Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2011/01391_11IT.html
Cite as: [2011] NIIT 01391_11IT, [2011] NIIT 1391_11IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1391/11

CLAIMANT: Kenneth Charles Allman

RESPONDENT: John Hunter, Martin Hunter & Dean Hunter T/A John Hunter Glazing

DECISION

The unanimous decision of the tribunal is that the claimant's claim of unfair dismissal by reason of redundancy is dismissed.

Constitution of Tribunal:

Chairman: Mr D W I Wimpress

Members: Miss J Townsley

Mr J McKeown

Appearances:

The claimant was not represented and appeared on his own behalf.

The respondent was represented by John Hunter.

THE CLAIM AND THE RESPONSE

1. The claimant complained of unfair dismissal on the grounds of redundancy. The basis of the claim was not apparent from the claim form but comprised of claims that there was not a genuine redundancy situation and that the claimant had been unfairly selected for redundancy. The respondent accepted that the claimant was dismissed and contended that this was a fair dismissal by reason of redundancy.

THE FACTS

2. The claimant was employed as a glazier by the respondent from 2002 to 4 April 2011 when he was made redundant. In addition to the claimant the respondent employed two other glaziers, Mr Banford and Mr Kent. The business suffered several downturns due to the unfavourable economic climate and the respondent contemplated making redundancies on several occasions but managed to avoid doing so until 2011.

3. Mr John Hunter called a general staff meeting on 25 February 2011 at which he informed the employees that the respondent was having to consider implementing a redundancy programme because of the downturn in work in recent months. He indicated that no final decisions had been made but that he anticipated that there would be at least one redundancy. Mr Hunter also invited staff to apply for voluntary redundancy and asked that anyone who wished to do so should contact him no later than 8 March 2011. Mr Hunter stated that he wished to explore any options other than redundancies with employees and that anyone with any viable suggestions or proposals should contact him by the same date. A written letter to this effect was given to each employee. A form in relation to voluntary redundancy was also supplied.

4. The claimant completed the voluntary redundancy form on 10 March 2011 by indicating that he did not wish to apply for voluntary redundancy. On the same date Mr Hunter issued a further letter to employees in which he stated that as there had been no volunteers for redundancy he would be proceeding to make a compulsory redundancy. The letter went on to state that Mr Hunter would be inviting each employee to attend an individual consultation which would involve evaluation and appraisal. A copy of an Employee Appraisal Form was also provided at this stage. This document listed thirty seven areas in which employees' skills and knowledge would be assessed with marks ranging from 1 (unsatisfactory) to 5 (outstanding). Mr Hunter stated that this would involve an open discussion and that employees would be invited to challenge any judgment of their skills and knowledge.

5. The claimant was invited to an appraisal meeting with Mr John Hunter and Mr Martin Hunter on 23 March 2011. Martin Hunter took a written note of the meeting. The meeting took the form of going through each of thirty seven areas. John Hunter asked the claimant what he thought his score should be in each area and following discussion either an agreed mark was given or if there was serious disagreement John Hunter decided what the score should be. The vast majority of the scores were agreed. Towards the end of the meeting an exchange took place in which the claimant indicated that he wanted to come out with the lowest marks. Mr Hunter expressed surprise and asked the claimant if he wanted to be made redundant to which the claimant replied "Oh aye". Mr Hunter asked why he didn't apply for voluntary redundancy if that was the case and the claimant indicated that he believed that there were benefits that he would be entitled to but only on the basis of compulsory redundancy. Mr Hunter responded that this would have no bearing on the decision which would be based on the appraisal criteria.

6. After the appraisal meetings Mr Hunter considered the scores. In order to be fair to the claimant he discounted skill areas which were not applicable to the claimant which brought his score up from ninety six to one hundred and five. Having taken advice Mr Hunter added a further five marks to the claimant's score on account of his length of service giving him a total of one hundred and ten. Mr Kent scored one hundred and forty four. Mr Banford scored one hundred and thirty nine. No adjustments were made in respect of their scores.

7. On 5 April 2011 Mr Hunter wrote to the claimant and advised him that he had been provisionally selected for redundancy. A further meeting was offered to the claimant to discuss the matter further and he was informed that he would have the right to be accompanied by a work colleague or trade union official.

8. On 11 April 2011 Mr Hunter wrote to the claimant and informed him that he had been selected for redundancy. A statutory redundancy payment of £5,462.55 was made to the claimant together with accrued holiday pay of £72.83. The claimant was given ten weeks notice but he was not required to work his notice because the respondent had no work for him to do. The notice pay was £3,641.70 less tax and national insurance contributions. No complaint was made by the claimant in respect of any of these amounts. The letter further informed the claimant that he had the right to appeal the decision to make him redundant and that if he wished to do so he must inform the company in writing within five working days. The claimant did not appeal.

9. The claimant claimed that it was not a genuine redundancy situation mainly on the basis that he believed that the respondent continued to employ others on a “cash in hand” basis to do the claimant’s job. In other words the requirement to do the work was still there. The evidence in support of this contention was that the claimant claimed to have seen two men on at least six occasions travelling in the respondent's vans and this led him to believe that they were engaged in glazing work for the respondent. On one occasion the claimant took a photograph of one of the men on his mobile phone camera and the claimant showed this image to the tribunal. At no time did the claimant see either of these men actually do any work for the respondent. Mr Hunter accepted that these men did in fact travel in the respondent's vans on a regular basis but offered the explanation that this was either for social purposes or the simple giving of a lift to friends and ex-employees who lived near to the respondent's yard in Sydenham. They also played football together. In the absence of any direct evidence of work being engaged by these men we prefer the respondent's evidence on this issue. This finding supports the respondent's contention that this was a genuine redundancy situation. Mr Hunter gave convincing evidence that he was forced to cut staff numbers due to a drop in work and that he did so with considerable reluctance.

THE LAW

10 The right not to be unfairly dismissed is enshrined in Article 126 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”). At Article 130 of the 1996 Order it is stipulated that it is for the employer to show the reason for the dismissal and that the reason falls within one of the potentially fair reasons set out at Article 130(2). If the employer shows that the employee was dismissed for a potentially fair reason, the tribunal must then go on to consider whether the dismissal was fair or unfair in accordance with Article 130(4). One potentially fair reason is that the employee is redundant [Article 130(2)(c)].

11. A dismissal may also be automatically unfair if the employer fails to comply with the relevant statutory procedures when disciplining or dismissing an employee under the Employment (Northern Ireland) Order 2003, and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004. In the present case the standard procedure applies which is as follows:

“Step 1: statement of grounds for action and invitation to meeting –

1. - (1) The employer must set out in writing the employee's alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.

(2) The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.

Step 2: meeting

2. - (1) The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.

(2) The meeting must not take place unless –

(a) the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and

(b) the employee has had a reasonable opportunity to consider his response to that information.

(3) The employee must take all reasonable steps to attend the meeting.

(4) After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.

Step 3: appeal

3. - (1) If the employee does wish to appeal, he must inform the employer.

(2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.

(3) The employee must take all reasonable steps to attend the meeting.

(4) The appeal meeting need not take place before the dismissal or disciplinary action takes effect.

(5) After the appeal meeting, the employer must inform the employee of his final decision.”

CONCLUSIONS

12. As appears from the claim form the claimant was prompted to bring these proceedings by his perception that other persons were doing his work. He nonetheless sought to make the case that he was unfairly selected for redundancy. However, under questioning by Mr Hunter the claimant conceded that the selection process was fair. For our own part we regard this as an entirely appropriate concession. Mr Hunter obtained advice on the process and at every stage as it progressed. The selection criteria and their application were entirely fair and the claimant accepted that there could be no valid complaint about his marks which were largely arrived at by agreement. The claimant made no criticism of the marks awarded to the other employees. Although the claimant attempted to dispute the accuracy of the record of the meeting it became clear during the course of his evidence that such issues as the claimant had with the assessment record did not have any bearing on the marks that were awarded to him. We are therefore satisfied that the claimant was not unfairly selected for redundancy.

13. Although it was not raised by the claimant the tribunal is obliged to consider whether the claimant’s dismissal was automatically unfair due too any failure to comply with the statutory procedures. The respondent complied with each step of the three step procedure and we are entirely satisfied that there was no breach of the statutory procedures. The claimant’s claim is therefore dismissed.

Chairman:

Date and place of hearing: 12 October 2011, Belfast.

Date decision recorded in register and issued to parties:

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