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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> King v J & W McCall Supplies Ltd Richard McCall Andrew McCall [2011] NIIT 00516_11IT (25 October 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/00516_11IT.html
Cite as: [2011] NIIT 00516_11IT, [2011] NIIT 516_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 516/11
CLAIMANT: Laurence Morrell King
RESPONDENTS: 1. J & W McCall Supplies (NI) Ltd
2. Richard McCall
3. Andrew McCall
DECISION
The unanimous decision of the tribunal is that the claimant was not unfairly selected for redundancy by the respondents. This claim is dismissed. His claims of sex discrimination, victimisation and breach of contract were withdrawn at the hearing and are dismissed.
Constitution of Tribunal:
Chairman: Mrs M Watson
Members: Dr C Ackah
Mr A Crawford
Appearances:
The claimant presented his own claim.
The respondents were represented by Mr J Mercer BL, instructed by Abbey Legal Protection.
Findings of Fact
1. The claimant took up his employment as a Tile Salesperson with the first respondent at their showroom at Carryduff in March 2007. The company also has two other tile showrooms, one at Clough and the other at Lurgan.
2. The Carryduff showroom was managed by Mrs Sandra Gallagher who had been in the post for over 16 years when the claimant took up his employment.
3. In or about late September 2009, the claimant’s wife had been employed on a trial basis as a cleaner for 2 hours per week at the showroom by a cleaning contractor. Her services were not retained. The claimant blamed Mrs Gallagher for his wife being removed from this prospective employment. He believed Mrs Gallagher had told lies about his wife. The working relationship between these two employees became very difficult and never recovered from this episode.
4. From in or about late 2009, the respondent business suffered greatly from the economic slowdown. Business was down by some 17.5% which equated to a loss of some £65,000 per month.
5. Measures were put in place to reduce costs which included a 10% reduction in wages across the board and staff redundancies. Between October 2008 and November 2010 there were 16 redundancies, which included 3 tile sales staff from the other two showrooms, while 10 people resigned.
6. In or about October 2009, the claimant told John O’Neill, Sales Manager, that he believed that Mrs Gallagher had been altering sales records to claim his sales as hers. He repeated this allegation in writing to Andrew McCall, the third respondent, but did not lodge a formal grievance.
7. The claimant continued to complain in writing and accuse Mrs Gallagher of telling lies and cheating. It was clear from his long letters and emails on this subject that the claimant was very upset. Mr O’Neill attempted to deal with the matter by changing the records and the claimant also changed some entries at this time.
8. The third respondent carried out an investigation in to the claimant’s allegations in or about February 2010 by trying to ascertain from computer records who had made alterations to the online sales codes in relation to a specific transaction identified by the claimant.
9. The third respondent discovered that the claimant had been using the same computer login code as Mrs Gallagher which meant that the third respondent was unable to trace the history of the transactions and identify when or by whom changes had been made.
10. Disciplinary proceedings were initiated against the claimant and Mrs Gallagher. Mrs Gallagher was issued with a verbal warning to remain on her file for 6 months because she could not account for her name being recorded in respect of a sale in which she had not been involved. The claimant was issued with a written warning on 1 March 2010 to remain on his file for 1 year for making false allegations and being untruthful. Neither of them lodged any appeal against these penalties.
11. At the end of October 2010, the respondent company decided it was necessary to make a further redundancy from the tile sales staff. There were 8 such staff across the 3 stores. The tribunal noted that the claimant had accepted at the Case Management Discussion on 2 August 2011 (when he was legally represented) that a redundancy situation existed at this time. The tribunal also find that this was the case.
12. The claimant and the other 7 staff in the pool for selection were notified of the need for redundancy and were asked if there were any volunteers. No one replied. The third respondent met each of the sales staff and informed them of the selection criteria to be used which were the same as had been used previously.
13. The third respondent and Mr O’Neill scored each person against the selection criteria. The claimant had the lowest score at 23 while Mrs Gallagher was second lowest at 38. The staff from the other stores had all scored higher than the two staff from the Carryduff store which had much lower sales. The claimant was informed that he had been provisionally selected for redundancy and was invited to attend a consultation meeting on 18 November 2010.
14. That meeting was attended by both Directors of the company, namely the second and third respondents, and John O’Neill. The claimant attended but only to give the Directors a copy of a letter which had been drafted by the claimant’s solicitor containing questions about his employment and redundancy to which the claimant wanted written answers. He refused to engage in any real discussion of his selection scores and appeared to be very stressed. He informed them of his intention to issue tribunal proceedings. He was later provided with written answers.
15. Both Directors attended the Carryduff store later that day and told the claimant to go home for a few days as they had been concerned at his demeanour. However there followed a series of matters which can only be described as most unfortunate and which the second respondent accepted, with the benefit of hindsight, should not have occurred. As a result the claimant went on sick leave.
16. The claimant was informed by letter dated 23 November that his scores had been reviewed following further consideration of his representations. However, his revised score of 30 was still lower than all the other candidates and he was again provisionally selected for redundancy.
17. The tribunal noted that there were two criteria where the claimant scored lower than Mrs Gallagher, Attitude and Conduct. Under ‘Attitude’, the claimant scored 3 points, the minimum acceptable standard, while Mrs Gallagher scored 7, defined as meeting required standards. The matters considered relevant for marking included having “…effective relationships with colleagues.” The criterion of ‘Conduct’ included consideration of the candidate’s disciplinary record. At the date of marking, Mrs Gallagher’s warning had expired but not that of the claimant.
18. The claimant refused to attend any further meetings arranged by his employer and was informed by letter that his redundancy was confirmed effective from 13 December 2010. He was also informed that he had a right of appeal against his redundancy and advised that any such appeal should be submitted within 5 days.
19. The claimant exercised his right of appeal but it was not allowed as he did not do so until some 6 weeks later and did not satisfy the respondent that there was good reason for the delay.
Legal Provisions
20. Redundancy is a potentially fair reason for dismissal under Article 130(2)(c) of the Employment Rights (Northern Ireland) Order 1996 (as amended). In deciding whether such a dismissal is fair, employers are required to satisfy tribunals that they have acted reasonably in accordance with equity and the substantial merits of the case. (Article 130(4) ERO).
21. The standard of proof required of employers in redundancy cases is that they must satisfy the tribunal that there was a sufficient reason for the dismissal of this employee and that the means by which he has been selected for dismissal were reasonable. In the case of Polkey v AE Dayton Services Ltd, [1987] IRLR 503, the House of Lords held that employers “…will not normally act reasonably unless he warns and consults any employee 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 his own organisation.”
22. The ‘fair basis on which to select’ had been the subject of guidance by the Employment Appeal Tribunal in Williams and others v Compare Maxam Ltd in 1982. The court set out principles for employers which still constitute best practice in such situations. Is summary, these are:-
(i) Give employees and their representatives as much warning as possible,
(ii) agree the criteria to be applied in the selection process,
(iii) criteria for selection should be capable of objective checking and job related,
(iv) selection should be based fairly on these criteria,
(v) the employer will seek to see if alternative employment within his organisation is available.
Tribunal’s Determination
23. The tribunal has applied these legal provisions to the facts found above and determined that the reason given by the respondent for the redundancy dismissal of the claimant was fair in all the circumstances of the case.
24. The tribunal noted that the claimant’s stated belief that Mrs Gallagher had fed the respondents with ‘misinformation’ about him and changed the sales codes in order to inflate her sales records at his expense to ensure it was more likely that she would be retained. However, Mrs Gallagher gained no advantage in the process from any sales records. Both she and the claimant were awarded the same score for sales. These were both less than the scores awarded to those from the other stores. The claimant was selected because the respondent scored him less than Mrs Gallagher on the ground of his attitude and the fact that she had a clear disciplinary record while he did not. These were job related criteria, capable of objective checking and met the above guidelines.
Chairman:
Date and place of hearing: 17 and 18 October 2011, Belfast
Date decision recorded in register and issued to parties: