feature had only been submitted a short period prior to the date of publication. These sources were not identified or called to give evidence. Given that the respondent had been aware of the redundancy situation from at least the beginning of October 2002, the timing of what took place could, in the Tribunal's view have been significant. However, in the absence of any clear and direct evidence of what actually happened the Tribunal came to the conclusion that the publication was coincidental and a matter of bad timing and not evidence of any pre-determination; and that there had been merely a failure to stop a chain of events, namely publication of the marketing feature, which had been commenced at a time prior to the redundancy situation occurring, and which was not stopped in the face of the changed circumstances. Also, Ms O'Lynch had been appointed to the position of Desktop Support Technician about February/March 2002, albeit she had never been referred to as Desktop Support Engineer; and thus there was some basis for considering that there was a link between that appointment and the said feature. If there had been no such previous appointment, the Tribunal would have been less prepared to reach the above conclusion. In addition, to have deliberately put in such a feature at such a time, in a publication which was bound to be read by all the claimants, when there was a redundancy process commenced and with interviews arranged, would have, been foolhardy in the extreme. In the circumstances, and in the absence of clear and direct evidence, which was not given by any party, the Tribunal was not prepared to draw any adverse inference from the publication; and in particular that it was evidence of pre-determination on the part of the respondent. The Tribunal was also satisfied, as set out above, that Ms O'Lynch had been properly found, at interview to be the successful candidate.
(1) In determining 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, (if more than one the principal reason) of the dismissal and
(b) that it is either a reason following within paragraph (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) Reason falls within this paragraph if it –
(3) is that the employee was redundant.
Having established the reason for the dismissal it was then necessary for the Tribunal to have regard to the provisions of Article 130(4) of the 1996 Order, which states:-
"(4) Where the employer has fulfilled the requirements of paragraph (1) the
determination of the question whether the dismissal is fair or unfair (having
regard to the reason shown by the employer)
(a) depends whether in the circumstances, including the size and the 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.
Article 136 –
(1) An employee who is dismissed shall be regarded for the purpose of this part as unfairly dismissed if the reason (or if more than one the principal reason) for the dismissal is that the employee -
(a) was or proposed to become a member of an independent trade union, or
(b) had taken part, or proposed to take part, in the activities of an
independent trade union at an appropriate time or
4.4 Further under Article 137 it is provided, as follows: -
(1) An employee who is dismissed shall be regarded for the purpose of this part as unfairly dismissed if -
(a) the reason (or if more than one, the principal reason) for the dismissal is that the employee was redundant,
(b) it is shown that the circumstances constituting the redundancy applied equally to one or more other employees in the same undertaking who held positions similar to that held by the employee and who have not been dismissed by the employer,
(c) it is shown that any of the paragraphs (3) to (7D) applies.
(7) This Paragraph applies the reason (or if more than one the principal reason) for which the employee is selected for dismissal was one of those specified in Article 136(1) read with paragraph (3) of that Article.
In the Williams case it was stated:-
"Although it would be impossible to lay down detailed procedures which all reasonable employers should follow in all circumstances, there is a generally accepted view, in industrial relations that, in cases where employees are represented by an independent union recognised by the employer, reasonable employers will seek to act in accordance with the following principles:
1. The employer will seek to give as much warning as possible of impending redundancies so as to enable the union and employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions, and if necessary, find alternative employment in the undertaking or elsewhere.
2. The employer will consult the union as to the best means by which the desired management results can be achieved fairly and with as little hardship to the employees as possible. In particular, the employer will seek to agree with the union the criteria to be applied in selecting the employees to be made redundant. When the selection has been made, the employer will consider with the union whether the selection has been made in accordance with these criteria.
3. Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection, but can be objectively checked against such things as attendance records, efficiency at the job, experience or length of service.
4. Employer will seek to ensure that the selection is made fairly, in accordance with these criteria, and will consider any representations the union may make as to such selection.
5. The employer will seek to see whether instead of dismissing an employee to offer him alternative employment.
It must be remembered that these principles set out in the above case are guidelines and not all applicable in every case.
Further, the Court of Session in King -v- Eaton Limited  IRLR 199 made it clear that the union should be consulted at a time when they could influence the criteria selection and not after the criteria had been set in stone.
As Lord Bridge made clear in the case of Polkey -v- A E Dayton Services Limited  IRLR 503 HL.
"In the case of redundancy, the employer will not normally act reasonably unless he warns and consults any employees affected or their representatives, adopts a fair basis on which to select for redundancy and takes such steps as may be reasonable to avoid or minimise redundancy by re-deployment within his own organisation".
However, the Tribunal were also, at all times conscious, that it is now well established that tribunals cannot substitute their own principles of selection for those of the employer. Indeed, the Tribunal could only interfere if the criteria adopted were such that no reasonable employer could have adopted them or applied them in the way that the employer did (see further Earl of Bradford -v- Jowett (No 2)  IRLR 16. In the case of N. C. Watling -v- Richardson  IRLR 255, it was suggested that the test was whether what had been done was something which "no reasonable management would have done".
The Tribunal could understand the respondent's desire to protect the continuing viability of the respondent in the changed circumstances and therefore to make any necessary changes as soon as possible. However, this rush to make a decision, in the Tribunal's view, sat uneasily with the fact that the claimants were informed on or about 21 November 2002 that their posts were redundant; but they were each required to work their period of notice until February 2003. Indeed, in the case of some of the claimants, their period of employment was further extended beyond the said notice period.
The Tribunal accepts that there were proper meaningful consultations with the individual claimants informing them of the redundancy situation and how it had arisen and its implications. Indeed, following those discussions with the individual claimants and the union representative, there was no issue about the number of posts being made redundant, the relevant pool from whom those to be made redundant would require to be selected or indeed the positions that would be required in these changed circumstances. The Tribunal noted that, following the meetings with the individual claimants and union representative, changes were in fact made to the criteria for selection; and performance (ie., discipline) and attendance records were included. In addition, there was, in the Tribunal's view, proper consultation, albeit it did not result in any change of view by the respondent, in relation to issues about pay in lieu of notice and use of volunteers. The respondent was entitled, if it considered it necessary, to require the claimants to work their notice rather than pay them pay in lieu of notice. Further, the Tribunal could not fault the respondent's decision not to allow for the use of volunteers in the circumstances; given the risk, as seen by it, that the 'wrong' persons might volunteer. Other employers might have been prepared to take that risk; but, in the Tribunal's view, such a decision was within the range of reasonable responses by an employer. The Tribunal was satisfied that the above matters were properly considered by the respondent, prior to the interviews, albeit rejected. Further, there were clearly discussions about enhanced redundancy terms - but these ultimately proved unsuccessful. Given the absence of any contractual entitlement to such enhanced redundancy terms, the Tribunal did not consider the decision of the respondent could therefore be faulted.
However, central to the consultation process, and which was not resolved before the interviews commenced, was the clearly expressed objection by the claimants and their union representative to the decision by the respondent to select by use of interview. Indeed, it is clear, from the commencement of the consultation process, that the respondent had made its decision to proceed by that method, unless some other alternative method was proposed, which would result in obtaining persons for the new positions who had the necessary skills and abilities. In the Tribunal's view, this was not a situation where, at the outset, the respondent had a completely open mind how it wished to proceed. Equally, it was obvious, from the outset, that there were serious objections to the use of the interview method. This was confirmed at the meeting with Mr Nicholl on 8 November 2002, where Mr Nicholl clearly set out his objection to the interview method. However, he was not given an opportunity at that stage to expand on his objection. The Tribunal acknowledges that at the meeting on 12 November 2002 with the employees, Mr Byrd did indicate that, although interview was his preferred method, he was prepared to consider alternative suggestions put forward to him. Indeed, the Tribunal considered, as evidence of his willingness to do so, the fact that interviews which had originally been planned for 13 November 2002 were put back.
The Tribunal further recognises that there were meetings with the claimants on 13 and 14 November 2002 and opportunities were given by the respondent to suggest an alternative method. Indeed, it was apparent from the fourth claimant, at his meeting, that there was no consensus about such an alternative amongst the employees affected; albeit all the claimants were opposed to the use of an interview.
The Tribunal further accepts that during the course of the various meetings, there were discussions in relation to the requirements of the positions and the weightings. It was announced by Mr Byrd, and the union were so informed, that there were some, albeit limited, changes made to those requirements and the said weightings. However, the precise changes, which were made, were never clear to the Tribunal on the evidence before it. However, the Tribunal came to the conclusion that this was not of significance, in particular, in relation to the issue of consultation, in circumstances where it was satisfied that each of the said posts was necessary in the redundancy situation, that the requirements for each said post were properly tested by the questions, which were put during the course of the interviews for each post, and the questions themselves and the sample answers were not the subject of challenge by any of the claimants - albeit, for the reasons outlined previously, they had particular difficulties themselves in answering those questions, due to their lack of experience/familiarity with some of the requirements for each post.
However, following those meetings, Mr Byrd announced on 14 November 2002, the method of selection was to be by way of interview. But he also indicated the timetable for interviews on 18 and 19 November 2002. This was at a time, whenever it was known there was to be a meeting with Mr Nicholl on 19 November 2002 and there was also a clear recognition that the consultation period had not ended. The Tribunal accepts that, during the telephone conversation with the union representative on 15 November 2002, Mr Nicholl continued his objection to the use of interviews but noted, even at that stage, he did not provide any alternative method or suggestion nor could he think of one. It was also made clear to him that the consultation process of the employees was continuing. Mr Nicholl was not informed, during the course of this telephone call, that the employees had already been informed that interviews were to be held on 19 and 20 November 2002. All of this was in the context that a meeting, which was to be part of the consultation process, was to be held on 19 November 2002, when the interviews would already have commenced. Indeed, at a meeting on 18 November 2002 with the employees, Mr Byrd, when informing them of the inclusion of the criteria relating to attendance and disciplinary records, still said that it would consider another selection method, if the union came up with one. Given that, by the time of the arranged meeting of 19 November 2002, the interviews would have already commenced, the Tribunal was forced to conclude that, despite what Mr Byrd was saying and the agreement to meet the union on 19 November 2002, the consultation process was in fact over; and the interview method was to be proceeded with. Despite the foregoing, Mr Nicholl was not even informed by the respondent that the interviews would have commenced by the time of this meeting - albeit, it was satisfied, he in fact knew of this from information given to him by the claimants, which resulted in their written protests of the 18 November 2002 about the said interviews. As a result, the meeting on 19 November 2002 was not, in reality, anything to do with the selection method. Although Mr Nicholl still protested about the use of the interview method, the meeting was more to do with what improved terms, if any, that could be achieved for those who were to be made redundant following the said interviews.
In the Tribunal's view, the failure to properly conclude the consultation process, before commencing the interviews, was not a fair and proper way to conduct such a consultation.
Interviews are now a commonly used objective method used by employers for recruitment and selection. The fact that the claimants had not expected, but for the redundancy situation arising, to have had to become involved in a selection process was not, in the Tribunal's view, a reason for not using such a commonly used method.
Having proceeded by way of interview, the Tribunal were not satisfied, on the facts found by it, that it was conducted in any improper way by the respondent, whether by the questions set to test the skills needed or the manner in which each interview was conducted and the results obtained.
Above all, the Tribunal was very aware that it should not interfere if a reasonable employer could have adopted such a method and properly applied that method, so adopted. This the Tribunal accepts is what respondent did.
However, the Tribunal was satisfied that, despite the said failures that even if the consultation process had been properly carried out and/or the necessary enquiries had been made amongst the other companies in the Group that the result would have been the same; and, in particular, that the claimants' contracts of employment would have, in any event, been terminated by reason of redundancy.
The Tribunal fully accepts that the said consultation process was rushed and was not properly concluded before the consultation process had been concluded. Equally, the Tribunal is satisfied that the central remaining outstanding issue for any consultation process was the issue of the method of selection. No alternative was suggested at the time, despite encouragement to do so, by either the claimants or Mr Nicholl. Significantly, in the Tribunal's view, even during the course of this hearing, no alternative suggestion was given in evidence to the Tribunal. Selection by way of assessment and/or length of service were not, in the circumstances as found by the Tribunal, proper alternative methods of selection, which could have been used in this particular exercise. In light of the failure of the claimants and their union representative to provide any alternative suggestion of an alternative appropriate method of selection prior to the commencement of the interviews or in evidence to the Tribunal, the Tribunal is of the opinion that the method of selection would have continued to be by way of interview at the end of the consultation process; even if further time had been provided, as it should have been, for the consultation process to be fully concluded before the interviews commenced. The interview itself, having been fair, the Tribunal is therefore satisfied the claimants would still have been dismissed by redundancy.
