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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Lendrum v McCrory Scaffolding (Northern ... [2012] NIIT 02868_11IT (01 June 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/2868_11IT.html
Cite as: [2012] NIIT 2868_11IT, [2012] NIIT 02868_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2868/11
CLAIMANT: John Mervyn Lendrum
RESPONDENT: McCrory Scaffolding (Northern Ireland) Limited
DECISION
The decision of the tribunal is that the claimant was unfairly dismissed by the respondent. The tribunal awards the sum of £5,814.40 in respect of compensation. This award is subject to the attached recoupment notice.
Constitution of Tribunal:
Chairman: Mrs A Wilson
Members: Mr A Crawford
Mr B Irwin
Appearances:
The claimant was represented by Ms S Keenan, Solicitor of Higgins Hollywood Deazley Solicitors.
The respondent was represented by Mr Kevin McDonnell, Human Resources Manager in the respondent company.
The Claim
1. The claimant claimed unfair dismissal. His claim was that proper procedures were not followed, that his selection for redundancy was unfair, that he was given inadequate warning of redundancy and that he was not properly consulted with. He further claimed that no consideration was given to suitable alternative employment and that he was not offered suitable alternative employment. He claims compensation in accordance with the provisions of the Employment Rights (Northern Ireland) Order 1996 and the Employment (Northern Ireland) Order 2003.
The Issues
2. In circumstances where it is conceded that there was a genuine redundancy situation, the issues for the tribunal were as follows:-
(i) was the claimant given adequate warning of impending redundancy?
(i)
(ii) was there adequate consultation with the claimant regarding impending redundancy?
(ii)
(iii) was the claimant fairly selected for redundancy?
(iii)
(iv) what consideration (if any) was given to the possibility of suitable employment as an alternative to redundancy for the claimant?
(iv)
(v) were the statutory dismissal procedures set out in the Employment (Northern Ireland) Order 2003 followed and if so to what extent?
(v)
(vi) by reason of any of the foregoing considerations was the claimant unfairly dismissed?
(vi)
(vii) if the claimant was unfairly dismissed what compensation (if any) is he entitled to?
Sources of Evidence
3. The tribunal considered the sworn testimony of Mr McIlroy Senior Operations Manager and Mr McDonnell, Human Resources Manager for the respondent. The tribunal considered the sworn testimony of the claimant. The tribunal also considered 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 (the 1996 Order). The right not to be unfairly dismissed is set out at Article 126 of the 1996 Order 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. Article 130A of the 1996 Order provides (for the purposes of this case) that an employee is unfairly dismissed if the appropriate statutory dismissal procedure set out in the Employment (Northern Ireland) Order 2003 (the 2003 Order) applies in relation to the dismissal, that procedure has not been completed and the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with these requirements.
6. Under the provisions of the 2003 Order where an employer fails to follow the statutory dismissal procedure the tribunal must uplift the amount of a compensatory award by at least 10% and up to a maximum of 50% unless there are exceptional circumstances which would make an increase unjust or inequitable. However 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.
7. Redundancy is a potentially fair reason for dismissal and it is conceded that the claimant was dismissed by reason of redundancy.
8. The decision of the Northern Ireland Court of Appeal in Robinson v Carrickfergus Borough Council [1983] IRLR 122 which approved the approach of the EAT in the case of Williams v Compair Maxam Ltd [1982] UKEAT/372/81 established the following 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.
9. In terms of selection, 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.
10. The tribunal considered the case of British Aerospace PLC v Green [1995] IRLR 433 (the Green case) and was mindful that it should conduct a minute examination of the selection process.
11. The tribunal considered the EAT case of Eaton v King [1995] IRLR 75 which was approved by the Court of Appeal in the Green case where Lord Justice Millett outlined the task before a tribunal 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.”
Facts and Conclusions
12. The claimant was employed as a trainee scaffolder by the respondent from February 2007 until his dismissal on 21 October 2011. He was earning £362.70 gross pay and £292.00 net pay weekly. He was dismissed by reason of redundancy. It is conceded that at the time of dismissal he received his full statutory redundancy entitlement together with pay in lieu of notice.
13. The training required to become a fully qualified scaffolder is as follows:
(i) 10 day training course (part 1 training);
(ii) 6 months on site experience;
(iii) 10 day training course (part 2 training);
(iv) 6 months further experience on site;
(v) 2 day assessment.
14. The claimant had completed his training to stage (iv). He was eligible to undergo his 2 day assessment and was encouraged to do so by the respondent. Qualification as a scaffolder was dependent only on his passing this assessment.
15. At the commencement of his employment the claimant was paid £7.40 an hour which was the appropriate rate for a trainee scaffolder. Following approximately a year in employment, this rate was increased to £9.30 an hour which is the appropriate rate for a fully qualified scaffolder. At the time of this increase in pay, the claimant was informed by Mr McIlroy that he (Mr McIlroy) was happy with his work and he was encouraged "to keep up the good work". He was later questioned about his eligibility to undergo his two day assessment and was encouraged to proceed with it.
16. The tribunal is satisfied from the evidence that the claimant was in reality carrying out all the duties of a fully trained scaffolder. The tribunal accept the evidence of the claimant in this regard whilst noting the respondent's assertions to the contrary. The respondent's assertions are not backed up by evidence in the form of either specific oral testimony or documentary evidence whilst the claimant's testimony is corroborated by the fact (which is not disputed) that his pay was increased to that of a fully trained scaffolder, he was complimented regarding the standard of his work and was encouraged to undergo his assessment. The tribunal regard these factors as evidence that he was performing to a high standard and on the balance of probabilities to the standard expected of a qualified scaffolder.
17. In or around 3 August 2011, the claimant suffered an injury to his back as a result of an accident at work. He was absent from work from that date until in or around the 1 September 2011 by reason of that injury in respect of which he commenced a personal injury claim against the respondent. On his return to work the claimant was approached by Mr McIlroy who enquired about his back and about "the legal side of things". Some weeks later he was approached by Mr McDonnell who attempted to negotiate a settlement of his personal injury claim. The tribunal having carefully considered the evidence in relation to these approaches is satisfied that they were amicable and no pressure was put on the claimant to either settle or to withdraw his claim.
18. The claimant (together with all his colleagues on site) received a letter dated 14 October 2011 from Mr McDonnell informing him that due to a downturn in work "a redundancy situation has to be declared". This letter included a statement in the following terms:-
”Terms and Conditions 1.5 Redundancy stipulates that we will take into account employee attendance, absenteeism, disciplinary record, reliability, standards of workmanship and suitability for work remaining when selecting for redundancy”.
The reference to Terms and Conditions 1.5 Redundancy is a reference to paragraph 1.5 of the claimant's Terms and Conditions of Employment.
19. The letter of 14 October 2011 asked the claimant to consider the contents of the letter and indicated that Mr McDonnell would meet with employees during the period 18 to 20 October.
20. On Tuesday 18 October 2011, Mr McDonnell called a meeting and notified site employees that there would be definite redundancies due to a downturn in work. Employees were asked for their thoughts and questions were invited. On being asked who the likely candidates for redundancy were, Mr McDonnell responded that the redundancies were to come from site staff (as opposed to office based staff).
21. In response to this meeting three scaffolders offered to take voluntary redundancy. Only one of these offers was accepted by the respondent. It is their case that they sought to retain employees with the required skill base to effectively carry out work in hand.
22. In preparation for redundancy, Mr McDonnell looked at employee records to determine only their redundancy entitlement in terms of pay. No consideration was given to the selection criteria stipulated at paragraph 1.5 of the Terms and Conditions of Employment with the exception of “suitability for work remaining”. It is the respondent's case that all employees were equal in terms of the remaining criteria. However there is no evidence before the tribunal that this was other than supposition. Certainly no analysis was undertaken to measure individual employees against the contractual criteria. "Skill set" was the sole criterion relied upon.
23. A decision was taken by Mr McIlroy that five employees would be made redundant to include one scaffolder, two trainee scaffolders and two labourers. It is his case that this decision was reached having taken into account the need to retain a skilled and balanced workforce to progress work in hand.
24. On Friday 21 October (7 days after the initial letter) the claimant was informed that he was to be made redundant and that his contract of employment was terminated as and from that day. He later received payment in the sum of £3,200.00 into his bank account in respect of his redundancy entitlement and pay in lieu of notice.
25. It is the respondent's case that the dismissal of the claimant was confirmed to him in writing by letter dated 21 October which included details of his right to appeal the decision to dismiss him. It is the claimant's case that he never received this letter.
26. The tribunal has been furnished with a copy of a letter dated 21 October 2011 addressed to the claimant which was disclosed by the respondent on discovery. This is an important letter in the context of the statutory procedures in so far as it informs the claimant of his right of appeal. Consequently it falls to the tribunal to decide on the balance of probabilities whether the clamant received this letter.
27. The tribunal finds the claimant to be straightforward in his evidence. The tribunal finds Mr McDonnell similarly straightforward. In these circumstances the tribunal considered the letter (which was produced by the respondent in discovery) and noted that, unlike the letter of 14 October (which was also produced by the respondent on discovery) and is clearly a file copy, this letter is on headed paper. The tribunal considered in these circumstances whether the letter produced was perhaps the original letter as opposed to a file copy. The tribunal considered this as a possibility and this was put to Mr McDonnell. The tribunal found Mr McDonnell’s' explanation less than clear on this point. The tribunal took this into account together with the response of the claimant to his dismissal. The claimant was at all times resistant to dismissal. He queried why those who volunteered for redundancy were not selected instead of him. He took legal advice and lodged proceedings with reasonable speed. Taking these factors into account, the tribunal find on the balance of probabilities that the claimant would have appealed the decision to dismiss him had he received the disputed letter and in all of these circumstances the tribunal find that on the balance of probabilities he did not receive it.
28. It is the respondent’s case that some 6 to 8 weeks prior to the declaration of redundancies, they were aware that a redundancy situation was a real possibility due to the downturn in work and the lack of definite new contracts going forward. However due to sufficient on going short term work coupled with the prospect of new contracts arising out of recent tenders a decision was taken not to inform employees.
29. The claimant claimed and received job seekers allowance from 21 October 2011 to 29 January 2012. On 29 January 2012 he became self employed.
Conclusions
30. In accordance with established case law (see paragraphs 8-11 above) the tribunal considered the warnings and consultation process and whether in all the circumstances of this case they were fair.
31. The tribunal concluded that they were not. In terms of the warning given the tribunal has taken into consideration that some 6 to 8 weeks prior to dismissal the respondent was aware of the very real prospect of redundancies. They postponed notifying employees until the situation became critical on 14 October 2011 and one week later the claimant and four of his colleagues were dismissed. The tribunal considered the respondent’s explanation for this. In circumstances where the prospect of redundancy was real some 6 to 8 weeks earlier and the prospect of new work contingent on the successful outcome of tenders in a harsh economic environment, the tribunal does not accept that an earlier warning could not have been given. In the event the warning, the consultation and the dismissal occurred within one week.
32. In terms of consultation, the tribunal concluded that consultation was inadequate. It is correct that employees were asked at a meeting on 18 October and in the letter of 21 October for their thoughts. However the consultation period was short in circumstances where it was unexpected (by the workforce) and the tribunal finds that the respondent failed to engage with employees at anything other than a superficial level. There was one meeting on 18 October. This meeting was short and there is no evidence before the tribunal to suggest than any details were given such as would enable employees to formulate constructive views as to an alternative way forward. It was against this background that employees were asked for suggestions. Furthermore after this meeting Mr McDonnell prepared details of the redundancy entitlement of the various employees. This suggests to the tribunal that the decision to proceed with redundancies was a fait accompli at this stage.
33. The tribunal considered selection and whether selection was fair, whether it involved identifying the correct pool of employees and applying objective transparent selection criteria to that pool.
34. The tribunal find that pool (all site staff) from which redundancies were selected was fair. In this regard, the tribunal is mindful that it must not substitute its views for those of the respondent and must not minutely scrutinise or reassess the selection pool.
35. However it is the case that the criteria laid down at paragraph 1.5 of the terms and conditions of employment were not applied other than in terms of suitability for work remaining. In respect of this one criterion there was no evidence of any transparent selection process beyond the seemingly subjective identification of five specified employees. In these circumstances the tribunal find that the respondent did not apply its own criteria and for this reason find that selection was unfair and for reasons given above non transparent. There was an assumption on the part of the respondent that all employees were equal in terms of the other criteria but no effort was made to check that this was the case. It may not have been.
36. The claimant contends that he was selected for redundancy by reason of the fact that he lodged a personal injury claim against the respondent. The tribunal has no compelling evidence that this was the case. In particular the tribunal is mindful that all attempts to negotiate a settlement were amicable and the tribunal has no sense that the claimant was put under pressure to settle.
37. The tribunal evaluated the consideration given to suitable alternative employment and find that no meaningful consideration was given. The tribunal has no evidence of any such consideration particularly in circumstances where there were offers of voluntary redundancy. It is the respondent’s case that these offers were not accepted because they needed to retain a certain level of skill. The tribunal is mindful of the need not to fall in to the trap of second guessing the decisions taken by the respondent. However there is no evidence before the tribunal that the offers of voluntary redundancy were considered in any meaningful sense. There is certainly no evidence that they were consulted upon or explored with any employee. Given the shortness of the consultation period and the absence of evidence of individual meetings with any employee, the tribunal find on the balance of probabilities that no consideration was given to alternatives to redundancy in this case.
38. In these circumstances the tribunal finds that the claimant was unfairly dismissed and answers the questions set out at paragraph 2 above as follows:
(i) Was the claimant given adequate warning of impending redundancy?
No, see paragraph 31 above.
(ii) Was there adequate consultation with the claimant regarding impending redundancy?
No, see paragraph 32 above.
(iii) Was the claimant fairly selected for redundancy?
No, see paragraph 35 above.
(iv) Was there suitable employment available as an alternative to redundancy for the claimant and if so what consideration if any was given to it as an alternative to redundancy?
The tribunal finds that no meaningful consideration was given to suitable alternative employment. See paragraph 37 above.
39. Notwithstanding the above finding the tribunal proceeded to consider whether the statutory dismissal procedures set out in Schedule 1 to the Employment (Northern Ireland) Order 2003 were completed and if so to what extent?
40. The statutory procedure requires three steps to be taken.
41. As a first step the employer must set out in writing the circumstances leading to the contemplation of dismissal and inviting the affected employee to a meeting. The tribunal is satisfied that the letter of 18 October was sufficient to comply with this requirement.
42. The next step requires that a meeting must take place before action is taken and that the employee has a reasonable opportunity to consider his response. The tribunal considered the meeting on the 18 October in this context. For reasons given earlier (lack of detail and lack of time) the tribunal is not satisfied that the claimant was given a reasonable opportunity to consider his response. Furthermore taking into account the fact that Mr McDonnell proceeded immediately following the meeting to calculate individual redundancy entitlement; the tribunal is not satisfied that the meeting took place before action was taken as contemplated by the legislation. The meeting preceded the calculation of redundancy entitlement but the calculation followed so closely that the tribunal find on balance that no consideration of any response was envisaged.
43. The final step is that the employer must inform the employee of his decision and notify him of his right of appeal. In circumstances where the tribunal has found that the letter of 21 October was not received by the claimant (see paragraph 27) and in the absence of evidence of any other notification to the claimant regarding his right to appeal, the tribunal concludes that this final step was not taken.
44. In all the above circumstances the tribunal finds that the statutory procedures were not completed and in accordance with article 130A of the 1996 Order the claimant was unfairly dismissed.
45. In calculating the compensatory award the tribunal considered that an award of compensation should be made from the date of dismissal to 29 January 2012 being the date upon which the claimant commenced employment on his own account. The tribunal find that the claimant made reasonable efforts to mitigate his loss by seeking alternative employment following his dismissal.
46. The Employment Rights (Northern Ireland) Order (Dispute Resolution) Regulations (Northern Ireland) 2004 provide for an uplift of up to 50% in circumstances where the statutory procedures are not completed. The tribunal award an uplift of 30% in this case having taken into account that the following:-
(i) the statutory procedures were commenced,
(ii) the time given to those procedures was unduly short in circumstances where the respondent was aware of the real possibility of dismissal by reason of redundancy some 6 to 8 weeks previously,
(iii) the shortness of the time given to those procedures was such as to render them of limited value in the context of their purpose and particularly so in circumstances where redundancy came as a surprise to the claimant,
(iv) the statutory procedures were not completed.
47. The tribunal has considered whether there are exceptional circumstances which would make an increase in the circumstances of this case unjust or inequitable. The tribunal is satisfied that there are not.
48. The tribunal is mindful that 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.
49. The tribunal is not satisfied that on the balance of probabilities the claimant would have been dismissed on 21 October 2011 if the statutory procedures were properly completed. In making this finding the tribunal have in particular taken into account the possibility that completion of the procedures may have led the respondent to consider employee responses and to meaningfully explore suitable alternative employment.
50. The tribunal awards the claimant the sum of £5,814.40 in respect of compensation for unfair dismissal calculated as follows:-
(i) Basic award
The
claimant is entitled to a basic award calculated in accordance with Article 153
of the 1996 Order. This is subject to 156(4) of the Order which provides that
the basic award shall be reduced by the amount of any payment made by the
employer to the employee on the ground that the dismissal was by reason of
redundancy. It is conceded that the claimant received his full redundancy
entitlement which is equivalent to his basic award. In these circumstances
there is no amount awarded under this heading.
(ii) Compensatory award
(ii)
The claimant is entitled to a compensatory award calculated in accordance with Article 157 of the 1996 Order and reflected in the agreed schedule of loss. The tribunal is satisfied that the claimant made all reasonable efforts to mitigate his loss. The calculation is as follows:
Loss of earnings from 21 October 2011 to 12 January 2012 as calculated in the agreed schedule of loss = £4,088.00
(iii) Uplift
The claimant is entitled to 30% uplift (see paragraph 46) in accordance with the Employment Rights (Northern Ireland) Order (Dispute Resolution) Regulations (Northern Ireland) 2004 calculated as follows:-
£4,088.00 x 30% = £1,226.40.
£4,088.00 + £1226.40 = £5,314.40
(iv) Loss of Statutory Rights
Agreed at £500.00 in Schedule of Loss.
Total Award = £5,814.40
51. This is a relevant decision for the purposes of recoupment of benefit (job seekers allowance) received by the claimant in accordance with the Employment Protection (Recruitment of Job Seekers Allowance and Income Support) Regulations (Northern Ireland) 1996 (the 1996 Regulations).
52. The 1996 Regulations require the tribunal to set out:-
(a) the monetary award;
(b) the amount of the prescribed element, if any;
(c) the dates of the period to which the prescribed element is attributable; and
(d) the amount if any by which the monetary award exceeds the prescribed element.
53. For the purposes of this case, the monetary award is £5,814.14.
54. The prescribed element is that amount of the monetary award which represents compensation for loss of earnings. In this case the prescribed element is £4,088.00.
55. The prescribed element is attributable to the period from 21 October 2011 to 29 January 2012.
56. The amount by which the monetary award exceeds the prescribed element is £5,814.14 less £4,088.00 = £1,726.14.
57. The attached Recoupment Notice forms part of the decision of the tribunal.
58. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 3 May 2012, Belfast
Date decision recorded in register and issued to parties:
Case Ref No: 2868/11
CLAIMANT: John Mervyn Lendrum
RESPONDENT(S): McCrory Scaffolding (Northern Ireland) Limited
ANNEX TO THE DECISION OF THE TRIBUNAL
STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME –RELATED EMPLOYMENT AND SUPPORT ALLOWANCE/ INCOME SUPPORT
1. The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996; The Social Security (Miscellaneous Amendments No.6) (Northern Ireland) 2010.
|
|
£ |
|
(a) Monetary award |
5,814.14 |
|
(b) Prescribed element |
4,088.00 |
|
(c) Period to which (b) relates: |
21st October 2011 to 29th January 2012 |
|
(d) Excess of (a) over (b) |
£1,726.14 |
The claimant may not be entitled to the whole monetary award. Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance, Income-related Employment and Support Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department of Social Development has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance, Income-related Employment and Support Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department. The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.
2. The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing. When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.
3. The claimant will receive a copy of the recoupment notice and should inform the Department of Social Development in writing within 21 days if the amount claimed is disputed. The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the claimant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the claimant and regardless of any dispute between the claimant and the Department.