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Cite as: [2004] NIIT 3760_01, [2004] NIIT 3760_1

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THE INDUSTRIAL TRIBUNALS

CASE REF: 3760/01

APPLICANT: Naomi Caves

RESPONDENT: Board of Governors of Campbell College

DECISION

The unanimous decision of the tribunal is that:-

The title of the respondent be amended to the Board of Governors of Campbell College.

The time limit for lodging the applicant's claim of sex discrimination be extended on the basis that it would be just and equitable to do so.

The applicant was unfairly selected for redundancy and unfairly dismissed, contrary to Article 130 of the Employment Rights (NI) Order 1996. The matter will be fixed for hearing for the assessment of damages.

The applicant was not unlawfully discriminated against on grounds of her sex, contrary to the Sex Discrimination (NI) Order 1976.

Appearances:

The applicant was represented by Ms Suzanne Bradley Barrister-at-Law instructed by Jones & Cassidy Solicitors.

The respondent was represented by Mr Robert Millar Barrister-at-Law instructed by Cleaver, Fulton and Rankin Solicitors.

ISSUES

There were two main issues for determination by the tribunal.

First, whether the applicant had been unfairly dismissed in that she had been unfairly selected for redundancy from her position as Kindergarten Teacher at Cabin Hill Preparatory School with effect from 31 August 2001.

Secondly, whether, as the applicant contended, she had been selected for redundancy on a basis which was discriminatory on the grounds of sex and that she had been unlawfully discriminated against in being selected for redundancy ahead of several male teachers who had less service than she.

As a preliminary matter the tribunal had to consider whether the sex discrimination claim as set out in Mrs Caves' application to the Industrial Tribunal had been lodged within the three-month time limit. She was aware of her selection for redundancy on 26 April 2001 and was made redundant with effect from 31 August 2001. Her claim to the tribunal was received on 21 November 2001, which was within the three-month time limit for unfair dismissal, but outside the time limit for sex discrimination. In a claim of sex discrimination the application to the Industrial Tribunal must be lodged within three months of the act complained of (Article 76, Sex Discrimination (NI) Order 1976). The tribunal decided that the claim for sex discrimination was not lodged in time but that, given that the claim of sex discrimination arose out of the same facts as the unfair dismissal claim which was lodged in time, it would be just and equitable to extend the time limit to include sex discrimination claim and the tribunal so orders.

THE FACTS

The tribunal heard evidence from the applicant, her husband, Mr Roger Rainey (her union representative) and from the Headmaster of Cabin Preparatory School, Mr Kendrick, the Headmaster of Campbell College, Dr Pollock and the Bursar, Mr Monteith and Sir John Semple the Vice Chair of the Board of Governors. The tribunal took into account all the evidence given and makes the following findings of salient facts.

Mrs Naomi Caves qualified as a teacher in 1962. Although qualified to teach throughout a primary school she was specifically trained to teach infants and had a further qualification in teaching kindergarten age children. She taught at a number of schools during her career and in 1992 she was appointed to a full-time post at Cabin Hill Preparatory School ("Cabin Hill"), the Preparatory School for Campbell College. She was initially appointed to teach the primary four class and then moved to primary one until her last year at Cabin Hill, when she taught in the kindergarten from September 2000 to June 2001. Mrs Caves was familiar with the school as her husband was a senior master at Campbell College, and she assisted him in his duties, helping with the needs of the boys in the Boarding Department.

Cabin Hill is a traditional Preparatory School, which educates boys from primary school age through to the age of thirteen. In the Spring of 2001 there were twenty-three teachers in the school. Mrs Caves taught within the kindergarten and pre-prep department, which included the kindergarten and primary one, two and three. Her Head of Department was Mrs Joy Michael. The kindergarten staff consisted of Mrs Caves and two Classroom Assistants. One of these, Mrs Wilgar, worked on a full-time basis and the other, Mrs Boyd, worked on a part-time basis.

It was agreed that numbers were falling at the school particularly in the primary sector of the school. At a meeting on 8 March 2001 the Board of Governors took a decision that one to two teachers at Cabin Hill would have to be made redundant. No notes of the detailed procedure to be followed were made, although the Board of Governors indicated that after their meeting they agreed on three of their members who would act as an Appeals panel. Again no notes of this were made at the time.

At the end of March, on the last day before the Easter holidays, the Headmaster, Mr Kendrick, told staff that it was likely that redundancies would be made and invited voluntary redundancies. He distributed copies of the agreed redundancy procedure between the Department of Education ("DENI"), the teaching unions and Campbell College to staff at that meeting, but Mrs Caves did not receive a copy of the correct redundancy procedure at that time. Her ATL Union representative at the school showed Mrs Caves the non-teaching redundancies procedure which she had, but this did not relate to teaching redundancies. This was the document which the school erroneously sent to the teaching unions. That document states at the end that the school will also apply any procedures required by DENI to teaching redundancies, but these are not set out in the document. The criteria for redundancy in that agreement are different to those used for teaching redundancies.

On 23 March Mr Kendrick wrote to the main teaching unions indicating that redundancies were likely but confirming that no decision had yet been made and they would be informed if any of their members were affected. He sent them a copy of the agreed procedure between the Unions, the Department of Education and Campbell College for non-teaching staff.

Following the Easter holidays Mrs Carroll volunteered for redundancy. Mr Kendrick, Mr Monteith, the School Bursar and Dr Pollock, the Headmaster of Campbell College met on 24 April 2001 to make the selection for redundancy. Only Mr Monteith had had some experience of compulsory redundancy in his previous employment. According to Mr Kendrick, all of the teachers within the school were considered as potential candidates for redundancy and he took the lead role in the discussion. The panel however decided to exclude certain teachers who were considered essential to the running of the school because they were department heads, subject co-ordinators, they taught subjects essential to the delivery of the National Curriculum or had boarding duties.

The procedure applied by Cabin Hill School is essentially the same as the policy agreed between DENI, the main teaching unions and Campbell College, which as a voluntary school does not fall under the direct control of the Education and Library Boards for Northern Ireland.

At paragraph 2.1 the procedure indicates that where the school proposes to dismiss as redundant any teacher, it will advise the full-time union officials of the relevant teachers' union, setting out the details of the proposed redundancy and the number of teachers it is proposed to dismiss as redundant together with the criteria to be used. The later part of that paragraph says:

"The criteria in all "last in first out" shall normally apply provided that:-

(e) it is recognised that the needs of the school are paramount; and

(f) principal posts are excluded; although the number of Vice-Principals in the school is no longer prescribed by statute, the relevant body shall consider the long term implications for the school's effectiveness of decisions to the change the number of posts of this level".

Messrs McKendrick, Monteith and Pollock decided that in considering the needs of the school that they would have to take account of the fact that Cabin Hill has a Boarding Department and they required certain staff to carry out boarding duties. Subject Co-ordinators (effectively Heads of Department) were to be excluded and those who taught subjects essential to the delivery of the National Curriculum were also to be excluded.

The notes of the meeting on 24 April were prepared by Mr Monteith and are brief. The notes in their entirety read as follows:-

"Redundancy Decision – 24.04.04

Selection Process RJIP, MIK, JM

Needs of the School considered and those Teachers considered necessary noted

Mrs Carroll voluntary

No qualified Teacher deemed necessary for Kindergarten

Of the Teachers who formed "the pool" for selection i.e. the Pre-Prep Teachers ignoring the Head of Pre-Prep Mrs Caves was selected on FIFO basis.

JM rang the following Board of Governors to discuss the selection process and of the ultimate choice (sic):-

a. Mrs J Nicholson

b. A Boyd

c. B Turtle

d. J Taggart.

Mr Taggart in particular noted that it was a shame that such a good teacher had to be selected".

This note is consistent with the letter written by Sir John Semple to Mrs Caves on 9 November 2001, which states:-

"It was decided some time ago that the Kindergarten could not financially support the cost of a fully qualified teacher – it just was not a viable option. As a result it was decided that a teacher would have to be made redundant within the Prep/Pre-Prep department of Cabin Hill and at that time we did not know who that would be. Having following the agreed Redundancy Procedure it became apparent that you were the person to be selected, not on your teaching ability, but because there was an overriding requirement to adhere to the agreed redundancy arrangements".

Both this letter and Mr Monteith's notes are inconsistent with Mr Kendrick's suggestion that the entire staff of Cabin Hill constituted the pool for redundancy.

On 26 April Mr Kendrick invited Mrs Caves to a meeting and told her at that stage that she had been selected for redundancy. Mr Monteith was also present at that meeting. Mrs Caves was advised that the school could save money by changing from a qualified teacher in kindergarten to a leader of kindergarten who would be paid at the DHSS salary rather than a teacher's salary. She was advised that there was a post available as Leader of the Kindergarten but it was suggested to her that this was not really suitable alternative employment for her. If she agreed to accept that post she would not be made redundant. It was suggested that projected numbers in the kindergarten would justify a third member of staff and that that post would be advertised in August. Mr Monteith noted that if Mrs Caves accepted her redundancy and then successfully applied for the Leader's post in August, she would be financially better off, at least initially, than if she accepted the post at this stage. Mrs Caves was very shocked at being told of her redundancy. Mr Kendrick and Mr Monteith suggested that she should speak to her union representative and think the matter over. Mrs Caves phoned her union representative that evening.

The next day Mrs Caves was handed a letter dated 26 April 2001 which advised her that she had been selected for redundancy. On Friday 27 April Mr Kendrick came to Mrs Caves' classroom and told her to attend a meeting at 2.00 pm that afternoon in his study as Mr Rainey would be in attendance and it was the only time which suited Mr Rainey. Mrs Caves arranged for her husband to attend the meeting with her; Mr Kendrick and Mr Monteith were also present.

At that meeting there was a discussion of the financial situation of the school and the drop in numbers. It was noted that it was not necessary to have a qualified teacher as Leader of Kindergarten and Mr Monteith again pointed out that he could offer Mrs Caves the job as Leader of the Kindergarten there and then, but this would not be financially attractive for her as she could not then receive any redundancy payment. There was a lengthy discussion about why Mrs Caves had been selected for redundancy. There were five male members of staff who had shorter service than Mrs Caves, namely Dr King, Mr Jemphrey, Mr Boyd, Mr Collier and Mr Styles. Mr Styles was a PE Specialist and was in charge of PE. Mr Jemphrey taught Maths within the Secondary Department and Mr Collier was Co-ordinator of RE and had boarding duties. Doctor King was a Boarding Master, taught a number of core subjects at secondary level and was actively involved in IT within the school. Mr Boyd was Special Needs Co-ordinator and this role was carried out throughout the school. Mrs Caves indicated that she could help with boarding duties, but this was not accepted. It was noted that the Headmaster had asked for help with Boarding duties on many occasions but she had never volunteered to help. There was also a discussion that Mrs Caves could have taken over any other class within the primary department of the school as a qualified primary school teacher but there was no suggestion that any other teacher should be made redundant ahead of her. At some point in these discussions, when Mrs Caves queried why she had been selected for redundancy, Mr Kendrick said that it could just as easily have been a young man with a mortgage and a young family. This left her with the impression that this was a consideration in the panel's thinking, although this was denied by Mr Kendrick.

In addition to these male members of staff who were excluded from the "pool" for redundancy, there were several female teachers who were excluded and who had less service than Mrs Caves. These were Miss Burns who was a specialist Art Teacher, Mrs Michael who was Head of the Pre-Prep Department, Mrs Rowan who was Director of Studies and had timetabling responsibilities, and Mrs Wilson who was a Specialist Music Teacher. There was no indicating that Mrs Caves disputed their retention ahead of her.

Mrs Caves and her husband had a discussion with Mr Rainey after the meeting took place. Mr Rainey, who was at that stage relatively inexperienced as a Union Representative, felt that Mrs Caves should take the redundancy package and apply for the Kindergarten Leader's post when advertised as she would be a strong candidate for it. His advice to her was that the procedure had been correctly followed. At that stage Mrs Caves believed that she would be back at Campbell College the following September as Leader of the Kindergarten.

Mrs Caves was advised the following day of the details of the financial package which would be given to her if she accepted the redundancy. On that basis and on the basis of the discussion with the Headmaster indicating that the Kindergarten Leader's post would be advertised in August and that, while no guarantees could be given, she would be a strong candidate for the post, Mrs Caves decided not to appeal her selection for redundancy.

Towards the end of June Mrs Caves was again approached by Mr Kendrick. He advised her at that stage that, contrary to expectations, the numbers for the Kindergarten had dropped and that while they might pick up over the Summer break, at that stage it looked unlikely that they would need a third person in the Kindergarten. Mr Caves was shocked and distressed at this. At this stage she asked him why the school would not at least advertise the post of Leader of the Kindergarten. He advised her that the staff who would be in post would be adequate. Mrs Boyd was about to obtain her NVQ Level III which would qualify her to take the Kindergarten as a qualified teacher was not considered necessary. Mrs Caves was extremely annoyed about this. She had helped and supported Mrs Boyd in studying for her NVQ Level III. She felt the appropriate thing to do would be to have the Kindergarten Leader's post advertised so that she and Mrs Boyd could both compete for it. Mrs Boyd is the wife of the Chairman of the Board of Governors of Campbell College.

Over the Summer, as it became apparent that the School could not justify appointing a third person to the Kindergarten, a decision had to be taken about who would be responsible for the Kindergarten. The Board of Governors initially decided that they would ask Mrs Joy Michael who was the Head of Department of the Pre-Prep Department and taught Primary three, to take overall charge of the Kindergarten. She was not happy about this and it subsequently transpired that DHSS requirements meant that the Head of Kindergarten must be in the classroom with the children. It was subsequently decided by a sub-committee of the Board (from which Mr Boyd excluded himself) that Mrs Boyd would be appointed to the post of Head of Kindergarten.

Mrs Caves was made redundant on 31 August 2001. She was subsequently not considered for opportunities for substitute teaching within the school and felt very hurt and distressed that she had been excluded from this opportunity.

UNFAIR DISMISSAL CASE

Mrs Caves was selected for redundancy under a procedure agreed between the main teaching unions and the Department of Education for Northern Irland and adopted by Campbell College as its redundancy procedure. (See paragraph 9 above). The procedure which Mrs Caves saw first, and which related to non-teaching staff, indicated a number of criteria which would be considered including skills and ability, flexibility, attendance record, length of service and early retirement. That procedure also referred to any procedures required by the Department of Education to be applied in relation to teaching staff redundancies. The principles to be applied in relation to teaching staff redundancies were set out in the Department of Education's circular, which was effectively adopted by Campbell College.

In this case the school did write to the full-time Union Officials of relevant recognised Teachers' Unions setting out details of the proposals, the number of teachers to be made redundant and the criteria to be applied as set out at paragraph 2.1 of the procedure.

Paragraph 2.1 of the procedure requires that the "last in first out" principle will normally apply provided that it is recognised that the needs of the school are paramount. In this case the panel involved decided that they should exclude from their consideration teachers who were delivering core curriculum subjects, those who were Heads of Department (or Subject Co-ordinators as they are now called) and those who were involved in boarding duties as Cabin Hill is a Preparatory School with a boarding department. It seems reasonable that the school would need qualified staff to deliver core curriculum subjects, particularly at the secondary end of the school where numbers were holding up. Nowhere however were these criteria recorded and no scoring procedure was carried out to see how various teachers might meet the needs of the school. Mr Kendrick said in evidence that he had carried out a staff audit as a timetabling exercise earlier that year, but this was unrelated to the redundancy exercise. The staff audit was not available by the time the case came to hearing. The gist of his evidence to the tribunal was that all the staff in the secondary section of the school were required to deliver the national curriculum and so they were excluded from consideration. This is at variance with Mr Monteith's notes – the only contemporaneous record of the selection meeting – which indicate that the pool for selection was effectively the Pre-Prep Department and did not even take account of the other teachers involved in the Primary School Section, let alone the secondary school teachers.

As Mrs Carroll volunteered for redundancy, this meant that there was a requirement to make only one teacher redundant within the school. There were five male teachers with less service than Mrs Caves and who might have been considered for redundancy ahead of her on the "LIFO" principle. These were Alan Jemphrey, Julian King, Damien Styles, Stephen Collier and Patrick Boyd. The reasons given by the Headmaster for excluding these individuals were as follows:-

Mr Boyd

Mr Boyd was Special Needs Educational Co-ordinator and was a Boarding House Master. It was considered the Special Needs Educational Co-ordinator was a particularly important post, which operated throughout the school. Mr Kendrick did not accept that any member of staff could do the necessary course to become a Special Educational Needs Co-ordinator. He considered Mr Boyd had a particular aptitude for this post.

Mr Collier

Mr Collier was RE Education Co-ordinator and had Boarding duties as well. Although he was not an RE Teacher by specialisation he co-ordinated the subject throughout the school. He was appointed in 1998, like Mr Boyd.

Mr Jemphrey

Mr Jemphrey was a House Master and taught maths in the Secondary Section of the School. In addition he helped prepare boys for the entrance examination which some of them did as a preliminary to transferring to Public Schools in England. Maths was clearly a core curriculum subject. Mr Jemphrey had originally been appointed at the school in 1989. He resigned in August 1992 to spend a year in Kenya and returned to the school and was appointed on a full-time basis for the second time in September 1993.

Doctor King

Doctor King, although a Classics Graduate, taught English, History and French at Secondary level and had boarding duties. In addition, and informally, he taught Information Technology and spent a certain amount of his time on ICT support, although he was not the ICT Co-ordinator. In addition he organised the Cabin Hill Website. He too was appointed in September 1998.

Mr Styles

Mr Styles was appointed full-time in September 1994. He was a PE Specialist who taught physical education throughout the Secondary School and was PE Co-ordinator.

Mrs Caves

Mrs Caves on the other hand was appointed full-time in September 1992. She did not at the time of the selection for redundancy carry out any boarding duties nor was she a Head of Department. She did however have a specialism in teaching infants and Kindergarten children.

In considering whether a selection for redundancy has been fair or unfair, the tribunal must address itself to two aspects of the process. The first is whether the decision was procedurally fair and the second is whether or not the decision was substantively fair or not. That is, is it clear that someone else should have been selected for redundancy ahead of the applicant? In so doing it is not for the tribunal to substitute its own assessment for that of the selection panel, but it must look to see whether the procedure was applied fairly and properly. There are many cases on the subject of the appropriate principles to be applied in redundancy cases. The leading decision remains that of the Employment Appeal Tribunal in Williams –v- Compair Maxim Ltd [1982] IRLR 83 which sets out the principles to be applied. As much notice as possible of intended redundancies should be given; if unions represent the workforce, they should be consulted about the redundancies and the selection criteria to be applied, which should be objective. The representations made by the unions should be considered and alternative employment considered. Individual consultation should take place once an employee has been selected for redundancy (Mugford –v- Midland Bank plc [1997] IRLR 208) and should give staff an opportunity to comment on their individual assessments. Fair consultation will involve consultation while consultations are at a formative stage; adequate information on which to respond; adequate time in which to respond and conscientious consideration by an authority of the response to consultation (R-v- British Coal Corporation and Secretary of State for Trade and Industry ex p Price [1994] IRLR 72).

In this case the selection procedure sets out that the school must notify the union where it is proposing to dismiss as redundant any teacher. The union must be advised of the specific reasons for the proposal, the number and description of teachers whom it is proposed to dismiss the number of teachers employed by the school and the criteria to be used. This must be done "in sufficient detail to allow for meaningful consultation" (paragraph 2.1 of the procedure).

In this case while the school did write to the unions on 23 March 2001 advising that redundancies would be necessary, it had not at that stage identified the individual teachers who would be affected. It was effectively a notification of potential redundancies, but nothing more.

The procedure then requires a school to consider any representations made by the teachers' Union Representatives and to reply in writing to those representations. In this case the union concerned (ATL) acknowledged the Headmaster's letter and indicated that they looked forward to hearing from him further if any of their members were affected.

The records kept by the Board of their procedures and the selection of their Appeals Panel were sparse to say the least. The panel which met on 24 April to make the selection for redundancy – Mr Kendrick, Mr Monteith and Dr Pollock – did not involve the members of the Board of Governors in the process in any way whatsoever. There appears to have been no proper assessment of the staff involved and the notes of the meeting are wholly inadequate. There was no meeting of the Governors called to consider the selection for redundancy arrived at by the panel, instead four governors (a bare quorum) were telephoned individually by Mr Monteith "to discuss the selection process and of the ultimate choice" according to his own note. There was no suggestion that there was any debate or discussion about the process used to arrive at that decision.

Paragraph 2.3 of the procedure indicates that if, after consultations with the unions, redundancies are still considered inevitable, the school is to ensure that the appropriate criteria are applied and only at this stage are the names of the teachers so selected to be forwarded in writing to the relevant recognised teachers' unions. This did not happen in this case. Mrs Caves was advised orally by Mr Kendrick of her selection for redundancy on 26 April. Mr Kendrick's evidence was that he intended to write to Roger Rainey, the ATL union representative the next day to advise him that Mrs Caves had been selected for redundancy but that Mrs Caves contacted Mr Rainey in the meantime and Mr Rainey phoned the Headmaster the following morning. At no point then was Mr Rainey advised in writing of the selection of Mrs Caves for redundancy. It is clear from the tenor of these discussions and from the letters which were given to Mrs Caves at that time that effectively the decision regarding her redundancy had been made. The letter reads at paragraph 2,

"I very much regret to inform you that the Governors have decided that you will be made redundant with effect from 31 August 2001".

This communicates the decision that Mrs Caves was to be made redundant, rather than that Mrs Caves' post had been identified for redundancy. It is considered good industrial relations practice when a person is identified for redundancy to allow that person an opportunity to respond and to consult on the redundancy. It is also considered essential to give them adequate time to respond. In Mrs Caves' case she was advised by the Headmaster and the Bursar of the decision to select her for redundancy on the afternoon of 26 April 2001. She was not at that stage given any details of the procedure which had been used or any marking system, which had been applied for the selection of the teachers for redundancy.

Mrs Caves spoke to her Union Representative that evening. The following day however was a working day and she was then requested to attend a meeting with Mr Rainey in the Headmaster's study that afternoon at 2.00 pm. This gave her very little time to consult with her Union Representative or to respond to the proposals being put forward by the School. There is some doubt as to whether she was ever given the correct procedure to be applied, although Mr Rainey did have the procedure to hand. She was not given a copy of the list of staff until the actual meeting on 27 April. Mr Kendrick and Mr Monteith considered that the meeting on 27 April with Mr Rainey, Mrs Caves and Mr Caves was effectively consultation. However to be "meaningful consultation" within the meaning of the procedure, consultation should take place before the actual decision to make a teacher redundant has been made. The letter sent to Mrs Caves by Mr Kendrick makes it clear that she had already been selected for redundancy and that there would be no going back on this decision. Mr Monteith's evidence to the tribunal, a comment which he volunteered without having been specifically questioned about it, was that there was never any doubt that Mrs Caves was selected for redundancy. The only question was whether there was any suitable alternative employment for her. When he was asked whether that decision had been made on 24 April, his reply was "yes".

This effectively indicates to the tribunal that the meeting of 27 April was a cosmetic exercise, aimed at advising Mrs Caves of her redundancy rather than allowing her the opportunity to put forward meaningful reasons why she should not be selected for redundancy. The procedure does allow an opportunity for a teacher to appeal the decision to an Appeals Panel of the Board of Governors and Mrs Caves could have availed of this procedure. However given the situation outlined to her at the meeting on 27 April, and the fact that the Kindergarten Leader's post, while not suitable alternative employment in that it was not a teaching post, was nevertheless employment, she was willing to consider this. Mrs Caves and her husband had a long association with Campbell College and lived in the grounds of the school. She was keen to maintain the association. While no actual promise of the Kindergarten Leader's post could or should be made to her at that time, it was agreed by all the witnesses that Mrs Caves would be a strong candidate for the post and that it was very likely that she would be successful in attaining the post if she applied. In the light of all of this, and in the light of the enhancement of the redundancy payment which was made by the school to Mrs Caves, the offer of redundancy together with the likelihood of re-employment as a Kindergarten Leader seemed attractive to Mrs Caves.

The procedure was however rushed and inadequate. Mrs Caves was not given a proper opportunity to consider the matter, the decision was presented to her as a fait accompli and she was not given adequate time to consult with her Union Representative. There seems to have been a considerable degree of pressure, whether actual or perceived, to have the redundancies notified to the Department of Education by 30 April so that any redundancies could actually take place by 31 August. Had this date not been met, it would not have been possible to make teachers redundant at that stage, and they would have had to carry on for a further term in the autumn at the least.

In relation to the substantive decision made to select Mrs Caves ahead of some male colleagues, the tribunal notes that it is not for it to substitute its own decision for that of a selection panel. It would be legitimate for the panel to exclude a teacher who is Head of Department or Subject Co-ordinator if they considered that role to be essential to the needs of the school. It is therefore understandable on that basis that the school chose to "ring fence" Mr Styles, the PE Teacher and also Mr Boyd, the Special Needs Co-ordinator who had a particular role in this regard. Mr Jemphrey and Dr King equally had specific responsibilities for delivery of core subjects within the curriculum at secondary level and Dr King in addition had boarding duties, which justified their exclusion from the pool. It is less easy to see why the panel chose to ring fence Mr Collier. He appears to be a Physical Education Specialist, but seems to have been excluded from consideration not because of his PE duties, but because he was a Religious Education Co-ordinator (a responsibility which could have been carried out by any teacher within the Primary School section) and because he had boarding duties. Again no consideration was given as to whether any of the teachers not then carrying out boarding duties could in fact have been re-deployed to boarding work. Mrs Caves certainly indicated her willingness to undertake boarding duties at her meetings with Mr Kendrick.

All of that said, it is clear from the figures produced by the school that the fall in numbers at Cabin Hill was mainly within the Pre-Preparatory and Preparatory Departments i.e. the Kindergarten and Primary section of the School. It is arguable therefore that this was the end of the school where a reduction in staff was required, rather than in the secondary department where, according to Mr Kendrick, all of the teachers were fully employed. It may be that the net result, even if the procedures had been fairly applied, would have been the same in that Mrs Caves would have been selected for redundancy. However the manner in which this was done, the fact that procedure was not followed correctly and that it was rushed so that Mrs Caves felt that she did not have a proper opportunity to respond all indicate that Mrs Caves was unfairly selected for redundancy and the tribunal so finds.

The distress felt by Mrs Caves was compounded by the news at the end of June that there would not after all be a third staff member required for the kindergarten. At that stage it would still have been open for the Board of Governors to invite Mrs Caves, who was still a member of staff, to accept the offer of alternative employment as Kindergarten Leader and avoid her redundancy. This would have resulted in one of the classroom assistants being made redundant, but it was not even considered.

SEX DISCRIMINATION

Mrs Caves alleged that she had been discriminated against on the grounds of her sex when she was selected for redundancy in that male teachers with less service than she were retained while she was made redundant. The applicant alleges that she has suffered unlawful direct discrimination on the grounds of her sex. The relevant legislation is Article 3 of the Sex Discrimination (Northern Ireland) Order 1976 (as amended) which reads as follows:-

"3(1) In any circumstances relevant for the purposes of any provision of this order, other than the provision to which paragraph (2) applies, a person discriminates against a woman if:-

(a) on the ground of her sex he treats her less favourably than he treats or would treat a man, or

(b) he applies to her a requirement or condition which he applies or would apply to a man but:-

(i) which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it;

(ii) which he cannot show to be justifiable irrespective of the sex whom it is applied, and

(iii) which is to her detriment because she cannot comply with it.

3(2) In any circumstances relevant for the purposes of a provision to which this paragraph applies a person discriminates against a woman if:-

(a) on the ground of her sex he treats her less favourably than he treats or would treat a man, or

(b) he applies to her a provision, criteria or practice which he applies or would apply equally to men but:-

(i) which is such that it would be to the detriment of a considerably larger proportion of women than men;

(ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied;

(iii) which is to her detriment".

In this case the applicant's allegation is that men with less service than her were retained while she was selected for redundancy. She maintains that the criteria which were applied by the Board of Governors in selecting her redundancy were flawed. Miss Bradley for the applicant referred to the case of Williams –v- Compair Maxim Ltd. [1982] IRLR 83, where the Employment Appeal Tribunal set out the appropriate principles to be followed in redundancies and pointed out that an agreement in relation to criteria had to be objectively justified. It was not a matter of making someone redundant on the basis of a personal whim. Effectively the applicant maintained that the procedures applied were in themselves discriminatory and there was no proper weighting or marking system to assess how each member of staff performed against each criteria and it was therefore impossible to assess if the criteria were fairly applied. The respondent on the other hand maintained that there was no evidence of sex discrimination. They pointed out that the case must be that the criteria for redundancy were applied in a way which was less favourable to the applicant. They maintained that the comparators nominated by the applicant were not comparators either in law or fact. The correct comparator for the applicant to adopt would be a male in her situation and to consider whether he would have been treated differently to the applicant. She must show that the hypothetical male would have been treated differently and that effectively her selection for redundancy was the result of a sham exercise.

The tribunal has considered this matter carefully. They are persuaded that the correct comparator for the applicant in this case would have been a male, qualified Primary School teacher with particular experience in teaching infants, who was not a Head of Department or Subject Co-ordinator within Cabin Hill and who did not have boarding duties. If one applies these criteria it is not in the tribunal's view possible for the applicant to show that a male in the same situation as her would have been treated differently.

The criteria adopted by the Board of Governors were objective criteria. They looked at the needs of the school, bearing in mind that it had a boarding department and therefore needed teachers willing to undertake boarding duties. Although Mrs Caves said when selected for redundancy that she would have undertaken boarding duties, she was not involved in boarding duties at the time. Heads of Department were retained as were specialist secondary teachers because of curriculum requirements. All other teachers fell within the pool for redundancy. This meant that as well as the male teachers already referred to, Miss Burns the art teacher, Mrs Joy Michael who was Head of the Pre-Prep Department and was appointed in September 1996, Mrs Hazel Rowan who was the Director of Studies including timetable and was appointed in September 1995 and Mrs Gillian Wilson was Head of Department for the Music Department were all retained ahead of Mrs Caves.

The tribunal has also considered, for the sake of completeness whether or not the applicant was discriminated against indirectly on the grounds of her sex. They take the view that the applicant did not suffer indirect discrimination on the grounds of her sex. Other female Teachers with less service than her, but who met the criteria for exclusion from the pool i.e. they were Head of Department or subject Specialists (such as Miss Burns, Mrs Michael, Mrs Rowan and Mrs Wilson) were excluded from the pool. The tribunal is not persuaded that the conditions applied by the selection panel had a sufficiently adverse impact on women to establish indirect discrimination. The tribunal is therefore not persuaded that the applicant was discriminated against on the grounds of her sex.

CONCLUSIONS

It is the finding of the tribunal that the applicant was unfairly dismissed, but that she was not unlawfully discriminated against on grounds of her sex. The finding of the tribunal is that the procedures, were applied by the school, were not properly or fairly applied. The time frame given to Mrs Caves to consider her position, to take advice and to consult with her Union was wholly inadequate. The manner of the Board of Governors in conducting their procedures was also quite inadequate. Virtually no notes which were taken. Those notes which were taken of the selection meeting gave no reflection of the type of detailed discussion which the selection panel maintained took place. Indeed, in reading those notes it would be quite possible for a tribunal to draw the conclusion that the discussion centred around "losing a Teacher in the Kindergarten which did not require a qualified Teacher". It is tempting to think that the criteria adopted by the school were not systematically or properly applied at all.

Mr Kendrick made reference in his evidence to one of the teachers being a "gifted amateur". Amateurism has no place in modern industrial relations. The school's manner of dealing with Mrs Caves was peremptory and cack-handed. Certainly her Union Representative was aware of 30 April deadline for notifying redundancies to the Department of Education. It is quite possible that his inexperience contributed to Mrs Cave's feeling rushed into a decision.

However in the tribunal's view a reasonable employer in this situation would have allowed Mrs Caves some time to think over the options put to her before pressing her for a decision. It is also clear from the tone of the correspondence and from the evidence given by Mr Monteith and by the other panel members that in fact by 26 April a decision had already been taken that Mrs Caves was to be the person selected for redundancy. The meeting with her and her Union Representative was therefore really to notify her of that fact and not to have any meaningful consultation with her regarding the possibilities of re-deployment or alternative work. This is not the same position as that where a business closes. The "business" at Cabin Hill School was to continue. The tribunal agrees and there was no dispute between the parties, that a redundancy situation existed. However there was still a need for qualified teachers within the School although not a need for qualified teachers within the Kindergarten. It did not automatically follow that the teacher to be selected for redundancy should be Mrs Caves. The Governors appear to have given very little consideration to the possibility of re-organising or re-structuring staff within the primary part of the school to allow Mrs Caves to be retained.

The sequence of events which resulted in the Head of Kindergarten's post being given to Mrs Boyd was also poorly handled. The Board of Governors was aware that making such an experienced teacher as Mrs Caves redundant was likely to cause some concern amongst parents of pupils at the school. Mr Kendrick had effectively given Mrs Caves an indication that there would be a third post, specifically referred to as that of "Kindergarten Leader" for the Kindergarten and that this post would be advertised in August. He then advised her at the end of June that numbers were not sufficient to justify a third appointment and that therefore the post of Kindergarten Leader would not be advertised. Mrs Boyd had just recently obtained the necessary qualification to a Kindergarten Leader and so it was not necessary to advertise. Mrs Boyd had previously been a part-time Classroom Assistant in the Kindergarten and as such had been supervised by Mrs Caves. Effectively Mrs Boyd was being "slotted in" to a full-time post without any open competition whatsoever. Mrs Caves, quite justifiably, was indignant that the Head of Kindergarten's post was not to be advertised. This led to a suspicion of nepotism on Mrs Caves' part, which is not wholly answered by the fact that Mr Boyd was not directly involved in the events leading up to Mrs Boyd's appointment.

The Governors intended to appoint Mrs Michael to supervise the Kindergarten. It seems strange, in light of the fact that the Kindergarten had been operating at Cabin Hill for some years prior to this, that the school was not already aware of DHSS requirements that the Kindergarten Leader must be present in the classroom with the children. From the outset therefore the proposal that Mrs Michael supervise the Kindergarten was completely unworkable.

There were no proper procedures applied and no proper competition held for the post of Kindergarten Leader. If at the end of June, it had been recognised that a Kindergarten Leader was required and the post advertised, both Mrs Boyd and Mrs Caves would have had an opportunity to apply and compete for the post on a level playing field. This would have been a proper and fair way to deal with the matter.

The hearing will be reconvened for submissions on damages and the tribunal directs the parties that they shall address the following issues:-

(a) The loss of earnings sustained by Mrs Caves both up to the date of hearing and future loss.

(b) The impact of the redundancy on Mrs Caves' pension entitlement (if any),

(c) The amount received by Mrs Caves both in terms of pension and of earnings from the date of her redundancy.

(d) The impact (if any) of the enhanced redundancy package received by Mrs Caves on the aware to be made by the tribunal.

(e) Any other heads of damage which the tribunal should take into account in making its award.

Chairman:

Dates and place of hearing: 5, 6 7 November 2003, 6, 7 8 January 2004 and 20, 21, 22, 23 April

2004, Belfast.

Date decision recorded in register and issued to parties: