Magee & Ors v TI Solutions Ltd [2006] NIFET 207

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Fair Employment Tribunal Northern Ireland Decisions

You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Magee & Ors v TI Solutions Ltd [2006] NIFET 207_03 (30 September 2005)
URL: http://www.bailii.org/nie/cases/NIFET/2006/207_03.html
Cite as: [2006] NIFET 207_3, [2006] NIFET 207_03

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FAIR EMPLOYMENT TRIBUNAL

CASE REF: 207/03FET

1288/03

261/03FET

1941/03

268/03FET

2071/03

262/03FET

1943/03

269/03FET

1942/03

CLAIMANTS: 1. James Magee

2. Irene Andrea Thompson

3. Michael Reed

4. Jim McCoy

5. Alexis Geddis

RESPONDENT: T I Solutions Limited

DECISION

The unanimous decision of the Tribunal is that:-

The claims of each of the claimants that they were unlawfully discriminated against by the respondent on the grounds of political opinion and/or religious belief are dismissed, having been withdrawn, without objections, in the course of the hearing of these proceedings.

The claimants and each of them were dismissed by reason of redundancy; but the selection for which was not by reason of trade union membership/activities. The claimants and each of them were unfairly dismissed.

The Tribunal does not make any award of compensation to the second, third, fourth and fifth claimants.

The Tribunal makes an award of compensation to be paid by the respondent to the first claimant in the sum of £1,374.76.

Constitution of Tribunal:

Chairman: Mr N Drennan QC

Panel Members: Ms C Lewis

Mr B Collins

Appearances:

The claimant was represented by Ms T McKenna, Barrister-at-Law, instructed by Francis Hanna & Co, Solicitors

The respondent was represented by Mr E O'Loan, Solicitor, Tughans Solicitors

Reasons:

.1 At the conclusion of the hearing, the claims of each claimant that they were discriminated against by the respondent on the grounds of political opinion and/or religious belief were withdrawn, without objections, and are therefore dismissed.

.2 Following the said dismissal of the claims of unlawful discrimination, the remaining claims which required to be determined by the Tribunal, as agreed by the parties, were the claims of each claimant of unfair dismissal. The respondent, in the respective Notices of Appearance to each said claim by the claimants, denied that the claimants had been unfairly dismissed, as alleged, by the respondent.

.3 The representatives of the parties at the outset of the hearing and, subject to the subsequent withdrawal of the unlawful discrimination claim as set out above, stated that the following issues required to be considered by the Tribunal in relation to the said claims, namely:-

"(1) Whether there was a redundancy situation?

(2) Whether the method of selection for redundancy by interview was fair?

(3) Whether the applicant's status as a trade union member played any role in the selection for redundancy?

(4) What was the applicant's length of service, and should this have been given more weight in the selection procedure?

(5) Whether those retained had less skill and experience than the applicant and, if so, whether this rendered the selection procedure unfair?

(6) Whether there was adequate consultation.

…."

.1 Each of the claimants gave oral evidence, together with Mr J Nicholl, trade union official and former full-time official of Amicus/MSF trade union. The only witness to give oral evidence on behalf of the respondent was Mr Colin Simpson, the financial controller of the respondent at the material time. Prior to the commencement of the hearing, the Tribunal gave various orders/directions for the preparation and exchange by the parties of witness statements. These orders/directions were eventually carried out by the parties, albeit with some extension of time having to be given to the parties by the Tribunal in order for the statements to be completed and/or the granting of leave for the exchange of supplementary statements by witnesses in response to statements which were submitted following the said extension of time. The Case Management Orders for such witness statements were in the normal form requiring such statements to be provided in relation to any witness whom a party wished to call to give evidence.

Mr O'Loan, the representative of the respondent, subsequently made an application to introduce as evidence, on behalf of the respondent, witness statements made by witnesses of the respondent, but whom he did not intend to call as witnesses to give oral evidence. The Tribunal initially refused to consider the said application, unless any such statement sought to be introduced was in its final form, signed and dated. This, having been done, Mr O'Loan renewed his said application. The Tribunal was conscious that the Tribunal in this matter had given orders/directions for the preparation and exchange of witness statements in connection with this matter. Whilst it was aware that there had been some breakdown in relation to the said timetable for the preparation and exchange of the statements, the Tribunal noted that the claimants' representatives had been, prior to the said application, given notice of the said statements and further the ability to provide supplementary statements, where necessary. Under Rule 13(2) and (3) of the Fair Employment Tribunal Rules of Procedure 2005, the Tribunal was not bound by any statutory provision or rule of law relating to the admissibility of evidence in proceedings before the courts and, in particular, the Tribunal was able to conduct the proceedings in such manner as it considered most appropriate for the clarification of the issues and generally for the just handling of the proceedings. Further, under the said Rules of Procedure, a party is not required to attend at any hearing and is entitled to submit written representations. The Tribunal, mindful that the said Rules were subject to the terms of the overriding objective, came to the conclusion, in the above circumstances, that it should allow the said witness statements, in their final form dated and signed, to be admitted in evidence on behalf of the respondent. However, in admitting the said statements, in the above circumstances the Tribunal made it clear that the claimants' representative would be entitled to make such comment, as she considered appropriate and relevant, in relation to the contents of any such statement, so admitted, and in circumstances where she had been unable to cross-examine the maker of the said statement. In addition, the Tribunal made it clear that, in determining this matter, it would have to give consideration to the weight, if any, which could be attached to any such statement admitted in such circumstances. Mr O'Loan frankly and fairly accepted the caveat, referred to above, which the Tribunal placed on the admission of the said statements by the Tribunal.

The Tribunal therefore, in light of the foregoing, admitted, in evidence, the witness statements of the following persons, namely Flor O'Donoghue, an independent human resources consultant, retained by the respondent, Chadwick Byrd, the corporate controller for the Fred Olsen Energy Group and Director of the respondent at the relevant time, and Martin Fitzsimons, systems support manager of the respondent at the relevant time.

3.1 The Tribunal, insofar as relevant and material, made the following findings of fact.

.2 For some years prior to October 2000, each of the claimants had been employees of Harland & Wolff ("H&W"). In or about October 2000 the respondent was incorporated as a subsidiary company from H&W, which was losing at that time, due to the financial uncertainties relating to the continued existence of H&W, critical IT staff employed by H&W; and to enable it to continue to provide IT services to H&W but also to seek IT contracts from other companies. The members of the IT department of H&W, which included the claimants, were transferred to the respondent, as part of a relevant transfer under the Transfer of Undertakings (Protection of Employment) Regulations 1981 ('T.U.P.E. Regulations'). Following the incorporation, the respondents supplied IT services to H&W, and also to other companies.

.3 The respondent, at the relevant time, was owned directly by Fred Olsen Energy ASA ("F.O.E."), which was also the majority owner of H&W. In or about October 2002, H&W was the respondent's major customer. However, H&W announced, at that time, it was reducing its contractual requirement for work from the respondent by around 75%; and, in particular, in the area of work carried out, by the respondent, for H&W's heavy industries division. At that time H&W accounted for more than 75% of the respondent's work. The Tribunal was satisfied that, in such circumstances, a clear redundancy situation had arisen, which required to be considered and acted upon, following the said announcement. Indeed, the fact of such a redundancy situation was not challenged by the claimants in the course of this hearing. It was recognised by both the respondent and by the claimants that, in light of the situation that had arisen, redundancies in the respondent's workforce would be required if it was to survive. Previously H&W had provided to the respondent income of some £1.1m per annum, of which £900.000.00 per annum was generated from work in the heavy industries division. Under the said reduction of the work requirement, previously provided by the respondent to H&W, the total contract was only going to be worth approximately £250,000.00 per annum, with the largest reduction in the work carried out for the heavy industries division. It was clear that to survive the respondent would have to obtain even more work, in the future, from outside H&W and to do so with a reduced workforce.

.4 At the time of the claimants' transfer to the respondent from H&W, the claimants were not entitled to enhanced redundancy terms under their contracts of employment with H&W; as a consequence no enhanced redundancy terms were available, pursuant to the TUPE Regulations, to the claimants under their contracts of employment with the respondent. However, subsequent to the said transfer, after H&W had sold some leasehold interests, H&W used the monies generated from these sales in the payment of enhanced redundancy payments to certain employees whom it was making redundant from in or about October 2002; and who had, unlike the claimants, remained with H&W. Although, as shall appear later in this decision, there were negotiations, which ultimately proved to be unsuccessful, relating to the claimants obtaining enhanced redundancy terms as part of the redundancy exercise carried out by the respondent, it was not disputed by the claimants that they were not entitled, under their contracts of employment with the respondent, to any such enhanced redundancy terms. However, the Tribunal has no doubt that the absence of such enhanced redundancy for the claimants, who had to transfer, as aforesaid, from H&W to the respondent, was a source of considerable resentment to the claimants, whenever H&W paid to certain employees who had remained with H&W, as set out above, enhanced redundancy.

.5 All the claimants were members of a trade union, namely Amicus/MSF. Mr Jackie Nicholl, at the material time, was the full-time official responsible for representing the union's members at the respondent during the relevant period in 2002/03; though he had only taken on that role a short time prior to these events, following the retirement of the official who had previously represented the claimants. Prior to these events, he had not had reason to be involved with the claimants in their employment with the respondent. Mr Nicholl also retired in early 2003.

The first claimant was, for some period prior to the events, the subject matter of these claims, a trade union representative/shop steward at the respondent. In that capacity he had represented, some time earlier, an employee in connection with disciplinary hearings which culminated in the employee's dismissal. At the employee's appeal, which was conducted on behalf of the employee by a full-time official of the union, the then managing director, Mr McCluggage, had objected to the first claimant attending the appeal. Mr McCluggage was still the managing director of the respondent when the initial announcement of the redundancies was made on or about 18 October 2002, but left shortly thereafter and was not involved in any of the subsequent relevant decisions, the subject matter of these claims. The first claimant had previously been selected by Mr McCluggage for redundancy in or about October 2000, but had successfully appealed that decision on the grounds the criteria had not been properly followed, with the assistance of his full time trade union official.

The fourth claimant, for some period prior to these events also acted as a trade union representative/shop steward at the respondent.

.6 Having regard to the work that had previously been done for H&W by the respondent, following its said announcement, H&W gave the respondent details of the work it now required the respondent to provide. It indicated it would require, in relation to desk top support 4 days support per week; whereas previously 2 persons had been working full time and a third person part time in connection with this work. In relation to work on the computer aided design programme "Tribon" only 120 hours per month support was now going to be required; whereas previously 2 persons had been working full time giving such support. Application support was also to be reduced to 60 hours work per month, in an area where previously 2-3 persons had worked full time. This application support work included work on H&W's accounting software, which software was not used outside H&W.

In determining the number of employees who would be required to provide the above support and after taking account of the support to be given to other customers and potential customers of the respondent, the respondent initially concluded it would require to reduce the number of staff, in order to provide the necessary technical support and services in the new environment faced by the respondent, by 7 persons, and also by one other person in the finance/sales/administration side of the business. Within a short period, it was decided that it was not necessary to make any redundancy in the finance/sales/administration side of the business. At that time the respondent had 20 employees, of whom 12 were involved in providing the previously required technical support. It was therefore decided that the 7 redundancies would be required to be found amongst the said pool of 12 persons. At a meeting on 6 November 2002, as set out below, the employees were so informed of the above numbers. It was not seriously challenged, during the course of this hearing that the number of redundancies required, in the circumstances, in the area of the said technical support was 7 persons and that the said pool was made up of 12 persons in total. It was not considered by the respondent that any of the said 12 employees had the necessary skills or experience to carry out any of the remaining roles in finance/sales/administration. Again, it was not suggested by any of the claimants that they could have filled any of the said roles in those other areas.

.7 The initial notification of the said redundancy situation was made by the respondent to the employees at a meeting, which included the claimants, on 18 October 2002. A letter was sent, by fax, to the claimants' trade union on Friday 1 November 2002 by Mr C Simpson, the respondent's then financial controller, referring, inter alia, to the redundancy situation and the background to same. It also stated:-

"The company cannot economically withstand the costs incurred in salaries for functions that would be underutilised. This scenario prompts the requirement for an evaluation study of all positions and the utilisation of each role. This process will identify any redundant positions and will result in a re-organisation of resources in order to remain competitive and to permit planning for the future.

All company employees were informed of the possibility of redundancy and the likely areas of impact at a collective meeting held on 18 October 2002.

You will be informed soonest once the process has been completed".

A further letter was sent, by fax, on Wednesday 6 November 2002 by Mr Simpson, confirming the review process had been completed and informing the union that there would be 7 redundancies and it was the respondent's intention to commence discussions with the relevant persons within a couple of days.

.8 Mr J Nicholl, the then full time official responsible for representing members employed with the respondent, at some time during the week commencing 4 November 2002 became aware not only of the earlier correspondence from Mr Simpson, but also, in particular the letter of 6 November 2002. He wrote, by letter dated 6 November 2002, seeking an urgent meeting to discuss the matter with the respondent and, in particular, to discuss what consultations the respondent intended having and the selection criteria to be used to make people redundant.

Mr Simpson responded by agreeing to a meeting, in a letter dated 6 November 2002 and sent by fax to Mr Nicholl; but stating the earliest it could be held was on Friday 8 November at 3.00 pm, as the first proposed consultation with staff affected was to take place on that Friday morning. He indicated the said meeting with employees would be used to inform them that their positions were at risk and to make them aware of the provisional selection criteria and to allow them to offer ideas or opinions. Mr Nicholl, by letter dated 7 November 2002, confirmed his agreement to the meeting, as set out above.

.9 On 6 November 2002, Mr Chadwick Byrd, addressed the employees of the respondent at a meeting. In summary, he informed the employees that there would require to be 7 redundancies out of the said 12 persons. He also indicated that a consultation meeting with the 12 persons would take place on Friday 8 November 2002 and the consultation process would involve discussing the selection criteria for redundancy, and making the said employees aware of the positions remaining and getting ideas and suggestions from the employees so that the respondent could consider them.

.10 A meeting took place on the morning of 8 November 2002, with each of the claimants. Each of these meetings took a standard format, setting out why their specific job was at risk, in the redundancy situation that had arisen, and informing them of the 7 positions which, in light of the said reduction in work, would now be needed and the requirements for each of the 7 positions. These specific requirements were set out in writing with the specific weight to be given to each requirement - 3 for highest importance, 2 medium importance and 1 lower importance. These weightings, in the Tribunal's view, reflected the importance given by the respondent to the said requirements and provided a method of measuring same. Whatever system of weighting was used, it inevitably, to achieve the above task, had to reflect the above differences in importance between the said requirements.

In relation to the selection criteria, each claimant was informed:-

"Employees will be selected for the remaining jobs through interviews. Those who match the requirements of the position most closely will be kept on. Those who do not best match the requirements will be made redundant. In order for T.I. Solutions to meet its commitments to all customers we need people in the remaining jobs to be able to fulfil the required duties. We encourage you to apply for all the positions you feel you match by informing Denise Shields by e-mail by 5.00 pm on Tuesday 12 November of which ones you wish to be interviewed for. We expect (Tribunal's emphasis) to be holding interviews on Wednesday 13 November".

The appeals procedure to be adopted by the respondent was also referred to. In addition, each claimant was given an opportunity to raise questions/make suggestions/provide ideas about the whole matter, which opportunity they exercised. Indeed, each of the claimants raised a wide variety of questions in relation to the process outlined to them above - but no specific answers were given at that time to their queries.

.11 On the afternoon of 8 November 2002, Mr Nicholl attended the meeting, as arranged with the respondent. Mr Simpson and Mr Donaghue attended, together with Miss Shields from the administration side of the business on behalf of the respondent. Mr Nicholl was accompanied by the first claimant and the fourth claimant.

During the course of the meeting, Miss Shields indicated that the time scale for consultation was not limited and it would go on until the employees were satisfied. Reference was made by Mr Nicholl to the use of appraisals. A formal appraisal had not previously been used by the respondent and it was indicated, that it would not therefore be possible to use appraisals in this selection process. Mr Nicholl, did not concede the point at the time. However he acknowledged, during the course of the hearing, that, in view of the absence of such a system prior to the redundancy exercise, it would not have been practicable or possible to have a selection process, involving appraisals, in such circumstances.

Mr Nicholl was informed, at the meeting, that the respondent intended to select by means of interview, using specific technical questions relating to the requirements for each position, which would be weighted and would require specific answers. Mr Nicholl strongly registered his objections to the use of interviews. He stressed people felt under pressure at interview and therefore, in his opinion, did not perform well. Concern was also expressed about the absence of recent experience of interviews for long serving employees. He requested that the decision to use interviews should be reconsidered; and he wanted to have an opportunity to sit down and discuss with the respondent an agreed method of selection, and, in particular, having regard to the respondent's stated position at the meeting of wanting to use interviews. After such a consultation he was confident it would be possible to reach a solution about the best way to proceed. Mr Nicholl also referred to the possibility of voluntary redundancy and an enhanced redundancy package and also the payment in lieu of notice. In the Tribunal's view, no opportunity was given to Mr Nicholl, at this meeting, to put forward alternatives to the holding of interviews, which the respondent was proposing and to which he was objecting.

.12 On 12 November 2002, Mr Byrd held a meeting with the claimants in which he responded to the various questions which had arisen at the individual meetings which had been held with each claimant on 8 November 2002. Answers were given, on the basis of a pre-prepared script, to the various areas of concern that had been raised at that time. Some examples are set out below, which illustrate the responses which the Tribunal is satisfied were provided by Mr Byrd during the course of the meeting, although the precise words as set out in his pre-prepared script may not have been used.

"Selection Criteria

Who constructed selection criteria?

The relevant manager based on commercial decisions taken by the management team in relation to the revised requirements.

Was the union involved in drawing up the selection criteria?

No but we did hear their views on Friday as we heard everyone else's who was involved in the process.

Will it take into account assessments made before?

As the company must provide certain skills this procedure is designed to obtain the best possible person to fill the requirements. There have been no previous skills assessments or appraisals.

What about the person who has been adaptable for the past 26 years?

Will that come into question as part of the assessment?

No. The assessment is purely skills match.

The job

Who wrote the job descriptions?

There are no job descriptions - the documentation distributed is the list of the requirements and functions that need to be fulfilled. These were written by the managers responsible for the roles at present ….

This document is not my job - is my job redundant?

The documentation reflects the requirements of the organisation going forward, grouped into positions. It is not a document based on any current position. At this point no position is redundant however there are a number of positions at risk of being made redundant.

What are the factors behind the weightings?

The importance of the requirement. This decision was made by the manager based on customer requirements.

Can we apply for the other jobs? (ie positions unaffected)

No. Those positions are not affected by the redundancy.

…..

The union

Has the union been involved?

Yes. We last met with the union on Friday and will be sending a response to the areas which they asked to be reconsidered tomorrow.

…..

General

Will there be enhanced redundancy?

No.

Will there be volunteers?

We are unable to accept volunteers. The selection method is interview in order to ensure best skills match.

…..".

During the course of the meeting, which was wide ranging, as exemplified by the answers to the questions set out above, further discussion took place in relation to the method of selection. Further questions were asked. For example, Mr Byrd explained in answer to a question about the process, in the absence of appraisals, that specific technical questions would be asked by the interviewers and the weightings were related to the importance of the functions to be fulfilled in the said post.

During the course of the discussion, Mr Byrd asked "What is the best method of doing the selection?" No-one responded and no alternative ideas were proffered to him. Indeed, the fourth claimant fairly acknowledged that there was no best method and he did not know the answer to Mr Byrd's specific question. Significantly, in the Tribunal's view, Mr Byrd responded by stating, "If you can come up with a selection method and as long as the employees in the company are treated fairly, we are happy to go along with it…".

In light of the foregoing, it was agreed to defer the applications for the specific posts until 5.00 pm on 13 November 2002. There was also agreement to have a meeting with the union on 13 November 2002 which would be to work together and come up with a system of selection which was fair to both the employees and the company.

.13 On 12 November 2002, Mr Simpson wrote to Mr Nicholl stating that, following the meeting on 8 November 2002, the company had met with the employees to progress the way forward. He further stated that in light of the meeting with the employees and the points already raised by Mr Nicholl for consideration, the company would like to invite him to attend a meeting on 13 November 2002. He further pointed out that, having tried unsuccessfully to contact Mr Nicholl by telephone that afternoon, and whilst acknowledging that there had been little notice given of the invitation, he would greatly appreciate if Mr Nicholl could attend the meeting on 13 November 2002. The said letter was faxed to Mr Nicholl at his offices; but unfortunately he was unable to attend that meeting. However, it would appear from correspondence that there was some discussion by telephone between Mr Simpson and Mr Nicholl on 13 November 2002. In a letter dated 13 November 2002 sent to Mr Nicholl, Mr Simpson confirmed, inter alia, that discussions were ongoing with employees on the interview process and it was hoped that at a further meeting, on 19 November 2002, agreement could be made on the way forward. The letter further indicated that "….. understanding that you are extremely busy at present, we welcome the opportunity to discuss the issues of payment in lieu of notice, and consultation enhanced redundancy with you. Should you be available sooner than Tuesday 19 November, we would appreciate your time".

.14 On or about 13 and 14 November 2002, there were a series of meetings held by the respondent, which involved discussions with the claimants and the other employees in the said pool, from whom the selection for redundancy was to be made, about the said requirements, for the said positions available to be applied for, and the various weightings/ratings which had been given to those requirements. The Tribunal concluded that any discussion on the method of selection and, in particular, the respondent's intention to select by way of interview was very limited during the course of these discussions. Certainly such discussion, as there was, did not suggest any change of heart on behalf of the respondent. Equally, there was no agreed alternative method put forward. At the meeting with the fourth claimant, for example, there was some discussion which involved some indication by him that he and some others would prefer assessment; but also a recognition by him that others would not agree. The fourth claimant in his capacity as a trade union representative/shop steward, at the company, agreed to canvas the other employees to obtain a view. There was also some recognition, in this discussion, that whatever system of weightings/ratings was used for specific requirements it would inevitably add to the differences between the candidates in the interview situation, whenever the scoring took place. He also sought consideration of the inclusion of some 'soft skills' criteria in the interview process, rather than only questions of a technical nature; such as adaptability, or ability to work in a team or similar matters.

.15 Following these meetings, Mr Byrd, on 14 November 2002 announced at a meeting of the said employees that, following these discussions, changes had been made to the requirements and to weighting/ratings where it was considered appropriate. This meeting was not an opportunity for further open ended discussion; and it is clear that Mr Byrd, when making the announcement, was reading from a prepared statement. In particular, he referred to the fact that, although some during the course of the meetings had suggested selection by interview others by assessment, in the absence of any agreement, it had been decided to proceed by way of interview with a panel of two persons, together with a third person as chairman. He indicated that those wishing to apply for the positions, in which they were interested, were asked to do so by sending an e-mail to Miss Shields by Friday 15 November 2002. It was also stated that interviews would be held on November 18 and 19, with an expectation that the results would be known by 20 November and the relevant redundancy notices could then be issued thereafter. Although as appears from the prepared statement Mr Byrd had prepared answers, which could be given by him to likely questions, the Tribunal does not believe that these answers in fact formed part of his prepared statement. As appears from the memo of the meeting an issue was raised by the fourth claimant, following the above statement, whether the respondent was going to meet the trade union official. Mr Byrd confirmed that it was intended to meet the official on Tuesday 19 November 2002; albeit the respondent had tried to meet him earlier and would do so if he became available earlier.

Although the prepared answers to the questions were not in fact given to the employees at the meeting they were, in the Tribunal's view, still of some significance. In particular in relation to the question "Has the consultation period ended?" - the prepared answer states "No. We are meeting with the union official on Tuesday 19 November and will continue to consult with employees. However we do need to let people know if they are redundant as soon as possible and also the business requires us to move on with selection". Secondly - "Will there be pay in lieu of notice?" - "No. We will require employees to work their notice and continue performing professionally". Thirdly - "Will there be enhanced redundancy?" - "No".

At the conclusion of the meeting employees were informed that the interviewers would be Mr Martin Fitzsimons, Richard Cullen, who were line managers on the technical side of the respondent, and the Chairperson would be Mr Flor O'Donaghue, the Human Resources Consultant referred to earlier, and who was acting as the advisor to the respondent throughout this process.

.16 On 15 November 2002, Mr Nicholl had a telephone conversation with Miss Shields. He confirmed his attendance at the meeting on 19 November 2002. He apologised for not being able to attend sooner due to his involvement in the closure of another company at this time. He was informed of the meetings with the employees over the previous few days and that amendments, where appropriate, were to be made to the requirements for the positions in light of what had been stated. Mr Nicholl made it clear that not all members were to be taken to agree with any such changes. In particular, Mr Nicholl was told that following these meetings, and in the absence of any suggestion for any alternative fairer method, the respondent intended to proceed by way of interview. Mr Nicholl continued to express his objection to the use of selection by way of interview.

When giving his evidence Mr Nicholl, in fairness, had no precise recollection of the above conversation; but he acknowledged that it could have been pointed out by Miss Shields, during the course of that conversation, that the company had sought from him and the employees an alternative more fair and objective method to interview, but without success. In particular, he had no recollection of stating that he could not think of an alternative method. He accepted, in the course of his evidence, to the Tribunal, albeit reluctantly, it could have been said. Regardless of the precise words which were used in this conversation, the Tribunal is satisfied that the issue of the interview arose and that Miss Shields made it clear that, in the absence of any alternative suggestion, albeit noting Mr Nicholl's objection, the company intended to proceed by way of interview. In addition, the Tribunal is satisfied that Mr Nicholl made no alternative suggestion at that time, other than there should be continuing consultation to arrive at an agreed solution. Significantly the Tribunal noted that, even in the course of his evidence, Mr Nicholl did not put forward any alternative suggestion. He accepted, as set out above, that assessment, in the absence of a previous formal system, was not appropriate. He further acknowledged that 'last in first out' was now recognised to have its difficulties and drawbacks and specifically would not necessarily result in a company obtaining a person who had the necessary skills, which the respondent required in the changed circumstances, albeit he/she might have long service.

He indicated he had not ever seen interviews used as a method of selection; but equally he was not prepared to put forward any other alternative objective system, which would have satisfactorily dealt with the needs that had arisen for the respondent to ensure it had persons with the necessary skills to fill the posts that had been identified, following the announcement by H&W of reduction in work for the respondent.

Miss Shields also informed Mr Nicholl that issues of pay in lieu of notice and enhanced redundancy were still under consideration. Miss Shields indicated the consultation with employees would continue. However she also stressed the necessity for urgency to let the employees know who was to be made redundant but also to allow the business to move on.

In addition to the telephone call, Mr Simpson wrote to Mr Nicholl on 15 November 2002 (by fax) confirming the meeting had been arranged for 19 November 2002, but also confirming that, if possible, there could be an earlier meeting. He also confirmed that several meetings had been held in relation to the interviewing process but it had been decided to proceed by way of interview, in the absence of any suggestion of a more objective method. He also indicated that 'performance' and attendance records would also be taken into account. It was not disputed, during this hearing, that the reference to 'performance' records was a reference to disciplinary type records.

.17 Neither in the letter to Mr Nicholl nor during the course of conversation with Miss Shields was Mr Nicholl informed that the interviews were to take place prior to the meeting that had now been arranged. Although the employees had been informed of the timetable for the interviews at the meeting with Mr Byrd on 14 November 2002, Mr Nicholl was not so informed by anyone on behalf of the respondent.

.18 Applications for the said positions were received from the employees in the said pool, including the claimants, on or about 15 November 2002.

.19 Mr Byrd had a meeting with the relevant employees, including the claimants, on 18 November 2002 and confirmed that the position requirements had been amended, where possible, to reflect what had been suggested by them and that attendance and performance (ie., disciplinary) records would be included in the selection criteria. He confirmed that the respondent would be proceeding with interviews, as the employees had not offered any alternative; however, significantly, he also stated that the respondent would consider another selection method, if the union came up with one.

.20 On 18 November 2002, the claimants signed a document that they had been advised by the full time union official that "It is unreasonable for the company to expect us to attend a 'interview' prior to the formal consultation process being exhausted.

We therefore will not be attending any such interview at this juncture".

Having regard to the terms of the document, the Tribunal came to the conclusion that, by 18 November 2002, Mr Nicholl had become aware, from the claimants, the interviews were to take place. However any such information came to him from the claimants not the respondent.

.21 Mr Nicholl attended the said meeting on 19 November 2002, where he was informed that the respondent would continue with the interviews for employees to determine who would be made redundant. Mr Nicholl continued his objections; but by the time of the meeting the interviews had already commenced. At the meeting there was a discussion about a "conditional" offer of £2,000.00 as an enhancement to the statutory redundancy terms and a bonus for completion of work for H&W. The £2,000.00 was to be made up of £1,000.00, which would be contributed to by H&W, as an incentive if certain work was completed, and the other £1,000.00 was to be paid by the respondent on an ex gratia basis as part of a termination agreement drawn up with the assistance of the Labour Relations Agency. In the event, this "conditional" offer was not acceptable to the claimants and the respondent was informed of this at a meeting on 29 November 2002; and no such agreement was entered into by any of the claimants with the respondent.

.22 As indicated above, the interviews to select the employees from the said pool for redundancy were conducted over the period of 19 and 20 November 2002. On 21 November 2002 each of the claimants was written to and informed that their posts had been declared redundant and their employment would be terminated with effect from 13 February 2003. As shall appear later in this decision these dates, in relation to certain claimants, were extended. Each was informed of their right to appeal. The letters also set out the amount of the redundancy payment to be paid by the respondent on the said termination of employment. There was also reference to the potential for an offer of an enhanced redundancy payment; but which offer, as set out above, did not progress further. Thus each claimant was subsequently paid, on termination of their employment, the statutory redundancy payment to which each was entitled.

.23 Martin Fitzsimons and Richard Cullen, who were the members of the panel that interviewed each of the claimants, were themselves interviewed on 18 November 2002 for the position of team manager. As neither were claimants in these proceedings, it was not necessary for the Tribunal to consider further what took place at these interviews. Thus, not only were they selecting employees for redundancy, they were also, in their own posts, the subject of this redundancy selection exercise.

.24 The interviews for each of the claimants took a similar pattern. Mr Fitzsimons and Mr Cullen as the interviewers on the panel asked the questions set for each position and marked the scores. Mr O'Donaghue was the chairman of the panel. Prior to each interview, a document had been drawn up in relation to each position for which each applicant had applied, containing a series of pre set questions, with a space for comments/answers by that claimant, together with boxes setting out in respect of each question:-

(a) the highest possible score that could be obtained;

(b) the weight to be given; and,

(c) the actual score awarded.

In addition, there was a document giving the scores given by the said interviewers with relevant and appropriate totals. The document also made provision for scoring, as aforesaid, in respect of:-

(i) performance linked to discipline in the absence of appraisal process;

(ii) attendance over the last 6 months, excluding periods of hospitalisation.

These criteria of 'performance' and attendance had been included, as set out previously, following the meetings with the employees and union prior to the commencement of the interview process. In the event, all the said employees obtained maximum marks in these categories and were not therefore a relevant factor in any employee's selection for any of the said posts.

.25 Mr Simpson, who was the only person to give oral evidence on behalf of the respondent, was unable to confirm when the individual questions for each position were devised or indeed who precisely had drawn up the said questions. Indeed, it appeared to the Tribunal that the questions were drawn up by a number of persons, including Mr Fitzsimons and Mr Cullen, who were the line managers on the technical side of the business; and who, as set out above, were also the 2 applicants for the position of team manager. It was not clear to the Tribunal, on the evidence, who else had been involved in setting the questions or indeed the sample answers, which were provided to the interviewers for use during the said interviews.

However, the Tribunal was satisfied the questions set related to the specific requirements for each position and the weight given to the said questions also reflected the weightings which had been previously set against those requirements. In the Tribunal's view these questions, which were of a technical nature, were clearly designed with the said requirements in mind and to ascertain whether the applicants for each post had the necessary skills and ability for those posts; and further that, on the basis of the said questions and the answers given to those questions, each applicant for the relevant post could be objectively tested whether he/she was able to satisfy the said requirements. Whilst individual claimants, as set out elsewhere in this decision, may have had difficulties in answering certain questions, in particular in those areas with which they were not so familiar, the Tribunal noted that the questions themselves were not the subject of challenge as improper or not relevant to the said requirements, if such a system of interview was to be used. In addition, the sample answers, which had been prepared for the use of the panel, were accepted as reflecting what answer would require to be given to such questions.

In the circumstances, the Tribunal did not consider it necessary to ascertain with any certainty who were the authors of the said or indeed the sample answers, the authorship of which also remained uncertain on the evidence before the Tribunal.

The questions, being of a technical nature and directed at the set requirements did not include, as set out previously, any measurement of an individual applicant's "soft skills". In essence the exercise was, in the Tribunal's view, a purely objective exercise.

The Tribunal, having carefully examined the interview sheets and the marks given, were satisfied that the interviewers had properly and fairly recorded the answers given by each candidate for each position and had properly marked the answers given. Indeed, whilst the claimants objected, in principle, to the use of this interview process, none suggested that the interviewers had failed to record answers given or to accurately score the answers that had been given by either themselves or the applicant with whom they were in competition for the said position. The Tribunal also noted that this had been done by each of the interviewers; even though each interviewer did not have the same degree of detailed knowledge or experience of all the areas, which were the subject matter of the questions. The Tribunal was therefore satisfied, that within the terms of the said interview exercise, each applicant for the said posts had been properly and accurately interviewed and marked.

.26 Any interview process, whether in relation to this exercise or an ordinary recruitment exercise is a difficult and potentially nervous experience for any participant. Certainly none of the claimants, given their long service with H&W before their transfer to the respondent, had recent experience of interviews; in comparison to those applicants for the positions, who had shorter service, and who would be more likely to have had more recent experience of interviews. However, in the Tribunal's view, this can be an inevitable and normal consequence of any interview process, whenever it is adopted. Indeed the Tribunal could understand that, before the redundancy situation had suddenly arisen, the claimants had expected to be able to continue carrying out their respective roles for the respondent and without any threat to their employment or the necessity to take part in any selection process.

.27 At the material time, the first claimant was a systems support engineer. Mr Richard Cullen was his line manager. He together with Mr O'Neill applied for the post of Tribon Engineer. At the conclusion of the interview process, the first claimant was given a total score from both interviewers of 240, whereas Mr O'Neill was given a total score of 326. As a consequence, Mr O'Neill was selected for the post of Tribon Engineer. The Tribunal accepted that, given the work of the first claimant in comparison with that of Mr O'Neill, prior to this redundancy situation, the first claimant had difficulty in answering some of the questions, weighted as aforesaid, which were directed at areas of work with which Mr O'Neill had greater familiarity and/or experience. As a consequence the first claimant had not therefore been as successful as Mr O'Neill. The first claimant was then notified at a meeting and subsequently by letter dated 21 November 2002 that his post had been made redundant.

.28 The second and the fifth claimant applied for the post of Desktop Technician. Both the said claimants had worked for some time in the area of Desktop Support with Ms O'Lynch, who had been appointed to the position of Desktop Support Technician in or about February/March 2002. Ms O'Lynch applied for this post. Their line manager was Mr Fitzsimons. At the conclusion of the interview process, the second claimant was given a total score of 145 and the fifth claimant was given a total score of 147; whereas Ms O'Lynch obtained a total score of 415. As a consequence, Ms O'Lynch was selected for the post of Desktop Technician. The Tribunal was satisfied that the training which Ms O'Lynch had received, following her said appointment, considerably assisted her obtaining the score that she did. However, the Tribunal also noted that the second claimant had not responded to an earlier request to ask for training in areas she felt she was deficient in; and that the fifth claimant did not appear to have outlined any training she required, until shortly before the redundancy situation arose. The Tribunal noted that the relationship between these claimants and Mr Fitzsimons were at times difficult; but, significantly, it noted that neither suggested Mr Fitzsimons had wrongly scored the candidates for this position. Due to the said difficult relationship, the fifth claimant was clearly unhappy that Mr Fitzsimons was on the panel; but the Tribunal did not consider the said difficulties were such that prevented him sitting as a member of the panel. Further, as stated above, the Tribunal, in particular, was not satisfied that there was any evidence that Mr Fitzsimons had acted in any way improperly as a member of that panel. He asked the questions he was required to ask and noted the answers given and scored them properly.

.29 The third claimant applied for the post of Server Administrator; and, at the material time, was in the post of Distributed Systems Administrator, having been appointed to the position in or about December 1995. Mr M. Rushby also applied for the said post, having worked alongside the third claimant following his appointment on probation, in or about early 2002. In his said work, the first claimant's work was primarily in the respondent's work for H&W; whereas Mr Rushby worked in other areas of the respondent's work and which, following the redundancy situation, were clearly going to take on a increasingly important role. Mr Rushby's probationary period ended at or about the same time as this redundancy situation arose. Given the nature of his work in relation to H&W, and in particular with the heavy industry contract, the third claimant was considered to be a key member of staff. However, in light of the change in circumstances, this key role was not of such significance, as it clearly previously had been. The Tribunal accepted that the third claimant, given his somewhat narrower experience dealing with the heavy industry contract, as part of the work with H&W, resulted in him having difficulty in answering some of the questions, weighted as aforesaid, in comparison to Mr Rushby. As a consequence he was not therefore as successful in the interview process as Mr Rushby. At the conclusion of the interview process, the third claimant received a total score of 168 in comparison to a total score of 290 given to Mr Rushby. As a result, Mr Rushby was appointed the Server Administrator. The third claimant was told at a meeting on 21 November 2002 and confirmed in a letter on same date that his post had been made redundant.

.30 The fourth claimant applied for the post of Application Support. At the material time, he was also working in Application Support, alongside Ms M. McCahey and Mr T. McIvor. They also applied for the said post. In the above capacity, the fourth claimant was, like the third claimant, a key member of staff in relation to the H&W work in respect of the heavy industry contract. Mr McIvor was a key member of staff in relation to the H&W work in respect of H R and Payroll System Support. Ms McCahey in her work gave support to both the third claimant and Mr McIvor. Due to her experience for these various areas, it meant that Ms McCahey had less difficulty in answering the questions, weighted as aforesaid, and as a consequence she was ultimately successful in obtaining the post. At the conclusion of the interview process, the fourth claimant scored 310, Mr McIvor 332 and Ms McCahey 420. The fourth claimant was notified at a meeting on 21 November 2002 and confirmed by letter on same date that his post had been made redundant.

.31 All the claimants exercised their right of appeal. The appeals were in similar terms and each appeal was conducted by Mr Byrd. Although Mr Byrd clearly had had some involvement in the various decisions taken, as outlined previously, in light of the redundancy situation that had occurred he had not been involved in the interview process itself. In the Tribunal's opinion he was, given the senior position which he held in the company, the most suitable person to conduct the appeals. In the case of the third claimant, his appeal was conducted using telephone conferencing facilities; whereas the other appeals were conducted face-to-face. The Tribunal did not consider this difference was of any significance. Each claimant was assisted at the appeal by Mr Nicholl. The appeals of each claimant primarily, in each case, centred on the use of the interview process, which they continued to object to, that the questions had been pre-planned in order to obtain the result set out in the previous paragraphs, that there had been no recognition of their previous exemplary service; and finally that there had been failure to consider accepting volunteers.

All the appeals were unsuccessful. In giving his reasons for doing so Mr Byrd relied on the fact that the selection process, by way of interview, had been designed to meet the future needs of the respondent in the changed circumstances following the reduction of the work from H&W; and that the interview process had been used because it was considered that this was the most appropriate method for matching employees to the jobs which would now be required in order to meet the requirements of the business in the changed circumstances. He noted no alternative had been suggested. He also pointed out that, prior to this situation arising, there had been no formal system of assessment, which could therefore have been used in connection with the selection criteria. He denied that the matter had been pre-determined in any way and insisted that the questions had been designed on the basis of the requirements for the remaining positions, in light of the changed circumstances and the client base which the respondent would have to deal with in the future. He did not deny that the claimants had each long and good service. This had never been part of the selection process, as it was considered by the respondent it would not achieve what the respondent required, namely finding those employees who best matched the requirements of the respondent. He referred to the fact that, in light of the pre-interview consultations, attendance and performance (ie., discipline) were included as selection criteria; though as indicated previously, in the event, these criteria played no part in the final result. He stated that volunteers had not been sought on the basis that, to have sought same, could have endangered the viability of the respondent if those with the required and necessary skills to enable the respondent to survive had volunteered.

.32 On 19 November 2002, the day the interviews commenced, a marketing feature appeared in the Newsletter Newspaper referring to the appointment of Ms O'Lynch as Desktop Support Engineer. This, as noted previously, was the person appointed in or about February/March 2002 as the Desktop Support Technician and who following the interview process had been appointed to the position of Desktop Technician. It did not appear that she had ever been appointed to the position of Desktop Support Engineer. In a letter dated 21 November 2002 to Mr Nicholl, following protests about this feature in the newspaper, Mr Simpson assured Mr Nicholl that the information had been given to the media some months previously with no known date for publication and accepting that the feature should have been cancelled in light of the redundancy situation within the company.

There was considerable evidence and issues raised, in the course of this hearing, about when the information had been given to the newspaper and the normal period which would elapse between a company providing such information and publication. The claimants, and in particular the second and fifth claimant, relied on the fact that, this appointment having been announced in the newspaper, was evidence that the decision who was to get the post of Desktop Technician, in the redundancy situation, had been pre-determined prior to the interview. The person in the respondent primarily responsible for the sending of the information to the newspaper did not give any evidence to the Tribunal. Equally, no-one was called, by the claimants, on behalf of the newspaper, to confirm what had actually taken place and how the publication came to be published on 19 November 2002 and/or what was the normal period for such a marketing feature to await publication following submission by a company.

Both the second and fifth claimants suggested in evidence, on the basis of what they had been told by sources in the Newsletter Newspaper, that the normal period was short and the feature had only been submitted a short period prior to the date of publication. These sources were not identified or called to give evidence. Given that the respondent had been aware of the redundancy situation from at least the beginning of October 2002, the timing of what took place could, in the Tribunal's view have been significant. However, in the absence of any clear and direct evidence of what actually happened the Tribunal came to the conclusion that the publication was coincidental and a matter of bad timing and not evidence of any pre-determination; and that there had been merely a failure to stop a chain of events, namely publication of the marketing feature, which had been commenced at a time prior to the redundancy situation occurring, and which was not stopped in the face of the changed circumstances. Also, Ms O'Lynch had been appointed to the position of Desktop Support Technician about February/March 2002, albeit she had never been referred to as Desktop Support Engineer; and thus there was some basis for considering that there was a link between that appointment and the said feature. If there had been no such previous appointment, the Tribunal would have been less prepared to reach the above conclusion. In addition, to have deliberately put in such a feature at such a time, in a publication which was bound to be read by all the claimants, when there was a redundancy process commenced and with interviews arranged, would have, been foolhardy in the extreme. In the circumstances, and in the absence of clear and direct evidence, which was not given by any party, the Tribunal was not prepared to draw any adverse inference from the publication; and in particular that it was evidence of pre-determination on the part of the respondent. The Tribunal was also satisfied, as set out above, that Ms O'Lynch had been properly found, at interview to be the successful candidate.

.33 The Tribunal has no doubt that, but for this redundancy situation suddenly forced upon the respondent, each of the claimants would have continued in their positions and doing their work in those positions with all the necessary competence and skill. The fact that the claimants were not chosen for the new posts was not because of any pre-determination on the part of the respondent; but rather because of their lack of familiarity/experience, as set out above, with some of the skills/requirements which were necessary for the new positions following the change of circumstances. This lack of familiarity/experience was therefore exposed, when tested objectively, using the interview system. The result was a consequence of that objective interview system; but not evidence of any pre-determination.

.1 In respect of the claim of the claimants for unfair dismissal, the relevant statutory provisions are contained in the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order").

2 Under Article 130(1) of the 1996 Order it is provided that:-

(1) In determining 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 principal reason) of the dismissal and

(b) that it is either a reason following 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) Reason falls within this paragraph if it –

…..

(3) is that the employee was redundant.

Having established the reason for the dismissal it was then necessary for the Tribunal to have regard to the provisions of Article 130(4) of the 1996 Order, which states:-

"(4) Where the employer has fulfilled the requirements of paragraph (1) the

determination of the question whether the dismissal is fair or unfair (having

regard to the reason shown by the employer)

(a) depends whether in the circumstances, including the size and the administrative resources of the employer's undertaking the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.

3 In relation to the claimants alternative claim of unfair dismissal arising out of the claimants' trade union membership and/or activities, the 1996 Order, insofar as relevant and material, provides as follows:-

Article 136 –

(1) An employee who is dismissed shall be regarded for the purpose of this part as unfairly dismissed if the reason (or if more than one the principal reason) for the dismissal is that the employee -

(a) was or proposed to become a member of an independent trade union, or

(b) had taken part, or proposed to take part, in the activities of an

independent trade union at an appropriate time or

……

4.4 Further under Article 137 it is provided, as follows: -

(1) An employee who is dismissed shall be regarded for the purpose of this part as unfairly dismissed if -

(a) the reason (or if more than one, the principal reason) for the dismissal is that the employee was redundant,

(b) it is shown that the circumstances constituting the redundancy applied equally to one or more other employees in the same undertaking who held positions similar to that held by the employee and who have not been dismissed by the employer,

…..

(7) This Paragraph applies the reason (or if more than one the principal reason) for which the employee is selected for dismissal was one of those specified in Article 136(1) read with paragraph (3) of that Article.

.1 In relation to the claim of the claimants for unfair dismissal, the Tribunal was satisfied that in relation to each claimant the said dismissal was by reason of redundancy. This is a potentially fair reason (see Article 130(1)(4) of the 1996 Order above. However, any such dismissal will nevertheless be treated as automatically unfair if it is shown that the employee was selected for dismissal wholly or mainly on union grounds as defined (see Article 137 of the 1996 Order).

.2 It is correct that all the claimants having been dismissed by reason of redundancy were trade union members at the relevant and material time. However, the Tribunal also noted that, at the conclusion of the process to select which employees were to be made redundant, two of the employees involved in the process who were not selected for redundancy were trade union members; and one of those selected for redundancy was not a trade union member. In addition, both the first claimant and the fourth claimant had taken part in trade union activities when they had acted at various times as trade union representatives/shop stewards at the respondent's premises including during the consultation process for this redundancy exercise. In addition, the first claimant had had particular involvement, as a representative, in the successful appeal relating to the dismissal of an employee (see further paragraph 3.5 of this decision).

.3 To establish that the dismissal of the claimants was automatically unfair, in the above circumstances, it was necessary for the claimants to show that the said union grounds relied on pursuant to Article 137 of the 1996 Order, as set out above, constituted the sole or predominant reason for the dismissal. The Tribunal was not satisfied that the claimants had established that there was the necessary causal link to show the union grounds relied on, had played any part, let alone a contributory part, in the selection of any of the claimants for redundancy. Mere membership of a trade union alone was not enough in the above circumstances and, in particular, where two trade union members were not selected for redundancy. Both the first and fourth claimant had taken part in trade union activities as trade union representatives; but there was no evidence to suggest that such activities were relevant to their selection for redundancy. In the circumstances, the said dismissals of the claimants were not therefore automatically unfair pursuant to Article 137 of the 1996 Order. If the said union grounds relied upon had been a contributory cause of the said dismissals, (which the Tribunal found they were not) then it would have been necessary for the Tribunal to also consider this ground further in determining the general question of fairness under Article 130(4) of the 1996 Order.

.4 The Tribunal, having been satisfied as aforesaid, that the said dismissal was by reason of redundancy, it was then necessary for Tribunal to consider the fairness of the dismissal, as required under Article 130(4) of the 1996 Order, and in particular, to consider whether the employer had acted reasonably in treating redundancy "as a sufficient reason for dismissing the employee".

.5 In the case of Williams & Others -v- Compair Maxam Limited [1982] IRLR 83 the following guidance was provided, which guidance was approved in the decision of the Court of Appeal in Northern Ireland in the case of Robinson -v- Carrickfergus Borough Council [1983] IRLR 122.

In the Williams case it was stated:-

"Although it would be impossible to lay down detailed procedures which all reasonable employers should follow in all circumstances, there is a generally accepted view, in industrial relations that, in cases where employees are represented by an independent 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 to 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 the selection has been made, the employer will consider with the union whether the selection has been made in accordance with these 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 records, efficiency at the job, experience or length of service.

4. 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 to offer him alternative employment.

It must be remembered that these principles set out in the above case are guidelines and not all applicable in every case.

Further, the Court of Session in King -v- Eaton Limited [1996] IRLR 199 made it clear that the union should be consulted at a time when they could influence the criteria selection and not after the criteria had been set in stone.

As Lord Bridge made clear in the case of Polkey -v- A E Dayton Services Limited [1987] IRLR 503 HL.

"In the case of redundancy, the employer will not normally act reasonably unless he warns and consults any employees affected or their representatives, adopts a fair basis on which to select for redundancy and takes such steps as may be reasonable to avoid or minimise redundancy by re-deployment within his own organisation".

However, the Tribunal were also, at all times conscious, that it is now well established that tribunals cannot substitute their own principles of selection for those of the employer. Indeed, the Tribunal could only interfere if the criteria adopted were such that no reasonable employer could have adopted them or applied them in the way that the employer did (see further Earl of Bradford -v- Jowett (No 2) [1978] IRLR 16. In the case of N. C. Watling -v- Richardson [1978] IRLR 255, it was suggested that the test was whether what had been done was something which "no reasonable management would have done".

.6 The Tribunal, on the facts as found by it, set out at paragraph 3 of this decision, and having regard to the guidance set out in the case of Williams and Others -v- Compair Maxim Limited, referred to in a previous paragraph was not satisfied there was proper consultation with the claimants and their union representative in relation to this redundancy exercise and, in particular, the decision of the respondent to adopt the interview method as the method for selection. Whilst the Tribunal accepted that the events, which had led to the necessity for this redundancy selection exercise, had arisen because the announcement by H&W of the reduction in work for the respondent and that the respondent had therefore wished to act quickly to end the uncertainty for the workforce, and in particular the claimants, the Tribunal came to the conclusion that the consultation process was unnecessarily rushed.

The Tribunal could understand the respondent's desire to protect the continuing viability of the respondent in the changed circumstances and therefore to make any necessary changes as soon as possible. However, this rush to make a decision, in the Tribunal's view, sat uneasily with the fact that the claimants were informed on or about 21 November 2002 that their posts were redundant; but they were each required to work their period of notice until February 2003. Indeed, in the case of some of the claimants, their period of employment was further extended beyond the said notice period.

The Tribunal accepts that there were proper meaningful consultations with the individual claimants informing them of the redundancy situation and how it had arisen and its implications. Indeed, following those discussions with the individual claimants and the union representative, there was no issue about the number of posts being made redundant, the relevant pool from whom those to be made redundant would require to be selected or indeed the positions that would be required in these changed circumstances. The Tribunal noted that, following the meetings with the individual claimants and union representative, changes were in fact made to the criteria for selection; and performance (ie., discipline) and attendance records were included. In addition, there was, in the Tribunal's view, proper consultation, albeit it did not result in any change of view by the respondent, in relation to issues about pay in lieu of notice and use of volunteers. The respondent was entitled, if it considered it necessary, to require the claimants to work their notice rather than pay them pay in lieu of notice. Further, the Tribunal could not fault the respondent's decision not to allow for the use of volunteers in the circumstances; given the risk, as seen by it, that the 'wrong' persons might volunteer. Other employers might have been prepared to take that risk; but, in the Tribunal's view, such a decision was within the range of reasonable responses by an employer. The Tribunal was satisfied that the above matters were properly considered by the respondent, prior to the interviews, albeit rejected. Further, there were clearly discussions about enhanced redundancy terms - but these ultimately proved unsuccessful. Given the absence of any contractual entitlement to such enhanced redundancy terms, the Tribunal did not consider the decision of the respondent could therefore be faulted.

However, central to the consultation process, and which was not resolved before the interviews commenced, was the clearly expressed objection by the claimants and their union representative to the decision by the respondent to select by use of interview. Indeed, it is clear, from the commencement of the consultation process, that the respondent had made its decision to proceed by that method, unless some other alternative method was proposed, which would result in obtaining persons for the new positions who had the necessary skills and abilities. In the Tribunal's view, this was not a situation where, at the outset, the respondent had a completely open mind how it wished to proceed. Equally, it was obvious, from the outset, that there were serious objections to the use of the interview method. This was confirmed at the meeting with Mr Nicholl on 8 November 2002, where Mr Nicholl clearly set out his objection to the interview method. However, he was not given an opportunity at that stage to expand on his objection. The Tribunal acknowledges that at the meeting on 12 November 2002 with the employees, Mr Byrd did indicate that, although interview was his preferred method, he was prepared to consider alternative suggestions put forward to him. Indeed, the Tribunal considered, as evidence of his willingness to do so, the fact that interviews which had originally been planned for 13 November 2002 were put back.

The Tribunal further recognises that there were meetings with the claimants on 13 and 14 November 2002 and opportunities were given by the respondent to suggest an alternative method. Indeed, it was apparent from the fourth claimant, at his meeting, that there was no consensus about such an alternative amongst the employees affected; albeit all the claimants were opposed to the use of an interview.

The Tribunal further accepts that during the course of the various meetings, there were discussions in relation to the requirements of the positions and the weightings. It was announced by Mr Byrd, and the union were so informed, that there were some, albeit limited, changes made to those requirements and the said weightings. However, the precise changes, which were made, were never clear to the Tribunal on the evidence before it. However, the Tribunal came to the conclusion that this was not of significance, in particular, in relation to the issue of consultation, in circumstances where it was satisfied that each of the said posts was necessary in the redundancy situation, that the requirements for each said post were properly tested by the questions, which were put during the course of the interviews for each post, and the questions themselves and the sample answers were not the subject of challenge by any of the claimants - albeit, for the reasons outlined previously, they had particular difficulties themselves in answering those questions, due to their lack of experience/familiarity with some of the requirements for each post.

However, following those meetings, Mr Byrd announced on 14 November 2002, the method of selection was to be by way of interview. But he also indicated the timetable for interviews on 18 and 19 November 2002. This was at a time, whenever it was known there was to be a meeting with Mr Nicholl on 19 November 2002 and there was also a clear recognition that the consultation period had not ended. The Tribunal accepts that, during the telephone conversation with the union representative on 15 November 2002, Mr Nicholl continued his objection to the use of interviews but noted, even at that stage, he did not provide any alternative method or suggestion nor could he think of one. It was also made clear to him that the consultation process of the employees was continuing. Mr Nicholl was not informed, during the course of this telephone call, that the employees had already been informed that interviews were to be held on 19 and 20 November 2002. All of this was in the context that a meeting, which was to be part of the consultation process, was to be held on 19 November 2002, when the interviews would already have commenced. Indeed, at a meeting on 18 November 2002 with the employees, Mr Byrd, when informing them of the inclusion of the criteria relating to attendance and disciplinary records, still said that it would consider another selection method, if the union came up with one. Given that, by the time of the arranged meeting of 19 November 2002, the interviews would have already commenced, the Tribunal was forced to conclude that, despite what Mr Byrd was saying and the agreement to meet the union on 19 November 2002, the consultation process was in fact over; and the interview method was to be proceeded with. Despite the foregoing, Mr Nicholl was not even informed by the respondent that the interviews would have commenced by the time of this meeting - albeit, it was satisfied, he in fact knew of this from information given to him by the claimants, which resulted in their written protests of the 18 November 2002 about the said interviews. As a result, the meeting on 19 November 2002 was not, in reality, anything to do with the selection method. Although Mr Nicholl still protested about the use of the interview method, the meeting was more to do with what improved terms, if any, that could be achieved for those who were to be made redundant following the said interviews.

In the Tribunal's view, the failure to properly conclude the consultation process, before commencing the interviews, was not a fair and proper way to conduct such a consultation.

.7 In the opinion of the Tribunal, the respondent having decided to use the interview method, could not be faulted. Given the circumstances with which it was faced and the necessity to ensure that those selected had the necessary skills to match the requirements, the respondent had done so using an objective basis - namely an interview which tested the desired skills and abilities required. Selection by assessment was not relevant, in the absence of a formal assessment system prior to these events. The system used had avoided subjective matters, such as 'soft skills'. As in any interview situation, the Tribunal recognised that there would be some who would be more successful than others; but that was not a reason, in the Tribunal's view, not to use such a method of selection in the circumstances. Given the necessity to ensure that the persons selected had the necessary skills, applying a criteria which merely related to length of service would not necessarily have achieved what was required. Indeed, the claimants, despite their length of service, were not able to demonstrate at interview, using the said objective tests, that they had the necessary skills required for the new positions.

Interviews are now a commonly used objective method used by employers for recruitment and selection. The fact that the claimants had not expected, but for the redundancy situation arising, to have had to become involved in a selection process was not, in the Tribunal's view, a reason for not using such a commonly used method.

Having proceeded by way of interview, the Tribunal were not satisfied, on the facts found by it, that it was conducted in any improper way by the respondent, whether by the questions set to test the skills needed or the manner in which each interview was conducted and the results obtained.

Above all, the Tribunal was very aware that it should not interfere if a reasonable employer could have adopted such a method and properly applied that method, so adopted. This the Tribunal accepts is what respondent did.

.8 The Tribunal was not prepared to accept, in the absence of any relevant and appropriate evidence by the respondent, that because Miss Shields had been found alternative employment in another company within the F O E Group there must have been similar enquiries made about the claimants. Indeed, having obtained such employment for Miss Shields in another company with the Group, the Tribunal considered this emphasised the necessity to ensure there was no such position in another company within the Group for any of the claimants. This was not something which could be assumed. The Tribunal considered that this could have been very easily and quickly done, for example, either orally or in writing, by contacts between personnel departments responsible for vacancies in the companies within the Group. In the absence of any evidence that anything was done, the Tribunal concluded that the respondent had failed to make any or sufficient efforts to ascertain whether there was any alternative employment available for the claimants before dismissing them for redundancy.

.9 The Tribunal noted that the interviews following which the claimants had been made redundant took place on 19 and 20 November 2002; but they were immediately informed on 21 November 2002 of their redundancy. There was no further evidence, upon which the Tribunal could rely, that at that time or indeed subsequently that the respondent properly considered or sought to obtain any alternative employment for any of the claimants. The Tribunal was satisfied, on the evidence, that in the circumstances which had led to the redundancy there was no alternative employment with the respondent itself for any of the claimants. The respondent was part of the F O E Group. There was no evidence that any attempt was made to see whether any suitable position could have been found for any or all of the claimants within any other company within the Group. The Tribunal noted, as set out above, that an alternative position was found for Miss Shields. How that came about was unclear; but it was apparently in Titanic Properties, another company in the Group. There was no evidence of any exercise, similar to that carried out which resulted in Miss Shields obtaining alternative employment, was carried out in relation to the claimants. Given the circumstances in which the claimants had come to be transferred to H&W, and its acknowledged continuing financial difficulty which had led to them reducing their work with the respondent, the Tribunal did not consider that it was likely that any permanent position could have been found, even if looked for, in H&W. There were clearly, as set out previously, no alternative positions in the respondent itself. Thus, the Tribunal concluded that the failure to ensure no such positions existed related to making enquiries of other companies within the Group, other than H&W. The case of Vokes Limited -v- Bear [1973] IRLR 363 suggested that a failure to make enquiries, where a company was part of a group, amongst other companies in the group, could make a dismissal unfair. However in subsequent cases (see further Harvey on Industrial Relations and Employment Law paragraph D1 paragraph 1721 – 1726) it would appear the scope of the decision in Vokes has been somewhat restricted. However much depends on the particular circumstances. But, given the position found for Miss Shields, the Tribunal found the failure to make similar efforts for the claimants was not a fair and proper way to conclude the redundancy exercise.

.10 The Tribunal concluded, as set out above, that the respondent had failed to properly consult with claimants and/or their union representative and further to carry out all necessary steps to see whether any alternative suitable employment could be obtained for them from any company in the F O E Group.

However, the Tribunal was satisfied that, despite the said failures that even if the consultation process had been properly carried out and/or the necessary enquiries had been made amongst the other companies in the Group that the result would have been the same; and, in particular, that the claimants' contracts of employment would have, in any event, been terminated by reason of redundancy.

The Tribunal fully accepts that the said consultation process was rushed and was not properly concluded before the consultation process had been concluded. Equally, the Tribunal is satisfied that the central remaining outstanding issue for any consultation process was the issue of the method of selection. No alternative was suggested at the time, despite encouragement to do so, by either the claimants or Mr Nicholl. Significantly, in the Tribunal's view, even during the course of this hearing, no alternative suggestion was given in evidence to the Tribunal. Selection by way of assessment and/or length of service were not, in the circumstances as found by the Tribunal, proper alternative methods of selection, which could have been used in this particular exercise. In light of the failure of the claimants and their union representative to provide any alternative suggestion of an alternative appropriate method of selection prior to the commencement of the interviews or in evidence to the Tribunal, the Tribunal is of the opinion that the method of selection would have continued to be by way of interview at the end of the consultation process; even if further time had been provided, as it should have been, for the consultation process to be fully concluded before the interviews commenced. The interview itself, having been fair, the Tribunal is therefore satisfied the claimants would still have been dismissed by redundancy.

Although the Tribunal accepts that attempts should have been made to ensure there were no suitable alternative positions in other companies within the F O E Group, the Tribunal is not satisfied, on the evidence before it, that such enquiries would have resulted in fact in any claimant being offered any such position. As set out previously, the Tribunal is satisfied that there were no alternative positions in the respondent itself or H&W. In particular, the Tribunal also noted that there was no evidence from the claimants that any such posts existed in any of the other companies in the Group or that there were any positions being sought by any company in the Group at the relevant time. The claimants were, as indicated previously, in employment for some period after the notification of their redundancy and would thus have been fully aware if any other company, within the Group, was seeking employees at that time.

.1 However, although the Tribunal concluded that a further period of consultation and the making of enquiries about alternative employment in other companies within the Group would not have resulted in any different result for the claimants, it nevertheless concluded that the dismissal of each of the claimants was unfair, by reason of these failures (see further Polkey -v- A E Dayton Services Limited [1988] ICR 142). In particular, it was of the view that, despite the urgency of the matter, a proper process of consultation and the making of the necessary enquiries about alternative employment would have resulted in an extension of the whole process by a period of some weeks. The Tribunal found it difficult to assess the precise period that would have been involved. It concluded, in the circumstances, that the appropriate period involved would have been 4 weeks.

.2 Although each of the claimants were given notice on 21 November 2002 that their employment would terminate at the end of the said period of notice, on 13 February 2003, the respondent extended the employment of the second, fourth and fifth claimant until on or about 31 March 2003 and the third claimant until in or about May 2003. The first claimant's employment terminated at the end of the notice period, namely 13 February 2003; and he did not obtain any alternative employment until in or about March 2004.

.1 The Tribunal having found that the claimants and each of them were unfairly dismissed it was then necessary for the Tribunal to consider what compensation, if any, was payable by the respondent to the claimants. Mr O'Loan, subject to issues of liability, did not dispute the calculation of loss, and how any such sum was calculated, put forward by the claimants. However, as each of the claimants was paid their statutory redundancy payment by the respondent, the basic award to which each claimant was entitled was therefore reduced to nil.

In relation to the compensatory award, the Tribunal was not satisfied there was any evidence to establish the claimants had failed to mitigate their loss, following the termination of their contracts of employment. The object of the compensatory award is to compensate employees for financial loss caused by their dismissal and not to punish employees for their wrong doing.

The over-riding aim of the compensatory award is to compensate an employee for financial loss caused by their dismissal to the extent that a Tribunal considers it "just and equitable" subject to the statutory maximum.

To this effect, Article 157 of the 1996 Order provides:-

"1. Subject to the provisions of this Article ….. the amount of the 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".

The Tribunal having concluded that the dismissal of the claimants and each of them would have taken place in any event, it was of the opinion that the compensatory award should be limited to the period of time, as set out above, by which the process would have been extended. (Mining Supplies (Longwall) Ltd) -v- Baker [1988] IRLR (417).

Having regard to the period of extension of 4 weeks, as found by the Tribunal, the claimants would therefore have been informed of their redundancy on or about 20 December 2002 and not 21 November 2002.

At that time each claimant would also have been informed, as occurred on 21 November 2002, of the requirement to work the relevant 12 week period of notice. The notice therefore would have expired not on 13 February 2003, but on or about 14 March 2003. The Tribunal, on the evidence before it, had no reason to believe that this requirement to work the full period of notice would have altered, whenever each redundancy was announced. The requirement to work the notice period was not conceded by the respondent during the consultations. Also all the claimants, other than the first claimant, were in fact asked to extend their period of employment beyond 13 February 2003.

Taking account of the period of notice to be worked by each claimant, the relevant period for compensation for loss of earnings was therefore the additional 4 week period from 14 February 2003 until on or about 14 March 2003. However, as indicated previously, the employment of the second, third fourth and fifth claimant was in fact extended throughout this period by the respondent. The Tribunal concluded therefore the second, third, fourth and fifth claimant did not sustain any loss of earnings during that period. The first claimant's employment was terminated at the end of the 12 week period of notice on 13 February 2003, as he had been informed on 21 November 2002. The Tribunal was therefore satisfied the first claimant had suffered loss of earnings in the said 4 week period from 14 February 2003 until 14 March 2003.

All the claimants made a claim for loss of statutory rights in the sum of £250.00. However, since the Tribunal considered dismissal would have occurred in any event, albeit, some weeks later, then no award is properly payable for such loss of statutory rights (see further Puglia -v- C. James & Sons Limited [1996] IRLR 70.

.1 The Tribunal therefore awards compensation to the first claimant as follows:-

(a) Basic Award - nil (having received a statutory redundancy payment of

£4,625.00).

(b) Compensatory Award -

(i) Loss of earnings from 14 February 2003 - 13 March 2003 at approximately £343.69 (net) per week - £1,374.76

Total monetary award -

(a) plus (b) - £1.374.76

Amount of prescribed element £1.374.76

Period of prescribed element:- 14 February 2003 -

14 March 2003

Excess of monetary award over the

prescribed element:- nil

This award to the first claimant is subject to the Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations (Northern Ireland) 1996.

.1 This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

.2 Your attention is drawn to the notice below which forms part of the decision of the tribunal.

Chairman:

Dates and place of hearing: 28 June 2005, 29 June 2005, 30 June 2005,

1 July 2005, 12 September 2005, 13 September 2005, 14 September 2005, 19 September 2005,

21September 2005, 23 September 2005,

28 September 2005, 30 September 2005, Belfast.

Date decision recorded in register and issued to parties:

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	Fair Employment Tribunal Northern Ireland Decisions
You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Magee & Ors v TI Solutions Ltd [2006] NIFET 207_03 (30 September 2005) URL: http://www.bailii.org/nie/cases/NIFET/2006/207_03.html Cite as: [2006] NIFET 207_3, [2006] NIFET 207_03