Although the Tribunal accepts that attempts should have been made to ensure there were no suitable alternative positions in other companies within the F O E Group, the Tribunal is not satisfied, on the evidence before it, that such enquiries would have resulted in fact in any claimant being offered any such position. As set out previously, the Tribunal is satisfied that there were no alternative positions in the respondent itself or H&W. In particular, the Tribunal also noted that there was no evidence from the claimants that any such posts existed in any of the other companies in the Group or that there were any positions being sought by any company in the Group at the relevant time. The claimants were, as indicated previously, in employment for some period after the notification of their redundancy and would thus have been fully aware if any other company, within the Group, was seeking employees at that time.
In relation to the compensatory award, the Tribunal was not satisfied there was any evidence to establish the claimants had failed to mitigate their loss, following the termination of their contracts of employment. The object of the compensatory award is to compensate employees for financial loss caused by their dismissal and not to punish employees for their wrong doing.
The over-riding aim of the compensatory award is to compensate an employee for financial loss caused by their dismissal to the extent that a Tribunal considers it "just and equitable" subject to the statutory maximum.
To this effect, Article 157 of the 1996 Order provides:-
"1. Subject to the provisions of this Article ….. the amount of the compensatory award shall be such amount as the Tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal, insofar as that loss is attributable to action taken by the employer".
The Tribunal having concluded that the dismissal of the claimants and each of them would have taken place in any event, it was of the opinion that the compensatory award should be limited to the period of time, as set out above, by which the process would have been extended. (Mining Supplies (Longwall) Ltd) -v- Baker  IRLR (417).
Having regard to the period of extension of 4 weeks, as found by the Tribunal, the claimants would therefore have been informed of their redundancy on or about 20 December 2002 and not 21 November 2002.
At that time each claimant would also have been informed, as occurred on 21 November 2002, of the requirement to work the relevant 12 week period of notice. The notice therefore would have expired not on 13 February 2003, but on or about 14 March 2003. The Tribunal, on the evidence before it, had no reason to believe that this requirement to work the full period of notice would have altered, whenever each redundancy was announced. The requirement to work the notice period was not conceded by the respondent during the consultations. Also all the claimants, other than the first claimant, were in fact asked to extend their period of employment beyond 13 February 2003.
Taking account of the period of notice to be worked by each claimant, the relevant period for compensation for loss of earnings was therefore the additional 4 week period from 14 February 2003 until on or about 14 March 2003. However, as indicated previously, the employment of the second, third fourth and fifth claimant was in fact extended throughout this period by the respondent. The Tribunal concluded therefore the second, third, fourth and fifth claimant did not sustain any loss of earnings during that period. The first claimant's employment was terminated at the end of the 12 week period of notice on 13 February 2003, as he had been informed on 21 November 2002. The Tribunal was therefore satisfied the first claimant had suffered loss of earnings in the said 4 week period from 14 February 2003 until 14 March 2003.
All the claimants made a claim for loss of statutory rights in the sum of £250.00. However, since the Tribunal considered dismissal would have occurred in any event, albeit, some weeks later, then no award is properly payable for such loss of statutory rights (see further Puglia -v- C. James & Sons Limited  IRLR 70.
(a) Basic Award - nil (having received a statutory redundancy payment of
(b) Compensatory Award -
(i) Loss of earnings from 14 February 2003 - 13 March 2003 at approximately £343.69 (net) per week - £1,374.76
Total monetary award -
(a) plus (b) - £1.374.76
Amount of prescribed element £1.374.76
Period of prescribed element:- 14 February 2003 -
14 March 2003
Excess of monetary award over the
prescribed element:- nil
This award to the first claimant is subject to the Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations (Northern Ireland) 1996.
Dates and place of hearing: 28 June 2005, 29 June 2005, 30 June 2005,
1 July 2005, 12 September 2005, 13 September 2005, 14 September 2005, 19 September 2005,
21September 2005, 23 September 2005,
28 September 2005, 30 September 2005, Belfast.
Date decision recorded in register and issued to parties: