Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2010/03164_09IT.html
Cite as: [2010] NIIT 03164_09IT, [2010] NIIT 3164_9IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 3164/09

CLAIMANT: Jonathan Smith

RESPONDENT: Red Sky Group Ltd

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed and it is ordered that the respondent shall pay to the claimant the sum of £17,286 compensation in respect of that unfair dismissal.

Constitution of Tribunal:

Chairman: Mr Buggy

Members: Dr John Young

Mr John Magennis

Appearances:

The claimant was represented by Mr M Corkey, Barrister-at-Law, instructed by Stewarts Solicitors.

The respondent was represented by Ms R Best, Barrister-at-Law, instructed by Carson McDowell Solicitors.

REASONS

1. During the relevant period, the respondent company (“the Company”) employed hundreds of staff. It provides building and maintenance services. The claimant was employed by the Company from September 2004 until November 2008. Throughout most of his period of employment, he was employed by the respondent as an apprentice electrician. However, he became a qualified electrician in July 2008. From then onwards, he was employed as an electrician. With effect from 24 November 2008, the Company dismissed the claimant on the ground of redundancy.

Issues

2. In these proceedings, the claimant complains of unfair dismissal. The main issues in this case are as follows:

(1) Was this an automatically unfair dismissal, in the sense in which that term is used in the context of Article 130A(1) of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”)?

(2) Was this an “ordinary” unfair dismissal, in the sense in which that term is usually used in the context of Article 130(4) of the 1996 Order?

(3) If this would have been an “ordinary” unfair dismissal were it not for the provisions of Article 130A(2) of the 1996 Order, has the employer successfully invoked the protection of Article 130A(2)?

(4) If this was an unfair dismissal, what is the extent of the claimant’s loss, and has the employer proven that he has failed to mitigate his loss?

(5) Should there be a ”Polkey” deduction from any compensation which might otherwise be awarded?

(6) Should any award of compensation be uplifted pursuant to Article 17 of the Employment (Northern Ireland) Order 2003 (“the 2003 Order”) and, if so, to what extent?

Sources of evidence

3. The claimant gave evidence on his own behalf. The following gave evidence on behalf of the company:

(1) Mr Robert Brown, the claimant’s line manager;

(2) Mr Robert Fyffe, the Company’s Operations Manager;

(3) Ms Linda Given, the Company Secretary of the Company;

(4) Ms Patricia Grant, a Human Resources officer within the Company.

4. We saw an agreed bundle of documents, along with some separate miscellaneous documents.

5. We told the parties that we would not take any document within the bundle into account for evidential purposes unless that document was drawn specifically to our attention by one or more of the parties.

The facts

6. For ease of reference, and in order to minimise avoidable duplication, we have set out some findings of fact in other paragraphs of this Decision. However, this paragraph contains many of the findings of fact which are relevant to the issues which we have determined:

(1) The claimant was recruited to the Company as an apprentice electrician. He qualified as an electrician in July 2008. He was retained in the Company’s service as a qualified electrician. The claimant strongly believes that, with effect from the date of his qualification, he should have received a salary increase to reflect the circumstance that he had now qualified as an electrician. However, from the date of his qualification to the date of his second dismissal, he never received any increase.

(2) The Company carries out building and maintenance services. In October 2008, it had 450 workers. In November 2009, it had approximately 430 workers.

(3) Broadly speaking, the Company is divided into two main areas of activity. First, there is the maintenance side of the business, which provides a maintenance service for commercial, retail, public sector, Housing Executive and housing association properties. Secondly, there is the area of the business which is concerned mainly with capital works (the Contracts Division). Typically, each project carried out by that Division would have a six or seven figure value. The claimant was employed in the Contracts Division.

(4) The claimant’s line manager was Mr Robert Brown, a Contracts Manager. Mr Brown reported to a Mr Morgan, a Business Manager. Mr Morgan, in his turn, reported to Mr Fyffe who was the Operations Manager of the Company.

(5) The claimant was dismissed by the Company in October 2008. He was reinstated by the Company later that month. He was again dismissed by the Company in November 2008. In these proceedings, the claimant complains that the November dismissal was an unfair dismissal.

(6) The Contracting Division of the Company had to cope with considerable economic difficulties, because of the recession. Those difficulties had already begun in September 2008. Those difficulties have persisted right up to the date of the hearing.

(7) In September 2008, Mr Bill Morgan was still the Electrical Business Manager (and, as such, the claimant’s line manager’s line manager). In that capacity, he decided to make six people redundant. On 22 September 2008, he emailed Patricia Grant in Human Resources, to the following effect:

“Patricia, Can you make the necessary arrangements for the following lay offs from today”.

In that email, he went on to name six people, including the claimant. The title of his email was “Redundancies”.

(8) In response, Ms Grant in effect protested, by making the following observations:

“On what grounds are they being laid off and have you consulted with them in order to let them know that there is going to be potential permanent Lay Offs?

Also, see attached criteria which should be used when laying people off, has this been used for all staff in the area to ensure that it is seen to be [a] fair and consistent process?”

(9) That protest, or those observations, were given short shrift. The same day, Mr Morgan replied to Ms Grant in the following terms:

“We have no work for these guys and they have been told what to expect. We need the official letters sent out now while the criteria forms are [being] filled in.”

(10) The following day, 23 September, Ms Grant in effect surrendered. She wrote to Mr Morgan in the following terms:

“I am in Scotland today, if you let the guys know what to expect, then inform them that letters will be sent out tomorrow to confirm”.

(11) Accordingly, a blatantly unfair redundancy process was pursued in September 2008, even though the Human Resources professionals of the Company had warned against it. The relevant operational manager had instructed Human Resources to do something which he knew, and they knew, to be entirely inappropriate from a legal point of view. The dismissal letters were sent by the Company even though those in authority in the Company knew that the dismissals were unfair and legally inappropriate.

(12) The claimant’s first dismissal took effect on 10 October 2008. The claimant responded in writing. He made it clear that he knew the dismissal was unfair and that he intended to seek appropriate legal remedies.

(13) He was invited to a meeting with Mr Andrew McCullough, the Company’s HR Manager, and with Patricia Grant. The meeting took place on 15 October 2008.

(14) At that meeting, the claimant asserted that he had been dismissed unfairly and that, during the period of his employment with the Company, he had “regularly” been unfairly treated by his manager Robert Brown.

(15) The Company apologised for what they described as a mistake. They reinstated him. He was invited to return on 20 October.

(16) It was made clear to him at that time that if he had any workplace grievances in the future, he should bring them directly to the attention of Robert Fyffe, who was the line manager of the line manager (the Electrical Business Manager) of Robert Brown. In other words, in future, if the claimant had any workplace grievances, he should come directly to Mr Fyffe, the Operations Manager. In our view, that arrangement was a clear recognition on the part of the Company that it would be better, in view of the controversy regarding the working relationship between Mr Brown and the claimant, that future grievances should not be raised with Mr Brown, but should instead be raised with somebody else.

(17) In his evidence to us, the claimant asserted that Mr Brown had treated him unfairly for a lengthy period prior to the October 2008 dismissal. However, when he provided his testimony to us, he was unable to provide us with much detail of much ill-treatment, or of much unfairness, during that period.

(18) We are satisfied however that from the moment of his reinstatement on

20 October 2008, there were considerable tensions between the claimant and Mr Brown.

(19) The dismissal letter of 8 October had given the claimant one week’s notice of dismissal. He had, by that time, been employed by the respondent for a continuous period of four years.

(20) The claimant’s reinstatement had taken place following contact with the Chief Executive of the Company. Even though he was in India at the time, the matter was sufficiently serious to require contact to be made with him there, before reinstatement was offered.

(21) In a letter dated 15 October, the claimant’s reinstatement was confirmed. That letter, which was sent by Patricia Grant, and which was written after the claimant had informed the Company that he had been subjected to mistreatment by Mr Brown, included the following paragraph:

“As discussed we would like you to return on Monday 20 October 2008. You will be placed within the Contract Department under the same management as before. However, I can’t stress enough the importance of flagging any issues regardless [of] how important or relevant to HR”.

(22) The letter contained the following words of apology:

“Again I apologise for the catalogue of errors which have gone on in the past few months, and that we as a Company aim to ensure that all employees are treated fairly”.

(23) The last paragraph of the letter of 15 October was in the following terms:

“I would like to thank both you and your Mum for taking the time to come and meet with Andy and myself. We found the meeting very

worthwhile and will be [endeavouring] to ensure your future employment with Red Sky is seen to be transparent and fair”.

(24) So the claimant returned to work. However, he was not allocated much site work. Instead, he was mainly left working in the stores. Mr Brown told him he had no work for him to do. Mr Brown showed irritation about what Mr Brown regarded as the claimant’s “direct line” to HR.

(25) The autumn of 2008 was a terrible period for the building industry.

(26) On 10 November 2008, 20 days after the claimant’s return, Mr Fyffe carried out a redundancy consultation meeting with operatives in Electrical Contracting. Robert Brown was also in attendance. (Mr Morgan had left the Company on 31 October 2008). The purpose of the 10 November meeting was to discuss a new round of redundancies in the part of the business to which the claimant was assigned.

(27) By that point, the Company had already decided upon the redundancy selection criteria which it would apply in the context of the forthcoming redundancies.

(28) Those criteria had never been the subject of any consultation with the workforce.

(29) The criteria had been recommended by the Human Resources Department of the Company. There was nothing intrinsically unfair about the criteria. Indeed, the criteria were not out of line with the advice generally provided by the Labour Relations Agency to employers generally.

(30) There were eight redundancy criteria. They were as follows:

(a) Skill level for the job

(b) Quality of output

(d) Flexibility

(e) Potential

(f) Attendance record

(g) Time keeping

(h) Service

(31) Criteria (a) and (b) (skill level and quality of work) respectively were each weighted as carrying three times the marks of each of the other criteria. Such weightings were entirely appropriate.

(32) Criteria (f), (g) and (h) (attendance record, time keeping and service) did not involve any subjective judgements. All that was involved was to read the Company records accurately. All of the other criteria (criteria (a), (b), (c), (d) and (e) respectively) were based on the relevant operational manager’s assessment. In this case, in relation to all of the potentially redundant staff, Mr Brown carried out the relevant assessments.

(33) In practice, Mr Brown’s assessments were treated as determinative, in relation to the criteria which those assessments covered, by the relevant decision-maker at both stages of the redundancy process. (The initial redundancy decisions were made by Mr Fyffe and the redundancy decisions upon appeal were made by Ms Given).

(34) Mr Brown carried out his assessments in early November. He did so without reference to anybody else. He did so from memory, and did not consult any documentation while he was making the assessments. The whole process, in relation to 17 people, was carried out in a short period of time, during the course of an evening.

(35) When all of the criteria had been marked, it emerged that the claimant had received the lowest overall grade of the 17 people who were the subject of assessment. He had got 18 marks out of a possible 48. His overall grade was 38%. According to the marking sheet, any grade of less than 50% involved work performance which was “unacceptable”. According to the individual redundancy assessment sheets, any mark of less than 24 involved “unacceptable” performance. Yet the claimant had never been the subject of any performance-related formal action, whether by way of disciplinary action or by way of guidance. He had been retained in the service of the respondent Company from July, when he had qualified as an electrician, without any comment being made to him then by management as to the acceptability, or otherwise, of his work performance. We are satisfied that Mr Brown’s assessment of the claimant as a person whose quality of work was unacceptable was out of line with the known facts, which included the circumstances that the claimant had never been the subject of any disciplinary action, had never previously been the subject of any contemporaneously documented complaint, and had never been the subject of any contemporaneously documented Company expression of concern, about the quality of his work.

(36) The redundancy assessment marking sheets left a box available alongside each marking, within which the assessor could provide, brief reasons for the relevant assessments. The provision of such reasons was particularly appropriate in circumstances in which the claimant was being marked by Mr Brown as having “quality barely acceptable” in relation to quality of work, and “inadequate knowledge of job…” in relation to job knowledge and “capable of carrying out minimal activities” in relation to flexibility. However, the assessment sheet which was completed in respect of the claimant by Mr Brown provided no such reasons.

(37) In the Response in these proceedings, the Company made the following point:

“The respondent strongly refutes the allegation that the Claimant was unfairly selected for redundancy as the assessments of all the employees within the Department were discussed and agreed following consultation with Robert Fyffe (Operations Manager), Robert Brown (Electrical Supervisor), Tony McCallion (Project Manager) and

Paul Williamson (Project Manager). This was to ensure that the assessments were objective and that personal preference played no part in the selection process”.

Furthermore, in an answer to a request for further information dated June 2009, the Company responded to the question “Please confirm who was involved in the scoring of the selection criteria in relation to our client and all those selected for redundancy”. The following response was provided:

“Robert Fyffe, Operations Manager, Robert Brown, Electrical Project Manager, and Paul Williamson, Project Manager. Tony McCallion, Site Foreman-Bangor Library also provided feedback to enable the scoring exercise to be undertaken”.

(38) As is clear from the oral testimony of Mr Fyfe and Mr Brown, the relevant comments in the Response and the answers to the relevant “request for further information” were both inaccurate. In reality, only Mr Brown carried out the assessments. Mr Fyffe “rubber-stamped” those assessments. Mr Williamson and Mr McCallion had no involvement in the process by which Mr Brown carried out his assessments.

(39) Mr Fyffe told us that he had not considered it to be appropriate to enter into detailed debate with Mr Brown about the assessments carried out by Mr Brown, because Mr Brown had the operational experience of the claimant’s work, whereas Mr Fyffe did not.

(40) When the matter came to Ms Given in her role as the person who carried out the redundancy appeal in the claimant’s case, she did not second-guess Mr Brown’s assessments, because, over many years, she had found him to be a truthful and honourable person.

(41) So, in practice, the only person who assessed the claimant in respect of the key selection criteria was the individual against whose conduct the claimant had made allegations recently, allegations which had neither been proven nor disproven. And all this happened even though the Company had considered it appropriate that any future allegations, which the claimant might make, ought not to be left with Mr Brown, but ought, instead, to be directed elsewhere within the Company.

(42) We found the evidence of Mr Fyffe, Mr Brown and Ms Given, evasive and unconvincing in answer to queries as to whether the claimant’s appeal against the previous dismissal, and the circumstances of his reinstatement, were a factor in his redundancy selection in November and December 2008.

(43) The outcome of the redundancy process, in relation to the claimant, was as follows. First, at the first stage of the redundancy selection process, Mr Fyffe decided that the claimant should be made redundant. Secondly, at the appeal stage of the redundancy process, Ms Given upheld Mr Fyffe’s redundancy decision.

(44) The claimant’s appeal against the November redundancy decision had incorporated complaints against Mr Brown. Accordingly, the Company construed that letter as also incorporating a separate invocation of the Company’s internal grievance procedure. At the same time as Mr Fyffe’s redundancy decision was under appeal (to Ms Given) he was himself adjudicating upon the grievances which the Company had discerned within the redundancy letter of appeal. The relevant grievances were found by the Company not to be well-founded.

(45) Throughout this case, it has been argued on behalf of the Company that any procedural lapses were the result of inadvertence or communication breakdown. Against that background, we noted two matters. First, in a letter dated 10 October 2008, the claimant had accused the Company of failing to provide him with statutory guarantee payments during a lay-off period. Secondly, as a result of evidence which was given during the hearing, we noted that there was a real issue as to whether or not the Company had been making guarantee payments during periods of lay-off, to its employees generally. We asked Ms Best to seek the Company’s instructions as to its position in relation to those matters. (Had there been any failures to pay guarantee pay amounts? Were all guarantee payments now up to date?) Unfortunately, Ms Best was unable to obtain definitive instructions on those matters prior to the end of the hearing. However, by letter dated 18 December, the Company’s solicitors were able to convey their instructions, in a letter to the Secretary of the Tribunals which contained the following information:

“We are writing to confirm our instructions that our client has now paid all of the outstanding guarantee payments that were to due to its employees (or ex-employees). Cheques were issued to those individuals on 7 December 2009. We are instructed that the slight delay related to ascertaining what days the employees had chosen to take as a holiday (and thus receive full pay) and those days which were days on which the staff were temporarily laid off”.

The arguments

7. For the respondent, Ms Best provided a very helpful written submission (“the Submission”) which sets out the main arguments of the respondent in this case. She drew our attention to the industrial tribunal Decision of 29 May 2009 in Boyce v Red Sky Group Ltd (case ref 127/09), in which the unanimous decision of the tribunal was that, in that case, the claimant was not unfairly dismissed by reason of unfair selection for redundancy. For the claimant, Mr Corkey made oral submissions. He drew our attention to the Employment Appeal Tribunal judgement in E-Zec Medical Transport Service Ltd v Gregory UKEAT/192/08, judgement delivered on 14 November 2008. He also drew our attention to Wylie v RFD Ltd (case ref 9466/03), McCormick v Short Brothers PLC (case ref 715/03) and Marshall v Abbicoil Springs Ltd (case ref 246/09), which are all industrial tribunal’s Decisions. (It should be noted that the McCormick case is currently under appeal). We are grateful to the representatives on both sides of the case for the quality of the arguments which each of them has presented. The Submission on behalf of the

respondent provides a permanent record of some of the arguments which were made on behalf of the respondent. In the context of our Conclusions, as set out below, we have referred in some detail to many of the arguments put forward on behalf of each party. In the circumstances, there is no need, in our view, to set out a comprehensive statement, at this point in the Decision, of all of the relevant arguments which were presented to us.

The automatic unfair dismissal claim

8. In the context of the “automatic” unfair dismissal claim, we now set out some of the arguments of the parties, a statement of relevant legal principles, and our conclusions:

(1) Paragraph (1) of Article 130A of the 1996 Order provides that an employee who is dismissed is to be regarded for the purposes of the unfair dismissals legislation as being unfairly dismissed if a statutory dismissal and disciplinary procedure (“DDP”), as set out in the Order, applied in relation to the dismissal, and that procedure has not been completed, and the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.

(2) Details of the relevant procedures are set out in Part I of Schedule 1 of the 2003 Order:

(a) The effect of paragraph 1 of Schedule 1 is that, in the context of a redundancy dismissal, the employer must set out in writing the circumstances which led it to contemplating dismissing the employee, and the employer must then send the statement to the employee and invite the employee to attend a meeting (“a Step 2 meeting”) to discuss the matter.

(b) The effect of paragraph 2 of Schedule 1 is that the Step 2 meeting must not take place unless and until the employer has informed the employee what the basis was for including in the paragraph 1(1) statement the ground given in it, and the employee has had a reasonable opportunity to consider his response to that information.

(3) In Alexander v Brigden Enterprises Ltd [2006] ICR 1277, Elias P considered the question of the extent of the information which had to be provided by the employer, under the equivalent of paragraph 2 of Schedule 1 of the 2003 Order, in the context of a redundancy procedure, in order for that employer to meet the relevant requirements which are contained in Part I of Schedule 1. In that case, at paragraph 45 of the judgement, Elias P concluded that, prior to the Step 2 meeting, the claimant must not only be informed of the selection criteria which were applicable in the circumstances of his potential selection for redundancy, but must also be made aware of the detail of the employer’s redundancy selection assessment in relation to himself:

“That will give the employee an opportunity to make representations not only about whether the criteria are justified and appropriate but

also, more importantly, whether the marking given to him in respect of any particular criterion is arguably unjust, and why. It may be that he can correct some obvious factual error, such as being attributed with a disciplinary record he does not have, or what appears to be a rogue mark on one of the criteria, apparently wholly out of line with his work performance. His response will be difficult to formulate, and very much in a vacuum, without this information.”

(4) The parties are agreed that a statutory DDP applies in the circumstances of this case. They are also agreed that the claimant was not given details of the criteria, or of his own assessment, until towards the end of the “Step 3 meeting,” which was the meeting in respect of his appeal against his dismissal. (In other words, the parties are agreed that the claimant was not informed of the criteria, or of his own assessment, at Step 2 of the statutory DDP).

(5) Against that background, Ms Best, for the respondent, was constrained to accept that there had been a failure, at Step 2 of the procedure, on the part of the respondent, to comply with the requirements of the DDP, in that there had been a failure to inform the claimant as to the precise criteria and as to the assessment which had been made under those criteria in relation to himself. However, Ms Best argued, the tribunal should not conclude that the dismissal was for that reason automatically unfair (in the sense in which automatic unfairness is used in the context of Article 130A(1) of the 1996 Order), because that failure had been rectified at Step 3 of the DDP (at the appeal meeting).

(6) We are unable to accept Ms Best’s submissions in that connection. In our view, there clearly is a failure to complete the DDP procedure if the Step 2 meeting is held at a time when the employer has not already informed the employee of the criteria which are being used in the context of the contemplated redundancy dismissal, and of the assessment which has been made in respect of that employee in the context of that contemplated dismissal.

(7) Because of those shortcomings, the claimant did not have enough information to enable him to formulate an informed response, at Step 2 of the procedure, which the DDP is designed to facilitate. Because of that lack of information, the DDP procedure was not completed, and that was wholly the fault of the employer.

(8) Ms Best did not identify any authority for the proposition that a failure to complete the relevant procedure at Step 2 can be cured by carrying out the omitted Step 2 actions at Step 3 of the DDP. In our view, having regard to the structure, context and detailed provisions of Schedule 1 of the 2003 Order, and of Article 130A of the 1996 Order, it is clear that the legislator intended tribunals to find a dismissal to be automatically unfair if the relevant information (details as to the criteria which are being used in the context of a contemplative redundancy dismissal, and the assessment which has been made in respect of the particular employee) are not provided in sufficient time

to allow the employee to make use of them in the context of a Step 2 meeting.

(9) In arriving at that conclusion, we have taken due account of the decision of the Court of Appeal in Selvaragan v Wilmot [2008] EWCA Civ 862. We have noted that the requirements which were in Wilmot were general requirements which were contained in the equivalent of Part III of Schedule 1 (as distinct from constituting an integral part of a procedure, as in the present case, which was prescribed in Part I of that Schedule).

(10) Against that background, and for those reasons, we are satisfied that the dismissal is automatically unfair.

“Ordinary” unfair dismissal claim

9. In the context of the claim of “ordinary” unfair dismissal, we now set out some of the arguments of the parties, a statement of relevant legal principles, and our conclusions:

(1) Quite apart from the claimant’s successful claim of “automatic” unfair dismissal (pursuant to Article 130A of the 1996 Order), is the dismissal fair or unfair within the meaning of Article 130(4) of that Order?

(2) The claimant accepts that the reason for his dismissal was redundancy. Redundancy is a potentially fair reason for dismissal in the context of Article 130 of the Order. (The claimant says that he was unfairly selected for redundancy).

(3) Accordingly, we can focus on those matters which are at the heart of Article 130(4). That paragraph provides that, where the employer has shown a potentially fair reason for a dismissal (in this case, redundancy) the determination as to 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 a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case”.

(4) We are satisfied that, in the factual and other circumstances of this case, we ought to conclude that the dismissal is “fair” (within the meaning of Article 130(4) of the 1996 Order) if the Company, in selecting the claimant for redundancy, acted inside “the range of reasonable responses”.

(5) There was no disagreement between the parties on the concept of the range of reasonable responses. That concept can be summarised as follows. First, the tribunal must not step into the employer’s shoes. What this means is that the tribunal must not decide what the tribunal itself would have done,

in the circumstances of the case. Instead, the tribunal must decide whether the employer has acted reasonably. Secondly, the test as to whether an employer has acted reasonably is an objective test and the tribunal has to be guided by the fact that, in many cases, there are a variety of responses open to an employer and that, provided the dismissal was within the limits of that range of responses, the dismissal will be fair. Thirdly, the function of the tribunal, as an industrial jury, is to determine whether, in the particular circumstances of the particular case, the decision to dismiss the employee fell within the band of reasonable responses (which a reasonable employer might have adopted). If the dismissal falls within that band, the dismissal will be fair. It is only if the dismissal falls outside the band that it will be unfair.

(6) According to the claimant, his dismissal fell outside the range of reasonable responses in the following circumstances and for the following reasons:

(a) First, Mr Corkey asserted that there had been no consultation on the criteria prior to their adoption, on the part of the employer, as the relevant redundancy criteria.

(b) Secondly, on behalf of the claimant it was argued that the question of whether or not the claimant should be selected for redundancy (under the selection criteria decided upon by the employer) was a question upon which there had been no prior consultation with the claimant at any time prior to the employer’s decision to select him for redundancy. In that connection, Mr Corkey reminded us of the content of Mr Fyffe’s email of 13 November 2008, which treated the selection of the claimant as a foregone conclusion, at a time when there had not yet been a one-to-one consultation with him on the selection question (on the question of whether or not he should be selected, pursuant to the criteria, for redundancy).

(c) Thirdly, Mr Corkey pointed out that some of the more important of the relevant redundancy criteria were criteria which made it necessary for the redundancy assessor to make highly subjective judgements, but the respondent was unable to point to any contemporaneous documentation which helped to prove the fairness of the judgments which had been made by Mr Brown. Indeed, as Mr Corkey pointed out, Mr Brown had himself made no contemporaneous notes of any reasons for his judgements on those matters.

(d) For the claimant, it was asserted that the Company went seriously wrong in relying so heavily on the assessments of Mr Brown, at a time when Mr Brown was the subject of allegations made by the claimant which had neither been proven nor disproved.

(e) Fifthly, Mr Brown’s assessments were tainted by his dislike of the claimant.

(f) Sixthly, Mr Brown’s assessments were tainted by the Company’s wish to retaliate against the claimant in respect of his assertion of rights in connection with the unfair dismissal which had occurred in October 2008.

(g) Seventhly, the respondent company had failed to bring available alternative employment to the claimant’s attention.

(7) The arguments presented on behalf of the respondent in relation to those matters can be summarised as follows:

(a) It was accepted that there had been no prior consultation with staff before the respondent adopted the relevant redundancy criteria.

(b) Secondly, in relation to the alleged failure to have a meaningful consultation with the claimant in relation to any proposal to select him for redundancy, the position of the respondent was as follows. First, it was acknowledged that, by the time of the first one-to-one meeting with the claimant, the respondent had made up its mind that, if there were to be the contemplated number of redundancies, then the claimant would be one of the redundant workers. However, Ms Best argued, at that time the respondent was still open to arguments and representations on the number of posts which should be reduced within the relevant part of the Company, and was still open to arguments in relation to the availability of alternative employment.

(c) The respondent did not accept that its redundancy criteria were subjective. Instead, according to the respondent, the criteria were consistent with advice which had been set out in the LRA “Advice on handling redundancy” document of October 2007. The tribunal should be satisfied that Mr Brown was a very honest and suitably expert person. Accordingly, the lack of contemporaneous supporting documentation, and the lack of detailed contemporaneous written explanation (for the various Brown assessments) were of limited importance.

(d) Fourthly, there was nothing wrong in the Company’s decision to rely upon Mr Brown as its assessor. The allegations which the claimant had made against Mr Brown had never been proven. Mr Brown was the person whose expertise, knowledge and experience best fitted him to act as assessor.

(e) Fifthly, the Company argued that the tribunal could not be satisfied, on all the available evidence, that Mr Brown did indeed dislike the claimant. In this regard, Ms Best pointed to discrepancies between the claimant’s typed-up version of relevant events and the hand-written diary notes which the claimant had produced at or around the time of the incidents which those notes purport to describe.

(f) Sixthly, the Company rejects the allegation that Mr Brown’s uncomplimentary assessments of the claimant were affected to any extent by any desire, by or on behalf of the Company, to retaliate against the claimant on account of the action which the claimant had taken as a response to his October dismissal. Mr Brown and Fyffe and Ms Given had all truthfully and accurately testified that the November and December decisions in relation to the selection of the claimant were in no way affected by resentment at the efforts which he had made to secure his reinstatement following the October dismissal. The narrow time-gap between the two dismissals was merely coincidental; the autumn of 2008 had been a terrible time for the building industry in Northern Ireland.

(g) Seventhly, information in relation to suitable alternative employment was made available to anybody who enquired about it. Therefore, the respondent could not accept that it was at fault in failing to proactively bring the availability of alternate employment to the attention of the claimant.

(8) We are satisfied that, in deciding to select the claimant for dismissal, the respondent acted outside the range of reasonable responses. In our view, no reasonable employer would have behaved in this way.

(9) In arriving at that overall conclusion, we have taken account of all of the determinations which we have made in respect of the following matters.

(10) First, we noted that the redundancy criteria had been imposed on the relevant part of the workforce. There had been no attempts to consult with the affected employees before the criteria were decided upon.

(11) Secondly, we were satisfied, in light of the Fyffe memo of 13 November, that, by the time of the first one-to-one redundancy meeting with the claimant, his fate had already been decided upon. He had already, at that point, been selected for redundancy.

(12) Thirdly, many of the criteria upon which Mr Brown carried out his assessment were very subjective. There was nothing intrinsically wrong about that. However, there was no contemporaneous supporting documentation for the sweeping condemnations of the claimant which were indicated by the low marks which Mr Brown gave to him. Against that background, Mr Brown’s own failure to provide even brief contemporaneous written reasons for the various determinations was an important shortcoming in the process.

(13) Fourthly, we are satisfied, on the balance of probabilities, that resentment, on the part of the Company, about the claimant’s reinstatement campaign (the efforts which the claimant had made to achieve reinstatement following his September sacking) was a significant influence in the context of Mr Brown’s assessments. In arriving at that conclusion, we have had regard to all our findings of fact, and to our assessments of the demeanour and manner of giving evidence of the witnesses who gave evidence on behalf of the Company. In particular, in the present context, we have paid particular regard to the findings of fact which are set out at sub-paragraphs (11), (24) and (37) of paragraph 6 of this Decision.

(14) Fifthly, the Company knew, or should have known, that alternative Company employment, which might be suitable for, or which might be relatively attractive to, the claimant, either was currently available (at the time of the proposed redundancy), or would shortly become available. In those circumstances, any reasonable employer would have taken steps to draw that information to the attention of the claimant, rather than waiting for the claimant to ask the right questions about the availability of any such employment.

(15) In our view, the decision of the industrial tribunal in the Boyce v Red Sky Group Ltd case is a reflection of the facts of that particular case and of the arguments which were made in that case.

(16) We agree with the proposition which was set out at paragraph 18 of the respondent’s Submission, in the following terms:

“18. In essence it is submitted that the tribunal must not decide what it would have done itself in the circumstances of the case but whether the employer has acted reasonably (Grundy (Teddington) UK Ltd v Willis [1976] ICR 323). The test is objective and the tribunal should be guided by the fact than in any case there are a variety of responses open to an employer, but provided dismissal was within the limits of that range of responses, the dismissal will be fair (Rolls Royce v Walpole [1980] IRLR 343).”

(17) At paragraph 17 of the Submission, Ms Best quotes comments which were made by Waite LJ, in British Aerospace plc v Green 1 ICR [1995] 1010, in the following terms:

“So in general the employer who sets up a system of selection which can reasonably be described as fair and applies it without any overt sign of conduct which mars its fairness will have done all that the law requires of him”.

(18) In relation to those comments, we make three observations. First, we think that the totality of the shortcomings in the selection process in this case, which we have listed above, do amount to overt signs of conduct which mars the fairness of the application of the Company’s selection system. Secondly, the relevant comments in Green have to be read in conjunction with the decision of the Court of Appeal in Northgate HR Ltd v Mercy [2007] EWCA Civ 1304, especially at paragraph 23. (See the reference to the Mercy case at paragraph 15(9) of the industrial tribunal Decision in McCormick, which has already been mentioned above).

(19) At paragraph 22 of the respondent’s Submission, it is asserted that the accuracy or otherwise of certain post-dismissal notes relating to the claimant’s work performance are not challenged by the claimant. In reality, in his evidence, the claimant did not accept that each account was a full and fair assessment of his work performance at the relevant time. Furthermore, he explained the context of each event, and he put each of the relevant criticisms into context for us. In our view, the incidents which are described in the relevant reports are small in number and they do not refer to any quality issues which are greater in extent than the quality issues which one would expect to arise in relation to any reasonably competent apprentice electrician who is still learning his trade. We note that these written accounts of aspects of the claimant’s work were not completed until after the dismissal decision had been made, that they were completed at the request of the relevant decision-maker (Mr Brown), and that those requests were made by him at a time when many people in the Company had reason to believe that their own job security was far from assured.

(20) Paragraph 28 of the respondent’s Submission says that the claimant was offered employment within the Social Housing Department of the Company in connection with his early October reinstatement (following the October unfair dismissal). This is true, but at that time he had no good reason to believe that a fresh redundancy was an imminent real and actual (as distinct from a distant, theoretical and potential) prospect.

(21) At paragraph 31 of the respondent’s Submission, it is suggested that, at the Step 2 meeting, the redundancy scores were discussed. However, in reality, the claimant was not shown his own redundancy score until towards the end of the Step 3 meeting.

(22) The provisions of Article 130A(2) of the 1996 Order cannot prevent this dismissal from being an “ordinary” unfair dismissal, because the Company has not shown that it would have dismissed the employee even in the absence of the “ordinary” procedural shortcomings (as identified by us above). That particular conclusion is based on factual conclusions which are set out at paragraph 12 below.

The amount of loss and the mitigation issue

10. What was the extent of the claimant’s actual loss as result of this dismissal? And to what extent, if at all, did he fail to mitigate his loss? In this part of this Decision, in the context of those issues, we refer to some of the arguments of the parties, we set out a statement of relevant legal principles, and we set out our conclusions. However, before doing so, we should make it clear that the parties are agreed, and we are satisfied, that the claimant is not entitled to a basic award in this case (because a redundancy payment has already been made to him). Accordingly, in the present context, we are concerned only with the proper extent of a compensatory award. Our account of the arguments, of the legal principles and of our conclusions is as follows:

(1) The parties are agreed (subject to the mitigation of loss issue, the Polkey issue and the 2003 Order uplift issue) that the claimant’s dismissal-related loss amounts to £22,161.70.

(2) That sum is made up as follows. First, there is an agreed figure of £13,018.32, in respect of the claimant’s loss of earnings to date. Secondly, there is a sum of £8,843.38 in respect of future loss of earnings. Thirdly, there is an agreed figure of £300 in respect of loss of statutory rights.

(3) Article 157(4) of the 1996 Order provides that, in ascertaining loss for the purposes of calculating a compensatory award, an industrial tribunal:

“…shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of Northern Ireland”

(4) What is the extent of the duty to mitigate? Broadly speaking, the test is simply whether the employee’s conduct, in seeking, taking, or refusing a particular source of income, is reasonable on the facts of the particular case.

(5) We have noted that the claimant’s typed up version of various encounters with Mr Brown was not an accurate version of those encounters. Furthermore, we are surprised that a qualified electrician has been able to earn no income whatsoever throughout the entire period from May 2009 until the date of this hearing.

(6) However, we note that the onus of proof is on the employer in respect of any alleged failure to mitigate loss. (In other words, if we are not satisfied, on the balance of probabilities, that a claimant has failed to mitigate his loss, we must conclude that the relevant claimant has not failed to mitigate his loss).

(7) Against that background, we have indeed concluded that this particular claimant has not failed to mitigate his loss.

(8) In arriving at that conclusion, we have taken account, in particular, of the following matters. First, after his dismissal, the claimant took on relatively well-paid employment and held that employment for a relatively lengthy period. Secondly, the documentation shows that the claimant has regularly made relevant job applications. Thirdly, we know that this is a difficult time for the building trade, and it would be particularly difficult for a relatively recently qualified electrician, in the present economic climate, to obtain new employment. Fourthly, the claimant gave evidence as to his keenness, for family reasons, to quickly get back into the labour force. It seemed to us that this part of his evidence had the ring of truth.

The Polkey issue

11. Because of the matters mentioned at paragraph 12 below, the Company has not shown that it would have dismissed the claimant even in the absence of the “ordinary” procedural shortcomings which we have identified above. For that reason, Article 130A(2) of the 1996 Order does not protect the Company from a finding that the dismissal was unfair within the meaning of Article 130(4).

12. However, we must also take account of the Polkey issue in the context of calculating the amount of compensatory award to which the claimant is entitled:

(1) Article 157(1) of the 1996 Order sets out the basic rule for the calculation for a compensatory award, in the following terms:

“(1) Subject to the provisions of this Article and [the provision of certain other Articles], the amount of the compensatory award shall be 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 in so far as that loss is attributable to action taken by the employer”.

So the award has to be “just and equitable” in all the circumstances.

(2) In cases where the main reason for dismissal is a failure to follow a fair procedure, the compensatory award may be reduced, if it can been shown that a fair procedure would have resulted in a dismissal anyway. This is part of the assessment of what is “just and equitable” as required by Article 157(1). If a tribunal is not certain that the relevant employee would have been fairly dismissed, even if fair procedures had been followed (in circumstances in which the dismissal was unfair for procedural reasons), the compensatory award can be reduced by a percentage representing the chance that the employee would still have lost his employment. Therefore, a tribunal could, for example, make a “20%” compensatory award (compensatory award reduced by 80%) if that tribunal considered that there was only a one in five chance that a fair procedure would have resulted in a claimant keeping his job. This type of deduction is usually referred to as a “Polkey” deduction.

(3) In his evidence to us, the claimant has not suggested that he was better at his job than any of the other recently qualified electricians. Of the Company witnesses at this hearing, Mr Brown was the only person who had the knowledge and expertise to be able to provide the tribunal with useful information as to the relative merits of the claimant and those of the other newly qualified electricians. However, we have found important aspects of Mr Brown’s evidence to be inaccurate in relation to his assessment of the merits of the claimant. Any evidence which he provided to us in relation to the merits of other recently qualified electricians was sketchy, and was limited in scope. Furthermore, we are unable to hazard a guess as to the precise nature of the redundancy criteria which would have been applied if those criteria had only been applied after fair consultation (fair consultation, in the present context, means consultation when the proposals for redundancy criteria are still at a formative stage, followed by conscientious consideration by the consultor of the consultee’s responses).

(4) Against that background, we simply do not know, and cannot make even a roughly accurate estimate, as to the claimant’s likely order of merit in the November 2008 redundancy marking exercise, if that exercise had been done in a situation in which the dismissal process was being carried out in a manner in which was scrupulously fair from a procedural point of view.

(5) Against that background, we do not consider it to be appropriate to reduce the amount of the compensatory award to reflect the chance that the claimant would in any event have received low marks in the course of a fair November 2008 redundancy assessment exercise.

(6) The Company has drawn our attention to the fact that the number of electricians working in the department of the Company to which the claimant belonged has greatly reduced since the date of the claimant’s dismissal. However, we do not know whether or not those reductions have been achieved with or without redundancies, or whether any affected staff, who were potentially redundant, were subsequently successfully assimilated into alternative posts within the Company.

(7) Against that background, we do not consider it to be appropriate to reduce the amount of the compensatory award to reflect the chance that the claimant would in any event have been fairly dismissed for redundancy in some post-November 2008 redundancy exercise.

(8) We have noted that, in November 2008, the claimant was one of five newly qualified electricians and that two of those electricians were made redundant during the course of the November exercise. Therefore, we consider that in, the absence of the relevant procedural defects, there is a 40% chance that he claimant would have been fairly dismissed in November 2009 in any event. Therefore, the figure of £22,161.70 must be subjected to a 40% reduction, to take account of the percentage chance that the claimant would have been dismissed in November 2008 in any event, even if there had been no relevant procedural shortcomings. The effect of that Polkey deduction is to reduce the compensatory award to £13,297.02.

Uplift?

13. Article 17 of the 2003 Order must be read in conjunction with Article 158A of the 1996 Order.

14. The effect of Article 17 of the 2003 Order is that, as a general rule, if the following circumstances (“the relevant circumstances”) apply, a tribunal is under an obligation to increase any compensatory award in unfair dismissal proceedings by 10% and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50%.

15. The relevant circumstances are that the DDP was not completed and that non-completion was wholly or mainly attributable to failure by the employer to comply with a requirement of the DDP.

16. That general rule, as set out in Article 17(3), is subject to an exception. The exception is provided for in paragraph (4) of Article 17. According to Article 17(4) the duty under paragraph (3) of that Article to make an increase of at least 10% does not apply if there are exceptional circumstances which would make an increase of that percentage inequitable.

17. We are satisfied that there are no exceptional circumstances which would make it unjust or inequitable to make such an increase.

18. We are also satisfied that all the elements of the situation envisaged in Article 17(3) exist in this case. First, in the circumstances of this case, the statutory DDP does apply in the context of the relevant dismissal. Secondly, we have already concluded that the DDP was not “completed”. Thirdly, we are entirely satisfied that the relevant non-completion was wholly attributable to failure by the employer to comply with the process which was imposed by Part I of Schedule 1 of the 2003 Order.

19. As the parties accept, a tribunal has a broad discretion when fixing the level of increase of any award. It seems to us that, the more serious the breach, the higher should be the percentage uplift (within the overall 10-50% band). We consider that, in fixing the level of increase, we are entitled to take account of the background against which a particular claimant was automatically unfairly dismissed.

20. In this case, the relevant failures on the part of the Company had the effect of making Step 2 of the DDP largely meaningless. The claimant could not usefully make representations at the Step 2 meeting without having been provided beforehand with details of the redundancy criteria and details of his own assessment under those criteria. Although he was informed about those matters during the course of the Step 3 appeal, that information was provided at a very late stage of the overall process. These lapses were not the result of any reasonable ignorance on the part of the Company; this was the second occasion, during a very short period of time, on which the respondent Company had failed to complete an applicable statutory DDP in relation to the claimant.

21. In fixing the amount of the percentage uplift, we have paid due regard to the size of the award which is being uplifted.

22. Against that background, and for those reasons, we consider that there should be a percentage uplift, pursuant to Article 17 of the 2003 Order, of 30%.

23. The effect of the uplift is to increase the amount of the compensatory award to £17,286.

Unreasonable conduct?

24. Throughout this hearing, it was strenuously argued on behalf of the claimant that the respondent Company had never had any viable defence to these proceedings, and that their attitude to these proceedings involved unreasonable conduct, for two reasons. First, according to the claimant, the dismissal was obviously automatically unfair because of the failure, at Step 2 of the DDP, to provide the claimant with the detailed criteria and his own assessment. Secondly, it is argued on behalf of the claimant that the respondent Company, in documentation and through the evidence of witnesses, has acted unreasonably by being deliberately misleading about the circumstances of this dismissal, and about the true reasons for this dismissal. If and when any application for costs is made by or on behalf of the claimant, we will no doubt have to arrive at conclusions on the unreasonable conduct issue. However, in the meantime, and for the purposes only of arriving at conclusions in relation to liability and quantum issues, it has been unnecessary for us to arrive at definitive conclusions on that matter.

Recoupment

25. The Recoupment Regulations apply. Attention is drawn to the notice below, which forms part of this Decision. The prescribed element is £10,750. The prescribed period is the period from 24 November 2008 until 5 February 2010. The amount by which the monetary award exceeds the prescribed element is £6,536.

Interest

26. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 11-13 November 2009, 17 November and 9 December 2009, Belfast.

Date decision recorded in register and issued to parties: