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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> O'Prey v Renault Trucks UK Ltd Renault Trucks NI [2011] NIIT 02538_10IT (11 October 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/02538_10IT.html
Cite as: [2011] NIIT 2538_10IT, [2011] NIIT 02538_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2538/10
CLAIMANT: Samuel O’Prey
RESPONDENTS: 1. Renault Trucks UK Ltd
2. Renault Trucks NI
DECISION
(A) The claimant’s claim of age discrimination is not well-founded and accordingly it is dismissed.
(B) The claimant’s claim of unfair dismissal is well-founded and it is ordered that the respondent shall pay to the claimant the sum of £9,965.
Constitution of Tribunal:
Chairman: Mr P Buggy
Members: Mr I Lindsay
Mr J Martin
Appearances:
The claimant was represented by Mr M Potter, Barrister-at-Law, instructed by Norman Shannon and Co Solicitors.
The respondent was represented by Mr S Cheeves, Barrister-at-Law, instructed by Machins Solicitors LLP.
REASONS
1. “Renault Trucks NI” is merely a trade name. Therefore, in this Decision, we refer to Renault Trucks UK Ltd as “the Respondent”.
2. The claimant was employed as a Parts Manager at a business which operates at premises at Mallusk. He had been employed in that business from October 2001. In the early summer of 2010, that business was the subject of a TUPE transfer. Pursuant to the relevant transfer, Renault Trucks UK Ltd became the transferee of the entity to which the claimant was assigned at the time of the transfer. With effect from 30 September 2010, the claimant was dismissed by reason of redundancy. At the time of the dismissal, and for some years beforehand, he had been the Parts Manager at the Mallusk business.
3. In the summer of 2010, the claimant’s redundancy-related dismissal was not the only redundancy which was in contemplation by the respondent. During that summer, the claimant’s redundancy was one of a number of other redundancies at Mallusk. The respondent was flattening out the management structure of the business. As a result, the claimant’s post was being eliminated. At the same time, the post of the Mallusk business’s Service Manager, Mr Brian Patterson, was also being replaced. A new post of Business Development Manager (“BDM”) was being created. Accordingly, Mr Patterson and the claimant found themselves in competition in respect of the BDM post. Mr Patterson was successful in that competition, and the claimant was unsuccessful. As a result, the claimant’s redundancy took effect.
The claims and the defences
4. In these proceedings, the claimant complains in respect of his dismissal.
5. First, he says that it was a “direct” age discriminatory dismissal.
6. The claimant also complains in respect of this dismissal under the unfair dismissals legislation. He accepts that redundancy was the main reason for dismissal. However, he says that the dismissal was unfair, within the meaning of Article 130(4) of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”), because of the following matters. First, he says that, because of what the relevant decision-makers did, and because of what they failed to do, in the context of the choice of the new BDM, the decision to dismiss the claimant was outside the range of reasonable responses. Secondly, he says that the redundancy pool was wrong in several respects. In particular, he says that he should have been considered for the post of Workshop Co-Ordinator, and that he should have been considered, in respect of other posts in the Parts Department, below the rank of Parts Manager, (through a process of “bumping”).
7. The claimant does not assert that the decision was automatically unfair pursuant to Article 130A(1) of the 1996 Order.
8. The respondent’s defences can be summarised as follows.
9. First, according to the respondent, the age discrimination claim is doomed to failure, because of the following considerations. The tribunal would be satisfied that the relevant acts and omissions, in the context of the dismissal of the claimant, were unaffected by any ageist bias. The claimant had failed to make out a prima facie case of age discrimination. Furthermore, the relatively small age gap between the claimant’s age and the age of Mr Patterson, coupled with the claimant’s relatively young age, made it inherently unlikely that age was a factor.
10. In the respect of unfair dismissal, the defences can be summarised as follows. First, the tribunal would be satisfied that Ms Dawson and Mr Sharp (the persons who chose the new BDM) had, at all material times, acted appropriately and in a fair and conscientious manner. Secondly, it could not credibly be asserted that the employer acted outside the range of reasonable responses in failing to consider the claimant for the post of Workshop Co-Ordinator, which was a post which was junior in status to the post which the claimant held up to the date of dismissal. Thirdly, the employer clearly did not act outside the range of reasonable responses merely by omitting to make junior posts within the Parts Department potentially available, in a redundancy situation, to a Parts Manager whose post had become surplus to requirements.
Some key statutory provisions
11. The problem of age discrimination in the field of employment is addressed in Northern Ireland by the Employment Equality (Age) Regulations (Northern Ireland) 2006 (“the Regulations”).
12. For the purposes of the Regulations, “discrimination” includes “direct” age discrimination. As Regulation 3 of the Regulations makes clear, for the purposes of the Regulations, a person (“A”) “directly” discriminates against another person (“B”) if, on the ground of B’s age, A treats B less favourably than he treats or would treat other persons, unless A can show that the relevant treatment is a proportionate means of achieving a legitimate aim. (In this case, the respondent does not assert that it would have been pursuing a legitimate aim if it had discriminatorily dismissed the claimant.)
13. Article 126 of the 1996 Order establishes the right of an employee not to be unfairly dismissed by his employer.
14. Article 130(1) of the 1996 Order provides that, in determining for the purposes of the unfair dismissals legislation whether a particular dismissal of an employee is fair or unfair it is for the employer to show:
“(a) the reason (or, if more than one, the principal reason) for the dismissal; and
(b) that it is [a potentially fair reason for dismissal].”
As already noted above, the parties are agreed that the main reason for the claimant’s dismissal was redundancy. A dismissal for redundancy is of course a potentially fair reason for dismissal, within the meaning of Article 130(1).
The evidence
15. In advance of the main hearing of this case, the parties had exchanged witness statements, which constituted the evidence-in-chief of the witnesses who gave evidence during the course of this hearing.
16. We received oral testimony from the claimant and from Ms Marie Louise Bond (a person who was working at the Mallusk business during the summer of 2010).
17. We also received oral testimony from the following, who gave evidence on behalf of the respondent:
(1) Ms Barbara Dawson, the Head of Personnel of the respondent.
(2) Mr Christopher Sharp, who is the Customer Services Director of the respondent.
(3) Ms Margaret Unsworth, who is a HR Administrator employed by the respondent.
18. We saw an agreed bundle of documents. We were also provided with some separate miscellaneous documents.
19. We told the parties that we would not take the contents of any “bundle” document (any document within the bundle) into account, for evidential purposes, unless that document had been specifically drawn to our attention by one or both of the parties.
The facts
20. We now set out findings of fact which are relevant to the issues which we have determined. (In order to minimise avoidable duplication, and in the interests of readability, we have also set out various other findings of fact elsewhere in this Decision).
(1) The claimant was employed at Renault Trucks NI at Mallusk, Newtownabbey, from October 2001 until 30 September 2010.
(2) With effect from the latter date, the claimant was dismissed. He was dismissed because of redundancy.
(3) At the time of his dismissal, and for a considerable period beforehand, the claimant had been employed as Parts Manager within that business.
(4) The business had not been doing well for some time. In May 2010, the business was taken over by Renault Trucks UK Ltd. It is agreed between the parties that that takeover constituted a “TUPE” transfer and that, as a result, the claimant, and all of the workers who, at the relevant time, were assigned to the Mallusk business, became entitled to TUPE rights. It is also agreed between the parties that, pursuant to those rights, the claimant is entitled to reckon his continuous employment with the respondent right back to October 2001.
(5) At the time of
the TUPE transfer, the claimant was employed by the respondent as Parts
Manager. In that role, he was responsible for supervising approximately
15 staff in the Parts Department. His
line-manager was the Depot Manager.
(6) At the same time, the post of Service Manager within the business was occupied by Mr Brian Patterson. In the summer of 2010, he had only relatively recently been designated as the Service Manager. Before that, he had been the Workshop Foreman. As Service Manager, Mr Patterson’s main role was to manage and supervise approximately 14 fitters, including apprentices.
(7) In the summer of 2010, the claimant was 41 years of age and Mr Patterson was about 25 years of age.
(8) As soon as the respondent took over the business, they decided to streamline the staffing structure, with a view to making costs savings. It is our understanding that the claimant does not deny that costs savings were appropriate, and that he does not assert that the respondent was acting unreasonably in seeking to streamline the staff structure.
(9) The effect of the streamlining was that the posts of Parts Manager and Service Manager were being replaced. A new post of Business Development Manager, was being created. According to the new staffing structure, the BDM would report directly to the Depot Manager. However, unlike the Parts Manager and the Service Manager posts, the BDM post would have no staff reporting to it, and the post-holder would have no role as a people manager.
(10) The streamlining of the staffing structure put Mr Patterson and the claimant at risk of redundancy. The same revised structure also put a number of other staff at risk of redundancy. Indeed, a number of other staff, apart from the claimant, were made redundant during the summer of 2010.
(11) In the context of the events which are significant in the context of the current proceedings, the following individuals played key roles. Ms Barbara Dawson is the Head of Personnel of the respondent. She is based at the Dunstable premises of the respondent in England. Mr Christopher Sharp is the Customer Services Director of the respondent. He is also based at Dunstable. Ms Margaret Unsworth is a Human Resources Administrator employed by the respondent. She also is based at Dunstable.
(12) Prior to the takeover, Ms Dawson, Mr Sharp and Ms Unsworth had very limited previous working experience of most of the staff at the Mallusk business and, in particular, had very limited working experience of Mr Patterson and of the claimant. Soon after the takeover, the respondent decided to restructure the operation at Mallusk, and to change from a three shift system (for which they had insufficient work) to a two shift system. Another implication of the restructuring was that it would reduce staff levels in the Mallusk business’s Accounts Department (which was taken in-house in Dunstable), and that it would reduce staffing levels generally, both in the Service Department and in the Parts Department.
(13) On 25 June 2010, Ms Dawson travelled to Belfast and she called all the staff to a meeting, at which she explained that the business could not sustain the current number of employees and that there would need to be redundancies as a result. She read out of a prepared statement to explain the changes that were to take place. She handed out copies of the selection criteria the respondent was going to use to reduce the staff in the three Departments concerned, and she invited staff to let her have any comments on it that they might have.
(14) Following the general staff meeting referred to above, Ms Dawson met with the claimant and with Mr Patterson, in turn, and informed them of the abolition of their posts. She told each of them that the new post of BDM was being created, and that they would be eligible to apply for that post. According to her witness statement, she told them that the respondent would like to conduct interviews in respect of the BDM post when herself and Mr Sharp returned to Belfast the following week. However, in our view, the reality is that she was a little vaguer than that; we conclude that she did not tell the claimant unequivocally that interviews would be held the following week.
(15) Both the claimant and Mr Patterson confirmed that they were interested in the new position. She therefore made arrangements for interviews to be held, when Mr Sharp and herself returned to Belfast on the following Wednesday, 30 June.
(16) The emails inviting the two of them to attend the relevant meeting (the meeting at which they were interviewed) did not explicitly mention an interview. Instead, each relevant communication refers to a discussion about each candidate’s “interest” in the BDM post.
(17) As a result, the claimant was left in the position that he thought there might be an interview for the BDM post on the Wednesday, but he also thought that it possibly was merely a discussion about arrangements for a subsequent interview in respect of the new post. (We do not accept the claimant’s contention that he had no inkling at all that there might be an interview on the Wednesday.)
(18) When Ms Dawson and Mr Sharp returned to Belfast on Wednesday for the interviews, they were met at Belfast International Airport by Mr Patterson. There has been controversy between the parties as to how Mr Patterson came to be meeting them at the airport. We are satisfied that he met them there because Mr Sharp asked him to do so.
(19) Among the “competencies for evaluation” allegedly used by the interviewers, in assessing the candidates for the BDM post, was “impact of candidate”. The competencies document of the respondent advises evaluators to consider the following questions, in considering the impact of a particular candidate: Did they speak with confident tone of voice? Did they maintain an attentive posture? Did they respond openly and warmly? [Our emphasis.] According to the overall marking sheet which was completed by Ms Dawson and Mr Sharp, both Mr Patterson and the claimant were marked at “three” for “impact of candidate”, which indicates an “Acceptable” standard. However, in their evidence in this case, both Ms Dawson and Mr Sharp have asserted that an important reason for Mr Patterson’s success in the selection process was that the claimant seemed much less enthusiastic about the job than was Mr Patterson.
(20) The claimant’s interview lasted for about 50 minutes. Mr Patterson was with the interviewers for about 70 minutes from the time of the commencement of his interview. Ms Dawson and Mr Sharp have emphasised, in their evidence in these proceedings, that the duration of Mr Patterson’s actual interview was no longer than the duration of the claimant’s interview, and that the extra time he was in the room is explained by the fact that, when his interview was over, they had a lengthy discussion with him about issues relating to redundancies among Stores Department staff generally. We note that that explanation was not provided to the claimant at the time of the interviews.
(21) About two hours after the interview, Ms Dawson called the claimant back into the office and told him that he had been unsuccessful. By way of explanation, she told him “Brian was more prepared than you with his answers”.
(22) The interview had taken place on 30 June. On 1 July 2010, Ms Dawson wrote to the claimant, confirming that his position as Parts Manager would be redundant with effect from 1 August 2010. She stated that this was not formal notice of redundancy and that the company would be consulting with him to explore all reasonable options. She enquired whether his personal circumstances allowed him to consider posts in England. (The claimant was not prepared to consider posts in England.)
(23) The claimant subsequently pursued an internal grievance process about the arrangements which have been made to fill the post of BDM. Ms Unsworth dealt with that grievance, which was not upheld.
(24) There was never any consultation with the claimant, or with the other staff, about the redundancy criteria. The only consultation that took place was consultation in relation to the application of criteria which the respondent had already unilaterally decided to impose. It was at all times made clear to the claimant that Management had already decided to abolish the Parts Manager post, and that the question of whether it should be abolished was no longer an open question.
(25) We are satisfied that, during June 2010, prior to the BDM interviews, there were rumours within the Mallusk business to the effect that Mr Patterson, rather than the claimant, was the favoured candidate for BDM, and we are also satisfied that these rumours came to the attention of the claimant at around that time. However, we consider the existence of the rumours to be of no significant evidential weight in the circumstances of this case. In particular, the people who were responsible for those rumours were not called as witnesses in this case by either party. Accordingly, we are in no position to adequately assess whether the rumours were false, or were well-founded. Therefore, in deciding this case, we have taken no account of the existence of the rumours.
Discrimination (The law and our conclusions)
21. In this part of the Decision we focus on the discriminatory dismissal claim. In that context, we set out some additional findings of fact, we highlight some of the arguments of the parties, we set out some of the relevant legal principles, and we set out and explain our conclusions.
22. The definition of “direct” age discrimination has already been set out above. Such discrimination involves two elements, both of which must be satisfied:
(1) The claimant must have been treated less favourably than the alleged perpetrator treated, or would have treated, an appropriate statutory comparator. (That is “the less favourable treatment” element).
(2) That treatment must have occurred because of the claimant’s age. (That is the “reason why” element).
23. In this case, we have treated the claimant as not having specified any statutory comparator. Instead, we have treated him as, in effect, relying upon hypothetical comparators and as using the treatment of the comparators identified by him as evidence of how a hypothetical comparator (whose circumstances would have been precisely analogous to the circumstances of the claimant) would have been treated.
24. In the context of the “reason why” issue, the following are important questions. Why did the alleged perpetrators treat the claimant in the way that they did? Was the claimant’s age a substantial and effective cause of the relevant treatment? (Was it an important or significant factor in that connection?)
25. In considering the “reason why” issue, it is important to note that age does not need to be the main reason for the relevant treatment. Instead, there can be age discrimination if the prohibited ground is merely a substantial and effective cause of the treatment. In other words, it needs only to be an important, or significant factor.
26. Article 42 of the Regulations is in the following terms:
“(1) This regulation applies to any complaint presented under regulation 41 to an industrial tribunal.
(2) Where on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this regulation, conclude in the absence of an adequate explanation that the respondent [has committed an act of unlawful discrimination or is to be treated as having committed such an act], the tribunal shall uphold the complaint unless the respondent proves that he did not commit, or as the case may be, is not to be treated as having committed, that act.”
27. Accordingly, the effect of Article 42 is to reverse the burden of proof in some circumstances. In circumstances in which the burden of proof is thus reversed, the tribunal will be obliged to uphold the relevant complaint of age discrimination unless the respondent satisfies the tribunal that the respondent has not committed the relevant act of age discrimination.
28. Provisions comparable to the provisions of Regulation 42 are to be found in all of the principal employment discrimination enactments, both in Great Britain and in Northern Ireland. Case law on those provisions makes clear that, in Regulation 42, the phrase “... could ... conclude ...” means “a reasonable tribunal could properly conclude”; and that a tribunal could not properly so conclude, even in the absence of adequate explanation, unless there is prima facie evidence that relevant discrimination has been carried out.
29. The person who held the post of Workshop Co-Ordinator in the summer of 2010 was younger than the claimant. Some of the workers within the Parts Department were also younger than the claimant. Mr Patterson, who was aged 25, was significantly younger than the claimant.
30. In our view, it was not unfair of the respondent not to allow the claimant to compete for the Workshop Co-Ordinator post. We are also satisfied that it was not unfair of the respondent not to allow the claimant to compete for posts below the rank of Parts Manager within the Parts Department.
31. When an alleged perpetrator fairly treats a claimant less favourably than they treat persons who are younger than the claimant, the fairness of that treatment is a powerful indicator that the relevant treatment was not influenced by ageism.
32. As will appear below, we consider that the respondent treated the claimant unfairly in the context of the process by which they chose the successful applicant for the BDM post.
33. Accordingly, in the context of the choice of BDM, there is both a difference in age (between the claimant and Mr Patterson) and unfairness. Furthermore, as appears elsewhere in this Decision, we consider aspects of the evidence of Ms Dawson and Mr Sharp, in relation to certain matters which are relevant to the process by which the BDM post was filled, to be unsatisfactory.
34. On balance, and not without hesitation, we have concluded that a combination of those factors (the difference in age, the unfairness of the process, the lack of transparency objectivity and documentation, and the unsatisfactory nature of some of the oral testimony) amounts to prima facie evidence of age discrimination, in respect of the choice of the new BDM. Accordingly, in relation to the choice of BDM, the onus of proof has passed to the respondent. We are satisfied that the respondent has discharged that onus. We were satisfied that Ms Dawson and Mr Sharp told the truth when they told us, on oath, that, in choosing the BDM, they were in no way influenced by ageism. In arriving at that conclusion, we have taken careful account of their demeanour, and their manner of giving evidence, in relation to this aspect of the case. We have also taken account of the relative implausibility (as pointed out by Mr Cheeves) of discrimination occurring against a man in his 40s and in favour of a man of Mr Patterson’s age.
35. Mr Potter drew our attention to what he considered to be disingenuous aspects of the testimony of Ms Dawson and Mr Sharp, on the question of their perceptions, at the time, of the age gap between the claimant and Mr Patterson. However, in our judgment, their evidence on those matters was truthful.
36. As Mr Cheeves has pointed out, in a case like the present case, in which the claimant is relatively young and the difference in age between him and the more favourably treated comparator is not great, it is inherently less likely that ageist discrimination would occur (than would be the case, for example, in a scenario in which the claimant is in his 60s, and the more favourably treated candidate is in his 20s or 30s).
37. In our view, the unsatisfactory aspects of the evidence of Ms Dawson and Mr Sharp is easily explicable on the basis that there has been a wish to avoid a finding of unfair dismissal, and accordingly the unsatisfactory nature of that evidence does not necessarily point to an attempt to cover up ageism.
38. In relation to the refusal to consider the claimant in respect of “other” posts, even the element of unfairness is missing.
39. Accordingly, against that background, and for those reasons, we consider that the claimant has not established a prima facie case of age discrimination, in respect of the failure to consider him for posts other than the BDM post. Accordingly, the discriminatory dismissal claim must be dismissed.
Unfair dismissal (The law and our conclusions)
40. In this part of the Decision, we focus on the issues which have to be determined in the context of the question of whether or not the respondent has unfairly dismissed the claimant. In that context, we set out some additional findings of fact, we refer to some of the arguments of the parties, we set out some statements of the applicable law, and we then go on to set out and explain our conclusions.
41. In this case, the employer has shown that the main reason for dismissal was redundancy, which is a potentially fair reason for dismissal. If an employer has ‘shown’ the principal reason for the dismissal, and has shown that it is a potentially fair reason for dismissal, the focus of attention moves to Article 130(4), which provides that:
“ … the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) :
(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and
(b) shall be determined in accordance with equity and the substantial merits of the case.”
42. A dismissal cannot be properly be regarded as being unfair within the meaning of Article 130(4) unless, by dismissing the claimant for the relevant reason, the respondent acted ‘outside the range of reasonable responses’.
43. The concept of the range of reasonable responses can be summarised as follows. Firstly, the tribunal must not step into the employer’s shoes. What this means is that the tribunal must not decide what its members would themselves have done in the circumstances of the case; instead, this tribunal must decide whether the employer acted reasonably. Secondly, the test as to whether the employer has acted reasonably is an objective test. The tribunal has to be guided by the fact that, in many cases, there are a variety of responses open to an employer, and that, provided the dismissal was within the limit of that range of reasonable responses, the dismissal will be fair. Thirdly, the function of this tribunal, as an industrial jury, is to determine whether, in the particular circumstances of this particular case, the decision to dismiss the particular employee fell inside or outside the range of reasonable responses which a reasonable employer might have adopted. If a dismissal falls within that band, the dismissal will be fair for the purposes of Article 130(4); it is only if the dismissal falls outside that band that it will be unfair (subject to the effect, if any, of Article 130A(2), which is referred to below). Fourthly, the concept of the ‘range of reasonable responses’ applies to all aspects of the dismissal, including procedural issues as well as substantive issues.
44. Mr Potter drew our attention to the statement of the law in Mugford v Midland Bank [1997] IRLR 208, as set out in Harvey on Industrial Relations and Employment Law, at D/1707, where the following statement appears:
“(3) It will be a question of fact and degree for the [employment] tribunal to consider whether consultation with the individual and/or his union was so inadequate as to render the dismissal unfair. A lack of consultation in any particular respect will not automatically lead to that result. The overall picture must be viewed by the tribunal up to the date of termination to ascertain whether the employer has or has not acted reasonably in dismissing the employee on the ground of redundancy.”
45. He also drew our attention to the statement of law at paragraph D/1685 of Harvey:
“A crucial preliminary problem in relation to redundancy selection where the requirements of the business for employees to carry out work of a particular kind has ceased or diminished is to choose the group of employees from which the selection must be made. The system for choosing this pool must be fair … The pool should include all those employees carrying out work of that particular kind but may be widened to include other employees such as those whose jobs are similar to, or interchangeable with, those employees. Ultimately the pool from which the selection will be made is for the employer to determine, and in the absence of a customary arrangement or procedure, it will be difficult for an employee to challenge where the employer can show that he has acted reasonably.”
46. Mr Potter also drew our attention to the decision of the English Court of Appeal in Thomas & Betts Manufacturing Co Ltd v Harding [1980] IRLR 255. In that case the Court concluded that the Great Britain equivalent of Article 130(4) does not require a consideration only of similarly placed employees. (In that case, the industrial tribunal had held that a woman who was employed making fittings and had two years’ continuous employment should not have been dismissed before a packer with just a few weeks’ experience. Instead, according to that tribunal, she should have been offered the packer’s job, even though this could have involved dismissing someone else). According to the Court, there was no principle of law that the redundancy selection should be limited to the same class of employee as the claimant.
47. Significantly, however, the commentary at D/1686 goes on to point out that, Thomas & Betts does not establish, as a principle of law, that the employer is never justified in limiting redundancy selection to workers holding similar position to the claimant.
48. In our respectful view, the latter observation is an accurate statement of the law. We are satisfied that, in the circumstances of this case, the respondent cannot be regarded as having stepped outside the range of reasonable responses, in failing to consider the claimant as part of a pool of redundancy candidates alongside the Workshop Co-ordinator in particular, or in failing to consider him as part of a pool of redundancy candidates within the Parts Department generally, or in failing to consider him within any other pool.
49. We reject the argument that the employer has stepped outside the range of reasonable responses by confining the claimant to a pool consisting of himself and Mr Patterson. In our view, it was reasonable of the employer to confine him to that pool. In that connection, we note the observations made at the conclusion of the commentary at paragraph D/1686 of Harvey, which we have already mentioned (at paragraph 47) above.
50. In particular, and without limiting the generality of the conclusions set out in the last paragraph above, we consider that any reasonable employer would take account of the fact that the claimant was in a relatively senior position within the business, and would be apprehensive of the difficulties that might ensue when a relatively senior member of the staff is relegated to more junior duties. In the course of the hearing, various alternative posts were suggested as being suitable for the claimant. However, in our view, the only truly suitable alternative opportunity was the BDM post.
51. Mr Potter has drawn our attention to deficiencies in the redundancy consultation process. We agree that the process was defective, because, from the outset of that process, it was made clear to the claimant that the abolition of the Parts Manager post was a decision which was not open for discussion. However, in our view, if the consultation process had been without the relevant defects, the outcome would have been the same, because we are sure that, even after an extensive and impeccable consultation process, the employer would still have decided to abolish the Parts Manager post. Accordingly, if the consultation defects were the only matter which had the potential to render this dismissal unfair, it would nevertheless not have been an unfair dismissal, because of the effects of Article 130A(2). (The effects of Article 130A(2) are considered below.)
52. The selection process in respect of the BDM post fell so far short of basic standards of transparency and objectivity that the choice of Mr Patterson, with the inevitable result of the dismissal of the claimant, put the decision to dismiss outside the range of reasonable responses. For that reason, this dismissal is unfair.
53. The relevant shortcomings (in terms transparency, and objectives) were as follows.
54. Neither Ms Dawson nor Mr Sharp had any extensive personal experience of the claimant’s work performance, or of Mr Patterson’s work performance. Yet the two candidates were not asked to complete application forms. Ms Dawson did keep a note of what was said by each candidate at the interview. However, there was no note available of any contemporaneous observations which had been made, either by Ms Dawson or by Mr Sharp, in relation to the extent to which any particular candidate had demonstrated that he met, or did not meet, the selection criteria. Either no note was made, or no note was kept, of the provisional markings of Ms Dawson, or of the provisional markings of Mr Sharp (prior to their mutual agreement upon the marks which they ultimately jointly awarded to each of the candidates). One of the candidates, Mr Patterson, was given the task of collecting the interviewers, and of ferrying them on the journey to the place where the candidates were to be interviewed. The time spent by the interviewers with Mr Patterson was much longer than the time which they spent with the claimant, and the claimant was not contemporaneously given any good reason for that difference of treatment. Prior to the interviews, and with the BDM post in mind, Mr Sharp had made it his business to seek detailed background briefings in relation to each candidate, but the claimant was never informed that he had done so. Prior to the meeting at which his interview took place, the claimant had not been clearly informed that the interview was going to take place during that meeting.
55. The effect of Article 130A(2) of the 1996 Order can be summarised as follows. If a dismissal would otherwise be unfair, within the meaning of Article 130A(4), for purely procedural reasons, that dismissal will nevertheless not be unfair (within the meaning of Article 130(4) of the Order) if the employer shows that, even in the absence of the relevant defects, the claimant could and would have been fairly dismissed.
56. Accordingly, we must ask ourselves the following question. If the recruitment process in respect of the BDM post had been conducted fairly, and if the procedural shortcomings which we have identified above had not existed, would the claimant in any event have been the unsuccessful BDM candidate? We are not satisfied, on the balance of probabilities, that the answer to that question is ‘yes’. Below, we explain our reasons for arriving at that conclusion (in the context of our explanation of our conclusions on the ‘Polkey’ compensation issue).
The amount of compensation for unfair dismissal
57. In this part of the Decision, we address the issues which arise in the context of compensation. In that context, we set out some additional findings of fact, we refer to some of the arguments of the parties, we set out some of the applicable principles of law, and then we set out our conclusions.
The issues
58. The issues in respect of compensation are as follows:
(1) What is the amount of the claimant’s basic award?
(2) What is the amount of the claimant’s loss?
(3) Should there be a ‘Polkey’ deduction from any compensatory award?
(4) Should the claimant’s compensatory award be reduced to reflect any failure on the part of the claimant to comply with the statutory dismissal procedures?
The basic award
59. The parties are agreed that the claimant is not entitled to a basic award, because he has received a redundancy payment.
The amount of loss
60. Mr Cheeves pointed out that a substantial period has elapsed since the date of the claimant’s dismissal. Against that background, he argued that the tribunal should not allow the claimant as much as six months for future loss.
61. However, we are unable to accept that argument. We consider that six months for future loss is an appropriate period, especially in light of the continuing economic difficulties.
62. The parties are agreed that if the claimant is entitled to compensation for future loss based on a period of six months future loss, his recoverable loss (subject to any ‘Polkey’ deduction, and subject also to any reduction for failure to comply with the statutory dismissal procedures) is £19,929.40.
63. Accordingly, we confirm and decide that the amount of the claimant’s compensatory award, subject to any Polkey or statutory dismissal procedures deductions, is £19,929.40.
Polkey
64. We consider that we have insufficient credible evidence upon which to base any conclusion as to the respective demonstrated merits, as exhibited during the interview process, of the claimant and of Mr Patterson respectively.
65. We have considerable reservations about the reliability of the evidence of Ms Dawson and Mr Sharp, in relation to a number of aspects of the relevant selection process; accordingly, we consider that we cannot properly rely upon their assessments of the candidates, as a basis for arriving at conclusions as to which of those candidates would have emerged triumphant in the event of there having been a fair selection process.
66. Furthermore, we have insufficient information, about the respective merits of the two relevant candidates (Mr Patterson and the claimant), or about the extent to which they would have respectively demonstrated those merits, in the event of there having been a fairly conducted selection process in respect of the BDM post.
67. Accordingly, we are left with the following situation. There were two candidates. We do not know which of them would have demonstrated that they best met the relevant selection criteria, if they had had a fair opportunity of doing so.
68. For those reasons, and against that background, we conclude that there was a 50% chance of the claimant being successful if the shortcomings in relation to the selection process had not existed. Accordingly, a 50% Polkey deduction from the compensation is appropriate. That leaves the claimant with a compensatory award of £9,965.
The statutory dismissals procedure reduction issue
69. Article 15 of the Employment (Northern Ireland) Order 2003 (‘the 2003 Order’), in conjunction with Schedule 1 of the 2003 Order prescribes statutory dispute resolution procedures which are to be followed in relation to dismissals.
70. Step 3 of the applicable statutory procedure provides for an internal appeal against dismissal. The respondent notified the claimant of his entitlement to pursue such an appeal. He did not pursue such an appeal.
71. However, we note that the letter notifying the claimant of that right of appeal (a letter dated 2 August 2010 from Ms Unsworth), began with the following paragraph:
“I refer to the meeting held on Wednesday 30th June 2010 and subsequent letter of 1st July 2010 advising you that your position of parts manager at Retail Trucks Northern Ireland had been identified as redundant with effect from close of business on 1st August 2010.” [Our emphasis]
72. In our view, the effect of that paragraph was to inform the claimant that his appeal could not re-open the question of whether or not his current post (the post of Parts Manager) was to be abolished. Furthermore, on the basis of all of the evidence which we have heard in this case, we are satisfied that, from the beginning of the ‘redundancy consultation’ process, the employer was making it clear that it had already irrevocably decided to delete the post of Parts Manager.
73. Against that background, we consider that the claimant was not being offered a ‘full’ right of appeal, as contemplated by the statutory dismissal procedure, but was instead being accorded only a limited right of appeal (a right of appeal relating to matters other than the question of whether or not his current post should be abolished).
74. The effect of Article 17(2) of the 2003 Order is as follows. If, in the case of unfair dismissal proceedings, it appears to the industrial tribunal that the statutory dismissal procedure was not completed, and that non-completion of that procedure was mainly attributable to failure by the employee to exercise a right of appeal under it, the tribunal must, as a general rule, reduce any award which it makes to the employee by between 10 and 50 per cent.
75. An exception to that general rule is provided for in Article 17(4). In essence, the effect of that exception is that the duty to make a reduction does not exist if there are exceptional circumstances which make a reduction of that percentage unjust or inequitable.
76. We have decided that a reduction is not appropriate in the circumstances of this case. We have arrived at that conclusion on the basis of both of two conclusions, which are set out in the following paragraph. (In our view, either of those conclusions would provide an adequate basis for making no reduction.)
77. First, the employer was not offering a full right of appeal, which was the claimant’s entitlement under the statutory dismissal procedure. Secondly, in any event, it would be unjust to make any reduction, because the exercise by the claimant of any right of appeal would have made no difference to the outcome. (The respondent had already irrevocably committed itself to abolishing the Parts Manager post, and the outcome of any internal appeal would not have changed the decision which, by that time, had already made regarding the identity of the successful candidate for BDM).
The outcome
78. The claimant is entitled to a compensatory award of £9,965.
Recoupment
79. The Recoupment Regulations apply. The prescribed period was the period from 30 September 2010 to 7 October 2011. The prescribed amount was £6,648. The amount by which the amount of the unfair dismissal award exceeds the prescribed amount is £3,317.
Interest
80. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 31 August 2011 and 1 September 2011, Belfast.
Date decision recorded in register and issued to parties: