Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:   407/13

 

 

 

CLAIMANT:                      Dr Hau Tran

 

 

RESPONDENT:                University of Ulster

 

 

 

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed by the respondent and his claim to the tribunal is therefore dismissed. 

 

Constitution of Tribunal:

Employment Judge:         Employment Judge Drennan QC

Members:                        Mr H Stevenson

                                        Mr E Miller

 

Appearances:

The claimant was represented by Mr N Phillips, Barrister-at-Law, instructed by Worthingtons, Solicitors.

The respondent was represented by Mr B Mulqueen, Barrister-at-Law, instructed by Arthur Cox, Solicitors.

 

Reasons

 

1.1     The claimant presented his claim of unfair dismissal to the tribunal on 20 February 2013 and the respondent presented a response to the tribunal on 28 March 2013, in which it denied liability for the claimant’s said claim. 

 

1.2     In accordance with the tribunal’s normal procedures, a Case Management Discussion was held on 25 July 2013, as set out in the Record of Proceedings dated 25 July 2013, after which a statement of legal and factual issues was agreed by the representatives of the parties in the following terms:-

 

 

                    “Legal Issues :

 

(1)      Was the claimant unfairly dismissed contrary to Article 126 of the Employment Rights (Northern Ireland) Order 1996?

 

Factual Issues :

 

(1)      Whether there was a genuine redundancy situation in relation to the claimant’s post of lecturer in Chinese?

 

(2)      What was the reason for the claimant’s redundancy?

 

(3)      Whether the respondent conducted a genuine and meaningful consultation with the claimant in relation to his redundancy?

 

(4)      Whether the claimant was unfairly selected for redundancy or in the alternative whether the claimant was selected for redundancy for the wrong reason?

 

(5)      Whether the claimant should have been considered for either the lecturer in Chinese post within the Confucius Institute or the director of the Confucius Institute by way of suitable alternative employment?

 

(6)      Whether the claimant’s dismissal was substantially unfair and/or                                  pre-determined in light of any of the following allegations:

 

(a)      his exclusion from the discussions in relation to and the establishment of the Confucius Institute;

 

(b)      the Dean’s failure to respond or address the issues raised by the claimant in his letter of 23 November 2011;

 

(c)      the erroneous content of the Dean’s business case;

 

(d)      the lack of genuine and meaningful consultation or engagement with the claimant;

 

(e)      been advised as a matter of fact at the initial meeting of 16 March 2012 that his position was redundant and that he would not be good enough for the lecturer post within the Confucius Institute;

 

(f)       the failure to respond to the claimant’s request for information in relation to his redundancy of 26 March 2012;

 

(g)      the failure to invite the claimant to the group meeting on 30 March 2012;

 

(h)      the failure to consider the claimant’s request for deferral of his redundancy and to leave by way of voluntary redundancy in three years time;

 

(i)       the Vice-Chancellor’s failure to address the matters raised by the claimant in his letters of 17 April 2012 and 10 May 2012;

 

(j)       the failure to inform the claimant of the ‘real reasons’ for his redundancy prior to the appeal meeting, when the claimant was in effect denied of the right to appeal.

 

(7)      Whether the claimant’s redundancy was ‘indecently hasty’ given that DEL had afforded the respondent four years to bring about the overall cuts required?

 

(8)      Whether the claimant’s level of Chinese was of the requisite standard for the lecturer post within the Confucius Institute?

 

(9)      If not, whether there was sufficient time for the claimant to undertake any preparation or appropriate training/refresher training the respondent considered necessary ahead of the commencement of the Chinese Degree Course?

 

(10)    What work was available within the Chinese subject subsequent to the claimant’s compulsory redundancy and by whom has this work been carried out?

 

(11)    Should this work have been offered to the claimant?”

 

Remedy :

 

(1)      Whether the claimant should be reinstated/re-engaged to the position of lecturer in Chinese at the University of Ulster?

 

(2)      Whether the claimant is entitled to any loss of earning, and if so, how much?”

 

1.3     Although at the said Case Management Discussion on 25 July 2013, the tribunal had made various orders for the provision of a schedule of loss by the claimant, the tribunal was informed, at the commencement of the hearing, that it had not been possible, prior to this hearing, to finalise the financial loss to which the claimant might be entitled in the event of the tribunal making a finding of unfair dismissal and, in particular, in relation to the claimant’s pension loss.  In the circumstances, it was agreed that this hearing would consider and determine the respondent’s liability, if any, for the claimant’s claim of unfair dismissal and, if necessary and appropriate, in light of the tribunal’s decision on liability, the matter would be             re-listed for a hearing to consider the remedy to which the claimant was entitled on foot of the said decision on liability. 

 

1.4     Further, pursuant to the case-management directions/orders made by the tribunal at the Case Management Discussion on 25 July 2013, the parties agreed a chronology of events, for use at this hearing, which stated as follows:-

 

                    “Chronology of Events

 

                     1980            Claimant arrives in UK from Vietnam

 

1990            Claimant obtains position at University of Ulster as a lecturer in Japanese

 

2002            The teaching of Japanese at the University of Ulster is dropped owing to low demand

 

2002/2003   The claimant studies at University of Edinburgh for a one year refresher course in Chinese (NSC in Chinese Language and Literature) with the consent of the University of Ulster to avoid redundancy

 

2003            The claimant returns to Ulster from Edinburgh University

 

2005            University of Ulster’s Diploma in Chinese runs for the first time

 

2006            Professor John Gillespie (Head of School) sends Miss Yan Lui (an acquaintance of his) to the claimant and asks the claimant to take her on as a part-time language assistant

 

2008            The claimant finds out the University of Ulster had been invited by the Chinese Embassy to apply for a Confucius Institute from Hanban, an organisation funded by and reporting to the Chinese Government to support the teaching and dissemination of Chinese language and culture across the World – the application was ultimately successful

 

2009            An application process is initiated for a ‘Confucius classroom’ in conjunction with the UCD Confucius Institute

 

July 2009     University received e-mail from UCD regarding the application for Confucius classroom

 

Summer 2011        Claimant finds out (allegedly through a media announcement) that the University has won the bid for a Confucius Institute in Northern Ireland

 

23 November 2011           Claimant writes to the Dean raising his concerns about not being consulted or informed of the recent happenings in and around the teaching of Chinese

 

15 February 2012             An invitation to an open Faculty meeting for all Faculty of Arts staff is issued

 

16 March 2012                 Claimant meets with Dean and Ms Kelly McBride, Employee Relations Manager from Human Resources.  The claimant was accompanied to the meeting by Lyn Fawcett from the UCU

 

26 March 2012                 The claimant writes to the Dean asking for more specific information and, in particular, asks for confirmation in writing of the reasons for his redundancy, whether there is any alternative to dismissal and if he is made redundant when the respondent proposes to dismiss him

 

30 March 2012                 Group consultation redundancy meeting held.  The claimant was not invited but attended after finding out that the meeting was taking place from a colleague

 

April 2012                        Claimant receives ‘business case’ document from the Dean

 

17 April 2012                   Claimant writes to the Vice-Chancellor of the University of Ulster, Professor Richard Barnett, and requests a meeting to discuss his redundancy

 

27 April 2012                   UCU, the claimant’s union, writes to the               Vice-Chancellor to register its dispute concerning the University’s decision to proceed with compulsory redundancies when DEL had given the University four years to bring about the cuts

 

 4 May 2012                     Claimant attends another consultation meeting with the Dean

 

23 May 2012                    Claimant attends another consultation meeting with the Dean

 

23 May 2012                    Claimant attends meeting with Ms Denise Greatorex from HR and is informed that the redeployment post of lecturer in Chinese is ready and advised the claimant to apply

 

23 May 2012                    Claimant writes to Miss Kelly McBride in HR to request a delayed departure from his employment

 

 5 June 2012                    Claimant attends interview for his redeployment and is later informed that he was not successful

 

13 June 2012                   Claimant attends a consultation meeting with Head of School, David Barr

 

21 June 2012                   The claimant’s union representative writes to Ronnie Magill, Director of HR, to try and ascertain the reasons for the claimant’s post being declared redundant

 

17 July 2012                    Mr Magill replies and directs the claimant to the statement in the Faculty’s business case as the grounds for his redundancy, namely – the Confucius Institute, under the terms of the agreement with the Chinese authorities will be staffed with native Chinese speakers and the director will be employed directly by the Faculty.  The Institute will assume all responsibility for teaching Chinese

 

27 August 2012                Claimant attends final consultation meeting

 

August 2012                     Claimant writes to the British Association for Chinese Studies, and informs him of his belief that the University was using the establishment of a Confucius Institute as a reason for dismissing existing staff and abolishing programmes in Chinese

 

 7 September 2012           Claimant receives written notification of his redundancy effective from 7 December 2012

 

14 September 2012          Claimant submits a written appeal

 

September 2012               President of the Association for Chinese Studies writes to the Vice-Chancellor to express their concerns over the issues raised by the claimant

 

18 September 2012          Dean replies on the Vice-Chancellor’s behalf to the President of the Association for Chinese Studies and refers to ‘some misinformation’ in the President’s letter

 

19 November 2012           Appeal hearing

 

29 November 2012           Claimant receives a letter advising him that his appeal has not been successful

 

20 February 2013             Claimant lodges tribunal proceedings seeking reinstatement

 

2.1     The tribunal heard oral evidence from the claimant; and also, on behalf of the respondent, Professor Pól Ó’Dochartigh, Mr John Hunter, Professor John Gillespie, Mr Ronald Magee, Miss Kelly McBride and Dr David Barr.

 

          Having considered the evidence given to the tribunal by the parties and their witnesses, as referred to above, the documents contained in the ‘trial bundle’, as amended, to which the tribunal was referred during the course of the hearing, together with the oral and/or written submissions of the representatives, the tribunal made the following findings of fact, set out in the following sub-paragraphs, insofar as necessary and relevant for the determination of the claimant’s said claim of unfair dismissal.

 

2.2     The claimant came to the United Kingdom in or about 1980 as a refugee from Vietnam.  Prior to leaving Vietnam, he had studied classic Chinese as a subsidiary degree at the University of Saigon.  Classic Chinese involves, inter alia, a study of ancient Chinese texts, structure of ancient Chinese texts, poetry and literature and is very different from the study of modern Chinese, as used in China in everyday life.  In 1985, he obtained a BA (Hons) in Japanese and Linguistics at the University of Sheffield and, subsequently, in 1987 at the same University an MA in Information Studies.  In or about April 1990, he was appointed by the respondent (‘the University’) as a lecturer in Japanese Studies.  In 1996 he obtained a D.PHIL in Japanese Linguistics at the University. 

 

2.3     He remained as a lecturer in Japanese at the University until in or about 2002, when the teaching of Japanese, at the University, was discontinued due to ‘low demand’.  The claimant was offered a voluntary redundancy package by the University but declined.  The University had been considering, for some time, due to the growing importance of China as a country and its language in modern day life, to introduce the teaching of Chinese, at diploma level, at the University. 

 

          With this in mind, the respondent decided to re-train the claimant and, as a consequence, he was allowed paid leave to study for the MSC in Chinese Language and Literature at the University of Edinburgh, during the academic year 2002/2003.  However, as the claimant, with the knowledge and agreement of the University, did not take the full two year course and only studied the language for three months in China and did not carry out a dissertation project, as prescribed by the course, he was only able to obtain, in the circumstances, a Post Graduate Diploma from Edinburgh University in Chinese Language and Literature on or about 3 December 2003. 

 

2.4     The claimant, at no time was active in research, which resulted in no research income for the University, and he showed little or no aptitude for administrative and/or organisational duties in the University.  The claimant, on his return, from Edinburgh helped in the planning and setting up of the Diploma Course in Chinese but he did so with significant assistance from other senior academics concerned with languages and the teaching of same in the University and, in particular, in relation to the necessary evaluation process required before the commencement of the course.  The tribunal is satisfied that, throughout his evidence, the claimant has exaggerated his role in the provision of Chinese in the University.  However, the tribunal accepts that the claimant, following his course at Edinburgh University,   self-funded a small number of short visits to China in order to assist and improve his conversational skills in Chinese.  It does not accept there were as many visits as suggested by the claimant and this was a further example of his exaggeration in presenting his evidence to the tribunal.

 

2.5     In or about 2005, the University began to run its Diploma Course in Chinese.  It was recognised that it was to give a ‘taster’ to students in Chinese and was not intended to be a full-time honours degree; albeit it was at all times hoped that, in time, it might be able to develop the teaching of Chinese in the University and to offer such a degree course at the University.  Indeed this had been a longstanding aim of the University, as referred to in a strategy document in 2001.  In an e-mail of 15 December 2008, the claimant, at the request of the then Head of School of Languages and Culture, Professor Gillespie, looked at the possibilities of such a development.

 

          However, the operation and development of the subject was restricted by budgetary difficulties and concerns in running the diploma course and the low enrolment on the course.  The tribunal is satisfied that in or about 2007/2008, Professor Gillespie, along with Professor Black (PVC Research and Innovation) sought to develop an application to Hanban for a Confucius Institute at the University but decided not to proceed at that time, in light of then Hanban policy.  Hanban is, in essence, the parent body for a Confucius Institute.  It is a non-profit body, funded by and reporting to the Chinese Government, which supports the teaching and dissemination of the Chinese language and culture across the world.  Professor Gillespie and the Dean of the Faculty of Arts,                                           Professor Pól Ó’Dochartaigh were fully aware of the potential advantageous financial implications for the University if such a Confucius Institute was able to be established at the University but also for the potential for the further development of teaching Chinese at the University, especially in light of the budgetary concerns and difficulties already encountered with the Diploma Course.  The tribunal accepts that Professor Ó’Dochartaigh, in one of his earlier meetings, upon his appointment as Dean of the said Faculty in or about 2008, with Professor Gillespie, had raised serious concerns about the continuation of any teaching of Chinese at the University; but he was persuaded by Professor Gillespie, in light of the long-term strategy to develop Chinese, to explore ‘the Confucius option’.  In this context it is noted that, at the time of his appointment, Professor Ó’Dochartaigh had found he was responsible for a Faculty in long-term deficit, which the Vice-Chancellor Professor Richard Barnett had made clear to him on his appointment required to be addressed as a key priority, and it was a Faculty where too high proportion of income was spent on salaries and it would be necessary to obtain savings. 

 

2.6     The claimant was assisted, in the teaching of the Diploma Course at the University, , by part-time instructors, who were native speakers of Chinese and had the primary role in Chinese conversation for the students.  The claimant accepted, in evidence, he was not a native speaker like these part-time instructors.  However, the claimant strongly contended that, although he was not a native speaker, he was a ‘near native speaker’ (see later in this decision).  At no time material to this claim, was this accepted by the University or its witnesses.  Professor Gillespie, as Head of School, due to the said budgetary pressures, also looked for post graduate research students, who would be able to undertake native speaker conversation classes on the Diploma Course, since they were less expensive to employ on such duties.  In these circumstances, he recommended Ms Yan Liu, a native speaker of Chinese, who at that time was a PhD student in the University’s Business School, and who had been recommended to him by a colleague in the University.  Professor Gillespie had met Ms Liu through his local church in Portrush, where he lived.  This Church provided hospitality for many international students studying at the University, including Ms Liu.  In the event, Ms Liu was not suitable for the role and Professor Gillespie accepted the claimant’s judgment about her lack of experience or training in Chinese language teaching.  The tribunal found the claimant’s suggestion, in evidence, of an improper recommendation from Professor Gillespie in the above circumstances lacked credibility and had more to do with his later involvement with Ms Liu, which shall be referred to later in this decision.  In any event, the tribunal has no doubt that ultimately the decision of the choice and number of part-timers employed on such short term year-to-year contracts by the University was the decision of the Head of School; albeit the claimant was always consulted and, as seen above, in relation to Ms Liu, his recommendation not to use her was accepted by Professor Gillespie.

 

2.7     The tribunal is satisfied that, although the claimant had a role in the development from in or about 2008/2009 of an application for a Confucius classroom, as an offshoot of the Confucius Institute, already established in University College Dublin, it was not a leadership role as he suggested in evidence; albeit his role did include attendance at meetings and discussions about such a bid including some at University College Dublin.  The senior academic/managers from the University, who were involved with such a leadership role and required to take the strategic decisions were Professor Gillespie as Head of School and                                 Professor Ó’Dochartaigh, the Dean of the Faculty.  The above was again a further example of the claimant assuming to himself a greater role and importance than he had at any material time in the University.  The bid for the Confucius classroom was completed in or about June 2010.  The claimant helped with the Chinese translation of the bid for such a Confucius classroom but he was not directly involved in the writing of the terms of the bid.  Indeed, it was not considered by the University he had previously shown the necessary expertise to draft such a document.  However, the tribunal does not accept the claimant was excluded, as he sought to suggest in evidence, from any involvement with the bid and indeed played a relevant role in the bid, as indicated above.  In the event, this bid did not proceed any further in circumstances where there was little or no response from University College Dublin and no formal acknowledgement of the bid from Hanban/Confucius Institute.

 

2.8     The Vice-Chancellor of the University, Professor Richard Barnett, in Spring 2010, visited Zhejiang University of Media & Communication (‘ZUMC’) in China, with colleagues from the University Business School, which is part of the University and, in essence, is the University’s Faculty of Business, to discuss potential collaboration in the area of management and business.  During this visit, there was also discussion about, inter alia, the establishment of a Confucius Institute in the University, as well as collaboration in the area of media studies.  Ms Liu had accompanied the visit in the role of interpreter and she liaised with the                 Vice-Chancellor to take the proposal forward.  This proposal for the Confucius Institute was unconnected with the previous unsuccessful discussion about a Confucius classroom and was pursued further with the active support and enthusiasm of the Vice-Chancellor.  Following further discussions and meetings in or about November 2010, it was agreed the University would make a bid for such a Confucius Institute in the University, with the Faculty of Arts taking forward the bid in association with the Ulster Business School. 

 

2.9     The Dean, Professor Ó’Dochartaigh, asked Professor Gillespie to set up a working group, reporting to the Dean, to take forward the bid proposal, which needed to be concluded in considerable haste, as the Vice-Chancellor wanted it concluded by mid-February 2011.  On the working group, which was set up to further the bid, were Barry Quinn and Colm Murphy (who were the Heads of School in Media & Business at the University), Francis Kane, who had eight years’ experience of living in and working in Universities in China and Ms Liu.  Ms Liu was on the working group as it was acknowledged by the Dean she was a native speaker of Chinese and could assist in interpretation but also she had considerable knowledge of the workings of the Confucius Headquarters in Beijing and of Hanban and of Chinese culture.  In addition, she also had useful political contacts at Stormont in circumstances, where it was recognised ministerial involvement would be required to be involved if the bid was to be ultimately successful.  At this preparation stage, given the delicate nature of the bid and the context involved, there was only a small working group to prepare the bid.  The bid was completed in or about early 2011 and sent to the Confucius Institute Headquarters (Hanban) in Beijing shortly afterwards.  It was a high level strategic bid, not only to enhance the provision of Chinese courses at the University but also for the promotion of greater engagement with China right across Northern Ireland, including in the area of business.  There were indications from Hanban that the bid might be considered favourably and in July 2011, the Vice-Chancellor and Professor Gillespie were invited to Beijing to visit Hanban.  They were accompanied by Junior Minister in the Northern Ireland Executive, Jonathan Bell, whose presence indicated the high level political support of the Executive for the bid by the University.  Again, Ms Liu acted as interpreter on the visit. 

 

2.10    The award of the Confucius Institute to the University was agreed and signed on or about 14 July 2011 in Beijing and was the subject of an announcement to the staff of the University but also the media.  The tribunal does not accept that the claimant was at any time formally the Head of the subject (ie Chinese); but it acknowledges that, although he was formally a Lecturer Grade 3, he would have, de facto, assumed such a role in connection with the teaching of Chinese at the University at necessary internal Faculty meetings in the School of Languages and Culture and chairing, as necessary, relevant meetings and written reports about such teaching in the University, when necessary.  The tribunal was not convinced the said announcement of the successful bid was such a surprise to the claimant as he suggested, in evidence, and it accepts Professor Gillespie had indicated to him, in a brief limited conversation such a bid was in the course of preparation.  The tribunal believes, although it was necessary to keep discussions about the bid to a limited number of people, in the circumstances, due to its highly sensitive political nature, that, with hindsight, it would have been appropriate to have kept the claimant more ‘in the loop’ given his involvement with the said diploma course in Chinese up until that time, as referred to above.

 

2.11    Following the said agreement, in or about August 2011, Professor Gillespie retired as Head of School of Languages and Culture and was succeeded by Dr David Barr.  In August 2012, Dr Barr became Head of School of Modern Languages, following a restructure of the school.  Following his retirement, Professor Gillespie went on a year’s research leave and was not involved in the appointment of the Director of the Confucius Institute or the subsequent termination of the claimant’s employment with the University.

 

2.12    An extract from the media briefing of the agreement gives some indication of the importance and prestigious nature of the agreement for both the University itself but also Northern Ireland, including at a political level, and Inter-Chinese-Northern Ireland relations:-

 

                    “University signs historic agreement to establish Confucius Institute

 

                    26^th August 2011

 

The University of Ulster has been chosen by the Confucius Institute Headquarters to be home to a prestigious Institute aimed at fostering closer ties between China and Northern Ireland.

 

The Confucius Institute for Northern Ireland at the University of Ulster (‘CINIU’) would develop academic, cultural, economic and social ties between the two countries. 

 

The Institute whose Northern Ireland Headquarters will be based in Coleraine, will be part of a network of 322 Institutes in over 50 countries which promote and teach Chinese language and culture and facilitate cultural exchanges aimed at fostering trade links with China. 

 

The Institute will operate in partnership with the Zhejiang University of Media and Communications in South Eastern China.

 

The University of Ulster by Vice-Chancellor Professor Richard Barnett, who signed the agreement with Hanban, at the Confucius Institute Headquarters which is an offshoot of the Chinese Ministry of Education, said the setting up of CINIU was a seminal moment for Chinese-Northern Ireland relations.

 

...

 

Confucius Institutes not only promote the teaching of Chinese language and culture but facilitate the training of language teachers, cultural and academic exchanges and research into China’s education system, economy, the arts and society.

 

In doing so they have become a vital cog in the relationships China builds with the countries in which they operate.

 

The Confucius Institute at the University of Ulster will also act as a catalyst for the further development of business links between China and Northern Ireland.  We look forward to working with the business community to ensure that Northern Ireland gains maximum benefits from this exciting new initiative.

 

The setting up of CINIU will enable the University to significantly expand our Chinese language and culture teaching which currently includes the                    part-time diploma in Mandarin Chinese on our Belfast Campus and our BA Hons Applied Languages and Translation course.

 

...

 

CINIU has been set up with an initial five year plan and we expect by 2016 it will have made a significant contribution to strengthening Chinese-Northern Ireland relations.

 

We will achieve this by:-

 

·       Teaching of Chinese language to undergraduate students and the wider public.

 

·       Promoting an awareness of Chinese language and culture across Northern Ireland.

 

·       Acting as a focal point to promote China-related activities across Northern Ireland.

 

·       Developing and promoting teaching and research links between China and Northern Ireland, including hosting scholars, researchers and language teachers from China.

 

·       Providing services to the public and private sectors that will facilitate a deepening of economic links between China and Northern Ireland.

 

... .”

 

2.13    As stated previously, the claimant taught Chinese in the University at Diploma level.  The claimant did contribute to the Applied Languages and Translation course (‘LAN 101’), which involved teaching one hour per week for one semester covering an introduction to the Chinese language and culture and a second module, which was an extension to that module, involved three hours per week for one semester (LAN 303) where he was assisted by a native Chinese speaker.  A final year module (LAN 502), which the claimant would have been involved in, has never in fact been taught at the University.  The tribunal is satisfied, on the evidence before it and, in particular, that of Dr Barr, that it was anticipated these modules would continue to run until in or about the Summer of 2015 and it was anticipated these would be upgraded to a full Chinese module to Chinese Proficiency level (‘HSL’) which would require to be taught by staff with native or near native fluency in Mandarin Chinese.

 

          Further, the claimant had involvement in the MA Course in Professional Translation, whereby he advised on translation accuracy and technique but did not teach the language and this involved 20 hours of teaching over two semesters.  This course was run in 2010/11 and 2011/12 at the University but not subsequently.

 

          It will be necessary to refer to the claimant’s teaching of the courses LAN 101 and 303 later in this decision.

 

          In or about July 2012, the claimant was awarded by Hanban a certificate for training of teachers of Chinese in a foreign language, which was carried out by him at the Institute of Global Chinese Language, Teacher Education, East China University.

 

2.14    On 22 September 2011 all staff at the University, including the claimant, received a detailed e-mail from the Vice-Chancellor, informing them that, arising from budgetary decisions taken by the Northern Ireland Executive/Department of Employment and Learning, the Higher Education Sector, of which the University was a part, had to make ‘operational efficiencies’, equal to 14% of their block grant which for the University meant a reduction of some £10.5 million reduction in the block grant.  After outlining the consequences for the University of this reduction and some of the ways in which it was intended to achieve same by way of savings he stated, inter alia, there would require to be a reduction in the University’s core funded staffing budget of £6 million to be achieved over a four year period with Faculty staffing budgets being reduced by £4 million and central department staffing budgets being cuts by two million.  He stated each Faculty was being given target staffing budgets based on a set proportion of their total core income.  He accepted the cut of £6 million in the staffing budget would result in the loss of some 150 to 200 posts over a four year period, representing about 6% of the total workforce.  He made it clear ‘due to the current imbalance in the performance of faculties, schools and central departments we cannot rely on natural wastage alone to achieve this.  Where possible, we will continue to make use of redeployment opportunities ... facilitate further opportunities for flexible and reduced working hours ... .”

 

          The above was confirmed by the Vice-Chancellor in his report of 7 October 2011 to the University’s Council, who approved at a meeting on 7 October 2011 the steps taken by the Vice-Chancellor, as set out in his report.

 

2.15    In relation to the Faculty of Arts, the Dean, Professor Ó’Dochartaigh, in a document dated 13 February 2012, set out his proposed efficiency savings for the Faculty and the various individuals.  He stated in respect of the School of Languages and Cultures, which was a Department within the Faculty of Arts:-

 

“On 1 August 2012 this School will become two Schools, a School of Modern Languages based at Coleraine and a School of Irish Language and Literature, based at Magee and Belfast.

 

The School of Modern Languages will teach French, German and Spanish, and it is envisaged there will be 10 staff in total, 4 in French and 3 each in Spanish and German.  Chinese, currently taught in a small way, will no longer be taught in the School.  The Confucius Institute, under the terms of the agreement with the Chinese Authorities will be staffed with native Chinese Speakers [tribunal’s emphasis] (see later).  Chinese Speakers and the Director will be employed directly by the Faculty.  The Institute will assume all responsibility for teaching Chinese, including up to full degree level, the introduction of which is planned for 2013.  This will mean a reduction of 3.5 (academic) posts within this school.  This school is likely, under current planned student numbers, to operate at the high end of the staffing percentage spectrum envisaged.”

 

          He concluded:-

 

“Overall, then, the Faculty will reduce by 15.5 academic posts, out of Ca. 100, though obviously this will depend on performance in the next 3 years.  This number reflects the fact that the Faculty is currently spending

 

52% of income on salaries but will  need to reduce to the University’s target of 45.5% salary to income ratio, given the cut in the University’s block grant ... .”

 

2.16    The Dean and Mr Ronnie Magee, the University’s Director of Human Resources met on 13 February 2012 with the representatives of the relevant trade union, the University and Colleges Union (‘UCU’) to present the proposals for the Faculty of Arts in accordance with the University’s procedures which requires the proposals to be presented to the trade union for consultation and then subsequently to the staff in the affected areas.

 

          The tribunal is satisfied the UCU representatives were given a hard copy of the proposals and that they were informed of the process for engaging with staff, which the tribunal has no doubt the union was familiar with, given the number of restructuring exercises that had taken place in the University in the recent past.  The UCU was informed the Faculty in the first instance would endeavour to achieve the savings by voluntary redundancy and/or early retirement.

 

2.17    On 15 February 2013 the Dean and Mr Magee held meetings at Coleraine and Magee to which all staff, including the claimant, were invited by e-mail ‘to outline the nature of the context for the efficiency savings that will be needed in the Faculty in the light of the 14% cut in our block grant and we will also take questions that staff might have about the processes that will be involved’.  Although the claimant did not attend this meeting the tribunal had no doubt he would have been generally aware, even without going to the meeting, from talk amongst the staff, not only in the Faculty but across the University, there was to be a restructuring process in the University, in light of the sizeable reduction in the University’s black grant.  This is apparent from his e-mail dated 5 March 2012 referred to below.

 

2.18    On 28 February 2012, the claimant was invited to a meeting with the Dean and Mr Magee.  It is unfortunate that it did not expressly state the purpose of the meeting but, for reasons set out above, the tribunal finds it difficult to believe he did not have a general idea of what it was to be about.  Indeed, having accepted the invitation, by e-mail, dated 5 March 2012 the claimant said ‘it has now dawned on me that the meeting might be about the redundancy issue that everyone is talking about’ [tribunal’s emphasis].  In his e-mail he asked for confirmation of what the meeting was about and that, if it was about the redundancy he needed to be appropriately prepared and for the meeting to be at a time to send his union representative and himself.  By an e-mail dated 5 March the Dean confirmed, inter alia, the meeting was to discuss the current efficient savings required of the Faculty and agreed he could be accompanied by his trade union representative.

 

2.19    On 16 March 2012 the claimant and his trade union representative from UCU, Mr Fawcett, met with the Dean, Mrs Kelly McBride from the Human Resources Department of the University to discuss how the efficiency proposals could affect his post and the potential redundancy situation arising from the Faculty of Arts and how it was proposed to deal with it.

 

2.20    Limited/headline notes were taken of this meeting and are not verbatim.  However, the tribunal is satisfied these notes, despite their limited nature, accurately give a flavour of what was clearly discussed in much greater detail during the course of the meeting:-

 

                    “Dean

 

                    1.       Background

 

·       Following on from Group Meeting with staff.

 

·       Aware Government cuts in DEL Funding – VC Communication.

 

·       Faculty required to make efficiency savings.

 

·       Impact on Languages & Culture, English and History.

 

2.       Measures taken to date include no replacement of staff left retirement or resignation.

 

3.       Cuts 59% - salary target 45%.

 

4.       Reduction across 3 schools – reduction 4 staff in English and 4 staff in History.

 

5.       Languages – aware Confucius Institute – University now teaching Chinese to degree level – 2013.

 

6.       Impact on school of modern languages 1 Chinese lecturer post going forward 0 post.

 

                    7.       Impact of other staff within you school

 

                                        (i)       6 French staff – 4 going forward

 

                                        (ii)      3 Spanish – 3 going forward

 

                                        (iii)     0.5 Academy – 0 going forward

 

8.       New lecturer in Chinese post is within the Confucius Institute, new JD and PS for Chinese – required to teach to degree level.

 

                    Dr Tran

 

·       Taught subject for 10 years.

 

·       Only member of staff in Chinese

 

Dean

 

·       Under Confucius Institute new plan and direction for Chinese.

 

·       JD & PS for post made avail – stand used for any lecturer post within languages.

 

HR

 

Further meetings in terms of way forward and options that Dr Tran may wish to consider.

 

The tribunal is satisfied from these notes the serious financial position the University found itself was fully explained to the claimant and his trade union representative by the Dean and Mrs Kelly but, in particular, that there was to be new lecturer post in the Confucius Institute to teach Chinese to degree level.  It is equally satisfied that the claimant, as seen in the notes, pointed out what his teaching of Chinese in the University had been to that point in time; which it has to be recalled, as set out previously, was to diploma level and not to degree level.  However the claimant, in evidence, suggested that the meeting had gone much further than a general outline discussion, as outlined above and as set out in the notes. He said                           Professor Ó’Dochartaigh and Mrs McBride had told him not only that his post was redundant but also that he was not good enough for the new lecturer position at the Confucius Institute.  Clearly, if this was said it is not reflected in the minutes of the meeting and was a very serious allegation in the context of the process but also the nature of the meeting.  Mr Fawcett, a senior trade union representative, was not called as a witness to support the allegation, which was strongly rejected by both the Dean and Mrs McBride.  The tribunal would have expected Mr Fawcett, in the circumstances, to have been called as a witness to support such a serious allegation.  In the case of Lynch  v  Ministry of Defence [1983] NI 216, Hutton J, as he then was, relied on the dicta in the case of O’Donnell  v  Reichard [1975] VR 916 at Page 929:-

 

“ ... where a party without explanation fails to call as a witness a person whom he might reasonably be expected to call, if that person’s evidence would be favourable to him, then although the jury may not treat as evidence what they may, as a matter of speculation think that that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that that person’s evidence would not have helped that person’s case; if the jury draw that inference, then they may properly take it into account against the party in question for the purposes namely (a) in deciding whether to accept any particular evidence which has in fact been given either for or against that person, and which relates to a matter with respect to which the person not called as a witness could have spoken, and (b) in deciding whether to draw inferences of fact which are open to them upon evidence, which has been given, again in relation to matters with respect to which the person not called as a witness could have spoken.”

 

No reason was given for the failure to call Mr Fawcett.  The tribunal found the rejection by the Dean and Mrs McBride of this allegation credible and convincing.  The tribunal believes there may have been some discussion about the claimant’s assertion, as seen in the notes, about his involvement in Chinese in the University which, as referred to previously, the tribunal found to be exaggerated, and the lecturer post was to teach Chinese to degree level not diploma level and about the differences between the two, the tribunal does not accept either the Dean or Mrs McBride said what was alleged by the claimant.  Indeed, the tribunal believes the claimant has sought to take what was said in the course of a general discussion and spin and twist it in order to support his claim.  This allegation was not accepted by the tribunal and, by making the allegation in such circumstances, it raised serious concerns for the tribunal about the claimant’s whole credibility in this matter and the accuracy of his evidence to the tribunal. 

 

2.21    On 30 March 2012 there was a group consultation meeting for staff in French, German and Spanish, all subjects where there were potential redundancies required, and where there was a potential pool of more than one member of staff.  The claimant, as he was in a pool of one, was invited to an individual meeting (see later).

 

          However, the claimant attended this meeting; albeit it was not directly related to him.  The claimant, in evidence, suggested that in relation to a question by him to the Dean regarding the postponement of the claimant’s redundancy, Professor Ó’Dochartaigh had stated the decision had been made.  Again this allegation was strongly rejected by the Dean.  The tribunal can accept that the Dean may have made it clear to the claimant, in the course of this discussion, it had been decided by the University to proceed with the whole process to achieve the efficiency savings required; but it does not accept he said a decision had been made to make the claimant redundant.  Again, the tribunal believes this is a further example of the claimant twisting/spinning or taking out of context something that was said in order to support his claim.  Again, no members of staff, who were present at this meeting and would have heard, if it had been said, what the claimant has alleged (see further Lynch  v  Ministry of Defence, referred to previously) gave evidence.  This also raised even further concerns for the tribunal about his credibility and more importantly the accuracy of his recollection of what took place during this whole process.

 

2.22    On 17 April 2012 the claimant wrote to the Vice-Chancellor.  It is written in very strong emotional and intemperate language, opening:-

 

“My name is Dr Hau Tran, Head of Chinese Subject and a candidate for redundancy in our current Efficiency Savings Exercise.  I am writing to you in your capacity as the line manager of my Dean Prof PÓL Ó’Dochartaigh, concerning Prof Ó’Dochartaigh’s abusive use of the Efficiency Savings Exercise, his betrayal of public trust in the Confucius Institute Affairs, and consequently his destruction of our chance for the Chinese subject at the University.”

 

Indeed the letter makes a number of very serious strong personal attacks on the Dean, for which the tribunal found no evidence for same.

 

He suggests, in the course of his letter to the Vice-Chancellor, the Dean was the initiator of the application to Hanban for the Confucius Institute.  This was not correct, as seen before, since his only involvement previously had been in his application for the Confucius Classroom, which was very different to what ultimately took place.  In the tribunal’s view, whilst understanding the claimant was seeking to prevent his redundancy, has sought to exaggerate his role in the University, knowing full well, as he later admitted in cross-examination, he was not in fact the initiator, as he described in his letter.  But yet, he was prepared to make such an assertion in his letter to the Vice-Chancellor.

 

He went on to accuse the Dean of trying to mislead the Chinese on the funding and he alleged he intended to use the fund for very different purposes and not genuinely for what it was intended.  Elsewhere he described him as ‘a mindless bully’; that the Dean ‘had seen fit to invent an artificial situation to eliminate the only experienced member of staff currently available for the task, leaving Chinese completely exposed to manipulation by those whose real interest lies elsewhere and not in the proper development of the subject.  It will be necessary to refer elsewhere in this decision to the claimant’s assertion of the lack of good faith by the Dean together with others in this whole process – of which the attacks on the Dean, set out in this letter, are not dissimilar.

 

The Vice-Chancellor replied by letter dated 1 May 2012 and expressly noted the claimant was not the initiator of the application to Hanban for the Confucius Institute.  He did not deal with the various personal attacks made by the claimant against the Dean in his letter but noted that, since the claimant had sent the letter and in a further letter dated 17 May 2012 to the claimant, he had decided not to become involved in faculty processes relating to individual members of staff given the agreed known resources/procedures which were in use as part of the faculty restructuring plan.

 

2.22    In an e-mail dated 26 April 2012, the claimant was invited to an individual meeting, as part of the consultation process on 4 May 2012, with the Dean,                           Professor Pól Ó’Dochartaigh and Mrs K McBride, from Human Resources Department of the University.  At the meeting the claimant was accompanied by his trade union representative, Mr Ted Leath.  Again limited/headline notes were taken of this meeting and were not verbatim.  However the tribunal, as before, accepts these notes, despite their limited nature, give an accurate flavour/picture of what was discussed in greater detail at the meeting. 

 

2.23    Insofar as relevant, the notes of the meeting stated as follows:-

 

                    “Efficiency Meeting re Faculty of Arts Restructure Meeting

 

                    Date 04/05/12

 

                    ...

 

                    Dean

 

·       Aware DEL Funding cuts.

 

·       Faculty required to reduce numbers.

 

·       Reduction within school design/English/History and languages.

 

·       Aware transfer of teaching of Chinese to Confucius Institute

 

·       New post will be made available via redeployment.

 

·       Going forward no longer be post of lecturer Chinese in School of Modern Languages.

 

·       New post required to teach Chinese to degree level.

 

·       Advertised with normal spec that would be required of any lecturer post with languages.

 

·       Hope to have JD and PS available next week.

 

HR

 

·       Outlined redeployment register.

 

·       Advised to contact DG (HR) access register.

 

·       Pool of 1 – in Chinese.

 

·       Voluntary redundancy figures issued – advised deadline for accept 31/5/12.

 

·       Advised that at the voluntary stage and hoped necessary efficiency savings will be achieved by 31/5/12 if not possible the University will enact the redundancy policy and procedure in full.

 

·       USS Pension quote – explained left pension accrued to date no penalty to Dr Tran.

 

In particular, it was again explained to the claimant, as part of the consultation exercise being carried out by the University, the financial background to the need for the faculty to reduce staffing numbers and about the new lecturer post to degree level in the Confucius Institute, which would have the normal job description and personnel specification required for any lecturer post in the University.  The claimant was told by the Human Resources of the voluntary redundancy packages on offer and the need for acceptance by staff, including the claimant, by the end of May, and the existence of the redeployment register.  He was also told that, if by use of the voluntary redundancy process, the University did not achieve the necessary efficiency savings would have to enact its redundancy policy and procedure in full. 

 

2.24    The claimant at the meeting on 16 May 2012, as referred to previously, was told of the redeployment register which was set up under the redeployment policy of the University which allowed members of staff to be interviewed for any particular position available on the register prior to any formal interview process.  The tribunal noted the claimant was able to sign up to the register by the Human Resources Department.  It was necessary for him to have done so before he could be considered for such a post under the said procedure. 

 

          It is provided under the redeployment policy/procedure as follows, insofar as relevant and material as set out, in a summary memorandum produced by the University:-

 

“Staff who are identified as in a ‘post at risk of redundancy’ are offered the opportunity of seeing posts which the University makes available as redeployment opportunities.

 

These posts are restricted to allow only those who are in posts at risk (either on fixed term contracts coming to an end or permanent posts which are at risk due to restructuring) the opportunity of applying for posts before they are more widely advertised across the University.

 

...

 

The University does not normally shortlist applications received via deployment and instead will try to guarantee staff an interview (the exception would be if a lot of people applied for a post at the redeployment stage in which case we would shortlist down to a reasonable number to see).

 

Staff are advised that when they apply for a post via redeployment the interview panel will consider whether or not they meet the essential criteria for the post as outlined in the personnel specification, but will also consider whether they could be trained to perform the role within a reasonable period of time, if there are any essential skills or experiences they do not hold.

 

Finally if an applicant is successful in their application for a post via redeployment there is a 12 week period to assess the suitability for the role.”

 

Under the University’s written Redundancy Policy and Procedure there is, as set out below, some differences in terminology – but the tribunal did not consider these were of any material significance for the purposes of the claimant’s claims.  It accepted it was this latter document which governed the policy/procedure for redeployment, insofar as relevant, and not the memorandum for these purposes.  The memorandum was a document for everyday use by staff operating the said register.

 

          “4.2

 

          Redeployment

 

Redeployment, if possible and were appropriate, will be utilised to avoid/ minimise redundancy.  All suitable vacancies within the University will be ‘ring fenced’ in order they may be offered to those individual whose skills and experience are compatible with the person specification and job requirements of the vacant post and who otherwise would be made redundant.  The University’s Human Resources Department will inform such individuals of all relevant vacancies within the University.

 

A redeployed member of staff will be given reasonable appropriate training where necessary to enable him/her to perform the duties of the new job.

 

... .”

 

The tribunal is satisfied, under the said procedure, as set out above, the University was entitled to shortlist if there were sufficient candidates and to interview in order to assess whether the employee had the necessary compatibility for the post on the register for which he/she had applied.

 

As the claimant was the only teacher of Chinese in the University – albeit to diploma level, as seen before, he was clearly at risk of redundancy and therefore required to be considered under the redeployment procedure/policy – which is what occurred, as set out elsewhere in this decision.

 

2.25    It is of interest to note, and is indicative of his attitude to the process that, although the claimant was aware of the position of a two year fixed term lecturer position in Linguistics from 1 August 2012 until 31 December 2014, the claimant made no attempt to apply for same, although, as he sought to emphasise, during the course of his evidence, his D Phil in Japanese Linguistics.  Indeed, he showed no interest in any other position on the register, other than the post of lecturer in Chinese to degree level.

 

2.26    The claimant, having applied, on 5 June 2012 was interviewed for the said position of lecturer in Chinese under the said redeployment procedure/policy.  He was the only ‘candidate’ under the redeployment procedure and was properly given an interview.

 

          After interview, the claimant was informed by e-mail dated 5 June 2012:-

 

“Unfortunately I have to advise you that your application was unsuccessful.  The panel considered that you did not meet some of the essential criteria for this position.  The panel also made a supplementary assessment of whether you could be trained to meet that essential criteria and assessed that could not be achieved within a reasonable period of time”.

 

By e-mail, dated 6 June 2012, the claimant sought clarification of this decision and he was told by e-mail of 7 June 2012:-

 

“Unfortunately the panel’s view was that you did not meet the essential requirements of the personnel specification across the criteria listed.  The panel noted you as below specification in each of the given areas.  On discussion of this, the panel’s view was that it would not be possible to provide training to meet this shortfall within a reasonable timeframe for the post in question.”

 

2.7     The essential criteria were as follows:-

 

                    “Educational and Professional

 

                    Qualifications:-

 

First or Upper Second Class Honours Degree in Mandarin Chinese or equivalent

 

                    Previous Experience/Training:-

 

Experience of an proficiency in tendering and assessment in Mandarin Chinese language to final degree level

 

An understanding of how research will inform teaching development

 

Evidence of an ability to plan and meet deadlines

 

                    Job Related Activities:-

 

Evidence of native or new native competency in both English and Mandarin Chinese with a vocabulary and fluency appropriate to the nature of the post and the expectations of the students

 

Evidence of an ability to contribute to a range of undergraduate teaching in Mandarin Chinese language and area studies from ab initio through to final degree level

 

Understanding of the requirements of teaching research and academic enterprise

 

                    Interpersonal skills:-

 

Good oral and written communication skills in both English and Mandarin Chinese

 

Able to communicate clearly and effectively to a diverse range of audiences and stakeholders

 

                    Research and Analogous Activities:-

 

Evidence of research outputs in an appropriate area of Chinese Studies such as language literature culture area studies which demonstrate an ability to research outputs for inclusion in future national research assessment exercises”

 

2.28    As seen, these criteria set out, in particular, the necessity to have native or near native competency in both English and Mandarin Chinese.  The terms and conditions under which Chinese was to be taught at the University to degree level, as referred to previously, were agreed between the University and the Chinese authorities and included, in particular, this criteria of native or near native competence.

 

          The panel consisted of Professor Ó’Dochartaigh, Dr Barr, Professor Lyon,                   Mr F Kane and Ms Creatorex (from HR) and Ms Liu (in attendance).  By this time, Ms Liu had been appointed Director of the Confucius Institute.  This post was advertised internally and externally in December 2011.  She was the only shortlisted candidate and after interview was subsequently appointed in early 2014.  Significantly, the claimant did not apply.  The claimant, in the tribunal’s view, even if he had applied, would not have been successful as he did not satisfy one of the essential requirements for the Director of the post, namely of fluency in both English and Mandarin Chinese, which the tribunal is satisfied he did not have.  Indeed the tribunal is satisfied the claimant was fully aware of the recruitment exercise for the post, having been advertised internally and externally, but knowing he did not have the necessary fluency, did not therefore apply for the post at the time.  It is therefore disingenuous on his part to suggest, in the course of these proceedings that this was alternative employment which should have been offered to him.  Further, he has sought, despite knowing the foregoing, to seek to place a doubt on the appointment process for that post, which he knows not to be true.  Indeed the tribunal is satisfied he has done so because Ms Liu, as seen later, was involved in the rejection of his candidature under the redeployment process for the post of lecturer in Chinese in the Confucius Institute.  The tribunal further rejects the claimant’s suggestion that Ms Liu was appointed to the post because of Professor Gillespie’s acquaintance of her through his Church as set out previously or she had been a member of the University’s delegation to China, which resulted in the setting up of the Confucius Institute.  Her involvement in the delegation was largely due to her acknowledged fluency in the Chinese language.  Of course, this fluency was essential for the post, which given the nature and prestige of the post was not surprising and, in the tribunal’s opinion, did not lend weight to the claimant’s allegation that the said criteria was inserted specifically to reflect her background.  Further, in the circumstances, the tribunal is satisfied the Director’s post was properly filled under the relevant recruitment/appointments procedure and at no time was relevant to any attempt to find alternative employment for the claimant in the event of redundancy.

 

2.29    The tribunal is satisfied that, given the lack of knowledge and expertise of the members of the panel, other than Ms Liu and Mr Kane, it therefore had to rely on their knowledge and expertise in determining the claimant’s ability to speak Mandarin Chinese.  In essence, they were expert members of the panel.  It is satisfied both were properly able to do so.  Ms Liu (who was in attendance on the panel, for her expertise in the subject) was a native Mandarin speaker.  Mr Kane was fluent in Mandarin Chinese, and had spent nearly six years working and living in China.  Their recommendation to the remaining members of the panel, which was accepted by them, was that the claimant did not have the necessary skills in the language to be a near native Mandarin Chinese speaker.  In this context, the tribunal noted that the claimant himself, in his witness statement, did not so describe himself, albeit he knew of the significance of the term in relation to his application for the post.  He stated he was ‘fairly fluent’ in Mandarin Chinese.  In his application to the tribunal, he stated that his spoken Chinese would not be just as strong as his written skills as he needed more opportunities to get speaking practice.  In the circumstances, the tribunal could see there was strong evidence for the panel’s conclusion he was not a near native speaker of Mandarin Chinese, which was central to the essential criteria for the post.

 

          The tribunal is satisfied from the detailed notes of the interview, this was very carefully considered, in particular, by the ‘expert’ members of the panel.  Following a detailed presentation by the claimant and series of questions put to the claimant by the panel, in particular, the experts.  The members of the panel, in particular, following the guidance of the ‘expert’ members, did not consider it would be possible for the claimant to be trained to an acceptable level within a reasonable timeframe.  Ms Liu concluded he would not reach the required level in three – six months and this was accepted by the panel after discussion.  Given the expertise of Ms Liu and Mr Kane the tribunal did not consider such a decision could be the subject of valid criticism by the claimant was a reasonable conclusion to be reached by the panel in the circumstances.  It may be others might have taken a different view but the tribunal was satisfied this was a considered judgment, based on the expertise of the experts.

 

2.30    Further, the claimant was not found to have some other essential criteria for the post.  For example, he did not have a first or upper second class honours degree in Mandarin Chinese or equivalent.  He did not have experience in teaching assessment in Mandarin Chinese to final degree level and did not have evidence of research outputs in an appropriate area of Chinese studies.  Indeed, as seen previously, there was no evidence of any recent such research activity in the University by the claimant. 

 

          The tribunal noted Ms Liu found, as set out in the notes, the claimant, for example, did not understand her even when she slowed down at his request.  He did not answer the questions asked and his Mandarin was not to a quality needed for a lecturer to teach at final degree level.

 

2.31    The panel in its formal report of the redeployment interview found the claimant did not meet the essential criteria and it was not possible to train the applicant in a reasonable time period and stated, in particular,:-

 

“The candidate failed to demonstrate an appropriate [sic] level of skills and experience [sic], failing to meet the requirements of the personnel specification.  In particular, his ability in the use of Mandarin was insufficient for the requirements of the post.”             

 

2.32    On 15 June 2012 the claimant had a meeting with his trade union representative, Dr Barr, the Head of School and Mrs McBride from HR.  He was formally told at the meeting, inter alia, he was potentially at risk of redundancy.  It was agreed as he was going to China on a pre-arranged trip from 29 June 2012 to 18 August 2012 a further consultation meeting would take place on 27 August 2012, upon his return and the process would be adjourned until then.  He indicated he hoped the trip might result in employment for him elsewhere. 

 

          This was followed by a formal letter in writing to the claimant on 19 June 2012, which stated, inter alia:-

 

“ ... As you will be aware, as part of the ongoing consultation process, a number of meetings commencing on 5 April 2012, have been held with both yourself and UCU at which you were advised of the impact of the review on your post of lecturer.  You were also given the opportunity to have access to the University’s redeployment register to assist in seeking alternative employment and you continue to have access to same.

 

As advised at the individual consultation meeting your post is provisionally at risk of redundancy as the Faculty Management Team has recommended the following efficiencies in terms of academic staff within the School of Languages and Culture.

 

                    Reduction of 3.5 Academic posts (including one academic post in Chinese)

 

At our meeting on 15 June 2012 it was indicated this reduction has not been achieved by voluntary means and in order to achieve the reduction required, as previously advised to you and the trade union, the University will now enact compulsory redundancy in line with the University’s Redundancy Policy and Procedure.  You are also advised that you are in a pool of one from which the University proposes to make one post redundant.  At this point, your post is therefore at risk of redundancy.  Whilst your post is currently at risk you should not treat this as formal notice of redundancy.

 

... Only following this meting [on 27 August 2012] should your circumstances not have changed, and you receive a separate letter confirming that your employment is to be terminated on the grounds of redundancy, advising you of your entitlement to contractual notice and statutory redundancy pay and offering you the right to appeal.  Please note that unless and until you receive such a letter, no decision has been taken on the continuation of your employment with the University ... .”

 

2.33    At the various stages, the claimant was sent, at his request, various calculations if the claimant decided to take voluntary redundancy but, ultimately he decided not to accept same; and it is not necessary to set out relevant details of the voluntary redundancy package outlined to him by the University – save to note that these were more generous than the terms an employee is entitled to under the statutory redundancy scheme.

 

2.34    On 21 June 2012, the Human Resources Director, Mr Magee, was sent a letter by Mr J McKeown, the Regional Official of the UCU, in preparation for the meeting on 27 August 2012, which Mr McKeown stated he intended to attend and raising questions about the whole process to date.  Mr Magee replied in detail to the questions raised in a letter dated 17 July 2012, in which he stated, inter alia:-

 

“The decision on the post in Chinese is covered in the Faculty’s proposals (which are attached to the letter) and staff were consulted.  The proposals for the efficiencies from Faculties/Departments have been approved and as I indicate above Arts has implemented its proposals and achieved all of these thus far through the voluntary process, the proposal for Chinese is the only remaining area of Arts proposals still to be implemented hence the meetings with Dr Tran and his representatives.  As such this is an operational matter and the University’s Redundancy Policy/Procedure is the process by which the matter is progressed.

 

...

 

The decision under the efficiency plan to discontinue the diploma therefore directly impacts Dr Tran’s post.

 

...

 

As requested I attach a copy of the Job Description and Personnel Specification for the post of lecturer in Chinese for the Confucius Institute.  This vacancy was initially open to employees on the University’s Redeployment Register.  Dr Tran was the only applicant who responded to the ... Trawl.  Following Dr Tran’s unsuccessful interview the vacancy has been publicly advertised and will close on 19 July 2012.

 

The interviewing panel assessed Dr Tran did not meet a number of the essential criteria ...

 

... The University operates a Redeployment Register for staff whose posts are at risk.  Dr Tran as a redeployee is able to access all redeployment opportunities through the register.  To date, Dr Tran has only expressed interest in and applied for one vacancy ie the lecturing post in Chinese with the Confucius Institute

 

... .”

 

          It is to be noted that neither Mr McKeown, nor Mr Fawcett or Mr Leath, who were present as his trade union representative at the meetings referred to previously were called as witnesses by the claimant.  The tribunal found this gave further weight to its conclusions as to the accuracy of the notes of these meetings (see also later). 

 

2.35    In this decision, the tribunal has already referred to the provisions relating to redeployment set out in the University’s Redundancy Policy and Procedures.  It provides for consultation procedures.  In view of the tribunal findings, as set out in this decision, it is not necessary to set them out in detail.  The tribunal is satisfied these procedures were complied with and this was not strongly challenged by the claimant’s representative in the course of the hearing.

 

          In relation to Compulsory Redundancy it is stated, insofar as relevant and material:-

 

“After careful consideration and consultation on all other measures available, it may still be that the only appropriate means of effectively reducing staff is by compulsory redundancy. 

 

After consultation ... the proposals will then be finalised and implemented to enable identification of individuals by application of the selection criteria.  Individuals identified and selected will then be consulted about their proposed redundancy including being given notification of their calculated entitlement to a redundancy payment and being consulted about any possible redeployment/retraining opportunities ... .”

 

In relation to appeal it is stated, insofar as relevant and material:-

 

“All staff served with a notice of dismissal will have the right of appeal.  Appeals should be lodged, in writing ... stating the full grounds for the appeal.”

 

At the meeting on 27 August 2012, attended by the claimant and Mr McKeown, with Dr Barr and Mrs McBride, it is again apparent from the limited notes, which the tribunal accepts are an accurate reflection of a full and detailed discussion on the various matters set out therein including:-

 

          “HR

 

          ...

 

·       Meeting today to review Dr Tran situation

 

·       Last time met agreed that HOS support visit and postpone this meeting

 

·       Dr Tran hopeful that may have resulted in opportunity for him

 

Dr Tran

 

·       Trip to China was beneficial

 

·       No development in other employment as result trip

 

HR

 

University position has not changed

 

Purpose of today’s meeting is to review the situation and unfortunately as there has been [sic] no further developments and opportunities through redeployment move to compulsory redundancy

 

Formally write to Dr Tran following today’s meeting – serve 3 months notice

 

Advise of right to appeal

 

JMcK

 

UCU written to Mr Magee – is the University still moving to compulsory

 

HR

 

Confirm that is the case but will check

 

JMcK

 

Query over why not appointed to lecturer post within Chinese – considerable experience and expertise

 

HOS

 

Unfortunately panel deemed Dr Tran not appointable and level of Chinese not of standard required

 

HR

 

Any queries in terms of redeployment interview and outcome should be addressed to ... Head of Recruitment

 

JMcK

 

Query over business rationale – states required to be a native Chinese speaker

 

HOS

 

Refer to PS for post and this criteria that Dr Tran was assessed against.  Not required to be native speaker.  Unfortunately 2 expert members on panel who deemed that Dr Tran’s Chinese was not of standard required

 

HR

 

Standard PS that would be used for all lecturers [sic] of languages and this would have been used for this post

 

JMcK

 

Query over steps UU has taken to help Dr Tran

 

HR

 

Extended date of second consultation to facilitate Dr Tran China trip

 

Redeployment register – ask DG (HR) to contact Dr Tran and take through how register works

 

Recap write formally to Dr Tran.”

 

2.36    It is significant the claimant did not raise any queries with Head of Recruitment re the outcome of the redeployment interview for the lecturer post, where he was unsuccessful, as set out before.  The Human Resources representative on 29 August 2012

 

again discussed the redeployment register as promised at the meeting but the claimant did not express any interest in any other position on the register.

 

2.37    It is correct in the document of 13 February 2012, referred to previously, Professor Ó’Dochartaigh did state, in relation to the Faculty of Arts efficiency savings in the School of Languages and Culture:-

 

“ ... The Confucius Institute, under the terms of the agreement with the Chinese Authorities will be staffed with native Chinese speakers.”

[Tribunal’s emphasis]

 

This reference to native speakers by the Dean was not correct and should have referred to native or near native competency.  Indeed the Professor fully accepted to the tribunal this was in error.  It is unfortunate this error was not spelt out in writing to the claimant at an earlier stage in the process by him, as it might have avoided some of the issues that have arisen in this case.  The claimant, as he readily admitted, was not a native speaker.  As seen before, a crucial issue in this matter related to whether the claimant was of near native competency.  The tribunal was satisfied that this was a genuine error made by Professor Ó’Dochartaigh but, significantly, it had no relevance to the claim of the claimant.  In particular, it is satisfied that the relevant essential criteria for the post of lecturer, for which he was interviewed, required native or near native competence in Mandarin Chinese and that he was examined on the latter during the interview by the ‘expert’ panel members and found not to be of that standard.  Indeed, as shall appear elsewhere in this decision, this issue was expressly addressed on the claimant’s appeal from the decision to make his post redundant.

 

2.38    On 7 September 2012, the claimant was formally written to by the University.  The history of the process to date, as referred to in the previous sub-paragraphs of this decision, was outlined by Mrs McBride and it is therefore not necessary to refer to the letter in detail; save to note, in conclusion, he was informed:-

 

“I must therefore advise that your post of lecturer is being declared redundant.  I am therefore giving you 3 months notice that your employment with the University will terminate by reason of redundancy on the 7 December 2012.2

 

He was also informed in the letter of his right of appeal and of the details of his statutory redundancy payment, which calculation was not in dispute in these proceedings.

 

2.39    The claimant by his letter of 14 September 2012 appealed the said decision.  An appeal hearing was conducted by a panel consisting of Professor Moran, Professor Fairley and by an independent chair, Mr John Hunter, a retired former senior civil servant.  Mr McKeown accompanied the claimant to the appeal hearing and took part in same on behalf of the claimant.

 

          The tribunal is satisfied the appeal hearing held on 19 November 2012 was a lengthy and detailed hearing at which Mr McKeown and the claimant were given a full opportunity to raise the issues set out in the letter of appeal of the claimant.  Mrs McBride and Ms D Greatorex and Professor Ó’Dochartaigh were also able to address the panel on the issues raised.

 

          At the conclusion of the appeal hearing, the panel took time to reach its decision.  Mr Hunter wrote to the claimant on 29 November 2012, setting out in considerable detail its decision on all of the issues raised by the claimant before concluding the appeal was not upheld.

 

          Insofar as relevant and material to this matter the letter stated:-

 

“ ... At the appeal hearing, your trade union representative, Mr McKeown, indicated that he was not contesting the need for such reduction nor indeed for the management to address it ...

 

... At the appeal hearing on 19 November, the Dean conceded the wording used in the document titled ‘Faculty of Arts Efficiency Savings’ had been unfortunate and it had not been the intention to imply that the Institute would be exclusively staffed by native Chinese speakers.  Rather the Dean explained that the reason for your redundancy was clear in that you were unable to meet the requirements of the post going forward in terms of being able to lead Chinese to degree level and beyond ... It is also clear that as early as the consultation meeting held with you on 16 March 2012, as illustrated by the minutes of that meeting ... the reason as to why your post was being declared redundant was that the University would in future be teaching Chinese to degree level and that a new lecturer in Chinese was being created by the University to fulfil that need ...

 

Again the fact you were considered by the University under redeployment for the newly created post of Chinese which did not stipulate that you must be a

 

native Chinese speaker would in itself demonstrate that no such agreement could have existed ...

 

... you state there has been no reduction in requirement for the work I currently undertake and that the work associated I hold with the post is not redundant.  It is clear from evidence provided to the Appeal Panel, that whilst it is the intention to continue with aspects of the existing provision, the intention in introducing the Confucius Institute was to enhance the provision through strengthening the capacity of the University to offer Chinese language education up to degree level.

 

...

 

The need going forward is, therefore, to teach at higher level than ever before and whilst elements of the existing provision will continue, the University would contend that you do not have the level of Chinese to teach students at degree level.  Clearly given the need for staffing reductions, it would not have been an option for the University to employ two individuals, one to teach at a lower level and the other at degree level ...

 

... It was clearly not viable, from an economic point of view and particularly in light of the need to review provision across the Faculty in order to meet the required efficiency savings to continue to run the Diploma and although it is the intention to re-introduce a Diploma, it is clear this will be an integral part of a wider and enhanced provision for Chinese Language Studies at degree level on the part of the University ...

 

...

 

You argue it is not a genuine redundancy ‘in a subject where there is only one member of staff especially when the subject is being planned for expansion  ...  In other cases, as with Chinese, where there is only one member of staff effectively forms the pool.  As you indicate, the plan is not only to expand but also importantly, to enhance the existing provision up to full degree level and, therefore, the Faculty has had to consider within limited resources, the business needs going forward in terms of what is needed to deliver an enhanced provision ... it should have been obvious from the requirements of the post for which you were considered under redeployment that the level of expertise within the Faculty required going forward was significantly different from that which existed in the past.  The Appeal Panel therefore believes that a genuine redundancy does exist.

 

...

 

The evidence shows that the interview panel assessed you as not having met a significant number of essential criteria for the post, something which there is also no evidence to suggest you have ever challenged and the post was therefore deemed to be clearly not suitable for you.  On the basis of this assessment, the interview panel also judged it would not have been possible for you to have been trained to the requirements of the new role within a reasonable timeframe.  It is therefore clear to the Appeal Panel from the evidence provided that a judgment was made by the interview panel on your suitability for the post, taking into account that this was a new role and the decision had to be forward looking, centred on your ability to perform the requirements of the new role.  It is therefore incorrect to claim that the University has made no attempt to consider suitable alternative employment ... .”

 

In the letter the Appeal Panel rejected in detail the ground of appeal by the claimant that the redundancy had been contrived by the Dean of the Faculty so as to dismiss him from his post and found no evidence to support this allegation; albeit it did criticise Professor Ó’Dochartaigh for failing to reply to certain correspondence as it also did in relation to his use of reference to native speakers in the Faculty of Arts Efficiency Savings document.  It also found no grounds for finding that the Professor was not a suitable person to be on the interview panel given his position as Dean and the importance of the post to the Confucius Institute.  It also found no evidence the interview was conducted in anything other than an impartial and professional manner and that objective reasons existed for not offering the claimant the said post.

 

In particular, the Appeal Panel noted the necessity for the successful candidate for the post of lecturer to have native or near native competency in Mandarin Chinese and English.  The appeal panel accepted this was included because of the need for a person in such a post, to have such competency, as with all other languages taught in the University and similar institutions.  The Appeal Panel, when considering this issue noted the claimant was not a native speaker and had always taught in association with a native speaker.  It concluded on this issue:-

 

“The Appeal Panel closely considered whether, after exhausting all voluntary means, the University had failed to follow its statutes by failing to refer to the Council of the University the claimant’s redundancy in order to seek the authority of the Council to proceed to compulsory redundancy.  After referring to the documents relating to the Council meeting of 7 October 2011 (see before), it was satisfied the University had an ‘all encompassing approval from Council to proceed to effect the efficiencies by whatever means required and it was not necessary to revert to Council on the circumstances of individual redundancies.”

 

2.40    As seen above, the Appeal Panel rejected the claimant’s allegation that Professor Ó’Dochartaigh had contrived to get the claimant dismissed by use of redundancy.  Indeed, in the course of the hearing, before the tribunal, the claimant sought to widen this allegation beyond the Dean and to suggest he had in some way worked with others, as part of this process, in order to ensure his dismissal.  Firstly, there was no such evidence of him or others doing so.  Secondly, if it was correct, it might have been expected to have appeared in his witness statement or in his application to the tribunal.  It did not.  He did not raise such an allegation in any of the various consultation meetings, which one might have expected him to do.  He was accompanied at these meetings by his trade union representatives but, again, none of them are noted to have made such a suggestion.  As seen before none of the claimant’s trade union representatives gave evidence to the tribunal to support any such allegation.  In the circumstances, the tribunal could find no evidence for this serious allegation which appeared to the tribunal to have something made up by him in the course of his evidence in a misguided attempt to add weight to his claim – whereas, for the tribunal it strengthened the tribunal’s concerns about the claimant’s credibility and the accuracy of his evidence.

 

2.41    Dr Barr acknowledged in evidence to the tribunal that the teaching of the LAN 101 and LAN 303 courses, to which reference was made previously, was intended to have been undertaken by the new lecturer in Chinese in the Confucius Institute with support from Hanban teachers from China as part of the restructuring arrangements following the redundancy of the post previously held by the claimant.  Unfortunately it was not possible for the appointment of the new lecturer to take place before the start of the 2012/2013 academic year.  This was not surprising given the interview of the claimant under the redeployment procedure did not take place until June 2012 and the general recruitment process did not take place until July 2012, following the claimant’s unsuccessful interview for the post.  The teaching of these courses was initially delayed to enable the arrival of new staff.  However, when it became apparent in Week 6 of Semester 1 that the teachers would not be in place during the semester and given student concerns, Dr Barr, as Head of School, decided an ‘emergency’ situation had arisen and ‘exceptional’ measures had to be taken.  In these circumstances, the University decided to employ two part-time lecturers, in late October/early November 2012, Mrs Farthing and Ms Ding who were classified as casual hourly paid staff.  Mrs Farthing held a first class honours degree in Chinese and had some previous teaching experience.  Ms Ding was a native speaker in Mandarin Chinese.  During the period of November 2012 and January 2013, Mrs Farthing and Ms Ding were each offered 20 hours of employment with Mrs Farthing subsequently offered a further 20 hours of employment.  This was always intended to be a temporary solution to the gap in teaching provision that had arisen in the circumstances outlined above. 

 

2.42    It is correct that the claimant was not considered for these temporary part-time roles.  In 2012/2013 the LAN 303 module, for the first time included a preparation for the Chinese Proficiency Examination (HSK).  In order to prepare the students to the necessary level it was necessary for the students to be taught by tutors with a good understanding of the HSK assessment and preparation steps.  Both Mrs Farthing and Ms Ding had this, whereas the claimant did not.  Delivery of LAN 303, for 2012/2013, to include the HSK was part of the introduction of professional external accreditation for all languages in the University.

 

3.1     Relevant legislation and law

 

Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) provides:-

 

                    (i)       Article 126 of the 1996 Order:-

 

“(1)     An employee has the right not to be unfairly dismissed by his employer.”

 

                    (ii)      Article 130 of the 1996 Order:-

 

“(1)     In determining for the purposes of this Part whether the dismissal of the employee is fair or unfair it is for the employer to show –

 

(a)      the reason (if more than one the principal reason) for the dismissal; and

 

(b)      that it is either a reason falling with 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)     The reason falls within this paragraph if it –

 

                                                            ...

 

                                                            (c)      is that the employee was redundant, or

 

                                        ...

 

(4)      Where the employer has fulfilled the requirements of Paragraph (1) the determination of a 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

 

...

 

(c)      shall be determined in accordance with equity and the substantive merits of the case.

 

                                        ...

 

                                        (6)      Paragraph (4) is subject to Article 130A ... .”

 

                    (iii)      Article 130A of the 1996 Order:-

 

“(1)     An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if –

 

(a)      one of the procedures set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Procedures) applies in relation to the dismissal;

 

(b)      the procedure has not been completed; and

 

(c)      the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with these requirements.

 

(2)     Subject to Paragraph (1) failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.”

 

3.2     Substantial changes to the law of unfair dismissal were introduced, following the commencement in April 2005 of the Employment (Northern Ireland) Order 2003 (‘the 2003 Order’); and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (‘the 2004 Regulations’).  The 2003 Order and the 2004 Regulations introduced, inter alia, statutory procedures to be complied with by an employer relating to matters of discipline and/or dismissal.  These provisions came into operation on 3 April 2005.  They were not repealed by the Employment Act (Northern Ireland) 2011 and were therefore applicable, insofar as relevant and material to this matter.  In essence, the statutory procedures, which were introduced under the said legislation, require employers, subject to certain exceptions which were not applicable to this case, to follow a specific minimum procedure when subjecting employees to disciplinary action or dismissal.  There was no dispute between the parties that the minimum statutory dismissal procedures, pursuant to the 2003 Order and the 2004 Regulations, were complied with by the respondent in this matter.

 

          As the tribunal was satisfied the respondent’s dismissal procedures, as referred to previously, were followed by the respondent and these procedures satisfied the basic statutory requirements, which are contained in the 2003 Order and the 2004 Regulations, no issue of automatic unfair dismissal, pursuant to Article 130A of the 1996 Order, therefore arose to be further considered and determined by the tribunal in this matter (see further Venniri  v  Autodex Ltd [UKEAT/0436/07]). 

 

3.3     Article 174 of the 1996 Order provides:-

 

“(1)     For the purposes of this Order an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to –

 

(a)      the fact that his employer has ceased or intends to cease –

 

(i)       to carry on the business for the purposes of which the employee was employed by him, or

 

(ii)      carry on that business in the place where the employee was so employed, or

 

                                        (b)      the fact that the requirements of that business –

 

(i)       for employees to carry out work of a particular kind, or

 

(ii)      for employees to carry out work of a particular kind in a place where the employee was employed by the employer,

 

have ceased or diminished or are expected to cease or diminish.

 

                    ...

 

(5)      In Paragraph (1) ‘cease’ and ‘diminish’ means cease and diminish either permanently or temporarily or for whatever reason.”

 

The respondent’s representative accepted that, when the claimant had been dismissed by the respondent by reason of redundancy, the respondent relied on Article 174(1)(b)(i) and/or (ii), as set out above.  In this context, it is also necessary to note that the respondent did not seek to contend the dismissal was for some other substantial reason such as to justify the dismissal of an employee holding the position which the claimant held (see Murphy  v  Epsom College [1984] IRLR 271). 

 

3.4     It is not disputed by the parties that once the fact of dismissal has been established, the burden is on the employer to establish, pursuant to Article 130(1) of the 1996 Order, the reason relied upon by it. 

 

          The employer is only allowed to rely upon facts known to him as at the time of the dismissal to establish what the reason for the dismissal was.  Facts which came to light after the dismissal cannot be relied upon to justify the dismissal, although they may be relevant to the issue of any compensation to be awarded to the employee by the employer (Devis & Sons Ltd  v  Atkins [1977] ICR 662).

 

          In Nelson  v  BBC [1977] IRLR 148, it was held by the Court of Appeal that where the only reason given by the employee for a dismissal is the wrong reason, and it fails to show a potentially valid reason for dismissal, the dismissal is automatically unfair.  Facts found in relation to Article 130(4) of the 1996 Order cannot be applied to a possible but unpleaded defence under Article 130(1) of the 1996 Order and then treated as applicable to Article 130(4) of the 1996 Order. 

 

For a dismissal to be by reason of redundancy, ‘a redundancy situation’, as defined under the 1996 Order must be shown to exist.           (See later)

 

3.5     Assuming the employer is able to establish the dismissal was by reason of redundancy, the question of whether the said reason did in fact justify the dismissal requires the tribunal to consider whether the respondent acted reasonably in all the circumstances in treating the reason as sufficient, pursuant to the provisions of Article 130(4) – (6) of the 1996 Order (see further Harvey on Industrial Relations and Employment Law, Section D1, Paragraph 808 and Mental Health NHS Trust  v  Sarkar [UKEAT/0479/08] where it was established, in relation to the issue of fairness, there is no burden of proof on either party).  In essence, it has long been established that, in relation to the matters set out in Article 130(4) of the 1996 Order there is a ‘neutral’ burden of proof (see further DSG Retail Ltd  v  Mackey [2013] UKEAT/00454/13 and Singh  v  DHL Services [2013] UKEAT/0462/12). 

 

3.6     In Iceland Frozen Foods Ltd  v  Jones [1982] IRLR 439, Browne Wilkinson J offered the following guidance in relation to the correct approach for a tribunal to adopt in answering the question posed by Article 130(4) of the 1996 Order, as referred to above, namely:-

 

                    “ ...

 

(1)      a starting point should always be the words of [Section 57(3)] themselves;

 

(2)      in implying the Section the industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (members of the tribunal) consider the dismissal to be fair;

 

(3)      in judging the reasonableness of the employer’s conduct, the industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

 

(4)      in many (though not all) cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another;

 

(5)      the function of the industrial tribunal, as an industrial jury, is to determine whether, in the particular circumstances of each case, the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted.  If the dismissal falls within the band the dismissal was fair : if the dismissal falls outside the band it is unfair.”

 

In Sainsbury’s Supermarkets Ltd  v  Hitt [2003] IRLR 23, it was held by the Court of Appeal that the objective standards of the reasonable employer must be applied to all aspects of the question whether an employee was fairly and reasonably dismissed.  Although these are cases relating to dismissal for misconduct, this guidance is also relevant and to be followed in a case of dismissal for redundancy, when applying Article 130(1) of the 1996 Order (see further Halpin  v  Sandpiper Books Ltd [2012] UKEAT/0171/11)

 

The guidance set out in Iceland Frozen Foods Ltd  v  Jones [1982] IRLR 439 was followed and adopted in this jurisdiction in the Court of Appeal is cases of:-

 

          Dobbin  v  Citybus Ltd [2008] NICA 42; and

 

          Rogan  v  South Eastern Health & Social Care Trust [2009] NICA 47;

 

and again more recently in the cases of:-

 

          Antrim Borough Council  v  McCann [2013] NICA 7; and

 

          Gould  v  Regency Carpet Manufacturing Ltd [2013] NICA 26

 

Procedural defects in an initial dismissal hearing may be remedied on appeal, provided that in all the circumstances the appeal is sufficient to cure any earlier unfairness.  (See Taylor  v  OCS Group Ltd [2006] EWCA Civ 702):-

 

“If at an early stage of a disciplinary process is defective and unfair in some way then it does not matter whether or not an internal appeal is technically a re-hearing or review, only whether the disciplinary process as a whole is fair.  After identifying a defect the tribunal will want to examine any subsequent proceedings with particular care.  Their purpose in so doing will be to determine whether, due to the fairness or unfairness of the procedures adopted, the thoroughness or lack of it of the process and the                          open-mindedness (or not) of the decision-maker the overall process was fair, notwithstanding any deficiency at an early stage.”

 

3.7     Following the introduction of the statutory dismissal procedures, Article 130A(1) and (3) of the 1996 Order, as set out above, provided that a dismissal was automatically unfair if the new statutory procedures were not followed.  However, Article 130A(2) also made further changes to the law in relation to unfair dismissal.  The well-known House of Lords decision of Polkey  v  AE Dayton Services Ltd [1988] ICR 344, which incidentally was a case relating to a dismissal for redundancy, provided that, in essence, an employer who has acted unreasonably and in breach of procedures cannot contend that, since the dismissal would have occurred anyway, even if proper procedures had followed, the dismissal should be found to be a fair dismissal.  It held it was only in limited circumstances an employer would be able to argue that compliance with fair procedures would be absolutely futile, and, in particular, in a redundancy dismissal case.  However, although the tribunal may find the dismissal to be unfair, the tribunal is able to reduce the employee’s compensation by a percentage to represent the chance that the employee would still have been dismissed (sometimes known as a ‘Polkey reduction’).  Article 130A(2), as set out above, has made a further change to the law and has resolved, in certain circumstances, in an partial reversal of the Polkey principles, as outlined above.  Article 130A(2) provides that a dismissal following a failure to follow other procedural steps, will not affect the fairness of the dismissal, if the employer can show he still would have been dismissed if he had followed those steps correctly (see later).  So the Polkey decision was partially reversed and the ‘no difference rule’, which had previously applied before Polkey, was reinstated for a failure to follow procedures, other than the statutory dismissal procedures.  The reference to procedures in Article 130A(2) is now recognised to refer to any procedure, written or otherwise, which the tribunal considers a reasonable employer might follow. 

 

          However, what is clear from the authorities is that Article 130A(2) is only of assistance to an employer whenever the statutory dismissal procedures have been complied with.  ‘Automatic unfairness’ cannot be cured by invoking Article 130A(2) (see Butt  v  CAFCASS [UKEAT/0362/07]) where there has been a breach of a statutory dismissal procedure, then the normal Polkey principles, which applied before Article 130A(2) apply.  There can be a Polkey reduction of 100% in an automatic unfair dismissal case, where the breach of procedures would have made no difference to the dismissal (see Goodin  v  Toshiba [UKEAT/0271/08].)  However, where an employer is able to rely on Article 130A(2), it can only do so if it shows that it would have decided to dismiss the employee, after applying the proper procedure.

 

          The burden of proof is on the employer and ‘mere assertion by an employer is not enough’ (see McCall  v  Northern Rail Ltd [UKEAT/0504/06].  If an employer has complied with the statutory dismissal procedure (but the dismissal is nevertheless unfair for other reasons) but there is a greater than 50% chance the employer would have dismissed the employee, pursuant to Article 130A(2) (Section 98A(2) in Great Britain), the dismissal will be fair.  Thus, where the relevant statutory dismissal procedure has been complied with but the dismissal is procedurally unfair for the purposes of Article 130(4), any Polkey reduction cannot exceed 50%.  It is 50%, for the above purposes, by applying the standard of proof in civil cases.  (See Software 2000 Ltd  v  Andrews [2007] IRLR 568 and Kelly-Madden  v  Manor Surgery [2007] IRLR 17.)

 

          In Software 2000 Ltd  v  Andrews [2007] UKEAT/0533/06, Elias J, as he then was, emphasised that tribunals must consider any reliable evidence, even if speculative, in carrying out the exercise to determine whether or not dismissal would have occurred if a fair procedure had been followed.  Using its common sense, experience and sense of justice in the normal case, it would require the tribunal to assess for how long the employee would have been employed but for the dismissal.  However, it is for the employer who seeks to contend that the employee would or might have ceased to be employed in any event had fair procedures been followed or alternatively would not have continued in employment indefinitely, to adduce any relevant evidence on which it wishes to rely; but in doing so, the tribunal must have regard to all the evidence when making the assessment, including any evidence from the employee.

 

Elias J, suggested there were five possible outcomes:-

 

(1)      The evidence from the employer may be so unreliable that the exercise of seeking to reconstruct what might have been is too uncertain to make any prediction, though the mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence.

 

(2)      The employer may show (the onus on the employer is shown on the balance of probabilities), if fair procedures had been complied with, the dismissal would have occurred when it did in any event.  The dismissal will then be fair in accordance with [Section 98A(2)].

 

(3)      The tribunal may decide there was a chance of dismissal but it was less than 50%, in which case compensation should be reduced.

 

(4)      The tribunal may decide that employment would have continued, but only for a limited period.

 

(5)      The tribunal may decide that employment would have continued indefinitely because the evidence that it might have terminated earlier is so scant that it can effectively be ignored.”

 

In considering the issues relating to Polkey deductions in the case of Hill  v  Governing Body of Great Tey Primary School [2013] UKEAT/0237, Langstaff P said the correct test is ‘predictive’:-

 

“Could the employer fairly have dismissed and what were the chances the employer would have done so.”

 

This approach was confirmed in the recent decision of Dev  v  Lloyds TSB Asset Finance Division Ltd [2014] UKEAT/0281 when Langstaff P stated:-

 

“A tribunal asked to consider a Polkey question must not ask what would have happened but rather what might have happened.  To ask what would have happened asks for a decision effectively, on the balance of probability with a straight yes or no answer.  The second looks at the matter as one of assessment of chances.  It is well-established that the latter is the correct approach ... (see further Ministry of Defence  v  Parry [2013] ICR 311 ).”

 

Indeed, in Brinks Ireland Ltd  v  Hines [2013] NICA 32, Girvan LJ followed, with approval, Software 2000 Ltd  v  Andrews and stated:-

 

“If an employer seeks to contend that the employee would or might have ceased to be employed in any event if a fair procedure had been followed or alternatively it would not have contained in employment indefinitely it is for the employer to adduce relevant evidence on which it wishes to rely.  Where the nature of the evidence which the employer adduces or on which it seeks to rely is unreliable, the tribunal may take the view that the whole exercise of seeking to re-construct what might have been is so riddled with uncertainty that no sensible prediction based on the evidence can be made ... .”

 

Consistent with the judgment of Girvan LJ in the case of Contract Bottling Ltd  v  Cave and McNaughton [2014] UKEAT/0100, it was held that, when considering a Polkey deduction, a tribunal is engaged in a predictive exercise as to the chances of a fair dismissal taking place at some time in the future; and about which exercise there can be no absolute and scientific certainty and evidence, albeit speculative, is reached to form the prediction.

 

3.8     As stated previously, dismissal for redundancy is potentially a fair reason for dismissal (see Article 130(2)(c) of the 1996 Order).  In this context, redundancy has the meaning assigned to it by Article 174 of the 1996 Order, as set out previously, and which definition is considered later in this decision. 

 

          It has long been recognised that generally it is not open to an employee to claim that his dismissal is unfair because the employer acted unreasonably in choosing to make workers redundant.  In Moon  v  Homeworthy Furniture (Northern) Ltd [1976] IRLR 298, the Employment Appeal Tribunal emphasised that it was not the job of the courts or tribunals to review that business decision.  In James W Cook & Company (Wivenhoe) Ltd  v  Tipper [1990] IRLR 386, the Court of Appeal confirmed that it was not for the court to investigate the commercial and economic reasons prompting the particular redundancy.  In Tipper, the Court of Appeal, however, recognised that the tribunal can question, in an appropriate case, the genuineness of the decision and the tribunal should be satisfied that it is made on the basis of proper information. 

 

In Harvey on Industrial Relations and Employment Law, Section D1, Paragraph 1654, it is noted that:-

 

“Essentially they simply require the employer to provide evidence to show that the alleged reason for dismissal does have some basis in fact, and that a proper business decision has been reached.  If the employer fails to satisfy a tribunal of this, he has not established that redundancy is the true reason for dismissal.  The wisdom or otherwise of that decision remains beyond the tribunal’s scrutiny.”

 

          Further, in Harvey, Volume 1, Section E, Paragraph 277 it is emphasised:-

 

“ ... The point cannot be made too strongly that the Act is not concerned to enquire what caused the redundancy situation.  The question is what was the reason for the dismissal not what was the reason for the redundancy.  ERA 1996 enquires whether the dismissal was attributable to a cessation of the business or a cessation of, or diminution in, its requirements, but says in terms that the cessation or diminution may arise ‘for whatever reason’ [ERA 1996 S. 139(6)].  To that extent the employer does not have to justify a declaration of redundancies.  For the purposes of the redundancy scheme, the tribunal will not go behind the facts and investigate how the redundancy situation arose and whether it could have been avoided and whether there are any viable alternatives; the tribunal will not go into the rights or wrongs of a declaration of redundancy ... .”

 

In Williams  v  Compair Maxam Ltd [1982] IRLR 83, the Employment Appeal Tribunal gave guidance to tribunals in determining whether a dismissal for redundancy was fair under [Article 130(4) of the 1996 Order]:-

 

“ ... There is a generally accepted view in industrial relations that, in cases where the employees are represented by a independent trade 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 for the best means by which the desired management results 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.”

 

These guidelines were expressly approved in Robinson  v  Carrickfergus Borough Council [1983] IRLR 122, a decision of the Northern Ireland Court of Appeal.

 

In the Polkey case, referred to previously, the House of Lords referred to the relevant procedures required in a redundancy dismissal in the following terms:-

 

“ ... In the case of redundancy, the employer will normally not act reasonably unless he warns and consults any employees affected or the representatives, adopts a fair decision which to select for redundancy and takes such steps as may be reasonable to minimise the redundancy by redeployment within his own organisation.”

 

In Langston  v  Cranfield University [1998] IRLR 172, the Employment Appeal Tribunal held that, so fundamental are the requirements of selection, consultation and seeking alternative employment in a redundancy case, they will be treated as being an issue in every redundancy unfair dismissal case. 

 

3.9     In the decision of the Employment Appeal Tribunal in the case of Halpin  v  Sandpiper Books Ltd [2012] UKEAT/0171/11, it was confirmed that the correct approach to dealing with redundancies is set out in Williams  v  Compair Maxam Ltd [1982] IRLR 83.  It also confirmed that decisions as to pools and criteria are matters for management and rarely will it be for an employment tribunal to interfere with any such decisions. 

 

          In Taymech  v  Ryan [UKEAT/0663/94], Mummery J, as he then was, said on the issue of the basis of the pool for selection:-

 

“There is no legal requirement that a pool should be limited to employees doing the same or similar work.  The question of how a pool should be defined is primarily a matter for the employee to determine.  It would be difficult for the employee to challenge it, where the employer has genuinely applied his mind to the problem.”

 

          In Capita Hartshead Ltd  v  Byard [UKEAT/0445/12] it was held:-

 

“(d)     the Employment Tribunal is entitled, if not obliged, to consider with care and scrutinise carefully the reasoning of the employer to determine if he has ‘genuinely applied’ his mind to the issue of who should be in the pool for consideration for redundancy; and that

 

 (e)     even if the employer has genuinely applied his mind to the issue of who should be in the pool for consideration for redundancy, then it will be difficult, but not impossible, for an employee to challenge it.”

 

Certainly, subject to the foregoing, a tribunal is not entitled to substitute its view for that of an employer, who has genuinely applied his mind to the said issue (see further Family Mosaic Housing Association  v  Badman [UKEAT/10042/13]).

 

In Fulcrum Pharma (Europe) Ltd  v  Bonassera [UKEAT/0198/10] there was no criticism of the management decision to have a pool of two, the employer’s failure related to the failure to consult on the size of the pool.  Similarly, in Sandpiper Books Ltd since the claimant was the only employee based in China, the respondent’s decision to make the post redundant was correctly based ‘on a pool of one’. 

 

          Where redundancy arises in consequence of a re-organisation and there are new roles to be filled, it is recognised (see Tolley’s Employment Law Handbook Paragraph 53.11) that an employer’s decision is likely to centre upon the assessment of the ability of the individual to perform in the new role – especially where appointment to a new role is likely to involve something more akin to an interview proceed than a traditional selection process.  Although the tribunal is entitled to consider how far the process was objective, it should recognise that the decision as to which candidate will perform best in the new role will involve a substantial element of judgment (Morgan  v  Welsh Rugby Union [2011] IRLR 376).  Similarly, when an employee is interviewed for an alternative role, the tribunal is entitled to consider how far the process was objective but should recognise that the decision as to which candidate will perform best in the new role will involve a substantial amount of judgment on the part of the employer and there is no obligation to always use objective criteria (Samsung Electronics (UK) Ltd  v  Mote-D’Cruz [2012] UKEAT/0039/11).  The Employment Appeal Tribunal emphasised a finding of unfair dismissal in such a case should not turn upon the minutiae of good interview practice.

 

3.10    Article 174(1)(b) of the 1996 Order (which, as set out previously, was relied upon by the respondent) and provides the definition of what is a ‘redundancy situation’.  In essence, it breaks down into three parts:-

 

                    “(i)      has the claimant employee being dismissed, as defined;

 

(ii)     was there, within the business, a reduced need for employees to do a particular kind of work;

 

(iii)    was the claimant employee dismissed wholly or mainly because of that reduced need.”

 

          (See further Harvey on Industrial Relations and Employment Law, Volume 1, Section E, Paragraph 843.)

 

          In Safeway Stores Ltd  v  Burrell [1997] IRLR 200 issues had arisen whether when interpreting this definition, a ‘contract’ or a ‘function’ test should be applied, but it was decided the test should be based on the statutory wording without any unnecessary gloss.  This was endorsed by the House of Lords in Murray and Another  v  Foyle Meats Ltd [2000] 1 AC 11, an appeal from the Court of Appeal in Northern Ireland, when Lord Irvine stated (Page 56 E – F):-

 

“My Lords, the language of Paragraph (b) is in my view simplicity itself.  It asks two questions of fact.  The first is whether one or other of various states of economic affairs exists.  In this case, the relevant one is whether the requirements of the business for employees to carry out work of a particular kind have diminished.  The second question is whether the dismissal is attributable, wholly or mainly, to that state of affairs.  In the present case, the tribunal found as a fact the requirements of the business for employees to work in the slaughter hall had diminished.  Secondly, they found the state of affairs led to the appellants being dismissed.  That, in my opinion, is the end of the matter.”

 

Lord Irvine emphasised therefore the decision rejected the view the expression ‘work of a particular kind’ (in Article 174(1)(b) meant the work for which the employee was employed, as defined by his contract of employment.

 

In a recent decision, HH Judge Clark in the case of Servisair UK Ltd  v  O’Hare [2013] UKEAT/0118/13, HH Judge Clark referred to Lord Irvine’s first question as ‘the redundancy situation’ and his second question as ‘the causation issue’.  In relation to the issue whether a redundancy situation exists he emphasised the use of the words ‘for employees’, as set out in the said Article; and as a consequence he stated:-

 

“The question is not whether work of a particular kind done by the claimant has ceased or diminished or is expected to do so in the future but whether the requirements for employees to do that work has ceased or diminished; in other words, reduced headcount.”

 

Given it is the requirement for employees to do work of a particular kind which is significant, the fact the work is constant or even increasing is not relevant               (McCrea  v  Cullen and Davison Ltd [1998] IRLR 30 NICA).  In cases of            re-organisation, where the overall number of employees remains the same or even increases there can still be a redundancy situation where the requirements of the business for employees to carry out a particular kind of work have ceased or diminished or are expected to do so.  Thus, the emphasis in determining whether there is a redundancy situation is on the work or skills required by the business (ie the tasks to be performed) and, thus, whether the work is redundant not whether the employee is redundant (see Johnson  v  Nottinghamshire Combined Police Authority [1973] ITR 411).

 

It has long been held that whether work in question is of a sufficiently particular kind is a matter of fact; ‘work of a particular kind ... means work which is distinguished from other work of the same general kind by requiring special aptitudes skills or knowledge’ (see Amos  v  Mex-Arc Ltd [1973] IRLR 285).  In Shawkat  v  Nottingham City Hospital NHS Trust (No 2) [2001] EWCA Civ 954, it was held on the facts, the tribunal was entitled to find that ‘for a middle level surgeon’ the work of a combined cardio-thoracic surgeon was a different kind of work from that of a pure thoracic surgeon. 

 

The personal attributes of the employee are not relevant, as it is the requirements of the business for employees to do work of a particular kind, save where they reflect upon his ability to do relevant tasks.  Similarly, an employee’s qualifications will only be relevant insofar as they provide evidence of special skills, attributes or knowledge.  In the case of Robinson  v  British Island Airways Ltd [1977] IRLR 477, where a new, higher level post was held to be ‘in a different league’ from the existing post and a redundancy situation was created.  Thus a redundancy situation can arise where the upgrading of a post involves a change in the kind of work required and thereby creating a redundancy situation by reducing the need for ‘lower level’ work.

 

In a recent decision of the Employment Appeal Tribunal in the case of Hakki  v  Instinctif Partners Ltd [2014] UKEAT/0112, HH Judge Clarke has again emphasised, following Murray  v  Foyle Meats Ltd and Safeway Stores Ltd  v  Burrell, as referred to previously:-

 

“ ... the question is whether there is a reduction, actual or anticipated, in the employer’s requirement for employees to do work of a particular kind”.  Here the Judge found as fact that the requirement for an employee to do the claimant’s old job, was going to be replaced by two materially different jobs.  In fact the work increased, as did the employees to do it.  But there was nevertheless a state of affairs which rendered the role performed by the claimant redundant.  Examples in the cases may be found in Robinson  v  British Island Airways Ltd ... and Murphy  v  Epsom College.  In both cases, following a re-organisation, the new job differed from the old job.  The requirement of the employer for an employee to do work of a particular kind, the claimant’s old job had gone or was expected to go ... .”

 

In the context of the present proceedings, and the facts as found by the tribunal, it is of interest to note on the facts of the above case, having identified the claimant as being at risk of redundancy and during consultation meetings, alternative employment was discussed and the claimant expressed interest in a particular role, for which she then applied for but was unsuccessful, following interview, scoring second lowest of the four candidates.  On the facts the dismissal was found to be within the range of reasonable responses and therefore fair.

 

3.11    It is apparent from the above case law, each case depends on its own particular facts after application of those facts to the statutory definition.  In a recent decision in the case of TNS UK Ltd  v  Swainston [2014] UKEAT/0603/12, the Employment Appeal Tribunal held an Employment Tribunal was in error where it found the dismissal of the claimant was not by reason of redundancy but for ‘financial reasons’.  It is found that the claimant was dismissed because the respondent’s requirements for the business development services carried out by the claimant had ceased or diminished or was expected to do and the fact the decision to terminate the claimant’s post for financial reasons supported the respondent’s case the dismissal was by reason of redundancy.  The fact that the decision to cease to provide business development services was driven by financial considerations and the need to reduce costs did not mean there was not a redundancy situation.  Indeed the EAT commented that ‘most redundancy situations probably have their origins in financial grounds’.  There was no suggestion, on the facts, this was not a genuine background to the decision albeit on the facts the dismissal was ultimately found to be unfair because of an unfair procedure used by the respondent when dismissing the claimant.

 

4.1     In light of the facts as found by the tribunal and after applying the legislative provisions and the guidance set out in the legal authorities referred to in the previous paragraphs of this decision, the tribunal reached the following conclusions, as set out in the following sub-paragraphs.

 

4.2     The tribunal has no doubt that the reason for the dismissal of the claimant was for reasons of redundancy, which is a potentially fair reason for dismissal.  It was not necessary for the tribunal, in the circumstances, to investigate the background to the financial situation that arose for the University which ultimately led to the decision to dismiss the claimant for redundancy as set out in the Vice-Chancellor’s e-mail to staff on 22 September 2011 following the decision of the Northern Ireland Executive/Department of Employment and Learning requiring a considerable reduction in the block grant from Government to the University.

 

4.3     The tribunal was satisfied that there was a ‘redundancy situation’, as defined, pursuant to Article 174(1)(b) of the 1996 Order.  In particular, it was satisfied that such a situation had arisen because there was no longer a requirement for the teaching of Chinese to Diploma level but rather the requirement was now for the teaching of Chinese to degree level at the University.  Teaching of Chinese to Diploma level, ‘as a taster’, in the tribunal’s judgment, on the facts as found by it, had to be distinguished from the requirements to be able to teach Chinese to degree level, which required additional skills and knowledge, which unfortunately the claimant did not have.  In these circumstances, there was therefore a reduction in the employer’s requirement to do work of a particular level.  As seen in Robinson  v  British Island Airways Ltd [1977] IRLR 477 the new post was now in a ‘different league from the existing post, requiring a change in the level of work required’.  A diploma ‘taster’ course was very different to a lecturer post for a degree in Chinese requiring additional skills and knowledge, including fluency in Mandarin Chinese at native or near native standard, which the claimant did not have.  His level of fluency was sufficient for the Diploma course, which was no longer to continue, but not for the Degree level course.  In essence, the claimant’s old job was to be replaced by a materially different job.  This situation had come about for financial reasons but also the change of direction for the teaching of Chinese, in the University, following the setting up of the Confucius Institute.  These reasons, however unfortunate for the claimant’s position in the University, were genuine background reasons to the decision; but did not alter the fact that, as a consequence, a ‘redundancy situation’ had arisen as defined in the 1996 Order (see TNS UK Ltd  v  Swainston).

 

4.4     Given the claimant was the only person who taught Chinese in the University, the tribunal was satisfied the respondent’s decision to make the claimant’s post was correctly based ‘on a pool of one’.

 

4.5     The tribunal found no evidence of any failure of consultation with the claimant.  On the facts, as found by it, it rejected any suggestion by the claimant, whom it found to be an unsatisfactory witness, that the decision had been made by the Dean, Professor Pól Ó’Dochartaigh, in particular; but also in concert with others, such as the Head of School, Dr Barr and/or his predecessor Professor Gillespie; and, in essence, the process was a sham.  It rejected the various serious allegations made by the claimant against the Dean of what he had said and done during the process, which were not supported by any trade union representative of the claimant or indeed any other staff member.  In particular, the tribunal does not accept he was told his post was redundant until the conclusion of the consultation process; albeit during the consultation meetings the risk his post may become redundant was properly discussed.  Indeed the difference is fundamental to the consultation process.  The tribunal was satisfied the University fully consulted with the claimant, in accordance with its policies and procedures of the respondent to see if the risk of redundancy could be averted.  The tribunal is satisfied from the notes of the various meetings with the claimant, the University fully explained the process and gave the claimant every opportunity to put forward reasons why his post should not be made redundant.  Significantly, the claimant was accompanied at these consultation meetings by various trade union representatives; but yet none were called as witnesses to challenge in any way the consultation process carried out by the University.

 

4.6     It was apparent, before the University proceeded down the formal redundancy process, it had explored every opportunity to allow the claimant to take voluntary redundancy which, as he was entitled to do, he refused.

 

4.7     The claimant was allowed to consider opportunities under the redeployment register.  This allowed him to apply for positions before they were more widely advertised.  The only position he applied for was the position of lecturer in Chinese.  As he was the only person who applied for the post under the redeployment procedure, there was no requirement for short listing.  There was a requirement for interview to show that he was able to satisfy the essential criteria for the post which the tribunal accepts were relevant and appropriate criteria for such a post.

 

          At the interview, in particular, he had to show he was a native speaker or near native speaker in Mandarin Chinese.  This was a different post to his former post and he could not expect to be automatically transferred to it.  As a teacher of Chinese for the Diploma course, he might have been able to demonstrate he had the necessary fluency; but, unfortunately, he was unable to do so.  The tribunal could find no reason to criticise the decision of the ‘expert’ members of the panel that he did not satisfy the said essential criteria of near native speaker.  On his own admission he was not a native speaker.  The University properly, in the judgment of the tribunal, made use of ‘experts’ to make this judgment call, whose credentials were appropriate for this task in the circumstances.  Under the redeployment procedure, it was also necessary for the interview panel to consider, which would not occur in a normal recruitment process, whether the candidate could be trained to the requirements of the new role within a reasonable timeframe.  The ‘expert’ members of the panel did not consider this was possible.  It clearly was a judgment decision by them in their expert capacity.  Others might have taken a different view; but in the tribunal’s view it could not be said to be unreasonable and equally it was not unreasonable for the ‘non-expert’ members of the panel to accept their recommendations.  Again, it is of interest to note that the claimant did not at any time challenge the decision by the interview panel that he was unsuccessful at the interview under the redeployment procedure.

 

4.8     Following the decision to notify the claimant that his post was redundant and the sums due to him under such redundancy and the date of his dismissal, the claimant appealed the decision under the relevant procedures.  It is clear from the notes of the appeal but, in particular, the letter from the Chairman of the Appeal Board, Mr John Hunter, on 28 November 2012 that this was not in any way, despite the claimant’s assertions to the contrary, a ‘rubber stamping exercise’.  As set out in the letter, the claimant was given every opportunity to explore all the reasons he wished to make to contest and challenge the decision.  These were responded to in detail by the Chairman and, in particular, why the appeal could not be concluded in the claimant’s favour, not only in relation to the background reasons but also the consultation process and the outcome of the claimant’s failure to be successful on the redeployment exercise.  As set out in the letter, the Appeal Board carefully considered all the points raised by the claimant, including why it was not possible, given the circumstances, to employ two individuals, one to teach at Diploma level and one at degree level.  Clearly, if the claimant had been able to show near native fluency in Mandarin Chinese, the decision in this matter might have been very different.

 

          The claimant did not apply for any other post under the redeployment procedure.  However, even though there was a post available to be considered under the register, albeit a two year fixed term lecturer position on linguistics, he made no attempts to apply for it, despite his PhD in linguistics.

 

          In the circumstances, the tribunal could see no grounds for the claimant’s assertion the University had failed to provide him with the opportunity for alternative employment.  Equally, the tribunal was satisfied the decision not to consider the claimant for the temporary part-time roles when there was a delay in appointing the new lecturer, was due to his lack of fluency in Mandarin Chinese, as referred to previously, and the required level of fluency of those appointed to these positions.  Similarly, the tribunal was satisfied the University was entitled to use Mrs Farthing and Ms Ding for the LAN 303 module in 2012/13, as again they had the necessary expertise in HSK, which the claimant did not.

 

4.9     The tribunal is satisfied that the Appeal Board was correct in holding that the University had followed its statutes, for the reasons set out in the letter of 29 November 2012, and it was not necessary for the Council to be involved in the circumstances of individual redundancies.

 

5.1     The tribunal was therefore satisfied that the claimant was dismissed by reason of redundancy and the said dismissal was fair in the circumstances.  A redundancy situation had arisen.  There was no breach of relevant procedures and, in particular, the University carried out all necessary consultation and sought, albeit unsuccessfully, to obtain alternative employment for the claimant.  The tribunal was satisfied, for the reasons seen above, the dismissal was therefore fair and within the band of reasonable responses.  In these circumstances, no issue relating to Polkey arose to be determined by the tribunal.

 

 

 

 

 

 

 

Employment Judge

 

 

Date and place of hearing:         25 – 28 November 2013;

                                                  20 December 2013; and

                                                  31 January 2014, Belfast

 

 

Date decision recorded in register and issued to parties: