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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Tagg v W & G Baird Limited [2013] NIIT 00252_12IT (30 April 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/252_12IT.html
Cite as: [2013] NIIT 252_12IT, [2013] NIIT 00252_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 252/12
CLAIMANT: Graham Anthony Tagg
RESPONDENT: W & G Baird Limited
DECISION
The unanimous decision of the tribunal is that the claimant was not unfairly dismissed and he was not subjected to unlawful discrimination on racial grounds.
Constitution of Tribunal:
Chairman: Ms J Knight
Members: Mrs T Kelly
Mr D Hampton
Appearances:
The claimant was represented by Mr Kevin Denvir, Barrister-at-Law, instructed by Campbell Stafford Solicitors.
The respondent was represented by Ms Karen Moore of the Engineering Employers Federation.
1. ISSUES
The issues to be determined by the tribunal were:
1. Whether the claimant was unfairly dismissed,
(a) Was there was a genuine redundancy situation, and if so;
(b) Whether the claimant was fairly selected for redundancy.
2. Whether in being dismissed the claimant was subjected to unlawful discrimination on racial grounds contrary to the provisions of the Race Relations (NI) Order 1997 as amended.
2. EVIDENCE
The tribunal considered the witness statements and oral evidence of the claimant on his own behalf and of Mr Patrick Moffett, Mr Trevor Brennan and Mr Henderson Allan on behalf of the respondent. The tribunal took into consideration documentation to which it was referred during the course of the hearing.
3. FINDINGS OF FACT
The tribunal made the following findings of relevant fact on a balance of probabilities:-
1. The claimant is English and has lived in Northern Ireland since 1984. He commenced employment with the respondent on 31 January 2007 as a Print Room Labourer until his dismissal, which the parties agreed, took effect on 13 February 2012.
2. The respondent is a commercial printing company which uses the lithographic process to produce documents including magazines, university prospectuses and promotional material for customers. The respondent’s equipment includes two 10 colour Heidelberg presses and one 8 colour Heidelberg press. In 2008 the respondent purchased a 10 colour KBA press, which was the most expensive and productive machine.
3. From 2008 the respondent began to suffer from the economic downturn. Increases in the prices of paper, fuel and energy costs, the downward trend in the value of the euro against sterling and a reduction in sales threatened the financial stability of the respondent company. Measures were taken to reduce costs including terminating continental shift patterns, reducing overtime premium rates and not replacing some staff who left employment. On 13 November 2011 a cost saving meeting was held between Patrick Moffett, Operations Director, Henderson Allan, Managing Director, Trevor Brennan, Financial Director and David Hinds, Sales Director. Costs savings measures were agreed which again mainly involved not replacing a number of staff who had left the business. One of these was Michael McSorley, a printer, whose resignation led to a review of staffing requirements in the Print Room where the minimum operational requirement was for 12 printers and 4 labourers to cover each shift. Mr McSorley was not replaced.
4. lt was decided to reduce the number of print room labourers from five to four and that there was no longer a need for a dedicated KBA print room labourer. The print room labourers were the claimant, Mr Stefan Nedyalkov (who is Bulgarian) and Mr Rodney Taylor, Mr Gordon Arbuckle and Mr Danny Megran (who are all Northern Irish). In September 2010, due to various changes in personnel, Mr Danny Megran, a print room labourer had been moved to work primarily on the KBA. He was given training by the respondent and had developed the skills and experience which enabled him to keep the KBA press going while the printer was on a lunch break. Mr Megran continued to labour the Heidelberg presses in the absence of colleagues. None of Mr Megran’s print room labourer colleagues were offered training opportunities on the KBA at this time. No complaint or grievance was raised by the claimant or any of his colleagues at the time.
5. At that time the Print Room operated 24 hours six days a week which equates to 144 hours a week or 12x12 hour shifts. There were 13 printers, including Mr McSorley, who operated the KBA press and 5 print room labourers, whose role was to support the printers which included cleaning duties, bringing materials to and from the machines and checking ink levels.
6. Mr Moffett and Ms Nichola McClelland, the respondent’s Human Resources Manager, considered that it was appropriate to include all five print room labourers in the selection pool. The five print room labourers had the same terms and conditions of employment and the same basic pay rate. Although Mr Megran was dedicated to the KBA press, he also provided cover for the absences of his colleagues on the Heidelberg presses.
7. On 14 November 2011 Mr Moffett met with Ms Nichola McSorley to discuss the redundancy selection criteria. The respondent does not have a redundancy policy. They devised a redundancy selection matrix which was based on a matrix used in a previous redundancy situation for printers in April 2009.
8. The selection criteria to be applied were as follows:-
Absence
This was given a weighting of 20 and scoring was based on the Bradford points scores used in the respondent’s company sick pay scheme. In the Bradford points system, absences for half days or less are treated as one occasion of sickness absence but scored as a half day rather than a full day. A shift factor of 1.6 is used as a multiplier and was to be applied in the case of each of the individuals in the pool. Any absences due to work related injury were not to be taken into account in accordance with custom and practice. Absences records are kept in payroll.
Disciplinary record
This was weighted out of 20 and was scored on disciplinary records held in the HR Department.
KBA Assistant Trained
This was weighted out of 25 as it was considered to be the most important skill which the respondent wished to retain. This was assessed on the basis of Training records.
Heidelberg Cover Breaks
This criterion was weighted 10 and was included following consultation with the Print Room Manager Alan Toal who felt that it was necessary to retain a good working knowledge of and the ability to run the Heidelberg press during breaks to ensure continuous production. This was assessed on the basis of information provided by the Print Room Manager.
Fork Truck Licence
This was weighted out of 25. 25 marks were awarded for the ability to use the Fork Truck internally and externally and 5 marks were awarded for the ability to use internally only. This was assessed on the basis of HR training records.
The scoring review period was from 8 December 2010 until 8 December 2011.
9. On 29 November 2011 Mr Moffett sent a letter to the Print Room Labourers advising of the potential redundancy of one of their number and that should it be necessary to commence a redundancy consultation, the individual at risk would be selected from a redundancy selection matrix. A blank copy of the selection matrix was enclosed with the letter. A further letter was sent out on 5 December 2011 to each of the print room labourers enclosing an amended matrix as the earlier copy had contained errors. This set out the correct selection criteria and the scoring key and the information source. Mr Moffett also informed the internal union representative of the potential redundancy situation and that the notices had been sent out to those in the selection pool.
10. In early December 2011 Ms McClelland began collating the information required to complete the matrix for each individual. The external UNITE the Union representative contacted Mr Moffett to request that the respondent should offer positions in the Print Finishing Department which were then being carried by agency workers as an alternative to redundancy to the person selected. No objections were raised by the union to the proposed pool or selection matrix.
11. After scoring the matrix the claimant was awarded a total score of 60 points. Danny Megran was awarded 70 points. Rodney Taylor, Gordon Arbuckle and Stefan Nedyalkov were each awarded 65 points. The scoring was carried out by Mr Moffett and checked by Ms McClelland.
12. On 14 December 2011 a letter dated 13 December was hand delivered to the claimant which informed him that he was at risk of redundancy. The claimant’s own scoring sheet, a list of current vacancies within the company and a provisional schedule of payments should he be made redundant were enclosed with this letter. He was invited to attend a first consultation meeting with Mr Moffett and Mr Toal on 15 December 2011. This was postponed at the claimant’s request until 19 December 2011. The claimant was accompanied at this meeting by his trade union representative, Mr Gary Hunter.
13. The claimant was very shocked and taken aback that he had the lowest score. After initially stating that he wished to keep his cards close to his chest, the claimant suggested at the meeting that another employee had an unexpired disciplinary warning and that other employees’ absence records had not been correctly calculated. He queried whether his own Bradford points in relation to his absences had been correctly calculated. He also maintained that the selection matrix was flawed and stacked in favour of one individual, namely Mr Megran as he was the only person who could be award 25 marks under the KBA Assistant Trained criterion. He stated that there were in fact four print room labourers and one Print room Assistant and that given that the respondent had stated that there was no longer a need for a dedicated KBA labourer, that Mr Megran should be selected for redundancy. There was a discussion about how the selection pool was determined and why criteria were included in the matrix and applied. The claimant was shown a sheet which set out his Bradford points calculation and an anonymised matrix which showed the total scores of his colleagues. He also alleged during the meeting that Mr Toal had previously made a veiled threat against him because he had refused to sign an overtime agreement in a conversation about annual leave. This is referred to in the claimant’s record of the first consultation meeting. The claimant indicated that he was not interested in either the cleaning job or the positions currently filled by the agency workers in the print bindery as alternative employment to avoid his redundancy.
14. On 20 December 2012 the claimant sent an email in which he alleged that the selection matrix was biased in favour of one employee and that the selection matrix scoring process was not applied in an unbiased fashion. The consultation process was suspended while the claimant’s grievance was investigated. Mr Trevor Brennan was tasked to investigate the claimant’s grievance.
15. Mr Brennan wrote to the claimant on 20 December inviting him to a grievance meeting on 22 December. He enclosed a copy of the claimant’s selection matrix, the documents used to score him in the matrix, an anonymised copy of the selection matrix highlighting the total scores of each individual, the minutes of the first consultation meeting and a copy of the claimant’s at risk letter and the grievance procedure. He initially met with Mr Moffett on 21 December 2011 to obtain information about the rationale behind the selection criteria and how each person was scored. The grievance meeting was held with the claimant on 22 December 2011 with Ms McClelland in attendance. The claimant was accompanied by Mr Gary Hunter.
16. At the grievance meeting the claimant raised issues concerning Mr Megran’s position and that there was bias towards KBA skills. He queried his own Bradford points score and the Bradford points scores of Mr Nedyalkov and Mr Arbuckle and Mr Arbuckle’s disciplinary record. Mr Arbuckle had informed him that he still had a live warning on his disciplinary record. He further queried Rodney Taylor’s ability to cover breaks on the Heidelberg machines. He queried Mr Megran’s score under the Fork lift truck heading as he was not permitted to drive the fork lift truck outside the roller doors which he stated showed bias toward Mr Megran. He queried the accuracy of the minutes of the first consultation meeting which did not contain a reference to his conversation with Mr Toal and had typographical errors. The claimant was informed that he could amend the minutes and return them to Ms McClelland, which he subsequently did. Mr Brennan informed the claimant that he would look into the issues raised by him.
17. Following the meeting, Mr Brennan requested the absence profile for all of those in the selection pool. He recalculated the Bradford points and found them to be correct. He checked Mr Arbuckle’s disciplinary record and noted that there were no warnings within the review period. He spoke with Mr Toal who confirmed Mr Taylor’s abiity to cover breaks on the Heidelberg. Mr Brennan was aware that Mr Megran was not able to drive the fork lift outside of the warehouse and that it why he was scored 5. He concluded that the redundancy selection matrix had been correctly scored. He therefore wrote to the claimant on 5 January 2012 informing him that his grievance was not upheld and setting out the reasons for his decision. The claimant appealed against this decision on the basis that the selection matrix is biased in favour of one individual and that the scoring process was not applied in an unbiased fashion.
18. In the meantime a second consultation meeting was convened by Mr Moffet which took place on 9 January 2012. At the second consultation meeting the claimant, again accompanied by Mr Hunter, again raised issues about the selection pool and the inclusion of the KBA trained assistant criterion. Mr Moffet explained the respondent’s position on these issues. The claimant further queried whether Mr Arbuckle’s disciplinary warning and absences fell outside the review period, the amount of time spent by Rod Taylor on the Heidelberg machine and why sickness absence of Mr Nedyalkov was not taken into account. At the meeting it was clarified for the claimant that Mr Nedyalkov’s absence was not taken into account as it was due to an injury at work and that Mr Toal had confirmed that Mr Taylor provided cover on the Heidelberg press. Mr Moffet undertook to check the position regarding Mr Arbuckle’s disciplinary and sickness absence records. It was agreed that there would be a further consultation meeting on 11 January 2012. Mr Moffet wrote to the claimant on 10 January 2012 in which he confirmed that the warning against Mr Arbuckle expired in April 2010 and that his absences were in May and June 2010 outside of the review period and expressed a hope that the claimant would now accept that the matrix had been scored appropriately. He advised that the respondent had been unable to identify any alternative employment to redundancy for the claimant, apart from the cleaner and agency worker positions which the claimant had rejected. He confirmed that a further and potentially final meeting would take place on 11 January 2012 and that the claimant could raise any further issues that he would like the company to consider before a final decision was made on the termination of his employment due to redundancy. This confirmed his right to be accompanied and after the meeting to appeal if it was decided to dismiss him.
19. A third consultation meeting took place on 11 January 2011. The claimant again expressed the view that the matrix was designed and manipulated to place him at the bottom. He stated that he hoped that the only reason for him being targeted was that he did not sign the voluntary overtime agreement. He hinted strongly that he intended to lodge complaints with the tribunal. The following day a letter was sent to the claimant confirming his redundancy and advising him of his right to appeal. The claimant did not appeal against this decision although Ms McClelland wrote to the claimant on a number of occasions to enquire whether he intended to lodge an appeal.
20. The claimant’s grievance appeal hearing took place on 17 January 2012. This was conducted by Mr Henderson Allan. The claimant was accompanied by Mr Shaun Campbell. The basis of the appeal was that the matrix had been manipulated to keep Mr Megran. Mr Allan spoke with Mr Brennan and checked the scoring matrix. He wrote to the claimant on 19 January 2012 informing him that his appeal was not upheld.
21. The claimant lodged his originating claim with the OITFET on 1 February 2012 in which he complained that he had been unfairly dismissed and had been unlawfully discriminated against on racial grounds. It was contended for the claimant that there was not a genuine redundancy situation or that if the tribunal so found, that the claimant had been unfairly selected for redundancy. It was further contended that the matrix was biased in favour of Mr Megran and that this pointed to less favourable treatment on racial grounds.
22. It emerged at the hearing that when calculating Mr Megran’s Bradford point score for absences a shift multiplier of 1 rather than 1.6 was used. It was contended for the claimant that from this it could be inferred that the respondent intended to discriminate in favour Mr Megran. The respondent’s case, which accepted by the tribunal, was that this was simply a typographical error which had not been picked up and which in any event would not have altered the score as Mr Megran had had no absences during the relevant assessment period.
23. The tribunal’s attention was also drawn to an article published in the June 2012 issue of the Ulster business magazine to promote the respondent’s business in which the respondent had averred that its business had remained profitable despite the difficult economic times. The claimant contended that this was evidence that there was not a genuine redundancy situation. It was further contended that the respondent had failed to provide proper discovery of profit and loss accounts and other financial records.
4. THE LAW
Article 130 of the Employment Rights Northern Ireland Order 1996 provides:-
“(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 reasons (or, if more than one, the principal reason) for the dismissal, and
(b) that it 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 –
…
(c) is that the employee was redundant
…
(4) Where the employee 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 a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case.”
Article 130A inserted into the 1996 Order by Article 23(2) of the Employment (Northern Ireland) Order 2003 (the 2003 Order), provides that:-
“(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 1 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 purpose 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”.
Article 3 of the Race Relations (NI) Order 1997 as amended (“the 1997 Order”) provides that:-
“(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Order if-
(a) on racial grounds he treats that other less favourably than he treats or would treat other persons”.
Part II of
the 1997 Order prohibits discrimination in the employment field and Article
6(2) provides that
“it is unlawful for a person in relation to employment by him at an
establishment in Northern Ireland to discriminate against that employee...
(c) by dismissing him, or subjecting him to any other detriment”.
The burden of proof in discrimination cases
Where on the hearing of the complaint the claimant proves facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent has committed an act of discrimination or harassment against the complainant which is unlawful by virtue of the legislative provisions, the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be is not to be treated as having committed that Act.
The tribunal took into consideration the following case law:-
Williams v Compair Maxam Ltd [1982] IRLR 83; James W Cook & Co (Wivenhoe) Ltd v Tipper [1990] IRLR 386; Davies v Farnborough College of Technology [2008] IRLR 14; British Aerospace PLC v Green [1995] IRLR 437; Igen Limited v Wong [2005] IRLR 258; and Madarassy v Nomura International PLC [2007] 246.
5. CONCLUSIONS
The tribunal was mindful that it has a limited remit to investigate the commercial and economic reasons of an employer which give rise to redundancies. In this case there is ample evidence for the tribunal to conclude that there were genuine economic reasons behind the decision of the respondent to reduce the number of print room labourers from five to four labourers, which was a legitimate business decision giving rise to a redundancy situation. The tribunal is therefore satisfied that the respondent has established that the reason for the claimant’s dismissal is redundancy, which is potentially a fair reason. The tribunal went on to consider whether in all the circumstances the respondent acted reasonably or unreasonably in treating this as a sufficient reason for dismissing the claimant .
6. The standards of behaviour in determining
whether a redundancy is fair or unfair pursuant to Article 130(4) of the 1996
Order were set out by the EAT in the case of Williams v Compair
Maxam as follows:
''… There is a generally accepted view in industrial relations
that, in cases where the employees are represented by an independent union
recognised by the employer, reasonable employers will seek to act in accordance
with the following principles:-
(1) The employer will seek to give as much warning as possible of impending redundancies so as to enable the union and employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and, if necessary, find alternative employment in the undertaking or elsewhere.
(2) The employer will consult the union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible. In particular, the employer will seek to agree with the union the criteria to be applied in selecting the employees to be made redundant. When a selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria.
(3) Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency at the job, experience, or length of service.
(4) The employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider any representations the union may make as to such selection.
(5) The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment.
The lay members stress that not all these factors are present in every case since circumstances may prevent one or more of them being given effect to. But the lay members would expect these principles to be departed from only where some good reason is shown to justify such departure. The basic approach is that, in the unfortunate circumstances that necessarily attend redundancies, as much as is reasonably possible should be done to mitigate the impact on the work force and to satisfy them that the selection has been made fairly and not on the basis of personal whim'.' (Per Browne- Wilkinson J).
7. In the present case the claimant alleged unfairness by the respondent both in determining which employees should be in the pool for selection, the criteria which were chosen in order to make the selection and how the selection criteria were applied to those employees in the pool.
8. It is for the employer to determine the composition of the pool and generally, the pool should include all employees carrying out work of a particular kind, which may be broadened to include employees who carry out similar or interchangeable roles. In the present case the tribunal considers that the reasoning for the respondent’s decision to define the selection pool as containing all of the print room labourers, including Mr Megran, was logical, reasonable and fair in all the circumstances.
9. With regard to the selection criteria, the tribunal cannot substitute its own principles of selection for those of the employer. A tribunal may only interfere if no reasonable employer would have adopted them or applied them in that way. The claimant contended that the inclusion of the criterion KBA Trained Assistant was both unfair and discriminatory and that it indicates an intention by the respondent to ensure that Mr Megran was kept in employment as none of the other employees had this training. The tribunal recognises that it is legitimate and reasonable for an employer in devising a selection matrix to seek to retain skills which are valuable to its business. This was only one of a number of criteria and the tribunal accepted that before the relevant scoring information was collated and applied the respondent was unaware as to which employee would have the lowest final score. The tribunal considered that each of the selection criteria contained within the matrix was objective and measurable on the basis of records kept by the company, with the possible exception of the Heidelberg cover, which relied on information provided by the print room manager. The tribunal took into account that the claimant conceded in cross examination that the scores given under this heading and indeed all of the headings, had in fact been correctly scored.
10. In the British Aerospace v Green case, Waite LJ ruled that “In general an employer who sets up a system of selection which can reasonably be described as fair and applies it without overt signs of conduct which mars its fairness will have done all that the law requires of him.”
11. The tribunal was urged to find that the claimant’s dismissal was unfair because the respondent did not have in place a redundancy policy. The tribunal rejected this as there is no statutory requirement upon an employer to have a redundancy policy although it may be best practice to do so. The tribunal considers that the respondent gave the affected employees clear information about how the selection would be made and gave an opportunity for representations to be made about the proposed selection criteria before the selection was made. The tribunal similarly rejected the contention that there had not been a genuine consultation process with the claimant before the decision was made to dismiss him.
12. The tribunal is satisfied that in this case the claimant was provided with sufficient information by the respondent about how the selection criteria were applied in his case and that he was afforded the opportunity to challenge the basis upon which he was selected. The tribunal is further satisfied that the respondent investigated all of the concerns raised by the claimant during the consultation and grievance meetings about the selection matrix and its application, carrying out further investigations and provided clear information and clarification to the claimant about all of these matters. He was informed about the positions which were available as a potential alternative to his redundancy, and which he rejected as he was entitled to do. The tribunal therefore considers that the dismissal of the claimant was fair and reasonable in all of the circumstances.
13. The tribunal does not consider that the facts found are such that the tribunal could infer at the first stage that the claimant has been treated less favourably on racial grounds. The basis of the claimant’s racial discrimination claim is that only Mr Megran could score any points under the KBA Assistant trained criterion and that this showed an intention to discriminate in his favour which was further evidenced by the fact that he was the only person to be given the opportunity to train and work on the KBA. Further it was argued that an intention to favour Mr Megran was evidenced by the application of a shift multiplier of 1 instead of 1.6 when calculating his Bradford points score. The tribunal accepted the evidence of the respondent’s witnesses that this was simply a typographical error which made no difference to Mr Megran’s absence score which was zero. It is the case that the claimant is English and his stated comparator, Mr Megran is Northern Irish. However it is also the case that the claimant’s other Northern Irish colleagues and his Bulgarian colleague were also unable to score any points under this heading and similarly were not offered training opportunities on the KBA. The tribunal is satisfied that none of the selection criteria contain any reference either directly or indirectly to the race or nationality of the members of the selection pool. The scoring was correct and in accordance with the key. The tribunal did not consider that it was proper for it to draw an inference of discrimination from the alleged failure of the respondent to disclose financial and accounting documentation. The tribunal did not accept that there was such a failure but even if there had been considered that this related to the issue of whether there was a genuine redundancy situation, rather than the application of the redundancy selection criteria. The tribunal noted that the claimant did not raise any allegation of racial discrimination during the redundancy consultation process or his grievance and indeed suggested that the reason for his selection may have been because he had not signed the overtime agreement, which is not connected with race. Therefore applying the guidelines in Igen v Wong the tribunal determines that claimant’s claim of racial discrimination must fail.
14. The tribunal therefore dismisses the claimant’s claims of unfair dismissal and unlawful racial discrimination in their entirety.
Chairman:
Date and place of hearing: 11-13 February 2013, Belfast.
Date decision recorded in register and issued to parties: