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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Holland v DFC NI Limited [2010] NIIT 01087_10IT (25 February 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/01087_10IT.html
Cite as: [2010] NIIT 1087_10IT, [2010] NIIT 01087_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1087/10
CLAIMANT: Tracey Holland
RESPONDENT: DFC NI Limited
DECISION
The unanimous decision of the tribunal is that the claimant was not unfairly dismissed and was not discriminated against on grounds of disability. The claimant’s claims are therefore dismissed.
Constitution of Tribunal:
Chairman: Mrs Ó Murray
Members: Mr J Hughes
Mr B Maguire
Appearances:
The claimant appeared in person accompanied by her sister.
The respondent was represented by Mr I Randle of Peninsula Business Services Limited.
The Claim
1. The claimant’s claims were as follows:
(1) unfair dismissal in that she alleged that she was unfairly selected for redundancy;
(2) that she was discriminated against on grounds of disability in being selected for redundancy and dismissed on 23 February 2010 and;
(3) that the dismissal was the culmination of adverse treatment on grounds of her disability which had occurred for a period before her dismissal.
The Issues
2. The issues for the tribunal were as follows:
(1) was redundancy the reason for the dismissal and was the dismissal fair in all the circumstances;
(2) was there a redundancy situation which affected the claimant and if so was the claimant fairly selected for redundancy following a fair process;
(3) were the statutory dismissal procedures followed;
(4) was the claimant subjected to adverse treatment on grounds of her disability and was the alleged adverse treatment part of a course of conduct which culminated in her being unfairly selected for redundancy and dismissed on grounds of her disability.
Sources of Evidence
3. For the claimant the tribunal heard from the claimant and her witness Mrs Robinson. For the respondent the tribunal heard evidence from Mr U Butler, Chief Executive Officer of the respondent company; and Mrs L McArdle the company accountant. The tribunal was also presented with two witness statements on behalf of the respondent from Mr P Shaw the Managing Director of the respondent company and Mr Trevor Armstrong the Remarketing Director who conducted the appeal. The claimant agreed the statement of Mr Armstrong who was not called to give evidence and the tribunal therefore took account of his statement insofar as it was relevant. The statement of Mr Shaw was not agreed by the claimant and the tribunal therefore gave no weight to the statement given by Mr Shaw as he was not called to give evidence. The tribunal considered the documentation to which it was referred.
Findings of Fact
4.1 The tribunal observed carefully the demeanour of the witnesses and took account of the oral evidence and documentation to which it was referred in evidence and found the following facts proven on a balance of probabilities.
4.2 Adverse points were made by both sides in relation to matters which were not relevant to the issues before us. For example competing allegations were made about the return of the company car assigned to the claimant. We have not recorded our view on this and other matters because we found them to be of little relevance to the issues before us.
4.3 We attached no weight to the statement given by Mr Shaw as he did not appear to give evidence. We attached little weight to Mr Armstrong’s statement because he was not in attendance to give evidence and, in the event, the claimant agreed with his statement.
4.4 As regards Mrs Robinson’s evidence we did not attach a great deal of weight to it. Mrs Robinson clearly wished to support her friend in her allegations. Mrs Robinson was made redundant at the same time and her statement supported the claimant in matters of which Mrs Robinson did not have direct knowledge.
4.5 The claimant was employed by the respondent from 1999 until she was dismissed on 23 February 2010. The claimant had various roles in the company the last of which was as Administration Manager.
4.6 In 2007 the claimant was diagnosed with multiple sclerosis (“MS”). The respondent agreed in these proceedings, and the tribunal so finds, that the claimant suffered from a disability within the meaning of the Disability Discrimination Act 1996 (“the DDA”) during the relevant period from first diagnosis in 2007 until she was dismissed in February 2010.
4.7 Following her diagnosis with MS the respondent agreed to reduce her hours to take account of her medical condition. Even though the claimant’s hours of work reduced, the respondents agreed that she could retain a one-hour break for lunch.
4.8 The respondent’s business involved the leasing of cars and the associated finance business. Due to the economic downturn, the requirement for companies to lease cars dramatically reduced. The downturn in the global economy therefore had a dramatic effect on the respondent’s business in 2008 to 2009.
4.9 In late 2008 and early 2009 the respondent sent a letter to all staff implementing a pay cut of 10%. In addition some staff changed to part-time working. The aim of these measures was to save costs. In December 2008 the company accountant resigned. The company then used a secondee from their firm of accountants to deal with financial matters. The respondent was advised by its accountants to engage an accounting assistant rather than a qualified accountant in order to save money. This led to Mrs McArdle being engaged in May 2009. Mrs McArdle was a part-qualified accountant.
4.10 Due to continuing difficulties, the firm of accountants advised the respondent to make several redundancies. The decision to enter into redundancy consultation was made in early November 2009. The respondent identified three posts namely: one post in the sales team, the claimant’s Office Administration post and the Customer Care Manager post. The decision to make the claimant’s post redundant was taken by Mr Butler, Mr Shaw and Mr Armstrong. The sales team reduced due to the resignation of an employee and Mrs R from customer care was made redundant.
4.11 It appeared to be common case that the claimant got on very well in the respondent company before the economic downturn hit. Following the downturn there was huge pressure on management, Mrs McArdle was brought in and redundancies were recommended as necessary by the company’s accountants.
4.12 The claimant’s appraisals were good and the claimant had thanked the respondent’s managers for their accommodation of her condition following diagnosis in 2007.
4.13 The claimant’s duties meant that she was heavily involved in the administration of business generated by the involvement of three local banks in car finance. The three banks withdrew from this market which led to a sudden huge downturn in the business of leasing new cars and the work associated with that business. The respondent fundamentally changed its way of doing business by using brokerage firms which carried out the purchasing and sales activities and the respondent simply received commission payments. The respondent’s rental business increased from a small base but it was still a minor part of the respondent’s business. The net effect of this was that the claimant’s duties suddenly reduced drastically. As a result of the claimant’s reduction in duties due to the downturn in work the claimant’s post was one of the obvious posts to be considered for redundancy.
4.14 The claimant agreed that there was a need for redundancies but said that her job should not have been chosen.
4.15 The claimant was in the accounts team which comprised Mrs McArdle, Ms S the Accounts Credit Controller and the claimant.
4.16 The claimant agreed that she was not qualified to do Mrs McArdle’s job but stated that she could have done the credit control element of Ms S’s job as the claimant had previously carried out that work.
4.17 We accept that Ms S’s job was a different job to that of the claimant and that only a proportion of Ms S’s job related to credit control. We therefore do not find that the claimant should have been put in a redundancy selection pool with Ms S.
4.18 The claimant’s suggestion, that she should have been offered a marketing and sales post subject to training, was not acceptable as it would have required training and would have involved an experienced member of the sales team leaving. We therefore find that the claimant was not in a pool with the sales team, nor was it reasonable to expect the respondent to offer the claimant a marketing and sales post.
4.19 The respondents held an ‘at risk’ meeting on 9 February with the claimant to warn her of the possibility of her post being made redundant.
4.20 On 19 February 2010 a redundancy consultation took place by telephone conference. The respondents explored alternative posts and the claimant suggested some alternative posts which were considered by the respondent following the meeting.
4.21 At the meeting on 19 February 2010, the respondent offered the claimant the job of receptionist on a part-time or full-time basis as the directors were aware that the receptionist was looking for another post and they were, therefore, considering bumping her out of her post and slotting the claimant into it. The claimant was unaware of this and rejected the offer out of hand as she believed it was unreasonable to offer a job to her which was already filled by another member of staff.
4.22 On 23 February 2010 a further consultation meeting took place when the respondents outlined why the suggestions made by the claimant would not be possible. The decision to make the claimant redundant was taken at that meeting. The claimant was told why the respondent could not accommodate her suggestions and the claimant was told that she would be sent a redundancy offer.
4.23 A letter of 23 February 2010 was sent to the claimant terminating her employment for redundancy and advising her of her right of appeal.
4.24 An appeal meeting took place on 6 May 2010 and by letter of 13 May 2010 the claimant was informed that her appeal had been unsuccessful.
4.25 The claimant made the case that her redundancy was connected to alleged adverse treatment on grounds of disability and that the redundancy decision therefore amounted to disability discrimination. The claimant appeared to base this allegation on the points set out in the following paragraphs with our findings.
4.26 The claimant alleged that Mrs McArdle was not told that the claimant had MS because Mrs McArdle kept referring to the claimant as having ME and that this was evidence of an adverse attitude to the claimant due to her disability. We accept the respondent’s evidence that Mrs McArdle was told of the claimant’s condition and accept Mrs McArdle’s evidence that she inadvertently mixed up the two terms. We do not accept this as evidence of an adverse attitude to the claimant’s condition in the company in circumstances where the company accommodated the claimant following her diagnosis.
4.27 The claimant alleged that Mrs McArdle criticised her work and in particular its accuracy. It was part of Mrs McArdle’s role to oversee the accuracy of the claimant’s work.
4.28 The claimant alleged that she was told by Mrs McArdle that she should work into lunchtime if she found that she was not finishing her work. Mrs McArdle suggested this because she believed that the claimant was entitled to a half-hour lunch under her contract because of her working hours. The claimant has not shown a connection between that suggestion by Mrs McArdle and her disability.
4.29 The claimant alleged that, when she was off sick in December 2009, no-one contacted her and no-one spoke to her when she returned to work. The respondent however stated that the claimant was sent texts and that she was spoken to by Mrs McArdle when she came back to see how she was. This is an example of a direct conflict in evidence. The onus is on the claimant to prove this fact and she has not discharged that burden. We therefore do not accept the claimant’s allegation on this point particularly as the claimant was unreliable in her evidence on other matters.
4.30 The claimant also pointed to an alleged incident with Mrs McArdle shortly after Mrs McArdle joined the company in May 2009. The claimant alleged that she had a meeting three days after Mrs McArdle started when Mrs McArdle told her that she had been told to be hard on the claimant, not to be friends with her and said that she (Mrs McArdle) could be a “bitch”. The claimant indicated that this incident shows that Mrs McArdle and the respondent treated her less favourably because of her disability. We do not accept the claimant’s account nor do we accept that, even if it occurred in that way, it was connected to her disability. It is for the claimant to prove this primary fact. We do not find that she has discharged the burden of proving that fact and we do not accept her account of that encounter with Mrs McArdle. Our primary reasons for this are as follows:
(1) the claimant changed her evidence in relation to when this alleged conversation took place. The claimant was very specific in her evidence that this conversation took place three days after Mrs McArdle started but accepted that she was actually on holiday when Mrs McArdle started and therefore could not have been correct in that statement;
(2) Mrs McArdle accepted some elements of what the claimant alleged but gave a completely different and innocuous context which we accept;
(3) we do not regard it as plausible that Mrs McArdle would essentially warn the claimant that she was out to get her if it was, indeed, the case that the respondent wished to get rid of the claimant.
4.31 The claimant pointed to the conduct of the review meeting on 30 September 2009 as evidence of adverse treatment due to her disability which ultimately led to the redundancy decision. Each side gave very different accounts of what took place at that meeting.
4.32 The claimant characterised the meeting at a planned attack on her ability to do her job leading her to be in floods of tears and in a dishevelled state with her blouse soaked with tears, all of which would have been apparent to staff and customers. In contrast, the respondent’s witnesses stated that the claimant reacted very strongly to what was a review meeting to ensure that processes were as efficient as possible given the dire financial strains of the company; that the claimant reacted very strongly to the perceived criticism of her performance; and that she shouted at the directors to the extent that she volunteered an apology the next day for her behaviour.
4.33 The claimant gave the impression that the meeting was held in a glass room and the fact that her distress could be seen by others outside the room added to her feeling that the meeting was degrading and humiliating. In fact however the claimant, in evidence to us, agreed with the respondent’s witnesses that the room had a glass panel in it which was behind the claimant and the claimant was therefore not visible to anyone but the receptionist given the configuration of the building.
