Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2002/1322_00.html
Cite as: [2002] NIIT 1322_, [2002] NIIT 1322_00

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THE INDUSTRIAL TRIBUNALS

CASE REF: 01322/00

APPLICANT: Isobel McCready

RESPONDENT: Bryson House

DECISION

The unanimous decision of the tribunal is that:-

(i) the applicant was not unlawfully discriminated against by the respondent on the ground of her sex; and

(ii) the applicant was not unfairly dismissed by being unfairly selected for redundancy by the respondent.

Her applications are therefore dismissed.

Appearances:

The applicant was represented by Ms M Larkin, Barrister-at-Law, instructed by Savage & Company, Solicitors.

The respondent was represented by Mr J Maxwell, Barrister-at-Law, instructed by Cleaver Fulton Rankin, Solicitors.

This decision is given in extended form.

2.	(i)	The applicant, Mrs Isobel McCready, by an originating application presented to the Industrial Tribunal on 26 June 2000, alleged that the respondent had unlawfully discriminated against her on the ground of her sex and had unfairly dismissed her (by unfairly selecting her for redundancy). She alleges that the respondent, having made her redundant, placed a man, Mr Stephen Gourley, in her former post. Mr Gourley had been employed by the respondent for a much shorter time than the applicant, and was, according to the applicant, less well qualified than she was.

	(ii)	The tribunal heard evidence from the applicant, and from Mr Liam McAnoy, on her behalf. Mr McAnoy had been a Community Development Officer employed by Bryson House under funding from the National Lotteries Charities Board (NLCB). It has heard evidence from Mrs Helen Todd (Manager for Childcare and Family Services at Bryson House), Ms Jo Marley (Senior Executive Director, Bryson House), and Mr Stephen Gourley, who had like Mr McAnoy, been employed by Bryson House under NLCB funding. The tribunal has also had regard to a considerable amount of documentary evidence adduced by the parties. The tribunal finds the facts set out in the following paragraphs.

3.	(i)	The applicant was employed by Bryson House from March 1985 until 28 April 2000. She had been given notice on 29 March 2000 that she would be made redundant on the former date. (The applicant had in fact been on sick leave from 15 February 2000.) When she received notice of redundancy she was told that there were no suitable vacancies, but that the respondent would inform her if any positions arose prior to her termination date. With this in mind, the respondent had withheld the redundancy notice for as long as possible to buy time.

	(ii)	During her time at Bryson House, the applicant had been employed in a number of capacities. She was clearly a dedicated and conscientious worker, which made the ending of her employment all the more distressing for her. Ms Marley, the Senior Executive Director, had a high regard for the applicant, and told the tribunal that she did not want to lose her.

	(iii)	At the time of her dismissal on 28 April 2000, the applicant was the manager of Lawnbrook Family Centre, a converted house situated at Lawnbrook Avenue on the Upper Shankill area of Belfast. She became manager there around 1996, without formally applying for the job. Her post essentially involved the running and management of the Centre. Prior to becoming manager at Lawnbrook, she had worked there as a Community Development Officer, and the job description for that post had included managing a budget, fund raising, and supervising staff.

	(iv)	She possessed a managerial diploma following attendance for a year at a further education college, and she also had a child care qualification from Rupert Stanley College. The applicant would contend that these qualifications made her suitably equipped to carry out the duties of the post deemed to replace hers. The emphasis of that post, as we shall see, was on community development, and in 1993 an appraisal of the applicant in her then Community Development Officer post had been good.

4.	(i)	During the period when the applicant worked as manager of Lawnbrook, there had always been talk of lack of funding. According to the applicant, there was never any mention of redundancy, through there was discussion that if the Lawnbrook Centre closed, she could go to work in Family Support at Bryson House.

	(ii)	Throughout 1999, and particularly in the latter part of the year, financial problems at Lawnbrook became more acute. Since its inception in the 1970s, Lawnbrook had received funding from statutory bodies, particularly the North and West Health & Social Services Trust (NWHSST). It had provided the bulk of funding, running at £56,000 per year, until that sum was cut to £28,000 in 1996. It appears that Lawnbrook was always run at a deficit, with Bryson House making up any shortfall from central funds.

	(iii)	Various discussions were held about the future of Lawnbrook. Throughout 1999, Bryson House had engaged with local 'stakeholders' to make an application for funding to the New Opportunities Fund of the National Lottery. A bid was prepared in October 1999, though by December of that year it was clear that it was not going to be successful. This bid had been seen as the great hope for the future of Lawnbrook.

	(iv)	It was also becoming clear in the latter part of 1999 that the NWHSST might withdraw funding altogether. There were other projects going on in the area, and Lawnbrook was slipping down their list of priorities. There was a new centre in the Shankill area (the Spectrum Centre due to open in 2001) and it was seen as being able to provide sufficient services for the local area.

	(v)	On 2 December 1999, Helen Todd had a meeting with the applicant, at which the possibility of NWHSST funding being withdrawn was discussed, as was the possibility of Lawnbrook closing. Following this, on 6 December 1999, Helen Todd received a phone call from NWHSST which confirmed that funding had been withdrawn.

5.	(i)	Various meetings were held to discuss the way forward at Lawnbrook in the light of the financial difficulties which had occurred. Additionally, attempts made in December 1999 and January 2000 to involve the community in the running of the Centre had failed. The client base had not increased, and there had been a reduction in the numbers attending some activities. We are satisfied that the applicant was herself aware of the acute financial difficulties facing Lawnbrook in the latter part of 1999, that she was aware of plans to attempt to resolve these difficulties, and that she was present at meetings, such as one on 10 December 1999, to discuss the way forward for Lawnbrook in the light of the NWHSST no longer supporting funding.

	(ii)	Clearly, Bryson House as a organisation had to respond to these difficulties. There had always been concerns about Lawnbrook's finances. Now, the deficit was growing. It was projected at £37,000 in the year 1999/2000 and £40,000 in 2000/2001. This was far in excess of losses occurring on other Bryson House projects. The overall financial position of Bryson House was not as healthy as in previous years. The Executive Committee and Directors of Bryson House agreed that this deficit was impossible to sustain, and that corrective action needed to be taken. Indeed, it was accepted by Mr McAnoy, who gave evidence for the applicant, that this was the case.

6.	(i)	Bryson House had three options when dealing with this financial crisis. Firstly, they could seek financial assistance elsewhere. As we have seen, attempts to secure alternative finance did not succeed. Secondly, they could close the Centre down. They were reluctant to do this, but at the beginning of 2000 it looked quite possible that it would happen. Thirdly, and this was the option they chose (as evidenced by memorandum of 24 March 2000), they could change direction, and transfer Lawnbrook to the local community, with its own Management Committee, and move it towards independence within an agreed time.

	(ii)	The applicant was told of the decision to hand over Lawnbrook to the local community at a Planning meeting on 9 February 2000. She was asked to leave the meeting halfway through, and afterwards she saw Helen Todd. Mrs Todd told her that a decision had been made to hand Lawnbrook over to the local community and that she was being made redundant. The applicant at this stage became very upset and began to cry.

	(iii)	There is a dispute between the applicant and Mrs Todd as to what else was said at the meeting. According to the applicant, Mrs Todd said that she (Mrs Todd) wished that someone would give her the opportunity to stay at home and look after her children. When the applicant pointed out that her children had grown up, Mrs Todd then said that she had her mother to look after. The applicant said she was particularly upset by this remark, as her mother had dementia, and looking after her never affected the way she had done her job.

	(iv)	Mrs Todd denied making these comments. We prefer her evidence on this point. We have seen and heard her give evidence and we do not think that she is a person who would have made comments like these, even flippantly. The meeting with the applicant was a serious one, and we are satisfied that Mrs Todd approached it in that vein. The main thrust of the meeting related to the redundancy of the applicant, the package she would receive, and the possibility of re-deploying her in other roles.

	(v)	The applicant returned to work for two days after this meeting. Subsequently, she went off on sick leave, and the letter of 29 March 2000 making her redundant was received in the post.

7.	(i)	Bryson House's policy on redundancy was to make enhanced payments. There was no consultation with anyone other than the applicant, though the Human Resources Manager would have liaised to the extent that the applicant was told of any impending vacancies.

	(ii)	Subsequently, offers of other employment were made to the applicant. On 18 April 2000 she was offered a temporary part-time Family Support post covering a long term sick leave. The applicant refused this on 19 April 2000. The respondent accepts that the salary for this post was low. On 20 April she was offered a full-time post as a Family Support worker. The post did not have any managerial role. The applicant refused this on 26 April 2000. The salary was £11,000 pa, about half of what she had been earning at Lawnbrook. However, there were promotion prospects to Co-Ordinator with a salary almost equivalent to that she was on.

8.	(i)	Initially, it was contemplated that the applicant would play some role in the handover of Lawnbrook to the local community, and the hope was that she could be offered another post as soon as possible. She was off on sick leave at the time, and Helen Todd phoned her on a couple of occasions, to keep in touch and to reassure her that the respondent was doing what it could.

	(ii)	On 28 February 2000, Helen Todd had prepared a report for the Executive Committee of Bryson House entitled 'Lawnbrook Community Centre – Progress Report and Recommendations February 2000'. Among its recommendations were shifting the emphasis of Lawnbrook to one which was predominantly community development with a community development worker placed in Lawnbrook full-time, and re-deploying the current manager, as the job skills required would change from child care to community development.

9.	(i)	The Community Development Officer placed in Lawnbrook full-time was Stephen Gourley. It is the applicant's case that he, in fact, continued to do her job. It is necessary to set out the background to Mr Gourley's employment with Bryson House.

	(ii)	Mr Gourley took up employment with Bryson House on 9 August 1999. This followed on an application by Bryson House to the National Lottery Charities Board (NLCB) in August 1998. NLCB had agreed to fund a Community Development Officer for a fixed period of three years.

	(iii)	Mr Gourley was appointed to the post in accordance with requirements laid down by the NLCB, eg the job was publicly advertised, and there was a job description for the post. When he was recruited, there was a community development project being run by Bryson House in response to the needs of different local communities. It was something totally independent of what was happening at Lawnbrook. At that time Bryson House still hoped that the deficit at Lawnbrook could be managed.

	(iv)	Mr Gourley was appointed to Rathgill in Bangor and Lawnbrook as a Community Development Officer. Initially his work was mainly in North Down, though he had some involvement with Lawnbrook offering development support and assistance with youth groups. At the time of his original appointment it was not envisaged that he would be positioned at Lawnbrook in the way that he was. Before he was assigned full-time to Lawnbrook, Helen Todd contacted the NLCB by telephone to tell them of the proposed change. The NLCB were satisfied that Bryson House was continuing with community development work in accordance with the grant.

	(v)	Because Mr Gourley's community development post was funded by the NLCB, Bryson House regarded him as a free resource who could be redeployed at Lawnbrook at no cost to themselves to do some elements of the applicant's job and cover the transition to independence. They did not have the power to give someone else his post. Had the applicant remained at Lawnbrook, it is estimated that it would have cost Bryson House in the region of £40,000.00 in wages to cover the period she would have been there.

	(vi)	Mr Gourley went to Lawnbrook on 1 April 2000. (He resigned before the completion of his fixed term three year contract, and was replaced, after a process of public advertisement, by Mr McAnoy, who worked out the fixed term contract until June 2002.) While at Lawnbrook, Mr Gourley retained responsibility for Rathgill, Bangor, but that project was put on the back boiler. Bryson House did not foresee Mr Gourley, or his replacement, Mr McAnoy, finishing the fixed term contract at Lawnbrook, but that in fact happened because independence for the Centre did not take place until March 2002.

10.	(i)	It is the applicant's case that when he moved to Lawnbrook, Mr Gourley was effectively doing her job. She also alleged that he was less well qualified than she was.

	(ii)	Mr Gourley had a degree in community development. He was doing a one year certificate in community development work at the Ulster People's College, and a further course of study at The Queen's University of Belfast. His career had developed primarily in doing community development work overseas and voluntary service abroad. Mr Gourley's academic qualifications were superior to those of the applicant (to which we have referred to at paragraph 3(iv) above). His experience, which was limited and narrower, was largely overseas. The applicant's length of experience was considerably greater, and she had hands-on experience over the years. However, Mr Gourley did have previous experience of leading projects to independence, and his skills were transferable in this respect. We cannot therefore say that the applicant was demonstrably better qualified than he was. In any event, it seems to us that it was financial considerations which loomed largest here.

	(iii)	The tribunal is satisfied that when he worked at Lawnbrook, Mr Gourley was not doing the same job as the applicant had previously done, and that he did not fill the manager's post left by the applicant. Her post was not replaced.

	(iv)	When the applicant had been at Lawnbrook, it was providing services for the local community, albeit that more major activities had ceased or were being run down at the time she was made redundant. Mr Gourley was not running services. He was engaged in handing over the Centre to the local community. That task was carried on by Mr McAnoy, his successor, until the handover.

	(v)	Although some activities did continue, neither Mr Gourley nor Mr McAnoy had any responsibility for the staff who remained at Lawnbrook. Helen Todd, in Bryson House, was the line manager for these workers.

	(vi)	As far as activities at Lawnbrook while Mr Gourley was there are concerned, the applicant alleged that priority was given to the formation of a men's group, and that the tribunal should infer from this that the respondent wanted a man (Mr Gourley) at Lawnbrook. However, we are unable to accept this. The men's group was just one of the activities, and the report of February 2000 making reference to that group refers to other groups, including a young mother's group. It seems to the tribunal in any event that there was an element of fluctuation in the activities of the various groups.

11.	(i)	We are satisfied that if finance had been available at Bryson House to keep Lawnbrook open in its existing role, then Mrs McCready would have been retained in her post.

	(ii)	If Stephen Gourley's three year fixed term post had not been available as a free resource to Bryson House to call upon, then Lawnbrook would have closed.

	(iii)	It was suggested, on the applicant's behalf, that Mr Gourley should have been made redundant, and the applicant transferred to the remainder of the NLCB funded contract. However, leaving aside the fact that this might have exposed Bryson House to legal action by Mr Gourley, they did not have the power to do this. Under the NCLB conditions, they could not make Mr Gourley redundant and offer the job to someone else without going through a selection process. As noted, when Mr Gourley resigned before the expiry of the three year contract term, he was replaced by Mr McAnoy only after such a selection process, in the course of which the post was publicly advertised.

12.	(i)	The tribunal is not satisfied that the applicant received less favourable treatment on the ground of her sex. The applicant's case is that she was dismissed, and replaced by a man. However, it is clear to us that the job that she was doing at Lawnbrook was coming to an end in any event. She was offered alternative employment, but it was not open to the employer to offer her the job Mr Gourley was doing. There was a change in the way that the respondent carried on its business, and Mr Gourley was moved to Lawnbrook because he was a free resource to take the Centre to independence. The course of events which took place were dictated by financial reasons, and decisions were taken without regard to the applicant's sex. Had the position been reversed and the manager of Lawnbrook been male and the fixed term Community Development Officer on NCLB funding been female we are satisfied that the former would have been made redundant and the latter assigned to Lawnbrook.

	(ii)	Although it is possible for a woman to discriminate against a woman, there is no evidence from which the tribunal could infer that the management team, who were both women, discriminated against the applicant on the ground of her sex. On the contrary we accept that Ms Marley was genuinely sorry to see the applicant go and did not want to lose her. This does not support the applicant's contention.

	(iii)	We therefore dismiss the applicant's claim that she was unlawfully discriminated against by the respondent on the ground of her sex.

13.	(i)	As far as the applicant's complaint of unfair selection for redundancy is concerned, we have already identified the various steps taken by management to deal with the funding crisis. We are satisfied that the applicant was made redundant because of the financial situation which existed, which had led to the job which the applicant had done ceasing to exist, and that having regard to all the circumstances of this case, the respondent acted fairly.

	(ii)	The applicant was involved in a number of meetings with the respondent's management, was fully aware of the problems, and her views canvassed.

	(iii)	The respondent delayed her redundancy in order to see if there was the opportunity to redeploy her, and alternative employment was offered to her. As indicated, we do not see how Mr Gourley could have been made redundant and his post allocated to the applicant. This would have been shifting what was Bryson House's problem to the NLCB. It is difficult to see how the respondent could have acted other than it did.

	(iv)	At this stage, it is convenient to state that we do not accept that the respondent's answers to the applicant's questionnaire on the issue of redundancy were inadequate, or that any adverse inference can be drawn from them in relation to her claim of sex discrimination.

	(vi)	We are therefore satisfied that the applicant was not unfairly selected for redundancy, and dismiss that claim also.

Chairman:

Date and place of hearing: 4 – 5 November 2002, 20 November 2003,

2 December 2002, 6 – 7 October 2003 and

7 November 2003, Belfast

Date decision recorded in register and issued to parties:

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