Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:   05131/09IT

 

 

 

CLAIMANT:                      John Quigley

 

 

RESPONDENT:                F K Lowry Piling Limited

 

 

 

DECISION

The unanimous decision of the tribunal is that the claimant was not discriminated against on the grounds of his age and that he was not unfairly dismissed.

 

Constitution of Tribunal:

Chairman:                                  Ms Crooke

Members:                                  Ms Ferguson

                                                  Mr Hughes

                                                 

Appearances:

 

The claimant was represented by Mr Brian McKee, Barrister-at-Law instructed by Donnelly and Kinder Solicitors.

 

The respondent was represented by Mr Peter Bloch of Engineering Employers Federation.

 

 

 

Sources of Evidence

 

1.     The claimant gave evidence on his own behalf.  Mr Douglas Cooke, Operations Director and Mr Mark Walsh, Managing Director gave evidence on behalf of the respondent.

 

The Claim and the Defence

 

2.                 The claimant claimed that he had been unfairly dismissed and thought he had been directly, or in the alternative, indirectly discriminated against on the grounds of his age by the respondent.  The respondent denied both claims.

 

The Relevant Law

 

3.       The relevant law in relation to redundancy is found in Article 174 of the Employment Rights (Northern Ireland) Order 1996 which states as follows:-

174.-(1) for the purposes of this Order an employee who was dismissed shall be taken to be dismissed by reason of redundancy if a dismissal is wholly or mainly attributable to:-

 

(a)            the fact that his employer has ceased or intends to cease -

 

(i)              to carry on the business for the purposes of which the employee was employed by him, or

 

(ii)             to carry on that business in the place where the employee was solely employed, or

 

(b)            the fact that the requirements of that business –

 

(i)              for employees to carry out work of a particular kind, or

(ii)             for employees to carry out work of a particular kind in the place where the employee was employed by the employer,

have ceased or diminished or are expected to cease or diminish.

 

4.     The law in relation to age discrimination is found in Regulation 3 of the Employment Equality (Age) Regulations (Northern Ireland) 2006 which states as follows:-

3.-(1) For the purposes of these Regulations, a person (“A”) discriminates against another person (“B”) if – (a) on the grounds of B’s age, A treats B less favourably than he treats or would treat other persons, or (b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same age group as B, but

-
      (i)      which puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons,

 

           and A cannot show the treatment, or as the case may be, provision, criterion or practice to be a   proportionate means of achieving a legitimate aim. 

 

5.       The tribunal also had regard to the case of Williams-v-Compair Maxam Limited [1982] ICR 156.

 

The Facts Found

 

6.         1.     The claimant was employed by the respondent as a banks man in its pre-  cast piling operation at various sites from 10 April 2000 to 23 January 2009.

 

2.          It was not disputed that a redundancy situation affected the respondent in this case in and around November 2008. 

3.          The claimant was placed on temporary lay-off with effect from 13 November 2008.

4.          By a letter dated 11 December 2008 the claimant was informed by Douglas Cooke the Operations Director that he was at risk of redundancy.  He was invited to a meeting to discuss the reasons for his provisional selection and for a more detailed discussion of the situation.  The claimant was advised that the meeting would be an opportunity for him to raise questions about the selection procedure.  The claimant was also advised of his right of accompaniment.

5.          The respondent had adopted the following criteria of selection:-

Service;

Attendance;

Skills;

Drivers Licence;

Disciplinary; and

General performance.

Under general performance review the respondent considered the following issues:-

(a)      Attitude to work;

(b)      Speed;

(c)      Accuracy;

(d)      Punctuality;

(e)      Initiative;

(f)       Communication with peers;

(g)      Communication with Managers; and

(h)      Communication with clients.

7.       The only issue taken with the criteria on behalf of the claimant was that the claimant regarded the criteria of skills as being unfairly applied when it came to applying it to him.  The reason for this was that the respondent scored the candidates for redundancy with reference to their documented training records.

 

8.              Although the tribunal will discuss the issue of using skills as a criterion with

          reference to the Age Discrimination claim, in respect of the Unfair Dismissal claim   we found  that the criteria drawn up were objective.  Furthermore, it seemed that the         only issue in application of the criteria disputed by the claimant was that the mark       he received for skills was lower than he felt he should receive.

9.              The actual meeting between the claimant and respondent took place on 8 January 2009.  During this meeting the claimant disputed his selection on the grounds of documented training records as he considered that this did not take proper account of his experience.  He also disputed that he was underperforming as he had not been informed of that.  To be retained in the respondent under the matrix, the score of 35 points had to be achieved.  The claimant achieved 30 points.  The claimant said that he had never turned down the opportunity to do training and that other people had considerably more training than he had.  There was no objective evidence offered to counter the respondent’s intention that training was offered in response to business needs and if deemed appropriate as a result of employee appraisals.  The claimant was given the opportunity to train as a rig operator which would have been relevant to his work within the pre-cast piling operation of the respondent.  However, the claimant had admitted in evidence that he turned this opportunity down.  It was not disputed that if the claimant had taken up this training, he would have received five more points and would have been placed at the score of 35 which was the retention level under the matrix.  Aside from this issue, the tribunal found that there was no evidence that the criteria had not been objectively applied to the selection pool.

 

10.           On behalf of the claimant Mr McKee contended that the consultation was not genuine.  By a letter dated 12 January 2009 to the claimant from Mr Douglas Cooke, the tribunal found that the issues raised by the claimant in the meeting of

8 January 2009 were followed up by the respondent and a considered response given to the claimant in connection with the points he raised.  By a letter dated             23 January 2009 from Douglas Cooke to the claimant on behalf of the respondent, Mr Cooke confirmed that the claimant was made redundant.  In this letter the claimant was advised of his right of appeal.  The claimant by letter dated 27 January 2009 gave notice to the respondent that he did wish to appeal his selection for redundancy on the grounds that he considered that it had been discriminatory as a result of his age and amongst other points that he did not receive the training opportunities that other employees received.  The claimant’s appeal against redundancy to Mr Mark Walsh, the Managing Director of the respondent eventually took place on 5 March 2009 but it was unsuccessful.

 

 

Conclusions

 

The Unfair Dismissal Claim

 

11.     The tribunal considered that the requirements of the respondent business for its employees to carry out work of a particular kind or for employees to carry out work of a particular kind in the place where the employee was employed by the respondent had ceased or diminished or were expected to cease or diminish.  The claimant had been informed that further opportunities had not come to fruition.  This was set out in the respondent’s letter to the claimant dated 23 January 2009.

 

12.     In applying the statute to the factual situation in this case the tribunal had regard to a test set out in the case of Amos-v-Maxarc Limited [1973] IRLR 285:

          “Work of a particular kind ……. means work which was distinguished from   other work of the same general kind by requiring special aptitudes, skills, or        knowledge”.  

 

13.           It was not disputed that the respondent operated two different types of piling operation – a pre-cast concrete piling in which the claimant     was employed and continuous flight auger piling (CFA).  Although the claimant had some experience working as a pumps man and also as a banks man in CFA piling, he did not have any documented training qualification for this work.  It was not disputed that the requirements of the construction industry were strengthening and that to get the work, the respondent had to be able to demonstrate objective evidence of competence through training records.  Whilst the claimant may have been involved in the CFA operation in a predecessor to the current respondent, there was no documented training at that time and the claimant admitted that such training was now essential.  The evidence was that the claimant was involved and kept busy in the pre-cast operation of the respondent.  The Company trained according to its business needs and it offered rig training to the claimant (as this was directly relevant to what he was doing in the pre-cast operation) but he rejected it as he contended it took six months to a year to become trained and he considered that it was pointless for him to undertake this training as he was too close to retirement.  The tribunal finds that there were two distinct disciplines within the respondent company and the claimant was not transferred to the CFA operation as he did not have the necessary training.  The issue of suitable alternative employment was considered by the respondent but there was none available for the claimant.   In this connection the tribunal has noted that of the six individuals made redundant, one individual (not the claimant) aged 65 was brought back from lay-off and subsequently retired on the agreed retirement date.  The tribunal regards this as evidence that the issue of suitable alternative employment was considered by the respondent as part of the redundancy situation.

 

14.           The tribunal finds that the requirements of the Statutory Dismissal Procedure set out in Schedule 1 of the Employment (Northern Ireland) Order 2003 were complied with.

 

The Direct Discrimination Claim

15.           Was the claimant less favourably treated?  In essence the claimant’s claim was that he had been less favourably treated than other employees who were younger than him because they had received training opportunities which he had not received which allowed them to score more highly on the matrix than he had done.  The tribunal finds that while the claimant contended that he was prepared to accept training, in actual fact he refused a training opportunity which would have resulted in him receiving five extra points on the matrix and thus bringing him to the 35 point level of retention operated by the respondent.  As the claimant refused this opportunity on the grounds that it would take too long and he was too close to retirement to profit by it, we consider that there was no evidence that the respondent treated the claimant less favourably than he treated other employees.  As we have found this, we are not considering the issue of comparators raised by the claimant.

 

The Indirect Discrimination Claim

 

16.           In considering the evidence we find that the respondent has applied a criterion to the claimant which he applied equally to persons who were not of the claimant’s age group.  The redundancy criterion of demonstrating skills on the basis of documented training was a criterion that was applied to the whole of the pool considered.  The ages of the site operatives considered were as follows:-

22, 24, 26, 27, 29, 31, 35, 36, 38, 38, 39, 39, 39, 39, 41, 41, 41, 43, 54, 63 (the claimant) and 65.  As the claimant was an older candidate, the tribunal considers that it was more likely than not that he would have experience that was not documented.  The construction industry requirements are strengthening all the time and when the claimant had training in past employment, it was not required for the training to be documented.  Now, as the claimant himself admitted, this is essential.  We consider that this would put persons of the same age group as the claimant at the particular disadvantage.  The claimant accepted in his evidence that he had not been given training as it was not required in respect of his experience earlier on in his career.  This undoubtedly put the claimant at a disadvantage in that he was less likely to be able to rely on past experience.

 

17.           However, we do consider that this criterion was a proportionate means of achieving a legitimate aim.  It was not disputed, that to get work in the construction industry currently, a Company has to be able to demonstrate compliance with the requirements of the Construction Industry Training Board.  At the relevant time (late 2008/early 2009), the respondent had to achieve a workforce that would be capable of being deployed on sites.  On behalf of the claimant it was contended that it was unfair to rely on his training records as there were mistakes on his CSA card which is effectively the industry passport to being allowed to work on construction sites.  As the error in his card did not relate to training that he had received but for which he was not credited, the tribunal does not consider that it was wrong of the respondent to rely on the training records.  As the documented training record is a way of demonstrating competence, the tribunal considers that reliance on the training record was proportionate. Consequently the claimant’s claim is dismissed.

 

 

 

 

Chairman:

 

 

Date and place of hearing: 7 January 2010, Belfast          

 

 

Date decision recorded in register and issued to parties: