Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REFS: 256/07

258/07

CLAIMANTS: William John McConnell

Glenn Larmour

RESPONDENT: Bombardier Aerospace/Shorts Brothers PLC

DECISION

The unanimous decision of the tribunal is that the claimants are not entitled to interim relief.

Constitution of Tribunal:

Chairman: Ms Turkington

Members: Mr Crawford

Mr McAuley

Appearances:

The claimants appeared and were represented by Mr Potter, Barrister-at-Law, instructed by Thompsons McClure, Solicitors.

The respondent appeared and was represented by Mr Brangam, Queen's Counsel, instructed by Elliott Duffy Garrett, Solicitors.

The Claims

1. The claims were claims of unfair dismissal by reason of the claimants' trade union activities and/or health and safety responsibilities.

The Issue

2. The issue to be determined by the tribunal was whether the claimants were entitled to interim relief pending determination of their complaints of unfair dismissal pursuant to Articles 163 and 164 of the Employment Rights (Northern Ireland) Order 1996 ("the Order").

Sources of Evidence

3. The tribunal did not hear oral evidence but was provided with an agreed statement of facts.
4. Counsel for the claimants, Mr Potter, sought to introduce evidence as to the history of the claimants' trade union and health and safety activities, including instances where the claimants had been at odds with management. He contended this evidence would demonstrate that, whilst there was a redundancy process, the respondent took the opportunity to dismiss the claimants for trade union/health and safety reasons. He sought to call detailed evidence in relation to the selection and marking of the claimants and conceded that this evidence would take some considerable time.
5. The tribunal considered carefully Mr Potter's submissions on this point and reached the conclusion that such evidence could only be relevant to a case involving unfair selection for redundancy on trade union and/or health and safety grounds, that is a case falling within Article 137 of the Order. Since, as set out below, interim relief is not available in such a case, the tribunal concluded that such evidence was not relevant to the issues the tribunal had to determine. Accordingly, the tribunal ruled that this evidence was not admissible on the hearing of the claimants' applications for interim relief.

Contentions of the Parties

6. Counsel for the claimants, Mr Potter, submitted that, since the Court of Appeal held the tribunal did have jurisdiction to hear the claimants' applications for interim relief, it was now a matter for the tribunal to determine what was the principal reason for dismissal in this case. Mr Potter accepted that there was a genuine redundancy situation. However, he contended that, in this case, the principal reason for the dismissal of these claimants was not redundancy, but rather the claimants' trade union activities and/or health and safety responsibilities. He submitted that the claimants had been "targeted" by the employer. It was necessary for the tribunal to consider the specific dismissal of the individual rather than the general situation.
7. The primary contention of Counsel for the respondent Mr Brangam QC was that this case fell within the scope of Article 137 of the Order as a case of alleged selection for redundancy on unlawful grounds. It was clear from Article 163 of the Order and confirmed by the judgments of the Court of Appeal in this case that interim relief is not available in cases which fall within Article 137. Mr Brangam therefore submitted that interim relief was not available in this case.

Facts of the Case

The tribunal found the following facts on the basis of the statement of facts agreed by the parties:-

8. A redundancy situation was identified by the respondent for 645 redundancies in or about the autumn of 2006.
9. The respondent sent the union advance notification of redundancies as required by statute.
10. 180 employees accepted voluntary redundancy.
11. The respondent identified 141 employees for compulsory redundancy, including the claimants Mr McConnell and Mr Larmour.
12. A total of 345 employees were dismissed in the period from 10^th February 2007 to 24^th March 2007.

Statement of Law

13. Article 163 (1) of the Order states as follows:-

"1. An employee who presents a complaint to an industrial tribunal –

(a) that he has been unfairly dismissed by his employer; and

(b) that the reason (or, if more than one, the principal reason) for the dismissal is one of those specified in Article 132(1) (a) and (b), 132A, 133 (1), 134, 134A or 136 (1) or in paragraph 161 (2) of Schedule 1A to the Trade Union and Labour Relations Order;

may apply to the tribunal for interim relief.

Article 132 (1) relates to health and safety cases. Articles 132A, 133, 134, 134A are not relevant nor is paragraph 161 (2) of Schedule 1A to the Trade Union and Labour Relations Order. Article 136 relates to trade union membership or activities. Article 137 is omitted from the list of statutory provisions set out in Article 163 (1).

14. Article 164 (1) of the Order states:-

"(1) This Article applies where, on hearing an employee's application for interim relief it appears to the tribunal to be likely that on determining the complaint to which the application relates the tribunal will find that the reason (or, if more than one, the principal reason) for his dismissal is one of those specified………"

The remainder of Article 164 sets out the detailed procedure to be followed by the tribunal where it grants interim relief.

15. Article 137(1) of the Order is headed "redundancy" and states as follows:-

"(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if-

(a) the reason (or, if more than one, the principal reason) for the dismissal is that the employee was redundant;

(b) it is shown that the circumstances constituting the redundancy applied equally to one or more other employees in the same undertaking who held a position similar to that held by the employee and who have not been dismissed by the employer; and

(c) it is shown that any of the paragraphs applies".

16. "Redundancy" is defined by Article 174 of the Order which states that :-

"(1) For the purposes of this Order an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to –

(a)…………………

(b) the fact that the requirements of that business-

(i)…………………………………….

(ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer,

have ceased or diminished or are expected to cease or diminish.

17. Following a pre-hearing review, this tribunal decided that it did have jurisdiction to consider the claimants' applications for interim relief. The tribunal was then required to state a case for the Opinion of the Court of Appeal on the question whether the tribunal was correct in law in deciding that it had jurisdiction to consider the claimants' applications for interim relief under Article 163 of the Order. The Court of Appeal, by a majority, answered this question in the affirmative and remitted these claims to the tribunal to conclude the hearing of the interim relief applications taking account of the judgments of the Court of Appeal. In the course of the judgments on the issue of jurisdiction in this case, the Court of Appeal provided guidance which this tribunal has found to be of great assistance in determining these applications for interim relief.
18. In his judgment, Campbell LJ, having set out at para 7 the definition of redundancy at Article 174 of the Order (see para……… above), made the following observations:-

"8. Where the principal reason for dismissal is redundancy within the meaning of the Order and an employee is selected for dismissal for one of the reasons specified his dismissal is to be regarded as unfair under Article 137 however, he cannot apply for interim relief under Article 163.

9. If an employee seeks to make the case that although there was redundancy the reason why he was selected and not a fellow employee for dismissal is that he is a member of an independent trades union it does not follow that this becomes the principal reason for his dismissal though he is to be regarded as unfairly dismissed. If in such circumstances it could displace redundancy as the principal reason for dismissal the employee would come within Article 136 and be regarded as unfairly dismissed. There would be no requirement for Article 137 if unfair selection could become the principal reason.

10. Should an employer decide to dismiss an employee for one of the specified reasons and create a redundancy for this purpose the principal reason for dismissal would not be redundancy and the employee would be unfairly dismissed within Article 136 (1).

11. Article 137 is intended to cover the particular situation of redundancy and once it is established that there is redundancy within the meaning of the Order and that this is the principal reason for dismissal unfair selection may make the dismissal unfair but it does not become the principal reason for dismissal."

19. Girvan LJ who agreed with Campbell LJ provided the following guidance:-

"11. The jurisdiction of the tribunal to entertain an application for interim relief is dependent on the presentation of the application within the requisite time supported by a certificate signed by an authorised official of the relevant independent trade union. The [claimants] had unarguably satisfied those pre-conditions. The application must be based on a complaint that the relevant employee has been unfairly dismissed. Clearly in this instance each of the respondents was making a complaint of unfair dismissal. Reading the claim forms fairly the respondents were alleging that the reasons or principal reasons for dismissal were either under Article 132 (1) or under Article 136 (1). Having made those cases, whether they were good or bad, they fell within the provisions of the Article and were entitled to apply for interim relief. It was then a matter for each [claimant] to persuade the tribunal that it was likely that in determining the complaint the tribunal would find that the reason for dismissal was one of those specified in Articles 132 or 136 as the case may be. Approaching the matter in this way it is apparent that the tribunal correctly concluded that it had jurisdiction to entertain the application for interim relief.

12. …..….. In fact the [respondent's] case clearly is that a significant number of persons were selected for redundancy and that this was a true Article 137 case taking the claimants' cases at their height. If the case is simply remitted to the tribunal to continue with the applications without guidance on the proper approach to Article 137 cases the matter is very likely to return to this court to deal with that issue. The claim forms in fact do point to an allegation of unfair selection of the claimants for redundancy and by necessary implication the claimants were asserting that they were picked out for redundancy because of their union activities when others not involved in trade union activities were not selected for redundancy. In fact if not in form the case stated raises the question whether a tribunal would be precluded from granting interim relief in a case of unfair selection for redundancy falling within Article 137.

13. Article 137 renders a dismissal unfair if the reason or principal reason for dismissal is redundancy but where the employee is discriminated against in terms of selection because of, for example, trade union or health and safety activities. A dismissal for redundancy can be found to be an unfair dismissal if a tribunal considers that the employer acted unreasonably in treating the redundancy as a sufficient reason to dismiss the employee having regard to the equity and substantial merits of the case. (See Article 130 (4)). There can be some overlap between (a) dismissals that are unfair having regard to Article 130(4) because of the employer holding against the employee trade union or health and safety representation activities; (b) dismissals which are unfair under Article 132(1) and Article 136; and (c) dismissals for redundancy which are unfair if the reasons are contrary to (inter alia) Articles 132(1) and 136(1).

14. For the reasons set out in paragraphs 7 to 12 of the judgment of Campbell LJ if the principal reason for dismissal is a true redundancy rather than a fabricated redundancy designed to be used as a means to dismiss a trade union activist the case would fall within Article 137 as a case of unfair selection for redundancy. I agree with Campbell LJ's analysis and conclusion that such a case would fall outwith the interim relief provisions.

15. The tribunal has not moved to the stage of considering whether the [claimants] have discharged the onus lying on them of showing that they are likely to succeed in establishing that they were dismissed for one of the inadmissible reasons. It will have to reach conclusions on that question and in doing so will have to consider the [respondent's] case that the cases fall within Article 137 and that there was a genuine redundancy situation."

Conclusions

20. It is clear from Article 163 of the Order and the judgments of the Court of Appeal that interim relief is not available in a case which falls within Article 137 of the Order. The respondent contended that this was such a case and that interim relief was therefore not available. Counsel for the claimants also accepted that it was necessary for the tribunal to determine whether, in the circumstances, the claimants were precluded from being granted interim relief. The tribunal therefore had to determine whether this was indeed an Article 137 case.
21. The tribunal considered carefully the facts found by it on the basis of the agreed statement of facts. The tribunal also took account of the concession made by the claimants' counsel that there was a genuine redundancy situation. Having done so, the tribunal was satisfied that there was indeed a genuine redundancy situation in this case which ultimately led to the dismissal of a total of 345 employees in the period between 10^th February and 24^th March 2007.
22. The tribunal sought to apply the guidance set out by the Court of Appeal in its judgments in this case. In particular, the tribunal considered paragraph 9 of the judgment of Campbell LJ (which was also endorsed by Girvan LJ) as set out at para ……….above. In that paragraph, the learned judge described a case where "[the claimants] sought to make the case that although there was redundancy the reason why [they] were selected and not a fellow employee for dismissal is that [they participated in trade union/health and safety activities]". In such a case, Campbell LJ stated that "it does not follow that [the trade union/health and safety activities] becomes the principal reason for dismissal although he will be regarded as unfairly dismissed [under Article 137]". Girvan LJ at paragraph 14 of his judgment sought to draw a distinction between a case where "the principal reason for dismissal is a true redundancy" where interim relief would not be available and, on the other hand, "a fabricated redundancy designed to be used as a mean to dismiss a trade union activist" where interim relief would be available.

23. The tribunal reviewed the facts found and the claim forms lodged by the claimants which alleged, inter alia, that "the system used by the respondent to select me for redundancy was unduly subjective and allowed the respondent to select employees for redundancy on the basis of unlawful and discriminatory considerations". Having done so, the tribunal reached the conclusion that this was clearly a case of the type described by Campbell LJ in paragraph 9 of his judgement. Further, that this was a case where there was a true redundancy as described by Girvan LJ at paragraph 14 of his judgment.

23. On the other hand, the tribunal considered it virtually inconceivable that this was a case of the type described in paragraph 10 of the judgment of Campbell LJ, that is a situation where "an employer decides to dismiss an employee for one of the specified reasons and creates a redundancy for this purpose". In such a case, the claimant may be entitled to interim relief. In this case, the respondent had initially identified the need for 645 redundancies and had ultimately identified 141 employees for compulsory redundancies. In view of the scale of the redundancies in this case, the tribunal was in no doubt that this was a case where there was genuine redundancy and the respondent had not created or fabricated a redundancy for the purpose of bringing about the dismissal of the claimants for trade union/health and safety reasons.
24. Having applied the guidance set out in the judgments of the Court of Appeal, the tribunal concluded that this was a case which falls within the scope of Article 137 of the Order, that is alleged selection for redundancy on unlawful grounds. It is clear that interim relief is not available in such a case.
25. Accordingly, the unanimous decision of the tribunal is that the claimants are not entitled to interim relief.

Chairman:

Date and place of hearing: 7^th August 2007, Belfast.

Date decision recorded in register and issued to parties: