Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2008/342_03IT.html
Cite as: [2008] NIIT 342_03IT, [2008] NIIT 342_3IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 342/03

CLAIMANT: Rodney Higginson

RESPONDENT: Short Brothers PLC

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed by the respondent company.

Constitution of Tribunal:

Chairman: Mr D Buchanan

Members: Ms N Wright

Mr A Crawford

Appearances:

The claimant appeared in person.

The respondent was represented by Mr R Murphy, of Engineering Employers' Federation.

1.	(i)	The claimant, by an originating application, presented to the tribunal on 27 January 2003, brought various claims against the respondent company.

	(ii)	By the time of this hearing, only one of those, a claim for unfair dismissal, remained for determination.

	(iii)	At a Case Management Discussion on 7 June 2005 (which dealt with other claims in addition to the present one) it was recorded, in relation to the unfair dismissal claim, that Mr Higginson conceded that he had accepted a voluntary redundancy package. However, he alleged that he had been told there was no job available for him to do, and that that was the reason he agreed to accept voluntary redundancy.

2.	(i)	In order to determine this matter, the tribunal heard evidence from the claimant on his own behalf, and from Dr Bill Jenkinson MB FRCP and Mr Gary Crawford on behalf of the respondent company. Dr Jenkinson is the respondent company's Director of Health and Safety, and Mr Crawford, who is no longer with the company, was its Director of Human Resources at the relevant time. The tribunal also had regard to documentary evidence to which it was referred by the parties.

	(ii)	The tribunal finds the facts set out in the following paragraphs.

3.	(i)	The claimant was employed by the respondent company as a manager in M2 grade, which was a relatively senior post. He had worked for the company since 1 September 1986 and at the time of the termination of his employment, was in Customer Support.

	(ii)	Prior to September 2002 he had been off work ill for approximately 13 months, and on 9 September 2002 he was seen by Dr Jenkinson. At that stage, Dr Jenkinson considered that he was fit to return to work. The claimant was keen to return to work, though obviously because of his prolonged period of illness, he had concerns about the type of work he would be doing and the hours he would be working. He met with Sharon Banks, of Human Resources, on 17 September 2002, and she set about attempting to reintegrate him into work under certain conditions, namely:-

(i) an initially reduced working week;

(ii) that he would have no direct responsibility for man-management; and

(iii) that he did not return to work within the Customer Support Department.

		This attempt to reintegrate him was unsuccessful. We find that no suitable post could ultimately be found for him.

	(iii)	These efforts to reintegrate the claimant were taking place against a decline in business in the international aerospace and aviation industry which had followed on from the terrorist attacks in the USA on 11 September the previous year (9/11). This led to large scale redundancies in the respondent company. The policy of the company – supported by the trade unions – was to seek volunteers for redundancy, and the claimant, in common with other employees, received information about this. Expressions of interest were to be submitted to the company by 14 October 2002. Such an expression of interest led to a prospective applicant for voluntary redundancy being provided with figures relating to the amount of the package he would received. If an applicant applied for voluntary redundancy, and the company were prepared to offer it, then he or she had to accept it by 28 October 2002.

4.	(i)	The claimant submitted an expression of interest for voluntary redundancy on 10 October 2002.

	(ii)	Mr Crawford called at his home on 23 October 2002 with the figures relating to the amount he could expect to receive. He discussed it with Mr Higginson. We are satisfied that it was a cordial discussion – the two men had known each other for some years – and that Mr Crawford did not mislead or pressurise the claimant in any way. Nor did the claimant alleged to Mr Crawford at the time that he was being pressurised into acceptance. Mr Crawford's evidence, which we accept, was that it was an 'easy meeting to have because it was about something [the claimant] had applied for'.

	(iii)	On 28 October 2008, the claimant signed and submitted an acceptance of the proposed terms. The agreed amount of £27,129.60 together with £8,138.88 in notice pay was subsequently paid into his bank account, and the claimant's employment with the respondent company ended on 8 November 2002.

We do not doubt that the claimant was sorry to be leaving his employment with the respondent company, but we are satisfied that he weighed up the situation, including the possibility that he might be made compulsorily redundant in any event, before accepting the voluntary redundancy package. We are also satisfied that at the time he made the decision to accept it, he was fully capable of making decisions relating to his own personal and financial affairs. Indeed, he also conceded that he took some independent advice on the matter. When Dr Jenkinson saw the claimant on 9 September 2002, and reached the conclusion that he was fit to return to work, he was aware of the level of competence, including mental competence, which the claimant's job as a manager required.

We consider that the findings of fact set out above are sufficient to dismiss this claim. However, for completeness, we proceed to deal with some other points made by the claimant in support of his contention that the respondent company was not bona fide in its dealings with him.

7.	(i)	It was suggested by the claimant, in his cross-examination of Dr Jenkinson, that the respondent company had in some way frustrated his earlier return to work during his protracted period of sick leave prior to September/October 2002. This was the first time, in the course of these somewhat long-drawn out proceedings that such an allegation had been made, and we find no evidence to support it. Even if the claimant had returned to work earlier, it is speculative in the extreme to suggest that he would have been better placed to avoid redundancy, particularly in view of the scale of the redundancies facing the company at the relevant time.

	(ii)	Another suggestion of bad faith on the part of the respondent company put forward by the claimant is that he was made redundant at a time when he was not a cost to the company, because he had exhausted his entitlement to sick leave. However, this leaves aside the administrative costs, and the potential cost in terms of pension contributions and entitlement in continuing his employment, and also ignores the fact that the claimant's potential period of sick leave was not open-ended or indefinite.

	(iii)	As stated, Sharon Banks, in Human Resources, was attempting to find a suitable placement for the claimant on his return from sick leave, and with this objective in mind, had e-mailed HR colleagues. The claimant takes issue with the fact that she did not mention his application for voluntary redundancy in her e-mail. However, we are satisfied that she was engaged in a separate, parallel process to reintegrate the claimant in work. This process was overtaken by the voluntary redundancy application. Her lack of reference to the voluntary redundancy application suggests that her attempts to get the claimant back to work were genuine, and that the company did not want to get rid of him, as he has suggested. Ms Banks acknowledged in her e-mail that the claimant was keen to return to work. We do not accept, as the claimant has alleged, that this desire on his part to return to work was in any way inconsistent with consideration and acceptance of an opportunity for voluntary redundancy which then became available.

	(iv)	The claimant also made the point that voluntary redundancy is not an entitlement. This is true. An employee's application to the employer can be granted or rejected by the latter. However, where an employee's application made voluntarily and in full knowledge of the relevant facts (the position here), is accepted by the employer, it is difficult to see any basis on which the employer's conduct in granting it can be criticised.

	(v)	We are satisfied that Mr Higginson was treated no differently from other employees in his situation during this exercise. It appears that he may have been made redundant a few weeks earlier than he anticipated. Again, we are satisfied nothing turns on this. There were a large number of redundancies, and administrative convenience dictated some element of phasing in when they took effect.

The claimant's employment terminated through voluntary redundancy. Clearly, he subsequently had second thoughts about accepting it after he left. As stated, he was not pressurised into accepting it, and he was fully aware of all the circumstances. He was not, however, unfairly dismissed. We therefore dismiss his claim to the tribunal.

Chairman:

Date and place of hearing: 2 – 3 June 2008, Belfast

Date decision recorded in register and issued to parties:

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