Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2012/00987_11IT.html
Cite as: [2012] NIIT 987_11IT, [2012] NIIT 00987_11IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 987/11

CLAIMANT: Fergal Boyle

RESPONDENT: George Best Belfast City Airport

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed nor was he discriminated against on the grounds of his age.

Constitution of Tribunal:

Chairman: Mr P Kinney

Members: Mr B Irwin

Mr P Archer

Appearances:

The claimant was represented by Mr Coll, Barrister-at-Law, instructed by Murphys, Solicitors.

The respondent was represented by Ms Toolan, Solicitor, of Engineering Employers Federation Northern Ireland.

Issues

1. At the outset of the hearing the issues were agreed. The claimant alleges that he was unfairly dismissed both on procedural and substantive grounds. The claimant also contends that he was discriminated against on the grounds of his age. The respondent contends there was no discrimination and that there was a fair reason for the claimant’s dismissal, namely redundancy. The following questions were agreed for the tribunal to resolve:-

(a) Whether there was a true redundancy situation.

(b) Whether the respondent failed to properly engage in consultation, both with the union and individually with the claimant.

(d) Whether the selection criteria were unfair. Whether there was unfair or improper application of the absence criteria in the claimant’s case in connection with the respondent’s refusal to re-categorise his absences.

(e) Whether the claimant has been subjected to unlawful age discrimination.

(f) Whether the respondent failed to comply with the statutory grievance procedure.

(g) Whether the respondent’s refusal to accord the claimant opportunity to apply for the airside standards post was unfair and unlawful.

2. Findings of fact

The claimant was employed by the respondent as a firefighter since 21 October 2007. He had previously worked at the airport for another employer as a baggage handler.

3. The claimant first became aware of the possibility of a redundancy at a meeting of all firefighters on 1 December 2010. The claimant was handed a letter at that meeting from Michelle Hatfield, the respondent’s HR Director. This stated that 2010 had been very difficult year for the respondent and referred to the recent announcement of Ryanair’s closure of its Belfast City Airport (BCA) hub. This resulted in a change in categorisation of the airport from Category 7 to Category 6 in line with the Civil Aviation Authority’s requirements and the respondent’s manpower task resource analysis as agreed with CAA.

4. The loss of Ryanair had a considerable impact on the respondent’s business. It meant a loss of approximately one million passengers a year and a reduction in business of some 35%. Ms Hatfield’s letter set out the steps already taken by the respondent to minimise the impact, including releasing agency workers, investigating options for part-time working and reduced hours, limiting or freezing engagement of staff, seeking volunteers for redundancy, freezing training and reviewing all operating expenditure. The claimant, with his colleagues, was advised that the respondent proposed to reduce the number of firefighters from 24 to 21.

5. Ms Hatfield’s letter told the claimant that he was at risk and set out the consultation process. It confirmed that the Unite Union would be informed and would be given the opportunity to assist employees. The letter further stated that the selection criteria would be based on attendance records and continuous length of service. Attendance records would focus on the number of absences rather than the length thereof. A question and answer document was also attached.

6. The categorisation of the airport was dictated by the size of the aircraft using it. Only Ryanair was using Category 7 aircraft at that time. The categorisation had a direct impact on fire fighting manning levels. In Category 7 each of three crews required a minimum of one Station Commander, one Crew Commander and seven Firefighters. In Category 6 the requirement reduced to one Station Commander, one Crew Commander and six Firefighters. The Station Commander, SAFO McMahon, had to complete an annual task resource analysis on manpower. In agreeing minimum numbers with the Regulator, SAFO McMahon had to factor in the impact of leave, training and other commitments. Agreement had also been previously reached with the Unite Union that two personnel could be on leave at any one time. As a result of discussions with the Regulator, CAA, in 2007, SAFO McMahon confirmed that there would be a minimum of two supervisors on duty at all times. The net effect was that with the change in category from 7 to 6 the number of firefighters required fell by three. This led to the redundancy process.

7. SAFO McMahon at the meeting on 1 December 2010, confirmed that he and Ms Hatfield were available for group or individual consultations. Ms Hatfield also sent a letter to Mr Collins, the Regional Officer of Unite, explaining the possibility of three compulsory redundancies. There were ongoing discussions between the respondent and the local union officer, Mr Coomber. On 9 December 2010, Mr Coomber sent an e-mail to Ms Hatfield to confirm that union members (which included the claimant) were not putting forward any ideas or proposals to prevent redundancies. Mr Coomber asked about redeployment and vacancies within the respondent and airport based companies. Ms Hatfield responded on 13 December 2010 regarding other vacancies and alternative employment. Mr Coomber then sent an e-mail to Ms Hatfield on 15 December 2010 advising that Mr Collins had ‘passed on his experience of a general redundancy process to reassure members that the process is fair and correct’.

8. The claimant did not avail of the opportunity for individual consultation with the respondent. On 16 December 2010 he attended a meeting with Ms Hatfield and SAFO McMahon at which he was informed he was at risk of redundancy. He was provided with an explanation of the scoring system and his own score sheet. He was invited to a further meeting on 20 December 2010. This meeting was postponed at the claimant’s request. On 21 December 2010 he sent a letter to Ms Hatfield outlining points he wished to have answered before any further meeting. He went on sick leave on 22 December 2010. Further attempts were made to set up a meeting. On 7 January 2011 the claimant sent a written grievance to the respondent. Ms Hatfield responded to say as the issues raised in the grievance related to the redundancy process, a separate meeting was not required. The claimant’s concerns were matters relating to the individual consultation process. The claimant’s meeting eventually took place on 10 February 2011.

Claimant’s scoring

9. Calculations under the redundancy selection criteria for absence were made over a 18 month period from 1 June 2009 to 30 November 2010. Each employee was allocated 30 points from which 5 would be deducted for each period of absence. Certain categories of absence were not counted when calculating points, these included:-

· Absence caused as a result of an industrial injury, provided that the industrial injury had been formally notified to the company at the time.

· Any other permitted absence.

The latter category was included by SAFO McMahon as part of the redundancy selection criteria to cover unforeseen or exceptional circumstances. It was not a contractual term, but was created for this redundancy process.

10. The other selection criteria used was continuous service. A maximum of 10 points was available for those who had five or more years of service.

11. The claimant scored five points for his three years’ service and 20 points for absence. He had two periods of absence which counted in his scoring. The first absence related to an absence in May/June 2009. The claimant was absent with vomiting and diarrhoea. His doctor’s statement said gastroenteritis. At his return to work meeting with Crew Commander Carmichael, the claimant said that he had been told he had picked up a viral infection. During the redundancy process the claimant sought to have this period retrospectively classified as ‘other permitted absence’ and thus not be counted towards his score. He produced a letter from a solicitor giving details of a difficult property transaction he was involved with at that time. He said that if he had been aware he could have asked for a permitted absence, he would have done so at this time and therefore probably not have required to take sick leave for vomiting and diarrhoea. Indeed, the claimant contended in evidence that he may not have got to the point of being ill. However, the claimant made no mention of this background in his grievance letter. Instead he made the case that he was suffering from a highly contagious disease, it was of a type of sickness that could be considered under ‘other permitted absence’.

12. The second absence related to a back injury. The claimant phoned in sick on 25 July 2010 with a sore back. A contemporaneous note was made by the officer he spoke to. It reads:-

“Back injury – occurred at home – to ring Thur 29/7/10.”

The claimant did not tell anyone at the time that the injury was work-related. There was no mention of work-related injuries on his sick line or GP letters. He received a home visit from SAFO McMahon on 10 August 2010. In his note of that meeting, also signed by Stephen Patton, a Senior HR Executive present at this meeting, SAFO McMahon records that the claimant told him that he had put his back out while working in his garage. The claimant then had a return to work meeting with Crew Commander Stephen Morrison on 19 August 2010. In the notes of that meeting, signed by the claimant, he stated that his injury occurred whilst carrying out work in the house and got considerably worse when attempting to lift one of his children. The first time the claimant raised a suggestion of a work-related element to his injury was during the redundancy process. He produced a letter from his GP dated 17 December 2010 but no other contemporaneous corroboration whatsoever.

13. In establishing the criteria for the redundancy process, SAFO McMahon considered that training and performance criteria were inappropriate. All firefighters were deemed competent by approved assessors. Training needs analysis of each firefighter were carried out and appropriate training given. There was no existing scoring matrix other than a firefighter being competent or requiring further training. In December 2010 all firefighters were considered competent. SAFO McMahon considered using time-keeping as a criterion but he did not feel that it was sufficiently measurable from the information held by the respondent. Four individual firefighters held additional qualifications, such as first aid or fire extinguisher training. SAFO McMahon considered excluding them but finally determined that they should remain in the pool as the cost to the business if they left and others required training was negligible. The respondent chose a criterion of absence. It was felt that the appropriate period to take into account was no less than 12 months and no more than 24 months. On this basis, SAFO McMahon opted for a period of 18 months. He set out the types of absence to be excluded. At the time of the redundancy process, SAFO McMahon and Ms Hatfield included an extra category of absence, ‘other permitted absence’, for the purpose of the redundancy process. In fact, no absence fell in that category. The other criteria chosen was continuous service. The length of service to count was capped at five years to prevent any inappropriate impact.

14. At the meeting on 10 February 2011 the claimant sought to have his two periods of absence discounted. He contended that the vomiting and diarrhoea episode in 2009 should be excluded as ‘other permitted absence’ and his back injury in 2010 as an industrial injury. He also contended at the meeting that further proposals to avoid redundancies had the support of the other firefighters. After the meeting, SAFO McMahon and Ms Hatfield reviewed the information relating to absences. They concluded that they should not be excluded and the points remained the same. The suggestion of alternative proposals was also explored. However, Mr Coomber confirmed no such agreement existed amongst the remaining fire fighting staff.

15. The respondent wrote to the claimant on 25 February 2011 to confirm that he had been made redundant. The respondent set out the reasons for its decision and its responses to the claimant’s queries. It was also confirmed that the claimant’s details would be kept should a fire fighting vacancy occur within the following 12 months. The claimant appealed this decision. An appeal meeting took place on 22 March 2011 and the claimant was notified by letter dated 29 March 2011 that his appeal was unsuccessful.

16. A fire fighting position subsequently became available. The claimant was notified and expressed his interest. The post was ultimately awarded to another firefighter who had also been made redundant in the same process.

17. A further post at the BCA was advertised. This was not a fire fighting post. The claimant became aware of this post through a former colleague. He was told he could not be considered for the post as it was only open to holders of a current airport pass.

The law

Unfair dismissal

18. The tribunal has had the benefit of written submissions from the parties and does not intend to set out in detail the statutory provisions relating to unfair dismissal and age discrimination. It is for the employer to show a potentially fair reason for dismissal. One such is redundancy. If the employer shows that the reason was redundancy then a decision whether or not the dismissal was unfair 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. The issue will be determined in accordance with equity and the substantial merits of the case.

19. The tribunal must not substitute its own view for what was the correct course to adopt. The tribunal must determine if a decision to dismiss fell within a band of reasonable responses which a reasonable employer might have adopted.

20. In Williams v Compare Maxim Ltd [1982] IRLR 83, the EAT provided guidance on the standards to expect in determining whether a dismissal for redundancy is fair. This includes that the employer should give as much warning as possible of impending redundancies, seek to establish criteria for selection which can be objectively checked against such things as attendance records, experience, efficiency at the job or length of service, to consult with the employee and where possible to see whether alternative employment could be offered.

21. Establishing the pool of employees from which a redundancy selection must be made must be fair. Ultimately it is for the employer to determine the pool. The selection of a pool is a fact-based process. The tribunal should not sit in judgment on business decisions. The tribunal should not investigate commercial and economic reasons for prompting action. The tribunal, however, can question the genuineness of a decision and be satisfied that it is made on the basis of proper information.

22. In relation to criteria for selection, Harvey on Industrial Relations and Employment Law, Division D1, Paragraph 1687 states:-

“It is now well established that tribunals cannot substitute their own principles of selection for those of the employer. They can interfere only if the criteria adopted are such that no reasonable employer could have adopted them or applied them in the way in which the employer did.”

Harvey goes on to say at Paragraph 1701:-

“ … it is important that the criteria chosen for determining the selection should not depend solely upon the subjective opinion of a particular manager but should be capable of at least objective assessment.”

Age discrimination

23. Mr Coll helpfully set the statutory provisions out in his written submissions and we do not intend to repeat them here.

Tribunal’s conclusions

Redundancy situation

24. The tribunal is satisfied that there was a redundancy situation in the respondent’s business. 2010 was undoubtedly a difficult trading year and there is no doubt that the loss of a significant operator, such as Ryanair, would have a direct impact on the business of the airport. The tribunal were impressed by the evidence of SAFO McMahon and with the clarity of the explanation for the manpower requirements in fire fighting personnel. The tribunal is satisfied that the needs for employees to carry out work of a particular kind at the place where the claimant was employed had diminished. There was no longer a regulatory or business reason to maintain the number of firefighters at the airport. SAFO McMahon had due regard to his commitments, both to the union and to the airport, in ensuring an appropriate balance of supervisory staff and firefighters on each crew. It was the tribunal’s view that SAFO McMahon had gone to considerable efforts to maintain and support both the working structure for the fire fighting crews and the safety requirements of the airport itself. The tribunal has accepted the evidence of the respondent that other alternative to redundancy were considered, including a request for voluntary redundancies. The pool of selection was a fair and reasonable pool in all the circumstances. SAFO McMahon gave a clear explanation of why supervisory grades were required at suitable manning levels for each crew and why, in his opinion, it was not necessary or reasonable for them to be included in the redundancy pool. The tribunal accepts that was a reasonable exercise of the employer’s discretion and that the pool of all firefighters was a reasonable pool. The loss of Ryanair’s business led to a change in the categorisation of the respondent’s airport from Category 7 to Category 6. The impact of this change was to reduce the requirement for firefighters within the agreed structure with the CAA whilst maintaining the existing agreements with the Unite Union.

25. The tribunal does not consider there was a failure on the part of the respondent to consult with the Unite Union. The union were informed of the process and the criteria to be applied. The local union officer, Colin Coomber, was clearly involved throughout the process. Mr Collins had confirmed to the union members that the process was fair and correct. The tribunal also determines that the respondent provided the claimant with appropriate consultation. This commenced with the meeting on 1 December 2010 and the letter setting out the basis for the company’s decisions to consider redundancies. The claimant had an opportunity for individual consultation over the next fortnight, but decided for his own reasons not to avail of that consultation. He then had a further meeting, on 16 December 2010, at which he was advised he was at risk and provided with his scores and the selection criteria. The claimant then sent a grievance letter setting out queries which were dealt with at a further meeting with the respondent on 10 February 2011. The claimant was accompanied by a union representative and the respondent carried out further investigations and enquiries subsequent to that meeting before arriving at their conclusion that the claimant should be made redundant. The selection criteria employed by the respondent were fair and objective. A large part of the claimant’s case rested on his attempts to have his absence periods re-categorised. The tribunal saw little merit in these attempts. In relation to the incident of vomiting and diarrhoea in 2009, it is clear from the contemporaneous evidence that the claimant was ill at that time and was off on sick leave. He attempted retrospectively to have this re-categorised as ‘other permitted absence’. However, it is clear to the tribunal that this category of absence was only created by SAFO McMahon and Ms Hatfield in relation to the redundancy process. There was absolutely no reason why the claimant’s period of illness should be re-categorised under this heading. The claimant’s attempt to re-categorise his second period of absence had even less credibility. The claimant first raised the claim that his injury in 2010 was an industrial injury during the redundancy process. This is notwithstanding the clear contemporaneous evidence of the time that the injury was sustained at home. This was confirmed on no less than three occasions contemporaneously with his injury to three different individuals. In any event, the criteria required that the industrial injury had to have been formally notified to the company at the time of the injury; and this had patently not taken place in these circumstances.

26. Consideration was given to alternative employment and indeed to future employment. The claimant was notified of a subsequent fire fighting absence and was considered for that post but was unsuccessful. The subsequent position with airside standards did not materialise for some considerable time after the claimant was made redundant. There was no requirement on the respondent to offer such a position to the claimant or to amend the criteria for the post to suit the claimant.

Age discrimination

27. There was no evidence of direct age discrimination. The claimant, however, makes a case for indirect age discrimination.

28. The claimant was 37 as at 1 December 2010. He had three years’ service at that point. Mr Coll, in his submissions, drew attention to the number in the pool of 24 who were aged over 40. Mr Coll’s argument is that a criterion of five years’ service to gain the maximum points under the criterion places a 37 year old firefighter at a particular disadvantage to a firefighter aged 40 or over. The tribunal does not accept that the application of the five years’ service criterion places or would place persons of the same age as the claimant at a particular disadvantage when compared with other persons. Indeed, in the case before the tribunal, three firefighters were made redundant. One was aged 32, the claimant was aged 37 and the third firefighter was aged 41.

29. The tribunal is further satisfied that the statutory grievance procedure does not apply to the circumstances of this case, as the steps taken by the respondent were part of a dismissal process. Even if wrong on this point, the tribunal is satisfied that the claimant’s grievances were satisfactorily dealt with through the redundancy process, including an independent appeal at which the claimant attended and had independent representation.

30. For the above reasons, the tribunal unanimously finds that the claimant was not unfairly dismissed and was not discriminated against on the grounds of his age.

Chairman:

Date and place of hearing: 31 October 2011 – 3 November 2011, Belfast

Date decision recorded in register and issued to parties: