Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 2657/14

 

 

 

CLAIMANT: Carol Alison McFarland

 

 

RESPONDENT: Kincull Ltd t/a Ulster Weavers Giftstore

 

 

DECISION

The unanimous decision of the tribunal is that:-

 

(1) The claimant's claims for breach of contract and/or unauthorised deduction from wages in respect of bonus, notice and outstanding annual leave payments are dismissed, following oral withdrawal, by consent, upon settlement between the parties, at the substantive hearing of this matter.

 

(2) The claimant was unfairly dismissed and the tribunal makes an award of compensation in the sum of £1,625.04 to be paid to the claimant by the respondent.

 

(3) The claimant was indirectly discriminated against on the grounds of her age and the respondent is ordered to pay to the claimant compensation in the sum of £4,693.48.

 

Constitution of Tribunal:

Employment Judge: Employment Judge Drennan QC

Members: Mrs C Stewart

Mr A Crawford

Appearances:

The claimant was represented by Mr B McKee, Barrister-at-Law, instructed by C & J Black, Solicitors.

The respondent was represented by Mr B Mulqueen, Barrister-at-Law, instructed by John McKee & Sons, Solicitors.

 

Reasons

 

1.1 The claimant presented a claim to the tribunal on 18 November 2014, arising from the termination of her employment, on or about 28 October 2014, with the respondent, for unfair dismissal; discrimination on the grounds of age and/or sex discrimination and/or religious belief/political opinion; for breach of contract (holiday pay, other payments) and/or failure to pay wages - unauthorised deduction from wages. The respondent presented a response to the tribunal on 29 December 2014, in which it denied liability for the said claims.

 

1.2 By decisions, registered and issued to the parties on 3 June 2015, the claimant's claim of discrimination on the grounds of sex and/or religious belief/political opinion, having been withdrawn by her, were dismissed. Upon such withdrawal of her said claim to the Fair Employment Tribunal, the direction made under the Fair Employment and Treatment (Northern Ireland) Order 1998 was revoked, by order, on 2 June 2015.

 

1.3 During the course of the substantive hearing of this matter, the claimant's claims for breach of contract and/or unauthorised deduction from wages in respect of bonus, notice and outstanding annual leave payments were dismissed, following oral withdrawal, by consent, upon settlement between the parties.

 

1.4 In accordance with the tribunal's normal practice, a Case Management Discussion was held on 19 February 2015, as set out in the Record of Proceedings dated 19 February 2015, to give relevant case-management directions/orders for the substantive hearing of this matter.

 

Following the Case Management Discussion, and in accordance with the order/directions made at the Case Management Discussion, an agreed statement of issues was lodged with the tribunal by letter dated 5 March 2015 by the claimant's representatives.

 

Insofar as relevant and material, the following issues were identified:-

 

"1. Legal Issues :

 

1.1 Unfair dismissal

 

1.1.1 Whether the respondent unfairly dismissed the claimant.

 

1.1.2 Whether there was a redundancy situation.

 

1.1.3 Whether the alleged redundancy was a sham.

 

1.1.4 Whether the consultation with the claimant was reasonable.

 

1.1.5 Whether the post of store manager and/or retail buyer were suitable alternative employment.

 

1.1.6 Whether the respondent's requirement was a degree for the post of part-time retail buyer and full-time store manager was unfair and/or indirectly discriminatory (see below).

 

1.1.7 Whether the respondent's refusal to offer suitable alternative employment was unfair.

 

1.2 Age discrimination

 

1.2.1 Whether the respondent indirectly discriminated against the claimant by imposing a criterion of holding a degree qualification for the post of store manager and retail buyer.

 

1.2.2 Whether the criterion put persons of the same age group as the claimant (45 plus) at a particular disadvantage compared with [other] person.

 

1.2.3 Was the imposition of the criterion a proportionate means of achieving a legitimate aim.

 

...

 

1.4 Loss

 

1.4.1 Whether the claimant suffered injury to feelings as a consequence of the age discrimination.

 

1.4.2 Whether the claimant has suffered financial loss as a result of discrimination/unfair dismissal and, if so, the extent of the loss.

 

1.4.3 Whether the claimant has mitigated her loss.

 

1.4.4 Whether the claimant's decision to open a retail store was reasonable in the circumstances.

 

2. Factual Issues :

 

2.1 Whether the reason for the claimant's dismissal was redundancy.

 

2.2 Whether there was a reduction in the respondent's need for a full-time store manager (and buyer).

 

2.3 Whether the respondent's consultation with the claimant was genuine or a sham.

 

2.4 The date in which the respondent proposed the criterion for the post.

 

2.5 Whether the respondent's aim in imposing the requirement of a degree for the post was legitimate.

 

2.6 Whether the requirement for applicants to hold a degree was reasonably necessary.

 

2.7 What is the correct pool for comparison of the age groups.

 

2.8 What proportion of the pool that were 45 plus could satisfy the criterion.

 

2.9 What proportion of the pool that were 44 or under could satisfy the criterion.

 

... ."

 

(There was no dispute between the representatives that the claimant's claim, if any, was a claim of indirect discrimination on the grounds of age.)

 

1.5 In addition, at the Case Management Discussion on 19 February 2015, the tribunal made a number of other case-management orders, by consent, including standard tribunal orders for the preparation and exchange of witness statements between the parties but also for the preparation and exchange of trial bundles, which, in particular, were ordered not to contain more than 200 pages, without the consent of the tribunal. No application was made to the tribunal, prior to the substantive hearing, for any increase in the said page-limit. Such an order is an essential part of the tribunal's case-management and is in accordance with the terms of the overriding objective contained in Regulation 3 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005

 

1.6 In accordance with the said case-management directions/orders, the tribunal, prior to the commencement of the hearing, read the witness statements which had been previously exchanged between the parties and the documents in the agreed trial bundle, referred to in the said witness statements. When doing so, the tribunal became concerned there were matters referred to in the said witness statements which did not appear to be relevant to the issues, as set out in the said agreed statement of issues, and/or raised new issues, which had not previously been the subject of the agreed statement of issues and/or which failed to include all evidence relating to remedy including, in particular, any evidence by the claimant relating to 'injury to feelings'. Despite the agreed page-limit, as referred to previously, the tribunal, in advance of the hearing, had been provided, without any further explanation, with an agreed trial bundle containing some 796 pages. Further, the schedule of loss had not been finalised before the commencement of the hearing.

 

In light of the foregoing, many of the documents contained in the trial bundle were not relevant or appropriate to be included in the said bundle and were not therefore in accordance with the case-management orders of the tribunal, as set out in the Record of Proceedings dated 19 February 2015.

 

1.7 It always has to be remembered that the case-management orders made by the tribunal at the said Case Management Discussion are Orders of the Tribunal and must be complied with by the parties and their representatives. They are not an optional extra or to be taken 'à la carte'. If any application has to be made to the tribunal arising out of any of the said case-management directions/orders made, then it must be made promptly and in accordance with the relevant Rules of Procedure and, in particular, having regard to the times and dates for hearing, as set out in the Notice of Hearing. Neither party made any such relevant application following the Case Management Discussion and prior to the commencement of the substantive hearing - which, if made, would have addressed many, if not all, the issues faced by the tribunal as outlined above when it read the witness statements prior to the commencement of the hearing. Under the terms of the overriding objective, the parties are required, inter alia, to assist the tribunal to further the overriding objective, to deal with the case justly, which includes, saving and expense and ensuring the matter is dealt with expeditiously and fairly.

 

1.8 As Girvan LJ said in Peifer v Castlederg High School & Another [2008] NICA 49, these overriding objectives should inform the Court and tribunal in the proper conduct of proceedings. In the judgment of the tribunal, in this particular case, there was a regrettable failure by the parties and their representatives and each of them, in the circumstances, to comply not only with the tribunal's case-management orders but also the terms of the overriding objective. As a consequence, the tribunal had to spend a considerable period of time, at the commencement of the hearing, requiring the representatives to resolve and clarify the matters outlined above, before proceedings were able to be commenced. Indeed, the commencement of the hearing was delayed for nearly one day, while the parties and their representatives attempted, by way of discussion, to resolve these matters. The tribunal does not underestimate the work carried out by their representatives during this period to resolve the said matters; but it is satisfied, that if these issues had been proper by dealt with, in advance of the hearing, in accordance with the case-management directions/orders of the tribunal, this additional time would and should not have been necessary. The tribunal fully appreciates that both counsel had only recently been instructed in these proceedings. Indeed, it considers that, if it is known a counsel is to be instructed in proceedings, this should take place at as early a stage as possible, so that counsel can be properly involved in ensuring the tribunal's case-management directions are fully complied with and the necessary preparation is carried out to enable the proceedings to commence in time as ordered by the tribunal. Indeed, as a consequence, the tribunal had to make it clear to the parties and their representatives it was not prepared to commence the hearing, until, insofar as possible, these matters, including the precise issues to be determined by the tribunal, had been clarified and the proceedings were ready to commence, in accordance with the tribunal's case-management directions/orders.

 

1.9 Following the said discussion between the representatives a 'finalised' agreed schedule of loss was produced, subject to liability. This included an agreed figure of compensation for injury to feelings in the sum of £4,000.00, subject to and the approval of the tribunal, in relation to the claimant's claim of age discrimination (see later). Further, the claimant orally withdrew, upon settlement between the parties, the claimant's claim for breach of contract and/or unauthorised deduction from wages in respect of bonus, notice and outstanding annual leave payments; and it was agreed a formal decision dismissing these claims was to be included in this decision.

 

Further, the representatives of the parties provided to the tribunal a statement of proposed amendments to the statement of legal and factual issues, namely:-

 

"(1) Was the dismissal of the claimant the result of indirect age discrimination due to the imposition of the PCP which precluded the claimant from suitable alternative employment?

 

(2) Is the claimant's claim of indirect discrimination in time? If no, is it just and equitable to extend time in the circumstances?"

 

The tribunal was satisfied, that as the issue of time referred to in the amended statement, is a jurisdictional issue, it did not necessarily have to be expressly pleaded in the respondent's response form; but it did however require to be referred to in any statement of issues provided to the tribunal. After submissions by the representatives, the tribunal was satisfied that, insofar as the clarification of the issue relating to indirect age discrimination, referred to in the amended statement, required any amendment of the claim form, leave for same would be granted and as a result the claim was so amended (see further Harvey on Industrial Relations and Employment Law, Volume 3, Section P1, Paragraph 311.03 - 312). The tribunal was satisfied these amendments were designed to clarify the grounds on which the existing claim was based but did not raise a new head of complaint. Indeed, the respondent's representative did not seek to seriously challenge this conclusion by the tribunal. There was no evidence of any 'real' prejudice to the respondent.

 

In addition, the respondent's representative sought leave to amend the response of the respondent to plead, in the alternative to dismissal on the ground of redundancy, that the reason for the dismissal was 'some other substantial reason', arising from the re-organisation carried out by the respondent, pursuant to Article 130(1)(b) of the Employment Rights (Northern Ireland) Order 1996 ('the 1996 Order') (see below later). For similar reasons to those set out above, in relation to the amendment of the claim form, the tribunal, after submissions by the representatives, the tribunal granted such leave and the response was so amended. However, for the reasons set out previously, these matters should have been resolved at an earlier stage, if the case-management directions/orders of the tribunal had been properly complied with and in advance of the commencement of the substantive hearing.

 

1.10 In relation to the reason for dismissal on the ground of redundancy, the respondent's representative confirmed that, in doing so, the respondent relied on Article 174(1)(b) of the 1996 Order. (See later.)

 

1.11 In light of the foregoing, and given it was impracticable, in the circumstances and at such a late stage, to amend the witness statements and/or re-arrange and/or amend the trial bundle, which had been previously indexed and paginated, it was agreed to proceed with the witness statements as originally drafted and the trial bundle, as previously prepared and paginated and indexed; but, with the express acknowledgement by each witness, insofar as necessary, that those paragraphs in the said witness statement and/or documents in the bundle referred to in the said witness statement, which were no longer relevant to the issues as amended would not require to be considered by the tribunal. This, as indicated above, was a most unsatisfactory state of affairs; but to have further delayed the matter in order to re-draft witness statements/prepare amended trial bundles, would have been contrary to the terms of the overriding objective. Parties and their representatives cannot expect that this will always be the decision of the tribunal. If proceedings have to be adjourned in such circumstances it has to be understood that issues of costs could arise (see further judgment of Girvan LJ in Peifer).

 

1.12 At the commencement of the hearing, the claimant provided, by way of discovery, further relevant documents to be included in the trial bundle. It was properly recognised by her counsel, that these should have been discovered previously. The respondent's representative did not object to their admission; but, subject to the ability of the respondent to comment, as appropriate and necessary, on their contents and/or the weight to be given to and/or the lateness of their discovery of same. It is necessary to also note at this point that, during the course of the hearing, a considerable number of further relevant documents were provided by way of discovery by the claimant. These again were admitted in evidence, without objection by the respondent's representative, subject to the same caveats referred to above. This 'drip feed of documents', during the course of a hearing, is never satisfactory and, in this particular case, again illustrated the failure of proper preparation for these proceedings, as outlined previously. Parties, who provide discovery in such a way have to be aware a tribunal will not always admit, in evidence, such documents or, if it does so, give them any weight.

 

1.13 At the conclusion of the substantive hearing on 6 July 2015 the representative of the parties each provided, by agreement, written submissions to the tribunal, which were then the subject of further oral submissions at a further hearing before the tribunal on 10 August 2015. It was subsequently necessary for the Employment Judge to hold a Case Management Discussion on 11 September 2015, as set out in the Record of Proceedings. As set out in the said record, the terms of the agreement made by the representatives in relation to any award for injury to feelings, as referred to in Paragraph 1.7 above, were clarified and, in particular, the agreement was only as to quantum for injury to feelings; and it was further agreed it was for the tribunal to make a decision, if relevant, whether or not compensation was payable to the claimant, pursuant to Regulation 43(2) of the Employment Equality (Age) Regulations (Northern Ireland) 2006 in the event the tribunal determined that the claimant was indirectly discriminated against by the respondent, pursuant to the said Regulations.

 

Further, as set out in the said Record of Proceedings, reference was made to a recent decision of the European Court of Justice, having regard to the decisions referred to by the Court of Appeal/Employment Appeal Tribunal referred to by both representatives in their earlier written and oral submissions.

 

As set out in the record, the representatives were given the opportunity to provide to the tribunal, if they wished, further written submissions on those matters which opportunity the claimant's representative exercise.

 

1.14 At the commencement of the hearing, the claimant's representative confirmed that, if the tribunal found the claimant's dismissal unfair, she wished to obtain, by way of remedy, an award of compensation and, in particular, she did not seek an Order for Reinstatement and/or Re-engagement, pursuant to the provisions of Article 147 - 151 of the 1996 Order.

 

1.15 Declan Gormley is the owner and sole shareholder of the respondent. It was not in dispute that the respondent was vicariously liable for the acts of Declan Gormley for the purposes of these proceedings (see further Regulations 26 and 27 of the Employment Equality (Age) Regulations (Northern Ireland) 2006 ('the Age Regulations').

 

2.1 The tribunal heard oral evidence from the claimant and from Mr Declan Gormley on behalf of the respondent. 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 written and oral submissions of the representatives, the tribunal made the following findings of fact, set out in the following sub-paragraphs, insofar as relevant and necessary for the determination of the claims of the claimant.

 

2.2 The claimant was born on 16 July 1967 and commenced employment with the respondent on or about 2 August 2004, when she was aged 37; and her said employment with the respondent ended on or about 28 October 2014, when she was aged 47. She was initially employed by Ulster Weavers Limited, as store manager of their retail unit in the Linen Green Retail Complex near Dungannon, County Tyrone, the store was subsequently acquired by Kincull Limited (the respondent) on or about 1 August 2007. The owner and sole shareholder of the respondent is Declan Gormley. The respondent continued to trade as The Ulster Weavers Giftstore. Pursuant to the TUPE Regulations, the claimant, along with other staff, were transferred to the respondent on or about 1 August 2007 on the said requisition after Ulster Weavers Limited decided to leave retailing.

 

The claimant, when employed by Ulster Weavers Limited, reported to head of retail. On the acquisition of the store by the respondent, the claimant's role expanded to include the role of retail buyer, in addition to that of store manager, with the claimant reporting directly to Mr Gormley. In the absence of the resource of the head office of Ulster Weavers Limited, the claimant, following the acquisition of the respondent, had to take on additional responsibilities as store manager for a range of other administrative matters, which previously would have been handled by the head office of Ulster Weavers Limited.

 

On the termination of her employer with the respondent on or about 28 October 2014, the claimant was in receipt of in or about £2,450.00 gross per month and £1,853.13 net per month.

 

2.3 Declan Gormley previously worked for Ulster Weavers Limited, as chief executive officer, but he left that employment in or about late 2007/early 2008. Prior to his leaving Ulster Weavers Limited, Mr Gormley in his role as chief executive officer, had written to the claimant more than once complimenting her on her performance as store manager.

 

2.4 The claimant, following the said transfer to the respondent, was involved in the day-to-day management of the store, as well as carrying out the said buying activity. The claimant managed eight other full and part-time staff. As buyer, the claimant had to travel to trade shows and the offices of suppliers to the store. She dealt with the book-keeper and prepared cheques for payment; but Mr Gormley dealt with all real estate and accounting matters relating to the operation of the store. Mr Gormley was not operationally hands-on in the store on a daily basis; but he communicated on a regular basis with the claimant by means of e-mail/text/telephone calls. In addition, he had a regular meeting in the store with the claimant on a Saturday, with an occasional midweek meeting. At no time did Mr Gormley ever express any criticism of the claimant in her performance as either store manager or buyer.

 

2.5 Declan Gormley has a very impressive and lengthy business curriculum vitae of which he was clearly very proud, as set out in his witness statement. After referring to his ownership of the respondent, which had traded for 17 years in the retail and property sectors he informed the tribunal:-

 

"I'm also currently managing director of Brookvent Limited, manufacturing company operating in the ventilation market in the UK and Europe, the US and Australia, with offices in Northern Ireland, Poland and South Korea."

 

He also referred to his previous position as chief executive officer, as set out above, with Ulster Weavers Limited, pointing out it had employed 600 plus staff in five factories in Northern Ireland, with overseas operations and offices in the USA and China.

 

He informed the tribunal he started his career in retailing with Sears PLC, major retail group, as a trainee manager and over an 18 year period, he held the following roles, inter alia:-

 

Store manager of the largest 282 stores in the UK.

 

Area manager for Northern Ireland in the Isle of Man.

 

General manager for the Republic of Ireland.

 

UK retail controller for a 300 national footwear chain.

UK retail director for three retail divisions with a combined turnover of £350m across 570 stores."

 

He set up and managed a new retail chain that expanded from one concept store to 355 over a four year period employing 3,800 staff approximately across the UK and Ireland. He pointed out that all of the management roles in the business had a degree relevant qualification and he had been instrumental in initiating the first graduate recruitment in the company to facilitate the ongoing development of the business. [Tribunal's emphasis] He has held the role of group sales and marketing director of the Sweater Shop PLC (a fully integrated manufacturing retail business in the fashion sector); and from which role he took up the position of board director at the Hampden PLC, where he had full responsibility for all retail and buying functions across a variety of trading formats from DIY (Homebase), Automative Car Replacements (Kwit Fit) to Furniture (Reids).

 

He also held a number of non-executive director posts in retail, manufacturing and was a board member of NI Water and for nine years held the post of deputy chairman of Action Renewals, a company involved in renewable energy development.

 

It has to be noted that the type of national stores, the subject of the management roles, referred to above, were generally very different to size and complexity to the Linen Green Store.

 

2.6 Declan Gormley, as the owner and only shareholder of the respondent, was responsible for ensuring compliance with an equal opportunity obligations. During the period of ownership of the respondent, prior to the event, the subject-matter of these proceedings, Mr Gormley carried out no review of the respondent's Equal Opportunities policies which, in particular, made no reference to the issue of age discrimination, introduced by the Employment Equality (Age) Regulations (Northern Ireland) 2006 (see later). He had not been involved in the recruitment of the claimant, when she was initially employed by Ulster Weavers Limited.

 

2.7 During the period between 2007 and 2014, there was a decline in the turnover and profits of the Linen Green store. Although there was considerable dispute between the parties about the reasons for this decline, the tribunal is satisfied that a major reason related to the recession during this period and the consequent adverse trading conditions. The tribunal noted that Mr Gormley personally injected during this period considerable financial funds into the business, albeit it accepts the claimant would not have been aware of any such detail; as it is satisfied Mr Gormley did not discuss in any detail such financial matters with the claimant; prior to the events the subject-matter of these proceedings. The tribunal is not satisfied, on the evidence, this decline was because of any performance issues of the claimant in her role as store manager/buyer. Indeed, at all times, Mr Gormley emphasised that the decisions taken by him, the subject-matter of these proceedings, were not related to any criticism of her performance in the said roles as store manager/buyer.

 

2.8 On 3 January 2014, Mr Gormley e-mailed the claimant to express detailed concerns about the declining financial performance of the store, including a reference to 'in summary':-

 

"Turnover is down 10.2% on last year and 26% over the last five years.

 

Profit is down 67% on last year an average 44% on the previous four year average figure.

 

These are very disappointing figures, and based on our performance in the last six months may well mean 2014 is going to record a loss.

 

What is keeping us in the black at present is the 50% reduction in rent, plus the service charge holidays and 18% annual reduction.

 

We obviously need to discuss what can be done about turnover, but in the absence of any short term change in trading we will have to take action on costs."

 

The e-mail further set out detailed concerns about costs.

 

At that time there was no specific reference about the claimant's position or of any possible redundancies; but the tribunal is satisfied the claimant would have been fully aware from the e-mail, but also further conversations and meetings with Mr Gormley in subsequent months, about the store's performance and the difficult and serious financial position of the business. The claimant, in the following months, undoubtedly contributed to informal discussions with Mr Gormley about measures to remedy the above position and would have also made suggestions how she believed the financial situation might be improved. However, the tribunal is satisfied that, during this period she was unaware that Mr Gormley was carrying out a strategic review of the business, as referred to later.

 

2.9 The tribunal can accept, during the period between January 2014 and early June 2014, Mr Gormley was carrying out some form of review of the business based on his consideration of the relevant financial data produced by the business during the period, his various meetings with the claimant and including a visit to the store about 20 March 2014 by a 'mystery shopper'; but there was no documentary evidence of this review produced in evidence which, in essence, was conducted, in the judgement of the tribunal, by Mr Gormley 'in his head'. Further, during the above period, Mr Gormley did not take the claimant into his confidence about carrying out such a review or ask for her direct input into same.

 

2.10 At some date during this period Mr Gormley concluded that, due to the continuing serious deterioration in the performance of the business, and its financial viability, there required to be a restructuring of the existing store model, where the store manager, namely the claimant, combined the functions of buying and store manager, and to replace it with a model, with which he was familiar with from his experience in the retail industry. Under this model whereby the buying and retail functions would be separated. He believed the change would provide a more concentrated focus on each said area and would result in the necessary and required upturn to the business, which he believed to be essential.

 

2.11 On 5 June 2014, Mr Gormley telephoned the claimant and he informed her, to her great surprise, that he had carried out a review of the business but was also intending to implement a restructuring of the business and that her role was at risk of redundancy; and, in the circumstances, he would now intend to commence a consultation process at a meeting with her on 7 June 2014, when he was next due to visit the store. Given the absence of any previous indication of the review, the tribunal can well understand the claimant was surprised by the nature of this phone call and, in particular, what she was told about the risk of redundancy; albeit she would not have been surprised about the ongoing financial difficulties of the store, given the January memo but also the informal discussions in the subsequent months.

 

He referred to the fact that he had concluded, following his review, the business could not go on as it had previously, with pressures on cash flow and drop in sales. During this conversation, the tribunal is satisfied he referred, in very vague terms, as part of the restructure, to having a full-time store manager, focusing on in store retailing, and a part-time buyer responsible for products selection and procurement. He did not, during this conversation, in the judgment of the tribunal, refer to the salary and qualification and/or precise job duties for either of these roles. There may have been a reference, as part of the restructure, to also employing someone to carry out a role in relation to financial management. Subsequently, Mr Gormley dropped the idea of this third role in financial management and, in the circumstances, does not require to be considered further by the tribunal.

 

In a confirmatory e-mail, dated 5 June 2014, Mr Gormley stated:-

 

"I've been reviewing the performance of the store since I wrote to you on January the 3 ^rd outlining my concerns about its deteriorating financial performance.

 

As we've discussed this on a number of occasions since, and with the ever increasing pressures on cash flow, (which has resulted in me having to put money into the business last month to meet both the wage bill, and relieve some of the credit of pressure) I'm sure you'll not be surprised that I have concluded that we have now reached the stage that action needs to be taken to address this continuing drop in sales and the result that negative impact is having on the business.

 

As such I must point out to you that your role may be at risk by reason of redundancy in this process.

 

I will therefore want to meet with you on Saturday the 7 ^th to enter into a period of discussion/consultation regarding this possibility.

 

... ."

 

As set out above, Mr Gormley gave no further details of the potential changes, outlined in the previous telephone call.

 

2.12 A meeting took place on 7 June 2014 between Mr Gormley and the claimant at the store. Subsequently, the claimant sent an e-mail, on 7 June 2014, to Mr Gormley with her minute of what took place:-

 

"(1) You are considering a restructuring of the store management due to store profits being down.

 

(2) Your initial restructuring proposal is that the present store management functions would be divided in three functions/roles -

 

(a) in store daily retailing;

 

(b) purchasing (a part-time buyer is likely to be employed);

 

[(c) daily management including financial management.]

 

(3) Only my position as store manager is currently being considered for redundancy.

 

(4) You're open to alternatives for my redundancy.

 

(5) We're entering into formal consultation phase.

 

This has taken me by surprise and I will need some time to consider and put forward some alternatives for your consideration and further discussion."

 

2.13 In a letter, dated 9 June 2014, following the consultation held on 7 June 2014, Mr Gormley set out his recollection of the meeting:-

 

" ...

 

I wish to confirm in writing the main points of our consultation meeting held on 7 ^th of June 2014 at which I reviewed again the financial position of the company, and its continuing trading difficulties, which as a result will mean the store will fail to reach its sale targets and the result and impact this is and will have on both cash flow and profitability.

 

It is therefore with regret that the company has had to undertake a review of how to address this situation, and as a consequence it concluded a business restructure and re-organisation is necessary in order to approach the future in an economically viable position.

 

In this regard your current role and post is considered at risk and may become redundant.

 

Although we have clearly identified a potential redundancy situation within the company, you can be assured that I will do everything possible to formally consult with you in regard to the situation in trying to identify, if there are any other alternative roles within the business.

 

I would therefore ask you to personally consider and put forward any alternative proposals or suggestions which you feel may be relevant.

 

If these measures do not resolve the current employment situation, it will be regrettably necessary to consider making your current role redundant.

 

You are assured that you will be fully involved and consulted at each and every stage before decisions are reached and I will speak to your over the next few days, if required.

 

Should it regrettably prove necessary to issue a formal notice of redundancy then you will obviously be allowed any part-time off as necessary to attend interviews or to look for alternate employment.

 

On a personal note may I say how sorry I am that situation has come about and I wish to assure you that this is no reflection upon your abilities or commitment to the company. It merely reflects the difficult trading circumstances in which the company is operating."

 

It is to be noted that in this letter, again no details is provided about the salary, job duties or qualifications required for the said roles of store manage, part-time buyer. There then followed a series of detailed correspondence by way of letters/e-mails between the claimant and Mr Gormley over the following weeks. The tribunal has not referred to all this correspondence in the course of this decision, but all has been considered by the tribunal before reaching its decision on the claimant's claims as the tribunal is satisfied it accurately reflects the respective positions of the parties at the relevant time. Indeed, the correspondence between the claimant and Mr Gormley , supplemented by some meetings, was, in essence, the main feature of this initial consultation period. As can be seen the correspondence from the claimant was very detailed. The tribunal has little doubt that her partner, Mr Wately, an experienced businessman assisted her in the drafting of same.

 

2.14 The claimant, by e-mail dated 10 June 2014, replied:-

 

" ... I confirm I will forward some alternative ideas to my redundancy for your consideration. Considering the huge impact your decision will have on me, I would like an adequate period of time to consider and formulate my response ... ."

 

The claimant in a letter, dated 13 June 2014, sent alternative proposals to her redundancy, in advance of a further meeting between the claimant and Mr Gormley on 14 June 2014.

 

After placing on record her continuing total commitment to the business and to making it a successful and profitable business, and after taking comfort the redundancy bore no reflection upon her personal ability or commitment to the business, which was never denied, and how she and other staff totally relied on the business for their livelihoods, she set out her detailed proposals and suggestions to improve the situation as outlined by Mr Gormley.

 

She first referred to the store's financial performance and acknowledged the drop in sales and set out her detailed reasons how this had arisen, including the recession, the absence of a website, tighter credit terms, drop in stock levels and absence of sufficient working capital. She also set out various alternative store management models, including giving her as store manager, additional responsibility as regards the financial management of the store but also franchising the business to the claimant.

 

At a meeting on 14 June 2014, the claimant was able to provide to Mr Gormley a personal statement, expressing her initial shock at the phone call dated 5 June 2014 indicating that her position as manager might be in danger of redundancy and the follow-up meeting dated 7 June 2014 and how since then she had been 'through a rollercoaster of emotions from deep disappointment to anger'. She also expressed his disappointment that there required to be a formal consultation process and stated, inter alia:-

 

"The biggest hurt is that despite you saying personally and in the letter that this in no way reflects on my personal performance commitments, I don't see how that can be."

 

She concluded the statement by stating:-

 

"I'm totally committed to making the store a success for you but if there is to be a role for me in managing the store going forward I need to know that you, Declan, both place a value on my ability and performance but most importantly that you want me in the business."

 

2.15 In a letter dated 16 June 2014, following the meeting on 14 June 2014, the claimant set out proposals in relation to structure, which clearly reflected what had been discussed with her by Mr Gormley at the meeting:-

 

"Structure

 

You have referred to splitting my current role into three separate functions sales, retail and management and that many stores separate these roles. I do not dispute that other stores operate such a structure but from my knowledge they are ones that are much larger than we are ... multiple responsibility by staff is very common in small businesses many would say an essential requirement for their success. The current structure where buying and retail is combined enables me to be very responsive to the marketplace.

 

It would be helpful if you could show more details of your proposed new structure as it is not clear how responsibility would be split and how it would practically operate. [Tribunal's emphasis]

 

... ."

 

In addition, the claimant set out a range of options, as alternatives to redundancy, which she considered could improve the profitability of the store, after visiting a number of similar type stores, since 5 June 2014, where she was struck by the much higher level of stock per square footage of floor space.

 

She stated all these options 'retain my current managerial role in a largely similar format to present albeit with probably additional workload and responsibility. Retaining my role as store manager is both my personal preference but also one I feel has the best potential to increase the store profitability. I have not included any solutions that envisage your proposed elimination of my role in separating into three separate functions as I have no real detail on that model'. [Tribunal's emphasis]

 

She also referred to 'possible alternative store management models, involving restructuring the entire gift and fabric store team, including a reduction in hours across the team, reduction in staff such as a need for a fabric store supervisor.

 

In a further letter dated 16 June 2014, the claimant set out her further response, following the meeting dated 14 June 2014 including, further details of new working capital investment, in response to Mr Gormley's indication of his disposal of the store in three years time.

 

2.16 In an e-mail dated 19 June 2014, the claimant wrote to Mr Gormley:-

 

"I refer to your phone call at 1730 today advising that -

 

(1) None of my alternatives for redundancy are of interest to you.

[Tribunal's emphasis]

 

(2) You will send me a letter later tonight.

 

(3) You want an answer from me tomorrow.

 

(4) You want to meet at 12 o'clock on Saturday to discuss and bring process to conclusion.

 

As advised I think these timescales are unacceptable as I need adequate time to consider what you will send and then prepare a response. As you will be aware tomorrow is my normal day off so your timescales effectively only given me three hours to prepare.

 

I would request you review your timescales."

 

2.17 In a letter dated 19 June 2014, Mr Gormley responded to the claimant's letter dated 13 June 2014, the meeting on Saturday dated 14 June 2014 and the points raised in the claimant's subsequent letter 16 June 2014, referred to previously. This letter, it is noted, was on 'formal' headed notepaper of the respondent. In that said letter, Mr Gormley, on behalf of the respondent, stated, insofar as relevant and material, as follows:-

 

" ... I have now had the opportunity to review the proposals you have submitted, but regretfully they do not offer an option, which will provide an acceptable alternative to the restructuring proposal, which has put your current role at potential risk of redundancy. [Tribunal's emphasis]

 

Having outlined the proposed structure for the business, I note that you believe that splitting job roles is more relevant for larger stores and that the current combined role is best suited to the needs of the store. It is necessary to point out that this would perpetuate the current model which has failed to deliver either sales or profit growth over the last seven years. Therefore it does not seem to be logical to suggest it will work any better going forward."

[Tribunal's emphasis]

 

Mr Gormley then set out his rejection, with some reasons, for the various detailed suggestions made previously by the claimant in correspondence of the said meeting but which he did not believe would resolve the problems for the business outlined above:-

 

" As such we have reached a point where we have been unable to identify any suitable alternatives to your current role.

 

As a consequence, I would now like to invite you to a further meeting with me to discuss the above.

 

The outcome of that meeting may be that you are dismissed for redundancy, and, if the decision is confirmed, then you will be made redundant with effect from September the 21 ^st 2014." [Tribunal's emphasis]

 

In the letter Mr Gormley, when arranging the meeting for Saturday 21 June 2014 to discuss the matter further, referred to the claimant to be able to be accompanied by a colleague or trade union representative.

 

The letter concluded by informing the claimant she would have a right of appeal, if her position was ultimately confirmed as redundant; and in the letter he also agreed she could either remain working or, if she preferred, take paid leave of absence. By a subsequent series of e-mails, Mr Gormley suggested a meeting on 23 June 2014 rather that 21 June 2014, as he was 'happy to accommodate her request for more time'.

 

However, by e-mail/letter dated 21 June 2014, the claimant again complained of the short notice for the meeting and inadequate time for preparation; and, in order to provide sufficient time for response, she suggested an alternative for the date for the meeting to be given by her by 24 June 2014.

 

2.18 There then followed a further series of e-mails, trying to arrange an agreed date for the meeting. In particular, Mr Gormley stated in an e-mail dated 25 June 2014 sent to the claimant, in error, from Mr Gormley to his solicitor at 13.36 stating:-

 

"Strong response was necessary."

 

In the tribunal's view this related solely to getting such an agreed date without further delay and was of no greater significance. In an e-mail to the claimant on 25 June 2014, at 17.35, Mr Gormley stated, confirming his view as set out to his solicitor:-

 

"We have already carried out our redundancy consultation and as far as I am aware no further proposals have been put by you ... I think it is time we brought this matter to a conclusion."

 

2.19 In a letter, dated 26 June 2014, the claimant, after acknowledging the economic downturn had created a harsh environment for retailers over the relevant period, she stated Mr Gormley had provided no reason why a restructure of the team would not achieve the same financial outcome as her redundancy would. She maintained her belief a managerial role combining buying and retail management is essential for a business of this size. A buyer who does not know the customer base will not deliver the best value. She maintained she did not believe splitting the roles would work but accepted that that did not mean other changes should not take place.

 

2.20 In a further letter dated 26 June 2014, in advance of the proposed consultation meeting, the claimant stated, inter alia:-

 

" ...

 

(2) Pre-determination of outcome

 

You appear in your letter dated 19 ^th of June to have already determined to make me redundant just over a day later on Saturday the 21 ^st of June 2014 despite this meeting being classified as part of your consultative process. Your letter goes as far as noting the end of date of my employment exactly three months after your proposed Saturday meeting, despite consultation being ongoing at the time your letter was sent. It seems obvious that despite proposing a consultation meeting for 21 ^st of June 2014 you have resolved to terminate my appointment that same day regardless of what I may have proposed at that meeting or regardless of the outcome of the meeting.

 

(3) Consultative process

 

'(3.1) Alternatives to redundancy

 

I provided alternatives to my redundancy to you in my correspondence of 9 ^th of June 2014. During our meeting on 14 ^th of June 2014 you commented positively on the consideration and effort I had put into my proposals. You asked me to provide further detail of a number of them which I did in my correspondence of 16th of June.

 

As my performance is not in question as regards to the failure to increase store turnover of profit it seems strange that you dismiss every single suggestion I made whether to increase sales, improve stock cash management, inject new stock cash investment or reduce costs. You have appeared to dismissed all of my suggestions out of hand with little as to why they wouldn't achieve the same financial outcome as my redundancy would.

 

As an example, if franchising or sale is now so unattractive to you and so robustly ruled out now why did you ask me 14 ^th of June 2014 to develop it further for your consideration ...

 

I have endeavoured at all times to engage positive, constructively and a timely manner during the consultation. I have both directly indicated my desire to be part of the business going forward, being prepared to put part of my existing salary at risk, as well as being willing to invest in the business.

 

I do not believe that you have shown real willingness to consider any of my suggestions. I would have thought that you would have considered implementing some of the simpler ones and test whether they would work or not. I do not believe that we have reached the end of what could be termed a full consultation period whereby all options and alternatives to my redundancy are explored. Your letter of the 19 ^th of June 2014 indicated your intention to notify me of the termination of my employment after this consultation meeting. In my opinion you need to both reflect and deliberate properly on my suggestions at this meeting before reaching a decision.

 

(3.2) Redundancy

 

My understanding of the law is that you have to establish that the requirement of the business for employees to carry out of a particular kind is ceased or diminished. One purpose of the consultation is to explain how and why that is the case.

 

It is clear to me that the business still requires all of the duties that I perform to be carried out. At no stage during this process have you provided any details of the roles in the store management restructuring process - namely the in store retailing role and the part-time buyer role, mentioned during our first consultation meeting on 7 ^th of June 2014 and how my duties will be carried out in the future and by whom. I have no clarity at present as to whether there is a redundancy situation at all. [Tribunal's emphasis]

 

(3.3) Alternative employment

 

I would like further details on the proposed new roles, ie the skills, duties and remuneration, to see if any of these roles are suitable alternatives for me. I do no see how a consultation process could be deemed to have reached a point where you 'have been unable to identify any suitable alternatives' to my role when you haven't even provided me with any details of these roles (let alone a job description) and I'm left entirely unclear as to what they are and involve. I would expect that on providing details on these roles you will afford me a reasonable period of time to consider them before taking any further steps. [Tribunal's emphasis]

 

2.21 Mr Gormley replied, in detail, to the claimant's initial letter of 26 June 2014, in response to his letter of 19 June 2014 and strongly rejected, in terms, the claimant's proposals/suggestions - stating, inter alia:-

 

"The purpose of the restructure proposal is to take a different approach to how the business is currently structured in order to try and achieve an improved performance on both sales and profitability. It is not a cost-cutting exercise ... ."

 

2.22 In relation to the claimant's second of 26 June 2014, Mr Gormley replied as follows:-

 

" ...

 

(2) Predetermination of outcome

 

I note your comments and I reject entirely.

 

To be crystal clear on this point I've taken no decision on the termination of your employment.

 

Your attempt to interpret matters in the way you have chosen is wrong and I would want to note for the record that this has now been communicated to you on more than one occasion in this process.

 

I remain open-minded in regards to the outcome of this process, and will only make any decisions after our meeting on July the 4 ^th. [Tribunal's emphasis]

 

I hope this is sufficiently clear for you.

 

(3) Consultative process

 

I do not accept that I have not shown real willingness to consider any of your suggestions. My very comprehensive reply to these suggestions would indicate otherwise.

 

I remain open to any suggestions, ideas or alternatives you may have to put forward and will give this due consideration on their merits.

 

It should not be interpreted by you that a rejection of any proposal put forward is an unwillingness to give it full consideration by myself.

 

No decision on redundancy will be taken until all possible proposals have been considered and all will be reflected upon and deliberated on, before any decision on termination of your employment is taken.

 

(4) Redundancy

 

We have already reviewed and discussed this matter at our previous meetings and I would be happy to do so again at our next meeting.

 

The current position is that your current role is at risk of redundancy going forward as the role will no longer exist in its current format as the role is going to be split into two separate functions. [Tribunal's emphasis]

 

(5) Alternative employment

 

The alternative roles being created are as follows:-

 

Store manager

 

Carrying out all the functions required in managing a store

 

Salary : £16.5 - £18K full-time

 

Part-time buyer

 

Purchasing of all products sold in store or online

 

Salary : £14K two days p.w

 

As you are highly familiar with both roles I do not anticipate that you would require significant time to evaluate, and would consider the time between now and July the 4 ^th adequate in this regard." [Tribunal's emphasis]

 

2.23 In light of the above correspondence, the consultation meeting was finally arranged for 4 July 2014 in Belfast.

 

2.24 In a further letter dated 3 July 2014, the claimant replied as follows to Mr Gormley's letter dated 27 June 2014:-

 

" ...

 

In previous correspondence you stated on more than one occasion was a redundancy dismissal meeting. You now state that 'no decision on redundancy will be taken until all possible proposals have been considered on and all will be reflected upon and deliberated on before any decision on termination of employment will be taken'. I, therefore, assumed that the Friday 4 ^th of July 2014 meeting is a further consultation meeting.

 

(2) Predetermination of outcome

 

I note your comment that you have taken no decision on the termination of my employment and you are fully committed to a full and meaningful consultation.

 

Your previous correspondence to date suggests otherwise. In your letter dated 19 ^th of June 2014 you state 'as such we have reached a point where we have been unable to identify any suitable alternative to your current role'. It also notes 21 ^st of September 2014 as a likely redundancy date.

 

Your e-mail to Andrea inadvertently sent to me on 25 ^th of June 2014 at 14.36 supports my concern as does your e-mail to me on 25 June 2014 at 17.35.

 

...

 

(4) Redundancy

 

I am still not clear that the requirements of the business for my role as store manager is ceased or diminished and I would request that you provide further explanation on your rationale. [Tribunal's emphasis]

 

It is noted that you are proposing to increase the management complement from one FTE to 1.4 FTE and the staff costs for same will exceed by basic pay.

 

(5) Alternative employment

 

The details for your new structure and the two new roles are noted. I will give consideration to this.

 

...

 

(7) Redundancy entitlement

 

I repeat my request for details of my redundancy, notice and other entitlements so I can consider alongside your alternative roles as store manager, part-time buyer noted at Point (5) and have reasonable information available to me, so that I can make informed personal decisions in relation to my employment. [Tribunal's emphasis]

 

(8) Appeal

 

The hearing of the appeal solely by you is noted.

 

In the event of an appeal being submitted would you consider the Labour Relations Agency? They offer a range of dispute resolution processes that review the process and possibly mediate. I confirm my willingness to fully participate in their processes ... ."

 

2.25 At the meeting on 4 July 2014, the claimant was accompanied by Mr McAnoy, trade union representative. Mr Gormley was present, accompanied by Mr Alan Adair, as note taker, who is an HR consultant; albeit his role on this occasion was note taker for the purposes of the meeting. Notes were taken at the meeting by Mr Adair, which were subsequently typed-up and which the tribunal is satisfied accurately reflect what was said during the course of the meeting.

 

In particular, the said notes stated:-

 

"BM (Mr McAnoy) and AM (the claimant) and DG (Mr Gormley) -

 

BM Introduced himself and advised this was the first consultation that Alison had been accompanied at and he would be acting as a trade union representative. He fully stated his expectation that any proposals would be carefully considered before further action.

 

DG Advised that both consideration would be given any further proposals and for clarity outlined events thus far stating:-

 

•          Called Alison by phone on 5 ^th of June 2014 to arrange a consultation meeting re the restructuring and re-organisation of the business

 

•          Meeting arranged and subsequently held on Saturday 7 ^th of June

 

•          On 13 ^th of June a letter was received from Alison

 

•          On 14 ^th DG had a follow up meeting

 

•          On 18 ^th of June DG responded to proposals that had been submitted advising that they were not acceptable alternatives and invited Alison to a further meeting the outcome of which could result in dismissal due to redundancy

 

•          On 21 ^st of June a letter declining the meeting was received from Alison

 

•          Further date of 28 ^th of June was proposed and there were various other exchanges before the meeting was again declined due to identification and availability of a TU representative

 

•          Hence we arrive at today's meeting

 

BM Thanked DG for the background information but questioned the validity of consultation that had taken place as it had been without representation and also queried the nature of the redundancy

 

DG Advised that the current position was redundant as the restructuring would mean that the functions and buying of retail management would be separated and carried out as two distinct roles [Tribunal's emphasis]

 

BM Had difficulty with this rationale

 

DG Advised the focus was to restructure the business in order to improve to business performance as the current model is not working

 

BM Concerned that the alternative employment was at a much reduced salary

 

DG Pointed out that there would be growth in diminishing margins over the last seven years and to maintain current position would probably mean the demise of the business

 

BM Intimated that dismissal may be a constructive dismissal

 

DG Advised that he was open to a proposal that would produce the required improvement in business

 

AM Clarified the position of AA, and then went onto advise that she had not had sufficient time to organise representation and concern about the case for redundancy and waited three weeks for a response to proposals. She had not yet seen the detailed proposal for alternative roles (submitted written statement). [Tribunal's emphasis]

 

BM Suggested the job descriptions for the two roles should be supplied with the associated terms and conditions, hours, pay, etc.

[Tribunal's emphasis]

 

AM Asked for these to be in written form.

 

BM Further requested the detail of the redundancy entitlements to be advised.

 

DG Confirmed that he would furnish these outstanding items as soon as practicable on the understanding that these are not to be considered to be necessarily his final position at this point."

 

2.26 In a further letter dated 4 ^th of July 2014, following the meeting, the claimant attached a copy of the said statement referred to above. In relation to the pre-determination of outcome and consultative process, the claimant repeated many of the matters already set out in previous correspondence.

 

In addition, she stated:-

 

"(3) Redundancy

 

I am still not clear that the requirements of the business for my role as store manager has ceased or diminished and I would again request you provide further explanation and your rationale to be in writing. [Tribunal's emphasis]

 

(4) Alternative employment

 

As advised at the meeting I am interested at this stage in both the roles and request further detail on them both in terms of job description, duties, terms and conditions, etc. In both the roles I assume these can be provided very quickly to me? [Tribunal's emphasis]

 

Can you provide details of your plans to fill these posts - do I have first refusal? Are you open to alternatives to your proposed two new jobs? [Tribunal's emphasis]

 

(5) Redundancy entitlement

 

I would again repeat my request for details of my redundancy, notice and other entitlements so I can consider alongside your alternative roles as store manager/part-time buyer. The response that you won't provide these as it could be misconstrued is invalid as I have requested twice previously in writing. [Tribunal's emphasis]

 

Surely if you expect me to make an informed personal decision as regards my future employment it is only reasonable that you provide full details of my financial options? I would again repeat my request for details of my redundancy, notice and other entitlements for the various options you foresee. [Tribunal's emphasis]

 

There is clearly a substantial level of information outstanding from you that would normally be provided at the outset, or least early on, in the redundancy consultation process. Why this is still outstanding over four weeks after you advised me my job was at risk of redundancy and you decided the consultation process was over and summoned me to a redundancy dismissal meeting could be viewed as irregular. It also raises major concerns over the extent of consideration given to your proposed restructure plan that determined my job was at risk and the genuineness of your consultation exercise process. [Tribunal's emphasis]

 

Until full information is provided and adequate time is given for consideration and clarification I am of the opinion that the redundancy consultation process remains ongoing and any action to terminate my employment before completion of consultation would be premature and unfair. [Tribunal's emphasis]

 

For the record and avoidance of doubt I continue to undertake the duties of store manager in the Ulster Weavers Gift and Fabric Store, Dungannon, as usual."

 

2.27 On 7 July 2014 at 12.53, and therefore following the said meeting on 4 July 2014, the claimant received from Mr Gormley the following e-mail, with enclosures:-

 

"You requested copies of the job specs being created to replace the current position which is being made redundant as a consequence of restructuring [tribunal's emphasis]. You also request a copy of your redundancy calculation at our meeting on 4 ^th of July 2014 all are now attached for your perusal."

 

The tribunal is satisfied the receipt of these specifications was the first occasion the claimant was provided, with the details set out therein, in relation to the said two posts of store manager and retail buyer including, in particular, the relevant 'skills/qualifications required for each post'.

 

In particular, the specification stated:-

 

"Store manager

 

Job purpose

 

To oversee the total operations of the store ranging from merchandising, sales, customer service, staff development, to other day-to-day administrative functions, in order to ensure the effective functioning of the store, achievement of business skills and enhancement of the company's image in the market"

 

There were then set out a detailed list of duties and responsibilities and, under Skills/Qualifications it was stated:-

 

"Educated to a degree level (business or marketing degree preferable) and with a salary of £16.5K - £18K"

 

The specification for retail buyer (part-time buyer, two days per week) was in a similar format:-

 

"Job purpose

 

To oversee the total buying and procurement of a diverse range of products in the home/giftware sector required for both the retail store and online ranges, to ensure achievement of business goals, development of product offer, exploration of new product opportunities and enhancement of the company's image in the marketplace"

 

Again there was a detailed set of duties and responsibilities and the specification included:-

 

"The idea candidate will have excellent communication skills, be computer literate (Microsoft Word, Excel Outlook as a minimum) and above all be hardworking, reliable, focused, ambitious and a confident decision-maker

 

A background in the home/giftware sector is essential. Experience of buying for/developing an online business would be ideal

 

The candidate would also have good knowledge of the retail sector in general and at least three - five years in a buying role at managerial level

 

Skills/Qualifications

 

Educated to a degree level with experience at managing and buying function in the home or giftware sector

 

Salary - £14K"

 

A redundancy calculation was sent out to the claimant and enclosed with the said correspondence amounting to £5,800.00; but, as set out later, this was agreed by Mr Gormley to be in error and should in fact have been in the sum of £6,032.00, after taking into account the claimant's relevant age, period of employment and statutory cap.

 

2.28 In a letter dated 7 July 2014, in reply to the claimant's letter of 4 July 2014, Mr Gormley stated, inter alia:-

 

" ... details of posts have been already forwarded to you. If you meet criteria for role I would welcome an application from you. I would be open to listening to alternatives to these two roles which you have been aware of since June 7." [Tribunal's emphasis]

 

In a letter dated 7 July 2014, in response to the claimant's letter of 3 July 2014, Mr Gormley stated, inter alia:-

 

"Your misunderstanding of the consultation process is I think part of the difficulty.

 

We entered into consultation on June 7 ^th where I outlined that your position was a risk due to reasons of your current role being made redundant. I advised you of the fact that two alternative roles of store manager and part-time buyer were being created.

 

I asked you give due consideration to what you were told and revert to me with any further thoughts, suggestions or ideas you may have in relation to alternatives.

 

You replied by letter on June 13 ^th outlining a number of options.

 

On June 14 ^th we met to discuss these in more detail.

 

On June 16 ^th you wrote to me developing your thinking on the proposals you had submitted.

 

You made no mention of considering the alternatives of the two posts being created.

 

I replied to you on June 19 ^th outlining why I felt these proposals were not acceptable.

 

At that point (12 days after our meeting on 7 ^th) no other options have been found which were suitable alternatives to your current role. I wrote inviting you to a further meeting to discuss the above, and advised you that the outcome of that meeting may be that you are dismissed for redundancy.

 

...

 

As a further indication of my good faith in this matter I agreed at our meeting on July 4 ^th (where you were accompanied by your trade union official) to be open to any other suggestions you wish to make to finding an alternative to your existing role.

 

Apart from those contained in your correspondence of June 13 ^th and June 16 ^th I am not aware of any being put forward for consideration. You have, however, belatedly sought details on the job specs for the two roles advised at our meeting on June 7 ^th and your redundancy payment. Both will be provided to you on July 7 ^th 2014. [Tribunal's emphasis]

 

(3) Predetermination of outcome

 

I have already addressed this matter in some detail in previous correspondence and again at our meeting on July 4 ^th.

 

As previously stated I reject your interpretation of events entirely.

 

To be crystal clear on this point I've taken no decision on the termination of your employment. [Tribunal's emphasis]

 

I hope this is sufficiently clear for you.

 

...

 

(5) Redundancy

 

The position of store manager in its current structure where it is combined with the buying role is being made redundant. [Tribunal's emphasis]

 

(6) Alternative employment

 

This information has already been provided to you but at your request I'll provide a more detailed job specification. [Tribunal's emphasis]

 

...

 

(7) Redundancy entitlements

 

Again I would reiterate no decision has been taken regarding your dismissal for reasons of redundancy. [Tribunal's emphasis]

 

At your request a redundancy entitlement (should it be required) will be calculated and forwarded to you.

 

... "

 

2.29 The claimant in a letter dated 8 July 2014 to Mr Gormley stated:-

 

" ...

 

(1) Predetermination of outcome

 

I note again your assertion that my current position is being made redundant as a consequence of your restructuring. You used the word 'replace the current position which is being made redundant'.

 

As recent as our meeting on Friday you stated that no decision had yet been taken on the termination of my employment which your e-mail at 12.53 on Monday 7 ^th of July 2014 is at odds with.

 

Can you please clarify your position it seems to change frequently as regards whether we are still in a consultation process with no decision being yet taken or your mind has been made up and I am being dismissed.

 

(2) Redundancy

 

I am still not clear that the requirements of the business for my current role as store manager has ceased or diminished. The job description for both the store manager and retail buyer (part-time two day) do not make this any clearer. [Tribunal's emphasis]

 

I would again request you address this matter and provide further explanation on your rationale to me in writing detailing how the proposed making redundant of my role -

 

(a) creates less work; and/or

 

(b) creates changes in conditions that result in the new job being quite different from the old one.

 

This specific query has been outstanding since 26 ^th of June 2014 and I believe it is one that must be addressed. Indeed it should have been part of your initial notification of 5 ^th of June 2014 and been explained further during the consultation process.

 

(3) Alternative employment

 

I acknowledge receipt of the two job descriptions and will give them my consideration. I assume you are willing to clarify any queries that I may raise on them during my deliberations?

 

I would request details on any assessment you have undertaken on my suitability for these roles and your efforts to prevent my redundancy? [Tribunal's emphasis]

 

I requested details of your plans to fill these posts - do I have first refusal on one or both of the roles?

 

(4) Redundancy entitlement

 

I acknowledge receipt of your redundancy calculation. Your calculation however is incorrect based on web calculator and the amount should be £6,032.00 and not your £5,800.00. It appears that you have put my current age as 46 rather than the age when I will be redundant (my birthday is 16 ^th of July). Your calculation sheet also notes the pay capped at £464.00 per week. The current figure is actually £470.00 and has been since ___________.

 

I note only one calculation has bee provided which is for the situation of a full redundancy. I had requested details of my redundancy, notice and other entitlements for the various options you foresee which in addition to redundancy option could be one of the two new jobs you are creating. Can you please provide these to me as well.

 

... ."

 

2.30 In a further letter dated 8 July 2014, the claimant raised further issues in relation to the job description of both posts but, in particular, the following:-

 

"Store manager

 

...

 

(6) Qualification/experience criteria is noted as degree educated, 3-5 years' experience in store management, experience. In both marketing and online retailing, etc. Can you advise exactly what qualifications, experience and skills are essential ones and what are desirable ones - it would be helpful if you could clearly split into essential and desirable.

 

Retail buyer part-time two days

 

...

 

(4) Qualification/experience criteria is noted as degree educated, background in home ware/giftware, 3-5 years' experience in a buying role at management level ... Can you advise exactly what qualifications, experience and skills are essential ones and what are desirable ones - it would be helpful if you could clearly split into essential and desirable."

 

2.31 In a letter dated 8 July 2014, Mr Gormley stated:-

 

"Store manager

 

...

 

(6) Essential - degree educated. Marketing, 3-5 years' experience in store management.

 

Desirable - online retail experience.

 

Retail buyer part-time two days

 

...

 

(4) Essential - degree level qualifications. 3-5 years' experience in a buying role

 

Desirable - home/giftware background."

 

2.32 In a further letter dated 8 July 2014, Mr Gormley stated to the claimant:-

 

"(1) Predetermination of outcome

 

Yet again you seem unable or unwilling to distinguish between your current role being made redundant and you personally being made redundant.

 

For the record (again) your current role is being made redundant you personally being made redundant.

 

For the record (again) your current is being made redundant.

 

No decision has been taken in relation to your personally being made redundant until it is established there is no suitable alternative available.

 

To date no suitable alternatives have been identified - 31 days after commencement of the consultation process.

 

(2) Redundancy

 

Your current role is store manager and buyer. This role is now redundant.

 

I'm unable to offer any further clarification on this point than that which you've already been given.

 

I have never stated that the restructuring will create less work. The changes proposed will create two separate and different functions, ie one for store manager and one for buying.

 

This point was addressed in full at our meeting on June 7 ^th. ... ."

 

2.33 There then followed a further series of letters, dated 8 July 2014, between the claimant and Mr Gormley and vice versa; but the said correspondence, in essence, was in similar terms to previous correspondence referred to previously and/or reiterated similar points.

 

However, in a letter dated 8 July 2014, the claimant, in a significant response, in the judgment of the tribunal, for the purpose of these proceedings stated to Mr Gormley:-

 

" As you have made having a degree an essential qualification requirement for both roles, and you know I do not have a degree, I'm excluded from applying. [Tribunal's emphasis]

 

...

 

My position is that I would be interested in both roles with a preference for the role of retail buyer (part-time). [Tribunal's emphasis]

 

... ."

 

In reply, by e-mail, dated 9 July 2014, Mr Gormley replied as follows:-

 

"In response to your letter I would confirm as follows -

 

' ...

 

You note that you do not have the qualification essential for the role and therefore you are excluded from applying.

 

In the last paragraph, however, you state your interest in both roles?

 

As both roles require a degree as an essential to the position and, (now that you have confirmed you are unable to meet this essential requirement), I have to, regretfully, confirm your interest in both roles will not be taken further' ... ."

 

2.34 In a letter dated 18 July 2014, the claimant replied to Mr Gormley's e-mail dated 9 July 2014, firstly noting that it was now agreed the redundancy calculation was £6,032.00 and then she stated, inter alia:-

 

"(2) Alternative employment options

 

It has been your decision to include a degree as an essential qualification in both of the new jobs and effectively exclude me from them.

 

...

 

(c) You have provided no other information on the rationale behind the restructure apart from advising that sales and profit are down and that the trend cannot continue.

 

...

 

(5) Redundancy

 

(a) There has been no explanation why there is a redundancy when the requirements of the business or my current role as store manager is not ceasing or has it diminished.

 

There is no less work and there are no changes in conditions that result in the new jobs of store manager and retail buyer (part-time) being created under your restructure being different to my existing store manager role.

 

Under the Employment Rights (Northern Ireland) Order 1996 a redundancy arises when employees are dismissed because:

 

•          the employer stops, or plans to stop, to carry on the business for the purpose which the employee was employed for;

 

•          the employer has stopped, or plans to stop, to carry on the business in a place where the employee was employed;

 

•          the business no longer needs as many employees to carry out particular kinds of work, or this is likely to be the case in the future;

 

•          the business no longer needs as many employees to carry out particular kinds of work in the place where the employees were employed, or this is likely to be the case in the future.

 

What reason(s) from the list above does your redundancy of the current store manager's role come under?

 

(b) Your proposed increase in resourcing from 1.0 to 1.4 FTE to carry out the same duties with an approximate increase in salary cost of 10% actually indicates you believe you have previously under-resourced the store manager role, is the correct interpretation.

 

(c) Have you considered retaining the current store manager role as is and getting additional management resource/assistance or restructuring the team below store manager to provide the store manager with additional administration support?

 

(d) Why no skills assessment on my capability was undertaken by you at the time of your restructure and notification to me that my role was at risk of redundancy.

 

(e) How my current role as store manager with the current dual management and buying function is made redundant in a restructuring exercise and new roles of store manager (same title even) and retail buyer both with similar duties are created?

 

(f) What real efforts did you as the employer make to avoid redundancy when planning your restructure and how you believe you communicated this to me?

 

(6) New roles being created of store manager and retail buyer (part-time) -

 

(a) Why details of the specific new roles you were creating were only provided over four weeks after you advised me of your proposed restructure and that my role was at risk of redundancy. It is the employer's responsibility to show that they have offered their employees an alternative job.

 

(b) Why it took me to request details of these roles before you provided me any details of them and furthermore why I had to then request job descriptions of the roles? Which is the employer's responsibility to show that they have offered their employees an alternative job.

 

(c) Why you considered it necessary that I apply for the new post of store manager rather than being offered it. It is clearly a less responsible and demanding role then I presently perform as it has the buying duties excluded? The salary level you propose for the new store manager post would indicate that would concur it is a less demanding role than the current store manager one.

 

(d) Why you considered it necessary that I apply for the new post of retail buyer rather then being offered it? It is clearly a less responsible role than I presently perform as it has the daily store management operations excluded although with your ideas for the new full-time store manager to potentially report to the part-time retail buyer the job will become somewhat more similar in responsibility to my present level of responsibility albeit part-time and with considerable level of additional resource.

 

(e) What consideration you gave to me having a trial period in one or other or both of the new roles in order to try and avoid my redundancy?

 

(f) Details of an explanation why you deemed to agree as an essential qualification for both the role of store manager and retail manager (part-time)?

 

(g) What skill gaps you identified in my personal capabilities for either of the new roles when you completed your restructuring plan and what made you feel that training could not successfully bridge this gap as regards my personal capabilities in your new jobs?

 

(h) How you see the proposed duties and activities of the new roles of store manager and retail buyer differ from my current duties and activities of store manager?

 

(7) Consultation process

 

I note you have determined yourself on 9 ^th of July 2014 that the consultation process is now over and you have invited me to a redundancy dismissal meeting. This is the second time you've done this without having given due consideration to all the alternatives to redundancy. Surely prior to determining the consultation process is completed you should enquire to see if there are further alternative for me and satisfy yourself that there are no alternatives for my dismissal?

 

I considered the consultation process to be flawed from the outset - how it was initially notified, the absence of explanation about the proposed restructure, the absence of detailing the process and target timescales, the absence of generally considering alternatives, the clear intentions from the outset to dismiss me, the unreasonable meeting times you sought to impose on me, etc, etc.

 

In my opinion there is no evidence of you, as the employer, fulfilling the obligation on you to make diligent effort to avoid redundancy and consider alternative roles for affected employees. Once it became obvious to me that the innovative ideas I put forward to you on 13 ^th of June 2014 to retain my role (which you initially seem receptive and asked for more detail) would no way be acceptable to you and you summoned me to a meeting giving me a mere three hours' working time notice to dismiss me I then enquired to you about the alternative roles you were creating as an alternative to my redundancy. When on receipt of a brief description and salary I expressed my interest in both of them. I asked for further details. On receipt of full description due to some criteria I discovered you were acquiring a degree as an essential qualification.

 

A response is required as part of a normal consultation process.

 

I would request that you address these queries and respond fully addressing all points to me in writing prior to the redundancy dismissal meeting on Wednesday the 23 ^rd of July 2014. I fail to see how you can determine a consultation process is over with so many process irregularities and so many fundamental long-standing unanswered questions by you, the employer."

 

2.35 In a letter dated 21 ^st of July 2014, Mr Gormley, in reply to the claimant's letter dated 18 July 2014, in essence, repeated his response to those set out in previous correspondence to the claimant and further stated in conclusion:-

 

"It seems to me that in spite of repeated attempted to address the various points you have raised that you are not prepared to accept the answers I have given.

 

In this regard I believe it would be helpful to have your trade union representative in attendance at our meeting in order that me may be assist you in understanding the responses provided.

 

I'm more than willing to address any points you wish to discuss at our meeting and where possible provide further clarification.

 

Even though no new proposals have been put forward by you during the time since our last meeting I still remain open to finding a suitable alternative to your current role (which is being made redundant and if you have other alternative proposed, other than those which have been considered and rejected for the reasons outlined) I would welcome being advised to what they are prior to tomorrow's meeting in order that I can give them due consideration ... ."

 

All of this was repeated in subsequent correspondence by Mr Gormley in an e-mail dated 23 July 2014, following a further letter from the claimant dated 23 July 2014, which again, in essence, repeated what she also had said in previous correspondence.

 

2.36 A further meeting, attended by Mr Gormley with Mr Adair as note taker, together with the claimant and Mr McAnoy was held on 23 July 2014. Again notes were taken by Mr Adair and subsequently typed up - which the tribunal is satisfied accurately reflects what was said during the course of the meeting. The notes were headed 'Redundancy Consultation Meeting' and included the following:-

 

"BM Wanted to clarify what the status of the meeting was.

 

DG Advised that the meeting was to discuss redundancy dismissal and any alternative proposals as part of ongoing consultation.

 

...

 

BM Advised should there be a dismissal an appeal would be sought and enquired who would hear the appeal.

 

DG Advised that he owned 100% of the company and he would hear it.

 

BM Suggested that DG may wish to think about that and suggested other mechanism should be considered.

 

He summarised the meeting and advised the proposals thus far proposed had been considered and then rejected.

 

DG Re-stated that the redundancy was due to the re-organisation of the business and part of the purpose of the consultation was to explore any viable alternatives, however, as yet, none had been identified which satisfied the needs of the business.

 

BM Noted that Alison did not meet the education criteria for the new positions and enquired was there an opportunity of skill.

 

DG Advised that the structure would change and this would require change in skill level for the post in order to achieve the business objectives and it would be impracticable for Alison to achieve a degree in the small window of time available to the business.

 

...

 

BM Enquired what time off will be available to look for other work.

 

DG Advised that if a dismissal was confirmed then reasonable time off would be permitted.

 

BM Enquired if DG found Alison capable and her performance to be satisfactory.

 

DG Confirmed that she had been satisfactory in the old role with no formal disciplinary issues.

 

BM Enquired if Alison had good relationship with customers and good attendance (stated four days' absence in ten years) and asserted that conduct was not the problem. Further stated he did not believe that this amounted to a redundancy and commenced to give what he stated to be the legal definition indicating that an employer will have ceased or intended to cease business or the requirement for work of a particular kind had decreased or ceased.

 

DG Interjected that as far as he was concerned when the restructure takes place the role as currently performed would cease.

 

BM Maintained that the duties would not be decreased or diminished.

 

DG Contended that the role would be enhanced and done differently.

 

At this point there was an agreement to disagree.

 

DG Asked to return to any new alternative proposals as we were now 46 days into consultation.

 

BM Advised that alternatives have already been put forward re stock in the shops etc.

 

DG These proposals have been considered and rejected and not viable and responded to. The proposal to put money into the organisation, Alison is not a director or shareholder, how do you get into the business, is it a gift? Why would the company take on a debt at this point?

 

BM Not my field of expertise but it demonstrates a willingness to help the business.

 

DG I have answered this money question six times in previous correspondence and rejected it, need to move on.

 

BM Why not allow to continue with her current role.

 

DG Desires to do the best for both the employee and the business.

 

BM Reiterate that Alison would receive a written response for the right of appeal and that there were no issues of conduct or performance.

 

DG Advised that in his experience, and probably that of BM, it was uncommon for employees without conduct or performance issues to be subject to redundancy.

 

BM Reiterate accept the premise that it was a redundancy.

 

DG Request again whether any new alternative proposals.

 

AM Advised she would respond in writing.

 

DG Advised he would have expected proposals to be available given the additional time available due to the unavailability of union representation and their refusal to provide a substitute 'due to the complexity of the case'. Found this to be very unusual for a single redundancy in a small company and viewed it as extending the process, already 46 days in, the statutory minimum is 30 days if making 99 redundancies.

 

BM Advised they were not stringing out the process.

 

...

 

Advised additional proposals would be provided within the next few days, will be provided in the proper manner and we'll see where we are thereafter."

 

Following the meeting dated 23 July 2014, the claimant wrote to Mr Gormley reiterating the main points of the meeting, as referred to previously but including the following:-

 

"New roles of store manager and retail buyer

 

You again confirm that I was not suited for these roles and I did not meet the essential qualification of a degree. You further advised you were not consider any training for me for these roles despite never having carried out a skills assessment of me. You also advised you would not consider a commitment by me to work towards a Third Level Qualification. [Tribunal's emphasis]

 

Proposed dismissal

 

We hold the view that any dismissal based on the fact that there is -

 

(a) no legal basis for the redundancy of my current role as store manager;

 

(b) no reason why I cannot be redeployed;

 

(c) no reason why I cannot be allocated one of the new roles.

 

Will be unlawful and constitute unfair dismissal."

 

2.37 Following further correspondence between the claimant and Mr Gormley, in which the claimant, in essence, sought further time to present her alternative proposals, as envisaged at the time of the meeting on 23 July 2014, the claimant presented her set of 21 alternatives to her redundancy, in an attached detailed document, included proposals retaining the status quo and/or retaining the status quo with increased performance-related pay linked to salary, profit, etc and/or restructuring of the entire team and/or reviewing the day-to-day financial management arrangements and/or introducing an EPOS system and/or getting additional capital but also:-

 

"13. Offering me the part-time retail buyer role

 

I have the experience, skills and ability.

 

14. Offering me the store manager role

 

I have the experience, skills and ability."

 

By e-mail dated 28 July 2014, Mr Gormley acknowledged receipt of these proposals, which he said he would now evaluate in more detail and would revert when the process was complete.

 

2.38 In a letter dated 28 July 2014 but not sent until an e-mail dated 30 July 2014 at 16.51. Mr Gormley wrote to the claimant as follows:-

 

"I am writing to confirm the outcome of the final redundancy consultation meeting which took place on 23 ^rd of July 2014. ...

 

As you know, in June, I advised you of our intention to restructure the business and as part of a re-organisation your current role would cease to exist. I believe this is a necessity in order for the gift store to achieve the improvements required to sustain and grow the business.

 

Having undertaken a thorough and extensive consultation process with you, and explored all alternatives (see response attached) to redundancy (including the period for you to make any additional submissions for consideration until July the 28 ^th 2014) seeking ways of mitigating the impact of the redundancy situation, in addition trying to find an alternative role for your, I confirm that unfortunately there are none available and that your role is redundant.

 

I therefore confirm that your employment will terminate by reason of redundancy with effect from 28/10/2014. You will be required to work out your period of notice. Should you wish to leave earlier than your statutory notice period it is a matter that will require mutual agreement. You are entitled to reasonable paid off time during your notice period to look for a new job or arrange training for your future employment. All time off in this regard must be agreed by myself, prior to taking, and must be supported by relevant confirmation details.

 

Upon termination you will be paid the following:-

 

Statutory redundancy payment of £6,032.00

 

...

 

Paid without deduction of income tax

 

Excludes notice period of any outstanding holiday entitlement

 

Payment of your salary is 28/10/2014 and payment in lieu of accrued but untaken holiday entitlement will be paid to you in the normal pay cycle and be subject to the usual deductions

 

...

 

You have the right to appeal against the decision to dismiss you for redundancy and you should do so in writing to me within five days of today's date, stating the grounds of your appeal.

 

... Should you wish to appeal, you will be invited to attend an appeal meeting which will be held by me. You have the right to be accompanied to your appeal hearing by a trade union representative or work colleague ... I very much regret this situation and would like to thank you for your contribution to the company. May I wish you every success in the future."

 

Attached to the said letter was a detailed response by Mr Gormley to the list of alternative proposed by the claimant in previous correspondence but, in essence, rejecting, as set out previously, each of the said alternatives and in relation to her alternatives of offering the claimant the part-time retail buyer role or offering the claimant the store manager role he stated, in relation to each said role, as 'previously addressed. You do not meet the criteria for the new role proposed.

 

[ Query when - age discrimination raised]

 

2.39 The claimant by letter dated 6 August 2014 wrote to Mr Gormley informing him that she wished to appeal the decision stating, inter alia, insofar as relevant and material:-

 

"Prior to listing the items for the appeal I do have to query the likelihood of a fair appeal as you are undertaking the appeal yourself after supposed managing the consultation and making the decision to dismiss me. It is a commonly held practice if someone different and not involved in the original decision always hears an appeal. Furthermore, your resolute refusal to provide me information or answer my questions during the consultation process plus my firmly held belief of your predetermination of outcome from the outset means I have no confidence whatsoever of a fair hearing from you. I will nevertheless submit a robust appeal that my dismissal was wrong and should be overturned.

 

My appeal is on the following basis:-

 

(1) You as the employer failed to initiate a proper redundancy consultation process at the very outset by providing background information on a consultation timescale.

 

...

 

(4) A legal basis for my redundancy fundamentally doesn't exist as the duties of my role as store manager/buyer have neither ceased or diminished in any remote way whatsoever.

 

(5) You as the employer haven't sought any ways to avoid the redundancy you claim occurs as a result of your proposed restructuring exercise.

 

...

 

(7) You as the employer never carried out any skill assessments on me to assess my suitability for re-training for possible redeployment or alternative employment.

 

(8) You as the employer have shown no willingness to provide or offer training or indeed be supportive of me undertaking training.

 

(9) You as the employer haven't sought to redeploy me to roles I feel I possess the necessary basic skills and furthermore you haven't even offered them to me on a trial basis.

 

(10) You as the employer proposes to create two new roles, comprising a full-time store manager with responsibility for in store retailing and a part-time retail buyer to carry out the exact same duties as my current role currently performed.

 

(11) You as the employer haven't suggested a single alternative to my dismissal.

 

(12) You as the employer, in my opinion, deliberately introduced essential educational qualification to the job descriptions for the new posts excluding me from applying for them.

 

(13) You as the employer haven't been prepared to even consider me working towards a third level or professional qualification and even make a success in module a condition of continued employment in one of your new roles.

 

(14) You dismiss my initial 13 and 16 June 2014 alternatives without adequate reason and as I later discovered in your comments on 23 ^rd of July 2014 you had never read them.

 

(15) You repeatedly and resolutely refused to answer my questions during the redundancy consultation, particularly as set out in my letter 18 ^th of June 2014, as regards your restructure, the legal basis of redundancy, redeployment, alternative employment and new roles etc.

 

(16) You diminish my ability to offer business specific and alternatives by failing to provide any information on your business expectations, the business review you supposedly carried out and the restructuring assessment your supposedly carried out.

 

(17) You obviously failed to properly consider the alternatives provided on 28 ^th of July 2014 and by your own admission seemed disinterested whether I even bother to respond to your queries or not.

 

(18) You focused in on only one of three sub-options of 21 alternatives I provided on 28 ^th of July 2014 and noted 27 questions and comments that mixed up investment, concession, and shareholding.

 

(19) You unilaterally imposed unrealistic and bluntly unreasonable deadlines for consultation meetings, redundancy dismissal meetings, responses without any need for my weekly day off, holidays, unavailable support services over the weekend and July holidays, requirement for time to consult with my trade union and legal advisers, etc.

 

(20) You dismiss me by a letter on 30 ^th of July 2014 rather than at a redundancy dismissal meeting. Your attempts to convene actual earlier redundancy dismissal meetings actually had to be abandoned by you so recognise the consultation had not been brought to a conclusion.

 

(21) You have had a predetermined outcome to dismiss me from the outset as shown by the extent of the correspondence, unreasonable notice for meeting and responses, unwillingness to dismissive attitude etc.

 

...

 

This is probably your opportunity to withdraw from what I believe is a dismissal without any legal basis and a decision I believe is also discriminatory and a morally wrong action against me. On the sheer volume of correspondence between us querying your assertions and actions you cannot ever say that you were not aware of the likely consequences of your action to both dismiss me and also should you uphold your decision against my appeal." [Tribunal's emphasis]

 

Attached to this letter was an attached document setting out the claimant's summary of events surrounding notification of risk of redundancy and consultation process up 30 July 2014. In essence, this attached document was a repeat of previous correspondence sent by the claimant to Mr Gormley and his replies thereto, to which earlier reference has been made in this decision.

 

2.40 In a written statement by the claimant at the dismissal appeal hearing on Friday 8 August 2014, at which Mr Alan Adair was present as note taker and Mr Brian McAnoy as the claimant's trade union representative, together with the claimant and Mr Gormley, the claimant repeated the salient points of her appeal, as set out in the said Notice.

 

... ."

 

2.41 By letter dated 11 August 2014, Mr Gormley wrote to the claimant dismissing the appeal, stating:-

 

"Further to your appeal hearing on Friday 8 ^th of August 2014 concerning your selection for redundancy I have now investigated the issues raised concerning -

 

•          consultation process

 

•          basis of redundancy

 

•          alternative options

 

•          dismissal notification

 

•          predetermination of outcome

 

The company advised you that your position was at risk of redundancy at the beginning of June, advising reasons and plans for new structure at three subsequent consultation meetings and also through ongoing written communications in the interim. The company accommodated you with time to find and brief your representation during this process and was also flexible with timing and location of said meetings. I believe the company satisfied its statutory obligations with regard to the information it is required to provide.

 

The basis for the redundancy was explained on numerous occasions and whilst you may not accept it, the role you previously carried out was/is to be removed and the duties carried out in a different structure design to enhance business performance.

 

Alternatives to dismissal were sought and you provided a range of options, all of which were considered, however I've not been able to mitigate the redundancy. As regards to dismissal notification it was stated at the consultation meeting on 23 ^rd of July that I would confirm dismissal or otherwise in writing following of consideration of any new alternative proposals. This outcome was subsequently advised by e-mail.

 

As part of any re-organisation or restructuring dismissal, due to redundancy, it is often one of the proposed options, as in this case. However it is not predetermined until alternatives have been explored and exhausted.

 

Having now reviewed the outcome of my enquiries I am satisfied that the re-organisation and restructure of the business was necessary and sufficient to put your job at risk of redundancy. The company consulted appropriately and explored many proposals, however, regrettably we are unable to mitigate with suitable alternative employment or another option, and therefore I have to advise the decision will remain unchanged.

 

Accordingly the appeal is dismissed and this exhausts the company's internal process ... ."

 

2.42 Relevant statistics were produced which were not disputed by the parties from Table DC 2510 NI from the Northern Ireland Census - 'highest level of qualifications by ... age' 'in the table, education equates to degree level 4 qualifications and above'.

 

Age group 45 - 54 - 61,561 out of 248,578 (24.76%)

 

Age group 35 - 44 - 78,906 out of 254,108 (31.05%)

 

Age group 25 - 34 - 90,357 out of 243,938 (37.04%)

 

At the relevant period, the claimant was then aged 47 years and, as set out previously, she therefore fell within the age group 45 - 54 for the purposes of these proceedings. The said statistics therefore showed that fewer people of the claimant's age group were educated to a degree level than people in the younger age groups, as set out in the above statistics. [6.2% - 35 - 44 age group; 12.28% - 25 - 34 age group). Indeed, Mr Gormley, in light of the said statistics, did not dispute that fewer persons of the claimant's age were able to satisfy the degree criterion imposed by him for the two positions of store manager and buyer (part-time).

 

2.43 Following her dismissal, but during the notice period, the claimant raised, on 5 September 2014, a number of grievances; but, insofar as relevant to these proceedings and her complaint of indirect age discrimination, contrary to the Employment Equality (Age) Regulations (Northern Ireland) 2006, she complained of:-

 

"I believe that age discrimination has been practised against me in a number of ways including -

 

1. My profile obviously didn't suit Mr Declan Gormley's future expectations for the store hence his predetermined decision to dismiss me. There was no performance or other issues concerning my employment as Mr Declan Gormley has repeatedly confirmed.

 

2. Mr Declan Gormley's introduction and inclusion of the essential qualification of a degree for his new roles only when asked for detailed job specification and after I indicated my first preference of the retail buyer role and also interest in the store manager role.

 

3. Mr Declan Gormley's introduction of the essential qualification of a degree for his roles in the full knowledge that I didn't have one and that I would have to exclude myself from any further interest in the role.

 

4. Mr Declan Gormley's demand for the essential qualification of a degree for his new role when I was appointed for largely the same duties 10 years ago without a degree and your failure to consider this.

 

5. Mr Declan Gormley's refusal to consider me for redeployment or alternative role to avoid a redundancy because I didn't have a degree and his unwillingness to make any adjustments whatsoever as regards qualifications, working towards a degree, etc to avoid a redundancy which is an expectation of an employer during a restructuring and redundancy process when other roles are clearly available.

 

6. Mr Declan Gormley's failure to recognise my 10 years' experience and excellent previous experience in setting criteria for a very similar role that I had successfully carried out over that duration.

 

7. Mr Declan Gormley's failure to recognise that very few people and very few females in retail store management at my age and experience have degrees as is evident in most other retail job opportunities requirements.

 

8. Mr Declan Gormley's failure to carry out a skills assessment of me prior to or after his restructuring decision despite being asked about this and Mr Declan Gormley's refusal to consider future training of any nature for me.

 

9. Mr Declan Gormley's refusal to countenance me progressing towards achieving a third level qualification while continuing in your employment with Ulster Weavers Gift Store."

 

In the grievance report prepared by Mr Alan Adair, HR Consultant, following a hearing on 23 October 2014, he noted, insofar as relevant to age discrimination:-

 

"Grievance 3 - Alleged age discrimination

 

Applicant summary

 

This refers to the inclusion of a degree as one of the criteria in the alternative employment roles during the course of the redundancy. We consider this to be indirect discrimination compounded that Ms McFarland was not afforded the opportunity achieve this standard of education by the company.

 

Ms McFarland (aged 47) advised that she was discriminated against in favour of persons younger than her. She referred to jobs in retail management on various websites which did not require a degree.

 

Company summary

 

Mr Gormley advised that given the poor business performance over recent years he sought to refresh the organisation and change the structure with the aim of achieving skill levels and boosting business performance. He had improved business performance in other organisations by replacing key positions with candidates with a higher intellectual capability. [Tribunal's emphasis]

 

... ."

 

The outcome of this grievance was then the subject of a further appeal by Ms Una Chambers, HR Consultant, but she did not deal with this issue as the redundancy process was not within her remit and the appeal, in relation to age discrimination, in her opinion related to that redundancy process.

 

2.44 The claimant presented to the respondent a statutory questionnaire on 29 October 2014, prior to the presentation of her claim form in relation to her complaint of indirect age discrimination. It should be also noted that at the same time she presented to the respondent, other questionnaires in relation to other complaints of unlawful discrimination (eg sex), which ultimately withdrawn. (See previously.) The respondent failed to reply to any of the questionnaires including, in particular, the age discrimination question. Not surprisingly it was in similar terms to that set out in the grievance letter referred to above and repeated why she believed the respondent had unlawfully discriminated against her. In the circumstances, it is not necessary to set out her statement in full.

 

" ...

 

(3) I consider this treatment may have been unlawful because once you realised I was interested in both of your new roles and anxious to avoid redundancy that you deliberately introduced a degree as an essential requirement to ensure that you exclude me from the role.

 

You were fully aware from your 10 years' employment of me that I did not have a degree but yet you introduced this into the person essential qualification criteria."

 

Prior to the hearing, Mr Gormley had never provided to the claimant either orally or in writing, any reason for his failure to provide a reply to the said questionnaire. In the course of his evidence, he suggested that the reason he had not done so was because it was vexatious and oppressive, in particular, in his opinion, in the context of receipt of this questionnaire and the other statutory questionnaires.

 

2.45 As set out in the questionnaire the claimant contended that, at all material times, Mr Gormley knew that the claimant was not educated to degree level. Mr Gormley strongly maintained, in evidence, he did not know this until the claimant informed him in her letter dated 8 July 2014 (see Paragraph 2.33 above). Surprisingly, Mr Gormley in his response did not address this issue of his alleged earlier knowledge. On balance, the tribunal is prepared to accept Mr Gormley did not know as he had not initially had anything to do with her employment as the store manager at the Linen Green Store but, in particular, because it is satisfied that, in deciding on the restructure and how it was to be implemented, he never reviewed the claimant's personnel records, where such information would have been held. It will be necessary later in this decision to return to this failure by Mr Gormley. In particular, her 2004 CV, when appointed initially showed she had GCSE/O 'level passes but no degree. Of course, at no time, during the process did Mr Gormley ask the claimant about her level of education, as he considered the restructure and/or conducted the consultation process. Mr Gormley acknowledged repeatedly both in correspondence, but also in evidence, that he had no criticism of her performance as store manager/buyer. He never suggested her performance was relevant to the financial difficulties that had arisen for the store. It is apparent her lack of degree level education had never arisen as an issue for Mr Gormley in relation to her work.

 

2.46 Mr Gormley contended in evidence that at all times he was committed to the prevention of discrimination in employment but he seemed to be less than aware, if at all, of the introduction of unlawful age discrimination pursuant to the 2006 Regulations and, in particular, its implication for previous employment practices, which prior to the introduction of the said Regulations would not have been unlawful. Further, he failed to carry out any update or review of the respondent's equality policy prior to the termination of the claimant's employment. Indeed, he failed to carry out any investigation or review of this policy, when challenged by the claimant that his introduction of the degree criterion for the said roles following the restructure involved unlawful indirect discrimination on the grounds of age.

 

2.47 The job description for the store manager role set out that the skills/qualifications required education to degree level with a business or marketing degree preferable. The job for the retail buyer (part-time) did not require any specific degree, albeit referred to experience of managing a buying function in the home or gift ware sector. However, it was clear from his evidence that Mr Gormley, albeit he had not set out a specific degree, was probably always looking for a candidate with a business or marketing degree.

 

2.48 Mr Gormley stated, in evidence to the tribunal, that he was also looking for a candidate with intellectual ability but accepted that, by inserting a criterion of a degree, even if not specified, the type of degree, would rule out somebody who did not have a degree but still had the necessary intellectual ability. In his opinion such intellectual ability could only be demonstrated by a degree level of education. He asserted this, on his years of experience of recruiting graduates but without anything more than an assertion. He emphasised he was not prepared to consider any criterion, such as successful experience in the role, which would have demonstrated intellectual ability albeit not at degree level.

 

Mr Gormley accepted, in evidence, he was not prepared to carry out any skills assessment to see if the claimant had the necessary intellectual ability nor was he prepared to give her time to train or to study for the degree, maintaining time was of the essence given the serious financial position of the store.

 

Mr Gormley emphasised, without evidence, that the reason why he wanted graduates for the post was because he said that graduates had a wider outlook in their thinking, were not dependent on repeating the same experiences that they had had and brought a more fresh and energetic level of thinking. Experience, in his judgment, was not sufficient. He referred to experience and a degree as a good combination. He accepted that someone who was more fresh and energetic, but had no degree, would be excluded. In this context, he did not dispute the claimant, successfully working in her roles as store manager/buyer had built up considerable experience in each of the roles.

 

3. Relevant law - unfair dismissal

 

3.1 Article 126 of the Employment Rights (Northern Ireland) Order 1996 ('the 1996 Order') provides:-

 

"An employee has the right not to be unfairly dismissed by his employer."

 

Article 130 of the 1996 Order provides:-

 

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

 

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

 

(b) that it is either a reason falling within Paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

 

(2) The reason falls within this paragraph if it -

 

...

 

(c) is that the employee was redundant,

 

...

 

...

 

(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 reasons 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 as 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 ... ."

 

Article 130A of the 1996 Order provides:-

 

"(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 procedure in relation to the dismissal of an employee shall not be regarded for the purpose of Article 130(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure."

 

Article 174:-

 

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

 

...

 

(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 the place where the employee was employed by the employer;

 

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

 

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. (See later.)

 

3.3 The representatives of the parties accepted that there had been no failure by the parties to follow the statutory dismissal procedures, pursuant to the 2003 Order and the 2004 Regulations. It was not therefore necessary for the tribunal to consider further whether the dismissal was automatically unfair, pursuant to Article 130A of the 1996 Order and/or the provisions for uplift/reduction of compensation, pursuant to Article 17 of the 2003 Order.

 

3.4 Article 130A(2) made further changes in the law in relation to unfair dismissal and, in particular, provided in certain circumstances, the partial reversal of the principles set out in the well-known House of Lords decision in the case of Polkey v AE Dayton Services Ltd [1988] ICR 344 ( 'Polkey'). However, Article 130A(2) does not apply in a case where there has been a dismissal in breach of the statutory dismissal procedures, whereby the dismissal is automatically unfair under Article 130A(1). Article 130A(2) of the 1996 Order therefore is only of application where the statutory dismissal procedure has been complied with but there has been a breach of procedures, other than the statutory dismissal procedures (see also Paragraphs 3.15 - 3.18).

 

3.5 In relation to the claimant's claim of 'ordinary' unfair dismissal, pursuant to Article 130(1)(a) and (b) of the 1996 Order, it has long been established that the burden is on the respondent to establish the reason relied upon by it. The question of whether it 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 NHS Trust v Sarkar [UKEAT/0479/08], DSG Retail Ltd v Mackey [2013] UKEAT/0054/13; and Singh v DHL Services [2013] UKEAT/0462/12) where it is now established in relation to the issue of fairness, there is no burden of proof on any party, it is a 'neutral burden' of proof.)

 

3.6 In relation to a case where the reason for the dismissal is found to be that the claimant was redundant, which is a reason within the terms of Article 130(1) and (2) or the reason is some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the claimant held, the tribunal, as set out above, then has to determine whether dismissal is fair, having regard to the provisions of Article 130(4) - (6) of the 1996 Order, referred to previously.

 

Applying the dicta, which originated in the well-known case of British Home Stores Ltd v Burchell [1980] ICR 301, and other subsequent cases, it is necessary for a tribunal to determine:-

 

"(i) whether the employer had a genuine belief in the guilt of the employee;

 

(ii) whether it had reached that belief on reasonable grounds;

 

(iii) whether this was following a reasonable investigation; and

 

(iv) whether the dismissal of the claimant fell within the range of reasonable responses in light of that misconduct."

 

Although the relevant case law, in relation to these issues, as set out in this paragraph, generally relates to cases of misconduct, the principles referred to therein also apply, insofar as relevant and appropriate, to claims relating to dismissal on grounds of redundancy and/or 'some other substantial reason'.

 

In Sainsburys Supermarkets Ltd v Hitt [2003] IRLR 23, it was made clear 'the range of reasonable responses test' applies as much to the question of whether an investigation into suspected misconduct was reasonable in all the circumstances as it does to other procedural and substantive aspects of the decision to dismiss a person from his employment for a conduct reason. Mummery LJ also pointed out in Hitt the reasonableness of the employer's investigation is to be considered by the objective standards of the reasonable employer, having regard to the particular circumstances of the case.

 

In Iceland Frozen Foods Ltd v Jones [1983] ICR 17 - Browne-Wilkinson J offered the following guidance:-

 

" ...

 

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

 

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

 

(3) in judging the reasonableness of the employer's conduct an 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 is fair : if the dismissal falls outside the band it is unfair."

 

In the case of JJ Food Service v Kefil [2013] IRLR 850, the Employment Appeal Tribunal succinctly expressed the four stage analysis to be carried out by a tribunal, albeit the case was concerned with a dismissal purportedly for misconduct:-

 

"Thus it asked whether the employer had a genuine belief in the misconduct, secondly whether it had reached that belief on reasonable grounds, thirdly whether that was following a reasonable investigation and, fourthly whether the dismissal of the claimant fell within the band of reasonable responses in the light of that misconduct."

 

Similarly, Mummery LJ in London Ambulance Service NHS Trust v Small [2009] IRLR 563 stated:-

 

"The essential terms of the enquiry were whether, in all the circumstances, the Trust carried out a reasonable investigation and, at the time of dismissal, genuinely believed on reasonable grounds that Mr Small was guilty of misconduct. If satisfied that the Trust's fair conduct of the dismissal in those respects, the ET then had to decided whether the dismissal of Mr Small was a reasonable response to the misconduct."

 

It has long been established in relation to a reasonable investigation the need for an employer to acquaint itself with all relevant facts before taking its decision. As Viscount Dilhourne said in W Devis & Sons Ltd v Atkins [1977] IRLR 314:-

 

"The employer cannot be said to have acted reasonably if he reached his conclusion 'in consequence of ignoring matters which he ought reasonably to have known and which would have shown that the reason was insufficient'."

 

As confirmed by that decision, the fairness of the decision falls to be judged on the basis of the facts known to the employer at the time of the decision to dismiss (see also Mummery LJ's observation in Small).

 

In W Weddel & Company Ltd v Tepper [1989] IRLR 96, it was held that:-

 

" ... [employers] do not have regard to equity or the substantial merits of the case if they jump to conclusions which would have been reasonable to postpone in all the circumstances until they had, in the words of the [employment] tribunal in this case 'gathered further evidence' or, in the words of Arnold J in the Burchell case, 'carried out as much investigation into the matter as was reasonable in all the circumstances of the case'. That means they must act reasonably in all the circumstances, and must make reasonable enquiries appropriate to the circumstances. If they formed their belief hastily and act hastily upon it, without making the appropriate enquiries or giving the employee a fair opportunity to explain himself, their belief is not based on reasonable grounds and they are certainly not acting reasonably ... ."

 

The above dicta was followed and adopted in this jurisdiction by the Court of Appeal in the 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 case of Antrim Borough Council v McCann [2013] NICA 7 and Gould v Regency Carpet Manufacturing Ltd [2013] NICA 26.

 

In Newbound v Thames Water Utilities Ltd [2015] EWCA Civ 677, after reminding itself of the terms of the statute which directs the tribunal to decide the question whether the employer has acted reasonably or unreasonably in deciding to dismiss 'in accordance with equity and the substantial merits of the case, the Court of Appeal emphasised, in Paragraph 61 of the judgment, 'the band of reasonable responses' is not infinitely wide and consideration of these issues was not a matter of procedural box ticking; and a tribunal, in an appropriate case, may find a dismissal outside the band of reasonable responses without being accused of placing itself in the position of the employer (see further Bowater, as set out below).

In London Ambulance NHS Trust v Small [2009] IRLR 563, Mummery LJ re-stated the normal rule that a tribunal is not entitled to substitute its own findings of fact for those of the employer or its investigating or dismissing officer. In the case of Foley v Post Office [2000] ICR 1283, Mummery LJ gave Employment Tribunals guidance as to what constitutes such substitution and what is an inevitable alteration by a Employment Tribunal of the judgment made by an employer. He said this:-

 

"In one sense it is true that, the application of that approach leads the members of the tribunal to conclude that the dismissal was unfair, they are in effect substituting their judgment for that of the employer. But that process must always be conducted by reference to the objective standards of the hypothetical reasonable employer which are imported by the statutory references to 'reasonably or unreasonably' and not by reference to their own subjective views of what they would in fact have done as an employer in the same circumstances. In other words, although the members of the tribunal can substitute their decision for that of the employer, that decision must not be reached by a process of substituting themselves for the employer and forming an opinion of what they would have done had they been the employer, which they were not."

 

In the recent decision of McCann, Girvan LJ, in considering the issue of the band of reasonable responses which a reasonable employer must have adopted, expressly referred to the dicta of Longmore LJ in Bowater v Northwest London Hospitals NHS Trust [2011] EWCA Civ 63, when he stated:-

 

"The employer cannot be the final arbiter of its own conduct in dismissing an employee. It is for the tribunal to make its judgment always bearing in mind that the test is whether dismissal is within the range of reasonable options open to a reasonable employer."

 

Burnton LJ also said in Bowater:-

 

"The appellant's conduct was rightly made the subject of disciplinary action. It is right that the ET, the EAT and this court should respect the opinions of the experienced professionals who decided that summary dismissal was appropriate. However, having done so, it was for the ET to decide whether their views represented a reasonable response to the appellant's conduct. It did so ... ."

 

In JJ Food Service v Kefil (2013) IRLR850, Langstaff P, considered this issue of substitution:-

 

"17. A substitution mindset is all too easy to allege. There is a great danger which is readily apparent to those of us who sit day by day in this Tribunal that employers who do not like the result which a Tribunal has reached, but cannot go so far as to say it is necessarily perverse, seek to argue that the very fact of the result in the circumstances must indicate a substitution. That is not, in our view, a proper approach..."

 

Langstaff P, then referred to section 98(4) of the Employment Rights Act 1996 (ie Article 130(4) of the 1996 Order referred to previously) and concluded:

 

"18. In other words, the very business of the Employment Tribunal is considering whether once the employer has established the reason for the dismissal the decision to dismiss for that reason was fair or unfair. In order to see if a Tribunal has stepped beyond the permissible and gone outside the scope of its duty as set out in section 98(4), it is necessary to have regard to a Tribunal's decision as a whole, but what one is looking for is some indication that the Tribunal has, in dealing with a complaint of unfair dismissal, asked not whether what the employer did was fair but asked instead what it would have done in the light of the basic and underlying facts." [Tribunal's emphasis] 

 

See further dicta by the Court of Appeal in the case of Tayeh   v Barchester Healthcare [2013] IRLR 307 [Paragraph 47] and Graham v Secretary of State for Work and Pensions (Jobcentre Plus) [2012] IRLR 759 (Paragraph 35).

 

3.7 In a recent decision in the Court of Appeal in Davies v Sandwell Metropolitan Borough Council [2013] EWCA Civ 135, when deciding whether the employer acted reasonably in dismissing the employee, held:-

 

"It is not for ET to conduct a primary fact-finding exercise. It is there to review the employer's decision. Still less is the ET there to conduct an investigation into the whole of the employee's employment history ... ." (Paragraph 33 of the judgment)

 

(See further, Turner v East Midlands Trains [2012] EWCA Civ 1470.)

 

3.8 Procedural defects in the initial disciplinary hearing may be remedied on appeal, provided that in all the circumstances the later stages of the procedure are sufficient to cure any earlier unfairness. As the Court of Appeal held in Taylor v OCS Group Ltd [2006] EWCA Civ 702:-

 

"If 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 a 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 deficiencies at an early stage."

 

In a recent decision, the Employment Appeal Tribunal, in the case of Holt v Res On Cite Ltd [2014] UKEAT/0410 emphasised that the tribunal's role is to consider the fairness of the processes as a whole, and an appeal should not be seen separately but should be seen as part of the entire disciplinary process (see further First Hampshire & Dorset Ltd v Parhar [2012] UKEAT/0643]).

 

In McMaster v Antrim BC [2010] NICA 45, Coghlin LJ emphasised:-

 

"The fundamental purpose served by an agreed appeal disciplinary procedure is to ensure that both sides have a full and fair opportunity to put their respective cases and secure a just outcome to any dispute, including putting right, where necessary, any errors or shortcomings apparent in the initial hearing. As a matter of principle it is difficult to accept that the effective operation of an appeal could be simply prevented by an employer either refusing the employee the right to such an appeal procedure or by rejecting an outcome considered to be advise to his or her interest leaving the frustrated employee with compensation for breach of contract as his or her only remedy."

 

See further West Midlands Co-Operative Society Ltd v Tipton [1986] AC 536). In London Probation Board v Kirkpatrick [2005] ICR 965, approved by Coghlin LJ, in McMaster, HH Judge McMullan QC made clear:-

 

" ... the whole point of internal appeals is to allow for bad or unfair decisions to be put right."

 

In Adeshina v St George's University Hospitals NHS Foundation Trust & Others [UKEAT/0293/14], the Employment Appeal Tribunal confirmed, as set out in Taylor, the tribunal, when looking at the question of fairness, was bound to consider the process overall.

 

As set out later in this decision, the initial decision to dismiss the claimant and the subsequent refusal to grant the appeal were taken by Mr Gormley. The claimant's representative declined to raise any issue in relation Mr Gormley conducting the appeal, as well as taking the initial decision to dismiss, and properly, in the circumstances, did not raise the issue in cross-examination.

 

3.9 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, following re-organisation of the cardiac and thoracic departments, although this re-organisation changed the work the employees in the thoracic department were required to carry out, the Trust still required the same amount of thoracic surgery to be carried out; the claimant was not therefore redundant although he was asked to reduce the amount of thoracic surgery he personally performed. The Court of Appeal confirmed:-

 

"Every case of re-organisation must ... depend, ultimately on its own facts. In each case it must be for the individual tribunal to decide whether the re-organisation and re-allocation of facilities within the staff is such as to change the particular kind of work which a particular employee, or successive employees, is or are required to carry out, and whether such change has had any, and if so what, effect on the employees requirement for employers to carry out a particular kind of work."

 

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 ... ."

 

(The new roles required different skill sets and different responsibilities.)

 

There is no reduction in 'work of a particular kind' merely because there is a change in the kind of employee required to do it (see Vaux v Associated Breweries Ltd [1968] ITR 385); so status or qualifications per se, would not make work as being work of a particular kind.

 

3.10 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.

 

3.11 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.

 

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. But subsequent case law has shown that the scope for review is very limited.

 

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 in issue in every redundancy unfair dismissal case.

 

3.12 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'. In these proceedings, it was not in dispute that the only relevant pool was a pool of one, namely the claimant.

 

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 procedure 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.

 

3.13 As set out previously, the respondent, in the alternative, relied upon 'some other substantial reason'.

 

It is well-recognised that there is considerable width to this category of 'some other substantial reason', pursuant to Article 130(1)(b) of the 1996 Order. Indeed, it has arisen and been relied upon by employers in a wide variety of factual situations.

 

In a case of 'ordinary' unfair dismissal, it is confirmed in Harvey on Industrial Relations and Employment Law, Section DI, Paragraph 1923 - 1924:-

 

"In cases of some other substantial reason for dismissal the steps that an employer has to take to act reasonably would depend on the nature of that reason. Given the diversity of reasons that may qualify it is impossible to lay down any strict guidelines other than in each case to follow ordinary principles of fairness. What can be said is there should always be a proper investigation so far as necessary into the relevant circumstances and it may be appropriate in any particular case to warn, consult (with employees and/or representatives/unions) and/or consider reasonable alternatives. The employee's length of service may be relevant. Employers should also act consistently between similar cases. The EAT made clear in St John of God (Care Services) Ltd v Brooks [1992] IRLR 546 that the reasonableness of the dismissal must be justified at the time of dismissal. For example there may be circumstances where it was reasonable for the employer to propose a business re-organisation, but where the situation subsequently changes so that it is no longer reasonable to dismiss those who refuse to accept the change. ... ."

 

Again, as seen in Johnson v Nottinghamshire Combined Police Authority [1974] IRLR 20 some business re-organisations do not give rise to a redundancy situation but may amount to some other substantial reason for dismissal. In Ellis v Brighton Co-Operative Society [1976] IRLR 419 it was suggested that there must be a pressing business need in order for a dismissal of this nature to be justified but in later cases it was held that the threshold for justifying such dismissals was not so high. In particular, it was held in Hollister v National Farmers Union [1979] IRLR 238:-

 

"Where there is a sound good business reason for a re-organisation and the only sensible way to deal with it is to terminate the existing contracts offering the employees reasonable new ones, and an employee refuses to accept the new agreement, that is a substantial reason such as to justify his dismissal within the meaning of [Article 130(1)(b) of the 1996 Order]."

 

The need for a sound, good business reason has been applied in subsequent legal authorities.

 

In the case of Catamaran Cruisers Ltd v Williams [1994] IRLR 386 it was held that it is an error of law to say that significant changes can be made only if the survival of the business is threatened. (See also Garside and Laycock Ltd v Booth [2011] IRLR 735.)

 

In Harvey on Industrial Relations and Employment Law, Volume 1, Section DI, Paragraph 1862 it was recognised that:-

 

"1862 These decisions lean heavily in favour of upholding management's right to re-organise the business in the manner which it considers advantageous. However it is subject to three important qualifications which impose some restrictions on that prerogative."

 

1863 "First, if the employer seeks to rely upon the need to implement the re-organisation as constituting a substantial reason, he must demonstrate that it has discernible advantages to the business ( Kerry Foods Ltd v Lynch [2005] IRLR 860). A mere statement that there are advantages is insufficient. So in Banerjee v City and East London Area Health Authority [1979] IRLR 147 the dismissal of an employee arising out of a decision to rationalise was upheld by the EAT to be unfair because there was no evidence on these matters. It was not necessary to show the quantum of improvement but it is material to know whether the company was making profits or losses ( Ladbrook Courage Holidays Ltd v Asten [1981] IRLR 59).

 

1864 Second, the interest of employees cannot be ignored when a tribunal is determining whether the employee has a 'sound good business reason' for the dismissal. Whether the employer has acted properly in all the circumstances in seeking to impose the change will depend at least in part on whether the employee acted reasonably in refusing the change, though (as pointed out at Paragraph [1930]) it is of course possible that both parties may have been acting reasonably in their own terms and, while the employer should take the employee's view into account, ultimately the scales will tend to come down on the employer's side.

 

... ."

 

In Robinson v British Island Airways Ltd [1977] IRLR 447, it was held that where there is a genuine re-organisation which has dislodged an employee who cannot be fitted into the re-organisation, it must be open to the employer to dismiss him and in such circumstances the dismissal will be for some other substantial reason.

 

In Kent County Council v Gilham & Others [1985] IRLR 16 it was held obiter, the burden on the employer of showing the substantial reason for dismissal is designed to deter employers from dismissing for some trivial or unworthy reason. If on the face of it, the reason could justify the dismissal, then it passes as a substantial reason and the enquiry moves to [Article 130(4) of the 1996 Order] and the question of reasonableness.

 

It is then when the balancing exercise between the needs of the employer and a detriment to the employee falls to be considered with a focus on the words 'in accordance with equity' as set out in Article 130(4) of the 1996 Order as well as the scrutiny of the procedure followed (see Garside and Laycock v Booth [2011] IRLR 735). As Chubb Fire Security Ltd v Harper [1983] IRLR 311 emphasises it does not follow that, if the employee is acting reasonably in refusing a change an employee may be acting unreasonably in imposing it, looking at it from their respective points of view. However, ultimately, it may be necessary to consider whether, albeit one factor is not necessarily determinative of the issue, whether the employer is acting reasonably in deciding that the advantage to interlocutory matters of implementing the re-organisation outweighed any disadvantage the employee might suffer. (See further Roberts v Acumed Ltd [2010] UKEAT/0466.)

 

In Oakley v Labour Party [1988] IRLR 34, the Employment Appeal Tribunal emphasised that an employee must be fairly considered for any new job created by the re-organisation. When overturning the decision, on different grounds, the Court of Appeal also accepted that, where a re-organisation is simply a pretext for getting rid of an employee, it must inevitably follow that the dismissal was unfair.

 

As with a reason specifically set out in Article 130(2) of the 1996 Order (eg conduct), where a reason is found to be for some other substantial reason, dismissal for such a reason will be fair if it was within the range of reasonable responses, as described previously. In Alboni v Ind Coope Retail Ltd [1998] IRLR 131 it was held by the Court of Appeal that an Employment Tribunal is bound to have regard to events between notice of dismissal and the date that dismissal took effect, both in determining the reason for dismissal and whether the employer has acted reasonably in the circumstances in treating it as a sufficient reason for dismissal.

 

3.14 In Murphy v Epsom College [1984] IRLR 271, the Court of Appeal made it clear, in light of the Court of Appeal decision in Nelson v BBC [1977] IRLR 148, although it is not necessary to 'plead' in the full technical sense of the word some other substantial reason for dismissal, before an Employment Tribunal reaches a decision on whether a dismissal was for some other substantial reason, where the employer has never sought to justify the dismissal on that ground, the matter should be expressly ventilated in the Employment Tribunal, so that the parties can have a full and proper opportunity to deploy their case on that matter. As set out previously, the respondent's response was amended to include a 'defence' of redundancy but also some other substantial reason. It must also be noted if a dismissal is discriminatory (see later) it will in most cases also be unfair. Although there are differences in the tests of discrimination and unfair dismissal, it would be difficult for an employer to show it acted reasonably for the purposes of Article 130(4) of the 1996 Order, if it had acted contrary to relevant anti-discrimination legislation.

 

3.15 Under Article 157(1) of the 1996 Order, the amount of a compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer. In having regard to what the employee has lost in consequence of the dismissal, it may be necessary to determine what would have occurred but for the dismissal. This may require an assessment as to whether the employment would have ended but for the dismissal.

 

In the well-known House of Lords decision in Polkey v AE Dayton Services Ltd [1988] ICR 344 it was held that, in essence, an employer who had acted unreasonably and in breach of procedures could not contend that, since the dismissal would have occurred anyway, even if proper procedures had been followed, the dismissal should be found to be a fair dismissal. Indeed, it is only in limited circumstances that an employer would be able to successfully argue that compliance with fair procedures would be futile.

 

However, although the tribunal might find that dismissal was unfair, a tribunal, following Polkey, was able to reduce the employee's compensation by a percentage to represent the chance the employee would have still been dismissed. In the case of Polkey it therefore required the employer to satisfy the tribunal it would have dismissed the employee, even if it had complied with fair procedures. However, as seen above, a ' Polkey' reduction is not confined to a dismissal rendered unfair purely by procedure failure (as happened in the facts of Polkey); it can also apply in a wider range of cases, depending on the facts found by the tribunal.

 

3.16 Article 130A(2), as set out previously, made a further change to the law of unfair dismissal and resulted, in certain circumstances, in a partial reversal of the principles set out in Polkey, as indicated above.

 

Article 130A(2) provides that a dismissal, following a failure to follow other procedural steps, will not affect the fairness of the dismissal, provided the employer can show the employee still would have been dismissed, if he had followed the steps correctly. The Polkey decision was partially reversed and the ' no difference rule', which had applied before Polkey, was reinstated for a failure to follow procedures, other than the new statutory dismissal and disciplinary procedures. The reference to procedures in Article 130A(2) was the subject of some conflicting decisions in the Employment Appeal Tribunal, but the generally accepted view would seem now to be that it applies to any procedure, written or otherwise, which the tribunal considers a reasonable employer might follow (see Kelly-Madden v Manor Surgery [2007] IRLR 17).

 

3.17 If the employer has complied with the DDP (but the dismissal is nevertheless unfair for other reasons), but there is a greater than 50% chance that the employer would have dismissed the employee, pursuant to Article 130A(2), the dismissal will be fair. Thus, where the relevant DDP has been complied with but the dismissal is procedurally unfair for the ordinary purposes of Article 130(4) of the 1996 Order, any Polkey deduction cannot exceed 50%.

 

3.18 In Software 2000 Ltd v Andrews [2007] UKEAT/0533/06, Elias J gave some useful guidance in carrying out the assessment referred to above:-

 

"(1) In assessing compensation the task of the tribunal is to assess the loss flowing from the dismissal, using its common sense, experience and sense of justice. In the normal case that requires it to assess for how long the employee would have been employed but for the dismissal.

 

(2) If the employer seeks to contend that the employee would or might have ceased to be employed in any event had fair procedures been followed, or alternatively would not have continued in employment indefinitely, it is for him to adduce any relevant evidence on which he wishes to rely. However, the tribunal must have regard to all the evidence when making that assessment, including any evidence from the employee himself. (He might, for example, have given evidence that he had intended to retire in the near future.)

 

(3) However, there will be circumstances where the nature of the evidence which the employer wishes to adduce, or on which he seeks to rely, is so unreliable that the tribunal may take the view that the whole exercise of seeking to reconstruct what might have been is so riddled with uncertainty that no sensible prediction based on that evidence can properly be made.

 

(4) Whether that is the position is a matter of impression and judgment for the tribunal. But in reaching that decision the tribunal must direct itself properly. It must recognise that it should have regard to any material and reliable evidence which might assist it in fixing just compensation, even if there are limits to the extent to which it can confidently predict what might have been; and it must appreciate that a degree of uncertainty is an inevitable feature of the exercise. The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence.

 

... ."

 

In considering issues relating to ' Polkey' deductions, in the case of Hill Ltd v Governing Body of Great Tey Primary School, Langstaff P said:-

 

"24. A ' Polkey' deduction has these particular features. First, the assessment of it is predictive : could the employer fairly have dismissed and, if so, what were the chances the employer would have done so? The chances may be at the extreme (certainly that it would have dismissed or certainly that it would not) though more usually will fall somewhere on a spectrum between these two extremes. This is to recognise the uncertainties. A tribunal is not called upon to decide the question on balance. It is not answering the question what it would have done if it were the employer : it is assessing the chances of what another person (the actual employee) would have done."

 

In the case of Dev v Lloyds TSB Asset Finance Division Ltd [2014] UKEAT/0281, Langstaff P confirmed the above approach but also stated:-

 

"6. 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 within a range of 0% - 100%. It is well established that the latter is the correct approach ... (see further Ministry of Justice v Parry [2013] ICR 311 and Hill Ltd v Governing Body of Great Tey Primary School ...)."

 

In Brinks Ireland Ltd v Hines [2013] NICA 32, Girvan LJ followed, with approval, the guidance of Elias J in Software 2000 Ltd v Andrews.

 

In Software 2000, Elias J also provided guidance, with reference to the assessment involved pursuant to Article 130A(2):-

 

"The s.98A(2) (ie Article 130A(2) in NI) and Polkey exercises run in parallel and will often involve consideration of the same evidence but they must not be conflated ... ."

 

(Section 98A(2) of the Employment Rights Act 1996 no longer applies in Great Britain.)

 

3.19 In the case of Morrison v Amalgamated Transport & General Workers Union [1989] IRLR 361, the Northern Ireland Court of Appeal held in relation to the issue of contributory fault:-

 

"(i) the tribunal must take a broad common sense view of the situation;

 

(ii) that broad approach should not necessary be confined to a particular moment, not even the moment when the employment is terminated;

 

(iii) what has to be looked for in such a broad approach over a period is conduct on the part of the employee which is culpable or blameworthy or otherwise unreasonable; and

 

(iv) the employee's culpability or unreasonable conduct must have contributed to or played a part in the dismissal."

 

In Allders International Ltd v Parkins [1982] IRLR 68, it was emphasised that it is the employee's conduct alone, which is relevant to the issue of whether the loss resulting from the dismissal should be reduced on grounds of contributory fault.

 

3.20 In relation to the issue of compensation, where a claimant has obtained income from a new job, following an unfair dismissal, the Employment Appeal Tribunal, in the case of Whelan v Richardson [1988] IRLR 144, summarised the approach to be taken by tribunals; albeit emphasising that tribunals had a discretion to do what was appropriate in individual cases:-

 

"(1) The assessment of loss must be judged on the basis of the facts as they appear at the date of assessment hearing ('the assessment date').

 

(2) Where the (claimant) has been unemployed between dismissal and the assessment date then, subject to his duty to mitigate in the operation of the recoupment rules, he will recover his net loss of earnings based on the pre-dismissal rate. Further, the Employment Appeal Tribunal will consider for how long the loss is likely to continue so as to assess future loss.

 

(3) The same principle applies where the (claimant) has secured permanent alternative employment at a lower level of earnings than he received before his unfair dismissal. He will be compensated on the basis of full loss until the date in which he obtained the new employment and thereafter for partial loss, being the difference between the pre-dismissal earnings and those in the new employment. All figures will be based on net earnings.

 

(4) Where the (claimant) takes alternative employment on the basis it will be for a limited duration, he will not be precluded from claiming loss to the assessment date, or the date on which he secures further permanent employment, whichever is the sooner, giving credit for earnings received from the temporary employment.

 

(5) As soon as the (claimant) obtains permanent alternative employment paying the same or more than his pre-dismissal earnings his loss attributable to the action taken by the respondent employer ceases. It cannot be revived if he then loses that employment either through his own action or that of his now employer. Neither can the respondent employer rely on the employee's increased earnings to reduce the loss sustained prior to his taking the new employment. The chain of causation has been broken."

 

This guidance was described as helpful by the Court of Appeal in Dench v Flynn & Partners [1998] IRLR 653, although the Court considered that the obtaining of permanent employment at the same or a greater salary would not in all cases break the chain of causation. The Dench decision was applied in Cowen v Rentokil Initial Facilities Service (UK) Ltd [2008] AER (D) 70. Further, in a recent decision of the Employment Appeal Tribunal, in the case of Commercial Motors (Wales) Ltd v Hawley [2012] UKEAT/0636, the Employment Appeal Tribunal cited with approval the case of Dench and, in particular, the judgment of Beldam LJ, when he stated at Paragraph 19 of his judgment:-

 

"19 ... no doubt in many cases a loss consequence upon unfair dismissal will cease when an applicant gets employment of a permanent nature at a equivalent or higher level of salary or wage than the employee enjoyed when dismissed. But to regard such an event is always and in all case putting an end to the attribution of the loss to the termination of employment, cannot lead in some cases to an award which is just and equitable.

 

20 Although causation is primarily a question of fact the principle to be applied in deciding whether the connection between the cause, such as unfair dismissal and its consequences, is sufficient to find a legal claim to a loss of damage, is a question of law. The question for the tribunal was whether the unfair dismissal, could be regarded as a continuing course of loss when she was consequently dismissed by her new employer with no right of compensation after a month or two in her new employment. To treat the consequences of unfair dismissal as ceasing automatically when other employment supervenes, is to treat the effective cause that which is simply closest in time."

 

In Salvesen Logistics Ltd v Tate [UKEAT/689/98], the Employment Appeal Tribunal made clear that the chain of causation will not be broken where it is clear from the outset that the employment would be on a temporary basis.

 

3.21 In relation to the issue of mitigation of loss, there was no dispute that the principle that a claimant is under a duty to take reasonable steps to mitigate his loss is well-established under common law and that the principles of mitigation of loss apply equally to awards of compensation by a tribunal in relation to awards of compensation for unfair dismissal (see Fyfe v Scientific Furnishings Ltd [1989] IRLR 331) and that therefore the employee must take reasonable steps to obtain alternative employment (see further Wilding v British Telecommunications PLC [2002] IRLR 524.

 

3.22 In the recent decision of Look Ahead Housing and Care Ltd v Chetty (2014) UKEAT/0037 Langstaff emphasised, in relation to the burden of proof by the employer:-

 

" But without there being evidence (whether by direct testimony or by inadequate answers given by a claimant in cross-examination) adduced by the employer on which a tribunal can be satisfied, on the balance of probabilities, that the claimant has acted unreasonably in failing to mitigate, a claim of failure to mitigate will simply not succeed". [tribunal's emphasis]

 

3.23 In a recent decision, in the case of Cooper Contracting Ltd v Lindsey [2015] UKEAT/0184/15, Langstaff P, reviewed the authorities and held:-

 

"16. ...

 

(1) The burden of proof is on the wrongdoer, a claimant does not have to prove that he has mitigated loss.

 

(2) It is not some broad assessment on which the burden of proof is neutral ...

 

If evidence as to mitigation is not put before the Employment Tribunal, it has no obligation to find it. That is the way in which the burden of proof generally works : providing the information is the task of the employer.

 

(3) What has to be proved is that the claimant acted unreasonably; he does not have to show that what he did was reasonable (see Waterloo, Wilding and Matton).

 

(4) There is a different between acting reasonably and not acting unreasonably (see Wilding).

 

(5) What is reasonable or unreasonable is a matter of fact.

 

(6) It has to be determined, taking into account the views and wishes of the claimant as one of the circumstances, though it is the tribunal's assessment of reasonableness and not the claimant's that counts.

 

(7) The tribunal is not to apply too demanding a standard to the victim; after all, he is the victim of a wrong. He is not to be put on trial, as if the losses were his fault when the central cause is the act of the wrongdoer (see Water Low, Fyfe and Potter LJ's observations in Wilding).

 

(8) The test may be summarised by saying that it is for the wrongdoer to show that the claimant acted unreasonably in failing to mitigate.

 

(9) In a case in which it may be perfectly reasonable for a claimant to have taken on a better paid job that fact does not necessarily satisfy the test. It will be important evidence that any assist the tribunal to conclude that the employee has acted unreasonably, but it is not in itself sufficient.

 

(17)?? Those principles therefore indicate why at the outset of this part of this judgment, I suggested that a phrase such as 'a duty to take all reasonable steps' is likely it too generally applied to divert focus away from those which are the legal principles and may seem to lead to a conclusion that may be erroneous; that if the respondent could show are reasonable steps that was not taken respondent is bound to succeed."

 

Langstaff P, in the course of his judgment, referred to the task of the tribunal, when assessing the amount of the compensatory award, to the words of the [1996 Order Article 157] ' such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer' and this requires the tribunal, where appropriate on the particular facts, to adjust the award ' to ensure fairness and prevent over-compensation'.

 

In Orthet v Sarah Vince-Cain [2004] UKEAT/0801/03, in a case where the claimant had decided to undertake an education course, the Employment Appeal Tribunal held it was a question of fact for the tribunal to decide whether or not such step was reasonable.

 

In Holyroyd v Gravare Cylinders Ltd [1984] IRLR 259, the tribunal in a case where the claimant decided to embark upon a University Course and thereby ' effectively took himself out of the labour market', properly decided not to allow loss of earnings during the period of the course (or thereafter on the grounds of remoteness, incapable of calculation); but was correct to allow loss of earnings from the date of termination of the employment to date of commencement of the course.

 

In the case of Gardiner-Hill v Roland Berger Technics Ltd [1982] IRLR 498, the claimant claimed £500.00 worth of expenses that he had incurred in setting up a consultancy service. The Employment Appeal Tribunal held that the expenses were reasonably incurred as a result of the dismissed.

 

The Employment Appeal Tribunal held:-

 

"A claimant who has suffered by the wrongful act of another party is entitled to recover the loss that flows from that wrongful act. The duty on a claimant is to take such steps as are reasonable in all the circumstances to reduce the loss he suffers from the wrongful act. In the present case, therefore, the relevant question for the industrial tribunal to ask was whether in all the circumstances, it was reasonable for the appellant to do what he did, ie set up on business on his own account rather than seeking employment by another person. It was not right for the tribunal to assume that because he failed to seek employment by another person, he had failed to mitigate his loss ... .

 

In the circumstances of the present case, given that the appellant was 55 years old at the time of his unfair dismissal and that for over 16 years he had been sole managing director of a specialist business, it was not at all self-evident that the right and reasonable course for him to adopt was to seek alternative employment. On the contrary it was at least prudent of him to seek to exploit his own experience by conducting his own business and gaining an income from that business to replace that which he had previously received from the respondent. In the absence of evidence to the contrary, there was no ground for saying that he erred or acted improperly or unreasonably in seeking to establish himself in an alternative business ... ."

 

In that case, on the facts, the claimant was able to recover £500.00 for the expenses that he had incurred in setting up the business.

 

In Aon Training Ltd v Dore [2005] IRLR 835, the Court of Appeal held that, where a dismissed employee attempts to mitigate his or her loss by setting up his or her own business and the tribunal is satisfied that mitigation in that way was reasonable in the circumstances, applying the case of Gardiner, the conventional way to assess compensation in such circumstances required to the tribunal:-

 

"(i) first to calculate what sum represents loss of remuneration;

 

(ii) it should then consider the costs incurred in mitigating loss and such a sum, if reasonably incurred, should be added to the loss;

 

(iii) from that sum should be deducted the earnings from the new business."

 

In a recent decision of the Employment Appeal Tribunal, in the case of Somerset County Council v Chaloner [ UKEAT /0600/14 ] the Employment Appeal Tribunal reviewed the above authorities.

 

Having reminded herself of the terms of [Article 157(1) of the 1996 Order] HHJ Eady QC held, following Simrad Ltd v Scott [1997] IRLR 147 :-

 

"19 ...

 

First, the tribunal has to undertake a factual quantification of the losses claimed. Second, it has to assess the extent to which any or all of those losses are attributable to the dismissal or action taken by the employee; that is to look to see whether there is a direct and natural link between the losses claimed and the conduct of the employer in dismissing. Third, in all the circumstances, taking into account its conclusions reached on the first and second questions, the tribunal must ask what award would be just and equitable.

 

20 In considering the question of mitigation in light of this approach, the EAT in Simrad went on as follows (see Paragraph 6 of the judgment) :

 

'While the facts relating to a question of mitigation will frequently bear upon the question of causative link, mitigation is essentially an equitable plea to be judged in the context of reasonableness at common law and thus on not too fine a balance. Accordingly the issue of mitigation will feature in the application of the third test rather than the second ... .'

 

21 The need to be careful not to confuse a break in the chain of causation with the question of mitigation is also highlighted by the learned authors of McGregor on Damages 18 ^th Edition, Paragraph 7-018 :

 

' ... the matter can no doubt be put in this way in terms of causation, but it does not tell us very much. What must be ascertained is whether the claimant has or has not acted, or failed to act, reasonably. This, as we have seen, is a question of fact and one that is capable of resolution by examination of the circumstances of the particular case. Adding causing causation into the mix gives no assistance. There is indeed a danger here, as elsewhere, of using causation as a disguise for the real ground of a decision ... .'

 

[In the present proceedings, both parties approached the issue of these expenses in starting up the business on the basis of mitigation of loss not as a break in the chain of causation, which the tribunal accepts was the proper approach, given the facts as ground by the tribunal.]."

 

4. Further relevant law - Indirect Age Discrimination

 

4.1 The Age Regulations provide, insofar as relevant and material:-

 

"Regulation 3 - Discrimination on grounds of age

 

(1) For the purposes of these Regulations, a person ('A') discriminates against another person ('B') if -

 

...

 

(b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same age group as B, but -

 

(i) which puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons, and

 

(ii) which puts B at that disadvantage,

 

and A cannot show the treatment or, as the case may be provision, criterion or practice to be a proportionate means of achieving a legitimate aim.

 

(2) A comparison of B's case with that of another person under paragraph (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

 

(3) In this Regulation —

 

(a) "age group" means a group of persons defined by reference to age, whether by reference to a particular age or a range of ages; and

 

... .

 

Regulation 7

 

...

 

(2) It is unlawful for an employer, in relation to a person whom he employs at an establishment in Northern Ireland, to discriminate against that person —

 

(a) in the terms of employment which he affords him;

 

(b) in the opportunities which he affords him for promotion, a transfer, training, or receiving any other benefit;

 

(c) by refusing to afford him, or deliberately not affording him, any such opportunity; or

 

(d) by dismissing him, or subjecting him to any other detriment.

 

Regulation 42 - Burden of proof : Industrial Tribunals

 

(1) This Regulation applies to any complaint presented under Regulation 41 to an industrial tribunal.

 

(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this regulation, conclude in the absence of an adequate explanation that the respondent —

 

(a) has committed against the complainant an act to which regulation 41 (jurisdiction of industrial tribunals) applies; or

 

(b) is by virtue of regulation 26 (liability of employers and principals) or regulation 27 (aiding unlawful acts) to be treated as having committed against the complainant such an act,

 

the tribunal shall uphold the complaint unless the respondent proves that he did not commit, or as the case may be, is not to be treated as having committed, that act.

 

Regulation 43 - Remedies on complaints in industrial tribunals

 

(1) Where an industrial tribunal finds that a complaint presented to it under Regulation 41 (jurisdiction of industrial tribunals) is well-founded, the tribunal shall make such of the following as it considers just and equitable —

 

(a) an order declaring the rights of the complainant and the respondent in relation to the act to which the complaint relates;

 

(b) an order requiring the respondent to pay to the complainant compensation of an amount corresponding to any damages he could have been ordered by a County Court to pay to the complainant if the complaint had fallen to be dealt with under Regulation 44 (jurisdiction of County Courts);

 

...

 

(2) As respects an unlawful act of discrimination falling within Regulation 3(1)(b) (discrimination on grounds of age), if the respondent proves that the provision, criterion or practice was not applied with the intention of treating the complainant unfavourably on grounds of age, an order may be made under paragraph (1)(b) only if the industrial tribunal —

 

(a) makes such order under Paragraph (1)(a) (if any) and such recommendation under Paragraph (1)(c) (if any) as it would have made if it had no power to make an order under Paragraph (1)(b); and

 

(b) (where it makes an order under Paragraph (1)(a) or a recommendation under Paragraph (1)(c), or both) considers that it is just and equitable to make an order under Paragraph (1)(b) as well.

 

...

 

(4) Where an amount of compensation falls to be awarded under Paragraph (1)(b), the tribunal may include in the award interest on that amount subject to, and in accordance with, the provisions of the Industrial Tribunals (Interest on Awards in Age Discrimination Cases) Regulations (Northern Ireland) 2006.

 

Regulation 46 - Help for persons in obtaining information etc

 

(1) In accordance with this Regulation, a person ("the person aggrieved") who considers he may have been discriminated against, ... in contravention of these Regulations may serve on the respondent to a complaint presented under Regulation 41 (jurisdiction of industrial tribunals) ... questions in the form set out in Schedule 2; and the respondent may if he so wishes reply to such questions by way of the form set out in Schedule 3.

 

(2) Where the person aggrieved questions the respondent (whether in accordance with Paragraph (1) or not) —

 

(a) the questions, and any reply by the respondent (whether in accordance with paragraph (1) or not) shall, subject to the following provisions of this Regulation, be admissible as evidence in the proceedings;

 

(b) if it appears to the ... tribunal that the respondent deliberately, and without reasonable excuse, omitted to reply within eight weeks of service of the questions or that his reply is evasive or equivocal, the ... tribunal may draw any inference from that fact that it considers it just and equitable to draw, including an inference that he committed an unlawful act.

 

Regulation 48 - Period within which proceedings to be brought

 

(1) An industrial tribunal shall not consider a complaint under Regulation 41 (jurisdiction of industrial tribunals) unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done.

 

...

 

(4) A ... tribunal may nevertheless consider any such complaint or claim which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

 

(5) For the purposes of this Regulation ... —

 

(b) any act extending over a period shall be treated as done at the end of that period; and

 

...

 

(c) a deliberate omission shall be treated as done when the person in question decided upon it,

 

and in the absence of evidence establishing the contrary a person shall be taken for the purposes of this regulation to decide upon an omission when he does an act inconsistent with doing the omitted act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it was to be done.

 

4.2 The Industrial Tribunals (Interest on Awards in Age Discrimination Cases) Regulations (Northern Ireland) 2006 provide, insofar as relevant and material:-

 

Regulation 2 - Interest on awards

 

(1) Where, at any time after 1 October 2006 a tribunal makes an award under the Age Regulations —

 

(a) it may, subject to and in accordance with these Regulations, include interest on any sums so awarded; and

 

(b) it shall consider whether to do so, without the need for any application by a party in the proceedings.

 

(2) Nothing in Paragraph (1) shall prevent the tribunal from making an award or decision, with regard to interest, in terms which have been agreed between the parties.

 

Regulation 3 - Rate of interest

 

(1) Interest shall —

 

(a) subject to Paragraph (2), be applied at the same rate as is in force, during the period for which it is to be calculated, in relation to decrees in the County Court;

 

(b) be calculated as simple interest which accrues from day to day.

 

...

 

[The relevant interest rate to be applied, pursuant to the said Regulations, for the relevant period, is judgment rate of 8% per annum]

 

Regulation 4 - Calculation of interest

 

(1) In this Regulation and Regulations 5 and 6 in relation to any award under the Age Regulations —

 

'day of calculation' means the day on which the amount of interest included on the sums so awarded is calculated by the tribunal; and

 

'mid-point date' means the date half-way through the period mentioned in Paragraph (2) or, where the number of days in that period is even, the first day of the second half of that period.

 

(2) The period referred to in Paragraph (1) is the period beginning on the date of the contravention or, as the case may be, of the act of discrimination ... to which the award in question relates and ending on the day of calculation (both dates inclusive).

 

...

 

Regulation 6 - Calculation of interest

 

(1) Subject to Paragraphs (2) and (3) —

 

(a) in the case of any sum awarded under the Age Regulations for injury to feelings, any interest included shall be for the period beginning on the date of the contravention or, as the case may be, the act of discrimination ... to which the award relates, and ending on the day of calculation (both dates inclusive);

 

(b) in the case of all other sums of damages or compensation (other than any sum referred to in Regulation 5), and all arrears of remuneration awarded under the Age Regulations, interest shall be for the period beginning on the mid-point date and ending on the day of calculation (both dates inclusive).

 

...

 

(3) Where a tribunal is of the opinion that, in relation to any award under the Age Regulations there are circumstances, whether relating to the case as a whole or to a particular sum in an award, which have the effect that serious injustice would be caused if interest were to be awarded in respect of the period or periods in Paragraph (1) or (2), it may —

 

(a) calculate interest, or as the case may be, interest on the particular sum for such different period, or

 

(b) calculate interest for such different periods in respect of various sums in the award,

 

as it considers appropriate in the circumstances, having regard to the provisions of these Regulations.

 

 

Regulation 7 - Decision in writing

 

(1) A tribunal's written statement of reasons for its decision to make an award under the Regulations shall contain a statement of the total amount of any interest included therein and, unless this amount has been agreed between the parties, either a table showing how it has been calculated or a description of the manner in which it has been calculated.

 

(2) A tribunal's written statement of reasons shall include reasons for any decision not to award interest made under Regulation 2.

 

These Regulations are in similar terms to the Employment Equality (Age) Regulations 2006, which applied in Great Britain, prior to the commencement of the Equality Act 2010 on 8 April 2010. The Equality Act 2010 sets out various 'protected characteristics', which includes indirect age discrimination. This is defined in similar terms to that at out in the Age Regulations. In Northern Ireland it has long been recognised decisions of the EAT, but also decisions of the Court of Appeal in England and Wales and Court of Session in Scotland and relevant decisions of the Supreme Court in non-Northern Ireland appeals are of highly persuasive authority but are not strictly binding upon this tribunal; but would generally be followed, where it is appropriate to do so and, in particular, where the relevant legislation, upon which any such decisions are based, as is the situation in relation to age discrimination, are in the same or similar terms (see Beaufort Developments (NI) Ltd v Gilbert Ash [1997] NI 142).

 

4.3 As set out previously 'age group' is defined in Regulation 3(3)(a) as meaning 'a group of persons defined by reference to age, whether by reference to a particular age or a range of ages'. Neither the Regulations nor the case law has provided any guidance in relation to this issue of age group.

 

In the 2010 EHRC Statutory Code of Practice - relating to similar wording in the Equality Act 2010 - it was stated:-

 

"An age group can mean people of the same age or people of a range of ages. Age groups can be wide (for example, 'people under 50'; under 18s). They can also be quite narrow (for example, 'people in their mid-40s'; 'people born in 1952'). Age groups may also be relative (for example, 'older than me' or 'older than us')."

 

Thus the tribunal, given the lack of further definitions in the Age Regulations and the width of the term, as defined, was satisfied, as referred to previously, the claimant was entitled to define herself as being within a particular age group; and which she relied upon for the purposes of this claim under the Age Regulations together with relevant statistics in relation thereto - which statistics were not in themselves in dispute.

 

4.4 Provision, criterion or practice ('PCP') as set out in Regulation 3(1)(b) of the Age Regulations is a wide concept and depending on the factual situation as found by the tribunal, can include, for example, a 'one-off' decision by an employer or indeed a practice not formally adopted by an employer.

 

As set out previously, it was not disputed by the representatives of the parties, that the condition imposed by the respondent; namely, that the holder of the new posts of Store Manager and Retail Buyer (Part-time) must be educated to degree level a relevant criterion ('PCP')in these proceedings, for the purposes of the said Regulation.

 

4.5 Once the PCP has been established, the claimant has to show that she is at a particular disadvantage. In relation to age discrimination, it has been held by the Supreme Court in the case of Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15 that there is no distinction between disadvantages which arise from the application of a PCP and disadvantages which arise as a result of the aging process. Such a distinction was found to be artificial. The Supreme Court held, on the facts of the case, that the relevant disadvantage was that people in the claimant's age group did not have time to acquire a law degree and this was prima facie indirect discrimination. It has been recognised that, in a case of indirect age discrimination, statistical evidence may be of relevance and probative value; but, as Lady Hale in Homer made clear the test for indirect discrimination, using the wording 'particular disadvantage', as seen in Regulation 3(1)(b) of the Age Regulations was:-

 

"Intended to do away with the need for statistical comparisons where no statistics might exist. It was intended to do away with the complexities involved in identifying those who could comply and those who could not and how great the disparity had to be. Now all that is needed is a particular disadvantage when compared with other people who do not show the characteristic in question. It was not intended to lead us to ignore the fact that certain protected characteristics are not likely to be associated with particular disadvantages."

 

In Harvest Town Circle Ltd v Rutherford [2001] IRLR 599, Lindsay J gave some general guidance, which, in light of Homer, would still appear to be of some relevance under the 'new' terminology', relating to the definition of indirect discrimination, as seen in Regulation 3(1)(b) of the Age Regulations :-

 

'(i) There will be some cases where, on the statistics, a disparate [adverse] impact is so obvious that a look at the numbers alone or proportions alone, whether of the advantaged (qualifier) or disadvantaged (non-qualifier) will suffice beyond doubt to show that members of one sex are substantially or considerably disadvantaged in comparison with those of the other.

 

(ii) However, in less obvious cases it will be proper for an Employment Tribunal, as the national court of fact, to use more than one form of comparison, not one of which is necessarily to be regarded as on its own decisive.

 

(iii) In such less obvious cases it will be proper for the Employment Tribunal to look not merely at proportions (as proportions alone can be misleading) but also at numbers and to look at both disadvantaged and non-disadvantages groups and even to the respective proportions in the disadvantaged groups expressed as a ratio of each other.'."

 

In R (on the application of Unison) v Lord Chancellor No 3 [2015] IRLR 911, Underhill J, in the decision relating to tribunal fees, referred with approval to the opinion of Lady Hale in Homer at Paragraph 14, referred to above, stating, inter alia:-

 

"81 ... It is not necessary in every case that 'particular disadvantage' should be established by statistical analysis. That is no doubt so ...

 

... The current definition of indirect discrimination is indeed more flexible than formulations found in earlier EU legislation and case law, and also in the original UK anti-discrimination statutes (though I am not sure the older regime was as rigid as is sometimes suggested). That was authoritatively recognised by in ... Homer ... see Lady Hale at Paragraph 14. What kind of analysis is necessary in order to demonstrate 'particular disadvantage' will depend on the circumstances of the particular case. But the change has not affected the fundamental underlying concepts. As Ms Monaghan accepted, the concept of a 'particular disadvantage' necessarily entails a comparative exercise, whereby the disadvantage suffered by the members of the protected group is compared with the disadvantage suffered by comparable people outside the group to see if there is a disparate impact. Recognising the need for flexibility in the way in which indirect discrimination may be proved does not remove the need for a clear analysis of the comparative disadvantage being alleged by any particular case."

 

It was confirmed in Games v University of Kent [2015] IRLR 202 that the time at which the effect of the PCP falls to be adjudged is when it is applied:-

 

"The question is whether at that time [the PCP] places [a claimant] or person sharing his characteristic] at a particular disadvantage. If it does, it is not an answer for the person applying the PCP to say that it would not have placed them at a disadvantage if they had believed differently at some earlier time."

 

Games, relying on Homer, emphasised that:-

 

"Statistical proof is not essential but relevant statistics would be important material but a claimant's own evidence or evidence of others in the group might be sufficient on the facts of a particular case to show the necessary evidence of disadvantage. A tribunal was not bound to accept such evidence. However, it had to evaluate it in the normal way, reaching conclusions as to its honesty and reliability, and making of findings of fact to the extent that it accepted the evidence."

 

4.6.1 The term 'particular disadvantage' has been the subject of considerable case law, culminating in the recent decision of the Court of Appeal in England and Wales in the case of Home Office (UK Border Agency) v Essop and Others [2015] EWCA Civ 609. This case concerned a written promotion test in the Civil Service, which was found to have a disparate impact on black and minority ethnic employees (and also employees over age 35). A statistical analysis by the Home Office, which was relied on by the claimants had concluded the differential impact related to age and race was 'statistically significant'.

 

The Employment Judge at a pre-hearing review, held that he accepted that failing the test was a disadvantage but that was not the 'particular disadvantage' given that some employees with the protected characteristics passed the test. The Employment Tribunal held the mere fact the claimants had failed the test was not enough to show particular disadvantage as they needed to also prove the reason why they failed the test.

 

4.6.2 At the Employment Appeal Tribunal, Langstaff P, considered the proper interpretation of the new definition of indirect discrimination contained in Section 19(2)(B) of the Equality Act 2010 (which, significantly, for the purposes of these proceedings, is in similar terms to Regulation 3(2)(b) of the Age Regulations). He held the Section did not require a claimant to demonstrate the reason why they have suffered the disadvantage and the tribunal had gone beyond what was required under the Section. In particular, he considered the particular disadvantage in the case was that the black ethnic minority/older group was disproportionately affected by the greater risk, or actual failure of the test.

 

Relying on the well-known case of Enderby v Frenchay Health Authority [1994] ICR 112, Langstaff P held:-

 

"If it is clear from reliable and significant statistical and other evidence that a process adopted by an employer has results which disadvantage a particular racial or cultural group in comparison to others, but neither the employer or its employees can point to a particular feature of the process which has that result, or explain why it does, to require either to show the reason for that disadvantage in any individual case is to ask them to do that which they cannot do."

 

There was no particular personal factor specific to any individual claimant in the case to explain their failure in relation to the test.

 

4.6.3 However, the Court of Appeal held, although the wording of the said legislation does not expressly require members of a disadvantaged group to show why they suffered the disadvantage, it is conceptually impossible to prove a group disadvantage without also showing why the claimant disadvantage is said to arise. Not only must a claimant show the PCP had a statistically significant disparate impact but the claimant must also establish why PCP disadvantages the group sharing the protected characteristic. It could not be proved in the abstract. Sir Colin Rimer, in the lead judgment, said it therefore followed that an individual must also prove the reason for his or her own disadvantage in order to show as required by Section 19(2)(b) Of the Equality Act 2010 (Article 3(2)(b) of Age Regulations) that his or her advantage was the same as the one suffered by the group as a whole. Thus, the Court of Appeal accepted that the Employment Judge was correct, in principle, to hold the claimants had to prove the nature of the group disadvantage that had arisen. He rejected the judgment of Langstaff P that the disadvantage in this case was the mere or actual failure of the test; since many BME and older candidates had in fact passed the test and it had not been established that those who failed the test must have done so because of the disadvantage to the group that was posed by the test. In so finding, he noted that Lady Hale in Homer had recognised the 'why' question was alive in indirect discrimination claims and she had concluded (subject to objective justification) that case was one of indirect age discrimination and explained the reason why those in the relevant group had suffered the disadvantage. He said, in an indirect discrimination claim the reason why the question was different to that seen in claims of direct discrimination; it was not concerned with the motivation s of the employer but the question why the PCP disadvantaged the group sharing the protected characteristic. Thus, Lady Hale in Homer, and Sir Colin Rimer in Essop have appeared to introduce the relevance of the 'reason why' question, central to a direct discrimination claim, also into an indirect discrimination claim.

 

It has to be remembered this was a pre-hearing review and the Court of Appeal were careful not to prejudge the ultimate outcome of the case; and it also noted the declaratory judgment of the Employment Judge was subject always to determinative of issues of justification.

 

4.6.4 Concern has been expressed in some legal journals (see, for example, EOR August/September 2015 and Commentary in October 2015 IRLR) that this judgment of the Court of Appeal could make it more difficult for a claimant to shift the burden of proof and to succeed in an indirect discrimination case in many cases.

 

4.6.5 It should be noted that Sir Colin Rimer, however, emphasised that, in principle, it was possible for a claimant to rely on statistics as evidence supporting the assertion he/she was personally disadvantaged by the PCP in the same way as the group was. He held such evidence may prove facts from which, in the absence of any other explanation, the Employment Tribunal could decide the discrimination is proved and the burden of proof was therefore shifted. In this context, it had been suggested in the course of the hearing of the case before the Employment Tribunal and on appeal that such evidence of disadvantage might not emerge when the case was remitted back to the Employment Tribunal; and this may be relevant to why this particular guidance was given by Sir Colin Rimer.

 

In a recent decision Dr S Rajaratnan v Care UK Clinical Services Ltd [2015] UKEAT/0435/14, the Employment Appeal Tribunal has applied the Essop guidance, namely that the assessment of disadvantage required findings both as to disadvantage in the group and for the particular complainant. It has also been followed by the Employment Appeal Tribunal in the case of Bethnal Green and Shoreditch Education Trust v Dippenaar [2015] UKEAT/0064/15.

 

4.6.6 In a further decision of the Court of Appeal in the case of Naeem v The Secretary of State for Justice [2015] EWCA Civ 1264, which concerned the effect of a length of service criterion, the Court of Appeal, it could be argued, went further than in Essop; where it held not only does the claimant have to show the reason for the disadvantage in an indirect discrimination case, but that reason has to be discriminatory before the burden is shifted to the respondent to prove justification. The Court, in the course of its decision drew an analogy between indirect discrimination law and equal pay law to emphasise the need for a claimant to show the reason for the disparity.

 

Underhill LJ held the concept of 'putting persons at a disadvantage is causal and, as in any legal analysis of causation, it is necessary to distinguish the relevant cause or causes from other factors in the situation'.

 

4.6.7 The stated aim of the introduction of the new definition of indirect discrimination, seen in Section 19 of the Equality Act 2010, but also contained in Regulation 3(2)(b) of the Age Regulations, as confirmed in Homer was to make the concept of indirect discrimination less technical and difficult. It might be argued that the decisions in Essop and Naeem have led to more difficulty with the introduction of the 'reason why' question and that the concept of putting persons at a disadvantage is causal.

 

4.6.8 Both the decisions in Essop and Naeem have been the subject of an appeal to the Supreme Court, but to date have not been heard, who will require to consider whether the term 'that disadvantage' in Section 19 [and therefore also Regulation 3(2)(b) of the Age Regulations] has been interpreted correctly and in accordance with the phrase 'particular disadvantage' as used in Article 2(2)(b) of the Framework Employment Equality Directive 2000/78 which provides this definition of indirect discrimination:-

 

"Indirect Discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular sexual orientation at a particular disadvantage compared with other persons ... ."

 

It is possible, in light of the foregoing and the decision in Chez Razpredelenie Bulgaria (see later) the Supreme Court will initially decline to make a decision, and refer all these issues to the European Court of Justice.

 

4.6.9 In a recent decision of the European Court of Justice in the case of Chez Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia [2015] EU ECJ C-83/14 - 16 July 2015, which concerned the supply of goods and services and the height at which electricity meters are required to be fixed in Bulgaria, rather than employment law, the Court set out certain guidance on the issue of indirect discrimination, in the context of the Race Directive. However, since the terms of the other EU Equality Directives, including that of age, are in similar terms to that of the Race Directive this decision has potential relevance for all cases of indirect discrimination. In this case, the ECJ defined indirect discrimination as occurring where an apparently neutral PCP would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons (unless that PCP is objectively justified). It held, in particular, there was nothing in this wording stating that the victim of indirect discrimination must show the race or ethnic origin of the protected group. Under the Equality Act 2010, Section 19(2)(b) (Regulation 3(2)(b)) an indirect discrimination claim is possible only if the claimant has the same characteristic as the protected group. The ECJ removes this requirement and persons who suffer alongside a disadvantaged group without sharing the relevant protected characteristic can bring a claim for indirect discrimination ('collateral damage/associative discrimination - see further Coleman v Attridge Law [2008] IRLR 722 and [2010] ICR 242).

 

On facts of the present proceedings, the issue of such 'collateral damage', associative discrimination, which was required to be determined in Chez Razpredelenie Bulgaria AD was not required to be considered by the tribunal. However, the European Court of Justice found in order for a measure to be capable of falling within the Race Discrimination Directive (and also therefore the Age Discrimination Directive 'it is sufficient that, although using neutral criteria not based on the characteristic, it has the effect of placing particular persons possessing that characteristic at a disadvantage', this would appear to contrast with the decisions of the Court of Appeal in Essop and Naeem, and the additional requirement to show the reason why they were placed at such a disadvantage. It has to be remembered that the tribunal is obliged to interpret United Kingdom statutory provisions consistently with any relevant EU Directive, insofar as possible and, for the reasons set out above, there would appear to be some divergence between the European Court of Justice, as expressed in Chez Razpredelenie Bulgaria and the Court of Appeal in Essop and Naeem in relation to what requires to be shown by a claimant in an indirect discrimination claim; albeit what was stated in Chez Razpredelenie Bulgaria, was in relation to a very different factual situation to that seen in Essop and Naeem let alone the present proceedings. This potential divergence may not be resolved until the decision of the Supreme Court. [In this context, it is noted that the representatives declined, at the invitation of the tribunal, to make any further submissions on foot of the said decision and/or its relevance, if any, to the issues the subject-matter of these proceedings, including the dicta of the Court of Appeal in Essop.]

 

4.7 It was therefore necessary for the tribunal to consider whether it should follow the guidance of the Court of Appeal in Essop and/or Naeem or the earlier guidance of the Employment Appeal Tribunal, in those cases, given each appear to be more consistent in its conclusions with that of the European Court of Justice in Chez Razpredelenie Bulgaria, for reasons set out above. As set out previously, these decisions of the Court of Appeal are not strictly binding on this tribunal (see further Paragraph 4.2 of this decision) unlike the recent decisions of the Employment Appeal Tribunal in the cases of Rajaratnan and Bethnal Green and Shoreditch Education Trust, where the decision of the Court of Appeal in Essop was followed, without equivocation, as the EAT was required to do. Generally, the tribunal in this jurisdiction would follow such decisions of the Court of Appeal, rather than the decisions of the Employment Appeal Tribunal, where it is appropriate to do so (see Beaufort Developments). The tribunal is now aware that leave has been given for the Essop and Naeem decisions to be the subject of appeal to the Supreme Court; which appeal is unlikely to be determined for some time.

 

In the event, it was not necessary, on the facts found by the tribunal, for the tribunal, for the purposes of determining the present proceedings, to resolve this difference of approach by the Employment Appeal Tribunal and the Court of Appeal in Essop. No doubt, in due course, it will be necessary for another court or tribunal to determine which guidance is necessary to follow, in light of any decision of the Court of Appeal.

 

4.8.1 Under Regulation 3 of the Age Regulations, prima facie, indirect discrimination is not unlawful if it is justified; that is, if it is a 'proportionate means of achieving a legitimate aim'. Provided a claimant has established advise disparate impact, the burden of establishing the defence of justification on the balance of probabilities lies on the employer. It has been recognised it requires an objective balance between the discriminatory effect of the PCP and the reasonable needs of the party who applies that PCP (see per Balcombe LJ in Hampson v Department of Education and Science [1989] ICR 179, at Page 191, approved by the House of Lords in Webb v Emo Air Cargo (UK) Ltd [1993] ICR 175. The PCP does not have to be the only possible way of achieving the legitimate aim. But the principle of proportionality requires that it is to be assessed as against the legitimate aim, assessing the possibility of alternatives in the light of the disadvantage (see further Hardys Hansons PLc v Lax [2005] IRLR 726 per Pill LJ) and Allonby v Accrington & Rossendale College [2001] ICR 1189 per Sedley LJ and the Supreme Court in Homer v Chief Constable of West Yorkshire Police [2012] ICR 704. In performing the required balancing exercise, the tribunal has to consider the needs of the employer but also the discriminatory effect on the effected employees, including the claimant, with the importance of the legitimate aim being weighed against the discriminatory effect of the treatment. As emphasised in Homer to be proportionate a measure must be both an appropriate means of achieving the legitimate aim and reasonably necessary to do so. Thus it may not be necessary for an employer to show there was no other way of achieving the legitimate aim.

 

As Lady Hale, in Homer, in her judgment stated:-

 

"24 Part of the assessment of whether the criterion can be justified entails a comparison of the impact of that criterion upon the affected group as against the importance of the aim of the employer ...

25 To some extent the answer depends on whether there were non-discriminatory alternatives available ... ."

 

In Braithwaite and Others v HCL Insurance BPO Services Ltd [2015] UKEAT/0152/14, the Employment Appeal Tribunal, in a case of indirect age discrimination, where the respondent was facing continuing losses sought to address those losses by requiring employees to agree new terms or conditions or be dismissed. That requirement put older employees at a particular disadvantage as they were more likely to los existing contractual rights. The respondent had been the subject of a number of changes over the years, whereby certain employees had transferred to the respondent with different terms and conditions, in relation to working hours, annual leave, redundancy entitlement, etc. To enter the new contract was a PCP but was found to have been objectively justified on the facts. It found the respondent had a legitimate aim, namely reducing staff costs to ensure its future viability in an attempt to break even year on year and to do so by putting in place a market competitive, non-discriminatory set of terms and conditions. The EAT held the respondent had properly considered the effect of the changes upon the affected employees and balanced the needs of the respondent against those changes. In this context, it is important to note it did consider the alternatives proposed but found those alternatives would not achieve the respondent's legitimate aim and the PCP was objectively justified as there were no practicable alternatives to the changes proposed by the respondent and the changes were found to be proportionate.

 

There has been much case law in this area and, of course, when considering such case law much has to depend on the facts in issue in each case in determining how the said balancing exercise is resolved. However, unlike other discrimination legislation, prima facie direct age discrimination can also be justified; but the two decisions of the Supreme Court in Homer v Chief Constable of West Yorkshire Police [2012] Eq LR 594 and Seldon v Clarkson Wright and James [2012] Eq LR 579 have emphasised that there are differences between these types of claims and the application of the considerations relevant to justification. It is not necessary for the purposes of these proceedings to consider these differences in detail. However, in essence, under EU law, these Supreme Court decisions confirm the circumstances in which direct discrimination can be justified are more limited than those in which indirect discrimination can be justified. The range of aims which can justify indirect discrimination is much wider. It is not limited, as in a case of direct discrimination on grounds of age to social policy objectives such as those related to employment policy, the labour market or vocational training; but can include individual reasons particular to an employer's business such as cost reduction or improving competiveness (see later). There is no prescriptive list of proper aims.

 

4.8.2 There seems little doubt that 'saving cost' is not a legitimate aim in the context of direct discrimination; but, it has been suggested by some legal commentators there would appear still to be some doubt whether a business can point to cost as the sole reason to justify indirect discrimination.

 

However, in Ministry of Justice v O'Brien, a case of direct discrimination, [2013] IWLR 522, the Supreme Court said:-

 

"Budgetary considerations cannot justify discriminatory treatment and that a discriminatory rule or practice can only be justified by reference to a legitimate aim other than the simple saving of cost."

 

It would appear therefore the Supreme Court, even if obiter, were stating 'costs plus' rule applies equally to cases of direct and indirect discrimination. (But see further discussion in Discrimination on Employment Law Paragraph H 4.003.) This would seem to be in line with the recent decisions of the High Court and Court of Appeal in relation to the imposition of tribunal fees and claims of indirect discrimination arising from their imposition; albeit it must be recognised the facts on those cases are very different from those in the present proceedings.

 

As Underhill LJ in the case of Lord Chancellor (No 3) has made clear the issue of costs, as a basis for justification has had some difficulties in the case law:-

 

"91 There is in discrimination litigation a good deal of bandying about of the language of 'cost', which is said never to be an admissible justification and 'costs plus', in which the presence of some other factor appears to magically legitimate partial reliance on costs consideration. I have expressed elsewhere my concerns about this crude dichotomy (see Woodcock case referred to by the Supreme Court when it was before the EAT [2010] UKEAT/0489, Paragraph 32), and I respectfully agree with the Supreme Court in O'Brien that the issue is of some subtlety."

 

Underhill LJ referred with approval to the decision of Elias LJ in R (on the application of Unison) v Lord Chancellor No 2 [2015] IRLR 99, where he had held that any cost-based justification was permissible on the 'cost plus' analysis. On the particular facts of the case, Underhill LJ held the level of fee could be objectively on the basis of the level of resources required by the tribunal to deal with it. This was not an impermissible 'cost alone' justification; but rather it was 'no more than an application of ordinary principles of economic efficiency, which has regularly been accepted as relevant to justification'.

 

In Lord Chancellor No 2, Elias J had reviewed, as seen above, the authorities and had concluded 'the current state of the authorities is that whilst cost savings cannot of themselves justify what is otherwise prima facie indirect discrimination they may do so in consideration with other reasons. He referred with approval to the judgment of Rimer LJ in Woodcock v Cumbria Primary Care Trust [2012] EWCA Civ 330, who had felt the rule somewhat artificial but well-established held " an employer could not justify discriminatory treatment 'solely' because the elimination of such treatment would involve increased costs, that guidance cannot mean more than that the saving or avoidance of costs will not 'without more' amount to the achieving of a legitimate aim".

 

Elias LJ then concluded the existence of other objectives - at least assuming them to be legitimate - would in principle render this objective legitimate. Each case must be examined on its facts in determining the aims and proportionality issues, including costs plus issues (see further HCL Insurance BPO Services Ltd).

 

4.8.3 Difficult issues have arisen, in the legal authorities, in relation to applying the test, in the context of possible alternatives available to the PCP applied.

 

In Cadman v Health and Safety Executive [2004] IRLR 971, Kay LJ held:-

 

"The test does not require the employer to establish that the measure complained of was 'necessary' in the sense of being the only course open to him ... The difference between 'necessary' and reasonably necessary is a significant one ... ."

 

In HM Land Registry v Benson [2012] IRLR 373, the EAT held at Paragraph 37:-

 

" ... an employer's decision about how to allocate his resources, and specifically his financial resources, should constitute a ... 'legitimate aim' - even if it is shown that he could have afforded to make a different allocation with a lesser impact on the class of employee in question. To say that an employer can only establish justification if he shows that he could not make the payment in question without insolvency is to adopt a test of absolute necessity. The task of the employment tribunal is to accept the employer's legitimate decision as to the allocation of his resources as representing a genuine 'need' but to balance it against the impact complained of."

 

The decision of the Court of Appeal in Barry v Midland Bank PLc [1988] IRLR 138, Chief Constable of the West Midlands v Blackburn [2009[ IRLR 135, and more recently the Employment Appeal Tribunal in Chief Constable of the West Midlands Police v Harrod [2015] IRLR 790 would suggest that the task of the tribunal is to assess the scheme applied. An alternative means, however, is not irrelevant to determination of this issue of justification. An employer is likely to have difficulty in demonstrating the means are appropriate or reasonably necessary if there is evidence that less discriminatory means could be used to achieve the same objective (see Kutz-Bauer v Freie and Hansestadt Hamburg [2003] ECR 1-2741). Crucial in the judgment of the tribunal, would be whether the identified legitimate aims can be achieved by less discriminatory means than were adopted. If they can, then justification is unlikely to be able to be established by the employer; whereas if they cannot, justification may be able to be established. Much will depend on the particular facts and the evidence, if any, as to alternative means put before the tribunal (see further Barry and Blackburn).

 

4.8.4 Facilitating the recruitment and retention of staff, as seen in Homer, has been found to be a legitimate aim. In Seldon, Lady Hale set out a list of legitimate social policy aims, recognised by the ECJ, and which would also seem to be relevant, if appropriate, on the facts, in a case of indirect discrimination, including promoting access to employment for younger people, promoting the efficient planning of the departure and recruitment of staff, rewarding experience, cushioning the blow for long-serving employees who might find it hard to find new employment if dismissed, facilitating the participation of older workers in the workforce, promoting access employment for younger people. In Seldon, it was confirmed that the measure must be objectively justified but as Lord Hope said at Paragraph 76:-

 

"Just as it will not be sufficient for the partners simply to assert that their aims were designed to promote the social policy aims that the article has identified, it does not matter if they said nothing about this at the time or if they did not apply their minds to the issue at all.

 

As it happens, no minute was taken of the reason why Clause 22 was framed as it was. But I regard this fact immaterial, as the matter was one for the Employment Tribunal and not for the partners themselves to determine. Furthermore, the time at which the justification for the treatment which is said to be discriminatory must be examined is when the difference of treatment is applied to the person who brings the complaint."

 

(See also Games v University of Kent [2015] IRLR 202 - referred to previously in relation to issue of time.)

 

However, Lady Hale in O'Brien warned of the dangers of such post facto justification. Acknowledging it was not precluded, she emphasised a Court was likely to treat with greater respect a justification for a policy which was carefully thought through by reference to relevant principles at the time was adopted (see Belfast City Council v Misbehavin Ltd [2007] UKHL 19).

 

4.8.5 O'Brien again emphasised that the benefit of a prima facie discriminatory measure must be shown in a clear and cogent way with proper evidence - mere assertion will not be enough. As was made clear also in Seldon it is necessary to have factual evidence to support a justification argument. The Supreme Court accepted, however, that concrete evidence may not always be necessary to establish justification, which can be established, in an appropriate case, by reasoned and rational argument; but what is not permissible is a justification based simply on subjective impressions or stereotypical assumptions.

 

The classic test for justification, which would still be good law following the Supreme Court decisions in Homer, Seldon and O'Brien, was set out by Elias J in MacCulloch v ICI [2008] IRLR 846 , albeit obiter:-

 

"(i) The burden of proof is on the respondent to establish justification.

 

(ii) The classic test was set out in Bilku-Kanfhause GMBH v Weber Von Hertz [1984] IRLR 317 in the context of indirect discrimination. The European Court of Justice said that the Court or tribunal must be satisfied the measures 'must' correspond to a real need ... are appropriate with a view to achieving the objectives pursued and are necessary to that end (Paragraph 36). This involves the application of the proportionality principle which is the language used in Regulation 3 itself. It has subsequently been emphasised that the reference to 'necessary' means 'reasonably necessary' ...

 

(iii) The principle of proportionality requires an objective balance to be struck between the discriminatory effect of the measure and the needs of the undertaking. The more serious the disparate adverse impact, the more cogent must be the justification for it.

 

(iv) It is for the Employment Tribunal to weigh the reasonable needs of the undertaking against the discriminatory effect of the employer's measures and to make its own assessment of whether the former outweighs the latter. There is no 'range of reasonable responses' test in this context."

 

However, it should be noted in Seldon, in the decision of the Employment Appeal Tribunal, echoing the guidance of Elias J in MacCulloch, it was recognised " the overall discriminatory effect of a measure will necessarily be greater when there is direct as opposed to indirect discrimination ... and this will be a material factor to bear in mind when applying the test of proportionately." Again, the suggestion is that direct discrimination can be harder to justify than indirect discrimination.

 

In Seldon and Homer, the Supreme Court has considered the issue in relation to justification, in the context of an indirect age discrimination case, whether the justification required is of the PCP or its application to the individual claimant. The Supreme Court in the said authorities has held that the balancing exercise required relates to the justification of the Rule not the individual application of that Rule.

 

Seldon - Paragraph 66 :

 

"There is therefore a distinction between justifying the application of the Rule to a particular individual, which in many cases would negate the purpose of having a Rule, and justifying the Rule in the particular circumstances of the business. All businesses will have to give careful consideration to what, if any, mandatory retirement Rules can be justified."

 

(See further Homer , Paragraphs 25 and 34 - 35.)

 

4.8.6 In recent decision, Chief Constable of West Midlands Police v Harrod [2015] IRLR 790, Langstaff P stated in relation to the issue of justification, in a case of indirect discrimination:-

 

" ... When considering justification, a tribunal is concerned with that which can be established objectively. It therefore does not matter that the alleged discriminator thought what it was doing was justified. It is not a matter for it to judge, but for Courts and Tribunals to do so. Nor does it matter that it took every care to avoid making a discriminatory decision. What has to be shown to be justified is the outcome, not the process by which it is achieved. For just the same reasons, it does not ultimately matter that the decision-maker failed to consider justification at all ; to decide a case on the basis the decision made was careless, at fault, misinformed or misguided would be to fail to focus on whether the outcome was justified objectively in the eyes of a Tribunal or Court. It would be to concentrate instead on subjective matters irrelevant to that decision. This is not to say that a failure by a decision made to consider discrimination at all, or to think about ways by which a legitimate aim might be achieved other than the discriminatory one adopted, is entirely without impact. Evidence that other means had been considered and rejected, for reasons which appeared good to the alleged discriminator at the time, may give confidence to a tribunal in reaching its own decision that the measure was justified. Evidence it had not been considered might lead to more intense scrutiny of whether a suggested alternative, involving less or no discriminatory impact might be or could have been adopted. But the fact there may be such an impact does not convert a tribunal's task from determining if the measure in fact taken can be justified before it objectively, into one of deciding whether the alleged discriminator was unconsidering or irrational in its approach. Case law is all the way on this : see Seldon v Clarkson Wright & Jakes [2012] IRLR 590 at Paragraph 60 per Lady Hall - 'the aim need not have been articulated or even realised at the time when the measure was first adopted ...'."

 

Langstaff P also referred to Lord Hope's opinion at Paragraph 76 of Seldon, and Belfast City Council v Misbehavin Ltd, referred to in Paragraph 4.8.3 of this decision.

 

4.9 In relation to the burden of proof provisions set out in Regulation 42 of the Age Regulations the English Court of Appeal in the case of Igen v Wong [2005] IRLR 258, considered similar provisions, relating to sex discrimination, applicable under the legislation applying in Great Britain and, approved, with minor amendment, the guidelines set out in the earlier decision of Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332. In a number of decisions, the Northern Ireland Court of Appeal has approved the decision of Igen v Wong [2005] IRLR 258 and the said two-stage process to be used in relation to the burden of proof (see further Brigid  McDonagh & Others v Samuel Thom t/a The Royal Hotel Dungannon [2007] NICA 1 and other decisions referred to below.) The decision in Igen v Wong [2005] IRLR 258 has been the subject of a number of further decisions in Great Britain, including Madarassy v Nomura International PLc [2007] IRLR 246, a decision of the Court of Appeal in England and Wales, and Laing v Manchester City Council [2006[ IRLR 748, both of which decisions were expressly approved by the Northern Ireland Court of Appeal in the case of Arthur v Northern Ireland Housing Executive & Another [2007] NICA 25. (See further the recent Supreme Court decision in the case of Hewage v Grampian Health Board [2012] UKSC 37, in which the Supreme Court approved the guidance in Igen and followed in subsequent case law, such as Madarassy [see below].), and where it did not consider any further guidance was necessary. It also emphasised it was not necessary to make too much of the role of the burden of proof provisions; they required careful attention where there was room for debate as to the facts necessary to establish discrimination but they had nothing to offer where the tribunal was in a position to make positive findings on the evidence one way or the other.

 

In Madarassy v Nomura International PLC [2007] IRLR 246 the Court of Appeal held, inter alia, that:-

 

"The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more [tribunal's emphasis], sufficient material from which a tribunal could conclude that on the balance of probabilities the respondent had committed an unlawful act of discrimination - could conclude in Section 63A(2) must mean that 'a reasonable Tribunal could properly conclude from all the evidence before it. This would include evidence adduced by the claimant in support of the allegation of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject to the statutory absence of an adequate explanation at this stage the tribunal needs to consider all the evidence relevant to the discrimination complaint, such as evidence to whether the act complained of occurred at all, evidence as to the actual comparators relied upon by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the claimant were of like with like as required by Section 5(3) and available evidence for the reasons for the differential treatment. The correct legal position was made plain by the guidance in Igen v Wong. Although Section 63A(2) involves a two-stage analysis of the evidence, it does not expressly or impliedly prevent the tribunal at the first stage, from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing or rebutting the claimant's evidence of discrimination ... ."

 

4.10 In relation to what is to be included by the expression 'something more' - guidance is to be found in the judgment of Elias J in The Law Society v Bahl [2003] IRLR 640, which judgment was approved by the Court of Appeal (see [2004] IRLR 799).

 

In Paragraph 94 of his judgment, Elias J emphasised that unreasonable treatment is not of itself a reason for drawing an inference of unlawful discrimination when he stated:-

 

"94. It is however a wholly unacceptable leap to conclude that whenever the victim of such conduct is black or a woman that it is legitimate to infer that our unreasonable treatment was because the person was black or a woman. All unlawful discriminatory treatment is unreasonable, but not all unreasonable discriminatory treatment is discriminatory, and it is not shown to be so merely because the victim is either a woman or of a minority race or colour. In order to establish unlawful discrimination it is necessary to show that the particular employer's reason for acting was one of the proscribed grounds. Simply to say that the conduct was unreasonable tells us nothing about the grounds for acting in that way. The fact that the victim is black or a woman does no more than raise the possibility that the employer could have been influenced by unlawful discriminatory consideration. Absent some independent evidence supporting the conclusion that this was indeed the reason, no finding of discrimination can possibly be made.

 

96. ... Nor in our view can Sedley LJ (in Anya v University of Oxford) be taken to be saying that the employer can only establish a proper explanation if he shows that he in fact behaves equally badly to members of all minority groups. The fact that he does so will be one way of rebutting an inference of unlawful discrimination, even if there are pointers which would otherwise justify that inference. ... No doubt the mere assertion by an employer that he would treat others in the same manifestly unreasonable way, but with no evidence that he had in fact done so, would not carry any weight with a tribunal which is minded to draw the inference on proper and sufficient grounds that the cause of the treatment has been an act of unlawful discrimination."

 

In particular, in Paragraph 101 of Elias J's judgment explained that unreasonable conduct is not necessarily irrelevant and may provide a basis for rejecting an explanation given by the alleged discriminator but then added these words of caution:-

 

"The significance of the fact that the treatment is unreasonable is that a tribunal will more readily in practice reject the explanation, given that it would if the treatment were reasonable. In short, it goes to credibility. If the tribunal does not accept the reason given by the alleged discriminator, it may be open to it to infer discrimination. But it will depend upon why it has rejected the reason he has given, and whether the primary facts it finds provide another and cogent explanation for the conduct. Persons who have not discriminated on the proscribed grounds may nonetheless give a false reason for the behaviour. They may rightly consider, for example, that the true reason costs then in a less favourable light, perhaps because it discloses incompetence or insensitivity. If the findings of the tribunal suggest there is such an explanation, then the fact that the alleged discriminator has been less than frank in the witness box when giving evidence will provide little, if any, evidence to support finding of unlawful discrimination itself."

 

At Paragraph 113 of his judgment, he also stated:-

 

"There is an obligation on the tribunal to ensure that it has taken into consideration all potentially relevant non-discriminatory factors which might realistically explain the conduct of the alleged discriminator ... ."

 

At Paragraph 220 he confirmed:-

 

"An inadequate or unjustified explanation does not of itself [tribunal's emphasis] amount to a discriminatory one."

 

In the recent decision in the case of The Solicitors Regulation Authority v Mitchell [2014] UKEAT/0497/12, this guidance was summarised in the following way ( Paragraph 46):-

 

"(i) In appropriate circumstances the 'something more' can be an explanation proffered by the respondent for the less favourable treatment that is rejected by the Employment Tribunal.

 

(ii) If the respondent puts forward a false reason for the treatment but the Employment Tribunal is able on the facts to find another non-discriminatory reason, it cannot make a finding of discrimination."

 

Determining when the burden of proof is reversed can be difficult and controversial as illustrated in the following decisions. In Maksymiuk v Bar Roma Partnership [UKEATS/0017/12], when Langstaff P at Paragraph 28 said:-

 

"The guidance in Igen v Wong has been carefully refined. It is an important template for decision-making. As Laing and Madarassy have pointed out however, a tribunal is not required to force the facts into a constrained cordon where in the circumstances of the particular case they do not fit it. That would not to be apply the words of the statute appropriately. Intelligent application of the guidance, rather than slavish obedience where it would require contorted logic, is what is required."

 

Further, in Birmingham City Council v Millwood [2012] UKEAT/0564, Langstaff P stated:-

 

"26 What is more problematic is the situation where there is an explanation that is not necessarily found to be a lie but which is rejected as opposed to one that is simply not regarded as sufficiently adequate.

 

Realistically, it seems to us that, in any case in which an employer justifies treatment that has a detrimental effect as between a person of one race and a person or persons of another by putting forward a number of inconsistent explanations which are disbelieved (as opposed to not being fully accepted) there is sufficient to justify a shift of the burden of proof. Exactly that evidential position would have arisen in the days in which King v Great Britain - China Centre [1992] ICR 516 was the leading authority in relation to the approach should take to claims of discrimination. Although a tribunal must by statute ignore whether there is any adequate explanation in stage one of its logical analysis of the facts, that does not mean, in our view, to say that it can and should ignore an explanation that is frankly inadequate and in particular are that is disbelieved.

27 ... to prefer one conclusion rather than another is not, as it seems to us, the same as rejecting a reason put as being simply wrong. In essence, the tribunal in the present case appeared not to believe at least two of the explanations that were being advanced to it, and there were, we accept from what Mr Swanson has said, some three inconsistent explanations put forward for the difference in treatment that constituted the alleged discriminatory conduct."

 

On the facts of the case, in the Solicitors Regulation Authority case, it was found that a false explanation for the treatment was given by the respondent's witness, which was found to lack credibility and could therefore constitute the 'something more'; and the tribunal, having reversed the burden of proof, in the circumstances, was able to properly infer discrimination:-

 

"The tribunal asked the reason why the claimant had been treated as she was. It was not simply a question of the respondent putting forward no explanation but having given a false explanation. This was clearly capable of being 'something more' ... ."

 

This issue again arose in a further recent decision by the Employment Appeal Tribunal in the case of Veolia Environmental Services UK v Gumbs [UKEAT/0487/12] where the EAT recognised Igen, Madarassy and Hewage:-

 

"all exhibit the same tension; how to recognise the difficulty of proving discrimination on the one hand, whilst at the same time not stigmatising as racially discriminatory conduct which is simply irrational or unreasonable, on the other ... ."

 

It held, as set out in the head note of the judgment, it did not accept that Madarassy and Hewage supported the submission that an employer should not have the burden of proof reversed and be required to give a non-discriminatory explanation for its conduct in demoting an employee or denying the employee an opportunity to qualify to do different work where inconsistent explanations for the reason for the demotion had been given and an unacceptable account of knowledge of the ambition to qualify had been given. Whilst the substance of the explanation should be excluded from consideration when deciding whether the burden of proof should be reversed the fact that explanations had been given which were inconsistent could be taken into account. When an account of lack of knowledge as to the employee's ambition to qualify for different work had been contradicted by other evidence that was a factor to be considered in deciding whether the burden of proof had shifted.

 

4.11 In the case of Curley v Chief Constable of the Police Service of Northern Ireland and Another [2009] NICA 8, the Northern Ireland Court of Appeal approved the judgement of Elias LJ in Laing, which was also referred to with approval by Campbell LJ in the Arthur case, that it was not obligatory for a tribunal to go through the steps set out in Igen in each case; and also referred to the opinion of Lord Nicholls in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] NI 147, where he observed at paragraph 8 of his opinion, as follows:-

 

"Sometimes a less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue".

 

Lord Nicholl's opinion in the Shamoon case made clear the normal two step approach of Tribunals in considering, firstly, whether the claimant received less favourable treatment than the appropriate comparator, which can include an actual or hypothetical comparator, and then, secondly whether the less favourable treatment was on the proscribed ground, can often be avoided by concentrating on why the claimant was treated as he/she was; and was it for the proscribed reason or for some other reason. If the latter, the application fails. If the former, there would normally be no difficulty in deciding whether the less favourable treatment, afforded to the claimant on the proscribed ground was less favourable than was or would have been afforded to others (see further Paragraph 11 of Lord Nicholls' opinion). Indeed, Lord Nicholls' opinion emphasised that the question whether there had been less favourable treatment and whether the treatment was on the grounds of [sex] are in fact two sides of the same coin.

 

4.12 In Nelson v Newry and Mourne District Council [2009] NICA 24, Girvan LJ referred approvingly to the decisions in Madarassy and Laing and also held that the words 'could conclude' are not to be read as equivalent to 'might possibly conclude'. He said " the facts must lead to the inference of discrimination". He also stated:-

 

"24. This approach makes clear that the complainants allegation of unlawful discrimination cannot be used in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination. The whole context of the surrounding evidence must be considered in deciding whether the tribunal could probably conclude in the absence of an adequate explanation that the respondent has committed an act of discrimination. In Curley v Chief Constable the Police Service of Northern Ireland and Another [2009] NICA 8, Coghlin LJ emphasised the need for a Tribunal engaged in determining this type of case to keep in mind the fact that claim put forward is an allegation of unlawful discrimination. The need for the Tribunal to retain such a focus is particularly important when applying the provisions of Article 63 A. The tribunal's approach must be informed by the need to stand back and focus on the issue of discrimination."

 

4.13 Coghlin LJ, in the case of Curley, also referred to the well known dicta of Carswell LCJ, as he then was, in the Sergeant A case, which also emphasised the necessity for the tribunal to look at the matter, in the light of all the facts as found:-

 

"3. Discrepancies in evidence, weaknesses and procedures, poor record keeping, failure to follow established administrative processes or a satisfactory explanation from an employer may all constitute material from which an influence of religious discrimination may legitimately be drawn. But Tribunals should be on their guard against the tendency to assume that every such matter points towards a conclusion of religious discrimination, especially where other evidence shows such a conclusion is improbable on the facts."

 

Although, both the Curley and Sergeant A cases were dealing with issues of religious discrimination, the dicta is also relevant, in the judgment of the tribunal, to determination of claims of discrimination pursuant to the Age Regulations and the other discrimination legislation and the interpretation of the relevant provisions relating to the burden of proof provisions, in the case law, referred to above, from the Employment Appeal Tribunal and the Court of Appeal of England and Wales .

 

4.14 Most of the legal authorities, referred to above, relating to the said burden of proof legislation, related to cases of direct discrimination rather than indirect discrimination. However, although the guidelines set out in the Igen case and subsequent legal authorities both in this jurisdiction and in Great Britain, might be argued to be of more relevance to a case of direct discrimination, there is no doubt that the said guidelines are of equal relevance and application to a case of indirect discrimination - albeit it may be more difficult to apply in each particular case. (See further discussion in Discrimination in Employment Law, Tucker and George, Paragraph J5.019.)

 

Indirect discrimination consists, as set out previously, of a number of elements, namely:-

 

(i) that the employer supplied to the employee a provision, criterion or practice which he applies or would apply equally to persons not of the same age group as the claimant, but

 

(ii) which puts or would put persons of the same age group as the claimant at a particular disadvantage compared with other persons; and

 

(iii) which puts the claimant at that disadvantage; and

 

(iv) which he cannot show to be proportionate means of achieving a legitimate aim.

 

Clearly all four conditions have to be met before indirect discrimination can be established; but given the nature of the claim, it will frequently be difficult to strictly apply the two-stage process, as referred to in the guidelines set out in Igen v Wong and the other legal authorities referred to above; although, as seen previously, this will not always be necessary in any event.

 

The tribunal noted, in this context, the recent decision of the Employment Appeal Tribunal in the case of Bethnal Green and Shoreditch Education Trust v Dippenaar [2015] UKEAT/0064/15 where Langstaff P held, in deciding whether the burden of proof had passed, the tribunal should apply the approach identified in Project Management Institute v Latif [2007] IRLR 579, albeit a disability case relating to breach of the duty to make reasonable adjustments:-

 

"The burden of proving the existence of a PCP and disparate impact lies on the claimant : the reversal of the burden of proof is as to the reason why the PCP has that effect."

 

In Project Management Institute V Latif, Elias J, as President, said at Paragraph 45:-

 

" ... We very much doubt whether the burden shifts at all in respect of establishing the provision, criterion or practice, or demonstrating the substantial disadvantage. There are simple questions of fact for the tribunal to decide after hearing all the evidence, with the onus of proof resting with the claimant throughout on the claimant. These are not issues where the employer has information or beliefs within his own knowledge which the claimant cannot be expected to prove. To talk of the burden in shifting in such cases is in our view confusing and inaccurate."

 

As recognised by Langstaff P, although Latif was a decision relation to reasonable adjustments, in such a case it was also necessary to find there had been a PCP, productive of disadvantage.

 

4.15 In relation to the statutory questionnaire procedure, pursuant to Regulation 46 of the Age Regulations, it has long been established that the statutory procedure is the way which the legislature has provided, in the anti-discrimination legislation to enable a claimant to advance her case of unlawful discrimination; and tribunals should take a serious view of any unsatisfactory answering of questionnaires and have ample power, where it considers it just and equitable, to draw adverse inferences, " where a respondent deliberately, and without reasonable excuse" omitted to reply within the relevant time period or the reply is 'evasive or equivocal'. (See further Carrington v Helix Lighting Ltd [1990] IRLR 6 and Dattani v Chief Constable West Mercia Police [2005] IRLR 327.)

 

However, in the case of D'Silva v NATFHE [2008] IRLR 412, the Employment Appeal Tribunal in valuable guidance, stated:-

 

"There is a tendency for respondents' failures in answering a questionnaire, or otherwise in providing information or documents to be relied on by claimants and even sometimes tribunals, as automatically raising a presumption of discrimination. An inference can be drawn from failures of this kind only in appropriate cases and the drawing of inferences from such failures is not a tick box exercise. It is necessary in each case to consider whether the failure in question is capable of constituting evidence supporting the inference that the respondent acted discriminatorily in the manner alleged; and if so, whether in light of any explanation supplied it does in fact justify that inference. Such failures are only relevant to the extent they potentially shed light on the actual discrimination complained of and thus, necessarily, on the mental processes of the decision maker. There will be many cases where it should be clear from the start, or soon becomes evident, that any alleged failure of this mind, however reprehensible, can have no bearing on the reason why the respondents did the act complained of."

 

4.16 In relation to issues of time pursuant to Regulation 48 of the Age Regulations, it is well recognised this is a jurisdictional issue. As seen previously, any such issue of time could only have been dealt with as part of this substantive hearing (see SCA Packaging Ltd v Boyle [2009] IRLR 746). In the present proceedings, in relation to whether the claimant's claim of indirect age discrimination was brought in time, central to the submissions of the parties were issues about when was the act of discrimination for which time began to run and/or whether the alleged discrimination involved 'continuing' discrimination. It will be necessary to return to these issues in more detail later in this decision.

 

However, it should be noted, in this context, that in the case of British Gas Services Ltd v McCaull [2001] IRLR 60 time does not begin to run in respect of a discriminatory dismissal until the notice of dismissal expires and the employment ceases. Further, in dismissal cases, it is when the individual finds himself out of a job that he suffers detriment as a result of the discrimination.

 

In relation to issues of continuing discrimination, it has been held in the well-known case of Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96, that "in determining whether there was a 'act extending over a period', as distinct from a succession of unconnected or isolated specific acts for which time would being to run from the date when each specific act was committed, the focus should be on the substance of the complaints that the employer was responsible for an ongoing situation or a continuing state of affairs. The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period. They should not be treated as a complete and constricting statement of the indicia of 'an act extending over a period'."

 

Further, in Richman v Knowsley MBC [2013] Eq LR 1164, it was held, in determining whether there was evidence of conduct extending over a period, it is not sufficient to consider only whether there was evidence of a discriminatory policy or practice in accordance with which decisions were taken from time to time. A tribunal must consider whether there was something more, such as a continuing state of affairs. The burden is on the claimant to prove, either by direct evidence or by inference for primary facts, that alleged incidents of discrimination were linked to one another and were evidence of a discriminatory state of affairs covered by the concept of an 'act extending over a period' (see also Hendricks).

 

Application of discriminatory policy or regime, pursuant to which decisions may be taken from time to time is an act extending over a period. There can be a policy even though it is not of a formal nature or expressed in writing, and even though it is confined to a particular post or role. (See further Cast v Croyden College [1998] IRLR 318.)

 

A distinction can sometimes be drawn between acts of continuing discrimination and one-off acts of discrimination with continuing consequences (see further, for example, Calder v Jones Finlay Corporation Ltd [1989] IRLR 55 and Barclays Bank Ltd v Kapur [1991] 2 AC 355 in contrast to Amies v Inner London EA [1977] ICR 308.)

 

Much can depend on the particular facts as found by the tribunal in light of the evidence. In Owusu v London Fire and Civil Defence Authority [1995] IRLR 574, Mummery J, as he then was, stated:-

 

" ... it should be a matter of evidence for the tribunal, as to whether such a practice as alleged ... in fact exists. It may be that when explanations are given by the respondents it will be shown there is no link between one instance and another, no linking practice, but a matter of one-off decisions with different explanations which cannot constitute a practice ... ."

 

4.17 Even if the claim was out of time, the tribunal has a discretion to extend time on just and equitable grounds. It is well-established a tribunal has a very wide discretion and is entitled to consider anything that is relevant. As seen in Robertson v Bexley Community Centre, time-limits are exercised strictly in employment cases and, in particular, there is no presumption that they should do so unless they can justify failure to exercise the discretion. On the contrary, a tribunal cannot hear a complaint unless the claimant convinces that it is just and equitable to extend time. The exercise of discretion, at least under the legislative provisions relating to extension of time, is the exception rather than the rule.

 

4.18 In determining whether to extend time on just and equitable grounds, relevant factors as identified in British Coal Corporation v Keeble and Others [1997] IRLR 336, by analogy with the limitation legislation, include:-

 

"(a) length and reason for the delay;

 

(b) the extent to which the cogency of the evidence is likely to be affected by the delay;

 

(c) the extent to which the party sued had co-operated with any requests for information;

 

(d) the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action;

 

(e) the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action."

 

In Malcolm v Dundee City Council [2012] Eq LR 373, the Court of Session confirmed a tribunal is not required to use the discretionary power to extend time sparingly. The discretion is a wide and unfettered one and a tribunal will err if it proceeds on the basis that an extension will be refused in all but exceptional circumstances. In Lindsay v LSE [2014] IRLR 218, the Court of Appeal held an extension of time will not automatically be granted simply because it results in no prejudice to a respondent in terms of a fair trial. The tribunal is engaged in a multi-factorial assessment, where no single factor is determinative.

 

The checklist is not mandatory - provided no significant factor has been left out of account by the tribunal in exercising discretion (see London Borough of Southwark v Afolabi [2003] IRLR 220. If an issue of specific/real prejudice can be shown by a respondent, this can be of particular relevance (see Apelogun-Gabriels v London Borough of Lambeth [2002] IRLR 116).

 

4.19.1 In relation to the issue of remedy, in the event of a finding of unlawful indirect age discrimination, it is necessary for the tribunal to consider whether or not the employer has intentionally discriminated against the claimant in an indirect way, having regard to the provisions of Regulation 43(2) of the Age Regulations, as set out previously. However, it should be noted that Regulation 43(2) of the Age Regulations, which applies in this jurisdiction, is not in the same terms as Section 124(4) and (5) of the Equality Act 2010, which now applies in Great Britain. These sections of the said Act provide that, if the tribunal is satisfied that the PCP was not applied with the intention of discriminating against the claimant then it must not order the respondent to pay compensation to the claimant unless it first considers whether to make a declaration as to the rights of the complainant and the respondent in relation to the matters in issue and whether to make a Section 12(3) Equality Act 2010 recommendation.

 

Regulation 43(2) of the Age Regulations is in the same terms as the predecessor to Section 124(4) and (5) of the Equality Act 2010, namely Section 65(1B) of the Sex Discrimination Act 1975 ('the 1975 Act') in Great Britain and Article 65(1B) of the Sex Discrimination (Northern Ireland) Order 1976 ('the 1976 Order'). The tribunal is satisfied that Regulation 43(2) of the Age Regulations, as interpreted under Section 65(1B) of the 1975 Act/1976 Order, provides an award of compensation for indirect discrimination can be made either where the indirect discrimination was intentional or where it would not be just and equitable to merely make a declaration or a recommendation. It might be argued there is a change of emphasis between the said provisions in the Equality Act 2010 and those contained in the Age Regulations; but it may amount to a distinction without a difference since a tribunal is unlikely to order compensation if it is unjust or inequitable to do so.

 

4.19.2 For the purposes of the said Regulation and, in particular, the issue of 'intention', it was held in the case of J H Walker Ltd v Hussain/Azam [1996] IRLR 11, 'Intention' is concerned with the state of mind of the respondent in relation to the consequences of his acts; he intended those consequences to follow from his acts if he knew when he did them that those consequences would follow and if he wanted those consequences to follow.

 

It was therefore held, a requirement or condition resulting in indirect discrimination is applied 'with the intention of treating the claimant unfavourably on [racial grounds]' if, at the time the relevant act is done, (a) the person wants to bring about the state of affairs which constitutes the prohibited result of unfavourable treatment on [racial grounds]; and (b) knows that the prohibited result will follow from his acts. It was emphasised, in light of the foregoing, these provisions are not concerned with the motivation of a respondent, ie the reason why he did what he did.

 

It was further held in Hussain, that a tribunal may infer that a person wanted to produce certain consequences from the fact that he acted knowing what those consequences would be.

 

Hussain was approved by the Court of Appeal in British Medical Association v Chaudhary [2007] IRLR 800, where Mummery LJ confirmed the burden of proving was on the respondent to prove that the PCP was not applied by it 'with the intention of treating the claimant unfavourably [on racial grounds]. He also stated:-

 

"We doubt that constructive knowledge of the discriminatory consequences would be sufficient to satisfy the first limb of the test in Hussain. We think for the respondent to intend to treat the applicant unfavourably [on racial grounds] he would have to have actual knowledge or conscious realisation that the condition he had imposed would have disparate impact on one [racial group] and that he positively wished it to have that effect ...

 

... It seems to us that the burden on the respondent to show that he did not intend to treat the claimant less favourably on [racial grounds] is a less hurdle for him to cross than simply to show he had not treated the claimant less favourably on [racial grounds]. One may act [on racial grounds] subconsciously but one cannot intend to discriminate subconsciously."

 

(See further Lane v London Metropolitan University [2004] UKEAT/0846, applying Hussain)

 

4.19.3 Subject to the provisions of Regulation 43(2) of the Age Regulations in relation to the level of compensation for an award of compensation for injury to feelings, on a finding of unlawful discrimination, three broad bands of compensation for injury to feelings were identified, in Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102, which were subsequently uprated in line with inflation in Da'Bell v NSPCC [2010] IRLR 19 - with the bottom band increased to £6,000.00. In light of the agreement between the representatives in relation to any award for injury to feelings, as referred to in Paragraph 1.9 of this decision, it was not necessary to consider further the above decisions on the various recent conflicting decisions in the Employment Appeal Tribunal, following the Court of Appeal decision in Simmons v Castle [2013[ IWLR 1239 and its application, if any, to awards of injury to feelings in a discrimination claim (see further De Souza v Vinci Construction UK Ltd [2014] UKEAT/0328, Cadogan Hotels v Ozog [2014] UKEAT0001/14, Sash Windows Workshop v Viking [2015] IRLR 348, Chawla v Hewlett Packard Ltd [2015] UKEAT02010/14 and more recently Beckford v London Borough of Southwark [2015] UKEAT/0210/14 and Bullimore v Pothecary Witham Weld Solicitors [2011] IRLR 8). Pending the outcome of the appeal from the Employment Appeal Tribunal in De Souza, this issue remains uncertain; but, in view of the above agreement between the parties, the tribunal's decision will not be affected by the outcome of that appeal.

 

4.19.4 In relation to the issue of interest in respect of any compensation awarded for unlawful age discrimination, pursuant to the Industrial Tribunals (Interest on Awards in Age Discrimination Cases) Regulations (Northern Ireland) 2006, referred to previously, a tribunal is required to consider whether to award interest on the compensation awarded, regardless of whether or not either party has applied for the same. Interest at the judgment rate of 8% is therefore potentially payable.

 

As was held in Derby Specialist Fabrication Ltd v Burton [2001] ICR 833:-

 

"Parliament clearly intended that unlike interest to other awards, interest on an award for injury to feelings should normally be from the date of the unlawful act since injury to feelings is something which will persist over a period time, subject to the tribunal's discretion to calculate for a different period where serious injustice would be caused if interest were to be awarded, in accordance with the said interest regulations."

 

4.19.5 Issues have recently arisen in relation to whether any award of compensation for injury to feelings is taxable (arising from a number of conflicting decisions from the Upper Tribunal (Tax Chamber) and the Employment Appeal Tribunal (see, in particular, the case law referred to in Moorthy v Revenue & Customs [2014] UKFET 834). Indeed, there has recently been a Government consultation exercise to consider whether legislation is required to clarify the position in relation to taxation of such awards, in light of these decisions.

 

In Orthet v Vince-Cain [2004] IRLR 857, the Employment Appeal Tribunal held that, where such an award of compensation for injury to feelings is made, the tribunal is entitled to make an award without regard to the tax implications of its award and, in particular, no issue of grossing up the award is required:-

 

"There is no authority and no authoritative commentary which holds or asserts that tax is payable on an award for injury to feelings."

 

Indeed, this decision was consistent with the 'tax' case of Walker v Adams [2003] SpC 344, which incidentally arose from a decision of the Industrial Tribunals in Northern Ireland, where the claimant had been awarded, inter alia, compensation for injury to feelings resulting from the discrimination he had suffered. HMRC accepted the said award for injury to feelings was not taxable, with the Special Commissioner accepting the withdrawal was rightly made, under Section 148 of the Income and Corporation Taxes Act 1988, the predecessor to the present Section 401 of the Income Tax (Earnings and Pensions Act) 2003.

 

Following the decisions in Orthet and Walker, which in this tribunal's experience, have governed the position in relation to such awards in the Industrial Tribunals in Northern Ireland and the Employment Tribunals in Northern Ireland, and in the absence of any changes to the legislation to clarify the position, this tribunal could see no reason not to follow the longstanding practice of these tribunals, when making such an award, not to have regard to the tax implication of such an award, including any issue of grossing up.

 

5.1 Having carefully considered the written and oral submissions of the representatives, and after applying the legislative provisions and relevant guidance set out in the legal authorities referred to in the previous paragraphs of this decision, the tribunal, in light of the facts found by it, reached the following conclusions, as set out in the following sub-paragraphs.

 

5.2 In relation to the claimant's claim of indirect discrimination on the grounds of age, the respondent submitted that the claim, having been presented to the tribunal on 18 November 2014, was out of time, having regard to the provisions of Regulation 48 of the Age Regulations - ' the claim not having been presented before the end of three months beginning with the act complained was done'. This is an issue of jurisdiction and it required, in the circumstances, to be determined by the tribunal. The claimant was first informed by Mr Gormley of the criterion of degree level education for the post of store manager and/or part-time buyer on or about 8 July 2014, as part of the consultation process that was ongoing at that time and which continued until she was sent a letter dated 28 July 2014, by e-mail on 30 July 2014, informing her that her employment would terminate with effect from 28 October 2014 and she would be required to work her period of notice.

 

In the judgment of the tribunal, the discriminatory treatment (see later), began when she first was informed of this criterion and it continued throughout this period. It was therefore, in the judgment of the tribunal, an act extending over a period/a continuing state of affairs for which the respondent was responsible (see Hendrick  v  Commissioner of Police for the Metropolis). In any event, since the imposition of this criterion involved a discriminatory dismissal (see later), time did not begin to run until the notice of dismissal expired and the employment ceased (see further British Gas Services v McCaul).

 

5.3 Even if the tribunal is wrong, the tribunal would have extended time, if it had been required to do so on 'just and equitable grounds'. Throughout this period the claimant remained in employment and indeed, after the notice of dismissal, there was also an ongoing grievance process taking place between the parties in September/October 2014, which concluded issues relating to the issue of indirect age discrimination claim. In light of the foregoing, the tribunal is not surprised that, although the claimant obtained advice from the Equality Commission in August 2014 and in July 2014 from the Labour Relations Agency, the Citizens Advice Bureau and/or her solicitor, that she was informed of the 'three month time-limit', that none of the persons/bodies, given the ongoing pending her dismissal, informed her that the three month period had already commenced. Rather, it appears all considered the relevant date, for commencement of the said three month period from the act of discrimination was the date of dismissal (ie 28 October 2014, when notice expired) and so informed the claimant. Further, the tribunal does not consider, in the circumstances, the respondent, even if the claim was out of time, was prejudiced in any way, not least given the claim was presented on 18 November 2014.

 

5.4 In relation to the claimant's claim of indirect discrimination on the grounds of age the following conclusions were reached by the tribunal. As stated previously, the claimant was aged 47 at the relevant date and fell within the age group 45 - 54, for the purposes of these proceedings. Further, there was no dispute that the relevant PCP was the degree qualification for each of the said posts of store manager and part-time buyer. On the basis of the statistics (see further Paragraph 2.42 of this decision), the tribunal was satisfied that these showed that fewer of the claimant's said age group were educated to a degree level in comparison to the younger age groups. Indeed, this properly was not disputed by Mr Gormley. As seen in Homer, the terms of Regulation 3 of the Age Regulations was intended to do away with the need for statistical comparisons, where none exist. In these proceedings, they did exist and, in the judgment of the tribunal, showed that the claimant, in relation to her ability to apply for either of these two posts was put at a particular disadvantage. She had no opportunity to apply for the post or to be considered by the respondent for the said post, where he was insisting upon such a requirement. In view of this conclusion, it was not necessary for the tribunal to consider the divergence of legal opinion arising from the Essop/Naeem line of authorities, which are presently awaiting a decision of the Supreme Court on appeal.

 

5.5 In light of the foregoing and the finding of disparate impact, the tribunal was satisfied that the burden of proof had thereby shifted, pursuant to the Age Regulations and it was therefore necessary for the tribunal to consider whether the imposition of the said criterion was justified - ' a proportionate means of achieving a legitimate aim'. As seen in the authorities referred in Paragraph 4.14 of this decision, the burden of proof provisions apply to claims of indirect discrimination, albeit with some difficulty. However, as seen in Latif, albeit not a case of age discrimination, the reversal of the burden of proof, in essence, involves, as with direct discrimination, for the tribunal to determine the reason why the PCP has that effect and to refer to shifting burdens is 'confusing and inaccurate'.

 

Mr Gormley emphasised that he wanted for each post a candidate with evidence of intellectual ability and that, in his opinion, this could only be demonstrated by a degree level of education. He asserted this without any particular evidence and based it solely on his past experience of recruiting graduates in his various roles, as set out in his detailed curriculum vitae, which was prior to the commencement of the Age Regulations. He was not prepared to consider that the necessary intellectual ability, which he required for the post, could be demonstrated by anything other than a degree, such as successful experience in the role. As seen in Seldon and O'Brien mere assertion is not enough. In his answer to the claimant's grievance, Mr Gormley again referred to the necessity for having candidates with 'higher intellectual ability', which was not dissimilar to what he said in evidence, as referred to above. In addition to referring to such intellectual ability, Mr Gormley suggested, again without any relevant evidence, that graduates had a wider outlook in their thinking, were not dependent on repeating the same experience that they had had and brought a more fresh and energetic level of thinking. All of these the tribunal is prepared to accept, albeit not without some hesitation, might be legitimate aims. However, there was no evidence of the necessary balancing exercise referred to in the various decisions set out in Paragraph 4.8.1 - 4.8.6 of this decision. Budgetary considerations can never justify discriminatory treatment (see Paragraph 4.8.2 of this decision). Mr Gormley took no steps to see how the said criterion might impact on the age of any applicant for the said posts.

 

In the judgment of the tribunal, applying the above authorities, the respondent had not established that the criterion imposed by it for both roles, but, in particular, the role of part-time buyer, which the claimant wished to consider, had been justified objectively. The legitimate aim of wanting such intellectual ability or the type of thinking or experience, as outlined above, by the imposition of a degree level qualification required to be objectively justified. For this exercise, whether Mr Gormley considered, at the time it was adapted, what he was doing was justified, in accordance with relevant principles, was not determinative of the issue. However, post facto justification, as Lady Hale in O'Brien, acknowledged, was not precluded but she emphasised that a tribunal was likely to treat with greater respect a justification for a policy which was carefully thought through by reference to relevant principles at the time it was adopted. The tribunal was not satisfied that Mr Gormley did give the necessary thought at the relevant time but solely based on his previous experience, decided a degree qualification was necessary and had no regard to any potential discriminatory effect, pursuant to the Age Regulations, on the claimant or indeed any applicant for the post. In this context, Mr Gormley accepted, in evidence, that a person with the necessary intellectual ability, but without a degree would not be able to apply and was therefore discriminated against. In the circumstances, the tribunal is not satisfied that the respondent established the necessary objective balance to be struck between the discriminatory effect of the measure and the needs of the business. In the tribunal's opinion, the legitimate aims, if the necessary balancing exercise had been carried out, could have been established by merely requiring, as a criterion, evidence of intellectual ability and/or fresh thinking and/or by some equivalent to third level degree and/or by relevant experience, all of which could then have been tested at the interview process. In the case of the part-time buyer post, the requirement was merely for a degree and no specific degree was sought. In the judgment of the tribunal, this emphasised the lack of objective justification and that the legitimate aim for that role could have been achieved, without the necessity for a degree by other means, such as experience, for experience.

 

5.6 In view of the tribunal's conclusions, it was not therefore necessary for the tribunal to consider further whether to draw any adverse inference from the failure of the respondent to reply to the statutory questionnaire. However, in the view of the tribunal, the questionnaire should have been answered by the respondent. It was not oppressive in the circumstances and the respondent had no reasonable excuse for its failure. Further, if there had been a reply, some of the issues in this matter may not have been required to be determined by the tribunal.

 

5.7 The tribunal, in the absence of justification, concluded the respondent had indirectly discriminated against the claimant, contrary to the Age Regulations. As set out later in this decision, in imposing this criterion, contrary to the Age Regulations on the claimant, with which she could not comply the said dismissal was a discriminatory dismissal and therefore unfair.

 

5.8 In considering the claimant's claim of unfair dismissal, the tribunal first had to consider the reason for the dismissal, relied upon by the respondent and whether it fell within Article 130 of the 1996 Order. Throughout the proceedings, prior to the commencement of the hearing, the respondent contended, at all times, that the reason for the dismissal was on the grounds of redundancy. However, as set out previously, at the commencement of the hearing, the respondent made an application, which was granted by the tribunal, to amend the response of the respondent to allow, in the alternative, on the ground that the said dismissal was for 'some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held' ('SOSR').

 

5.9 Having considered the legal authorities in relation to the redundancy, referred to in Paragraph 3. of this decision, the tribunal can accept that, due to the serious financial situation relating to the store, following his review, Mr Gormley believed that there required to be a restructure/re-organisation of how the store was run. However, the tribunal was not satisfied, after consideration of the job descriptions and the duties set out therein of the two roles of store manager and part-time buyer that these gave rise to a redundancy situation, as set out in Article 174(1)(b) of the 1996 Order. In particular, in the judgment of the tribunal, the requirement for the employees to do the task set out in the job descriptions had not ceased or diminished. This error on the part of Mr Gormley, although the claimant repeatedly, in correspondence, pointed this out to him, without any relevant response from him, may have resulted in some issues relating to the use of terminology during the consultation process. However, it did not affect, in the opinion of the tribunal, the outcome of this matter. The tribunal is satisfied that what Mr Gormley should properly have referred to, throughout this process, was that the reason for the dismissal was 'some other substantial reason, rather than redundancy'. Indeed, the tribunal is satisfied that, whether the reason for dismissal relied upon by the respondent was redundancy or 'some other substantial reason', issues of fairness and, in particular, those relating to consultation and/or alternative employment remained the same.

 

5.10 The tribunal was satisfied, on the evidence, that for similar reasons seen in relation to the issue of redundancy, Mr Gormley, following his review, did properly conclude that due to the serious financial situation affecting the store there required to be a restructuring/re-organisation to put the store in a better financial footing. Indeed, whether the matter is of redundancy or 'some other substantial reason' ('SOSR') the tribunal has limited scope to review that decision (see Paragraph 3.11 of this decision). The tribunal rejects the suggestion that the respondent's reason for dismissing the claimant was a sham and was, in reality, an opportunity to remove the claimant from the respondent's employment on performance and/or capability grounds. The tribunal accepts, not only was the store in serious financial difficulties, but also that Mr Gormley genuinely was carrying out a review of the store during the period January to June 2014. However, a major difficulty was that, in carrying out this review, it was, in essence, conducted 'in his head'. There was no relevant documentation produced at the tribunal about this review, which one might have expected to see an employer would have collected before taking such a decision, other than the limited mystery shopper report. The tribunal concluded that by conducting the review in such a manner probably was an accurate reflection of Mr Gormley's style of management. In particular, he did not take the claimant into his confidence that he was conducting the review nor did he involve her in any way. If he had, some of the issues in this case might not have arisen. However, the tribunal is satisfied, for the reasons set out in the detailed correspondence, he did properly conclude, at the end of this review, that the restructuring/re-organisation was required. In this context, it has to be noted that, at all times, Mr Gormley insisted that the reason for the financial difficulty in the store was not related to the performance and/or capability of the claimant in her said role at the store. However, having failed to take the claimant into his confidence in relation to the review, it was therefore understandable the claimant was very surprised to be informed on 5/7 June 2014 her position was at risk of redundancy. The tribunal can well understand her suspicion of Mr Gormley's motives about the real reason behind this announcement. In light of the foregoing, the tribunal concluded her suspicions were misplaced and incorrect in the circumstances. It is clear from the authorities that to be an SOSR does not require a pressing business need or indeed the survival of the business or that the survival of the business is threatened.

 

The tribunal is satisfied Mr Gormley, following his review, believed such a restructuring/re-organisation, would have discernible advantages to the business in improving its financial situation and that there were therefore sound good business reasons for the restructuring/re-organisation. A tribunal, in such circumstances, must be slow to interfere with an employer's right to restructure/re-organise.

 

However, the fact that Mr Gormley was adamant at all times that the reason for the financial situation was not to do with the claimant's performance/capability and in either role was still relevant to issues relating to consultation/alternative employment, as referred to elsewhere in this decision.

 

5.11 The tribunal, in Paragraph 3. of this decision, has set out in considerable detail the correspondence between the parties. This correspondence, as the tribunal has found, constituted for a large part, the consultation process between the parties, and clearly illustrated their respective positions and how the said consultation exercise was progressing between the parties. Indeed, the various meetings which took place during this period were really a 'rehash' of what had already been said in correspondence between the parties. The tribunal accepts there was a consultation process between the parties; but the tribunal had serious concerns about the nature of that consultation process and concluded that it was not a proper consultation that a reasonable employer would have conducted in the circumstances.

 

In particular, given Mr Gormley had not shared with the claimant his review and/or taken her into his confidence, the tribunal considers a reasonable employer would have shared with her, from the outset, the full details of the review and, in particular, the details of his proposed restructuring/re-organisation putting the claimant at risk of redundancy, which would have included details about the job description and duties and required qualifications for the roles under the new restructure/ re-organisation. Further, as part of his consideration of what was required, Mr Gormley, as a reasonable employer, should have fully examined his workforce and, in particular, in this matter, what attributes the claimant had and then to have fully discussed these with the claimant to see how her attributes could fit in with the proposed restructure/re-organisation, without the necessity for her to be made redundant. Indeed, if Mr Gormley had looked at the claimant's personnel file, from the outset of this consultation, he would have noted the claimant did not have a degree. It was for Mr Gormley, as employer, to provide to the claimant from the outset of this process the said job descriptions/specifications, etc and it was not for the claimant to have to repeatedly seek to obtain them. As it was these documents were only obtained at the very end of the process with no real opportunity for the claimant to alter the mind of Mr Gormley. Indeed, in the judgment of the tribunal, this was not a real consultation of the sort a reasonable employer should have adopted. The tribunal is satisfied, on the evidence, Mr Gormley had, from the outset of this process, made up his mind what was going to be the new structure and how each post was to be filled and he had 'closed mind' to any alternative suggestions. Given the absence of detailed knowledge of what Mr Gormley was actually proposing, until the job description/specifications etc were provided, the claimant was operating somewhat 'in a vacuum'. Her suggestions/alternatives, as set out in the detailed correspondence, were at cross-purposes with what Mr Gormley had always got in mind. It was not therefore surprising that he totally rejected them, without further discussion. His mind was made up and he was, in essence, going through the motions of a consultation process. Consultation, if it is to mean anything, must involve a genuine dialogue between relevant parties, with all relevant issues relevant to the restructure/re-organisation able to be explored and, if necessary, changed in light of those discussions. In the circumstances, the tribunal considers the failure to conduct a proper and genuine consultation was unfair and not the act of a reasonable employer in the circumstances. Indeed, this failure to consider any alternative to making the role of the claimant redundant, during this consultation process, was again by illustrated by the somewhat loose wording in the correspondence by Mr Gormley referred to in detail in Paragraph 3. of this decision, whether or not a decision had already been taken by him that the claimant's position was redundant. The reality is that he had in fact taken that decision from the beginning of this consultation process but was wrongfully seeking to suggest otherwise in the correspondence.

 

5.12 Coupled with this issue of consultation, the tribunal was also required to consider the issue of whether the respondent was 'seeking to see, whether instead of dismissing the claimant, the respondent could offer her alternative employment'. Again, the tribunal is not satisfied Mr Gormley acted as a reasonable employer should have done in the circumstances. As with the issue of consultation, Mr Gormley had a fixed/closed mind. He was not prepared to consider the claimant for either role as she did not have a degree. As seen previously, this criterion was discriminatory and unlawful and the reasons for same are also relevant in this context as well. Although the claimant had successfully carried out both roles and, as seen before, without criticism and she was not blamed by Mr Gormley in any way for the financial difficulties of the store, Mr Gormley was not prepared to carry out any form of re-assessment of her abilities to ensure the claimant could carry out the roles, in particular, the role of buyer, which she acknowledged was the post she would have liked to have been offered. In this context, she had been carrying out this role for a number of years and it was the less responsible and demanding role, in comparison to the store manager role. He was not prepared to give her a trial period or to consider proposals for her to have time to obtain a degree qualification or an equivalent education qualification. Given the claimant had successfully acted as buyer for some time, the tribunal, in the absence of any other relevant evidence, other than Mr Gormley's assertion of a pressing need, could see no reason why a reasonable employer would not have properly considered any of the above alternatives further. As seen above, only his solution for this restructure/re-organisation was acceptable to him and he was not prepared to consider any other solution and therefore, in the circumstances, to seek, as a reasonable employer should have done, the opportunity for the claimant to be offered alternative employment. Mr Gormley conducted the appeal, which, as referred to previously, was not a matter of dispute between the parties. However, given Mr Gormley's closed mind to any other solution it was not surprising that defects in relation to the earlier failures in relation to the issue of consultation and/or alternative employment, were unable to be remedied on appeal. There was therefore not the opportunity for the initial unfair decision to be remedied on appeal. In the course of the appeal hearing, issues relating to age discrimination were expressly set out by the claimant; but again Mr Gormley would not consider any alternative to his view that these roles had to be filled by a person with degree level education, even though he was fully aware that meant that the claimant, who had successfully carried out the role of store manager/buyer would not be able to apply for either post and, in particular, given her preference, of the part-time buyer role.

 

Even if the tribunal is wrong, in relation to these issues of consultation and/or alternative employment, the dismissal, being a discriminatory dismissal, in the circumstances outlined previously, was therefore unfair.

 

5.13 In the circumstances, the tribunal therefore concluded that the claimant's dismissal was unfair. It was not disputed by the representatives that, if such a finding was made by the tribunal, no issue of contributory fault arose and that there was no relevant ' Polkey' issue in the circumstances.

 

6.1 It was not disputed that, if the tribunal found the claimant was indirectly discriminated against on grounds of age, she suffered injury to her feelings. Indeed, subject to liability, the representatives agreed she was entitled to a sum of £4,000.00 by way of compensation. The tribunal has no doubt the claimant, on the evidence, suffered injury to her feelings arising out of this unlawful discrimination and that a figure of £4,000.00 by way of compensation was appropriate in the circumstances and was particularly upset by same. In light of the foregoing, it was not necessary for the tribunal to consider further whether the indirect discrimination on grounds of age was intentional or unintentional by the respondent. If it was the latter, the tribunal would not have considered it was just and equitable, in the circumstances, to merely make a declaration of unlawful discrimination and that an award of compensation for injury to feelings would have been required to be made in the circumstances. The tribunal therefore decided to make an award of compensation in relation to this unlawful discrimination, contrary to the Age Regulations, in the sum of £4,000.00. The claimant is entitled to interest on the said sum, pursuant to the 2006 Interest Regulations, referred to previously. There was no evidence, nor indeed any suggested, that to award such interest, pursuant to the Regulations, would cause serious injustice to the respondent.

 

6.2 Although the tribunal found the claimant to be an impressive witness in relation to the events between June 2014 and July 2014, when she was given notice of dismissal, it found her most unimpressive, unreliable and unconvincing and unconvincing in relation to events thereafter, which were of particular significance for the consideration of the tribunal to issues of remedy, following her said dismissal. In this context, it must be recalled the claimant was seeking a remedy, in relation to her loss in relation to the job as a part-time buyer, the only post she was interested in. In essence, the respondent submitted that by her actions, the claimant failed to mitigate her loss, when she commenced her 'new' business in the Linen Green Complex, in direct competition with the respondent and should not also be required to compensate the claimant for her start-up expenses, amounting to some £9,874.00 in respect of same.

 

6.3 In view of the necessity to examine these issues in some detail, it is therefore necessary to briefly set out some further relevant findings of fact made by the tribunal in the following sub-paragraphs.

 

6.4 The claimant was notified of her dismissal on 28 July 2014 and that she was required to work out a three month notice period with an effective date of termination on 28 October 2014. On 11 August 2014 the claimant was informed her appeal against dismissal was unsuccessful. On 19 August 2014 the claimant went off sick referring to back/chest pain, which she believed was associated with a gallstone condition and she produced to the respondent sick lines until 28 October 2014, which referred to gallstones. She therefore did not return to work, prior to the termination of her employment from 19 August 2014.

 

In evidence, the claimant contended, during the period between 19 August 2014 and 28 October 2014 she was in considerable pain and discomfort due to the gallstones and indeed she suggested she was bedbound for a considerable period of time. There was no medical evidence to support this and the tribunal has no doubt that, during this period, she, together with her partner, Mr Watly, were actively carrying out preparatory work to commence a new business in a unit in the Linen Green Complex called 'Lavish Preferences'. The claimant, fairly, did not dispute, during the course of her evidence, that she had always wanted to open her own business. However, the tribunal is satisfied that she decided to carry out that wish from whenever it was first indicated by Mr Gormley, in his telephone call on 5 June 2014, that her role was at risk of redundancy. The tribunal does not consider it was coincidence that on 6 June 2014, Mr Watly, the claimant's partner, registered the domain name 'Lavish Preferences' to be used in the new business. Given Mr Watly's close and active involvement (see also later) with the opening of this new business, the tribunal was surprised that the claimant did not call him as a witness, even though he was in attendance at the tribunal for most, if not all, of the hearing. In the circumstances, the tribunal might have expected him to be called to explain not only his involvement but also the various steps taken by him in relation to the opening of the new business at the Linen Green and the dates of such involvement. However, since he was not, the tribunal was not entitled to speculate upon what he might have said if he had been called as a witness. Nevertheless the tribunal was entitled to infer that his evidence would not have helped the claimant (see Lynch v Ministry of Defence [1983] NI 222).

 

6.5 The claimant was vague and inconsistent in her evidence about when she started to consider starting her own business. She, initially, admitted she explored the possibility in early October 2014. Subsequently, she admitted it was in mid-November 2014 before she decided to open her business. However, she also accepted discussions about the lease of the premises in the Linen Green Complex were 'possibly' taking place in July/August 2014. She also accepted, in evidence, that she was speaking to product suppliers in or about August 2014. On 6 November 2014, in an e-mail she stated:-

 

"I'm opening an interior store and I'm interested in buying dresses."

 

Carlton Venture Limited, which is the trading company for 'Lavish Preferences', the name of the claimant's business in the Linen Green Complex, which commenced trading on or about 3 September 2014, and was incorporated by Mr Watly on 3 November 2014. By 11 November 2014 a lease had been signed for the said premises. Contrary to what the claimant stated in her witness statement, it was Mr Watly, not her, who incorporated the said business and in fact it was Mr Watly who negotiated and signed the lease. At that time, Mr Watly was the only shareholder and director of the business. On or about 17 November 2014, the claimant registered a business named 'Lavish Preferences' for Value Added Tax. In the document, she suggested she was director but in fact this did not occur until 24 April 2015. Mr Watly was, prior to that, the sole director.

 

In a 'Looking for Work' document produced by the claimant on 18 November 2014, she states:-

 

"Decided to look into starting own business."

 

There were also entries in December 2014 when she suggested she was looking for work, when, in reality, she was already working full-time for the new business in the Linen Green Complex, 'Lavish Preferences'.

 

By December 2014, the claimant had prepared a very detailed business plan. It referred to carrying out research for the purposes of the business plan. All of this, in the view of the tribunal, had to have been prepared for a considerable period of time prior to December 2014 and did not, as she tried to suggest, in evidence, somehow emerged in a matter of a few weeks before December 2014.

 

The claimant opened the store at the beginning of December 2014 to take advantage of the Christmas trade. To have arranged the stock, as seen in the photographs produced to the tribunal, there had to have been a process which had been a long time in the planning and could not have occurred from the end of her employment or later, as she tried to suggest. Despite her suggestions to the contrary, she clearly had to have been closely involved in all of this work. It was also apparent, in order for her to have been able to open at the beginning of December 2014, she had to have been engaged in numerous administrative tasks relevant to the opening of such a business, such as arranging insurance/phones/internet/signage/bank accounts. Again, all of this would have taken considerable planning and effort for some time. The claimant sought to suggest that the Christmas decorations for the shop were, for the most part, decorations she had obtained from her own home decorations. Again, the photographs produced to the tribunal suggested otherwise.

 

6.6 All of the above confirmed, in the tribunal's judgment, that the claimant had decided from shortly after she was notified of the risk of redundancy to carry forward and to proceed with her 'dream' of starting her own business. She did so, in conjunction with Mr Watly, even when she was still in the employment of the respondent and not, as she sought to suggest, in her witness statement, when she believed suitable employment opportunities were limited and that she had, in essence, no alternative but to open her own business in the circumstances.

 

6.7 The claimant, in her witness statement, referred to viewing numerous premises across the province but, in cross-examination, she accepted this was incorrect and she had in fact only visited two premises. This was a further example of her unreliability, when giving her evidence.

 

6.8 The claimant sought to suggest, in evidence, she had been actively looking for alternative positions in line with her experience as a store manager/buyer. Indeed, surprisingly, no relevant discovery to support such activity was initially produced by her. What was eventually produced was very limited and included some screenshots, which the tribunal found to be of limited assistance, if any, to confirm the claimant was actively and genuinely seeking relevant appropriate positions, for which she, given her experience, would have been suitable. In her witness statement she made reference to only looking for two positions, in Ballybofey and Belfast. Yet, in cross-examination, she then sought to suggest to the tribunal she had applied for some 20 positions. This had never been referred to before nor was she ever able to produce any proper documentary evidence to support same. Given that the claimant was seeking to create the impression for the tribunal that she had been actively seeking alternative employment, and only when this was found to be unlikely, if at all to produce results, she was unable to produce evidence of applications, correspondence, details of advertisement (except for Ballybofey) in evidence. She was at all times advised by solicitors and it might have been expected such documentation, if it existed, to have been kept and discovered to the tribunal. She suggested, in her witness statement, preparation of a curriculum vitae and registration with a number of prominent recruitment agencies; but again, no relevant documentation was produced by the claimant to support same. The tribunal, in the circumstances, found the evidence of the claimant of such efforts by her less than credible.

 

6.9 In the judgment of the tribunal, given the claimant's experience as a store manager and buyer, it would have been reasonable for the claimant to have made reasonable efforts to try to seek alternative employment. The tribunal acknowledges that such efforts might have been difficult and taken some time and might ultimately not have been successful. It also accepts that when looking for such alternative employment, the claimant would have had to have regard to her own personal circumstances as a one-parent family with a young child and to have to commute long distances might be problematic, depending on the precise job offered.

 

However, in light of the matters set out in the previous sub-paragraphs, the tribunal does not accept the claimant made those efforts but rather from the outset 'without trying to test the market' decided to start her own business, with the active assistance of her partner, Mr Watly, and then expected the respondent to compensate her for the cost of so doing, including any shortfall in earnings, as the new business started.

 

Effectively, by her said decision, the claimant took herself out of the labour market and, in the tribunal's judgment, this decision was not reasonable in the circumstances.

 

If the claimant had been properly and genuinely looking for alternative work, which the tribunal does not accept she was doing at the relevant time, after a reasonable period of lack of success, the option of starting her own business might have been relevant and required to be considered; but that process was never entered into by the claimant.

 

Further, the tribunal is entitled to expect the claimant to give her evidence properly and accurately. This she did not do. Rather, she sought to give the impression to the tribunal she had been genuinely looking for alternative work when, in reality, she had not. In fact, she had been planning and putting the new business plan into effect from early June/July 2014, with the assistance of Mr Watly; and she sought to dissemble from what she had been doing in the subsequent period, in order to try to persuade the tribunal that the respondent should be responsible for the cost of starting up the new business and her losses arising from starting this business. In awarding compensation, the tribunal has to be satisfied that the amount of any such award is just and equitable in the circumstances, having regard to her loss in consequence of her dismissal insofar as the loss is attributable to any action of the respondent. By her actions, the tribunal was not satisfied that it was just and equitable to award her any such compensation.

 

6.10 The claimant, in the judgment of the tribunal, did not act reasonably, in the circumstances, and therefore failed to mitigate her loss and was not therefore entitled to the further loss claimed, other than her loss of earnings, as a part-time buyer, for the short period between the termination of her employment to the start of the commencement of the new business, a period of approximately of one month, for which the tribunal concluded it was just and equitable to be allowed. Thereafter, she had excluded herself from the labour market.

 

6.11 Even if the tribunal is wrong and the claimant is entitled to be compensated for her ongoing loss following the start of the new business, the claimant did not produce any relevant accounts which any loss could be accurately assessed. It is not for the tribunal to speculate in relation to such matters. Further, the tribunal also had concerns whether Carlton Ventures Limited, t/a 'Lavish Preferences', is in fact the claimant's business or that of Mr Watly or both; especially where the claimant did not become a director until in or about April 2015. In the circumstances, it was not necessary for the tribunal to consider these matters further.

 

7.1 In light of the foregoing, the tribunal assessed the compensation to be paid by the respondent to the claimant as follows on foot of her claim for unfair dismissal:-

 

A. Basic Award

 

13 x £470.00 = £6,110.00

Less redundancy payment = £6,032.00

£ 78.00

 

B. Compensatory Award

 

(a) Loss of earnings (retail buyer,

part-time post for one month

( 28 October 2014 - 3 December 2014

at £239.90 per week £ 959.60

 

(b) Pension loss at £21.86 per week £ 87.44

 

(c) Loss of statutory rights £ 500.00

 

Total compensatory award £1,547.04

 

Total Monetary Award (£1,547.04 + £78.00) £1,625.04

 

7.2 In relation to the claimant's claim of indirect discrimination, the tribunal ordered the respondent to pay to the claimant, in relation to injury to feelings:-

 

(i) £4,000.00 (as agreed)

 

(ii) £ 693.48 (interest at 8% pa from 8 July 2014 to 5 September 2016)

Total £4,693.48

 

7.3 This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

 

7.4 The Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations (Northern Ireland) 1996, as amended, apply to this decision. Your attention is drawn to the attached Recoupment Notice, which forms part of this decision.

 

 

 

 

 

 

 

Employment Judge

 

 

Date and place of hearing: 15 - 16 June 2015;

18 - 19 June 2015;

6 July 2015;

10 August 2015; and

11 September 2015, Belfast

 

 

Date decision recorded in register and issued to parties: