Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 21/18

 

 

 

CLAIMANT: Kelly Rock

 

 

RESPONDENTS: 1. Medical Communications 2015 Limited

2. Adrian Maginnis

 

 

DECISION

The unanimous decision of the tribunal is that the claimant's claims of unfair dismissal, automatically unfair dismissal and discrimination on the ground of her maternity are dismissed.

 

 

 

Constitution of Tribunal:

Employment Judge: Employment Judge Greene

Members: Mrs F Cummins

Mr I O'Hea

 

Appearances:

The claimant was represented by Mr Christopher Mallon.

The respondents were represented by Ms Sarah Treacy of Peninsula Business Services Ltd.

 

1. The tribunal heard evidence from the claimant and, on behalf of the respondents, from Adrian Maginnis, Sarah Nelson, Declan Nugent, Christopher Flanagan and Bridget McCabe. The tribunal also received five bundles of documents comprising 943 pages approximately, written submissions and a number of legal authorities.

 

 

THE CLAIM AND COUNTERCLAIM

 

2. The claimant claimed ordinary unfair dismissal, automatically unfair dismissal and discrimination on the ground of her maternity. The respondents denied the claimant's claims in their entirety.

 

THE ISSUES

 

3. As the parties were not represented at the date of preparation of issues, the tribunal judge did not order the lodging of agreed issues.

 

4. However, having heard the evidence and the submissions, the tribunal identifies the issues as follows:-

 

(1) What is the reason for the claimant's dismissal?

 

(2) What is the effective date of termination?

 

(3) Does the claimant have the requisite period of employment to bring a claim for unfair dismissal?

 

(4) If the claimant does not have the normal 12 months' continuous employment required to bring a claim for unfair dismissal, can she avail of any of the exceptions provided by Article 131 of the Employment Rights (Northern Ireland) Order 1996?

 

(5) If so, did the first respondent unfairly dismiss the claimant?

 

(6) If so, was that dismissal automatically unfair?

 

(7) Should the tribunal conclude that the claimant was the victim of an automatically unfair dismissal by reason of the first respondent's failure to follow the Statutory Dismissal Procedures, what is the appropriate percentage of any uplift?

 

(8) Should any award of compensation to the claimant, by reason of a finding of unfair dismissal, be reduced pursuant to the decision in Polkey v A E Dayton Services Ltd [1987] ICR 142, [1987] IRLR 503?

 

(9) Was there a redundancy situation in the first respondent's business?

 

(10) Did the first respondent dismiss the claimant on the ground of her maternity contrary to Article 5A Sex Discrimination (Northern Ireland) Order 1976, as amended?

 

(11) Did the respondents discriminate against the claimant on the grounds of sex contrary to the Sex Discrimination (Northern Ireland) Order 1976, as amended?

 

(12) Did the first respondent breach Regulation 10 Maternity and Parental Leave Regulations (Northern Ireland) 1999?

 

(13) Was the claimant's dismissal an unfair dismissal pursuant to Regulation 20 Maternity and Parental Leave Regulations (Northern Ireland) 1999?

 

5. In his final submissions to the tribunal Mr Mallon indicated to the tribunal that the claimant was not bringing any claim for direct or indirect sex discrimination or alleging that there was harassment or victimisation pursuant to the Sex Discrimination Order (Northern Ireland) 1976, as amended? Accordingly, the tribunal is not required to address these claims. (Issue 4 (11) above).

 

FINDINGS OF FACT

 

6. (1) The claimant was born on 12 April 1982.

 

(2) The claimant began working for the first respondent on 24 October 2016 as a marketing manager.

 

(3) The first respondent is a publishing company, based in Belfast, employing seven people. The company publishes three medical magazines and hosts three award ceremonies in Northern Ireland, Scotland and Wales. The second respondent is the managing director and owner of the first respondent company.

 

(4) Although the claimant was employed as a marketing manager, the advertisement for the job, for which the claimant successfully applied, described the post as a Digital Marketing Manager. However, having heard all the evidence, the tribunal does not find that the difference in title is significant.

 

(5) The first respondent planned to launch a new digital product called Medcom Response which it believed would transform its fortunes as a business, if successful, and generate a greater income for the first respondent.

 

(6) Although the job description did not mention Medcom Response by name, the tribunal is satisfied that the job advertisement contains information from which one can glean that the first respondent intended to launch a new digital product for the benefit of its customers and clients in the near future. The job description stated:

 

"Digital Marketing Professional to manage the development of our on-line products and services while implementing the second phase of our digital strategy in collaboration with both our internal team and external agency partner."

Later in the job description under the title Digital Marketing Manager the job description stated:

 

"Are you an ambitious digital marketing professional who is confident to introduce new technology into an established business? .....

 

..... To complement an already significant on-line business the company will shortly be launching a 'new to market' service for our existing clients.

 

You will be an expert who has the experience and confidence to implement the necessary changes and put a digital strategy in place. ....."

 

(7) The successful candidate for the digital marketing manager post was required to have:-

 

(a)   a degree in marketing or related field, and

(b)           at least three years' of commercial experience in digital marketing, and

(c)           knowledge and experience of digital marketing and best practice, web analytics and data management, and

(d)           experience in SEO/SEM, and

(e)   experience of behavioural software, and

(f)            to be up to date with the latest trends and best practice in on-line marketing and measurements.

 

(8) The tribunal does not accept that in the statement of the job under the title of "The Role" that "knowledge of behavioural markets an advantage" means that the principle purpose of the post was not in relation to the new product. On the basis of the evidence before the tribunal it accepts that the principle reason for employment of the claimant was for the new product, Medcom Response, that the first respondent was planning to launch.

 

(9) Pending the launch of the new product the tribunal accepts that in addition to preparatory work for the new product, the claimant was involved on a daily basis with the existing work of the first respondent.

 

(10) There was a dispute about the number of hours the claimant spent, on a daily basis, on work not connected with the proposed new product. However, the tribunal does not consider it significant to determine the amount of time spent on the work connected with the Medcom Response product given its finding that the principle purpose for the claimant's recruitment was for the launch of the new product.

 

(11) The claimant notified the respondents of her pregnancy on 5 January 2017.

 

(12) On 16 February 2017 the claimant planned for an anticipated maternity break at the end of May or the beginning of June 2017 and agreed a return to work date in April 2018. She also indicated her willingness to make herself available for 10 keeping-in-touch days.

 

(13) The claimant did not qualify for Statutory Maternity Pay and received Maternity Allowance from the state.

 

(14) The claimant went on maternity leave on 2 June 2017 and give birth on 21 June 2017.

 

 

 

(15) On 3 July 2017 the claimant telephoned the second respondent to check in. The respondents did not seek to avail of any of the proposed 10 keeping-in-touch days.

 

(16) During 2017 the respondents were attempting to secure customers for the new product, Medcom Response. Several potential customers displayed an interest but interest reduced in 2017 to one potential customer which indicated, on 20 September 2017, that it was not proceeding with the new product. The first respondent had invested time and money in promoting the new product in 2017.

 

(17) The first respondent had also lost, by 31 July 2017, Hannah Devon, the top sales person within the first respondent business. Hannah Devon was held in high regard by the respondents.

 

(18) By 30 June 2017 the first respondent was running at a loss. There was uncontested evidence from the respondents that the first respondent was in financial difficulties and owed a substantial bill to HMRC, resulting in the agreement of a repayment schedule between HMRC and the first respondent.

 

(19) On 26 September 2017 the second respondent met with first respondent's Brigid McCabe and Chris Flanagan to discuss the future of the first respondent following the withdrawal of the last customer interested in the new product. There were not any minutes kept of this meeting. The respondents state that at this time it was not their practice to keep minutes of meetings. The claimant was not invited to attend the meeting.

 

(20) The respondents assert that had the claimant been working and not on maternity leave, on 26 September 2017, she would not have been invited to this meeting. That was not challenged.

 

(21) At the meeting on 26 September 2017 the decision was made to abandon the Medcom Response product and to re-activate two former products, a wall planner and diaries.

 

(22) The first respondent decided, at the meeting on 26 September 2017, to appoint a new sales person. There was not any specific discussion of redundancy or making the claimant redundant at this meeting.

 

(23) Following the meeting on 26 September 2017, at which the abandonment of the Medcom Response product was decided, the second respondent sought a meeting with the claimant to tell her that her job was redundant.

 

(24) The second respondent agreed to meet the claimant on 29 September 2017 at Café Nero on the Ormeau Road. The claimant was not told of the agenda for the meeting. At the meeting the second respondent informed the claimant that her job was redundant and explained why that had come about. There was not any discussion about alternatives to redundancy or ways of avoiding redundancy. The second respondent alleges that the claimant raised the possibility of part-time work which he dismissed as the claimant's role was not needed at all. The second respondent also alleges that the claimant raised the topic of the job of sales person and offered to recast her CV to reflect her sales skills. The second respondent was surprised at this suggestion.

 

(25) The second respondent also alleges that at the meeting the claimant asked about an appeal and he said she could appeal and the appeal would be heard by his brother who was not a member of the first respondent company.

 

(26) The claimant accepts that she was told of the redundancy at the meeting but denies the other matters were raised on 29 September 2017. She asserts that the other matters were raised at a meeting on 6 October 2017.

 

(27) The tribunal prefers the claimant's evidence because none of these matters were mentioned in a letter of 29 September 2017, written by the second respondent, which was a letter confirmation of what had transpired at the meeting of 29 September 2017 and which confirmed the claimant's redundancy with one week's notice, effective on 6 October 2017, but did not make any reference to the other matters the second respondent alleges were raised and discussed. In addition the claimant's response letter of 4 October 2017 in which she said that she should have been offered the opportunity to appeal is consistent with her account about not being offered a right of appeal at the meeting on 29 September 2017.

 

(28) The choice of a coffee shop for the meeting of 29 September 2017 was made by the second respondent, albeit that the claimant chose the particular coffee shop. The tribunal considers it inappropriate to hold a meeting at which an employee is to be made redundant in a public place without the employee having been made aware of the purpose of the meeting and having agreed to hold the meeting in such a public place.

 

(29) The claimant's contract of employment does not have a redundancy policy attached nor has the first respondent created a redundancy policy. Under the claimant's contract of employment at Clause 13 notice requirements were set out. While an employee is on six months' probation, two weeks' notice of termination is required. Immediate dismissal takes place on the day the dismissal is made if it is related to misconduct or the employee is convicted of a criminal offence or becomes bankrupt or is of unsound mind. Short notice is defined within the contract as not less than one month, if the dismissal is by reason of incapacity due to ill-health or accident which prevent the employee from performing the duties or if a transfer of undertaking takes place.

 

(30) The contract of employment is silent on notice requirements where there is a redundancy situation. Therefore the notice of one week required by virtue of Article 118 of the Employment Rights (Northern Ireland) Order 1996 applies and the claimant is only entitled to one week's notice. Therefore her effective date of termination was 6 October 2017.

 

(31) It is somewhat surprising that an employee still in their six month probation period, when termination takes place, gets at least two weeks' notice or someone who is incapacitated or suffers from ill-health with 20 days off in the preceding 12 months gets one month but someone made redundant only gets one week's notice, if they have less than two years' continuous service.

 

(32) The second respondent says that one week's notice was given to the claimant because he was unaware of the legal requirements and he was trying to do the decent thing by not waiting until the claimant returned from maternity leave so that she would have the opportunity, whilst on maternity leave, of applying for other jobs.

 

(33) The tribunal is not persuaded that the second respondent was ignorant of the legal requirements for this dismissal. In so concluding the tribunal had regard to the following matters:-

 

(a)           In his letter of dismissal he was aware that the claimant's length of service precluded the first respondent from any requirement to make a redundancy payment to her; and

 

(b)           The one week's notice, that he gave, is a correct application of the legal requirements, in the absence of a provision within the contract of employment giving greater notice.

 

(34) In those circumstances it is hard for the tribunal to accept that the second respondent was unaware that the 12 months' continuous employment was a pre-requisite for certain employment rights to become engaged.

 

(35) The procedure followed by the first respondent in dismissing the claimant, is not compliant with the Statutory Dismissal Procedures.

 

(36) On 6 October 2017 the claimant attended at the office of the first respondent to collect personal effects. She had prepared a letter for the respondents, dated 4 October 2017, which she gave to the second respondent.

 

(37) On 6 October 2017 the claimant met the second respondent while in the premises of the first respondent and had a discussion with him. The discussion covered the issues of part-time work, an appeal and the claimant doing a sales job. In relation to the part-time work the second respondent said that that was not feasible. He offered an appeal against his decision to be heard by his brother who is not an employee or director of the first respondent. He further considered that the claimant lacked sales experience and qualifications according to what he had read in her CV and also from his observance of her when she had not demonstrated great sales' skills when organising a free conference, on behalf of the first respondent, in Scotland.

 

(38) The tribunal is persuaded that the reason for the claimant's dismissal was redundancy. In so concluding the tribunal had regard to the following matters:-

 

(a)           The claimant was recruited as a marketing manager for the launch of the Medcom Response product.

 

(b)           By 26 September 2017 the last potential customer had withdrawn its interest in the Medcom Response product.

 

(c)           The first respondent made a business decision on 26 September 2017 to abandon the new product and to try and boost sales and income by re-activating two products, formerly promoted by the first respondent.

 

(d)           It was unchallenged that in 2017 the first respondent was in considerable financial difficulties and had to make an arrangement for payment of monies owed to HMRC.

 

(e)           The respondents assert the reason for the claimant's dismissal was redundancy.

 

(39) The decision to make the claimant redundant was made by the second respondent following the decision of the first respondent on 26 September 2017 to abandon the Medcom Response product. The claimant was made aware of the redundancy on 29 September 2017.

 

(40) The tribunal accepts that the claimant was made aware of her redundancy fairly soon after the decision was made. However, there was not any consultation with the claimant into ways of avoiding redundancy or exploring if there were other options. Given the reason for the redundancy and the purpose of her appointment the tribunal accepts that the claimant alone comprised the pool from which the redundancy was made.

 

(41) The first respondent was looking for a new sales person from May 2017. Hannah Devon, the top sales person, resigned on 14 May 2017. The job was advertised on 24 May 2017. Julie Ozturk accepted the job as a sales person on 24 June 2017, but withdrew her acceptance of the post on
28 June 2017, before taking up employment.

 

(42) The first respondent was using the services of a recruitment agency
Brightwater, to find a suitable sales person. At the meeting of 26 September 2017 it was agreed a sales person was needed to sell the re-activated products. Brightwater proposed Mervyn Ellis as a sales person and he was appointed on 27 September 2017, on a commission basis only. He was to commence work on 23 October 2017.

 

(43) By 29 September 2017, when the claimant was made redundant, there was not any other post available that was suitable for the claimant. Prior to 27 September 2017 there had been a vacancy for a sales person.

 

(44) The first respondent was entitled to conclude that sales was not part of the skills-set of the claimant based on her detailed CV of qualifications and experience and what it had witnessed first hand during her employment.

 

(45) The tribunal is satisfied that the reason for the claimant's dismissal was redundancy. The tribunal is further satisfied that her dismissal did not have anything to do with her maternity.

 

THE LAW

 

7. (1) To establish that a dismissal is not unfair, an employer must establish the reason for the dismissal and that it is one of the statutory reasons that could render a dismissal not unfair. If an employer establishes both of these requirements, then whether the dismissal was fair or not depends on whether in all the circumstances the employer acted fairly and reasonably in treating the reason as a sufficient reason for dismissing the employee (Article 130 The Employment Rights (Northern Ireland) Order 1996).

 

(2) In order to bring a claim for unfair dismissal normally an employee has to have 12 months' continuous employment. However, that can be reduced to one month if the employee can satisfy one of the exceptions to the 12 months' continuous employment requirement. (Article 140 The Employment Rights (Northern Ireland) Order 1996).

 

(3) The requirement of 12 months' continuous employment in order to bring a claim for unfair dismissal is reduced to one month and, in so far as is relevant to this claim, if the reason or principal reason for the dismissal is of a prescribed kind and prescribed kind includes, pregnancy, child-birth or maternity (Article 140(3) The Employment Rights (Northern Ireland) Order 1996).

 

(4) For the purposes of The Employment Rights (Northern Ireland) Order 1996 an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly of mainly attributable to the fact that his employer has ceased or intends to cease to carry on the business for the purposes for which the employee was employed by him or to carry on that business in the place where the employee was so employed, or the fact that the requirements of that business for employees to carry out work of a particular kind, or 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 (Article 174(1) The Employment Rights (Northern Ireland) Order 1996).

 

(5) Where an employee is dismissed and the Statutory Dismissal Procedure is applicable but has not been completed and that non-completion is wholly or mainly attributable to the failure of the employer to comply with its requirements, the dismissal is automatically unfair (Article 130A The Employment Rights (Northern Ireland) Order 1996).

 

(6) Where the employer has failed to comply with the Statutory Dismissal Procedures and it is mainly or wholly responsible for the failure, a tribunal shall, increase any award to the employee by 10% and may, if it considers it just and equitable in all the circumstances, increase the award by up to 50%, unless there are exceptional circumstances which would make an increase unjust or inequitable. (Article 17(3) and (4) The Employment Rights (Northern Ireland) Order 2003).

 

(7) A person discriminates against a woman if either, at a time in the protected period and on the ground of the woman's maternity the person treats her less favourably (Article 5A(1) Sex Discrimination (Northern Ireland) Order 1976 as amended).

 

 

 

(8) An employee who is dismissed shall be regarded for the purposes of The Employment Rights (Northern Ireland) Order 1996 as unfairly dismissed if the reason or principal reason for the dismissal is by reason of pregnancy, childbirth or maternity. (Article 131 The Employment Rights (Northern Ireland) Order 1996).

 

(9) If during an employee's ordinary or additional maternity period it is not practicable by reason of redundancy for her employer to continue to employ her under her existing contract of employment and where there is a suitable available vacancy, the employee is entitled to be offered (before the end of her employment under her existing contract) alternative employment with her employer under a new contract of employment which complies with Regulation10(3) and takes effect immediately on the ending of her employment under the previous contract. Regulation 10(3), requires that the new contract must be such that the work to be done under it is of a kind which is both suitable, in relation to the employee, and appropriate for her to do in the circumstances and the provisions as to the capacity and place in which she is to be employed and as to the other terms and conditions of her employment are not substantially less favourable to her than if she continued to be employed under the previous contract. (Regulation 10 Maternity and Parental Leave Regulations (Northern Ireland) 1999).

 

(10) An employee who is dismissed is entitled under Article 131 of The Employment Rights (Northern Ireland) Order 1996) to be regarded for the purposes of Part XI of the 1996 Order as unfairly dismissed if the reason or principal reason for the dismissal is connected to the pregnancy of the employee or the fact that the employee has given birth to a child or the reason or principal reason for the dismissal is that the employee is redundant and Regulation 10 of these Rules has not been complied with. (Regulation 20 Maternity and Parental Leave Regulations (Northern Ireland) 1999).

 

(11) A person discriminates against a woman if either, at the time in the protected period and on the ground of the woman's maternity the person treats her less favourably or on the ground that the woman is exercising or seeking to exercise or, has exercised or, sought to exercise a statutory right to maternity leave, the person treats her less favourably. (Article 5A(1) Sex Discrimination (Northern Ireland) Order 1976).

 

(12) In the decision of Denise Rigley v Dieci Limited, t/a Alan Milne Tractors, Case Reference 2169/16 the tribunal found that the claimant had been unfairly dismissed and was discriminated on the grounds of her sex. At the time of her dismissal and when the discrimination had occurred the claimant was pregnant and on maternity leave.

 

In that claim the claimant was a part-time person working in the accounts department of the respondent company. The respondent company in 2015 recruited two persons for their accounts department, a full-time post and a part-time post. The claimant applied for the full-time post and was eminently qualified for the same as she was in relation to the part-time post. Initially she was uninterested in the part-time post but was persuaded by her employer to accept it, which she did.

 

Whilst on maternity leave there was a serious downturn in the business necessitating the reduction of the accountancy staff. The claimant's duties were absorbed by other members of staff and she was made redundant. She alone constituted the pool of selection despite the fact that there was another person discharging the accountancy requirements and doing other tasks of which the claimant had been deemed to be eminently capable.

 

The tribunal found that there was no coherent reason why this other person was not considered as part of the selection pool. In its decision the tribunal found that the respondent had failed to satisfy the tribunal, on the balance of probabilities, that the treatment of the claimant was not on the grounds of her sex. The tribunal also found that Mr Milne's evidence clearly indicated that the claimant was treated less favourably in the redundancy selection process both by reason of being on maternity leave at the time, and by reason of M Milne's concerns that she might not return from her maternity leave.

 

Application of the law and the findings of fact to the issues

 

8. (1) The claimant was employed by the first respondent form 24 October 2016 until 6 October 2017 which is her effective date of termination.

 

(2) The claimant was recruited as marketing manager to enable the first respondent to launch its proposed new product, Medcom Response.

 

(3) In 2017 the first respondent was experiencing financial difficulties and had to enter into a repayment schedule with HMRC in order to pay monies owed.

 

(4) Throughout 2017 the respondents attempted to promote interest in and orders for their new product, Medcom Response, ultimately without success.

 

(5) By 26 September 2017 the last remaining potential customer interested in the Medcom Response product had withdrawn its interest.

 

(6) At a meeting on 26 September 2017 the first respondent decided to abandon the Medcom Response project. The consequence of that was that the post for which the claimant was recruited was no longer needed and was redundant.

 

(7) The claimant went on maternity leave on 2 June 2017 and was scheduled to return to work in April 2018.

 

(8) The claimant was informed of her redundancy on 29 September 2017 effective on 6 October 2017.

 

(9) In deciding to make the claimant redundant the first respondent limited the pool to the claimant alone. In view of the decision to abandon the Medcom Response project for which the claimant was specifically recruited and there being no one else recruited for that purpose or working on that product then it was reasonable for the first respondent to restrict the selection pool to the claimant alone.

 

 

(10) The first respondent did not follow the statutory dismissal procedures in making the claimant redundant.

 

(11) At the time the claimant was made redundant, on 29 September 2017 there was not any other suitable alternative employment. There had been a sales post which was filled by Mervyn Ellis on 27 September 2017 on a commission basis only.

 

(12) The first respondent concluded that the sales post was not a suitable alternative post for the claimant given that she did not have, according to her CV, experience in sales and secondly the first respondent had seen her efforts at sales during the currency of her employment with the first respondent and did not consider that it was one of her strong points. In those circumstances the first respondent was entitled to conclude that the sales post was not a suitable alternative post to be offered to the claimant.

 

(13) As stated above the tribunal is satisfied that the reason for the claimant's dismissal was redundancy and that it had nothing to do with her maternity or that she was on maternity leave.

 

(14) The claimant lacks 12 months' continuous employment in order to bring a claim for unfair dismissal.

 

(15) The claimant does not satisfy any of the exceptions to the 12 months' continuous employment which might enable her to continue her claim for unfair dismissal. Specifically the tribunal is satisfied that her dismissal did not have anything to do with her pregnancy or maternity or being on maternity leave. In those circumstances she is not entitled to avail of the exception to the 12 months' continuous employment set out at Article 140(2) and (3)(b) of The Employment Rights (Northern Ireland) Order 1996.

 

(16) It follows therefore that her claim for discrimination on the ground of maternity contrary to Article 5A Sex Discrimination Order 1976, as amended also fails.

 

(17) As the first respondent had decided to abandon the Medcom Response product, for which the claimant was specifically employed, then the tribunal is satisfied that it was not practicable because of the decision to make the claimant redundant to continue to employ her under an existing contract of employment.

 

(18) As the tribunal has found that there was not a suitable alternative vacancy available at that time, then the claimant cannot benefit from the provisions of Regulation 10 Maternity and Parental Leave Regulations (Northern Ireland) 1999.

 

(19) Likewise as the tribunal has found that the reason for the claimant's dismissal did not have anything to do with her pregnancy or maternity or being on maternity leave nor any failure by the first respondent to adhere to the provisions of Regulation 10 Maternity and Parental Leave Regulations (Northern Ireland) 1999 then the claimant cannot be said to have been dismissed unfairly pursuant to Regulation 20 Maternity and Parental Leave Regulations (Northern Ireland) 1999.

 

(20) The decision of the Industrial Tribunal in Denise Rigley v Dieci, t/a Alan Milne's Tractors, case reference 2169/16 is distinguishable from the instant claim in a number of important respects. Those respects include the following:-

 

(a)           In that case the respondent was not closing its accountancy department but rather reducing the staff numbers within that department whereas in the instant case the respondent was removing all work in connection with the Medcom Response product.

 

(b)           The pool for selection was invalid in the Rigley case because there were other persons discharging accountancy duties who were not included in the pool whereas in the instant case there were not any other members of staff involved in the Medcom Response product.

 

(c)           In the Rigley case there was suitable alternative employment for the claimant, i.e. discharging the other accountancy duties and responsibilities for which she had been deemed by her employer to be eminently capable, whereas in the instant case the claimant's skills were not in sales and there was not a vacancy.

 

(d)           In the Rigley case, whilst the claimant was made redundant, an important aspect of the reason for the redundancy was because the claimant was on maternity leave and the concern of the respondent was that the claimant might not return from maternity leave whereas in the instant claim the tribunal has found that the reason for the redundancy was by reason of the reduction in interest and the consequent abandonment of the Medcom Response product and it was not tainted in any away, in accordance with the tribunal's findings, with the fact that the claimant was on maternity leave.

 

(21) As the claimant does not have the 12 months' continuous employment to bring a claim for unfair dismissal by reason of redundancy, that application also fails.

 

(22) The failure by the first respondent to adhere to the Statutory Dismissal Procedures does not avoid the requirement for 12 months' continuous employment in order to successfully bring a claim for unfair dismissal. The failure to adhere to the Statutory Dismissal Procedures is not one of the exceptions to the 12 months' continuous employment set out in Article 140 of The Employment Rights (Northern Ireland) Order 1996.

 

(23) Accordingly, that failure does not entitle the claimant to be considered unfairly dismissed or automatically unfairly dismissed. There is therefore no question of any uplift in any compensation should be awarded to her.

 

(24) The tribunal therefore dismisses the claimant's claim for unfair dismissal, automatically unfair dismissal and discrimination on the ground of her maternity.

 

 

 

 

 

 

Employment Judge:

 

 

Date and place of hearing: 20, 21, 22 and 23 November 2018, Belfast.

 

 

Date decision recorded in register and issued to parties: April 2019