Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2010/01901_09IT.html
Cite as: [2010] NIIT 01901_09IT, [2010] NIIT 1901_9IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 01901/09IT

CLAIMANT: Brian Alan Dawson

RESPONDENT: FK Lowry Piling Ltd

DECISION

The unanimous decision of the tribunal is that the claim be dismissed.

Constitution of Tribunal:

Chairman: Mr Davey

Members: Mr Killen

Mr Nicholl

Appearances:

The claimant was represented by Mr D Ferguson of QDOS Consulting Ltd.

The respondent was represented by Mr P Bloch of the Engineering Employer’s Federation.

Reasons

(1) The claimant had been employed by the respondent or their predecessors for two separate periods the latter from February 2000 until his employment was terminated on the basis of redundancy on 10 December 2008. Full notice pay and the appropriate redundancy payment were paid. The issue for the tribunal was whether the statutory dismissal procedures had been observed, whether the claimant’s selection for redundancy was fair or, if there was any procedural failure in relation to the claimant’s dismissal, whether the respondent could show that the claimant would have been dismissed if fair procedures had been followed.

(2) As part of the dismissal procedure a matrix or list of criteria against which a number of employees were assessed and marked had been prepared. Shortly prior to the hearing the claimant had sought an order for production of the score sheets relating to the other persons considered for redundancy. That application had been refused as it had been made too close to the date of hearing to enable any proper arrangements or arrangements for enforcement to be made. The claimant renewed the application at hearing. It was argued that the claimant hoped to show manipulation; that he hoped to show that the judgements were subjective; that he might be able to show that they were demonstratably wrong. The claimant was not however able to point to any specific or concrete basis for the application unless and until the score sheets could be seen.

The tribunal ruled that while this kind of discovery was not infrequently requested the Higher Courts had strongly discouraged tribunals from undertaking a close scrutiny of the marking of judgemental criteria. The general rule of practice was, in effect, that this kind of discovery would not be granted unless some identifiable basis for the allegation of unfairness which related directly to the documents sought could be shown. No such basis had been shown and the application was refused.

Following evidence as to the weighting given to one, in particular, of the criteria for selection the tribunal enquired if the claimant wished to make a further application for production of the score sheets relating to the other persons involved. The claimant’s representative confirmed that the weighting of this particular criteria was of concern but was unable to point to any further or more specific ground on which the discovery of documents could be ordered. The tribunal accepted the submission of the respondent that the issue identified was whether or not the weighting was fair in itself, an issue which would not be assisted by examining the score sheets. No order was made.

(3) There was no real dispute about many of the facts. The respondent was involved with the construction industry, specifically piling. Like the rest of the construction industry, it had been subject to a severe downturn during the course of 2007–2008. The claimant had been a manager in one of the divisions known as caps and beams. The downturn had affected this area particularly badly. Over the course of the 12 months prior to the respondent’s dismissal the division share of the overall turnover had fallen to some 2%. At the time of the claimant’s dismissal there was no work going on in caps and beams at all. It was necessary to look at redundancies so that overheads could be reduced in line with turnover and profits. There were four contract managers including the claimant and it was decided that an exercise should be conducted to see which of them would be most appropriate for redundancy. Redundancies took place in other areas of the firm also. The respondent’s operations director, Mr Cook, devised a matrix or selection of criteria against which the various potential candidates for redundancy could be assessed. These included the overall ability to manage different kinds of contracts undertaken by the respondent firm. The weighting for the ability to manage contracts of the caps and beams type was weighted lower than for other contracts. This weighting, it was explained, reflected, to some extent, the relative value of diverse contracts, and, consequently, those skills, to the business. The matrix also included a variety of other criteria including qualifications, financial ability, design ability and estimating ability.

Having prepared the matrix Mr Cook then, with the assistance of the claimant’s line manager, conducted an assessment of the four managers against the matrix. The claimant scored the least. The claimant was invited to a meeting on 14 November 2008 to discuss the matter. He was informed, as was confirmed by a letter dated the same day, that the company had had to review staff levels due to the current downturn in workload, that provisional selections for redundancy had been carried out according to the criteria outlined on a sheet attached to the letter and indicating that the claimant was at risk of dismissal as a result of that selection procedure. The claimant was invited to a further meeting to take place on 19 November for a detailed discussion of the situation and to provide an opportunity to raise any questions which he might have. The tribunal does not accept the claimant’s evidence that he only saw the criteria at the subsequent meeting. As the minutes of the subsequent meeting demonstrate he was more than able to deal with the various issues, more so than would be expected if he had only just had sight of the criteria.

A meeting did take place on 19 November at which Mr Cook and the claimant were present along with the managing director Mr Walsh. Mr Walsh took no part in the meeting itself. The tribunal accepts his evidence that he was there merely to offer advice to Mr Cook, who had never conducted a redundancy meeting before, if it was necessary. In the event it did not prove to be necessary. At the meeting the claimant challenged some of the scoring and made representations about others. The meeting closed with agreement by Mr Cook to consider all that the claimant had said and to meet again the following day 20 November. After the meeting was concluded the claimant rang Mr Walsh suggesting additional criteria which should be included. Mr Walsh agreed that he would relay this suggestion to Mr Cook. A further meeting did take place the following day. In the meantime Mr Cook had adopted the claimant’s suggestions of additional criteria. He also dealt with the claimant’s comments, in some cases increasing the claimant’s scores. Having discussed the revised criteria and the revised scores the claimant was informed that his was still the lowest score and that accordingly he would be dismissed as redundant. He was notified of his right to appeal. The appeal hearing before Mr Walsh took place on 26 November 2008. The claimant had raised a number of points which he wished to be considered at appeal all of which were considered. Following the appeal meeting Mr Walsh indicated he would consider matters and advise the claimant of his decision. Mr Walsh met the claimant on 28 November when he informed him that he was upholding the decision to select him for redundancy. A letter confirming this and detailing his entitlements was sent on the same day.

(4) During the course of the claimant’s own direct evidence, without any prior preparation by way of cross examination, the claimant began to give evidence about a dispute he had had with Mr Cook. Following representations the tribunal allowed the claimant to continue giving this evidence subject to the right of the respondent to recall Mr Cook to deal with the allegations and, of course, to be subject to cross examination on the relevant point himself. The claimant described a period and process of running down of stock to which he had objected and made significant representations, ultimately refusing to accept responsibility for the manner in which this was being done and the effects arising there from. This policy was, according to the claimant’s evidence, initiated by the then managing director Mr Carlisle. The claimant’s evidence was that both Mr Carlisle and Mr Cook requested that the policy be operated. The claimant’s evidence went on to the effect that following his objections and actions Mr Carlisle tried to sack him and tried to demote him. The claimant appealed against these actions and was reinstated. Following that, according to the claimant, his relationship with Mr Cook had been strained. The claimant believed that Mr Cook’s decision was, as a result, personal and not a true business decision. The claimant conceded in cross examination that Mr Cook had no involvement whatsoever in the demotion, dismissal or disciplinary process involved. He said he believed that Mr Cook wished the policy to be adopted but accepted that following the incident, which happened some three years before the termination of his contract, there had never been a cross word between them. The claimant’s direct evidence had emphasised the involvement of Mr Carlisle in the matter, with Mr Cook being given only a peripheral mention. Mr Cook’s evidence was that he was not involved at all, that he was not the claimant’s line manager at the time and that he was, in fact, responsible for other areas of the business than that in which the claimant was involved. There was no evidence on the claimant’s part to contradict this.

(5) The claimant’s case was threefold. He maintained that he was unfairly targeted for redundancy by Mr Cook arising out of the prior incident which he described. He considered that the selection process was flawed in that there had been no meaningful consultation and that the respondent’s own policies had not been fully adhered to. Finally he alleged that the statutory dismissal procedures had not been followed.

The tribunal rejects the first of these suggestions as baseless. There is little or no evidence to show that Mr Cook was in any way involved with the “Carlisle incident.” He was certainly not involved, even on the claimant’s evidence, with any of the unpleasantness that followed that incident and it is, in the tribunal’s view, fanciful to suggest that some three years later Mr Cook should be seeking to take revenge for some unspecified slight by deliberately selecting the claimant for redundancy. The claimant made no mention of this personal animosity as the driver behind his selection when he took the matter to appeal or in his originating application. He stated that this was because he did not consider he would get a fair hearing on appeal. That would, in the tribunals’ view, be all the more reason for raising the issue in that it would have no effect on the final result. In any event it is not a ground for the claimant’s failure to raise this issue in his originating claim form. The tribunal also rejects the submission that the statutory dismissal procedures had not been complied with. The Employment (Northern Ireland) Order 2003 requires that the employer must set out the circumstances which lead him to contemplate dismissing the employee in writing. The employer must send this statement to the employee and invite the employee to attend a meeting to discuss the matter. In this case the employer sent the claimant a letter on 14 November 2008 setting out the circumstances, namely the business downturn, which led them to contemplate redundancies. The letter informed the claimant that he was at risk of dismissal. He had not been dismissed. Indeed, he was asked to attend a meeting at which he himself suggested that some different criteria might be adopted, suggestions which were acted upon. In that regard the tribunal accepts the evidence of the respondent that if on a rescoring the claimant had not been the lowest score the whole process would have restarted with the new person who was. The 2003 order requires that after the meeting the employer must inform the employee of his decision and notify him of the right to appeal. This was done. The final requirement of the 2003 order is that after the appeal meeting the employer must inform the employee of his final decision. Again, this was done. Accordingly the statutory dismissal procedures have been complied with and the submission that they were not falls.

The final issue for the tribunal is whether the selection and dismissal procedure was unfair. The claimant made a number of specific allegations of unfairness.

The claimant suggested that the weighting of the criteria for the selection was unfair, that there was insufficient consultation, that the consultation was meaningless, that the judgment exercise was subjective, and that the respondent had not sought opportunities for alternative employment within their own organisation. The claimant also suggested that the respondent’s own policy in regard to redundancies was not followed in that there was no prior request for voluntary redundancies and the criteria were not assessed by a panel as is provided for in the policy. The tribunal considers that the criteria chosen were, on the face of it, reasonable. Insofar as the claimant considered they were not adjustments were made. There has been nothing put forward by or on behalf of the claimant to suggest that any other criteria should have been used. In the tribunal’s view the criteria, certainly as finally applied, were reasonable. The tribunal also considers that the consultation was reasonable. The claimant was informed that he was at risk. He was given the opportunity to discuss the criteria and to make his own suggestions which were, in fact, acted upon. He also made representations about his scores which were, again, acted upon. The tribunal, as has been said, accepts that if on rescoring another candidate had been found to score lower than the claimant the process would have begun again. In these circumstances the consultation was satisfactory.

The tribunal did consider whether the weighting of the area of management of caps and beams as being lower than other areas could be regarded as unfair but concluded, as did the claimant in cross examination, that it was not unreasonable to have regard to the value to the business in ascribing the weight.

There is always a degree of subjectivity in making judgements. In this case where judgements had to be made by Mr Cook they were made with the assistance of the appropriate person who would have knowledge of the claimant’s abilities, namely his line manager. The claimant suggested that as he had not been receiving assessments no proper judgment could be made. The tribunal rejects his argument as the person who would have carried out such an assessment, namely his line manager, was consulted.

It was suggested that the respondent should have consulted with all members of the post as being “at risk” and had used a further consultation with the claimant after the scoring as being at “high risk.” The tribunal does not consider the respondent to have been under such a duty. Nor does the tribunal consider that in all circumstances employers must consult about the criteria to be used with all persons who may be at risk. That may be required in group redundancies or where there is a representative trade union involved but is not required in every case. It would lead to unreasonable prolongation of the process.

There was no indication in the evidence that a search for alternative employment with other companies in the respondent’s group was made at the selection stage though clearly there was no opportunity for redeployment in the respondent company itself. Searches were carried out at the appeal stage in relation to the Northern Ireland associate companies with nothing available. The claimant became aware of an apparent vacancy in England immediately prior to the termination of his employment though subsequent investigation by the respondent showed that no appointment was ever made.

The claimant also suggested that his appeal was unfair because it was heard by Mr Walsh who attended one of his previous meetings on 19 November 2008. The tribunal is satisfied that Mr Walsh took no part in that prior meeting or in the original redundancy decision. He certainly did not learn anything he would not have been told in order to hear the appeal properly, and the tribunal did not consider his previous attendance in the role described prevented him from hearing the appeal. The tribunal did not accept the claimant’s evidence that he was informed of the appeal decision on the day of appeal or his conclusion that the result was pre-decided. The record of appeal makes clear the decision was deferred and the letter of decision 2 days later goes to confirm this.

The claimant referred to the company’s redundancy policy and suggested it had not been followed. No voluntary redundancy was first sought and the selection criteria were not applied by a panel but by Mr Cook alone. However the tribunal notes that the seeking of voluntary redundancies is not a requirement under the policy though it would be desirable. The tribunal also accepts that the respondent’s evidence that, in the existing conditions, volunteers for redundancy were highly unlikely and that no retirement or resignations had occurred since the claimant’s departure.

It will be apparent from the statements above that the tribunal does not consider the weighting, the judgements made, the consultation process or the appeal process to have been unfair. Insofar as other matters are concerned the tribunal accepts that there were some shortfalls but not to the degree where the whole process could be described as unfair. Furthermore the tribunal considers that even if the identified shortfalls had not been present the result would have been the same. It follows that, pursuant to the provisions of the 2003 Order, the dismissal was not unfair and the application falls to be dismissed.

Chairman:

Date and place of hearing: 5 October 2009 and 17 November 2009, Belfast.

Date decision recorded in register and issued to parties: