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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Goddard v NSL Ltd [2014] NIIT 606_14IT (03 December 2014)
URL: http://www.bailii.org/nie/cases/NIIT/2014/606_14IT.html
Cite as: [2014] NIIT 606_14IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 606/14
CLAIMANT: Colin Alexander Goddard
RESPONDENT: NSL Ltd
DECISION
The unanimous decision of the tribunal is that the claims of unfair dismissal, automatic unfair dismissal and public interest disclosure detriment are dismissed.
Constitution of Tribunal:
Vice President: Mr N Kelly
Members: Ms G Ferguson
Mrs A Gribben
Appearances:
The claimant was represented by Ms S Bradley, Barrister-at-Law, instructed by Edwards & Company, Solicitors.
The respondent was represented by Ms A Stroud, Barrister-at-Law, instructed by the In-house Solicitor of the respondent company.
Background
1. The claimant had been employed by Capita as the Northern Ireland Regional Manager for a contract with the DVLA; principally the enforcement of statutory regulations, the seizure of vehicles and the storage of those vehicles at a site in Mallusk. That contract was transferred to the current respondent on 16 August 2013. It was a TUPE transfer. The claimant was thereafter described as an Area Manager but his work remained the same.
2. The claimant was made redundant by letter dated 14 January 2014. The effective date of the redundancy was brought forward by agreement to 20 January 2014 to enable the claimant to take up new employment.
3. The claimant alleges:-
(i) that he had made several protected and qualifying disclosures relating to health and safety;
(ii) that his dismissal was principally because of these disclosures and therefore automatically unfair;
(iii) that he had suffered an unlawful detriment on the ground of those disclosures; and
(iv) that his dismissal was, in any event, substantively and procedurally unfair.
Relevant law
4. The relevant statute is the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’):-
(i) Article 67A provides:-
“In this Order a ‘protected disclosure’ means a qualifying disclosure (as defined by Article 67B) which is made by a worker in accordance with any of the Articles 67C to Article 67H.”
(ii) Article 67B provides:-
“(1) In this Part a ‘qualifying disclosure’ means any disclosure of information which in the reasonable belief of the worker making the disclosure, tends to show one or more of the following:-
...
(d) that the health and safety of any individual has been, is being or is likely to be endangered.”
(iii) Article 67C provides:-
“(1) A qualifying disclosure is made in accordance with this Article if the worker makes the disclosure in good faith:-
(a) to his employer, or
(b) where the worker reasonably believes that the relevant failure relates solely or mainly to –
(i) the conduct of a person other than his employer,
(ii) any other matter from which a person other than his employer has legal responsibility, to that person.
(2) A worker who, in accordance with the procedure whose use by him is authorised by his employer, makes a qualifying disclosure to a person other than his employer, is to be treated for the purposes of this Part as making a qualifying disclosure to his employer.”
(iv) Article 70B provides:-
“(1) A worker has the right not to be subjected to any detriment by any act or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.
(2) ... This Article does not apply where –
(a) the worker is an employee, and
(b) the detriment in question amounts to a dismissal within the meaning of – [Part XI].”
(v) Article 71(1A) provides that an employee may present a complaint to an industrial tribunal that he has been subjected to a detriment in contravention of Article 70B.
(vi) Article 134A provides that an employee who is dismissed should be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.
5. In Fecitt and Another v NHS Manchester [2012] IRLR 64 the Court of Appeal stated that:-
“43. I agree with Mr Linden that IGEN is not strictly applicable since it has an EU context. However, the reasoning which has informed the EU analogues is that unlawful discriminatory consideration should not be tolerated and ought not to have any influence on an employer’s decisions. In my judgment, that principle is equally applicable where the objective is to protect whistle blowing ... .
45. In my judgment, the better view is that Section 47B [the GB equivalent of 70B] will be infringed if the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer’s treatment of the whistleblower. If Parliament had wanted the test for the standard of proof in Section 47B to be the same as for unfair dismissal, it could have used precisely the same language but it did not do so.
...
51. ... I entirely accept that where the whistleblower is subject to a detriment without being at fault in any way, tribunals will need to look with a critical – indeed sceptical eye to see whether the innocent explanation given by the employer for the adverse treatment is indeed the genuine explanation. The detrimental treatment of an innocent whistleblower necessarily provides a strong prima facie case that the action has been taken because of the protected disclosure and it cries out for an explanation from the employer.”
6. Harvey on Industrial Relations and Employment Law, Division DI, 10A(5) provides at Paragraph 1704 that:-
“Consultation is one of the basic tenets of good industrial relations practice.”
Harvey went on to state at Paragraph 1708 that:-
“Moreover, whilst accepting that there were no invariable rules as to what consultation involved, the tribunal stated that so far as possible it should comply with the following guidance given by Glidewell LJ in the case of R v British Coal Corporation and Secretary of State for Trade & industry ex parte Price [1994] IRLR 72 at Paragraph 24 –
‘It is axiomatic that the process of consultation is not one in which the consultor is obliged to adopt any or all of the views expressed by the person or body whom he is consulting. I would respectfully adopt the tests proposed by Hodgson J in R v Gwent County Council ex parte Bryant reported, as far as I know, only at 1998 Crown Office Digest Page 91 when he said:
“Fair consultation means:
(a) consultation when the proposals are still at the formative stage;
(b) adequate information on which to respond;
(c) adequate time in which to respond;
(d) conscientious consideration by an authority of the response to consultation”.”
7. In King v Eaton Ltd [1996] IRLR 199 the Inner House of the Court of Session approved the remarks of Hodgson J in Bryant (above) but relied on a fuller quotation, adding:-
“Another way of putting the point more shortly is that fair consultation involves giving the body consulted a fair and proper opportunity to understand fully the matters about which it is being consulted, and to express its views on those subjects, with the consultor thereafter considering those views properly and genuinely.”
Judge Levy (in King v Eaton Ltd) went on to say:-
“There are no invariable rules as to what is to be done in any given situation: everything will depend on its particular facts. However, when the need for consultation exists, it must be fair and genuine, and should, we suggest, be conducted as far as possible as the passage from Glidewell LJ’s judgment suggests.”
8. Harvey on Industrial Relations and Employment Law, at Paragraph 1685 states:-
“A crucial preliminary problem in relation to redundancy selection where the requirements of a business for employees to carry out work of a particular kind have ceased or diminished is to chose the group of employees from which the selection has to be made. The system of choosing this pool must be fair and if there is a customary arrangement or procedure then that should be followed unless there is a good reason for not doing so. The pool should include all those employees carrying out work of that particular kind but may be widened to include other employees such as those whose jobs are similar to, or interchangeable with, those employees. Ultimately the pool from which the selection will be made is for the employer to determine, and, in the absence of a customary arrangement or procedure, it will be difficult for an employee to challenge where the employer can show that he has acted reasonably.”
9. In Halpin v Sandpiper Books Ltd [UKEAT/0171/11] the EAT considered the case of an employee who was in a ‘pool of one’. The claimant (employee) argued that no reasonable employer would automatically limit the pool to those workers whose work had itself diminished, excluding those with interchangeable skills. The EAT concluded:-
“When dealing with a selection process a tribunal will err if it decides that the pool chosen by the respondent was wrong, for that is to make itself the decision-maker as to pools (see Fulcrum Pharma v Bonassera [2010] EAT/0198/10). The decision on pool and of selection are questions of fact for an Employment Tribunal ... .”
It went on to say:-
10. In Lomond Motors Ltd v Robert Clark [UKEATS/0019/09] the EAT was considering a case where the claimant had been one of several accountants employed by the respondent. His particular post was going to be redundant. The pool for redundancy selection did not include all the available accountants at that level. The claimant’s post at Sterling was to be amalgamated with the post at Edinburgh. Only those two accountants were included in the selection pool. The selection pool did not extend to include the accountant who at that stage was covering both the Glasgow and Ayr sites. The EAT stated at Paragraph 21:-
“Redundancy is a potentially fair reason for dismissal but may be found to be unfair if, in normal circumstances, the employer’s decision to dismiss was an unreasonable one ... The starting point is always the language of Section 94(4); was the decision to dismiss an unreasonable one? Thus, if, looking at matters objectively and allowing for the range of reasonable methods of selection that such an approach dictates, the decision to dismiss the individual employee was the result of the reasonable application of a fair selection method then the decision will not be open to question. The issue for an Employment Tribunal is not whether or not it would have employed the method and made the selection that was made by the employer but whether the method and selection were such as could have been determined upon by a reasonable employer. With gratitude to Rimer J for his clarity of expression on this matter in the case of Kvaerner Oil & Gas Ltd v Parkers & Others [EAT/0444/02], I would adopt what he says at Paragraph 20:-
‘The starting point is and must always be, whether or not the tribunal was correct to conclude that the dismissals were unfair by reference to the considerations set out in Section 98(4) of the 1996 Act. But in approaching that exercise it is important to underline that the authorities show that different people can quite legitimately have different views about what is or is not a fair response to a particular situation. The mere fact that A considers that solution X is the fair one whereas B favours solution Y, does not mean that one or other of them must be adopting an unfair solution. In most situations there will be a band of potential responses to the particular problem and it may be that both of solutions X and Y will be well within that band. The Employment Tribunal is of course charged with determining the fairness or otherwise of a particular dismissal, but that does not mean that merely because it forms its own view that solution X was or would have been the fairest one, the employer’s different solution Y would necessarily have been an unfair one.’.”
11. The EAT in the same decision said at Paragraph 25:-
“Turning to the relevance of a mobility clause in the contract of employment when considering a claim for unfair dismissal on the grounds of redundancy, there is authority for the view that if there is a genuine redundancy at the place where an employee in fact has worked, it is not rendered any less genuine by reason of the existence of the mobility clause which could have enabled the employer to send the employee elsewhere to work. The point is rather that there is a cessation or diminution of business at the place where the employee is working at the relevant time and thus the potentially fair reason is established (Bass Leisure Ltd v Thomas [1994] IRLR 104, High Table Ltd v Horst [1997] IRLR 513). Put shortly, it is a matter of looking at the circumstances where the employee was in fact working. A mobility clause is not indicative of no genuine redundancy. The respondents approach in the appeal was to extend that reasoning so as to submit that, similarly, a mobility clause is not relevant to an assessment of whether or not, in selecting its pool, an employer has acted within the band of reasonableness and I accept that there is considerable force in that submission, particularly in the circumstances of the present case.”
12. In the case of Brown & Others v BMI British Midland [UKEAT/0055/04] the EAT considered a case where the respondent company employed four groups of engineers but only one group of those engineers were at risk of redundancy. The EAT quoted the original decision of the Employment Tribunal:-
“29 Mr Shimani confirmed that it is a procedure that had been adopted on that occasion. On the evidence we are satisfied that the respondent, which at that time was affected by then recent events of September 11th, looked to the area where the work had diminished, ie ‘the line’ and selected four licensed engineers from that area. We are satisfied that the reason for their selection, apart from any other, was because of their location of on ‘the line’. Although the memorandum had referred to a redundancy programme affecting approximately 600 employers throughout the UK, there were to be 28 redundancies only. This procedure excluded the applicants and the other engineers working in the other teams in the hangar at Heathrow.
...
33 There was a dispute between the parties whether the applicants could be transferred to any other location at the instruction of the respondent. On the evidence we are satisfied that the respondent treated each part of Heathrow as a separate centre of work, there being different managers, different jobs to be done, albeit with the same professional skills, different budgets and different shifts. While employees were asked and on many occasions did agree to voluntary work in other areas there was no compulsion for them to do so. If employees wished to transfer from one area of work to another they had to formally apply and be considered.”
The EAT did not criticise the reasoning of the Employment Tribunal in that respect.
13. In the IDS Handbook on Redundancy at Page 201 it states:-
“ ... Copeman & Son v Harris [EAT/792/86]:-
The selection of a picker from one department when there were pickers doing virtually identical jobs in another department who had less service than the employee dismissed was an unfair restriction of the pool.
The tribunal’s decision in the Copeland case was overturned by the EAT on a different point, but it refused to interfere with the tribunal’s finding that the restriction of the pool to one department was unfair. The position of employees is a question of fact, and as such it is for the tribunal to decide. The EAT can overturn a finding of fact on the basis that it is perverse – that no reasonable tribunal could have reached in on the evidence available – but it is usually reluctant to interfere in this way.
There are, however, a number of cases where the EAT has expressly disagreed with tribunals on the question of ‘position’. In Wellworthy Ltd v Singh & Others [EAT79/88], for example, the EAT overruled a tribunal’s decision that the restriction of the pool for redundancy selection to the department within which the redundancy situation arose was unfair. The tribunal had said that this restriction unfairly disadvantaged one group of employees, the EAT pointed out that any criteria upon which the selection was based would disadvantage some employees.
The label attached to a particular job is not conclusive when it comes to assessing the employee’s position. Similar job titles may conceal real differences between the status of employees or the nature of the work they do. In Twidale v The Thomas Hill Engineering Company (Hull) Ltd [ET Case No: 21874/86], for example, an employee solely concerned with sales was termed a ‘draughtsman’ in common with those who were draughtsmen in the ordinary sense. He was found not to have occupied the same position as the rest. The same tribunal also found that an employee treated by the company as being in a different position from the others was in reality in the same position as them.”
Credibility
14. Credibility is a particularly important issue in this case. At the core of this case, the claimant has made certain allegations about what had been said during a meeting on 25 October 2013 between the claimant, Mr Bradley and Ms Daly. Those allegations were strenuously disputed by the respondent.
15. The tribunal has particular concerns about the claimant’s credibility:-
(i) The claimant was asked a direct question by the respondent’s representative towards the end of his cross-examination. The cross-examination at that point had been dealing with the period between 25 October 2013 (the meeting attended by the claimant, Mr Bradley and Ms Daly) and 14 January 2014 (when the redundancy letter issued). The claimant was asked whether the respondent had ever referred him to Occupational Health. The response from the claimant was clear and unqualified. He stated “No”. The respondent’s representative was advised, after the cross-examination had in fact concluded, that there had been such a referral by the respondent. This referral had led to a telephone consultation between the claimant and an Occupational Health Nurse and ultimately to a written report which had been copied to the claimant. The respondent’s representative raised this issue and sought leave for further cross-examination. The tribunal rose for 30 minutes to enable the documents to be located, printed and copied. Those documents showed that an e-mail from Carol Imrie of the respondent’s Human Resources Department dated 13 December 2013 stated clearly:-
“However I wanted to ensure that you are given every opportunity to engage in the process and have referred you to our Occupational Health Consultants to see if they can offer any further advice or support that would facilitate your attendance in the meeting and engagement in the process.”
The full Occupational Health Report dated 20 December 2013 was also produced.
The claimant was recalled and agreed in additional oral evidence-in-chief that he had indeed said “No” to the original question posed in cross-examination by the respondent’s representative. He stated that he could not understand why he had said “No”. He stated that he had in fact copies of relevant documentation in his briefcase during the tribunal hearing.
The claimant had previously been employed for over 20 years in an environment in which he would have been very experienced in giving evidence and would have been fully aware of the importance of giving accurate answers to questions put in cross-examination. Furthermore, in the course of this hearing he had previously, and on several occasions, asked to go back to previous answers to clarify or to expand on those answers. He had been careful and deliberate in responding to cross-examination. However, he had at no stage in the final part of his cross-examination sought to go back to his answer relating to occupational health; to explain that for some reason he had given an entirely inaccurate answer and a misleading impression which directly contradicted documents he had with him in his briefcase. The tribunal therefore concludes on the balance of probabilities that the claimant in answering “No” to the respondent’s representative was deliberately trying to paint the respondent in the worst possible light and that it is highly unlikely that he could simply have forgotten about the referral to Occupational Health, the arrangement of the subsequent telephone consultation, the process of that telephone consultation and the issuing of a full written report.
(ii) Part of the claimant’s case rests on the claimant’s version of the meeting on 25 October 2013 between Mr Bradley and Ms Daly and the claimant. The claimant asserted that he had actually been told at that meeting that he had been made redundant and that the attempted consultation thereafter had been no more than a charade and box-ticking exercise. The respondent’s version was that he had been told that he was potentially at risk of redundancy.
The claimant asserts and it is not disputed by the respondent’s witnesses that he took a written note throughout the meeting and that Mr Bradley and Ms Daly did not. It is also clear and not in dispute that the claimant had at that point been very active in raising complaints regarding the respondent’s operations.
The claimant’s version is therefore that the respondent had openly told him, in the course of that meeting while he was actively taking notes, that he had been made redundant and that then, and only then, entered into a charade to appear to comply with the general requirements placed upon an employer in a redundancy situation.
It seems highly unlikely to this tribunal that given the claimant’s obvious propensity to raise matters of complaint, whether or not justified, the respondent would have openly, and in the face of his obvious note taking, told him that he had been made redundant and had then, at a later date, proceeded to enter into a charade or a box-ticking exercise. Ms Daly was clearly an experienced HR Manager and Mr Bradley an experienced manager. They simply would not have done that. If a charade or a box-ticking exercise were to have been embarked upon, it would have been embarked upon from the start; not after telling the claimant that he had been made redundant when he was taking notes and while he was clearly an individual who was not adverse to raising complaints.
(iii) Part of the claimant’s case was that he should have been considered as part of a pool of four Area Managers; in other words, that he should have been considered for one of the three jobs in either Edinburgh, Bridgend or Croydon. No evidence was produced that the Northern Ireland post was still viable at Area Manager level.
However the claimant made it plain in cross-examination that he would not re-locate to Great Britain. He was a family man with children. That calls into question the entire basis for this case.
If he was and is not prepared to re-locate to any of the three GB Area Manager posts, is his complaint, about not being considered in a pool of four, a genuine complaint?
16. Therefore the tribunal concludes that the claimant’s evidence is simply not credible.
17. The tribunal has listened carefully to the evidence given by Mr Bradley, Ms Daly and Mr Tucker. While it is clear that at certain points in this procedure the tribunal may well have adopted a different methodology and where it is clear that certain criticisms can be made of the respondent, there is nothing in the evidence of these three individuals which calls their credibility into doubt.
Relevant findings of fact
18. The Northern Ireland contract had originally been run by Capita. That contract (together with the employment of the claimant and the employment of the four enforcement officers) transferred to the respondent company on 16 August 2013. There was a two day handover period and a new contract went ‘live’ on 19 August 2013.
19. The claimant was the only Area Manager to be employed by the respondent company in Northern Ireland. He was responsible for only one site in Mallusk and had only four employees who reported to him. Those employees were at the basic grade of enforcement officer. There were no intermediate levels of management between the claimant and the four enforcement officers. There had previously been a second site in Northern Ireland but that had been closed some time earlier.
20. The respondent company employed three other Area Managers. One was based in Edinburgh (Scotland), one in Bridgend (Wales) and one in Croydon (London). They were respectively responsible for four sites, seven sites and six sites. Each had several enforcement officers working in their areas and under their ultimate management control. The evidence from Mr Bradley was that these numbered between 80 and 90 enforcement officers. That approximate figure was not challenged by the claimant. It is also clear that between each of those area managers and the groups of enforcement officers for whom they were ultimately responsible, there were three separate intermediate levels of management, ie one operations support manager, several pound managers (one for each site) and several supervisors.
21. In the run up to the TUPE transfer, there had been several TUPE consultation meetings between Capita, the respondent company and the relevant staff. At the meeting on 1 August 2013, Ms Daly specifically added as an additional measure that:-
“6 NSL reserves the right to review the contract for operational effectiveness which may result in the review of roles. This could result in potential redundancies; this will be looked at post-transfer when the operational set up will be reviewed.”
22. At the TUPE consultation meeting on 8 August 2013 the HR Operations Partner for Capita recorded:-
“David Partridge summarises the measures provided to Capita so far by NSL –
NSL reserve the right to review the structure of operations for effectiveness and which may result in potential redundancies.”
23. On 14 August 2013, Capita wrote directly to the claimant, and presumably to the other affected employees, setting out matters relating to the transfer of employment to the respondent company. It listed various matters which had been agreed. One of those was:-
“895. NSL reserves the right to review the structure of the contract for operational effectiveness which may result in a review of roles and potential redundancies.”
24. At the claimant’s first meeting with Mr Bradley on 30 July 2013, the claimant asked Mr Bradley whether the respondent company had any proposals for the Northern Ireland operation and whether or not further expansion was a possibility. The tribunal concludes that the claimant had been aware of the significant differences between his job and the jobs of the other three area managers and had been aware of the potential for a review of operations and consequent potential redundancies. The claimant would have been aware that his particular post, given the obvious differences between it and the three other area manager posts was vulnerable to any operational review and potentially redundant. The tribunal does not accept the claimant’s evidence that he had been shocked and taken aback by the respondent’s proposal.
25. The claimant stated in evidence that he had stood in, on some occasions, for the area manager operating in Edinburgh. No documentary evidence was produced to support this statement. It seems clear that if it had happened at all it did not happen following the transfer of the contract from Capita to the respondent company. The claimant did not mention in his witness statement that he had done so. In any event, no assertion was made by the claimant that this had been compulsory or had been compulsory at any point during his previous employment with Capita.
26. A great deal of time was taken up in the course of this hearing in relation to evidence of alleged disclosures made by the claimant to the respondent company about matters concerning the operation in Mallusk which may or may not have raised health & safety issues. The tribunal attempted at the start of this hearing to point out to parties that it was not unusual for managers to have raised health & safety matters in the course of their employment. Indeed, it would be puzzling if it were otherwise. That was not the primary issue to be considered here. The primary issue to be considered here in relation to alleged public interest disclosures was whether or not they had materially influenced any action taken by the respondent.
27. In any event, and without going painstakingly through each of the alleged disclosures, the tribunal is content that at least some of those alleged disclosures and, in particular, the disclosure in relation to working controls on the crane lorry used to recover vehicles were relevant disclosures for the purposes of the legislation. That said, many of the issues raised by the claimant do not appear to have been in the least reasonable and appear to have been an overreaction on his part or an example of extreme oversensitivity. An example of such a disclosure is his complaint that a digger erecting a fence, which had been erected largely at his request, was noisy. In those circumstances, it had been made plain to the claimant at the time that he and his staff could move temporarily to another part of the Wilsons Auction site to enable the necessary construction work to be completed. For him to pursue this complaint and indeed to expand the complaint to include the use of a grinder near the offices, and indeed the alleged non-use of earmuffs by someone who was not even employed by the respondent, was taking matters far too far.
28. On 7 October 2013 the claimant received an e-mail from Mr Bradley advising him that Mr Bradley would travel to Belfast on 11 October 2013 to meet with a client and Mr Peter Johnston. The claimant was unavailable due to annual leave and this meeting was re-arranged for 25 October 2013. That e-mail did not state that this meeting was to consider the health & safety matters raised by the claimant or any other issue. It certainly did not mention any proposed redundancies or an operational review. However, it is clear that at that point Mr Bradley, in conjunction with Ms Daly, had reached the conclusion that the claimant’s post as Area Manager in Northern Ireland was no longer required and that it could be replaced simply by a Pound Manager responsible only for that single site and for a small number of staff, as with the other site in Great Britain.
29. In any event, the meeting on 25 October 2013 was held elsewhere in the Wilsons Auction site. The meeting was not capable of being overheard by any other party although there was a glass partition. The claimant attended. For the respondent, Mr Bradley and Ms Daly attended. The tribunal does not see any grounds for criticism of the meeting location.
30. The respondent’s evidence was that it was not their practice to write to or to telephone an individual facing potential redundancy and that they preferred to do it face to face as an initial step. While the tribunal may well have approached this matter in a different manner if it had been the employer, the tribunal understands and accepts the reasoning of Mr Bradley and Ms Daly in this regard. This was an approach that a reasonable employer could have taken.
31. In any event, the meeting started with Ms Daly indicating clearly that the Area Manager role in Northern Ireland was no longer required and that the claimant was potentially redundant. The claimant has alleged that he had been told in plain terms that he in fact was redundant. For the reasons illustrated above, the tribunal does not accept that that is the case. It would be highly unlikely that could have happened as alleged by the claimant.
32. Furthermore the notes prepared by the claimant, allegedly in the course of the meeting, contain in one instance the use of the past tense. The notes state:-
“I was to be made redundant.”
The notes appear suspiciously uniform and clear for notes which the claimant alleged he took in the course of a meeting while he states he had been shocked, humiliated and taken aback. The notes also do not appear on the correct day of a diary which we have not seen. The notes appear on the relevant page for 28 November 2011 rather than 25 October 2013. There has been no indication in the evidence before us why the claimant, during the course of a meeting, took notes on entirely the wrong day and wrong month and indeed the wrong year (2011) in a diary.
Some parts of the notes simply do not read as a contemporaneous note as alleged by the claimant. At one point the note reads:-
“Humiliated!! Why had JD specifically called to Belfast to tell me??”
Apart from the use of ‘had’ rather than ‘has’, this note simply looks as if it is one compiled afterwards while the claimant has had time to think about it rather than the contemporaneous note of matters as they unfolded. If it had been the latter type of note, one would have expected a more detailed note of what had been said and by whom and at what point. The claimant is after all an experienced note taker.
33. The meeting was halted at one point because the claimant was, on the evidence of the respondent, upset and angry. The claimant’s version is slightly different, in that he states he was upset and taken aback. In any event, it is clear that during that break in the meeting, Ms Daly had instructed that access to the claimant’s laptop and work e-mails should be blocked. On the claimant’s return to the meeting the claimant was placed on gardening leave. He was told that if he wished to go back to his office he would be escorted by Mr Bradley. The respondent’s evidence was that they were concerned that the claimant had been intimidating and aggressive and that he could well upset other staff if he had been allowed to speak to them at that point. On balance, the respondent’s version of events appears to be correct. If, as alleged by the claimant, the blocking of his laptop and his e-mails had been predetermined, it is difficult to see why this occurred only in the break in the meeting and not before the meeting. Given the obvious disparities between the Northern Ireland Area Manager post and those in Great Britain, and the clear indication of an operation review, the tribunal does not accept that the claimant could have been in any way surprised at what he was told during the meeting. It seems however more likely than not that the meeting had been confrontational and strained. That would explain the need for a break. In any event, whatever term is used to describe the claimant’s mood in the course of the meeting, it seems clear to the tribunal that a reasonable employer could have reasonably sought to limit his contact with other staff, either physically or by e-mail.
The note records that the meeting ended at 11.10 am. The recorded note of the meeting then continues which again tends to suggest that while a contemporaneous note had clearly been taken by the claimant, this note presented to the tribunal may not necessarily be that contemporaneous note as asserted by the claimant.
34. The tribunal concludes that the claimant was not told that he was definitely to be made redundant in the course of this meeting. That simply would have made no sense. It would have been entirely inconsistent with the subsequent actions of the respondent. The tribunal accepts that the claimant had been told that the Northern Ireland Area Manager’s post was no longer required and that he individually was therefore potentially at risk of redundancy. That, however, could not be known until after the consultation and the consideration of any suitable alternative vacancy. No argument was made by the claimant at this meeting, subsequently, or even at the tribunal that the Northern Ireland Area Manager post was still viable.
35. The claimant received a letter from Mr Bradley dated 1 November 2013 which stated:-
“I refer to the meeting held on Friday 25 October 2013 with myself and the Head of HR, Janet Daly. At this meeting we announced that for economic reasons, NSL intended to review the structure of the operation in Northern Ireland. The current structure of Area Manager with responsibility for a total of four staff working from a single site is not cost-effective. The role of Area Manager would be replaced by a Pound Manager to carry out the day-to-day operational issues reporting directly to the Account Director.
Unfortunately your job as Area Manager is at risk and this letter is to notify you of the company’s intention to commence the redundancy consultation process with you.
Please note that this letter is not notice of termination of employment. Such a letter will be issued only if suitable alternatives are not identified during the period of consultation. We confirm that we shall, during this period, seriously review all the options and possible alternatives available and we urge you to do the same. Should the company be unable to establish any change to your current situation, it is with regret that it would be the company’s intention to confirm your job as redundant.
I would therefore invite you to a formal meeting to discuss the announcement and address any questions or concerns you may have as a result. I have enclosed a copy of the Pound Manager role profile and a copy of the current vacancies for you to review.
The meeting will take place on Thursday 7th November 2013 at 10.30 am at Holiday Inn Belfast, 22 Ormeau Avenue, Belfast. You are entitled to be accompanied at the meeting either by a certified union representative or a work colleague. I will be accompanied by Carol Imrie, HR Business Partner.
We regret having to take such action and ensure you that it is no reflection on your performance.
Should you be unable to attend a meeting at this time or wish to discuss any details of this letter please do not hesitate to contact me on (telephone number).”
36. The claimant alleged that he had not been offered the right to be accompanied at the meeting on 25 October 2013. The respondent stated that this was an informal meeting and not the first consultation meeting. The tribunal does not accept that there are any legal grounds for a complaint here.
37. The claimant went to see his GP and went on the sick with ‘work-related stress’. The claimant has produced a sick note which does no more than state that in the opinion of the GP after listening to the claimant, the claimant had been unfit for work during the period shown on the sick note. There is no medical evidence of any sort from the claimant, other than his unsupported assertion that he was, at this stage, unable to attend consultation meetings, to engage with the process or to put his views in writing.
38. Mr Bradley wrote to the claimant on 8 November 2013 indicating that he had received his sick note and confirmation that he would be unable to attend the proposed consultation meeting on 7 November 2013. The letter stated that if the claimant felt more comfortable or found it less stressful he could put his concerns in writing rather than attending a further meeting. He was referred to a counselling service, the Employee Assistance Programme. The letter finally stated that Mr Bradley would contact him again in two weeks’ time to see where the situation lay.
39. On 25 November 2013, Mr Bradley wrote again. He invited the claimant to attend a consultation meeting on Friday 13 December 2013. It stated that if the claimant was unable to attend the meeting he would be happy to consider any written submissions.
40. On 19 December 2013, some six weeks after the At Risk meeting, the claimant wrote to the respondent to ask when he could receive current vacancy lists. Some lists had been attached to the letter immediately following the meeting but the claimant had not received subsequent lists until 19 December 2013. The evidence from the respondent, which the tribunal accepts, was that this was an administrative error by their recruitment section. It is however important to remember that the claimant made it plain in his answers to cross-examination that he was not prepared to re-locate to Great Britain or to accept the Pound Manager post at £22,000 per annum. There were no other higher paid posts available in Northern Ireland at that time. It therefore seems that this administrative error for a brief period had no practical effect or adverse impact.
41. Mr Bradley confirmed that current lists would be sent.
42. The claimant alleges, in particular, in his witness statement that he was notified late of a training officer vacancy in Great Britain. This was a vacancy which paid between £22,000.00 and £25,000.00 per year. The claimant had already indicated that he was unwilling to consider a Northern Ireland vacancy of Pound Manager at £22,000.00 per year. Furthermore in cross-examination the claimant made it absolutely plain that he was not prepared to move to Great Britain or to relocate. He was a family man with four children. It is difficult to see the practical effect or the adverse impact in this. The claimant would not have been interested in the Training Officer post.
43. The tribunal accepts that the respondent kept the post as Pound Manager open pending the claimant’s indication one way or the other that he was interested or not interested in that post.
Decision
44. The first issue for the tribunal to determine, in relation to the separate claims of unfair dismissal, automatic unfair dismissal and public interest disclosure detriment is the reason or reasons for the claimant’s dismissal.
45. The respondent took over the relevant contract in mid-August 2013. In the TUPE consultation it had made clear the potential need for an operational review and staff redundancies. The claimant’s post stuck out ‘like a sore thumb’. It had the same job title, and the same pay as the three Area Managers in Great Britain.
46. However, these Area Managers were each responsible for a large geographical area, multiple sites and a substantially larger number of staff than the claimant. They also had responsibility for three intermediate levels of management. The claimant, who was responsible for only one site and four staff was essentially in the same position as a Pound Manager in Great Britain but with a substantially higher salary. The respondent was entitled to conclude that the claimant’s post was an anomaly and no longer required. It was redundant as defined by Article 174(1)(b) of the 1996 Order.
47. There were obvious grounds therefore on which the respondent could have concluded that the Area Manager post in Northern Ireland was redundant. Given the differences between the claimant’s post in Northern Ireland, and the three Area Manager posts in Great Britain, the tribunal concludes that a reasonable employer had been entitled to reach that conclusion.
48. The claimant had made some protected disclosures. However there is no evidence that links those disclosures with the redundancy process. The claimant points to a coincidence in timing. However the same can be said of the business reasons for the redundancy process. Given the recent takeover of the contract and the need to bed in the contract, the timing of the redundancy process appears to be entirely consistent with the business reasons. Furthermore, the meeting on 25 October 2013 had originally been intended for earlier in October. The timing had largely been dictated by the claimant.
49. Furthermore, if the respondent had been motivated by a desire to get rid of the claimant because of his health & safety complaints, it is highly unlikely that they would have offered him the Pound Manager’s post in Mallusk, where he would effectively have been doing the same job and reporting direct to the Accounts Manager. The claimant would then have been in the position to have continued with health & safety complaints. The tribunal therefore concludes that the reason for the dismissal was redundancy and not any protected disclosure. Looking at all of the evidence with a sceptical eye, as required by Fecitt (see above); such disclosures had no influence, material or otherwise, on the respondents’ actions.
50. The evidence appears to the tribunal to be absolutely clear. The claimant, while having the job title and the pay of Area Manager, was doing a completely different job from that of the Area Managers in Great Britain. He was responsible for only four staff at a single site. He had no intermediate management. While he may have intermittently assisted the Area Manager in Edinburgh, there is no evidence that he ever did so in any sustained or in any obligatory way and apart from the claimant’s unsupported assertion, no evidence that he ever did it at all.
51. The tribunal therefore dismisses the claim of automatic unfair dismissal and public interest disclosure detriment. In relation to these claims the tribunal concludes that there is no evidence at all that the respondent had been motivated, or materially influenced to any extent, by the claimant’s health & safety complaints. There was an obvious business reason for the redundancy and the tribunal is satisfied that the respondent had been motivated solely by that business reason.
52. Turning to the unfair dismissal claim, the claimant complains that the respondent had been wrong to focus on the NI posts. He alleges that there should have been a pool of the four Area Managers and selection criteria. The first difficulty with that claim is that the claimant makes it plain, in cross-examination, that he was unprepared to re-locate to Great Britain as a ‘family man with four children’. There would have been no point in such a selection pool since the only three vacancies would have been in Great Britain.
53. Moving on from that, the post in Northern Ireland was completely different from the three posts in Great Britain. As the EAT pointed out in Lomond above, it is not for the tribunal to make its own subjective decision on the constitution of a selection pool, or to make its own subjective decision on a decision by the employer not to have a pool at all. Given the facts, the decision to focus on the Northern Ireland post was a decision that a reasonable employer had been entitled to take. The tribunal cannot interfere with it.
54. Furthermore, the EAT in the BMI British Midland decision (above) made it plain that an employer was entitled in the circumstances of this case to focus on the area of the business where the work had diminished. The same reasoning applies to the circumstances of the present case.
The tribunal therefore concludes that the decision of the respondent to focus on the one Northern Ireland post, and not to have a selection pool, was not unfair.
55. The claimant also alleges that the consultation requirements were faulty, in that the respondent had already made its mind up by 25 October 2013 and that the consultation had therefore not taken place while proposals were at ‘the formative stage’ as required in the Gwent County Council decision (above).
That decision did not require that consultation should not take place before the employer had considered the needs of the business and had formulated clear proposals. There would be little point on a consultation exercise if it were otherwise and indeed it would be impossible for an employer to decide with whom he should consult if he were obliged to consult before reaching a provisional conclusion.
The tribunal concludes that the consultation had been genuine although the result in relation to the Northern Ireland Area Manager post was inevitable. The claimant had been afforded reasonable access to suitable alternative posts; particularly given his refusal to either re-locate or to accept a significantly lower salary.
56. The claimant also alleges that the respondent made insufficient efforts to find alternative employment. The tribunal accepts that the respondent kept the Pound Manager post in Northern Ireland open pending a response from the claimant. Vacancy lists were not forwarded from 26 October 2014 to 19 December 2013. [However the claimant has been unable to point to any real detrimental effect since he was not willing to re-locate.
57. All the claims are therefore dismissed.
Vice President
Date and place of hearing: 3 – 5 November 2014, Belfast
Date decision recorded in register and issued to parties: