Fair Employment Tribunal Northern Ireland Decisions

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Cite as: [2013] NIFET 79_12FET

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FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 79/12 FET

1274/12

CLAIMANT: Anthony Malone

RESPONDENTS: 1. Rodney Morrow Romtech Ltd

2. Robert Holton MD Romtech Ltd

3. Tony Stumph MD Celsa Steel Services UK Ltd

4. Romtech Ltd

DECISION

As indicated at the hearing, the unanimous decision of the Fair Employment Tribunal is that the claimant has not been unfairly dismissed and the claimant was not victimised on grounds of his religious belief.

Constitution of Tribunal:

Chairman: Miss E McCaffrey

Members: Mr P Archer

Ms E Bailey

Appearances:

The claimant was represented by his sister Ms Malone.

The respondents were represented by Mr P Bloch, Barrister-at-Law, of the Engineering Employers Federation.

ISSUES

We gave our decision at the end of the hearing. On a request from the claimant’s representative we set out below our written reasons for our decision.

1. The issues for the Tribunal to decide were:-

(1) Whether the claimant had been unfairly selected for redundancy when dismissed from his employment with the fourth named respondent (“Romtech”) on 15 May 2012?

In particular

(1) Was the pool for redundancy which Romtech identified incorrect and should it have included other members of staff?

(2) Was the claimant treated unfairly in the redundancy procedure and in particular in relation to applying for an alternative post as an internal sales representative?

(3) Was the claimant victimised because he raised the issue of Romtech’s legal responsibilities under the Fair Employment and Treatment (Northern Ireland) Order 1998 to register for monitoring with the Equality Commission for Northern Ireland?

(4) If so, did the claimant suffer less favourable treatment as a result of having carried out a protected act under Article 3(4) of the Fair Employment Treatment (Northern Ireland) Order 1998?

The initial claim to the Fair Employment Tribunal had included claims of religious discrimination and sex discrimination. It was confirmed that these had been withdrawn and the only claims outstanding before the tribunal were the claims of unlawful selection for redundancy (unfair dismissal) and the claim of victimisation.

FACTS

2. We had the opportunity to hear evidence from the claimant and from Mr Shane Mcateer on his behalf. We also heard evidence from Ms Helen Cree, HR Manager for the fourth named respondent, Rodney Morrow, Regional Sales Manager of Romtech Ltd and Mr Robert Holton, Managing Director for Rom Ltd and Romtech Ltd. A considerable number of documents were opened to us in the course of the hearing and a number of different assertions were made on behalf of the claimant. We believe that some of these were not relevant to the issues in relation to this case and we set out below only the findings of fact which we believe are relevant to the determination of the issues in this case. As appears from our findings of fact, we believe that the claimant misconstrued or misinterpreted a number of comments made to him in the course of the redundancy procedure.

3. The claimant was employed by the fourth named respondent (“Romtech”) as a Sales Executive from 24 April 2006 until he was made redundant in May 2012. He was employed as a Sales Executive and there was some dispute as to whether he was subsequently re-designated as a Senior Sales Executive. For the purposes of these proceedings, we do not believe that it is important that we make any finding on that point.

4. Romtech’s business involves the sale of steel reinforcement and associated products to the construction industry throughout the UK and Ireland. It was agreed that, like many companies involved in the construction industry, Romtech had seen a decline in sales as a result of the economic crisis in 2008. While existing contracts had secured business through 2009 and 2010, Romtech suffered a particular downturn in 2011.

5. Early in 2012, Mr Morrow was requested to attend a management meeting at Romtech’s head office to review January’s results. He was conscious that sales had dropped considerably from 1247 tones in August 2011 to 526 tones in January 2012. The budgeted sales for January had been 874 tones. Before attending at Romtech’s headquarters, Mr Morrow had a meeting with the sales team in Northern Ireland which consisted of the claimant, Natalie Cunningham and Jill Bell. Amongst other things, they discussed opportunities to improve sales, but the meeting indicated that business had dropped and that there was no sign of any improvement in the near future.

6. The situation did not improve in February 2012 and the Romtech was reviewing costs through the UK. At that stage the decision was taken to review staffing in the Sales Department. In early March Mr Morrow informed the claimant and Natalie Cunningham (who both were involved in external sales) that there was a proposal to remove the two external sales post and replace them with one internal sales post. It was the claimant’s view that his post had become more internal over time and that he was more based in the office. It was Mr Morrow’s evidence however that the main reason for the claimant being in the office more was because the level of external sales dropped, and this simply reinforced Mr Morrow’s view that there was not the same need for two external sales representatives.

7. The claimant was unhappy that only he and Natalie Cunningham were being considered for redundancy. It was his view that Jill Bell who was office based should be included within the pool for redundancy and he also argued that Mr Morrow himself should be included in the pool for redundancy. Mr Morrow’s response to this was that he and Helen Cree had considered the pool for redundancy carefully. Ms Bell dealt with the running of large scale contracts for supply of steel products secured by all the sales team together with telephone sales and therefore, in his view she had a different role and needed to be retained.

8. Once the news of potential redundancy had been given to the claimant, he did not come into the office as much as he previously had done. The claimant alleged that he had been told by Mr Morrow to “make himself scarce”. Mr Morrow’s account of this was that he had been asked by the claimant if he could stay out of the office more as he felt he was better being out meeting customers and doing his job, because he found it difficult to come into the office during this period. We can see no good reason why Mr Morrow would exclude the claimant from the office at this period and so on balance we accept his account of this issue.

9. On the second weekend in March 2012 and prior to any discussions regarding the restructuring of the business, it had been arranged that the claimant and Mr Morrow would entertain some customers at the Ireland v Scotland Rugby International including an overnight stay in Dublin. Mr Morrow agreed with this and requested that Miss Cree would hold off issuing consultation letters until after this event. The claimant alleged that, due to a conversation which took place between Mr Morrow and Shane Mcateer at this rugby event, a decision had already been made that he would be made redundant. Mr Morrow’s account of the event was that Mr Mcateer had raised the issue with him, on the basis that the claimant had told him that things “weren’t good” and that there was a possible redundancy. Mr Morrow’s evidence to the tribunal was that he felt this conversation was not appropriate, that he would not discuss someone else’s personal business with Mr Mcateer and that he effectively “fobbed him off” by saying that nothing was decided and not to worry about it. The account given by Mr Mcateer of this conversation to the tribunal was that the subject had been raised by Mr Morrow and that Mr Morrow had said, “Tony needn’t worry though because I am going to get him a good package”. Mr Morrow made it clear that he had spoken to the claimant about the matter shortly afterwards and had expressed his concern that he had been put in that position by Mr Mcateer and asked the claimant if it was a “set up”. The claimant assured him that it was not and said that he was not happy with the matter either. We are satisfied on the basis of the entire evidence before us that no decision had been made in relation to the selection of the claimant for redundancy in advance of the consultation process.

10. The claimant and Ms Cunningham were invited to individual consultation meetings scheduled for 14 March 2012. The claimant’s letter was hand delivered to him on 13 March, following the rugby weekend. It was Mr Morrow’s evidence that he had tried to meet the claimant on 12 March to deliver the letter but this was unsuitable for the claimant.

11. The claimant raised an issue in relation to the notice he was given for this first consultation meeting and also the fact that he could not be accompanied at the meeting. He said it was not appropriate to bring a colleague, which we believe is understandable and that he did not have time to arrange for a Union representative to come with him. It transpired in the course of his evidence that the claimant was not in fact a member of the Trade Union at this time and that this was the main reason why he could not bring a Union representative with him to the meeting. He raised the issue of the notice given for the meeting at the first consultation meeting on 14 March and Helen Cree offered to postpone the meeting, but the claimant indicated that he was ready to go ahead.

12. As part of the discussion at that meeting, the claimant was asked if he was interested in voluntary redundancy. Ms Cree indicated that she would send him details of what he would be entitled to on voluntary redundancy so that he could consider the matter if he wished to do so. The next day, the claimant wrote to James Ellis, Head of Human Resources at Celsa, telling him that he felt unfairly treated and bullied and asking him if he would get involved in the matter. Ms Cree reverted to the claimant and pointed out that she was the person who had been appointed to deal with the matter. There were various e-mails back and forward between the claimant, Ms Cree, Mr Ellis and Mr Morrow. The claimant also
e-mailed Robert Holton and Tony Stumph. The explanation given by Mr Holton was that Miss Cree was dealing with the matter, he was content that she would deal with the claimant directly and he did not think it was appropriate for him to become involved as he might have to be involved at a later stage in the process if there were any appeals to be dealt with. The claimant clearly was in a state of some anxiety about the entire matter. He asked for information regarding the job specification of the new post which was not available at this time. At the first consultation meeting, the claimant had made the point that he believed that the new role would be at a lesser level compared to his current post. It is clear that on a number of occasions, the claimant enquired about voluntary redundancy both to Rodney Morrow and subsequently to Robert Holton at the beginning of May. On each occasion he was told that as there was a compulsory redundancy process ongoing, the company could not consider an application for a voluntary redundancy and was not in a position to offer any enhanced terms, which was what the claimant was seeking.

13. There was a further consultation meeting scheduled for 21 March at the Craigavon depot. The claimant suggested that the consultation process should spread over 90 days. It was explained to him that this was not relevant as the company were looking at making only two posts redundant. The claimant asked a number of questions at the meeting on 21 March about the new post and any other available roles within the group. The claimant also asked detailed questions in relation to the new post which was to be set up, the process which should be gone through to select a candidate for that and details of the job description. It was made clear at that stage that the company anticipated that if the proposal went ahead, interviews for the new post would be held shortly thereafter. Helen Cree specifically said that it would be a fair process as both applicants would be treated equally. She anticipated that each candidate would complete a PI Campus survey (a computer based survey regarding the profile of the candidate) which would then be compared to the role. The survey is completed on-line and a computer-generated report is produced. Ms Cree had been trained in the analysis of these reports. Each person would then have a competency-based interview which was the standard recruitment process. At the meeting, Ms Cree indicated that she was not aware of any other roles or opportunities within the group at that time. Further exchanges of e-mails took place and there was another meeting planned for 23 April 2012. The claimant objected to the fact that some of the e-mails sent by Miss Cree were sent outside of normal office hours. Her response was that as she did not have normal office hours and had to be out of her office quite a lot, she caught up with e-mail correspondence as and when she could. She pointed out that she was endeavouring to reply to the claimant’s questions as promptly as possible.

14. The meeting planned for 23 April did not take place because the claimant had a doctor’s appointment. There was some further correspondence by e-mail and in particular, Helen Cree sent a lengthy e-mail to the claimant on the morning of 30 April setting out replies to a number of questions he had raised. She indicated in that e-mail that she believed she had now answered all his questions and that she did not intend to hold another consultation meeting. She asked if he had any further submissions or suggestions regarding the proposal that he would respond “before midday on Monday as the company wishes to come to a final decision on the proposal by early next week”. The claimant replied indicating that he needed some legal advice and had an appointment in relation to this on Thursday, 3 May, so that he should have a response for her the following Monday. Later the same morning (30 April) Miss Cree e-mailed the claimant to say that there had been some confusion with the e-mail and that although it had been written the previous Friday, it had not been sent to the claimant and was therefore being sent on the Monday morning. She added, “We were looking for a response today if you have any other submissions or suggestions to make before the company make a final decision. Apologies for the confusion…”. That e-mail was sent to the claimant at 12.30 pm and he replied by e-mail on the same day at 14.18. He indicated that he was shocked by the timescale, suggesting that he was entitled to time to seek legal advice. He asked a number of other questions in relation to the proposed new post and indicated that he felt that he was being unfairly treated in relation to the new post. He went on to say, “In terms of your recruitment and other HR processes there is a heavy emphasis in NI on fair employment practices. The documentation of the recruitment of the current staff will I am sure show you have been fair and clear in all your practices. I am sure you are aware I am the only Catholic employee in the sales team and I am entitled to fair and equal treatment within the company.” On Wednesday, 2 May, shortly after 5.00 pm, the claimant sent a further e-mail to Miss Cree raising a number of questions. He went on to say, “I have some revisional queries that may clarify my references to the possible discriminatory approach that has been taken in my selection and treatment throughout this process. All employers, like Romtech, bound by FETO legislation will be aware of the stringent requirements imposed on employers in this part of the UK. Registering with the Commission and reviewing and reporting upon your employment practices every three years is just a starting point.”

Miss Cree indicated that she had not been aware of any obligations under the Fair Employment and Treatment Legislation, but when she referred this matter to her boss, James Ellis, he contacted the Equality Commission in Belfast and arranged to register Romtech with them. It was the claimant’s case that he had been made redundant “20 minutes after I raised the fact that we as a company were not compliant with FETO in terms of registration and monitoring, etc, and asked if that was the basis upon which I was being made redundant.”

15. James Ellis replied on 4 May to the detailed e-mail which the claimant had sent to Helen Cree on 3 May. He did so as Ms Cree was on leave, and set out the same position as set out in previous correspondence. He also made the claimant aware of a handful of posts available within the CSSUK, but none of these were within the claimant’s area of expertise, nor were they in Northern Ireland.

16. Contrary to the claimant’s assertion that he had not been told what competences would be considered at the interview, he was in fact e-mailed by Miss Cree on 8 May regarding the interview, its length, the likely topics and so forth. The claimant was also concerned about the PI Survey which was to be dealt with electronically. He pressed Miss Cree as to how significant this would be in relation to the process and her answer to him was that it would be 50% of the assessment, because that was the procedure for external candidates.

17. The claimant and Natalie Cunningham were both interviewed for the post on 9 May. There had been a difficulty with the PI Campus Survey in that it should have been sent to both of them by e-mail the previous day and this survey had not reached the claimant. It was subsequently sent to the claimant around 2.00 pm on Friday afternoon and he completed it. He complained that he had been given very little time to complete it. He had been asked to complete it by 4.00 pm on the Friday afternoon and the evidence from Ms Cree was that the survey took approximately 10 minutes to complete. During the interview process, each candidate was asked the same questions in relation to six different topics and their replies were assessed by Helen Cree and Rodney Morrow. They were marked according to a series of grades, 1 was the top grade (which graded the candidate as excellent), 2 was a good candidate, 3 was borderline and 4 was unacceptable. In the six categories concerned, the claimant obtained the top score in four out of six categories with both the assessors and was graded at 2 in two other categories. Miss Cunningham was graded at grade 1 in five out of six categories by each of the assessors and was less strong on the sixth, achieving a 2 on technical ability. This meant that there was in fact one point between the two candidates in the overall scores. Mr Morrow’s evidence, which we accept, was that the PI Survey was used only to confirm the outcome of the interview process. Miss Cunningham was told that she was to be given the post and the claimant was advised by Mr Morrow that he was to be made redundant. Mr Morrow met the claimant outside of the office premises by agreement to advise him of his redundancy on 15 May.

18. The claimant appealed his redundancy and his appeal was heard by Robert Holton. The claimant was given the opportunity to put forward his case and to raise queries in relation to the procedure. In particular, he raised the issue of the PI survey and alleged that he felt misled because he had been told that it would be 50% of the marks. Because of the mix-up over the survey being forwarded to him, he believed that he had been discriminated against. During the appeal Mr Holton asked James Ellis, who was present to take notes, to explain the process in relation to the PI Survey as he believed that Mr Ellis had a better understanding of this matter than he did. Mr Ellis explained that in dealing with an external candidate, the PI Campus Survey was used to clarify whether a candidate was suitable for the role. If the PI Campus Survey and CV were not suitable for the job, then the candidate would not even be invited to interview. In the case of the internal sales post at issue here, it had been decided that both candidates would be invited for interview, but the PI Survey would still be carried out. His comment was, “During the interview the weighting of the PI diminishes as additional information is gathered.”

19. The claimant also raised the issue of the correct pool for redundancy, alleging that Jill Bell should have been included within the pool for redundancy and raising the issue about his seniority. He also raised the issue of the Fair Employment and Treatment (NI) Order 1998 and said that he found it unbelievable that 20 minutes after he had asked about the Fair Employment and Treatment Legislation he was informed he was redundant. The claimant also confirmed at the interview that he had raised the subject of fair employment with Alan Rogers in a conversation some time before, but had not raised it with Rodney Morrow. When Mr Holton specifically asked him what evidence he had that he had been discriminated against for religious belief, the claimant’s answer was, “I’m the only Catholic in the sales team.” Mr Holton asked him how he (Mr Holton) would know that and pointed out that there was nothing on his file which helped the company in this respect. We note that Romtech is based in Great Britain and that their staff based there may not necessarily be aware of religious sensitivities in Northern Ireland.

20. The outcome of the appeal was that the decision of the interview panel was affirmed and the claimant was therefore made redundant. Following his redundancy, the claimant was out of work for some time but had found alternative employment a short time before the hearing.

THE RELEVANT LAW

21. Unfair Dismissal

The right to protection against unfair dismissal is set out in Article 126 and following of the Employment Rights (Northern Ireland) Order 1996. Of particular relevance is Article 130(2), which sets out the reasons for which an employee may be fairly dismissed. These include capability and qualifications, the conduct of the employee, retirement or, at paragraph 130(2)(c), that at the employee was redundant. This is of course subject to the requirement that the employer follows the proper procedure in making the employee redundant as set out at Article 130A. In this case it was not disputed that the three step procedure set out in Schedule 1 to the Employment (Northern Ireland) Order 2003 had been followed. Rather the claimant alleged that Romtech had selected the wrong pool for redundancy in that it should have selected a wider pool, including Jill Bell. He argued that he should not have been selected for redundancy but should have been retained.

22. There is well established case law in relation to selection for redundancy. The guidelines are set out in Williams v Compair Maxam Ltd [1982] IRLR 83. The position is that the employer must give as much warning as possible of impending redundancies so as to enable the union (if applicable) and employees who may be affected to inform themselves, to consider possible alternative solutions and if necessary find alternative employment. Consultation both with the union (if applicable) and with the individuals who may be affected is essential. The employer must seek to establish criteria for selection for redundancy which do not depend solely on the opinion of the person making the selection but which can be objectively checked. The employer must ensure that the selection is made fairly in accordance with each criteria and will consider any representations. The employer must also seek to consider whether he may be able to offer the employee alternative employment rather than dismissing him. These guidelines have been expressly approved by the Northern Ireland Court of Appeal in Robinson v Carrickfergus Borough Council [1983] IRLR 122.

Establishing the pool of employees for redundancy can be a vexed question. There is a balance to be struck between the tribunal’s powers of adjudication and on the other hand, flexibility must be given to an employer in making economic decisions. In particular a tribunal must not substitute its own view for that of a reasonable employer. We were referred to the decision of the Employment Appeal Tribunal in Capita Hartshead Ltd v Byard [UKEAT/0445/11] (20 February 2012, unreported) which summarises the law in relation to the fairness of selection for redundancy dismissal. Silber J summarised the relevant case law as follows:-

(1) It was not the function of the Employment Tribunal to decide whether they would have thought it fair to act in some other way: the question is whether the dismissal lay within the range of conduct which a reasonable employer could adopt. The Courts recognised that the “reasonable response” test was applicable to the selection of the pool from which redundancies are to be drawn.

(2) There is no legal requirement that a pool for redundancy 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). The Employment Tribunal is entitled, but not obliged, to consider with care and scrutinise carefully the reasoning of the employer to determine whether he has genuinely applied his mind to the question of who should be in the pool for consideration for redundancy.

(3) If the employer has genuinely applied his mind to the issue of who should be in the pool for consideration for redundancy, then it would be difficult but not impossible for an employee to challenge it.

23. Victimisation

The claimant alleges that he was victimised in that he was dismissed from his employment shortly after he drew to his employer’s attention their obligations under the Fair Employment and Treatment (Northern Ireland) Order 1998 and in particular their obligation to be registered with the Equality Commission and have their workforce monitored from the point of view of religious belief.

24. The legislation is set out in Article 3(4) and (5) of the FETO 1998 as follows:-

“(4) A person (“A”) discriminates by way of victimisation against another person (“B”) in any circumstances relevant for the purposes of this Order if –

(a) he treats B less favourably than he treats or would treat other persons in those circumstances; and

(b) he does so for a reason mentioned at paragraph (5).

The reasons are that –

(a) B has -

(1) brought proceedings against A or any other person under this Order; or

(2) given evidence or information in connection with such proceedings brought by any person or any investigation under this Order; or

(3) alleged that A or any other person has (whether or not the allegations so states) contravened this Order; or

(4) otherwise done anything under or by reference to this Order in relation to A or any other person; or

(b) A knows that B intends to do any of those things or suspects that B has done, or intends to do, any of those things”.

REASONS AND DECISION

25. At the hearing we gave our reasons for our decision and advised that we had found against the claimant in relation to both matters before us.

26. In relation to the matter of unfair dismissal, we are satisfied, and the claimant conceded, that there were grounds to make staff redundant due to the downturn in business being suffered by Romtech. We are not satisfied, as the claimant claimed, that the matter was pre-decided. The employer had quite properly indicated to the two people likely to be affected that there was a proposal that their two posts had been made redundant and that one internal sales position would still exist, for which they would both compete. The conversation which Rodney Morrow had at the rugby match with Seamus Mcateer in our view does not indicate that there had been a decision already made. Mr Morrow was clear in his recollection, that the matter had been raised by Mr Mcateer and that he specifically referred to the claimant by name. Mr Morrow indicated that he said something along the lines of “Don’t worry about Tony” as a way of closing the subject and fobbing off Mr Mcateer because he did not wish to discuss the claimant’s private business with an outsider. This was, in our view, the correct thing to do. His evidence was then that he went and told the claimant about the conversation and expressed his concern that the matter had been raised with him. The claimant then approached Mr Mcateer about the matter. We are satisfied that Mr Morrow had not made any decision at this time and that he was well aware that a proper procedure needed to be gone through.

27. In relation to the selection of the pool for redundancy, the claimant alleged that Jill Bell who dealt with contracts and internal sales matters and indeed Mr Morrow himself should both have been included in the pool for redundancy. He was certainly clear that he believed that Jill Bell should have been included. Mr Morrow gave a clear and rational reason as to why Ms Bell was not being included. First of all, the work she was involved in had not diminished as such and she had the experience and expertise in dealing with large ongoing contracts. Secondly, the area where the company had suffered most was in external sales, which was the role carried out by the claimant and Natalie Cunningham. It was therefore reasonable that both of them should be at risk of redundancy. We are satisfied that Romtech gave proper consideration to the identification of the pool of people at risk of redundancy and that they made a reasonable decision, with which we should not interfere.

28. Thirdly, Romtech carried out a proper consultation procedure. They considered whether there were any alternatives to redundancy. The claimant had raised the possibility of a job share, and this was discussed with Natalie Cunningham. However Helen Cree had advised the claimant that Miss Cunningham was not content to go down that route. Romtech considered other options and made the claimant aware of other vacancies, even though these were not in the Northern Ireland region or in his area of expertise. Romtech also showed considerable patience in dealing with lengthy and detailed queries from the claimant, well beyond what would be normal in a consultation exercise. The process took almost two months, which is a long time in considering one redundancy out of two employees.

29. The process for recruiting either the claimant or Miss Cunningham to the new internal sales post which was created was, as far as we can see, an objective procedure which was equally applied to both candidates. The claimant raised an issue in relation to the PI survey and the weighting to be given to it. He believed that he had been misled about the weight being given to that survey and indeed it does appear that there was considerable lack of clarity in relation to it. It was really only at the appeal stage that it was clarified that this tool was really only being used to confirm and support the outcome of the interview process. However, there was no suggestion made by the claimant that the gradings given to him were unfair or that Miss Cunningham had wrongly received better grades than him. The procedure, as far as we can see, was an objective one and the claimant, unfortunately, was not successful in the appointment process.

30. In relation to the question of victimisation, the claimant admitted in cross examination that he had not in fact been made redundant within 20 minutes of raising issues regarding the Fair Employment Legislation with his employer. The issue of his religious belief was first raised by the claimant with Romtech in an
e-mail on 30 April. He alleged in his statement to the Tribunal that he had told his employer that he was going to seek advice from the Equality Commission. This was not what his e-mail says, instead it refers to him “seeking legal advice”. It was alleged on his behalf that the claimant had carried out a protected act by going to seek advice from the Equality Commission. First of all, he had not told his employer that he was going to the Equality Commission, simply that he was seeking legal advice. Secondly, there is no statutory right to legal advice, although anyone is of course free to seek legal advice at any time. It may be questioned as to why the claimant did not actually seek legal advice on his situation at an earlier stage, given that he had been aware from March that his job was at risk of redundancy. He had chosen not to do this at an earlier date. His main objection on 30 April seems to be that, because of Helen Cree’s failure to send the e-mail on the Friday afternoon rather than the Monday morning, the claimant was under a misapprehension that he had a further week in which to seek advice. At this stage the redundancy consultation had been going on from mid-March, which is a lengthy period when one is speaking about reducing two posts to one. The claimant was mainly concerned of course with his own situation, but the employer had to consider the uncertainty being suffered by his colleague who also knew that her job was at risk of redundancy. We are satisfied, having considered the legislation, that the claimant’s reference to the obligation for Romtech to register with the Equality Commission for fair employment monitoring is a protected act under Article 3(5)(a)(iii). That is, that B (in this case the claimant) alleged that his employer had contravened the Fair Employment and Treatment Order, by failing to register for staff monitoring. We are not however satisfied that the claimant suffered any detriment as a result of this. The response of the employer to this information was to contact the Equality Commission and ensure that their firm was registered. The claimant did not suffer any unfair treatment as a result of this nor was he dismissed forthwith. Instead, as previously indicated to him, the claimant was advised that there would be an interview process for the new internal sales post. As a result of his raising questions regarding the competences to be examined at interview, he was given information about this which his colleague Natalie Cunningham probably did not have. He went through an interview process which we believe was fair. The claimant certainly did not persuade us that there had been anything untoward in relation to that procedure. Unfortunately for the claimant he was unsuccessful, but this does not mean that he suffered victimisation.

31. In all respects we are satisfied that the procedure applied by the employer in this case was a fair and reasonable one, and within the band of reasonable responses as set out in the Employment Rights (Northern Ireland) Order 1996. Accordingly, the claimant’s claims are dismissed.

Chairman:

Date and place of hearing: 6-8 November 2013, Belfast.

Date decision recorded in register and issued to parties: