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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Parker v Edwin May Ltd [2013] NIIT 567_13IT (25 November 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/567_13IT.html
Cite as: [2013] NIIT 567_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 567/13
CLAIMANT: Mark Parker
RESPONDENT: Edwin May Limited
Certificate of Correction
The decision in the above case issued on 25 November 2010 ordered that the respondent make a payment to the claimant of £9,109.00 in compensation.
The total amount is incorrect and should be amended to £8,899.00. The decision should read: The unanimous decision of the Tribunal is that the claimant was unfairly dismissed and that the respondent is ordered to pay the claimant the sum of £8,899.00 in compensation.
Chairman: __________________________________________
Date: __________________________________________
THE INDUSTRIAL TRIBUNALS
CASE REF: 567/13
CLAIMANT: Mark Parker
RESPONDENT: Edwin May Ltd
DECISION
The unanimous decision of the Tribunal is that the claimant was unfairly dismissed and that the respondent is ordered to pay the claimant the sum of £9,109.00 in compensation.
Constitution of Tribunal:
Chairman: Ms P Sheils
Members: Mr R Black
Mr P Laughlin
Appearances:
The claimant appeared and represented himself.
The respondent was represented by Mr Brian McKee of Counsel, instructed by MacCorkell Legal and Commercial Ltd.
The Claim and the Response
1. The claimant lodged a claim on 19 March 2013 for compensation for unfair dismissal by way of unfair selection for redundancy.
2. By their response of 19 April 2013 the respondent confirmed that the claimant had been dismissed but contended that his selection for redundancy had been fair. The respondents also stated that the claimant had not appealed the decision to dismiss him.
The Findings of Relevant Facts
3. The claimant worked for the respondent for eight years between 4 April 2004 until his dismissal on 12 December 2012. He was employed as a Deputy Service Manager/Advisor.
4. In his role the claimant was responsible for booking in customer cars for service. He collected as much information as possible from the customer about the cars difficulties, consulted parts technicians re the availability of parts where appropriate. He spoke to technicians about the approximate time/work needed to complete the service and reverted to the customer with approximate price per job.
5. The respondent is part of a group of companies which includes Edwin May Ltd and a number of roadside motors companies. The respondent employs approximately 60 employees. The respondent operates a Volkswagen franchise in Coleraine at which the claimant worked. At adjacent premises the respondent operates a Nissan franchise.
6. However both the Nissan and Volkswagen franchises suffered as a result of the ongoing economic recession. Business was slow and neither franchise was particularly profitable. As a result of work levels decreasing there was a diminution in the requirements of the respondent’s business and a number of roles became redundant.
7. The respondent undertook a redundancy process. This was carried out by two directors, Mr Ian Hutchinson and Mr Brian Hutchinson, as there is no specific Human Resource department in the organisation. Mr Ian Hutchinson carried out the process up to and including the redundancies and Mr Brian Hutchinson heard appeals.
Unless otherwise indicated, Mr Hutchinson mentioned in this decision refers to Mr Ian Hutchinson.
8. Mr Hutchinson considered all the roles within both franchises and determined that work was diminishing in three main areas: valeting, technicians and service advice/ front of house. The respondent created three pools in order to tie out the redundancy process.
9. The claimant fell within the service advisors/front of house pool. There were four employees in this pool in total – two from the Volkswagen franchise and two from the Nissan franchise. The respondent determined that only two service advice employees would be required to meet the needs of the respondent’s business which resulted, in the absence of any viable alternative or suitable alternative, work in two roles becoming redundant.
10. Once the pools had been established the respondent proceeded with the redundancy process. The claimant received a letter advising him of possible redundancies within the business indicating that a period of consultation had run from 2-16 October 2012. The claimant was advised that during that consultation period any viable alternative to redundancy or how the effect of redundancy (if found necessary) could be minimised would be discussed.
11. The claimant attended a
meeting on 15 October 2012 with Mr Hutchinson. At that meeting the claimant
was informed that all employees on redundancy notice would be scored on their
abilities. The claimant was also asked if he had any ideas as alternative to
redundancy and which point the claimant proceeded to tell
Mr Hutchinson of 12 ideas he had come up with to make the business more
profitable.
12. The claimant subsequently heard that one of his ideas had been taken on board by the company but there was a dispute as to whether another idea, targeted advertising, was disputed between the parties. Neither idea lessened the need for redundancies
13. The claimant attended a
further meeting on 25 October 2012. At this meeting
Mr Hutchinson told him that he had been made redundant. This meeting was
followed by a letter from the respondents advising the claimant that his job
had been made redundant and explaining that he had the right to appeal the
decision with Mr Brian Hutchinson, Director in the company, within five days of
the date of that letter.
14. The claimant did not appeal the decision to make him redundant. By email dated 31 October 2012 the claimant wrote to Mr Hutchinson and asked why he had been selected for redundancy as it might have been of value of him to know of any weaknesses for the future. The claimant asked the respondents to advise him of his score and those of his colleagues. This e mail was sent on the last day of the appeal period, there having been a weekend between the 25 October 2012 and the 31 October 2012. Mr Hutchinson confirmed that he had not regarded this as an appeal as it had not been directed to Mr Brian Hutchinson. He confirmed that he had not forwarded it to Mr Brian Hutchinson.
15. The claimant received no reply to this email and wrote to Mr Hutchinson again on 13 December 2012. He again requested his redundancy scores and those of his colleagues and the reasons that he had been selected for redundancy. The claimant’s letter invited the respondent to take the following points into consideration:
(1) That he had served the company for eight years and eight months.
(2) That he had taken two days sick last year 28 and 29 May and had taken two days of unpaid leave which had been authorised by his line manager.
(3) That he had worked through tea breaks and lunch breaks and had started early to cover for staff shortages.
(4) That his timekeeping was exemplary.
The claimant also asked the respondents to advise him who would be replacing him in his job.
16. By letter dated 17 December 2012 Mr Hutchinson sent the claimant a sheet of paper entitled redundancy selection assessment form. This document related to the scores the claimant had scored in the redundancy process, called Redundancy Selection Assessment Form. However Mr Hutchinson advised that he was not at liberty to forward the scores of the other employees. Mr Hutchinson also advised that there were no plans to replace positions that had been made redundant.
17. The Redundancy Selection Assessment Form comprised of a table headed “Employee Assessment”. It had five columns, namely, Criteria, Score, Weighting, Total, and Notes or Queries. The claimant’s scores were recorded and in Weighting it indicated that each criterion had been given 100%. The Notes and Queries column was blank. The respondent did not provide such sheets in respect of the other candidates.
18. On 14 January 2013 the claimant wrote again to Mr Hutchinson. He advised him that having requested his redundancy scores in an email (31 October 2012) and, as a result of Mr Hutchinson’s failure to reply, the claimant had not appealed the decision to make him redundant. The claimant’s letter advised the respondent that he would like to appeal on a number of points. The claimant’s letter went on to challenge his redundancy scores on the following basis;
(1) Experience, score 4 out of a possible 5, who is this compared to?
(2) Disciplinary record, score 4. I do not have any written or verbal warnings, my record is clean.
(3) Future potential, a low 3. My role was Deputy Service Manager, I covered the Service Manager’s role when he was absent and I had hope to be promoted to Service Manager. I asked my Line Manager if I could be sent on training courses for warranty, administration and sales.
(4) Flexibility, a low three. In our meeting regarding redundancy I informed you that I would be open to change my role, retrain or move to a different site. I also went above and beyond what I was employed to do, carrying out pre-delivery inspections and services as required, working through lunch and tea breaks so that customers did not have to wait for attention therefore how do I score 3.
(5) Performance, score 4. I am very efficient in my work, no work was ever left for someone else and all work was finished by 5.30 pm.
(6) Attitude to work. My colleagues and customers were always to the highest standards. If I required to start early or finish late it was never a problem and I deserve a score 5.
(7) On the wall next to the service desk is a certificate to state that Edwin May Coleraine is in the top 100 companies in Europe for customer management. I was front of the house to meet and greet all customers, my customer handling skills are exemplary. I knew most of the customers on a first named basis and had built up an excellent rapport with them.
19. The claimant’s letter also added, “... in the eight years I have been employed in Edwin May Coleraine I have only ever talked with you four or five times. You work on the Portadown site and so I am wondering how you can score my work when you do not see me at work?”
20. Mr Hutchinson responded to this letter by letter dated 25 January 2012. At the outset the respondent advised the claimant that the time limit for appealing the decision against his redundancy had expired. The letter added “the appeal process is however a matter of you writing to Brian Hutchinson as per the letter of 26 October 2012. As such in order to bring clarity I will comment on the points you raised as follows” … and the letter went on to respond to the claimant’s letter and the points that he had made in it.
21. Mr Hutchinson’s response included the following “in dealing with the scores it should be noted that if the score relative to the others that is important. Thus a score of 4 does not in itself suggest under performance if others in the group are also scored with a 4.
Volkswagen places an increasing emphasis on training and will do so even more in the future. Flexibility to undertake this training was considered of paramount importance during the selection process as it impacted on the candidate’s score in flexibility and future potential. I am willing to be forwarded as a referee and talk to any perspective employer. I have also spoken with Norman Ballance and he too would be happy to be consulted if you deem it more appropriate.”
22. At hearing the respondent claimed that while this letter was not regarded or dealt with as an appeal against the dismissal Mr Hutchinson had sought to explain the reasons for the claimant’s selection for redundancy.
23. The claimant refuted that Mr Hutchinson had made any proper assessment of him and scored him improperly and unreasonably. The claimant challenged Mr Hutchinson’s capacity to make any assessment of him at all as Mr Hutchinson was unfamiliar with his work. The claimant stated that Mr Hutchinson had not spoken to his direct line manager and that Mr Hutchinson had not been at the Coleraine premises for approximately eight months before the redundancy process and that prior to this his normal attendance there was sporadic.
24. Mr Hutchinson stated that he had assessed all the candidates through his own observations of them. However he provided no evidence of when he had made these observations or any record to show that he had done so. Mr Hutchinson confirmed that he had not spoken to the claimant’s line manager but that he had spoken to the line managers of Mrs Hayes and Mr Watton, both of whom were retained.
25. The claimant also stated that Mr Hutchinson had failed to take account of a VW Certificate of Good Performance issued to the claimant, that he had failed to take account of the breadth of the claimant’s experience and how this impacted on the claimant’s ability to do the job better than the other employees and on his ability to be flexible in a future role.
26. Mr Hutchinson stated that he had felt that it would have been unfair to the others to have taken into account the claimant’s success with Volkswagen as the others had not worked for the Volkswagen franchise.
27. The claimant also criticised Mr Hutchinson’s scoring of his experience in doing the job at the same level (four) as he had scored Mr Robert Callaghan and Mrs Wendy Hayes. The claimant alleged that Mr Hutchinson had failed to take account of the claimant’s previous experience as a fitter and of how this fed into the claimant’s ability to expedite the work on the service desk by assisting early diagnosis, assessment of job time, ability to pre-order parts and to carry out pre-delivery inspections and services as required.
28. The claimant also stated that Mr Hutchinson’s assessment of his experience and of his performance failed to take account of the fact that he had trained one of the other employees, Mr Callaghan. The claimant also stated that Mr Hutchinson had failed properly to reflect the fact that he had 8½ years experience of the job while Mrs Hayes had only 1½ years experience.
29. Mr Hutchinson said that it had been his understanding that Mr Callaghan had been trained by someone else. However, he did not explain how he had reached this understanding and refuted the claimant’s challenge on this no further. In relation to the relative experience amongst the employees Mr Hutchinson stated that he had drawn up a baseline job description of the role of Service Advisor incorporating five factors namely:-
(1) Take a booking.
(2) Receive a client.
(3) Allocate work to workshop.
(4) Raise an invoice.
(5) Return car to client.
and had assessed each employee as whether they had “sufficient” experience to meet each of these factors. He stated that he had not regarded technical experience as a relevant factor to carry out the job.
30. Mr Hutchinson produced no documentary evidence of having completed this exercise during the redundancy process.
31. The claimant also challenged his score level, three, under future potential and flexibility. The claimant stated that Mr Hutchinson had failed to take full account of the claimant’s discussion with him at their meeting of 15 October 2012. At this meeting, the claimant had advised Mr Hutchinson that in his role as Deputy Service Advisor Manager he had frequently taken responsibility for the Service Advisor Manager’s post in that manager’s absence and that he had also asked his manager to send him on the relevant training that would qualify him as manager in this role.
32. The claimant also stated that Mr Hutchinson had failed to take into account that part of their discussion at that meeting where the claimant had advised Mr Hutchinson that he would be open to changing his role, retraining or moving to a different site.
33. The claimant stated that Mr Hutchinson had also failed to take account of that discussion where the claimant had sought to impress on Mr Hutchinson the extent to which he went above and beyond what he was then employed to do, carrying out pre-delivery inspections and services and working through lunch and tea breaks so that customers did not have to wait for attention.
34. Mr Hutchinson’s evidence in relation to how he had scored the claimant under the headings of future potential and flexibility was at best confused. He appeared to have conflated future potential and flexibility and drew his conclusions in relation to both on the claimant’s previous history of attending courses.
35. Mr Hutchinson stated that he had placed a higher regard on flexibility, going forward, than on the other criteria. However this was in clear contradiction of the claimant’s Redundancy Selection Assessment form which made it clear that all criteria were given equal weight.
36. Mr Hutchinson stated that the
other employees were more amenable to attending courses particularly out of
working hours while Mr Hutchinson recalled two occasions when the claimant
had been reluctant to go on two such courses.
Mr Hutchinson stated that this prior reluctance to attend courses had led him
to conclude that the claimant was less flexible than the others and had a
reluctance to work outside of hours.
37. Mr Hutchinson appeared to have no recollection of the claimant’s case that on one occasion of refusing to go on a training course had coincided with the birth of the claimant’s baby and that on the second occasion of refusing to go the claimant had advised Mr Hutchinson that his baby was sick.
38. Further, no evidence was provided to demonstrate that the claimant’s future potential was weaker compared to the others.
SUSMISSIONS
39. Mr McKee for the respondent submitted to the Tribunal that in this case the only challenge was to the application of the criteria. Mr McKee reminded the Tribunal of its responsibilities not to substitute its view of what the Tribunal would have done in the circumstances.
40. Mr McKee submitted that it was for the Tribunal to decide whether the application of these criteria was reasonable, whether no other reasonable employer would have done what the respondent did in these circumstances.
41. Mr McKee submitted that this employer had acted reasonably particularly in relation to its administrative resources and that only one man was dealing with this redundancy process.
42. Mr McKee submitted that even if the respondent’s assessment of the candidates for redundancy was impressionistic that this was reasonable and it would be sufficient to bring the respondent’s assessment within the reasonable bands of what another reasonable employer would do.
43. The claimant submitted that Mr Hutchinson’s observations of him at work should be discredited given the fact that Mr Hutchinson was always in the back doing technical issues or in the Branch Manager’s Office with the door closed. The claimant stated that no one had more experience and service than he had and that the respondent had failed to take proper account of his future potential and flexibility and customer handling skills.
The Law
Unfair Dismissal
44. Article 126 of the Employment Rights (Northern Ireland) Order 1996 provides an employee with the right not to be unfairly
dismissed by his employer. Article 130 of the same order indicates that any
dismissal of an employee is fair if the employer shows that the reason for the
dismissal is a reason falling within Article 130.
45. Article 130 states at paragraph (2) a reason falls within this paragraph if it –
(a) relates to the capability or qualifications of the employee performing work of the kind which he was employed by the employer to do,
(b) relates to the conduct of the employee,
(c) is that the employee was redundant or,
(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of the duty or restriction imposed by or under a statutory provision.
46. Article 130(4) states where the employer has
fulfilled the requirements at
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.
Case Law
47. The Tribunal considered the relevant case law and noted that in selection for redundancy cases there is a greater challenge to a Tribunal to avoid substituting their own view of what ought to have happened or of interfering with what the employer or another reasonable employer would have done.
48. However, this does not mean that the Tribunal shies away from any analysis of the redundancy process and of making findings where appropriate that the employer aired during the course of that process.
49. The Tribunal noted that it is established law that a tribunal can “interfere” in cases where the criteria adopted were such that no reasonable employer would have adopted them or that the criteria adopted, even if reasonable, were applied in such a way that no reasonable employer would have done.
The Tribunal’s Conclusions
50. The Tribunal concluded that the claimant had been unfairly selected for redundancy. In reaching this conclusion the Tribunal took into account the following facts; that Mr Hutchinson provided no evidence of having recorded the observations he made of the candidates; that he had taken additional account from line managers in the case of the two successful candidates; that he had failed to forward the claimant’s e mail to Mr Brian Hutchinson for his consideration; that he had provided no proper evidence to show how he had applied the criteria and the evidence re the amalgamation of the criteria of future potential and flexibility demonstrated that he had failed to do so properly.
51. The Tribunal concluded that no reasonable employer would have conducted the redundancy process or have applied these criteria in this way.
Basic Award
Redundancy payment received
Loss of Earnings
From date of dismissal to date new job,
21.12.12 to 8.4.13 = £277 x 15 weeks = £4,155
Loss of bonus @ £1,750 per annum = £34 per week
Loss of bonus from date of dismissal to date of hearing
= £34 x 30 weeks = £1,020
Loss of use of car (agreed at £4000 per annum) = £77 per week
Loss of use of car from date of dismissal to date of hearing
= £70 x 30 weeks = £2,100
Loss of statutory rights = £ 700
Future Loss
Loss of use of car £77 x 12 weeks = £ 924
Total Compensation = £9,109
52. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 23 July 2013, Belfast.
Date decision recorded in register and issued to parties: