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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Kennedy v H & T Bellas Ltd [2008] NIIT 103_08IT (04 December 2008)
URL: http://www.bailii.org/nie/cases/NIIT/2008/00103.html
Cite as: [2008] NIIT 103_08IT, [2008] NIIT 103_8IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 103/08
CLAIMANT: Colin Kennedy
RESPONDENT: H & T Bellas Ltd
DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent by reason of unfair selection for redundancy, and the respondent is ordered to pay to the claimant the sum of £8,283.46.
Constitution of Tribunal:
Chairman: Mr T Browne
Members: Mr G Hunter
Mr Smyth
Appearances:
The claimant appeared and represented himself.
The respondent was represented by Mr Sheridan, of Peninsula Business Services Ltd.
ISSUE
1. The tribunal had to determine whether the claimant had been unfairly dismissed by the respondent in being selected for redundancy.
FINDINGS OF FACT
2. In reaching its findings of fact, the tribunal has had regard to the written materials before it and to the evidence and submissions of and on behalf of both parties.
3. It was accepted from the outset by the respondent that it had dismissed the claimant in October 2007, contending from the outset that it had done so on the ground of redundancy. Redundancy is a potentially fair reason for dismissal.
4. The claimant worked as a counter assistant at the respondent’s wood mill, and had been employed there in that capacity since February 2004.
5. The tribunal found that the issue of his potential redundancy was raised for the first time with the claimant on 11 October 2007, the day of his return from a prolonged period of some three months’ sickness absence due to his diabetes. He and his only colleague on the sales counter, Mr David Shirley, were called to an afternoon meeting with Mr Hugh Clements, the joint managing director of the respondent firm.
6. At that meeting, both men were informed that a redundancy situation had been identified at the sales counter, and that, in the absence of one of them accepting voluntary redundancy, Mr Clements would have to select one of them.
Whilst there is an indication from the notes of the meeting that the claimant offered to be the one to go, the tribunal does not place any reliance upon such a statement, even if it was made. The claimant and his witness, Mr David Shirley, refuted in their evidence that any such offer had been made by the claimant, and the overall tenor of the notes is that the claimant consistently challenged the need for a redundancy. Significantly, Mr Clements in his evidence to the tribunal made no mention of any such offer, significantly saying instead that both men “refused” the option of voluntary redundancy.
8. The tribunal therefore finds that the claimant did not offer himself for voluntary redundancy.
9. The tribunal heard unchallenged evidence that three employees had been dismissed by the respondent on the ground of redundancy in September 2007 from the sawmill section. Whilst the claimant stated in evidence that he was unaware of any significant downturn in work, the tribunal accepts Mr Clements’ evidence that such was the case. It is not for the tribunal to look behind the wisdom of commercial decisions made by an employer, but to consider whether such decisions were actually made, rather than being a smokescreen to explain away the claimant’s dismissal.
10. The tribunal concluded that the claimant’s absence from work due to sickness inevitably placed him at a disadvantage regarding his knowledge as to the state of the order-books. The tribunal finds that there was no attempt at any consultation between the respondent and its staff as to the need for redundancies; the respondent took the attitude that its 31 staff would know about the downturn by discussing it amongst themselves, without the need for any formal information from the respondent. The tribunal therefore finds that there was no consultation between the respondent and the claimant or any other member of staff during this entire process. There was an attempt by the respondent to portray the meeting on 11 October 2007 as a consultation, but the tribunal can find no evidence to support any view other than that this was a fait accompli, the only choice being which one would jump before he was pushed.
11. It was accepted on behalf of the respondent that it had never been its case that the claimant’s job was identified as being redundant. The respondent, having dismissed three people in the sawmill, decided that a fourth employee had to be made redundant in order to effect savings. To that end, in the term used by Mr Clements, the counter sales section was “targeted” by the respondent. It also was accepted on behalf of the respondent that there were deficiencies in both the consultation process and in the matrix applied by Mr Clements when assigning individual scores to the two men who worked in the counter sales area.
12. As regards the matrix, this was obtained by Mr Clements from the respondent’s legal advisers. The tenor of his evidence to the tribunal was that this was the first such advice he had sought from them, so it is unclear what procedure had been adopted to identify the first three redundancies. Mr Clements accepted in evidence that he had not used any records in order to award individual scores. The respondent does not employ anyone to take responsibility for Human Resources, an area which Mr Clements described to the tribunal as “a nightmare”. It therefore was accepted by the respondent that his awards were entirely subjective, and that he was “caught on the hop” because the redundancy meeting was brought forward from Monday to Friday at the request of the two men because they did not want to have it hanging over them at the weekend.
13. Whilst there can never be an entirely scientific system, the tribunal finds that the marking adopted in this case was incapable of objective scrutiny. This for the tribunal was exemplified by Mr Clements’ assertion to the tribunal that the claimant received a 50% lower mark than Mr Shirley for co-operation and self-motivation because he on “many, many occasions” had to ask the claimant repeatedly to do something. Despite this apparent failure, the claimant had never faced disciplinary proceedings, and there were no records produced by Mr Clements to confirm any such behaviour. Nor had any formal warning procedure been given to the claimant as to his absence. There was however evidence from the claimant, which was not challenged, that he had previously been subjected to derogatory comments by Mr Michael Henry, chairman of the respondent, because of his absence due to his diabetes.
14. Despite this, by far the biggest disparity in marks between the two men was on their sickness records. The tribunal found an irreconcilable difference between Mr Clements’ assertion that he had completely ignored the claimant’s diabetic illness and the fact that he had instead referred only to his actual number of days absent when deciding the marks. There is no record that the respondent ever formally queried the validity of the claimant’s reason for prolonged absence, yet Mr Clements was content to apply.
15. This is not a disability discrimination case, but the tribunal is satisfied that it was the prolonged absence of the claimant due to sickness which prompted his dismissal. That is substantially confirmed in the tribunal’s view by the fact that the respondent waited until the claimant returned before addressing this apparently pressing need. Mr Clements stated to the tribunal that the claimant was not written to during his illness about the potential redundancy, preferring to deal with him ‘face to face’ upon his return. This in the view of the tribunal disadvantaged the claimant in two respects:-
(1) he had no time to prepare himself to counter any such proposal; and
(2) he was unaware that by remaining absent due to sickness, he was unwittingly contributing to his own dismissal.
16. In the view of the tribunal it also is significant that the claimant’s section was ‘targeted’, with no record to show that any objective consideration was given by the respondent to other potential jobs for the claimant within its business. The concession by the respondent that the claimant’s job was never identified as being redundant also confirms in the opinion of the tribunal that the claimant’s extensive, recent absence due to sickness marked him out as dispensable, and that the marking system utilised by the respondent was little more than window-dressing.
17. The respondent states that there was no other suitable employment available. The tribunal however finds that there was no evidence to show that any such option was even considered by the respondent. Mr Clements stated that the claimant could not have filled the post of accounts clerk, who was due to leave. She was replaced in August 2007 by Mr Shirley, Mr David Shirley’s father, who had been travelling salesman for the respondent. Mr Shirley Senior was in turn replaced in August 2007 by a newly-recruited salesman; the respondent claimed that he had been recruited to boost orders and save redundancies, although he was also made redundant, in February 2008. The tribunal therefore concluded that potential redundancies were anticipated by the respondent well in advance of the claimant’s absence due to sickness.
18. Mr Clements stated that Mr Shirley Senior had threatened to resign if he was not permitted to move from his position as travelling salesman into an office job. That evidence was flatly contradicted by Mr David Shirley, who denied any knowledge of such a stance by his father. It seems to the tribunal unlikely that he would not have been privy to his father’s thoughts on this had it been as Mr Clements alleged. It also seems unlikely to the tribunal that an employer would have bowed to such a threat, especially where it seeks to establish that genuine efforts were made to re-locate the claimant. The tribunal also considers that the post of account clerk could reasonably have been considered as potential suitable alternative employment for the claimant, in view of the fact that Mr David Shirley had done that job upon his appointment, without special qualifications, before moving to counter sales, where he performed the same tasks as the claimant.
19. The tribunal does not accept that any consideration was given to using the claimant as a travelling salesman in the event that Mr Shirley was permitted to change jobs, nor that any genuine consideration was given to suitable alternative employment for him.
LAW AND CONCLUSIONS
20. By virtue of Article 126 (1) of the Employment Rights (Northern Ireland) Order 1996, ('the 1996 Order') "an employee has the right not to be unfairly dismissed by his employer". In determining whether such dismissal is fair or unfair, Article 130 (1) of the 1996 Order states that "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 ... for a reason falling within Paragraph (2).”
One reason within Paragraph (2) is that the employee was redundant.
The tribunal is satisfied in this case that the respondent has discharged the burden of establishing the reason and that it was a potentially fair reason. There was evidence that there had been three recent redundancies, and the tribunal accepted Mr Clements's unchallenged evidence that the downturn in orders was significant and prolonged.
The tribunal then had regard to Article 130 (4) of the 1996 Order, which states that "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 sufficient reason for dismissing the employee;
and
(b) shall be determined in accordance with equity and the substantial merits of the case."
21. The respondent has satisfied the tribunal that there was in this case a redundancy situation which required to be addressed. A significant factor in this case however is that a specific redundancy situation was never identified, which in the view of the tribunal reinforces the need for a reasonable employer to be able to demonstrate at least a semblance of an effort to have a meaningful consultation, and to show at least some evidence of an objective assessment. A transparent process is also material to consideration as to whether the employer has complied with the requirements of the Employment (Northern Ireland) Order 2003; breach of the statutory dismissal procedure contained therein render an employer liable to financial penalties.
22. The tribunal found there to be no such objective assessment, the absence of which has lead the tribunal to conclude on balance from the available evidence that the respondent manipulated the situation to contrive the dismissal of the claimant. Whilst the tribunal has concluded that the process and the outcome were flawed, it also concludes, on balance, that the flaws do not fall within the scope of the Employment Order (Northern Ireland) 2003 for breach of the Statutory Dismissal Procedure. The tribunal has formed the view that the ulterior purpose ultimately renders this dismissal unfair. Whilst the procedure adopted by the respondent is viewed by the tribunal as being a veneer of procedural compliance, it nonetheless complied sufficiently with the legislation, thereby avoiding any addition to the award.
23. The tribunal was urged on behalf of the respondent to conclude by virtue of Article 130A of the Employment Rights (Northern Ireland) Order 1996 that, despite conceded flaws in the procedure, the tribunal was satisfied that the respondent would still have dismissed the claimant. The tribunal has considered the evidence in that light, but is not so satisfied, its view significantly based upon its conclusion that this hollow procedure was indicative of a decision which had already been taken. The administration of this procedure was so poor that the tribunal has concluded that no reasonable employer would have applied it in this fashion.
24. The tribunal therefore concludes that the selection of the claimant for redundancy was unfair, and that in consequence, he was unfairly dismissed.
25. THE AWARD
Redundancy
3 years’ continuous employment x 1 (statutory multiplier) x £315 gross = £945
Less £831.54 actually paid = £113.46
Basic Award
In relation to unfair dismissal, the liability to pay a basic award is extinguished by the redundancy payment so the basic award is zero.
Compensatory award.
The tribunal does not accept the respondent’s assertion that the claimant failed to mitigate his loss. The tribunal accepts from the evidence produced that the claimant made genuine efforts to obtain employment, in which he has now been successful.
By virtue of Article 157 of the 1996 Order, the compensatory award is "such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer". To that end, the tribunal assesses the loss sustained by the claimant to be 38 weeks' loss of pay of £215 per week between the date of dismissal and the date of hearing.
Therefore: £215 x 38 = £8,170.00
To that figure is added the redundancy figure of £113.46
Total Award £8,283.46
RECOUPMENT
26. The Employment Protection (Recoupment of Job Seeker’s and Income Support) Regulations (Northern Ireland) 1996 apply.
27. This award is therefore subject to recoupment of Jobseeker's allowance of £59.15 per week, paid for 26 weeks from 9 November 2007, totalling £1537.90, which when deducted from £8283.46 leaves a total of £6745.56.
The attached recoupment Notice forms part of the decision of the tribunal.
28. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 12 August 2008, Londonderry
Date decision recorded in register and issued to parties:
Case Ref No: 00103/08
CLAIMANT: Colin Kennedy
RESPONDENT: H & T Bellas Ltd
ANNEX TO THE DECISION OF THE TRIBUNAL
STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME SUPPORT
1. The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.
|
|
£ |
|
(a) Monetary award |
8283.46 |
|
(b) Prescribed element |
1537.90 |
|
(c) Period to which (b) relates: |
9 November 2007 – 12 August 2008 |
|
(d) Excess of (a) over (b) |
6745.56 |
The claimant may not be entitled to the whole monetary award. Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department of Social Development has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department. The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.
2. The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing. When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.
3. The claimant will receive a copy of the recoupment notice and should inform the Department of Social Development in writing within 21 days if the amount claimed is disputed. The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the claimant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the claimant and regardless of any dispute between the claimant and the Department.