4.34 We were unhappy with the evidence of both sides in relation to this meeting. We were unhappy with the late production of an apparent note of the meeting by the respondent during the hearing. However the burden is on the claimant to prove primary facts and we are not satisfied that she has discharged that burden. We therefore do not find that the claimant was subjected to a humiliating and degrading session during which she was harangued, as she alleged during the hearing, for the following reasons:
(1) the claimant was inconsistent in her evidence on this meeting;
(2) the claimant alleged that she went into the meeting knowing nothing about what it was about when in fact she agreed during the respondent’s evidence that she had received an email the day before the meeting indicating what the meeting would be about;
(3) this review meeting was one of several meetings over several days with other teams and with the claimant’s colleague in the accounts team;
(4) the claimant took the initiative the next day to apologise for her behaviour to Mr Butler. The fact that the claimant took the initiative to apologise is not consistent with her having suffered such humiliating and degrading treatment as alleged.
The Law
Unfair Dismissal
5.1 The law on unfair dismissal is set out in the Employment Rights (Northern Ireland) Order 1996 as amended (referred to below as “ERO”). The right not to be unfairly dismissed is set out at Article 126 of the ERO and at Article 130 are listed the potentially fair reasons for dismissal, one of which is redundancy. It is for the employer to show that the dismissal was for one of the potentially fair reasons and it is for the tribunal to determine whether the dismissal was fair in all circumstances.
5.2 Redundancy is defined at Article 174 of ERO. Redundancy is a potentially fair reason for dismissal and it is for the tribunal to consider whether the respondent acted reasonably or unreasonably in treating redundancy as a reason for the dismissal of the claimant
5.3 The statutory disciplinary and dismissal procedures are set out in the Employment (Northern Ireland) Order 2003 and in the Employment (NI) Order 2003 (Dispute Resolution) Regulations (NI) 2004.
The decision of the Northern Ireland Court of Appeal in Robinson v Carrickfergus Borough Council [1983] IRLR 122 approved the approach of the EAT in the case of Williams v Compair Maxim [1982] EAT and established the following principles to be applied in a fair redundancy process:
(1) there should be fair warning and consultation;
(2) there should be fair selection which involves identifying the correct pool of employees and applying objective, transparent selection criteria to that pool;
(3) suitable alternative employment should be actively considered and offered by the employer and the employer should consider “bumping” which means making another employee redundant and slotting the person whose post is redundant into that place;
(4) fair consultation involves providing adequate information and time for the employee to respond to a proposed redundancy so the employee is in a position to suggest alternatives.
5.4 The ERO provides at A130A(2) that failure by the employer to follow a procedure does not, of itself, render the dismissal unfair if the employer would have dismissed the employee even if he had followed the procedure.
5.5 Disability-related discrimination. The law on disability-related discrimination is set out at Section 3A(1) to (4) of the Disability Discrimination Act 1996 (“the DDA”). Disability-related discrimination occurs when an employer’s treatment is for a reason which relates to the employee’s disability, the treatment is less favourable than the way in which the employer treats, or would treat, others to whom that reason does not, or would not, apply and the employer cannot show that the treatment was justified.
5.6 In the decision of London Borough of Lewisham –v- Malcolm 2008, the House of Lords held that the comparator should be a non-disabled person in the same position as the claimant.
5.7 The burden of proof provisions apply to this aspect of discrimination as follows. The employee must prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that, for a reason relating to his disability, he has been treated less favourably than a person without his disability but otherwise in his position, has been treated, or would be treated. If the employee does prove such facts the burden of proof shifts to the respondent to show that the employee has not suffered the less favourable treatment for a disability-related reason or, if he has, that the treatment was justified.
Disability Discrimination
5.8 Section 4(2)(d) of the DDA 1995 provide that it is unlawful for an employer to discriminate against a disabled person whom he employs, by dismissing him or subjecting him to any other detriment. The burden of proof applies to the discrimination claim as follows: the onus is on the claimant to prove primary facts from which the tribunal could conclude that discrimination occurred. If the claimant proves such primary facts the burden shifts to the employer to prove that discrimination did not occur.
Conclusions
6.1 We accept that the claimant’s duties dropped dramatically because of the change in business and therefore her post was easily identified as one that could be made redundant. Her remaining duties could be easily redistributed and in the event her remaining duties were absorbed by Mrs McArdle and a small amount was done by Mr Shaw.
6.2 In summary we accept that there was a need for a post to be made redundant and that the claimant’s post was a “stand alone” post because the downturn in business dramatically affected her post which rendered it at risk of redundancy.
6.3 We wish to record that we have taken cognisance of the fact that Mr Armstrong, who conducted the appeal, was at a lower level in the hierarchy than Mr Shaw and Mr Butler who took the original decision to make the claimant redundant. Indeed Mr Butler indicated that Mr Armstrong took the decision with him and Mr Shaw because Mr Armstrong was actually a director at that time although this fact was only known to Mr Shaw and Mr Butler but not to the rest of the staff. It is our view that the fact that Mr Armstrong appeared to be at a lower level in the hierarchy and the issue of whether or not he was openly a director or not, made no difference to the redundancy outcome given the circumstances of the company and the urgent need for redundancies. In addition the claimant made no criticism of the appeal process
6.4 As regards alternative employment the respondent did try to find alternative employment by way of bumping. We therefore find that the offer of the job of receptionist discharged their obligation to seek alternative employment for the claimant as part of the process of deciding whether or not to make her redundant.
6.5 The company had decided in November 2009 that redundancies were necessary and we find that the decision to make redundancies was taken before the claimant was off sick. The withdrawal of the banks and the consequent dramatic reduction in the claimant’s work occurred at the end of 2009 before she went off sick.
6.6 Mrs McArdle was not involved in the decision to make the claimant’s post redundant. In view of this we find that the mistake made by Mrs McArdle in referring to the claimant’s condition as ME instead of MS, does not lead us to conclude that Mrs McArdle discriminated against the claimant nor does it lead us to conclude that the decision to make the claimant redundant was connected to her disability.
6.7 It is clear to us that the claimant and Mrs McArdle did not get on. Mrs McArdle’s arrival at the company coincided with a dramatic downturn in business and severe financial difficulties in the company. This led the directors to be under such financial pressure that they had to raise finance by remortgaging their homes. There was clearly great pressure on management and on Mrs McArdle, as the financial manager, to ensure that finance business was processed quickly and efficiently. Mrs McArdle therefore had legitimate reason to check that the claimant’s work was done accurately. The claimant perceived this as an attack on her ability to do her job. The claimant has shown us no link between this activity of Mrs McArdle and the claimant’s disability especially in circumstances where regular reviews of the performance of different departments were taking place.
6.8 Our finding is that the account of the review meeting on the 30 September 2009 illustrates the claimant’s over-sensitivity to having her work checked. We find it to be understandable that the respondent carried on such a series of review meetings with staff in an effort to improve efficiency in the economic conditions which prevailed at the time. The claimant’s unreliability in her account of this meeting tainted her credibility generally for us.
6.9 We do not accept the claimant’s evidence at hearing that she suffered ongoing bullying, harassment and name-calling and shouting on a continuing basis. The claimant indicated that she had kept a diary of events but decided to destroy it. We cannot understand why, if things were as bad as the claimant alleged, she would have done that. In addition the claimant’s own witness gave no evidence of a general system of bullying. Again if things were as bad as the claimant indicated during the hearing, we would have expected her own witness to have given some indication of such behaviour and such a prevailing atmosphere.
6.10 The claimant points to the fact that she went on sick leave for five weeks in December 2009 to support her claim that her absence due to illness was a factor in her being chosen for redundancy. As we have found as a fact above, the decision to make redundancies was made before her absence and the claimant’s job was quickly apparent as being at risk due to the dramatic fall in her duties. The chronology does not support this allegation and we therefore reject this allegation by the claimant.
6.11 We are satisfied that the respondent has proved that the reason for the dismissal was redundancy. A fair redundancy procedure was followed in that the claimant was given warning that her post was at risk; the claimant was consulted with; alternative employment was considered and offered and the statutory dismissal procedures were followed.
6.12 We further find that the claimant was fairly selected for redundancy and the dismissal was fair in the circumstances.
6.13 We do not accept that the decision to make the claimant’s post redundant and to dismiss the claimant for redundancy was connected to the claimant’s disability.
6.14 We do not accept that the claimant has proved facts from which we could conclude that she was treated adversely due to her disability. For this reason the claimant has failed to shift the burden of proof to the respondent and her claim for disability discrimination fails.
6.15 The claimant’s claims are therefore dismissed in their entirety.
Chairman:
Date and place of hearing: 1-3 and 6 December 2010, Belfast.
Date decision recorded in register and issued to parties: