Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2011/01224_11IT.html
Cite as: [2011] NIIT 1224_11IT, [2011] NIIT 01224_11IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1224/11

CLAIMANT: Robert Mark Lyttle

RESPONDENT: Patterson Electronics Ltd

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly selected for redundancy on grounds of his status as a part-time worker. The claim is dismissed.

Constitution of Tribunal:

Chairman: Mrs M Watson

Members: Mrs C Stewart

Mr P McKenna

Appearances:

The claimant presented his own claim.

The respondent was represented by Mr Culbert, Managing Director of the respondent company.

ISSUES FOR DETERMINATION

1. At a Case Management Discussion held on 15 September 2011, the parties agreed that the legal issues were :-

(i) whether the claimant was unfairly dismissed on the ground of redundancy, and

(ii) whether the claimant was treated less favourably than a comparable full-time
worker by being dismissed on the grounds of redundancy.

2. Both parties accepted that the claimant was dismissed on the ground of redundancy and their dispute related to the fairness of the process and, in particular, to the selection of the claimant, a part-time worker rather than Michael Burton who worked full-time.

3. The tribunal was provided with the case documentation, witness statements from the claimant, Mr Culbert, Director of the company, and Mr Maclaine, the other Director. The witnesses also gave oral evidence.

FINDINGS OF FACT

4. The claimant took up his employment with the respondent company sometime in 1997. He had left his previous employment because of a stress related illness. Because he was not fully recovered, the claimant worked part-time, initially 16 hours per week but gradually increasing so that he was working 31.5 hours per week at the date of the termination of his employment.

5. The claimant worked alongside Michael Burton who had been carrying out the general administrative duties in the stores for 2 or 3 years.

6. Sometime in or about 2003, Mr Culbert and Mr Maclaine took over the management of the company. They undertook a restructuring of the company which in March 2004 resulted in the introduction of new personnel methods and new Terms and Conditions of Employment for all employees.

7. They had found that the Technical Department was under pressure and decided to create a new post of Hire Administrator to take over the duties relating to the hire of radio equipment from the technicians thereby easing that section’s pressure. The claimant was moved to this position. At this time, the claimant was working around 21 hours per week. Michael Burton continued his work, now as Stores Administrator.

8. By late 2010, the claimant was working 31.5 hours per week. When he had no duties in the Hire section, he worked alongside Mr Burton. He also deputised in the Stores section in Mr Burton’s absence.

9. In late 2010, the Directors noted a reduction in sales due to the recession. They identified a need to reduce costs. Consideration was given as to the means by which this could be achieved, including redundancy.

10. The Directors examined all of the positions in the company. The criteria used were:-

· Impact on customer service,

· Whether the duties of each post could be absorbed into other posts,

· Overall impact on day to day business,

· Potential savings.

11. They identified the post of Hire Administrator as suitable for redundancy and by letter dated 17 January 2011 informed the claimant that they proposed making the post of Hire Administrator redundant and that he was provisionally selected for redundancy. The claimant was invited to a consultation meeting.

12. The claimant and Directors met on 21 January 2010. They then wrote to him on 24 January 2010 explaining that they had carried out a review of every position in the company and felt that his post was the only position that could be made redundant without having an adverse impact on the day to day operations of the business. In addition, they were of the view that the claimant did not have the skills or experience to transfer to any other position in the company. A further consultation meeting was proposed.

13. There were two further meetings, on 27 January and again on 4 February, following which the Directors wrote to the claimant to terminate his employment by reason of redundancy. The letter informed him of his redundancy entitlement and his right of appeal. It also thanked the claimant for his work during his time with the company.

14. The tribunal noted that no proper records had been made of the content of these meetings and were concerned by some of the issues discussed such as a possible job-share.

15. The claimant raised a Grievance claiming that he had been treated unfairly and there was a dispute about whether or not he had been asked if he would be willing to work full time. The grievance was not upheld.

16. The claimant’s employment terminated on 29 April 2011 at the end of his contractual notice period.

17. The tribunal noted that the claimant attended his Doctor at the end of January 2010 for ‘significant anxiety’ and that his mother suffered broken bones in a fall on ice at this time.

RELEVANT LEGAL PROVISIONS

18. Regulation 5(1) of the Part-time Worker (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000 provides that part-time workers have a right not to be treated less favourably by their employer than a worker who works full time. That right applies only if the treatment complained of is on the ground that the worker is part-time and is not justified on objective grounds. (Reg.5(2))

19. The claimant also claimed that his selection for redundancy was unfair with regard to the process of selection as it operated in this case. The tribunal has had regard to the Labour Relations Agency’s Code of Practice and the guidelines contained in the cases of Williams and others v Compare Maxim Ltd [1982] IRLR 83 and Polkey v A E Dayton Services [1987] 503. These were summarised concisely by Lord Bridges in the Polkey decision as follows; “In a case 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 his own organisation.”

DETERMINATION

20. The tribunal applied these legal provisions to the facts set out above and have determined that the claimant was not selected for redundancy on grounds of his part-time status or selected unfairly.

21. The post of Hire Administrator had been created to meet an identified business need in 2004. At the time the claimant was working 21 hours per week so that the duties of the post created were capable of being performed in that time. That business need no longer existed in 2010 by which time the claimant was working in Stores on a regular basis because of the decline in the hire duties.

22. Mr Burton had already been employed for 2 or 3 years before the claimant joined the company and for the 7 years since the creation of the Hire Administrator post, he continued in Stores. He therefore had longer and more relevant experience of that post than the claimant so their circumstances were materially different. That post was fully loaded as evidenced by the transfer of the hire duties to people other than Mr Burton. Applying the guidelines in Igen Ltd v Wong [2005] IRLR258, the tribunal was satisfied that the reasons given for retaining Mr Burton rather than the claimant were objectively justified and not tainted by unlawful discrimination.

23. The tribunal had concerns with some parts of the redundancy procedures used by the respondent but was satisfied that the basic elements of a fair procedure had been followed.

24. In smaller companies where people work closely together and often for long periods of time, it can be a difficult to make such selections without causing anxiety and distress. For the Directors in this exercise, their task to explain their decision, not only to the claimant but also to this tribunal would have been made easier if they had kept written records of their selection process and their meetings with the claimant.

25. For the tribunal, the way that each element of the duties of the Hire Administration position was absorbed by several other employees without adverse impact on the daily business of the company was supportive of the evidence of Mr Culbert regarding the decision to choose the claimant for redundancy. In addition, the tribunal found that the decision to retain Mr Burton was objectively justifiable by his longer and more relevant service and experience.

Chairman:

Date and place of hearing: 24 November 2011, Belfast

Date decision recorded in register and issued to parties:

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