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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McBride v Lagan Construction Ltd Lagan Construction Limited [2012] NIIT 02636_11IT (01 May 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/02636_11IT.html
Cite as: [2012] NIIT 02636_11IT, [2012] NIIT 2636_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REFS: 2636/11
2669/11
CLAIMANTS: 1. Karen McBride
2. Nichola Greaves
RESPONDENT: Lagan Construction Limited
DECISION
The decision of the tribunal is that the claimants were not unfairly dismissed. Their claims to the tribunal are therefore dismissed.
Constitution of Tribunal:
Chairman: Mrs Ó Murray
Members: Mr A Ebrahim
Mr P Sidebottom
Appearances:
The first claimant appeared in person.
The second claimant appeared in person.
The respondent was represented by Mr M McEvoy instructed by Tughans, Solicitors.
The Claim
1. Both claimants claimed unfair dismissal in that they claimed that they were each unfairly selected for redundancy.
The Issues
2. The issues for the tribunal at the outset of the hearing were as follows.
(1) Was there a redundancy situation?
(2) Was redundancy the reason for each claimant’s dismissal and did the dismissals occur following a fair procedure involving the application of fair selection criteria?
(3) Was suitable alternative employment available and, if so, was it offered to the claimants?
Sources of Evidence
3. The tribunal considered the evidence of Scott Martin, Financial Director in the respondent company; Colin Loughran, Director; Michael Edwards, Financial Controller. The tribunal considered the evidence of both claimants and Mrs Greaves’ witnesses namely Mr Ian Mulligan an expert in COINS. The tribunal also had regard to the documentation to which it was referred during the hearing.
The Law
4. 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. It is for the employer to show that the dismissal was for one of the potentially fair reasons.
5. 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.
6. 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 relevant principles to be applied in a fair redundancy process:
(i) there should be fair warning and consultation;
(ii) there should be fair selection which involves identifying the correct pool of employees and applying objective transparent selection criteria to that pool;
(iii) suitable alternative employment should be actively considered and, if available, offered by the employer;
7. The tribunal must not substitute its own view for that of the employer but must ask itself whether the selection made was one that a reasonable employer, acting reasonably, could have made.
8. The Court of Appeal in the case of British Aerospace PLC v Green 1995 IRLR 437 indicated that the tribunal should not approach its task by conducting a minute examination of the selection process. Waite LJ stated as follows:
“Employment Law recognises, pragmatically, that an over-minute investigation of the selection process by the tribunal members may run the risk of defeating the purpose which the tribunals were called into being to discharge, namely a swift, informal disposition of disputes arising from redundancy in the workplace. So in general the employer who sets up a system of selection which can reasonably be described as fair and applies it without any overt signs of conduct which mars its fairness will have done all that the law requires of him.”
9. We were also referred to the decision of the EAT in Eaton v King 1995 IRLR 75 which was approved by the Court of Appeal in the Green case at paragraph 25 where Lord Justice Millett outlined the task before a tribunal in this type of case as follows:
“The tribunal is not entitled to embark upon a re-assessment exercise.
…it is sufficient for the employer to show that he set up a good system of selection and that it was fairly administered … ordinarily there is no need for the employer to justify all the assessments on which the selection for redundancy was based.”
10. The case of Polkey v Dayton Services Limited [1987] 3 all ER 974 is a case where the House of Lords made it clear that, if a dismissal is procedurally defective (in that a procedure was not followed or was inadequately executed) then that dismissal is unfair but the tribunal has a discretion to reduce any compensatory award by any percentage up to 100% to reflect the chance that following the procedures correctly or adequately would have affected the outcome.
11. Article 130A of the Employment Rights (NI) Order 1996 (as amended) states as follows:
“(2) Subject to paragraph (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure”.
12. This is known as the “part-Polkey reversal” provision which allows a tribunal to find a dismissal fair if failure to follow a procedure (other than the minimum Statutory Procedure) made no difference to the outcome in that the employee would have been dismissed anyway even if the procedure had been followed.
Findings of Fact and Conclusions
13. Whilst the claimants originally claimed that there was no redundancy situation at the relevant time, it became apparent during the hearing that neither claimant disputed key evidence from the respondents in that regard. Specifically, it was undisputed that actual turnover in the year beginning April 2011 was one third less than the projections for that year and that this led to a requirement to save money in the business.
14. Early in the case it became clear that neither claimant disputed that there was such a big drop in turnover and that the business needed to save money. Rather, the claimants’ dispute was that the respondent should have cut other overheads rather than making their posts redundant. As it is not the function of the tribunal to review such a commercial decision taken by a respondent, it was clear that a redundancy situation pertained at the relevant time and that the key issues in the cases related to whether or not fair criteria and fair procedures were followed in relation to the claimants.
15. The tribunal therefore finds as a fact that a redundancy situation pertained at the relevant time, that the company took steps to reduce overheads and reached the decision that redundancies were necessary to cut overheads in their central administration division.
Mrs McBride’s Case
16. At the time of her redundancy the claimant had been working for some time as a Director’s PA alongside another Director’s PA namely Ms LD.
17. On 20 June the Directors took the decision that redundancies would be necessary in central administration and decided that they no longer needed two Director’s PAs but that this would be reduced to one.
18. Mr Martin devised the scoring matrix and scored the two Director’s PAs before alerting either employee to the fact that redundancies where in the offing. This was a breach of the company’s own procedure which stated as follows:
“The pool of affected employees will be provided with information about the criteria and will have the opportunity to discuss this”
19. The claimant’s claim rested on the following allegations:
(1) That company policy was not followed in that she was not consulted about the criteria before the matrix was devised and the scoring done.
(2) That the pool selected was inadequate in that Ms CT should have been included and if she had been included she would have been made redundant rather than the claimant.
(3) That Mr Martin did not have long enough knowledge of her work for him to be able to carry out the scoring.
(4) That the criteria used included “Events and travel arrangements” which disadvantaged the claimant as she did not arrange events whereas Ms LD did so following an informal arrangement between the two women to divide their work in that way.
(5) That the claimant was offered the opportunity of taking a career break as a possible alternative to redundancy but it was unreasonably refused.
(6) That she should have been offered posts held by JG and PY.
20. We do not accept that the pool was unfair. There were only two Director’s PAs and if the two posts were to be reduced to one the obvious pool was the existing Director’s PAs. From our assessment of the evidence it is clear that Ms CT was a PA at a lower level than the claimant and Ms LD for the following reasons.
(1) CT was the PA to Senior Managers rather than to the Directors.
(2) She received a much lower salary than the claimant and LD.
(3) The terms and conditions show that she reported to the Directors’ PAs and, whilst this happened infrequently in practice, it is an indication of the level of seniority of the post.
21. The respondent has accepted that it did not follow its own policy. We agree that its policy went beyond the general requirements of good industrial practice in relation to redundancy situations. Be that as it may, the company had the policy and it is clearly a flaw in their procedure that they did not follow it. The issue for us is whether this rendered the dismissal unfair.
22. We do not accept the claimant’s case on this point for the following principal reasons:
(1) We heard clear uncontested evidence that events management was an important part of the role and as an employer is entitled to tailor criteria to fit the needs of its business as it goes forward it is by no means the case that if the policy had been followed, the criteria would have changed. It is not for a tribunal to scrutinise such a commercial decision especially as the importance of this criterion to the job was not disputed.
(2) It was not disputed that the note taking criterion disadvantaged LD in that the claimant had a lot more experience of taking notes at Directors’ meetings. We accept that the claimant’s disadvantage under events was “cancelled out” by her advantage over LD in the note taking criterion.
(3) Even if the events criterion had been taken out completely, the claimant’s overall scores would still have been lower than LD’s.
23. For all of the above reasons we do not accept that the breach of procedure led to unfair dismissal, Article 130A is therefore engaged and the flaw in procedure does not render the dismissal unfair.
24. The fact that Mr Martin had not been the claimant’s direct line manager for a lengthy period did not invalidate the scores he arrived at given that the consulted with the other Directors and took into account their views before he scored both employees’ performance.
25. We do not accept that the refusal of the career break amounted to unfairness in this case. It is clear that the Directors had reached a commercial decision that, going forward, they would have no more than one Director’s PA. In view of this it was unfortunate of the company to allude to the possibility of a career break for the claimant when in fact the reorganisation was unlikely to be undone in the future. Nevertheless we are satisfied that Mr Martin considered the application and rejected it as the re-organisation was unlikely to change.
26. The claimant alleged that the fact that MHM sat in her desk after she left meant that her post had not disappeared. We do not accept the claimant’s case on this point in view of the fact that MHM provided low-level administrative support and in view of all the other evidence before us.
27. The evidence was clear that the claimant was regarded as a very good worker as was LD. This was not a conduct or appraisal process but rather a redundancy process where an employer had to choose between two good employees as to which one should be made redundant.
328. The claimant pointed to two posts which she said should have been offered to her as suitable alternative employment namely the posts taken by JG and PY. We do not accept the claimant’s case on this point for the following principal reasons:
(1) JG’s post was a temporary research post in a different part of the business. We accept that he was in post from 7 June 2011 before the decision taken to make the claimant redundant. There therefore was no vacancy at the time of the redundancy and no obligation on the respondent to dismiss JG to offer the temporary post to the claimant. We accept that JG’s post was remunerated at a substantially lower level than the claimant’s post.
(2) PY’s post was casual assistant in the Finance Department. It was common case that she worked part-time and on the figures shown to us the remuneration was very much lower than the claimant’s remuneration. She too was in post at the time the claimant’s redundancy arose. For all these reasons we find that her post did not amount to suitable alternative employment.
29. We accept that the procedure adopted by Mr Martin was within the band of reasonable responses for a reasonable employer operating a redundancy process.
30. The statutory dismissal procedures were followed and the procedure adopted by the employer was otherwise reasonable.
31. There were two consultation meetings and an appeal meeting and the claimant had a full opportunity to air her grievances and to discuss her scores and the criteria. We accept that Mr Loughran conducted a fair procedure in the appeal by looking afresh at the information and seeking views of the Directors to check if the scoring was fair.
32. As was stated at the hearing, the tribunal’s role is not to re-run the redundancy process nor to scrutinise the marks minutely. We heard no evidence to satisfy us that there was any unfairness about the process and the claimant’s claim is therefore dismissed.
Mrs Greaves Case
33. Mrs Greves was an assistant accountant in the finance department having moved to the respondent company from an associated company following a re-organisation of the businesses and companies in the Lagan group.
34. The decision was taken on 20 June 2011 to reduce posts in the finance department by one.
35. Mrs Greaves case rested on the following principal allegations.
(1) That the other individual in the pool with her, namely Ms CD, did a different job to her. In the hearing the claimant accepted that both she and CD were the only generalist employees in the Finance Department and that it was therefore not unfair that the pool comprised them both.
(2) That her scores were unfairly low under 3 of the criteria namely:
“Knowledge of COINS;
Knowledge of company-wide financial procedures; and
Purchases, subbies, wages and expenses.”
(3) That a post occupied by RQ and CH should have been offered to her as alternative employment. In the hearing the claimant accepted that the post occupied by CH was one for which she was not qualified and therefore would not have been suitable alternative employment for her.
36. The primary focus of the claimant was on the scores she obtained compared to CD. Again, in accordance with the principles set out in the case law, it is not for the tribunal to minutely examine the scoring and reach a different conclusion to the employer. Rather, the task of the tribunal is to assess whether there are any signs of conduct that mark the fairness of the system of selection.
37. The issue raised on the “Knowledge of company-wide financial procedures” related to a formal process that had not been implemented in the company, applied equally to CD and we therefore find that the claimant was not disadvantaged by the application of that criterion.
38. There was no evidence that Mr Edwards who did the scoring, acted in bad faith or with some ulterior motive in relation to any of the scoring. He scored both employees both from his own knowledge and after consulting with others.
39. The claimant’s main focus was on the criterion requiring knowledge of the COINS system. This criterion tested both employees on their knowledge of the financial systems namely, firstly, COINS which was the current system in the business and was very important to the monitoring of the finances in the employer’s business and secondly on the previous financial monitoring system named AXIM.
40. The claimant’s point on this was firstly, that she had only recently joined the Department so her knowledge of using COINS was limited and secondly that she had not received the intensive training which was carried out when the system was installed two years previously. At that stage CD was in post and was able to avail of that training and she also had longer experience of using it. The claimant’s case was that an allowance should have been made for her lack of experience and aptitude on the COINS system.
41. We do not accept that argument. The respondent was entitled to identify aptitude and experience in using COINS as an important part of the job. It was agreed by both sides that CD had more experience and aptitude because of her longer period in post. We do not accept that an employer must necessarily in these circumstances make allowances for someone who has less experience and skill.
42. It was reasonable for the employer to assess both employees on their experience as it stood given the importance of knowledge of COINS for their business. It was reasonable for this employer to take a snapshot of the two employees at the time the redundancy scoring was being carried out and there was no onus on the employer to make an allowance for a lack of experience on the part of one of the employees. This criterion was the most heavily weighted of all the criteria and this shows the importance of that criterion to the respondent’s business. It is not for us to step in to the respondent’s shoes to dispute the importance of that to their business.
43. We do not accept that the post occupied by RQ was suitable alternative employment for the claimant for the following principal reasons.
(1) This was a three-month temporary post and when RQ left he was not replaced.
(2) It was a purchase ledger post which was a different post at a lower level.
(3) The post was filled before the redundancy situation with the claimant arose.
(4) The wages were at a much lower level.
(5) The obligation on a respondent is to offer posts which are vacant at the time of the redundancy. This post was not vacant at the time the redundancy arose and was therefore not liable to be offered.
44. The respondent agreed that it did not follow its own policy in relation to consultation before the matrix was devised. Our comments in relation to Mrs McBride’s case apply equally to this case and our conclusion is that failure to follow the procedure did not result in unfair dismissal and that Article 130A therefore applies.
45. The process involved several meetings including an appeal and the claimant had a full opportunity to discuss and challenge her scores. The appeal carried out by Mr Martin reviewed the scores and considered the claimant’s representations. It was not ideal that Mr Martin conducted the appeal when he had been consulted by Mr Edwards on the scoring of the criterion relating to accuracy in the preparation and reconciliation of accounts before the initial decision was reached. However, in this case we do not find that that tainted the process or caused unfairness as firstly, Mr Martin’s input led to the claimant scoring full marks on that criterion and secondly, that criterion was not criticised by claimant in the process nor in the case before us.
46. In summary there was nothing about the process, criteria or scoring which marred its fairness.
Summary
47. The reason for dismissal in both cases was redundancy. The actions of the employer as regards both the process adopted and as regards the decision to dismiss for redundancy, fell within the band of reasonable responses for a reasonable employer.
48. The statutory dismissal procedure was followed in both cases. The admitted breach of company procedure did not render the dismissals for redundancy unfair due to the operation of Article 130A of ERO.
49. Neither claimant was unfairly dismissed. The claimants’ claims are therefore dismissed in their entirety.
Chairman:
Date and place of hearing: 26-28 March 2012 at Belfast.
Date decision recorded in register and issued to parties: