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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Morrison v Northern Ireland Council for I... [2013] NIIT 1284_13IT (23 December 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/1284_13IT.html
Cite as: [2013] NIIT 1284_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1284/13
CLAIMANT: Marie Morrison
RESPONDENT: Northern Ireland Council for Integrated Education
DECISION
The unanimous decision of the tribunal is that the claimant was not unfairly selected for redundancy and accordingly her claim is dismissed.
Constitution of Tribunal:
Chairman: Miss E McCaffrey
Members: Professor D Boyd
Ms A Gribben
Appearances:
The claimant was represented by Mr N Richards, Barrister-at-Law, instructed by Worthingtons Solicitors.
The respondent was represented by Mr M McEvoy, Barrister-at-Law, instructed by Johns Elliott Solicitors.
1.0 ISSUES
1.1 At the outset of the hearing, Mr Richards confirmed on behalf of his client that the claimant was not pursuing a claim of victimisation which she had originally pleaded, nor was she pursuing a claim of victimisation on the grounds of alleged sex discrimination. The outstanding claim for the tribunal to decide was therefore one of unfair selection for redundancy.
1.2 The issues for the tribunal to consider were as follows:-
(1) What was the reason for the claimant’s dismissal?
(2) If the reason for the claimant's dismissal was redundancy, was the redundancy procedure adopted by the respondent adequate, in particular in relation to the issues of consultation and warning?
(3) Did the respondent give adequate consideration of the question of suitable alternative employment for the claimant?
(4) Was the appeal process fair and open and adequate in all the circumstances?
(5) If the redundancy process was inadequate, would the claimant’s redundancy have followed in any event?
(6) If it is found that the claimant has been unfairly dismissed, had the claimant taken adequate steps to mitigate her loss?
2.0 FACTS
2.1 In the conduct of this case we heard evidence from the claimant, from Miss Noreen Campbell, the Chief Executive Officer of the respondent, and from Mr Fullam, one of the non-Executive Directors of the respondent company. We also had a number of documents in relation to the history of the matter opened to us in the course of the hearing. On the basis of the evidence received, we make the following findings of fact.
2.2 The claimant commenced work for the respondent as an agency employee in the Finance Department on 13 November 2009. She was subsequently employed directly by the respondent as Finance Assistant on a temporary contract for six months on 1 January 2010. This contract was subsequently extended for a further period until she was appointed as a permanent member of staff on 1 October 2011.
2.3 The respondent organisation is a council which has supported integrated education within Northern Ireland over many years. In her evidence, Miss Campbell explained the background to the organisation of changes within the respondent from 2009 to 2012/2013. The role of the respondent was to coordinate efforts to encourage integrated education. Over quite a number of years in the 1990s and early 2000s, the respondent had been closely involved in the construction of a number of integrated schools throughout Northern Ireland. In this work, the respondents had been funded by the Department of Education for Northern Ireland from 1989 and in the next two decades it had been involved in the establishment of some 35 new schools and the transformation of 20 existing schools. The respondent’s status meant that it was in a position where it could borrow money from banks to facilitate the building of integrated schools, although the ultimate funder was the Department of Education. Miss Campbell explained that by the time she took up her post in August 2009, building activity had ceased due to the external economic climate. The banks had been reluctant to continue funding, and this crisis had left the respondent with a number of outstanding debts. Its budget was considerably reduced to £640,000.00 per annum. A review of the respondent organisation was carried out by BDO Stoy Hayward in 2010. The recommendation within that report that there was no longer a need for two full-time people in the Finance Department. At that stage, the claimant worked as Finance Assistant and Mr Maurice Kennedy was employed as Finance and Administration Manager. Because of the fact that there were ongoing discussions around the establishment of a new education and skills authority, the Department of Education did not pursue the findings of the BDO Report.
2.4 In early 2011, Mr Kennedy retired. At that stage, Mr Kennedy’s duties were redistributed. The respondent decided to employ a part-time qualified Accountant to support the Financial Assistant and Mr Ian Barton took up that post. In addition, some of the Human Resources functions were taken over by the Office Manager. It was Miss Campbell’s evidence that IT and Procurement work was taken over by the Office Manager and some of the higher level work was also taken over by her or by Mr Barton. She agreed however, that the claimant had had some extra work regarding schools vesting but indicated that some of that was part of the claimant’s operational work previously.
2.5 Mr Barton remained in post until early 2012; he reported to the Board of Directors and seemed content with the claimant’s work. He noted some deficiencies but his report to the Board of Directors was that she was “90%” on top of her duties.
2.6 In November 2011, the claimant submitted a request for a recognition payment or upgrade for the additional duties that she had undertaken. She had a discussion with the Chief Executive in relation to this matter and the Chief Executive undertook to pass a request to the Finance and General Purposes Staffing Committee. That Committee considered the request, but as the claimant was already at the top of her pay grade indicated that they could not make any further payment to the claimant. The claimant subsequently lodged a grievance in relation to this matter in February 2012.
2.7 In the meantime, the Department of Education wrote to the respondent to notify them of their change in status to a Non-Departmental Public Body (“NDPB”). This letter was sent on 2 February 2012. The letter sent to the Chief Executive of the respondent indicated that the key reasons leading to the classification of the respondent were as follows:-
(1) that the Chief Executive of the respondent had been appointed as Accounting Officer;
(2) that quarterly governance and accountability meetings took place for the Department of Education;
(3) a Management Statement and Financial Memorandum was in place; and
(4) that the Minister was accountable to the Northern Ireland Assembly in relation to the respondent.
2.8 Miss Campbell explained to the tribunal that this meant that there was a much higher level of scrutiny and financial responsibility on the respondent as a whole. Whereas previously their accounts had been externally audited, presented to the respondent’s AGM and copied to the Department of Education, the whole system was now changed and much more complex. Accounts would have to go not just to the Department but to the Northern Ireland Assembly for scrutiny and in her view, this meant that there would be a higher level of expertise required. We were referred to a letter sent to the respondent in April 2012 from the Department of Education indicating that the respondent would need to appoint the following:-
(1) A balances and agreements contact.
(2) Secondly, a Consolidation Manager (usually the Finance Officer) and a Consolidation Officer (the Accounting Officer) in this case the Accounting Officer was the Chief Executive.
2.9 This matter was discussed in some detail by the respondent’s Finance and General Purposes Committee. By this stage, Mr Barton had left the respondent organisation and a temporary Accountant had been appointed to carry out a review of the Finance Department. This gentleman was called Brian McCully.
2.10 The claimant had been concerned about the appointment of Mr McCully, which happened early in 2012. Miss Campbell was clear that she introduced Mr McCully to the claimant and explained that he was there to carry out a review. Miss Campbell explained that she had been line managing the claimant previously but with a full-time Finance Officer in post she handed that responsibility over to him. Her recollection was that she had gone to some lengths to explain the change in status to the claimant and the impact on the organisation in particular.
2.11 Mr McCully finished his temporary two month placement with the respondent at the end of March 2012. At that stage, Ms Maureen Johnston was appointed on a temporary basis to a position in the Finance Department. She is a qualified Accountant and the respondent believed that they would require a qualified Accountant to carry out their responsibilities under NDPB status. This was in accordance with Mr McCully’s report to the Finance and General Purposes Committee on 20 March 2012. On 20 March 2012, Mr McCully presented a report on the respondent’s financial management to the Finance and General Purposes Committee. In that report, he expressed some concerns about the current financial structure and the way that the claimant had been carrying out her duties. These involved failures to keep postings up-to-date on the computerised accounts package, an accurate maintenance of ledgers, some duplication, failure to reconcile accounts on a monthly basis and some errors in payments. Whereas Mr Barton had indicated (in the context of the claimant’s request for an additional payment) that he believed that she was 90% competent at her duties but that there were some shortcomings, Mr McCully made detailed recommendations for some further training for the claimant and indicated that he had arranged for this to be carried out with Ms Johnston, the new appointee. Of greater significance was his conclusion that in order to be fully compliant with best practice and financial management, a qualified Accountant was necessary in order to ensure the integrity and quality of the financial information being produced. In his judgment there was no longer a need for two full-time posts in the finance function at the respondent. The Chief Executive sent a copy of this report to the respondent’s external auditors, PricewaterhouseCoopers. On 20 March 2012, Mr Pitt of PWC e-mailed the Chief Executive to say that, “While I could not comment on the review itself I would concur with the conclusion, as advised to you previously, that NICIE would require a qualified Accountant to support yourself and the Board and that there is probably only sufficient financial work for one person within the organisation.”
2.12 The Chief Executive was conscious that any change in relation to the staffing structure of the respondent organisation needed to be approved by the Department of Education in light of its NDPB status.
2.13 On 1 May, the Chief Executive attended a Governance and Accountability Review Meeting at which Trevor Connolly from the Department of Education was present along with the Chairman of NICIE, Colm Cavanagh, and the Chief Executive, Miss Campbell. The situation in relation to the Finance Officer’s post was discussed and Miss Campbell indicated that while they had a temporary Chartered Accountant in place on an agency basis, they planned to employ a permanent finance person who should be in post by the end of the year. Mr Connolly indicated that given the respondent’s new status as an executive NDPB, it was crucial to have the post filled on a full-time basis. At that stage, the submission of a Business Case for restructuring of the Finance Department was discussed and this Business Case was subsequently submitted on 10 July 2012.
2.14 Prior to this at the end of April 2012, the Chief Executive had had an appraisal meeting with the claimant at which some of the identified deficiencies in the claimant’s work performance were discussed with her. The claimant was unhappy with the criticisms made of her work, and she requested a copy of Mr McCully’s report. We were shown two versions of Mr McCully’s report. One of these, which was introduced by the claimant’s representative, was the report which had been presented to the Finance and General Purposes Committee at the end of March 2012. The final three paragraphs of this report indicate that there were a lot of improvements to be made in relation to the performance of the Finance Assistant and he indicated that “a much greater degree of supervision is required.” He went on to consider the issue of the staffing of the finance “function” in the respondent. He went on to say that because schools were no longer being built, he believed that there were no longer two full-time roles required of a Finance Manager and a Finance Assistant. He also pointed out that the Finance Assistant on her own was not qualified to carry out the essential support to the Board or senior managers. He indicated that a finance post held by a qualified Accountant was necessary to ensure the integrity and quality of financial information to the Board. The copy of the report which was subsequently furnished to the claimant included the criticism of the claimant’s performance, but omitted those last three paragraphs. The conclusion included the fact that the claimant felt she was not being properly supported in her role, she had been off ill and expressed her feelings that it was unfair that Mr McCully had been brought in to scrutinise her and the accounts at the time of a backlog. The claimant had been off for a few weeks ill at this point shortly before Mr McCully’s arrival. He recorded her view that if she had been given a few weeks to bring things up-to-date, a lot of the issues could have been avoided. He expressed some scepticism about this. He also sets out the training which had been set in place for the claimant with Miss Johnston and the fact that weekly meetings would be held to review work. The claimant raised an informal grievance in relation to this matter in June 2012. She also asked Miss Campbell in May 2012 whether there was a likelihood of any redundancies and for clarification in relation to her role.
2.15 The claimant had arranged leave in August 2012 and initially had planned to be on leave from 6 to 24 August. She subsequently decided to change this and returned on 21 August, but she had a day’s leave planned for 23 August.
2.16 The claimant then became aware that two posts which had previously been designated as temporary posts were cleared for recruitment. These were internally advertised within the respondent. These positions were that of PA Secretary (Office Manager) and a Secretary. The internal advertisement was placed on 14 August 2012. The information was e-mailed to the claimant on 21 August. The claimant indicated that she had requested this information from the then Office Manager as she needed it to deal with the issue of wages. The closing date for the post was 24 August 2012. The claimant did not apply for either of these posts, which were at a similar grade to her own post, although paid slightly less.
2.17 In September 2012, Roisin Graham, the claimant’s union representative wrote to Miss Campbell in relation to concerns regarding possible reorganisation. Miss Campbell replied on 19 September, pointing out that there had been some changes in the organisation and its operating environment. She indicated however that:-
“Further consideration will be given to the restructuring of the Finance Department and of the Development Team, including senior management. You will appreciate that this is a slow process which needs approval from DE at every step… NICIE staff have already been invited to put forward their thoughts on possible future structure change. I received no comments. I am now, as directed by the Board of Directors, preparing a discussion paper on future options for restructuring. This will be circulated to staff members in due course. In the event of possible redundancies NICIE will of course undertake a full consultation with staff and their Union as appropriate.”
2.18 There was some further exchange of correspondence between the union and Miss Campbell. On 15 October, the respondent received approval from the Department of Education to restructure the Finance Department. This meant that the post of Finance Officer should be held by a fully qualified Accountant and the post of Finance Officer would be “suppressed”. Miss Campbell explained that when she was putting forward the Business Case she made a proposal that the salary for the Finance Assistant should be revired to be used to pay for a panel of associates who would advise the respondent on an ad hoc basis. Her rationale for doing this was that if she did not indicate how the money might otherwise be spent, it was likely that the respondent would lose that funding. The claimant had been off on sick leave from 8 October and effectively did not return to work after this. Miss Campbell’s evidence was that she waited for some time to write to the claimant in relation to her potential redundancy as she would have preferred not to write to the claimant when she was on sick leave. As time went on however she indicated that she needed to contact the claimant as she was still off by the end of October. On 23 November Miss Campbell wrote to the claimant to invite her to a meeting on 28 November “in relation to ongoing developments in NICIE which may impact on you.”
2.19 Due
to the claimant’s illness she indicated that she could not attend due to ill
health. Miss Campbell therefore wrote to the claimant on 30 November
setting out the proposed redundancy. She explained that, “There is a need to
consider the proposed redundancies due to the changing nature of finance within
NICIE following re-designation as a non-departmental public body (NDPB)”. She
stressed in the letter that the redundancy of the Finance Assistant post was
only proposed and that they were embarking on a consultation process. She
indicated that the respondent would continue to try to identify ways in which
the possible redundancy could be avoided, including redeployment to other roles
if feasible. At that stage, she included the details of a current vacancy as a
receptionist within the organisation as a possible alternative. She invited
the claimant to a meeting at that stage on 7 December as she was due to
return to work on 5 December. Correspondence followed between the
respondent, the claimant and the claimant’s union representative. Ultimately,
there were three consultation meetings with the claimant and her union
representative. The first of these was on 16 January 2013 and there
were subsequent meetings on 18 February and 28 February.
Correspondence in relation to those meetings and the minutes of those meetings was
introduced to us in the course of the hearing. At the January meeting the
claimant was made aware that there was a temporary post of Project
Co-ordinator/Administrative Assistant available to cover a maternity leave.
The Project Co-ordinator’s post was paid slightly less than the claimant’s
existing Financial Assistant post. The Receptionist’s post which she had also
been made aware of was paid at a lesser level but would have been a permanent
job. At the meeting on 16 January the claimant also suggested the
possibility of her being employed on a reduced hours basis to support the
financial administration functions and it was indicated that this would be
considered. The claimant had also requested some background details, all of
which were provided to her under cover of Miss Campbell’s letter of
25 January.
2.20 A number of letters were exchanged in the interim. At the meeting on 18 February, the claimant made it clear that she was not interested in either of the posts which were offered to her by way of redeployment. Miss Campbell’s letter to her notes that the claimant did not believe that these posts were suitable alternative employment. Her letter of 25 February to the claimant also indicates that the respondent had considered the claimant’s proposal to work part-time hours but indicated that this was not a viable alternative. The letter sets out, “The reason I believe your proposal is not a viable alternative is due to the fact that NICIE does not have the need for a part-time person to support the finance and administration functions. As advised in previous correspondence NICIE requires one full-time fully qualified Accountant only. The letter set out again the background to the proposal for the reduction of staffing within the Finance Department to one qualified Accountant. The claimant also confirmed in her evidence to the tribunal that she had not applied for the Finance Officer’s post because she was not a qualified Accountant.
2.21 The claimant agreed in cross-examination that in relation to the consultation process the main flaw which she identified was that the Finance Officer had been appointed before the claimant returned from sick leave, even though she agreed that she was not qualified for the post. She said effectively that she believed that the consultation process was a “tick box” exercise.
2.22 In response to the suggestion that the respondent had not made the claimant aware of a possible redundancy in the summer of 2012 because it would have put her under a period of considerable uncertainty, the claimant said she understood this but it would have given her the opportunity to consider further options, to apply for a secondment or to apply for the posts which became available in August 2012. The claimant went so far as to say that she believed that the posts were deliberately advertised when she was on holiday so that she would not be aware of them. Miss Campbell strenuously denied this. Following a further meeting on 28 February, Miss Campbell wrote to the claimant to advise her that unfortunately her proposed redundancy had been confirmed and setting out the reasons for this. The letter confirmed details of her notice payment, holiday pay and her redundancy payment which was equivalent to three months’ salary for three years’ service, rather than the statutory minimum. The claimant’s leaving date was given as 7 April 2013.
2.23 Her right of appeal was set out in the letter and the claimant chose to exercise her right of appeal. The claimant remained certified as sick for some time. She sent a letter to Miss Campbell on 15 March indicating that she wished to appeal, and setting out the grounds for appeal. The appeal was conducted on 26 March 2013 at the Crescent Arts Centre and was conducted by Mr Vincent Fullam and Mr Tim Webster, two of the Directors of the respondent. It was confirmed that neither of them had any involvement in the redundancy process. The appeal meeting had to be rearranged and was subsequently held on 10 April with the claimant’s union representative also present. It was Mr Fullam’s evidence that he and Mr Webster had come to the meeting without reading any of the prior documentation or correspondence in relation to it. His explanation for this was that they wanted to come with an open mind and that they would then consider the points made by the claimant. Following that meeting, which lasted over an hour, the two members of the appeal panel spoke to Miss Campbell to clarify some issues with her and then drafted their response. Mr Fullam indicated that the response had been prepared by Mr Webster but had been discussed with him and that he was content with the content of the reply which was sent. The dismissal was confirmed on appeal. Mr Fullam said in cross-examination that he and Mr Webster had to reach a conclusion which would form the basis of their recommendation to the Board of Directors regarding the outcome of the appeal. He indicated however that the Board of Directors had to reach their own decision in relation to this matter and that he and Mr Webster could not make the final decision on the appeal. His clear reply was, “We couldn’t make a decision either way.”
2.24 Following the termination of her employment with the respondent, the claimant had made application for a number of different jobs but at the time of the hearing, she had not been successful in any of these applications. She indicated that she was no longer receiving Jobseeker's Allowance at the date of the hearing.
3.0 THE RELEVANT LAW
3.1 The relevant law in relation to unfair dismissal is to be found in Articles 126 and following of the Employment Rights (Northern Ireland) Order 1996. For the purposes of this case, the relevant articles are as follows:-
“Article 130 - (1) In determining for the purposes of this Part whether the 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 either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2) A reason falls within this paragraph if it -
(a) relates to the capability or qualifications of the employee for performing work of a kind which he was employed by the employers to do;
(b) relates to the conduct of the employee;
(ba) is retirement of the employee;
(c) is that the employee was redundant; or
(d) that the employee could not continue to work in the position which he held without contravention (either on his part or that of his employer) of a duty or restriction imposed by or under a statutory provision…
(4) In any other case where the employer has fulfilled the requirements of paragraph (1), 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 sufficient reason for dismissing the employee; and
(b) shall be determined in accordance with equity and the substantial merits of the case.
“Article 130A - Procedural Fairness
(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if -
(a) one of the procedures set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (dismissal and disciplinary procedures) applies in relation to the dismissal;
(b) the procedure has not been completed; and
(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.
(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 employers action unreasonable if he shows that he would have decided to dismiss the employee had he followed the procedure…”
3.2 It was agreed in relation to this case that the reason for the claimant’s dismissal was redundancy and the parties agreed that a redundancy situation pertained in late 2012 in the respondent organisation.
3.3 The main issues from the point of view of the claimant were whether the consultation and warning procedure had been adequate and further, whether the appeal procedure had been appropriate and adequate. There was also an issue in relation to whether the alternative employment offered to the claimant was suitable alternative employment.
3.4 In relation to the issue of appropriate consultation, we were referred to the seminal case of Williams v Compare Maxam Ltd [1982] IRLR 83, where the Employment Appeal Tribunal in Great Britain gave guidance in relation to the appropriate steps to be taken in relation to redundancy. The guidance given by the Employment Appeal Tribunal in that case indicated that the employer should give as much warning as possible of impending redundancies so as to enable the union (where appropriate) and employees who may be affected to take early steps to consider if possible alternative solutions and seek alternative employment if necessary. They pointed out the importance of consultation, both with the trade unions (where appropriate) and at an individual level. They stressed the importance of objective criteria being adopted in relation to redundancy procedure and also the employer considering the possibility of alternative employment. They did note that these principles were “not immutable principles which stay unaltered forever.” They also noted that these were not principles of law but standards of behaviour. That said, the decision in Williams remains good law, although it has been developed over a period of time. Most recently, it has been acknowledged by the Employment Appeal Tribunal in Mental Health Care (UK) Ltd v Biluan and Another (UKEAT/0248/12/SM) that a selection procedure based on a series of exercises designed for use in a recruitment context and taking no account whatever past performance may lead to unfairness, because established workers may lose out in such a procedure.
3.5 In this case, the claimant alleged that she should have been given earlier warning of the possible redundancy, either in May 2012 when she first raised the issue with Miss Campbell or in July, when the business case for restructuring of the Finance Department was put to the Department of Education. Council referred us to the decision of the Employment Appeal Tribunal in Rowell v Hubbard Group Services Ltd 1995 (IRLR 195) where it was noted that fair consultation should include consultation when proposals were still at a formative stage, adequate information on which to respond and an adequate information on which to respond, together with conscientious consideration by an authority of the response to consultation.
3.6 As against this, counsel for the respondent submitted that Miss Campbell had given the claimant notice of her redundancy at the earliest possible opportunity, given that the respondent organisation did not have freedom to make decisions about staffing recruitment or redundancies without leave from the Department of Education. His assertion was that it would have led to a prolonged period of anxiety and uncertainty for the claimant without any definite information as to if or when the redundancy might occur. The respondent’s representative went further; given the status of the respondent organisation as a non-departmental public body, he asserted that they were dependant on the Department for authority to take any steps in relation to recruitment or redundancy. Accordingly, it would have been without the powers of the respondent company to give a claimant any indication of redundancy, or should declare her post redundant at an earlier stage.
3.7 On the question of suitable alternative employment counsel also referred us to the case of Look Ahead Housing and Care Ltd v Odili and Another (UKEAT/0437/07/MAA).
3.8 The other procedural issue which caused the claimant concern was the appeal, and how it was dealt with. There was concern raised that Mr Fullam and Mr Webster, who dealt with the appeal, did not prepare themselves properly in that they came to the appeal without any background information or without having read the file of correspondence. This meant that the claimant and her representative had to start “from scratch” in advising them of the exact issues. The appeal panel members then had to seek further information from Miss Campbell and respond to the claimant in detail. The matter which caused the claimant most concern however was the assertion by Mr Fullam in his evidence to the tribunal that he and Mr Webster could not make a final decision in relation to the appeal and in particular that they did not have authority to reverse the decision to dismiss the claimant by way of redundancy. Counsel for the claimant referred us to the case of Lloyd v Taylor Woodrow Construction [1999] IRLR 983 where the Employment Appeal Tribunal held that, as with conduct and capability cases, a defect in a redundancy consultation process could be cured on appeal provided that the appeal is by way of rehearing and not merely a review. The subsequent decision of Taylor v OCS Group Ltd has indicated that it is not necessary for the appeal to take the form of a rehearing for it to be adequate. Counsel argued that the converse was also true and that an inadequate appeal could render void any effective consultation procedure which had gone before. He did not however produce any authority in support of this view. Counsel for the respondent referred us to the decision of the EAT in Midland Bank v Mugford [1999] IRLR 208 where Judge Peter Clarke said, “It will be a question of fact and degree for the Industrial Tribunal to consider whether consultation with the individual and/or his union was so inadequate as to render the dismissal unfair. The 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 grounds of redundancy.” He also referred us to the decision of the Court of Appeal in British Aerospace Plc v Green [1995] ICR 1006 where Lord Justice Waite said, “So in general the employer who sets up a system of selection which can be reasonably described as fair and applies it without any overt sign of conduct which mars its fairness will have done all that the law requires of him.”
3.9 In this case, it was not argued by the claimant that the statutory “three step” procedure had not been followed under Article 130A(1) of the 1998 Order. Rather it was argued that the way the process had been applied was unfair and that the decision to make the claimant redundant was therefore substantively unfair. Counsel sought to clarify the impact of Article 130A(2) which has been referred to by some as an employer’s “get out of jail free card”. Article 130A(2) provides that, subject to Article 130A(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. The authorities are clear that automatic unfairness under Article 130A(1) cannot be cured by invoking Article 130A(2) (see Wareing v Stone Cladding International (EAT)). It is important however to note that the interpretation given by the Courts to the term “procedure” is broad. The position has now been summarised by the Employment Appeal Tribunal in the case of Software 2000 Ltd v Andrews and Others [2007] IRLR 568 as follows:-
”If the employer satisfies the tribunal on the balance of probabilities that the employee would have been dismissed even if their procedures have been adopted, then the dismissal must be held to be fair. If the tribunal finds that there would have been a chance of such dismissal but falling short of 50%, then the tribunal must find that the dismissal was unfair but reduce the compensation accordingly in line with the Polkey decision itself.” (Paragraph 34 of the Judgment.)
3.10 The EAT also made it clear that if an employer seeks to contend that the employee would or might have ceased to be employed in any event had fair procedures been followed, or alternatively would not have continued in employment indefinitely, it is for the employer to adduce any relevant evidence on which he wishes to rely. However, the tribunal must have regard to all the evidence in making that assessment, including any evidence from the employee himself. (Paragraph 54 of the Judgment.)
DECISION
3.11 We would stress that we have found counsels’ submissions in relation to the matters raised in this case extremely helpful and we thank them for their diligence.
3.12 We have considered carefully the issues. This was clearly a most unfortunate situation in that the employer had seen a substantial drop in its “business” partly brought about by the economic downturn in 2008 and the fact that its relationship with the banks, which allowed it to promote the building of integrated schools, was effectively stopped because of lack of bank funding. This led to a situation where the status of the respondent organisation was changed so that it was under much more rigorous control by the Department of Education. We note that both parties agreed that there was a redundancy situation and we also note that the respondent was clearly under instructions from the Department to restructure, including restructuring the Finance Department. It is on this basis that the claimant’s post of Finance Assistant was identified as a post which had been made redundant. The main issue therefore was whether or not the claimant would be made redundant or whether she could be redeployed within the respondent organisation.
3.13 In relation to the question of consultation and warning of the claimant, we have considered this carefully. As a panel, we are aware that it would have been desirable for the claimant to be notified of a potential redundancy at the earliest possible stage. We note that Mr McEvoy’s assertion was that the earliest the respondent could give formal notice to the claimant was in October 2012, following the approval of the business case. In fact, because of the claimant’s absence on sick leave, she was not given notice until 23 November. It was the claimant’s assertion that she should have been given notice of the potential redundancy, or even a warning of a possible redundancy, sometime in the late spring or summer of 2012. She asserted that this would have given her the opportunity to apply for one of the two Secretarial/Office Manager posts which became available in August. She conceded that what she had lost in that situation was the opportunity to apply for the posts, given that she was aware that there were already individuals in those posts who were likely to apply for them.
3.14 We
appreciate that it may have seemed to be in the claimant’s interests to have
earlier warning of this possible redundancy. However, we appreciate also that Miss Campbell
would have been acting outside her powers as Chief Executive of a
Non-Departmental Public Body if she had raised the issue of redundancy with the
claimant in advance of the business case being approved. We simply do not
think that she had the power to do this. We also appreciate the point made by
her counsel, that it would have led to further uncertainty for the claimant.
We do not accept the assertion made by Miss Campbell that she had no
knowledge if the business case would be accepted. It appears clear from the
previous discussions that it was more a case of when the business case would be
accepted, rather than if it would be accepted. However, we appreciate that she
could not act without express authorisation from the Department and accordingly
we believe that the respondent acted within the band of reasonable responses in
not notifying the claimant of the potential redundancy until the business case
had been approved. It is not for the tribunal to substitute its view of what
might have been desirable, and it was also apparent from the consultation
procedure that it was not certain the claimant would definitely be made
redundant.
3.15 In relation to the actual consultation procedure itself, we note that when Miss Campbell first wrote to the claimant at the end of November 2012, she indicated that the consultation process would take 2 weeks. In fact, the consultation process which was started by Miss Campbell’s letter of 23 November lasted until end of February 2013 and the claimant’s employment subsequently ended on 7 April 2013. In the course of that process, meetings were deferred because of the claimant’s sick leave. There was correspondence with her union representative on her behalf and with the claimant and there were three consultation meetings which considered issues such as possible redeployment and consideration of a proposal from the claimant in relation to part-time working. We note that the claimant turned down an offer of a Receptionist’s job on the basis that it would have involved a considerable loss of status. We can understand that and appreciate that she did not wish to take that job. It does seem slightly at odds with her proposal that she would refer to part-time working in a finance role, which would undoubtedly have involved a substantial reduction in wages as well. We have rather more difficulty in understanding why the claimant refused to accept the Administrative Assistant’s role; her explanation was that this was a temporary role covering maternity leave. However, while that was undoubtedly the case, it would have secured employment for the claimant for a further nine months and would have involved little loss of status. It would have given her the opportunity to look for alternative employment, and she would have had the advantage of still being in employment whilst seeking alternative work. It seems to us therefore that it was not reasonable of the claimant in these circumstances to turn down that offer.
3.16 There
remains the question of the appeal process and in particular whether it was a
fair process. We have major difficulties with the way the appeal process was
conducted. Mr Fullam, who struck us as an honest if somewhat vague
witness, indicated that he and Mr Webster had come to the appeal meeting
without reading up on the issues so they would come with an open mind. There
is a difference between approaching a matter with an open mind and approaching
it totally
ill-prepared. The claimant’s comment was that Mr Webster and
Mr Fullham came to the appeal meeting “with a couple of pens and a piece of
paper” and that she and her union representative had to start from scratch and
explain the entire process to them. Mr Fullham agreed in
cross-examination that he may have been confused about the claimant’s assertion
that she had been refused the opportunity to apply for the two posts in
August 2012 as he understood she had been offered two jobs. These were
however the Receptionist’s jobs and the Administrative Assistant’s (maternity
leave cover) post in January/February 2013. The most concerning aspect of
the appeal process however is the assertion by Mr Fullam that he and
Mr Webster “could not make a decision either way” and that any
recommendation they made had to go back to the Board of Directors for
approval. This causes us considerable concern. The Board of Directors had
ratified the recommendation that the claimant’s post would become redundant.
They had then, according to Mr Fullham, to ratify a decision to reverse
that decision, if the appeal panel found in the claimant’s favour. This seems
to us to be contrary to the rules of natural justice.
3.17 We do however have to consider the process as a whole and in particular we have to consider whether the serious flaws in the appeal procedure effectively negate the earlier elements of the procedure. This appears to us to have been properly conducted, with every opportunity for the claimant to put forward her suggestions and with offers of suitable alternative employment having been made to the claimant. We refer in this regard to Article 130A(2) of the 1996 Order which provides:-
“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.”
The type of “procedure” referred to in our view can include the appeal procedure. We have reflected on this matter, and in particular we have considered whether the respondent has shown that there is sufficient evidence to show that the claimant’s redundancy would have followed in any event. We believe that it would have done. It is clear that the respondent had to follow the directions given by the Department of Education as its sponsoring Department. The financial situation was such that there was a redundancy situation in existence and the claimant’s post had been identified for redundancy. Over a period of almost three months from late November 2012 to the end of February 2013, there was correspondence and three consultation meetings, considering carefully what options might exist for the redeployment of the claimant with a view to avoiding her redundancy. We do not believe, as the claimant’s representative suggested, that a defective appeal procedure in this regard negates that earlier full and detailed consultation procedure. We believe that if the appeal panel had prepared properly and come to the appeal with full authority to reverse the decision, it is more than 50% likely that the same decision would have been reached. While we believe that the respondent should review its procedures to ensure that they comply with best practice, we do not accept the submission made by counsel that deficiencies in the appeal procedure void the earlier processes.
3.18 Accordingly, it is our view that the claimant was fairly dismissed by reason of redundancy and accordingly her case is dismissed.
Chairman:
Date and place of hearing: 25 November 2013, Belfast.
Date decision recorded in register and issued to parties: