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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McCauley v Pace Telecom Ltd [2010] NIIT 5193_09IT (14 December 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/5193_09IT.html
Cite as: [2010] NIIT 5193_09IT, [2010] NIIT 5193_9IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 5193/09
CLAIMANT: Angela McCauley
RESPONDENT: Pace Telecom Ltd
DECISION
The unanimous decision of the tribunal is that the claimant suffered unlawful discrimination on grounds of sex during her employment by the respondent and in her selection for redundancy. The respondent is to pay the claimant total compensation of £23,778.51.
Constitution of Tribunal:
Chairman: Mrs Margaret Watson
Members: Mrs Sylvia Doran
Mr Robert Hanna
Appearances:
The claimant was represented by Mr A Elessinla, Barrister-at-Law, instructed by Diamond Heron, Solicitors.
The respondent was represented by Mr M Potter, Barrister-at-Law, instructed by O’Reilly Stewart, Solicitors.
Issues for Determination
The legal and factual issues for determination were agreed between the parties at the Case Management Discussion held on 1 April 2010. These were:-
Legal Issues
1. Whether the unfair dismissal claim is out of time. If not, whether the claimant was unfairly dismissed contrary to the Employment Rights (Northern Ireland) Order 1996.
2. Whether the claimant was unfairly dismissed for redundancy.
3. Whether the respondent failed to comply with the statutory dismissal and disciplinary procedure and if so whether the dismissal is automatically unfair.
4. If the statutory dismissal and disciplinary procedure was not breached but the dismissal was otherwise unfair, whether the respondent can benefit from Article 130A (2) and demonstrate that the claimant would have been dismissed if a fair procedure had been followed. Even if the claimant was unfairly dismissed (whether automatically or otherwise) whether any award for compensation should be reduced and if so by how much.
5. Whether the claimant is entitled to use the notice period to bring her claim within the three month time limit.
6. Whether the claimant was subjected to less favourable treatment during the course of her employment and/or in and about her dismissal contrary to the Sex Discrimination (Northern Ireland) Order 1976.
7. Whether the tribunal has jurisdiction to hear and determine the claimant‘s age discrimination claim given the requirements of the Employment (Northern Ireland) Order 2003 in relation to the statutory grievance requirements. If so, whether the claimant was subjected to less favourable treatment in or about her dismissal contrary to the Employment Equality (Age) Regulations (Northern Ireland) Order 2006.
8. The claimant’s entitlement to remedy in terms of injury to feelings, loss and damage.
Main Factual Issues
9. The date of the claimant’s dismissal.
10. The reason for the claimant’s dismissal.
11. Whether the claimant was subjected to unlawful detrimental treatment in her employment.
Sources of Evidence
12. The claimant gave oral evidence and provided the tribunal with a bundle of documentation. Oral evidence on behalf of the respondent was given by Mr Robert Burrows, Manager of its Belfast branch at the relevant time and Peter Booth, the engineer who was retained when the claimant’s employment was terminated. However, the claimant did not have prior notice of Mr Booth’s evidence or an opportunity to respond to it and the tribunal weighted his evidence with this in mind. The respondent also provided a bundle of documentation.
13. As is often the case, the evidence given on behalf of the parties differed significantly in many respects. The tribunal looked for supporting documentary evidence and to the evidence of Mr Booth who, while still an employee of the respondent, had no prior knowledge of the content of these proceedings or the evidence of the other witnesses. Of the other two witnesses, the tribunal preferred the evidence of the claimant whose evidence was more consistent with the content of her claim form and grievance letter. Mr Burrows’ evidence was more in the nature of a defence of his actions and differed significantly to the version of events set out in the respondent’s response documentation.
Findings of Fact
14. The claimant’s experience with telecom engineering began in or about 2000 when she was employed at F G Wilson’s as a PBX Engineer supporting such systems on its four sites. She was there for about three years and then spent
one year working for Virgin/NTL installing telephone / television / broadband systems in residential sites. This was followed by about nine months with Atlas Communications before taking up employment with Datasharp (UK)Ltd.
15. The claimant was offered employment by Datasharp (UK) Ltd from 24 October 2005 as a Telecom Engineer. The letter offering her that employment and her contract of employment with Datasharp were contained in the claimant’s bundle of documentation. Mr Potter referred the tribunal to the term in this contract relating to termination. The tribunal therefore concluded that Mr Potter accepted, on behalf of the respondent, that this was the contract of employment between the claimant and the respondent at the time of her dismissal.
16. The claimant’s employment with Datasharp (UK) Ltd was transferred to Datasharp Ireland on 1 October 2006. The letter confirming this transfer assured the claimant that her employment rights were not affected by the transfer, expressed a hope that the changes would prove positive and that the claimant would have a ‘successful future with Brian and Robert.’
17. ‘Brian and Robert’ referred to in the letter were Brian Nixon and Robert Burrows. In his evidence to the tribunal, Mr Burrows explained that the claimant was not a direct employee of Datasharp Ireland which he said was owned by Brian Nixon. However he also said that he and Mr Nixon owned Belcom Networks Ltd which merged with Datasharp Ireland. Payslips provided to the tribunal by the claimant were in the name of Belcom Networks Ltd. When Pace Telecom Ltd, the respondent, bought over the Belcom Network business in or about late 2006, there were two engineers employed there, the claimant and Al Reid. Their employment transferred to the respondent on the sale of Belcom Networks, but Mr Reid left a short time later.
18. Mr Reid was replaced by Peter Booth who began his employment with the respondent some time in 2007. Mr Booth was paid less than the claimant. At that time, about 80% of systems supplied by the company were made by Siemens but before that about 80% had been Nortel products.
19. The claimant had been trained in both Nortel and Siemens products and was qualified to install and support both systems. Mr Booth had no experience with Nortel but had about 19 years experience with Siemens. The claimant trained him in the use of Nortel and they both used technical manuals to become familiar with and train themselves in the use of Panasonic systems when they were introduced later.
20. The claimant and Mr Booth were described by the respondent as senior engineers. Mr Chris Moorhead, Mr Booth’s nephew, was also taken on a short time later as a junior engineer and is still so employed. The claimant claimed that she was more experienced than Mr Booth in relation to the systems installed and supported by the respondent and that she had more experience with peripheral devices. Mr Booth’s evidence was that he had longer experience with Siemens systems but that both he and the claimant worked together as a team and helped each other as needed. The tribunal noted that neither the claimant nor Mr Booth sought to disparage the technical abilities or expertise of the other and they appeared to have worked well together. Mr Burrows told the tribunal that he had no technical knowledge and relied on Brian Nixon who, he believed, had carried out appraisals of the work of the engineers. Mr Burrows admitted he had not seen any such appraisals during or before the redundancy selection took place.
21. The claimant gave evidence which was not challenged that, during her employment with Belcom Networks, she was provided with the use of a Land Rover as her company vehicle in recognition of her good performance. It was not clear whether this was before Mr Booth was employed there.
22. In her claim form, the claimant compared herself to Mr Booth and claimed that he had been given two business opportunities that were not offered to her. Both were residential in England. One such opportunity related to training by Samsung in the use of their telecom equipment and the other was assisting other Pace engineers in England who needed extra engineering assistance for one week.
23. The claimant’s evidence was that she had informed her employer that she needed at least 24 hours notice before she could go away because of domestic commitments. She gave evidence that she was not asked to go to either of these events while Mr Booth said that he was told he was going because no one else could go. He had been informed that the claimant had been asked if she wanted to go by Chris Featherstone, the manager at the time, but acknowledged that he had not seen or heard the claimant being asked and relied on what he was told. The tribunal find that, on the balance of probabilities, the claimant was treated less favourably than Mr Booth in this regard in that she was not afforded training and job experience.
24. The claimant also claimed that Robert Burrows treated her less favourably than Peter Booth in that he took Mr Booth to site meetings with customers rather than her and would defer to Mr Booth rather than her for answers to customer questions. The claimant said she found this demeaning. Mr Burrows denied that there had ever been any occasion when he would have had engineering staff with him in face to face meetings with customers. Mr Booth’s evidence however was that he could not recall an occasion when both engineers attended customer meetings together. He said that his recollection was that whoever was available attended. The tribunal noted that Peter Booth’s evidence differed to that of Mr Burrows in this regard. Mr Burrows would have known of the claimant’s evidence on this point but Mr Booth did not. He had only been asked to give evidence to the tribunal that day and had not seen the case papers. The tribunal find that, on the balance of probabilities, the claimant was treated less favourably than Mr Booth in this regard.
25. The claimant claimed that this element of her treatment by the respondent was on grounds of her age as well as her gender. The claimant is aged 27 while Mr Booth is aged 43. She claimed that Robert Burrows had told her during their meeting in connection with the redundancy selection that Mr Booth ‘looked more like a telecom engineer’ than she did. The tribunal will return to this element of the claim below.
26. The claimant had also claimed that she felt excluded when staff went to a gym on Friday lunchtime for sports such as football and badminton while she stayed to attend the phone. The tribunal considered the evidence from both parties and find that, on the balance of probabilities, the claimant, and Mr Booth, both chose not to attend these outings and stayed at work on the few occasions this took place.
27. Mr Burrows left his employment with the respondent in or about May 2008 but he was still selling telecom systems on a commission basis for installation by the respondent’s engineers and was on the premises and giving work instructions to the engineers on a regular basis. Towards the end of November 2008, he had a meeting in Belfast with Jamie Hughes, Chief Executive Officer and Caroline Wheeler, Managing Director of the respondent company. Mr Hughes explained that the Belfast Branch was not performing well and asked Mr Burrows to become manager to increase sales and get the branch ‘back on its feet’.
28. On 15 December 2008, Mr Burrows attended a meeting of all the branch managers at Wrexham where, according to the respondent’s response;-
“… a strategy was formulated …for improved business performance generating cash and reduction of cost and reduction of a number of employees…’ A decision was made to ‘reduce the engineering resource in Belfast from three to two as part of this overall strategy.
29. The Branch managers were “instructed to identify employees at risk and to formulate selection criteria. The company did not tell those identified as at risk because of the risk that they would worry, become demotivated and may even leave the company before it was in a position to cover the available work and to organise an orderly redundancy exercise. The claimant had been identified by Mr Burrows as the person most likely at risk in Belfast on the basis of the criteria suggested including skill levels and attendance record. She was informed that she was “at risk”. The other employees were not so informed for the above reason.”
30. The response went on to say that the claimant was informed by letter on 23 December that she was at risk of redundancy and inviting her to attend personal consultation meetings. The first such meeting was with Mr Burrows and the next two were telephone conference calls with Caroline Wheeler for which transcripts were provided.
31. The claimant stated in her evidence that Mr Burrows was responsible for three staff members leaving their employment at that time, two in sales and one in administration. The sales employee was male, while the other two who left were female. The claimant believed that these staff members had been told they were redundant. Mr Burrows’ evidence was that they all resigned. The tribunal noted that the respondent’s decision for the reorganisation of the business included dispensing with administrative staff. The tribunal find on the balance of probabilities that these staff were dismissed by Mr Burrows as redundant.
32. The claimant was on annual leave for the Christmas period. She claimed that she had been telephoned at home on the morning of 23 December 2008 by Robert Burrows to tell her that there were to be redundancies and asking her to come in to work to pick up a letter from Caroline Wheeler about the situation.
33. The claimant met with Mr Burrows who gave her the letter (dated 22 December 2008) from Mrs Wheeler. The letter invited the claimant to attend a meeting on 23 December to discuss the proposals for branch restructuring and its potential effect on her role as she ‘may be at risk of redundancy’.
34. Mrs Wheeler’s letter explained that “to comply with our legal obligations to consult with you, you are entitled to be accompanied by a work colleague or representative at our meeting. I will explain the proposals and give you the opportunity to express your views…” (Emphasis added)
35. The letter also said that the meeting would be conducted by Robert Burrows and a note taker but Mr Burrows explained to the claimant that Mrs Wheeler would not be in attendance as she was not willing to spend the money flying to Belfast. The claimant insisted that she speak to Mrs Wheeler and Mr Burrows said he would arrange a conference call later that day.
36. The claimant said that Mr Burrows had told her that she was the only member of staff being considered for redundancy. The reasons given for the failure to consider Mr Booth were that he, being older, had more experience than the claimant while she drove a bigger car with a high lease cost and was paid a higher salary.
37. The claimant was very distressed after that meeting. She said she went to the engineer’s room and spoke to her colleagues before going home for the conference call.
38. Mr Burrows later sent the claimant a text message with the mobile number for Mrs Wheeler. The claimant was accompanied by her partner when she called Mrs Wheeler from her car phone. There were two such calls and at the end of the second call, the claimant had agreed the terms of her redundancy with the respondent.
39. The claimant’s version of the events of that day was largely confirmed by the respondent in their response to her claim form and she did not question the overall accuracy of the respondent’s transcripts of the two calls made.
40. In his evidence to the tribunal, Mr Burrows claimed that he had started to implement the redundancy procedures on the 20 and 21 December 2008. The tribunal noted that he appeared surprised to be told by Mr Elessinla that this was a Saturday and Sunday but he said that he had been told by Mrs Wheeler that he had to choose who was to be made redundant before Christmas. He said he had spoken to Mr Booth and given him a copy of Mrs Wheeler’s letter on 22 December just before phoning the claimant and asking her to come in to meet with him.
41. After informing the claimant that she was at risk of redundancy, Mr Burrows said he spoke with the company accountant about salary and cost details of both engineers and checked the engineering section work records to see what work both had been doing over the past few months when he had not been there. He had also informed Keith Gibson, the respondent’s Human Resources advisor, and Mrs Wheeler by email of his actions. It was only after this investigation that he decided that the claimant was to go and Mr Booth would stay.
42. The next morning, 23 December, Mr Booth was on the premises early before going off site to work. Mr Burrows informed him that his job was safe. It was after this that he had spoken to the claimant. Mr Burrows said he remembered the events ‘as clear as day’ because he had gone on holiday later that day.
43. Mr Booth’s recollection was that he thought that Mr Burrows had told him on 22 December that he was at risk. He did not remember being given a letter. The next morning Mr Burrows had told him before he went out that his job was safe. The only clear recollection Mr Booth had of the events of that day was being in McDonald’s having his lunch when the claimant rang him to tell him that she was to be made redundant.
44. The tribunal, having considered all the oral and documentary evidence presented find, on the balance of probabilities, that the following is what took place. The company brought Mr Burrows back into the Belfast branch at the end of November 2008 to severely trim its operations here. First to go were the sales and administration staff, two female and one male.
45. After the Wrexham meeting, Mr Burrows was tasked with making recommendations to his bosses in relation to the decided reduction of the engineering staff here to two in line with the other branches. Keith Gibson was to advise him on the procedures to be followed.
46. Criteria for selection had been decided by the company bosses at or after Wrexham and he was to advise them subsequently who was at risk. The only member of the Belfast engineering staff identified as at risk by Mr Burrows was the claimant. Mr Burrows was aware that cost was the paramount consideration for the company and, as the manager, he would know that the claimant was paid £1,000 per year more that Mr Booth and that she had been provided with a larger, more expensive car. The tribunal find that the claimant was the only member of the Belfast staff who received the letter of 22 December.
47. The final decision as to the staff in the group who were to be made redundant was made by Jamie Hughes and Caroline Wheeler late on 22 December and communicated to the branch managers. Mr Burrows told Mr Booth on 23 December that his job was safe. The tribunal is of the view that Mr Booth was unaware at that time that the claimant’s job was to go. If he had known, the tribunal would have expected him to contact her as he knew she was on leave and he would not have been so shocked when she telephoned him later at lunch to tell him.
48. Mr Burrows telephoned the claimant on 23 December 2008 and asked her to come in to collect the letter from Caroline Wheeler which was provided only to those staff being made redundant. The letter indicated that Mrs Wheeler was arranging to hold discussion with each member of staff during that day. (See Paragraph 22 above.) As the redundancies were across the group, the only way this could happen was by conference calls.
49. Mr Burrows met with the claimant later that morning. The tribunal preferred the claimant’s account of that meeting to that of Mr Burrows but the tribunal did not find that the claimant’s account was entirely accurate. She said that Mr Burrows had said that he would always choose Mr Booth over her as he ‘looked more like a telecom engineer’ than she did. She said that Mr Burrows did not indicate any criteria for selection at this meeting but acknowledged that he had referred to Mr Booth being older and therefore more experienced. In her grievance letter she alluded to the cost of her car being discussed. The tribunal do not find that the claimant was seeking to mislead it. This was a very stressful event for her. Mr Burrows had said that he told the claimant that his decision to shortlist her for redundancy rather than Mr Booth was based on the criteria of cost and experience. The tribunal find that these criteria were referred to by Mr Burrows at this time.
50. After the meeting, the claimant was very distressed and as she said, she went to speak to her colleagues. However, as Mr Booth explained, he was working off site and having lunch when she telephoned him to tell him that she was at risk of redundancy. The tribunal accept that this conversation did not take place where the claimant said but this did not take away from the tribunal’s view that that the claimant was a more credible witness that Mr Burrows.
51. Those present during the conference calls were Mrs Wheeler, a note taker, the claimant accompanied by her partner and Mr Burrows. Mrs Wheeler did most of the talking. She informed the claimant that at the recent management meeting she had announced the reduction of engineers throughout the group to a maximum of 2 at each branch, administration was centralised in Wrexham and all local administrative staff had been made redundant. Following the management meeting, she had meetings with each manager to consult with them and involve them in the process of selection. They had looked at quite a few criteria including monthly costs involved, the skills, the experience, flexible working. (The respondent in its response had also said skill levels and attendance records were included.)
52. Mrs Wheeler went on to say that she and Jamie (Hughes) had made the final decisions the previous night about 9.30 pm. Because of the legal obligation of employers to communicate such decisions to employees, she was taking this first opportunity to do so or they would be ‘doing wrong by the employee and the company.’ As an example of possible unfairness, Mrs Wheeler referred to employees overspending at Christmas. She asked the claimant to try and think of any way her redundancy might be avoided.
53. The claimant asked why she out of the three engineers in Belfast had been chosen and was told that they had to look at the wage bill and look to the future. She also said there had been motivational issues with the claimant. When the claimant queried this, Mrs Wheeler said they had consulted with Robert who spoke of ‘issues from a team working point of view.’
54. The claimant then asked what was to happen next and Mrs Wheeler explained that, if the claimant could not come up with any ideas to avoid it, they would move forward with the redundancy. The call then turned to discussing the redundancy package on offer to the claimant. The company said that the claimant had been with them for two years. Mr Burrows then said that the claimant had been an employee of Belcom Networks which had been operational for two years. The claimant’s partner reminded them that the claimant had been told that her previous contract with Datasharp had continued. That call ended when Mr Burrows said he would check that information. Mrs Wheeler also agreed to base the payment on five years service and arranged a further call after clarification of the claimant’s length of service.
55. The last item mentioned by Mrs Wheeler at the end of the call was that the company would be happy to make a payment in lieu of notice which she explained meant that the claimant did not have to come back to work. She could choose to spend the time looking for alternative employment but she could have full use of the car during the notice period. The claimant asked when she could expect to be paid and was told that December wages were already processed and it would be in the next month’s wages.
56. The second call opened with Mrs Wheeler explaining that she had not been aware that the claimant’s contract went back to Datasharp times but Robert and Brian (Nixon) had ‘cleared it up’. She was more than happy to move forward on the basis of five years service. Robert Burrows asked for the proposed dates of payment and Mrs Wheeler repeated that the payment would be made in January’s wages and that the claimant was entitled to a month’s notice which she could choose to work or not. Mr Burrows asked about the car and was told that the claimant was more than welcome to hold on to the car ‘for the notice period which is a month or 4 weeks whichever works out the best’. Mrs Wheeler agreed to put the final details in a letter to go to the claimant. She also advised the claimant that she had a right of appeal and that the letter would state the ‘number of days’ allowed for that. Mr Burrows then asked the claimant if she intended to work her notice and was told she did not.
57. The redundancy notice and the payment statement were both dated 23 December 2008. Both state that the redundancy was to take effect on 23 December 2008 and this is also given as her leaving date. The redundancy notice states that the claimant had a right of appeal against the redundancy. If she chose to do so, she should let Mrs Wheeler know ‘as soon as possible’.
58. The claimant received the final payment on or about 27 January 2009 and she returned the company car about that date.
59. Sometime in or about mid January 2009, the claimant was contacted by a telecom company which had business connections with the respondent. She was invited to attend for interview. During that interview, the claimant was surprised to be asked about her working relationship with Robert Burrows who was known to the interviewer. She was asked if she was going to take a case against Mr Burrows. The claimant was annoyed that she had been a topic of discussion between these two people and this caused her to think again about the events around her redundancy. She began looking up tribunal cases on the internet. On 9 March 2009, she wrote to ‘Caroline/ Jamie’, the two senior employees of the respondent. The first line of the letter stated that the claimant wished to raise a statutory grievance. The letter set out her belief that she had been selected for ‘unfair redundancy’, that the reason for her selection was because of her sex and because she might require time off in future to have a family. The claimant set out concerns she had with the selection procedure used and asked for details of the selection system used and a copy of the findings. A reply within 28 days was requested.
60. Keith Gibson FCIPD, HR Advisor, replied on behalf of the respondent. The first line of Mr Gibson’s letter says;
“I have received your letter of the 9th March addressed to Jamie/Caroline which you have called a statutory grievance letter but which could have been interpreted as an appeal against selection for redundancy.”
He then made the assumption that the claimant wished to follow the modified statutory grievance procedure because she had not requested a meeting. The claimant was asked to clarify and confirm the nature of her letter within 5 days and state how she wished it to be dealt with. Mr Gibson then stated that the claimant had declined the opportunity to appeal in December 2008 and it was too late to do so at that stage.
61. The tribunal found this letter to be an unreasonable response to what was clearly stated to be a grievance relating to her redundancy selection and the reasons for it. As a ‘HR advisor’, Mr Gibson should have been aware that the claimant was entitled to receive the information requested and have her grievance addressed. This response was obviously made in the vain hope that the claimant would go away and is not what a tribunal would expect from someone in his position.
62. The claimant made an online claim to an Industrial Tribunal but she used a claim form for an English tribunal which was received sometime in late March 2009 at Shrewsbury and forwarded to the respondent at Wrexham. The claimant had no advisor at that time and was unaware that there was a separate tribunal for Northern Ireland employment matters. Her claim form in this jurisdiction was received on 22 April 2009. The response submitted had the Shrewsbury tribunal response attached and included an objection to the duplication of claims. The claim to Shrewsbury was later withdrawn.
Remaining Factual Issues
63. The tribunal’s determination was also sought in respect of the factual issues agreed between the parties at the Case Management Discussion on 1 April 2010. These were:-
(i) The date of the claimant’s dismissal.
The tribunal has found that the claimant agreed the terms of her redundancy with the respondent on 23 December 2008. Mrs Wheeler subsequently sent to the claimant two documents. These were the Notice of Redundancy and the Payment Statement and Receipt. The former states that the redundancy will take effect on 23 December 2008 and the latter states that the leaving date is 23 December 2008.
Article 174(1)(b)(i) of the Employment Rights (Northern Ireland) Order 1996 (as amended) states that an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to the fact that the business need for employees to carry out work of a particular kind is diminished.
The date of the dismissal in redundancy cases is determined by reference to Article 180 (2) (a) which states that in relation to an employee whose contract of employment is terminated by notice, the date of the dismissal is the date on which the notice expires. The claimant was entitled to one month’s notice. She was paid per calendar month and she was paid her notice pay with her January pay. The effective date of the redundancy dismissal was therefore 30 January 2009, the last working day of that month.
Mr Potter referred the tribunal to a term in the claimant’s contract with Datasharp (UK) Ltd which permitted payment in lieu of notice and submitted that this was what had happened in this case. The tribunal did not agree. The phrase ‘in lieu of’ means in place of or instead of, but the claimant did not receive anything in place of the notice period. Her final payment was made on her January pay day, 27 January 2009. Mrs Wheeler told the claimant several times that she could come in and work her notice as some others were doing but she gave the claimant the choice of not having to come in to work and the claimant confirmed to Robert Burrows that she chose not to do so. In addition, the claimant was permitted the use the company car during the notice period.
(ii) The reason for the claimant’s dismissal.
This has been covered above but for the avoidance of doubt, the tribunal find that the respondent company’s need for engineering staff had diminished across the group because their sales had fallen so badly and as a result there was a redundancy situation. The way in which this was addressed will be considered below.
(iii) Whether the claimant was subjected to unlawful detrimental treatment in her employment.
The tribunal has made findings above with regard to instances where the claimant was treated less favourably than Peter Booth by the respondent both during her employment and in her selection for redundancy. Whether this was unlawful will be considered below.
Legal Issues and conclusions
64. The legal issues identified in this case and agreed by the parties are set out above. The claimant has contended that she was unlawfully discriminated against on grounds of age in relation to her redundancy, unlawfully discriminated against on grounds of sex during her employment in that she was treated less favourably than Peter Booth in relation to training and experience opportunities and in her selection for redundancy while he was retained. The claimant also contends that her selection for redundancy was an unfair dismissal as the means of selection did not meet the required standard test of fairness and equity. This also raises the issue of the statutory dismissal procedure.
65. The respondent has contended that the tribunal does not have jurisdiction to hear either the claim for unfair dismissal/selection for redundancy on the ground that it was lodged out of time or the claim of unlawful discrimination on ground of age on the ground that the issue had not been previously raised as a grievance prior to presentation of the claim. The respondent also contends that the claimant was made redundant after a fair selection procedure. It denies that the claimant was treated less favourably than Peter Booth at any time. The respondent also contends that the claimant would have been selected for redundancy no matter what means of selection was used.
66. The tribunal looked first of all at the issue relating to its jurisdiction to hear that part of the claim which related to the claimant’s allegation of unlawful discrimination on the ground of age given the requirements of the Employment (Northern Ireland) Order 2003.
67. Article 19 of The Employment (Northern Ireland) Order 2003 applies to the tribunal jurisdictions listed in Schedule 3. These include claims of unlawful discrimination, including age discrimination. Article 19 provided that employees “shall not present a complaint to an industrial tribunal” under any of these jurisdictions unless they have raised the subject matter of the proposed claim with their employer by means of the grievance procedure and allowed 28 days for the employer to respond. Article 19 (6) prevents the tribunal from considering complaints presented in breach of that requirement.
68. While the claimant raised a grievance with the respondent before she lodged her claim, the matters in dispute set out in that letter of 9 March 2009 did not include any allegation of discrimination on grounds of age. The tribunal therefore has no jurisdiction to deal with this element of the claim which is dismissed.
69. The respondent’s contention that the unfair dismissal claim was out of time was based on their assertion that the date of the termination of the claimant’s employment was 23 December 2008. The tribunal has found however that the effective date of termination was 30 January 2009. In addition, the claimant subsequently sent a grievance latter to the respondent on 9 March 2009, within the statutory three month time limit. This would have added a further three months to the time limit but the claim was received in the tribunal on 22 April 2009, before the earliest statutory time limit, 30 April 2009. The claim was made in time.
70. Article 130 of the Employment Rights (Northern Ireland) Order 1996 [ERO] sets out the means by which a tribunal shall determine whether or not a dismissal is unfair. The tribunal has found that there was a redundancy situation in the respondent company at the relevant time, a potentially fair reason for dismissal under Art.130 (2) (d) so the tribunal is required to consider the circumstances of the employer and whether or not the employer, in all the circumstances of the dismissal, acted reasonably and in accordance with equity and the substantial merits of the case.
71. In the case of Williams & Ors v Compar Maxam Ltd [1982] IRLR 83, the EAT advised;
“ …if the circumstances of the employer make it inevitable that some employee must be dismissed, it is still necessary to consider the means whereby the claimant was selected to be the employee to be dismissed and the reasonableness of the steps taken by the employer to choose the claimant rather than some other employee for dismissal.”
72. The EAT in that decision laid down principles for the guidance of reasonable employers in such a selection exercise. Those principles, which have been relied on since that time, can be summarised as follows;
(i) The employer should give as much notice as possible to enable consideration to be given to possible alternative solutions or to find alternative employment,
(ii) The employer should agree selection criteria to be used in the selection and the pool for selection
(iii) The criteria should be objective and verifiable,
(iv) Suitable alternative employment within the concern should be considered.
73. In the case of Polkey v A E Dayton Services Ltd [1987] IRLR 503, Lord Bridges advised; “In cases of redundancy, the employer will not normally act reasonably unless he warns and consults any employees affected, …adopts a fair basis on which to select for redundancy and takes such steps as may be reasonable to avoid or minimise redundancy by redeployment within its own organisation”
74. These principles are essentially the same as those set out in the Labour Relations Agency’s Code of Practice on Redundancy Selection to which employers should have regard. While the Code is not statutory, tribunals should take departures from its recommendations into account when considering the reasonableness of an employer’s practices and procedures and indeed tribunals may draw inferences from such failure.
75. Employers are also required to follow the statutory dismissal procedures. Article 130A of the ERO, incorporated the dismissal and disciplinary procedures of the Employment (Northern Ireland) Order 2003 into the 1996 ERO. This provides that an employee is to be regarded as ‘automatically’ unfairly dismissed if the statutory dismissal procedures have not been completed and the non-completion is wholly or mainly attributable to failure by the employer. There are three steps to the procedure:-
Step 1 is a written statement of the proposed grounds for dismissal and an invitation to meet with the employee;
Step 2 is the meeting with the employee to discuss the proposed dismissal; and
Step 3 an appeal meeting.
76. The respondent company decided in early December that their workforce was to be reduced but also decided at that time not to inform their employees. The company had Mr Keith Gibson FICPD as a ‘HR Advisor’. Mr Burrows told the tribunal that he was advised by Mr Gibson in relation to the procedure to be used and that he kept Mr Gibson and Mrs Wheeler informed at each stage as he progressed. Not one single document was produced to the tribunal in relation to this selection procedure. Without going into each and every respect in which this exercise departed from the basic elements of a reasonable redundancy selection procedure, suffice it to say that the tribunal find that this selection process was neither fair nor reasonable and did not comply with any of the basic requirements.
77. Were the statutory dismissal procedures completed? Arguably the letter from Mrs Wheeler dated 22 December 2008 could be regarded a Stage 1 letter and there was a meeting by way of the conference call. During the second call, the parties came to an agreement so that, while technically the procedures were not completed, that failure was not ‘wholly or mainly ‘attributable’ to a failure on the part of the respondent.
78. Mr Potter submitted that Mr Burrows had informed the claimant on 23 December that she had been selected on the criteria of cost and skills/experience. The tribunal has accepted that this was put to her at that meeting. The claimant was paid £1,000 per year more than Mr Booth and the lease of her company vehicle cost more than his. Mr Burrows acknowledged that his former partner, Mr Nixon was the technical expert. It was presumably he who had decided to appoint Mr Booth on a lower salary than the claimant, who rewarded her performance with the high value vehicle and had appraised their performance. Even though it was possible to contact Mr Nixon with ease regarding the contract after the first conference call, Mr Burrows, with no technical knowledge or experience, did not consult his former partner for advice or guidance in making his assessment of their skills/experience but relied on the fact that Mr Booth had been an engineer for longer than the claimant as the basis for his preference. The tribunal do not accept that a fair and reasonable selection process would equate skill with length of service or that costs simply related to salary. The tribunal did not find that a fair selection process would have resulted in the claimant being selected for redundancy, even using these criteria. No evidence was presented to support such a view. The tribunal find that the claimant was unfairly selected for redundancy.
79. The claimant has also alleged that she was discriminated against on grounds of her sex contrary to the Sex Discrimination (Northern Ireland) Order 1976 which provides that it is unlawful for an employer to treat female employees less favourably than male employees. The claimant contends that the less favourable treatment found by the tribunal at paragraph 10 above was on grounds of her sex and also contends that her selection for redundancy was on that ground. She compares herself to Peter Booth.
80. Article 63A (2) of the 1976 Order provides:-
“Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent –
(a) has committed an act of discrimination…, or
(b) is … to be treated as having committed such an act of discrimination against the complainant, the tribunal shall uphold the complaint unless the respondent proves that he did not commit …the act. “
81. In the case of Nelson v Newry & Mourne District Council [2009] NICA, Girvan LJ considered this provision and the approach taken to its application, not least by the English Court of Appeal in Igen v Wong [2005] 3 AER 812. Tribunals were required to take the decision making process in two stages. The first stage required the complainant to prove facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination. The burden then moves to the respondent who has to prove on the balance of probabilities that the treatment was in no sense whatsoever on the grounds of sex.
82. Girvan LJ then went on to quote from the decision in Madarassy v Nomoure International plc [2007] IRLR 246 which he described as putting ‘an important gloss’ on the earlier Igen decision. This was the obligation on the tribunal to require the claimant to do more than simply establishing a difference in sex and a difference in treatment. The tribunal must look at all the evidence before it relevant to the discrimination complaint and all the reasons for the differential treatment before unlawful discrimination ‘can be presumed’.
83. Girvan LJ’s third reference in this decision was to the judgement of Elias J in the case of Laing v Manchester City [2006] IRLR 748, an extract which was of particular assistance to this tribunal. This stated:-
“There seems to be much confusion created by the decision in Igen. What must be borne in mind by a tribunal faced with a risk claim is that ultimately the issue is not whether or not the employer has committed an act of race discrimination. The shifting of the burden of proof simply recognises that there are problems of proof facing an employee which would be very difficult to overcome if the employee had at all stages to satisfy the tribunal on the balance of probabilities that certain treatment had been by reason of race.
No doubt in most cases it would be sensible for a tribunal to formally analyse a case by reference to the two stages. It is not obligatory on them normally formally to go through each step in each case.
The focus of the tribunal analysis must at all times be the question whether or not they can properly and fairly infer race discrimination. If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, that is the end of the matter. It is not improper for a tribunal to say in effect “there is a nice question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race.”
84. The tribunal has found that the claimant, a female, was treated less favourably by the respondent than Peter Booth, a male, during her employment and in the redundancy selection process. Did the respondent present any evidence that the reason for her treatment was in no sense whatsoever on grounds of sex? The explanation given was that the claimant had been offered the opportunity to avail of the training and experience opportunities but no supporting evidence was presented. Similarly, the redundancy selection was explained by saying that Mr Booth cost less and was more skilled /experienced. The facts that the claimant earned more, her car lease cost more or that Mr Booth had longer experience because of his age were factors for inclusion in such a consideration but no evidence was presented as to how these matters were assessed or weighted or compared or whether other criteria were used as the respondent’s response indicated.
85. The claimant maintained that the reason Mr Burrows preferred Mr Booth was that he looked more like a telecom engineer that she did. Mr Burrows denied saying it, but the tribunal preferred the claimant’s evidence to that of Mr Burrows on this point and find on the balance of probabilities that the claimant was unlawfully discriminated against on ground of sex by the respondent during her employment and in her selection for redundancy.
Compensation
86. A. Unfair dismissal
Basic Award
The claimant has already been paid a redundancy payment at the termination of her employment so no basic award is due.
Compensatory Award
The claimant was paid £403.84 gross, £280.55 net per week until the end of January 2009. She obtained a temporary contract of employment in May 2009
Loss for this period (February to May)
= 12 weeks @ £280.55 = £3,366.60
Monthly loss during temporary employment £100 per month
Period of loss
= May 2009 to 31 August 2010
= 16 months x £100 = £1,600.00
Loss of statutory rights £350.00
Future Loss
The tribunal is aware of the difficulty of finding employment in present economic situation. It has noted that Mr Booth is still employed by the respondent.
The tribunal considers an award of four month’s salary, i.e. payment to the end of December, is appropriate.
£1,750 x 4 = £7,000.00
Total for unfair dismissal £12,316.60
B. Sex Discrimination
Injury to feelings £10,000.00
The claimant had been in this employment for over 4 years without any complaint about her expertise or abilities. Without any warning and while she was on annual leave, she was summoned to attend work to be given a letter and told that she had been selected for redundancy. A few hours later, on the day before Christmas Eve, she had been dismissed. Her attempt to raise a grievance a short time later was peremptorily dismissed and her claim was resisted. While this was a one off occurrence which would usually fall within the lowest ‘Vento’ band, the tribunal took into account the increase in the bands due to inflation (Da’Bell v NSPCC UKEAT 227/09) and the features in this case set out above and award £10,000 under this head.
The tribunal is also required, under the Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996, to consider awarding interest this element of the award. The tribunal considers that interest should be awarded in this case as follows;
Interest on £10,000 from 31 January 2009 to 31 November 2010 @ 8% 10,000 x 8% = £2.19 per day for 667 days = £ 1461.91
The tribunal did not award interest on the unfair dismissal element of the compensation.
Total for injury to feelings £11,461.91
Total Award (A + B) £23,778.51
87. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) (Northern Ireland) Order 1990.
Chairman:
Date and place of hearing: 1- 3 September 2010, Belfast
Date decision recorded in register and issued to parties: