Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 2412/06

CLAIMANT: Paula McCaffrey

RESPONDENT: Fold Housing Association

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed by the respondent and that the respondent did not act in breach of contract.

Constitution of Tribunal:

Chairman: Ms Knight

Members: Ms Kennedy

Mr Gray

Appearances:

The claimant was represented by Mr P Boomer, NIPSA.

The respondent was represented by Mr G Grainger Barrister-at-Law, instructed by Elliott Duffy Garrett Solicitors.

Issues

1. At the outset of the hearing the parties agreed that the issues to be determined by the tribunal were whether the respondent unfairly dismissed the claimant and acted in breach of contract by failing to consult with her and by failing to offer her suitable alternative employment.
2. The parties agreed at the outset that the reason for the claimant's dismissal was redundancy and that there was no issue of unfair selection.
3. The tribunal considered the oral evidence of Ms Eileen Askham, Mr Kevin McSorley, Mr Trevor Dillon and Ms Eileen Patterson, the respondent's witnesses and Ms Paula McCaffrey, the claimant. The tribunal also considered an agreed bundle of documentation.

Findings of Fact

4. The tribunal found the following relevant facts to be proved on a balance of probabilities:
5. The respondent is a charitable association which provides a range of housing care and support services, including sheltered and special needs housing services, a "staying put" service and the Telecare service, which provides a "24/7"alarm service to enable clients in sheltered accommodation to obtain assistance via staff in a call centre.
6. The claimant was employed by the respondent as Team Leader in its Telecare Department from 15^th November 1993 until the effective termination of her employment by the respondent on 12^th September 2006. Her line manager was Mr Kevin McSorley, Executive Director of Telecare. The claimant worked in the Telecare department from its inception and throughout its development and growth period. She was fully familiar with the operation of the system and all the products offered to clients. She knew and liaised with key customers in the Telecare business. Her role was to manage the day-to-day operation of Telecare, leading and developing the Telecare team and enabling the delivery of services to customers and clients. She accepted that her role included the promotion of the Telecare services to customers and clients. The claimant was regarded by the respondent as a valued member of staff.
7. Telecare was initially a project known as Careline and was managed jointly with Help the Aged. The respondent took over the running of the business, but lost a lot of contacts with the departure of Help the Aged. The service did not grow as quickly as had been anticipated and was in deficit. The respondent decided to restructure the service and develop other services into the community by employing Telecare Sales Consultants. The sales consultants were to be responsible for sales and marketing but this did not involve "cold calling" of new customers. During this process it was identified that the claimant's post was redundant. It was decided to offer the claimant the role of Telecare Sales Consultant in order to avoid her being made redundant. It was intended that the restructuring would be completed by 1^st July 2006.
8. On 3^rd May 2006 the respondent wrote to Mr Philip Boomer of NIPSA, the claimant's trade union representative, advising of the proposed restructuring of the Telecare Department for financial and business reasons and that it was intended to make the claimant's post and the claimant redundant. The respondent stated its intention to avoid a redundancy situation by offering suitable alternative employment in consultation with the claimant. The respondent further indicated that it would be meeting with all Telecare staff on 4^th May 2006 to discuss the changes and the impact this would have on the department.
9. The following day Mr McSorley and Mrs Eileen Askham, Director of Care Services, met with staff both in groups and individually and explained with the assistance of a PowerPoint presentation, the reasons for the restructuring, the difficulties of and the plans put in place for securing and making viable the Telecare services and what this would mean for each individual of the 39 members of staff affected in Telecare. They met with the claimant to discuss the proposed restructuring and explained to her that the post of Team Leader was to be made redundant. Mrs Askham and Mr McSorley were unable to explain their proposals to avoid her redundancy because the claimant became upset and was unable to continue with the meeting. However following this meeting, the Human Resources manager wrote to the claimant to advise that there were a number of posts deemed to be suitable alternative employment for her, taking into consideration the claimant's qualifications, skills and experience and to invite her to attend a further meeting with Ms Askham and Mr McSorley on 11^th May 2006. The claimant was advised of her right to be accompanied by her trade union representative.
10. In the event the meeting took place on 17^th May 2006. Prior to that date the respondent sent information to the claimant on all posts then vacant within Fold Housing Association. There were 8 or 9 posts including domestic assistant, care assistant, Telecare Sales Consultant, Director of Development and Development officer post. The position of Development Officer had already been externally advertised by the respondent on 5^th May 2006 seeking applicants with "a minimum of 2 A levels and 2 years experience in the Housing/Property Development or Management sector OR 5 years experience in the Housing/Property Development or Management sector". In addition candidates were required to demonstrate that they possessed other skills including "a comprehensive knowledge of the building/development process".
11. The claimant was "quite pleased" and "felt heartened" when she saw the position of Development Officer. Eighteen months previously she had applied for a secondment to the position of Development Officer in the respondent's Development Department in order "to broaden her knowledge and skills". She was interviewed for the position and was notified by letter dated 8^th February 2005 that she was unsuccessful. It was the claimant's case that although she was not appointed, she subsequently received positive feedback and was verbally informed that she was the reserve candidate. On this basis, the claimant considered the post of Development Officer to be the most suitable position for her. The claimant was not interested in any of the other vacant positions.
12. The claimant attended the meeting on 17^th May 2006 accompanied by Mr Boomer of NIPSA. Mrs Askham, Mr McSorley and Ms Sarah Bickerstaff, the Human Resources Manager were present for the respondent. The purpose of this meeting was to discuss the options available to the claimant and to get feedback from her. Mrs Askham told the claimant that the respondent considered the post of Telecare Sales Consultant was the most suitable post for her given her experience and background in Telecare.
13. The claimant and her representative disagreed and told Mrs Askham that the claimant considered the post of Development Officer to be more suitable and that she should be considered for this post. The claimant explained that she had applied for the secondment role referred to above and felt that she met "more than 50% of the criteria in the person specification for the post". She felt that in her current role as Team Leader she had acquired project management, business development and extensive people skills and that she met the property management criterion because she had successfully developed the Telecare helpline, had been sitting on sub committees of the housing and development groups and had worked on projects as a consultant and had given advice. She asserted that she had been nominated reserve candidate for the secondment post and that this demonstrated her suitability for appointment to the current position. The claimant stated that she did not want the post of Telecare Sales Consultant as she had no experience in sales. Her expressed preference was to be offered the Development Officer post.
14. Mrs Askham told the claimant that the position of Telecare Sales Consultant would be offered on terms and conditions personal to holder due to the circumstances surrounding the redundancy and the claimant's skills knowledge and experience in Telecare. However she advised that if the respondent agreed to offer the Development Officer post, it would not be on a personal to holder basis as there were currently other experienced Development Officers who were on a lower scale to the claimant. Mr Boomer rejected this as a valid argument for not offering that position to the claimant. The claimant believed that this was because the respondent wished to make the Development Officer post unattractive to her.
15. At the end of the meeting Mrs Askham confirmed that the claimant's request would be considered and the respondent's position clarified to her in writing.
16. On 25^th May 2006, Mrs Askham and Ms Bickerstaff met with Ms Anita Conway, the then Director of Development, in order to clarify the position relating to the secondment post in 2005. Ms Conway did not attend at the tribunal hearing to give evidence as she has since left the employment of the respondent. The minutes of this meeting were available to the tribunal. It was not disputed and the tribunal is satisfied that the minutes accurately reflect the advices and information given by Ms Conway. Ms Conway told Mrs Askham and Ms Bickerstaff that when the vacancy had arisen for a Development Officer in 2005, she had decided to fill the post by way of secondment to offer a personal development opportunity for any Fold employee. The post was advertised internally with the criteria that candidates should have 2 A levels AND 2 years experience in the Housing/Property or construction sector OR 5 years experience in the Housing/Property or construction sector. Experience was broadly defined for the purposes of the secondment as "anyone working within Fold and therefore would have experience in working in a Housing Association".
17. On this occasion four people, including the claimant, had applied, all of whom were invited to interview. Ms Conway advised that none of the unsuccessful candidates were made reserve candidate. All three were given constructive feedback, including the claimant. Ms Conway said that she may have used the term "second" to the claimant but that she didn't feel that she would have used the term "reserve". The tribunal was urged by Mr Boomer to draw an inference from the fact that Ms Conway was not called to give oral evidence to the tribunal. However having considered the documentary evidence, in particular the letter sent to the claimant on 8^th February 2005, which simply states that she had been unsuccessful, the tribunal is satisfied on a balance of probabilities, that the claimant was neither made nor informed that she had been made the reserve candidate. We are of the view that if she had been made reserve candidate, it would have been confirmed in correspondence sent to her following the interview. It was indicated by Ms Conway that she did not intend to repeat the secondment as a way of filling vacancies in the future and planned externally to advertise the vacancy created when the seconded post came to an end in 2007.
18. Ms Conway further advised that she had decided to change the essential criteria for the current vacancy of Development Officer to specify that candidates should have Housing Management, Development management and construction Project Management knowledge and skills. This was due to various factors affecting the Development Department around May 2006 which included staffing issues (she herself was leaving Fold to take up other employment; a new administrative assistant had just been appointed; one Development officer was still learning on secondment), significant organisational change, the complexity of development schemes and the lack of training resources in the Development department. She assessed that anyone appointed to the Development Officer post would have to be able to "hit the ground running" and that the department could not carry anyone for 3-4 months to allow them to shadow another development officer. Her view was that awarding the position on a personal to holder basis could cause problems to the departmental budget.
19. At the tribunal hearing the claimant accepted that she did not have the skills and experience required for the post of Development Officer which arose in May 2006.
20. Following consultation with Ms Conway, Mrs Askham wrote to the claimant on 1^st June 2006 to confirm that the post of Telecare Sales Consultant was being offered to the claimant on her existing salary point as it was considered that her existing skills and experience were "readily transferable" to that post subject to a small element of training that would be provided to her by the respondent. The claimant was advised that following consultation with the Director of Development and an examination of the skills, abilities and experience required for the post, it was considered that her existing and previous skills and experience did not suggest that the post of Development Officer was suitable alternative employment. The claimant was requested to reconsider the post of Telecare Sales Consultant and to advise by 9^th June whether she intended to accept the offer. She was notified that if she rejected this post that she would be placed on notice in accordance with the terms and conditions of employment and that her employment with the respondent would be terminated by reason of redundancy. She was notified of her right to appeal against this decision if she felt it was unjust or unfair.
21. On 7^th June 2006 Mrs Askham wrote to the claimant to advise that a further vacancy of Senior Care Worker had arisen at Loughview in Holywood and that the respondent was prepared to offer this as suitable alternative employment on personal to holder terms. Mrs Askham advised that it was considered that the claimant's skills, qualifications and previous experience matched the requirements of this post. Mrs Askham told the tribunal that this was because she was aware that the claimant had worked as a nurse before her employment with Fold. The job description was sent to the claimant and the summary of duties included 'sleep in' duties". Mrs Askham informed the tribunal that in this regard the job description was incorrect as the post holder would not in fact be required to undertake sleep in duties. The respondent was unaware that the information which it sent to the claimant about this job was incorrect, until after the claimant had left its employment.
22. The claimant reviewed the job description of this post but did not regard it as suitable alternative employment. She had given up her nursing background over 12 years before as she wished to take up a new challenge. She gave up her nursing registration when she took up employment with Fold. She felt that she did not have relevant up to date experience to perform the duties of the post and she did not wish to return to an earlier career path. Furthermore the sleep in duties presented a problem for her because she is a single parent. The claimant did not request any further information or clarification of the duties of the post from the respondent.
23. On 15^th June 2006, the claimant wrote to Mrs Askham rejecting both the Senior Care worker and the Telecare sales consultant posts. She reiterated her view that she should be offered the Development Officer post and that "the continued withholding of this post will invariably result in unfair selection leading to unfair dismissal". Mrs Askham responded by letter of 16^th June confirming that the Development Officer post would not be offered to the claimant and placing her on notice of the termination of her employment as from 19^th June 2006. She was advised of her right to appeal against this decision.
24. On 19^th and 26^th June the respondent wrote to the claimant advising her as to her entitlement to a redundancy payment, holiday pay and pay in lieu of notice. A reminder was then sent to the claimant on 30^th June about her right to appeal and the claimant wrote to the respondent on 5^th July advising of her intention to appeal.
25. An appeal hearing was arranged for 23^rd August and was conducted by Mr Trevor Dillon, Director of Finance and Mrs Eileen Patterson, Director of Housing. The claimant was accompanied at the appeal hearing by Mr Boomer. The claimant conceded that the appeal hearing was fairly conducted and that the minutes accurately reflected the hearing except that Mr Boomer had not stated that the claimant met all the criteria for the Development Officer post but that he had said that she met some of the criteria. The grounds for appeal advanced on behalf of the claimant were essentially that Fold had failed to offer her suitable alternative employment by reason of the failure to offer her the Development Officer post and in offering her the Telecare Sales Consultant and the Senior Care Worker posts and that there had been no initial consultation with the union or with members of staff likely to be affected by the restructuring. In addition Mr Boomer made the case that there were deficiencies in the redundancy procedure because there had been no consideration given to offering the claimant the post of Development Officer on a trial basis or to give her training for this post and therefore that the dismissal was unlawful.
26. Following the appeal hearing, Mr Dillon and Ms Patterson sought advice from the Human Resources Department as to the consultation requirements involved in a redundancy process and the process followed in the present case. The panel did not speak to anybody else. The appeal panel reached its decision on the basis of a review of the documentation, including the notes of the interview between Mrs Askham and Ms Conway. The appeal panel's findings are set out and were notified to the claimant in a letter dated 31^st August 2006.
27. In relation to the failure to offer the claimant the post of Development Officer the panel formed the view that the previous secondment exercise was irrelevant because the claimant's application for secondment had been unsuccessful and that the term "reserve" had not been used. The appeal panel accepted the decision of the Director of Development that it was necessary to fill the post in an external process to ensure a satisfactory pool of applicants with the required level of knowledge and skills. The panel indicated that it was satisfied that serious and detailed consideration had been given to the claimant's suitability for the post. While it was recognised that the claimant had built up considerable knowledge and skills during her employment with Fold the panel accepted that her skills in the core functions of development management, property/construction management and housing management did not meet the standards set by the job specification. Therefore the appeals panel rejected the claimant's view that the post of Development Officer represented suitable alternative employment and was satisfied that the respondent had taken reasonable steps to find suitable alternative employment.
28. The appeal panel further rejected the claimant's appeal on the ground that the respondent had failed to follow a proper consultation process on the basis that the respondent had followed the LRA Code of Practice in writing to NIPSA on 3^rd May and meeting individually with all employees affected, including the claimant to advise of the proposals and in meeting with the claimant on 17^th May to discuss the possibility of suitable alternative employment. Therefore the appeals panel confirmed the original decision to terminate the claimant's employment by reason of redundancy.
29. The claimant told the tribunal that she was extremely distressed that the respondent had not offered her the position of Development Officer and did not wish to work her notice period. The respondent agreed to her request that she be permitted by the respondent to leave her employment before the end of her notice period.
30. The claimant lodged her complaint of unfair dismissal with the Office of the Industrial Tribunals and the Fair Employment Tribunal on 19^th October 2006.

THE LAW

31. Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides:

130.—(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—

(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this paragraph if it—

(c) is that the employee was redundant,….

(4) Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.

32. The tribunal was referred to and considered the following case law: Langston v Cranfield University 1998 IRLR 172; Williams v Compair Maxam 1982 IRLR 83 ; Rowell v Hubbard Group Services Limited 1995 IRLR 195; R v British Coal Corpn and Secretary of State for Trade and Industry ex parte Price 1994 IRLR 72; Quinton Hazell Limited v Earl 1976 IRLR 296; Mahmud v Bank of Credit and Commerce International SA 1997 IRLR 462; Iceland Frozen Foods Limited v Jones 1983 ICR17,Neill v Hereford and Worcester County Council 1986 IRLR 168; Duffy v Yeomans and Partners Ltd 1994 IRLR 642 Hudson v George Harrison Ltd (2002) UKEAT/2002/0571;Fisher v Hoopoe Finance Ltd (2005) EAT) UKEAT/2005/0043.
33. The tribunal took into account the Labour Relations Agency Code of Practice on Redundancy and Consultation Procedures. Section 1 of the Code deals with statutory redundancy consultation and good employment practice. This provides that the statutory duty to consult arises only at the stage where an employer has formulated a specific proposal to dismiss employees as redundant. Where the statutory duty does not apply, as in this case, it is good employment practice to consult appropriate representatives regardless of the number of redundancies or the time period involved and to consult with individual employees about the impending redundancies before dismissals take place about matters including: selection of employees for redundancy; arrangements for travel, removal and related expenses where work is offered in a different location; whether an employee may leave during the notice period without losing statutory redundancy entitlement; any extension of the statutory trial period and so on.
34. Section 2 of the Code deals with redundancy procedures including possible measures for avoiding compulsory redundancies by for example the use of retraining and redeployment. Paragraph 37 provides that "employers should consider whether employees likely to be affected should be offered suitable alternative work and provides that the employee should be given sufficient details to enable him or her to decide whether to accept or not. Any offer should be put to the employee even where the employer believes that it will be rejected by the employee.

Conclusions

35. The claimant accepted that she had been dismissed by reason of redundancy and did not assert that there was any other reason for her dismissal. Therefore the tribunal is satisfied that the respondent has established that the reason for the dismissal falls within Article 130(2)(c) of the 1996 Order. The tribunal therefore had to determine whether the dismissal was fair or unfair within the meaning of Article 130(4).
36. The tribunal considered first the issue of whether the claimant had been offered suitable alternative employment. The test of what is suitable alternative employment is partly subjective as the individual's personal circumstances are crucial to the employee's decision to refuse an offer of alternative employment. It has to be judged by looking at it from his/her perspective, on the basis of the facts as they appeared at the time the decision was made. The objective factors to be taken into consideration include pay, loss of status, loss of fringe benefits, place of work, general terms and conditions, job prospects and job content. It is incumbent on an employer to make known to the employee the factors set out above to allow them to make an informed decision as to whether to accept alternative employment or not.
37. The tribunal did not consider that the post of Senior Care Worker was suitable alternative employment for the claimant in view of the considerable lapse of time since the claimant had worked as a nurse and because the information provided by the respondent incorrectly stated that the position required the claimant to carry out sleep in duties. The tribunal considers that the claimant was entitled to rely on the information which was given to her by the respondent about the duties of the post which included the sleep in duties. However the tribunal is of the view that the fact that the respondent offered the claimant this position is indicative that they were genuine in their wish to retain her services.
38. The tribunal was satisfied that the respondent did offer the claimant suitable alternative employment when it offered her the post of Telecare Sales Consultant. The claimant's objection to this post was on the basis that she did not have relevant experience in sales and marketing. The tribunal took into account that this position was offered to her on a personal to holder basis and that she was offered training in relation to the marketing and sales aspects of the post. The tribunal accepted that this position closely matched her previous post and the sales and marketing role would not involve the claimant in cold calling. The tribunal was satisfied that the claimant was suitably qualified and had relevant experience for this role.
39. The tribunal did not consider that the position of Development Officer was suitable alternative employment for the claimant. The tribunal did not accept that the claimant had been nominated as the reserve candidate in the secondment exercise. However even if she had been so nominated, the tribunal was satisfied that this would not have automatically demonstrated that she possessed the experience required for the vacancy which arose in May 2006. The claimant conceded in her evidence that she did not have the skills and experience in property management and development necessary for the post and that she would require further training. The tribunal accepted that the respondent had a genuine and pressing business need to appoint someone to this position who already possessed the necessary qualifications, skills and experience. In reaching this conclusion the tribunal took into account that the respondent had already advertised the position specifying essential criteria and the job description set out the main tasks of the position from which it can be ascertained that specialist and technical knowledge of the building and development processes is required. Nevertheless the respondent did not reject the claimant's request out of hand but sought further information from the Director of Development as to whether this would be a viable option. The tribunal is satisfied that the respondent was entitled to rely on the information given by the Director of Development in concluding that it was not possible for the position to be offered to the claimant given the prevailing conditions at that time.
40. The tribunal did not accept the argument advanced on behalf of the claimant that the respondent should have offered the claimant on a trial basis the post of Development Officer to gauge whether she was in fact capable of performing the duties of the post. The 1996 Order provides for a statutory trial period for an employee to work in an alternative job for four weeks at the end of which period the employee may decide to leave his or her employment without losing the right to redundancy pay, which the tribunal considers is for an entirely different purpose.
41. The tribunal then considered whether the respondent had failed properly to consult with the claimant and her trade union representative. In this case, the claimant did not complain at any stage either that this was not a true redundancy situation or that she had been unfairly selected for redundancy and that someone else should have been dismissed instead of her. It was not the claimant's case that had she been consulted at an earlier stage, she might not have been selected for redundancy. Therefore the tribunal concludes that relevant consultation in this case was in relation to possibilities of avoiding the claimant being made redundant. The tribunal considers that the respondent did contact both the claimant and her trade union representative to engage in a meaningful consultation process about ways in which her dismissal could be avoided. The tribunal is therefore satisfied that the respondent in this case did adhere to good practice set out in the Labour Relations Agency Code of Practice and that the respondent carried out a proper consultation with the claimant and her trade union representative about those matters. The tribunal considered that the claimant at an early stage had made up her mind that she would not accept any position other than the Development Officer post and in this way did not herself fully engage in the consultation process.
42. The tribunal is satisfied that in all the circumstances the respondent has not acted in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee and cannot therefore be said to have acted in breach of contract in the process leading to the claimant's dismissal for redundancy.
43. The tribunal was mindful that its role is to determine whether in the particular circumstances of this case, the decision of the respondent to dismiss the claimant fell within the band of reasonable responses which a reasonable employer might have adopted and not simply to substitute its own view of what the reasonable course of action might have been.
44. Having offered, following consultation with the claimant, suitable alternative employment, which was rejected by her, the tribunal concludes that the respondent's action in dismissing the claimant for redundancy does fall within the band of reasonable responses. Therefore the tribunal is satisfied that the respondent acted fairly in all the circumstances of this case and does not find the claimant's complaint of unfair dismissal to be well founded.

Chairman:

Date and place of hearing: 20^th September 2007 and 5^th October 2007, Belfast.

Date decision recorded in register and issued to parties: