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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McCormick v Short Brothers PLC [2009] NIIT 715_03IT (18 June 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/715_03.html
Cite as: [2009] NIIT 715_03IT, [2009] NIIT 715_3IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 715/03
CLAIMANT: Steven McCormick
RESPONDENT: Short Brothers PLC
DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed.
Constitution of Tribunal:
Chairman: Mr Buggy
Members: Mr Sidebottom
Mr Gunn
Appearances:
The claimant was represented by Mr M Potter, Barrister-at-Law, instructed by Thompson McClure, Solicitors.
The respondent was represented by Mr R Murphy, of Engineering Employers’ Federation Northern Ireland.
REASONS
The claimant was employed by the respondent company (‘the employer’) for many years.
The claimant was dismissed by the employer by reason of redundancy.
Redundancy is a potentially fair reason for dismissal, because it is a reason which falls within the scope of Article 130(2) of the Employment Rights (Northern Ireland) Order 1996 (‘the Order’). However, as Article 130(4) makes clear, a dismissal for redundancy may nevertheless be an unfair dismissal; and, in the context of Article 130(4), the question of whether or not the dismissal is fair or unfair:-
“(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 substantive merits of the case.”
In these proceedings, no challenge is made to the appropriateness of the selection criteria themselves. However, it is contended on behalf of the claimant that the dismissal was unfair because the application of those criteria to the claimant took the relevant selection (the selection of the claimant for redundancy) outside the ‘range of reasonable responses’. (See below.)
Case management issues
These proceedings began in March 2003. The main hearing of this case took place in March 2009. During the course of that hearing, Mr Murphy explained what had occurred during the intervening period. He repeated that explanation in the written submissions (see below) which he provided in this case. In the Submission, he made the following points:-
“(A short history commenting on the passage of time was offered to the Tribunal Chairman based on the Tribunal’s difficulty in having some 500 or more individual claims arising out of the redundancies at Bombardier waiting to be heard at the one time. Attempts to deal with a number of cases by selection of ‘lead’ cases had proved unsuccessful and eventually all the cases were listed for Hearing in the order in which the Originating Application had been submitted to the Tribunal.)”
We understand that pension losses are a very substantial part of the claimant’s claim for compensation in this claim. We understand that the parties have discussed the complicated financial issues which arise in that connection, and that they are optimistic that, in the event of it becoming necessary, they would be able to resolve any remedies issues on an agreed basis. Against that background, the parties were agreed that it was appropriate for the tribunal to decide only two issues at this stage of the case:-
Whether the claimant was unfairly dismissed.
If so, whether the claimant failed to mitigate his loss.
7. We had agreed to address those two issues at this stage of the case. However, since the date of the main hearing, the Court of Appeal, in Coleman v Norbrook Laboratories Ltd [2009] NICA 28, has highlighted the importance of tribunals dealing with issues in the round (as distinct from attempting to compartmentalise sub-issues which within an overall main issue). Against that background, we have decided that, at this stage of the case, it would not be appropriate for us to arrive at a determination in relation to the mitigation of loss issue. Accordingly, this decision deals with liability issues only.
8. If the parties cannot agree all remedies issues, a remedies hearing will be held as soon as possible. At the conclusion of that remedies hearing, we will arrive at determinations in respect of all the remedies issues which, at the date of that remedies hearing, continue to be disputed. If, by the date of that hearing, all remedies issues other than the mitigation of loss issue have been agreed between the parties, we will then determine that issue, and promulgate a supplementary Decision, without the need for receiving any further evidence.
Sources of evidence
The claimant gave evidence on his own behalf. The following gave evidence on behalf of the respondent:-
(1) Mr Derek Bailey, the claimant’s line manager who was the first-stage decision-maker in respect of the decision to make the claimant redundant; and
(2) Mr Norman Thompson. (Mr Thompson was Mr Bailey’s line manager. In the context of the decision to make the claimant redundant, Mr Thompson was the second-stage decision-maker.)
We saw an agreed bundle of documents, along with some miscellaneous documents. We told the parties that, within any bundle, we would not have regard to any particular document, unless that particular document had been drawn specifically to our attention by one of the parties.
The parties’ closing submissions were made in writing, with the consent of both parties. The agreed arrangements in relation to those written submissions (‘the Submissions’) were as follows. The Submissions were exchanged between the parties, and copied to the Secretary of the Industrial Tribunals, during April 2009. Each party was free to provide written comments (‘Comments’) on the other party’s Submissions. Any such Comments were to be provided within a specific time-limit. The respondent did not provide any Comments. The claimant did provide brief Comments.
The parties were told that an oral hearing would be held, for the purpose of considering the arguments of the parties, if either party asked for such a hearing. Neither party asked for such a hearing.
In the course of arriving at this Decision, we have taken careful note of all of the arguments which have been put before the tribunal. The Submissions and the Comments provide a permanent record of the arguments of the parties. In those circumstances, it is unnecessary to record, in this Decision, comprehensive details of the arguments. However, we do refer to some of those arguments later in this Decision.
The facts
We now set out findings of fact which are relevant to the liability issues:-
(1) The claimant had been in the employment of the employer from 1976 until December 2002. He was employed as a quality inspector.
(2) In total, some 2,000 employees were made redundant at various stages after September 2001. The claimant was made redundant on 6 December 2002. He was selected for redundancy following the application of a selection process which became known as the ‘720 system’. That system provides for the scoring, under a number of criteria, of each individual within each unit of selection. In addition (but not relevant in this case), provision is made in the selection system for penalty points in respect of current cautions/warnings/discipline. When the selection process had been applied to the claimant and to other people within his redundancy pool, the claimant was found to have scored less well than others, and was put at risk of redundancy. He exercised his right to appeal against the assessment scores of his manager (Mr Bailey), and that appeal was duly held. As a consequence, one of his scores was varied upwards, but the final total was insufficient to save him from being at risk and his employment was subsequently terminated on the ground of redundancy.
At the initial redundancy assessment stage, the assessor was Mr Bailey. Mr Thompson heard the appeal against that assessment. The 720 selection process can be summarised as follows. It is a relatively sophisticated mechanism of selection for redundancy. It was created out of a formal agreement between the employer and the Federation of Shipbuilding and Engineering Unions in 1988. In the circumstances of this case, only the following five criteria had to be assessed under the procedure:-
productivity;
quality of workmanship;
attitude;
ability to work unsupervised;
housekeeping
So, each employee in the relevant unit of selection was assessed and scored in relation to each of those five criteria. According to a relevant internal policy document of the employer, the position is that “Within each department employees must be assessed by peer group based on discipline and band”. In the present context, the word ‘band’ refers to an employee’s status and pay level, with the bands running upwards from 12/13 to Band 6. Above that band, there is a short series of management grades up to M1.
The available scores on each criterion are pre-determined in their perimeters. It will be useful to take ‘Attitude’ as an example.
The grading in respect of attitude included the following. The highest grade was ‘Very much above standard’, which was defined as ‘Very positive and co-operative attitude at all times’; this grade attracted a score of 150. The next main grade down was ‘Above standard’, which was defined as ‘mostly above average in attitude and level of co-operation’; this attracted a score of 120. Between those two grades was ‘Intermediate’, which was not defined, and which attracted a score of 135.
The next main grade below ‘Above standard’ was ‘Standard’, which was defined as ‘Attitude and co-operation usually good, but can lapse occasionally’; this attracted a score of 90. In between ‘Above Standard’ and ‘Standard’ was ‘Intermediate’, which was not defined, but which attracted a score of 105.
In order to ensure consistency, the system provided (at page 3, paragraph 33 of the relevant policy document) that:-
“Within each assessment group the assessor should identify the employee whose overall work performance would most represent the average performance within the group. This employee will then be used as the benchmark against which all other employees within the group will be ranked, on a relative basis, same, above or below. To assist consistency on the Companywide basis, this average employee within each group will assume the ‘Above standard’ score for the overall performance assessment, ie, 720.”
As Mr Murphy reminded us in his Submission, scores are based on an individual’s qualities compared with his peers. No deviation is allowed from the given scores of the process. For example, in relation to quality of work, the top mark is 300, not 290. Midway scores are not permitted.
There were 23 people within the claimant’s peer group. A comparison of the claimant’s scores with the scores of his peers is as follows:-
In relation to productivity, the claimant got the same score as 21 of his peers.
In relation to quality of workmanship, the claimant got the same score as all of his peers.
In relation to attitude, the claimant got the same score as 3 of his peers; got a higher score than 2 of his peers; and got a lower score than 18 of his peers.
In relation to ability to work unsupervised, the claimant got the same score as 12 of his peers and got a lower score in relation to 11 of his peers.
In relation to housekeeping, after his redundancy assessment appeal, the claimant got a higher score than any of his peers.
The claimant has a claw foot. Despite making considerable and determined efforts, in which Mr Bailey was fully involved, the company failed to obtain appropriate safety footwear. Because such footwear was not available for the claimant to wear, the employer’s vulnerability, immediately (under health & safety law) and potentially (under personal injuries law) was significantly increased. Because of that same circumstance, the range of options open to the employer, in terms of deploying the claimant in various parts of the factory as a whole, was reduced.
As a result of those matters, tensions arose within the working relationship between Mr Bailey and the claimant.
We consider that Mr Bailey acted in a conscientious and honest manner in carrying out his assessments under the redundancy procedure. We are satisfied that, in carrying out those assessments, he was not influenced at a conscious level by the practical difficulties resulting from the claimant’s disability, or by the tensions to which we have referred above.
We also accept that Mr Thompson was an honest witness. Conducting the appeal in respect of the Bailey assessment of the claimant (for redundancy purposes), Mr Thompson did not comprehensively re-assess the claimant. Instead, in the main, he reviewed the fairness and consistency of the original redundancy assessment which had been carried out by Mr Bailey. As a result of that review, Mr Thompson increased the number of points awarded to the claimant in respect of housekeeping. However, he made no increase in the number of points awarded to the claimant in respect of attitude, or in respect of ability to work unsupervised.
According to the claimant, he should have been awarded 135 points under the criterion of Attitude. (That would be an Intermediate grading between ‘Very much above standard’ and ‘Above standard’).
The claimant was actually awarded 105 points in respect of Attitude. (That is the ‘Intermediate’ category between ‘Above standard’ and ‘Standard’.)
The definition of the ‘Standard’ grade is ‘attitude and co-operation usually good, but can lapse occasionally’. The claimant was awarded an ‘Intermediate’ (supra-Standard) grade Mr Bailey commented, in respect of Attitude, in the redundancy assessment sheet, as follows:-
“Usually above average but can lapse occasionally.”
Eighteen of the claimant’s peers were graded at ‘Above standard’ (which was defined as ‘mostly above average in attitude and level of co-operation’). The claimant was not graded as highly as those 18, on that criterion, because of a single issue.
That issue was as follows. There was a difference of opinion between the claimant and Mr Bailey in relation to the claimant’s use of drawings to check if parts were matched with the correct paperwork. The claimant’s understanding was that such checking was appropriate and that such checking had previously been standard practice throughout his employment. Mr Bailey never instructed him to change that practice. Mr Bailey however did ask or encourage him to change that practice. The claimant was not prepared to voluntarily change that practice, because he considered that his current practice was a better practice.
The claimant’s unwillingness to change that practice had no significant effect on the claimant’s productivity.
It would have been open to the employer at any stage to modify the internal procedures governing quality control, so as to require quality inspectors, in future, to adopt the change of practice which Mr Bailey had urged upon the claimant. But the employer did not do so.
The practice which the claimant was following, and the practice which Mr Bailey was urging upon the claimant (as the substitute practice), were both practices which were not incompatible with the contemporaneous formal written procedures under which quality inspection was carried out within the relevant factory.
In the course of his evidence, Mr Bailey told us that another reason for the marking-down of the claimant in relation to Attitude was the claimant’s insistence on individually assessing each pipe against a template, in situations in which he could and should have carried out a visual check of several of them simultaneously. The claimant denied that he had insisted upon individual assessment.
We believe that denial. Mr Bailey is mistaken in that recollection. Therefore, the only basis for the marking-down of the claimant in relation to Attitude is the difference of opinion, in relation to the examination of paperwork, which we have already mentioned above.
There was a temptation for witnesses to engage in a process of ex post facto justification. Mr Thompson rightly drew our attention to the fact that the claimant’s practice of checking that all the parts were matched with the correct paperwork was a practice which tended to undermine the employer’s aim of impressing upon general workers that primary responsibility for quality control now rested with them (as distinct from primarily resting with quality inspectors). However, that view, reasonable though it is, was not a view which influenced Mr Bailey when he was marking the claimant in respect of the attitude criterion, and it is not a view which was expressed by Mr Bailey when he was seeking to persuade the claimant to change the relevant practice.
We are satisfied that the claimant’s failure to adopt the practice in relation to the checking of components (as described above) was also the sole or main basis for Mr Bailey’s decision to grade the claimant as ‘Above standard’ for ‘ability to work unsupervised’, instead of grading him in the ‘Intermediate’ category (between ‘Very much above standard’ and ‘Above standard’).
The claimant did not decline to follow Mr Bailey’s suggestion, for a change of practice, in respect of the identification of parts, on the basis of any ‘couldn’t care less attitude’. Instead, as he made clear to Mr Bailey at the time, he declined to change his current practice because he considered that current practice to be better quality inspection practice than the alternative practice which was being suggested to him. No reasonable employer could regard the claimant’s unwillingness to agree to the relevant suggestion as an obstructive attitude in the particular circumstances. (The change of practice was being proposed as a suggestion and was not being imposed, although it would have been open to the employer to have imposed that change, by changing the quality manual.)
In his Submission, Mr Murphy has asserted that the evidence shows that the claimant has an exaggerated view of what would have been the appropriate grading for him in respect of a number of the categories. We agree.
In the interest of readability, and in order to minimise repetition, we have set out some additional findings of fact below.
The legal principles
The following is a statement of the law which is applicable to the issues which we have determined:-
(1) Article 130(4) of the Order provides as follows:-
“Where the employer has [shown the reason, or principal reason for the dismissal, and that it is a potentially fair reason], the determination of the question of whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –
depends on whether in the circumstances ... the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
shall be determined in accordance with equity and the substantial merits of the case.”
(2) This is a claim for unfair dismissal which is based only on the proposition that there has been an unfair application, to the claimant, of the redundancy selection criteria.
(3) As Mr Murphy pointed out in his Submission, in the context of a claim in relation to the unfair application of selection criteria, relevant principles are to be found set out at paragraphs [1702] to [1703.01] of ‘Harvey on Industrial Relations and Employment Law’ (‘Harvey’).
(4) At paragraph [1702], Harvey points out that the actual application of the selection criteria should be carried out fairly. At paragraph [1702.01], it is suggested that it appears that the courts will not be willing to carry out a detailed examination of the way in which the employer has applied the selection criteria. However, at [1702.02], the point is made that there may be some cases where the marking may suggest that the application of the criteria was, or may have been, unfair.
(5) In British Aerospace Plc v Green [1995] ICR 1006, at 1016, Waite LJ made the following observations:-
“The use of a marking system of the kind that was adopted in this case has become a well recognised aid to any fair process of redundancy selection. ... One thing, however, is clear: if such a system is to function effectively, its workings are not to be scrutinised officiously. The whole tenor of the authorities to which I have already referred is to show, in both England and Scotland, the courts and tribunals (with substantial contribution from the lay membership of the latter) moving towards a clear recognition that if a graded assessment system is to achieve its purpose it must not be subjected to an over-minute analysis. That applies both at the stage when the system is being actually applied, and also at any later stage when its operation is being called into question before an industrial tribunal.”
(6) The tribunal is not entitled to substitute its judgment (as to the appropriate redundancy assessment markings) for the judgment of the employer. Instead, the tribunal has to take an overview, and has to arrive at conclusions as to whether, in all the circumstances, the decision to select this particular claimant for redundancy was inside, or outside of, the range of reasonable responses open to a reasonable employer. If any reasonable employer would have dismissed the claimant in the relevant circumstances, the dismissal is fair.
(7) As Phillips J pointed out, in Watling & Co Ltd v Richardson [1978] IRLR 255, at paragraph 17 of the judgment:-
“In the case of redundancy, for example, and where a selection of one or two employees to be dismissed for redundancy from a large number is in issue, there may well be and often are cases where equally reasonable, fair, sensible and prudent employers would take different courses, one choosing ‘A’, another ‘B’ and another ‘C’. In those circumstances for an Industrial Tribunal to say that it was unfair to select ‘A’ for dismissal, rather than ‘B’ or ‘C’, merely because had they been the employers that is what they would have done, is to apply the test of what the particular Industrial Tribunal itself would have done and not the test of what a reasonable employer would have done ... .”
(8) As Mr Potter indicated (at paragraph 18 of his Submission) an employer will often step outside the range of reasonable responses if a redundancy assessment is tainted by bad faith, victimisation or unwarranted discrimination.
(9) However, a particular redundancy dismissal may fall outside the range of reasonable responses, even in the absence of such factors. We are satisfied that British Aerospace Plc v Green cannot be read as authority for the proposition that, in the absence of bad faith, a particular assessment cannot bring a decision outside the range of reasonable responses. In his Submission, Mr Murphy did not argue in favour of such a proposition. He was right to refrain from making such an argument. (By way of illustration, see the decision in the Court of Appeal in Northgate HR Ltd v Mercy [2007] EWCA Civ 1304, especially at paragraph 23.)
(10) In his Submission, Mr Potter drew our attention to the commentary on Taylor v BICC Brand Rex Ltd [EAT/651/94] which is discussed at page 216 of the IDS Brief on ‘Redundancy’. According to that commentary, the EAT in Taylor thought it plain that in order for the claimant to succeed in that particular case, ‘ ... there needed to be some sort of unfair conduct on the employer’s part which could mar the fairness of the system, such as evidence of bad faith, victimisation or discrimination ... ‘.
(11) We have not seen the whole of the judgment in Taylor. It seems to us any legal principles emerging from Taylor have to be construed in light of the particular facts of the Taylor case.
(12) As already noted above, we are satisfied that Green is not authority for the proposition that bad faith or improper motives (such as victimisation or discrimination) are a prerequisite to a finding by a tribunal that a particular application of particular selection criteria has brought the relevant dismissal outside the range of reasonable responses. Eaton Ltd v King [1995] IRLR 75 is a decision which is founded on the EAT’s acceptance, in that case, that the employers had set up a good system of selection, and that there was nothing to indicate that the assessment process in that case had not been carried out both honestly and reasonably. As Lord Coulsfield pointed out (at paragraph 11 of the judgment):-
“There is nothing whatever in the findings [of the industrial tribunal in this case] to indicate that the assessment process was not carried out honestly and reasonably. There may be cases in which some inference can be drawn from the markings or findings if there was something unfair about the individual application of the methods of selection, but this is not such a case ... .”
Those matters have to be borne in mind when taking account of the fact that the Court of Appeal ‘endorsed’ Eaton in Green.
(13) In Green, Waite LJ (at 1011B) recognised that Eaton was a case in which the appeal tribunal had accepted that there was nothing to suggest that the assessment process was carried out otherwise than reasonably. And, in the same case, Millett LJ (at 1019H) endorsed the relevant observation of the EAT in Eaton on the basis that the observation was that it was sufficient for the employer to show that he set up a good system of selection that was fairly administered.
(14) In Green, Millett LJ also pointed out that, in a redundancy/ unfair dismissal case, the question for the industrial tribunal in any particular case is whether that particular claimant was unfairly dismissed, not whether some other employee could have been fairly dismissed.
(15) As Mr Murphy pointed out in his Submission, this tribunal is not entitled to carry out a re-marking exercise. Furthermore, in considering the question of whether or not particular assessments are perverse or irrational, we must have regard to the following factors. First, the redundancy assessment process in this case was based on assessments of performance which extended throughout an extensive period, whereas we have only been involved with this case over a couple of hearing days. Secondly, the assessments have to be considered within the context of the industry within which they were carried out; we lack technical expertise in that particular sector.
(16) However, we reject the argument which was set out on the penultimate page of the respondent’s Submission in the following terms:-
“The matter becomes more complicated if a Tribunal is invited to change scores following assessment under a selection procedure. The reason of course is that to isolate one person who was assessed and make changes to his scores ignores the presence, in this case, of the other two dozen employees who were assessed. If one employee is to be reassessed and re-scored by a Tribunal, it is submitted that it can only be done fairly if the Tribunal [enquires] into the relevant scoring of the remaining employees, which is [a] quite impracticable burden.”
(17) We reject that argument because, in this case, we are not deciding whether or not some other employee should have been made redundant. Instead, we are deciding whether this particular employee should have been made redundant. The remarks of Millett LJ, quoted above at sub-paragraph (14), are apposite in this context also. The 2003 redundancy process is over. A finding by this tribunal that the claimant should not have been selected for redundancy is not a finding which will necessarily result in somebody else being selected for redundancy.
Conclusions
We have arrived at the following conclusions:-
(1) We are satisfied that tensions had arisen between the claimant and Mr Bailey as a result of the potential or actual operational implications of the claimant’s disability.
(2) We are satisfied that, at a conscious level, Mr Bailey’s redundancy assessments of the claimant were unaffected by those tensions, and were unaffected by the existence of that disability. Were those assessments affected at a subconscious or unconscious level, to any extent, by those matters? For the purpose of resolving this case, it is unnecessary for us to arrive at a conclusion in relation to the latter question.
(3) We regard Mr Bailey as an honest and conscientious assessor, who did his best to be fair.
In assessing productivity and in assessing quality of workmanship, Mr Bailey took a very broad-brush approach. Taking such an approach did not put the claimant’s dismissal outside the range of reasonable responses. Indeed, to take a broad-brush approach in relation to those two criteria was a perfectly reasonable option to take.
However, because a broad-brush approach was adopted in relation to two of the criteria, the assessment of the other three criteria became all the more important.
Furthermore, in assessing whether or not the relevant unfair assessments (in respect of attitude and ‘Ability to work unsupervised’) took the dismissal outside the range of reasonable responses, we are entitled to consider that issue against the background of the broad-brush approach which was adopted in respect of productivity and quality of workmanship.
If the claimant had not been marked ‘down’ in respect of Attitude, he would not have been dismissed.
The claimant was marked ‘down’ in respect of Attitude because he had declined to follow Mr Bailey’s suggestion that he should modify one particular aspect of his working practices. Mr Bailey had requested the relevant modification, but had not required it. The claimant’s omission to modify the relevant practice had had no effect on productivity.
For those reasons, and against that background, we consider that the marking down of the claimant on Attitude was perverse and irrational. Because the marking down of the claimant in respect of Attitude cost him his job, we consider that the perversity and irrationality of the marking down in respect of Attitude takes the dismissal outside the range of reasonable responses. In other words, in the circumstances of this case, no reasonable employer would have dismissed the claimant. We have also concluded that the marking down of the claimant in respect of ‘Ability to work unsupervised’ was irrational and perverse. It was based on precisely the same refusal (on the part of the claimant) to modify working practices which has already been referred to above.
In our view, the employer was acting well within its margin of discretion in deciding to assess all the relevant workers as being equal in terms of quality of workmanship.
Next steps
Hopefully, the parties will now be able to speedily agree on the amount of compensation due to the claimant. If not, the parties should take early steps to bring the remaining areas of disagreement to the attention of the tribunal. Any necessary remedies hearing will then be convened, for the purpose of arriving at determinations in respect of any remaining disputed remedies issues.
18. Either party is free to request a Case Management Discussion for the purpose of listing this case for a remedies hearing. Any such request should not be made until after the expiration of four weeks from the date on which this Decision is issued.
Chairman:
Date and place of hearing: 23 – 26 March 2009, Belfast
Date decision recorded in register and issued to parties: