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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McKibben v Carson Colwell Ltd t/a Kube Ha... [2012] NIIT 02925_11IT (11 June 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/2925_11IT.html
Cite as: [2012] NIIT 02925_11IT, [2012] NIIT 2925_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2925/11
CLAIMANT: Grace Anne McKibben
RESPONDENT: Carson Colwell Ltd t/a Kube Hair Consultants
DECISION
(i) No award is made in respect of the claim for unfair dismissal.
(ii) The claim for breach of the claimant’s right to be accompanied by a union official or colleague is dismissed.
(iii) The claim for unauthorised deduction of wages is dismissed.
(iv) The claimant is awarded £492 by reason of the respondent’s failure to provide her with written particulars of employment.
Constitution of Tribunal:
Chairman: Mr H Travers
Panel Members: Mr J McKeown
Mr J McLean
Appearances:
The claimant appeared in person, assisted by her mother, Ms Beverly McKibben.
The respondent was represented by Mr Caher of Campbell & Caher, Solicitors.
REASONS
Issues
1. The claimant sought relief in respect of: unfair dismissal by reason of what she alleged was her unfair selection for redundancy; unauthorised deduction of wages; breach of the claimant’s right to be accompanied to the meeting at which she was told she was being made redundant; and finally, the employer’s failure to provide written particulars of employment.
2. At the outset of the hearing it was clarified that the claim for unauthorised deduction of wages had been resolved and was no longer being pursued. The respondent acknowledged that it had failed to provide written particulars of employment to the claimant and it did not seek to dispute the claim for £492 in respect of that failure.
3. It is agreed that the correct name of the respondent is Carson Colwell Ltd t/a Kube Hair Consultants. The title of these proceedings is amended accordingly.
4. The outstanding issues for the tribunal to resolve were:-
(a) Whether or not the fact that the claimant had not been offered the opportunity to be accompanied to the meeting at which she was told she was to be made redundant represented a breach of her statutory rights.
(b) Unfair dismissal. The respondent accepted that there were procedural failings on its part but asserted that the claim for relief should fail because even if a proper procedure had been followed, it was a genuine redundancy situation and a proper procedure would have made no difference to the outcome. It was not in dispute that the respondent had already paid to the claimant a sum equivalent to the basic award which she would be entitled to in the event that she had been unfairly dismissed.
Facts
5. The claimant was born on 31/07/91. In May 2008 she approached a number of local hairdressers seeking employment. Following an interview the respondent offered her employment. The respondent operates a hairdressing salon. Initially the claimant worked part-time but by September 2008 she had commenced work as an apprentice hairdresser with the respondent. On day release she regularly attended her registered training organisation for further training.
6. The respondent accepts:
(a) It did not give the claimant written particulars of employment and does not dispute the claim for £492 in respect of this.
(b) When the claimant attained the age of 19 it failed to pay her the minimum wage as it was required to under the apprenticeship delivery agreement. This founded the claim for unauthorised deduction of wages but it was accepted by the claimant that when this was drawn to the respondent’s attention the shortfall was made up by the respondent.
7. In September 2010 the claimant stopped attending her registered training organisation on day release. She felt that she was learning most on the job and that she no longer needed the day release. The claimant was encouraged in this decision by Lee Colwell who managed the respondent’s salon. Thereafter the claimant ceased to be an apprentice and she was employed as a junior in the salon. Her duties included shampooing and blow drying customers’ hair, brushing up hair after it had been cut, and also some work on the reception.
8. The claimant did not wish to become a hair stylist, her interest lay in developing her skills, and ultimately working as, a colourist. Unfortunately her skills in this regard did not develop as quickly as either the claimant or the respondent hoped. In evidence both Ms Colwell and the claimant appeared to agree that this was due to inadequate practice. One difficulty that any aspiring junior colourist faces is finding enough people who are prepared to permit an inexperienced hairdresser to colour their hair even without charge. The claimant felt that the respondent should have provided more assistance in finding models for her to practice on, whereas Ms Colwell complained that the claimant had not been sufficiently pro-active in finding models for herself.
9. Wherever the blame for the claimant’s lack of practice lies, the net effect of that lack of practice was that by August 2011 the claimant had not progressed in the salon very far beyond the duties she carried out when she was first appointed as a junior in September 2010. She had not developed her professional skills to the point where she could be relied upon to apply colour to a customer’s hair in a consistently safe and competent manner.
10. By the summer of 2011 the respondent’s business was encountering financial difficulties. The salon was making a £14,000 per year loss and on the advice of the respondent’s accountant it was decided to reduce the number of employees. At that time the respondent employed four stylists and two experienced colourists but in fact there was only enough work to keep two stylists and one colourist fully engaged. The tribunal finds that the financial difficulties faced by the respondent were very serious and required significant cost cutting and re-organisation in order to ensure that the business survived.
11. At the start of summer 2011 the respondent had eight employees including the four stylists and two colourists. In addition the respondent employed the claimant and a part-time receptionist. Also working in the salon were two juniors who were trainees but they were on a government programme and were neither paid a salary by the respondent and nor were they employees of it. Those juniors carried out duties which were similar to those performed by the claimant.
12. The number of employed staff at the salon has been reduced from eight to four. Two stylists and a colourist left and were not replaced. The colourist declined the respondent’s invitation to change her status from employed to a self-employed status where she would rent a chair in the salon from the respondent. In addition the claimant’s employment was terminated by the respondent.
13. In August 2011 the claimant was invited to Ms Colwell’s office. There she was told by Ms Colwell that the business was in trouble and that if the accountant’s advice was not followed there would be no business. Ms Colwell told the claimant that she was being let go because she was the only employed junior. Subsequently the claimant received her full redundancy payment entitlement from the respondent. There was no outstanding holiday pay due. The claimant worked her three week’s notice without any further discussion with Ms Colwell about the termination of her employment.
14. When the claimant’s contract of employment was terminated, no consideration was given by the respondent as to what might constitute a fair procedure for selecting an employee for redundancy nor was any consideration given to applying a lesser measure than redundancy, for example the reduction of the claimant’s hours. The claimant did not identify any other member of staff who she asserted should have been included with her in a pool of potential candidates for redundancy.
15. Shortly after the termination of her employment with the respondent, the claimant embarked on a career change when she commenced a college course in information technology. She also obtained part-time employment as a shop assistant.
Law
16. The tribunal has considered Part XI of The Employment Rights (NI) Order 1996 [“the E.R.O.”] which sets out the statutory provisions governing unfair dismissal:
- An employee has a right not to be unfairly dismissed [Art.126].
- In determining whether a dismissal is fair or unfair, it is for the employer to show the reason for the dismissal and that the reason is a permissible one under the E.R.O. The redundancy of an employee is such a permissible reason.
- Where the employer has demonstrated that the reason for the dismissal is a permissible reason:-
“...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.” [Art.130(4)]
17. Following the case of Polkey v A E Dayton Services Ltd [1988] ICR 142, in determining the compensatory element of an award for unfair dismissal where a fair procedure has not been followed, the tribunal must consider whether or not, if a fair procedure had been followed, it would have altered the decision to terminate the claimant’s employment.
18. When a worker is invited to attend a disciplinary or grievance hearing by an employer, the worker is entitled to be accompanied by a trade union official or a fellow worker of the employee’s choice. The right to be accompanied is limited to disciplinary or grievance matters and was held in Heathmill Multimedia ASP Ltd v Jones [2003] IRLR 856 not to apply to a meeting which led to an employee’s dismissal on grounds of redundancy.
Conclusion
19. On the evidence, the tribunal is satisfied that it was a genuine redundancy situation which led to the termination of the claimant’s employment.
20. On behalf of the respondent, Mr Caher acknowledged that it failed to put in place a fair procedure for dealing with the issue of redundancy. Ms Colwell failed to address her mind to the issue at all. The tribunal is however satisfied that even if a fair procedure had been followed it would have made no difference to the outcome. The claimant wished to work as a colourist and by the summer of 2011 there simply was not enough work in this small loss-making salon to sustain both fully qualified and experienced colourists let alone the claimant who was not adequately experienced. The reality of the situation is illustrated by the departure of one colourist following the respondent’s attempt to persuade her that she should alter her status from employed to a self-employed status where she would rent a chair in the salon from the respondent. The duties carried out by the claimant were covered by the government appointed juniors who were not employed by the respondent.
21. In the circumstances, no award is made in respect of unfair dismissal.
22. There was no disciplinary or grievance meeting and the right to be accompanied did not arise.
23. The award made is limited to the agreed sum to be paid in respect of the respondent’s failure to provide to the claimant written particulars of employment.
23. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 27 March 2012, Belfast.
Date decision recorded in register and issued to parties: