English v Coastal Container Line Ltd [2008] NIIT 01356

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THE INDUSTRIAL TRIBUNALS

CASE REFS: 01356/07, 01357/07,

01411/07

CLAIMANTS: Terry English

Derek Watson

Paul McConnell

RESPONDENT: Coastal Container Line Ltd

DECISION

The unanimous decision of the tribunal is that the claimants were not unfairly dismissed by the respondent and their claims are accordingly dismissed.

Appearances:

The claimants were represented by Mr Gillam, Solicitor of Donnelly & Kinder, Solicitors.

The respondent was represented by Mr Miller, Solicitor, of McRoberts Solicitors.

1. The claimants claimed that they were unfairly dismissed by the respondent following a redundancy situation. The respondent denied the claimants’ allegations in their entirety.

2. The issue before the tribunal was whether the claimants had been unfairly dismissed by the respondent.

3. The tribunal heard evidence from Eamon O’Sullivan, the respondent’s Director of Irish Ports, John Rafferty, General Manager for the respondent, and from John Forrester, the respondent’s Managing Director. The respondent’s final witness was Elizabeth Rae a Human Resources Manager. The tribunal also heard evidence from David McMurray, Regional Officer of the Transport and General Workers’ Union (“T&G”) and from the claimants. The tribunal received a signed witness statement from Hamilton Moore, Shop Steward with T&G subject to the appropriate weight to be attached to it. In addition the tribunal was furnished with extensive documentation and took into account only the documentation and correspondence referred to in evidence.

4. Having considered the evidence insofar as same related to the issue before it, the tribunal made the following findings of fact on the balance of probabilities:-

(i) Mr English and Mr McConnell were employed by the respondent from November 2004. Mr Watson had been employed since 1987. All of the claimants were port operatives and the effective date of termination of their employment was 30 March 2007.

(ii) Mr Sullivan forwarded a notice to all staff dated 16 October 2006 indicating that one of the respondent’s major customers would leave the facility in Belfast at the end of that week and relocate to their own facility within the Port, thus resulting in a loss of 20% of the respondent’s total business. The notice further pointed out that the respondent company had decided to carry out a comprehensive review of the business over the following two weeks and that following the review there would be consultation with the staff and their trade union as there would be a requirement for some re-structuring to take place within the company. This led to an exchange of correspondence between the union and the respondent. Mr McMurray was notified by Mr Sullivan in further correspondence of 15 December that the respondent had “lost in excess of 30% of the throughputs of VT3 as a direct result of another terminal opening within the Port of Belfast”. The tribunal examined the evidence before it in relation to the meetings and correspondence passing between the respondent and the trade union representative Mr McMurray together with notes of meetings. The respondent proposed a revised shift pattern in an effort to avoid redundancies. However, this proposal was rejected by staff at a meeting held on 18 January 2007. Following this rejection the respondent subsequently identified criteria for selection within a pool comprising 42 port operatives. Individual names were not attached to the criteria at that time. The tribunal accepts that the respondent sought assistance from Elizabeth Rea after 18 January 2007 and she provided advice to Mr Sullivan and Mr Beaumont in relation to the redundancy process. She was based in Glasgow and had become Clyde Port’s Human Resources Manager in 2006. She also gave advice relating to the respondent asking for volunteers and the compilation of a matrix with criteria involving skills, attendance, and disciplinary records. Elizabeth Rae was also involved in advice relating to timetables for consultation.

(iii) 3 shunt drivers were included in the initial number of staff who voted against the proposed shift pattern on 18 January 2007. The tribunal accepts that the shunt drivers were included in that vote as they were likely to be affected by the proposals regarding the new shift system. The tribunal further accepts the respondent’s evidence that they were properly not included in the selection pool for redundancy as the respondent still required shunt drivers. Furthermore, shunt drivers were employed to perform only one of the six skills set out in the matrix and earned £150 per week less than port operatives.

(iv) One of the criteria in the proposed matrix involved absence. After consideration of this criteria with Mr Sullivan and Mr Rafferty it was agreed with Elizabeth Rae that there should be a two year cut off period. T&G requested that occasions of absence and not days of absence should be included under this criterion and this was agreed by the respondent. The tribunal further accepts that if the respondent had worked on a pro rata basis in relation to employees who had less than two years service, the claimants’ contracts would still have been terminated and their matrix scores would not have changed.

(v) A meeting was held between the respondent and T&G on 29 January 2007. The tribunal was referred to brief notes of that meeting prepared by Mr McMurray and the more extensive note prepared by Mr Beaumont on behalf of the respondent. This meeting afforded T&G an opportunity of commenting on the proposed selection criteria. Mr McMurray questioned the subjective nature of the criterion relating to skills. It was at this meeting that the agreement was reached for occasions of absence rather than days of absence to be used relating to the criterion of absence. The use of disciplinary records for relevant employees did not seem to be an issue. The tribunal carefully considered the correspondence forwarded by Mr Beaumont to Mr McMurray dated 5 February and Mr McMurray’s response of 6 February 2007. The tribunal found Mr McMurray to be an unconvincing witness and in areas of conflict of evidence, prefers the respondent’s evidence, both documentary and oral. The text of the correspondence forwarded by Mr Beaumont to Mr McMurray dated 5 February 2007 reads as follows:-

“I’m writing to confirm the points as discussed in our meeting of 29 January 2007 at our offices in Belfast, when we consulted with you on the following:-

• The criterion for implementation of the 10 or so redundancies brought about through a substantial loss of approximately 28% of our business.

• To inform you that the terms of the redundancies would be based on the statutory redundancy pay package.

• To confirm that an objective skills matrix would be used for the selection of those at risk of redundancy.

Your colleagues Alan Harris and George Townsley, together with yourself, showed concern that the draft matrix we proposed was too subjective. However, you indicated that a more detailed and job specific matrix would be preferable (subject to some minor changes on point scoring and detail). If this is the case, we will use this type of matrix following some minor changes, to make our selection.

You stated that you expected similar redundancy payments to those which were paid to Peel employees in Manchester who were made redundant. Please be advised that Coastal is a stand-alone company and has specific terms and conditions which are applicable to its business. The terms and conditions of other Peel companies are not automatically applicable to Coastal employees.

I am somewhat disappointed that you made the following statement: “Should we consider statutory redundancy pay only, then your selected members would be marched down to our Union solicitors to commence Employment Tribunal Proceedings”. This is neither helpful nor conducive to reaching an agreement.

Your request that we consider paying 3.5 times over the statutory terms, or 2 weeks pay with each year of service would be difficult to justify and would be at odds with the trading conditions in which we find ourselves.

I am sure you will agree that it is imperative that we work together at this difficult time, in order to safeguard the future of the remainder of the staff at Coastal in Belfast”.

(vi) Mr Beaumont further wrote to Mr McMurray on 2 March 2007 referring to the recent loss of business and the possibility that 10 positions within the company may have to be considered for redundancy. He proposed a meeting with Mr McMurray and also referred to the fact that the company was prepared to consider requests for voluntary redundancy with a view to avoiding the possibility of compulsory redundancies. Mr Beaumont also points out in that letter that:-

“However, if the company does not receive sufficient volunteers and does require to reduce employee numbers by way of compulsory redundancies, it is likely that employees in the affected areas will be selected using a matrix focusing on criteria such as sickness absence, disciplinary record and relevant skills.

Any employee, with at least two years continuous service, who volunteers for redundancy will, if accepted, be entitled to two weeks basic pay for every completed year of service up to a maximum of 20 years”.

The tribunal carefully considered the sequence of correspondence beginning with a circular sent by Mr Beaumont to affected employees, the subsequent correspondence inviting the claimants to individual consultation meetings, and the documentation relating to such meetings.

(vii) The tribunal also carefully considered the matrix created on 12 March 2007 entitled “Selection Matrix 2 Revised half points”. This matrix shows the scoring for a number of employees including the claimants under the headings of skills, attendance, and disciplinary. In examining the matrix the tribunal took fully into account the evidence given by the claimants regarding the fairness of the matrix in relation to the criteria of skills and absence and their application and, separately, in relation to training (insofar as these issues were relevant to each of them). The tribunal carefully examined the evidence regarding their appeals against redundancy held on 8 May 2007 and the outcome letters furnished to the claimants. The tribunal is satisfied that there was movement in the numbers of people seeking voluntary redundancy prior to 30 March 2007.

(viii) The tribunal is further satisfied, (and the respondent did not deny), that training of port operatives on the various items of machinery was not proportionate to the dates when they commenced employment. However, in circumstances where the respondent would be operating with a reduced workforce requiring reorganisation, the tribunal accepts that ongoing training was necessary after the declaration of redundancies.

(x) The claimants did not raise any issue before the tribunal relating to suitable alternative employment.

5. The tribunal received considerable assistance from the helpful written submissions furnished by Mr Gillam and Mr Miller which are attached to this decision. Both legal representatives made further oral submissions to the tribunal.

6. The statutory basis for the claims before the tribunal is found in Articles 126 – 130 of the Employment Rights (Northern Ireland) Order 1996, the relevant provisions of which are referred to on the first page of the respondent’s written submissions. The tribunal also took into account the authorities referred to by both parties.

(i) At paragraph 19 of his judgement in the Employment Appeal Tribunal case of Williams & Others -v- Compair Maxam Ltd [1982] IRLR 83 (“Compair Maxam”) Mr Justice Browne-Wilkinson states as follows:-

“In law therefore the question we have to decide is whether a reasonable tribunal could have reached the conclusion that the dismissal of the applicants in this case lay within the range of conduct which a reasonable employer could have adopted. … there is a generally accepted view in industrial relations that, in cases where the 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 result can be achieved fairly and with as little hardship to the employees as possible. In particular, the employer will seek to agree with the union the criteria to be applied in selecting the employees to be made redundant. When a selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria.

3. Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency at the job, experience, or length of service.

4. The employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider any representations the union may make as to such selection.

5. The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment.

The lay members stress that not all these factors are present in every case since circumstances may prevent one or more of them being given effect to. But the lay members would expect these principles to be departed from only where some good reason is shown to justify such departure. The basic approach is that, in the unfortunate circumstances that necessarily attend redundancies, as much as is reasonably possible should be done to mitigate the impact on the workforce and to satisfy them that the selection has been made fairly and not on the basis of personal whim”.

(ii) In the case of BL Cars -v- Lewis [1983] IRLR 58, Mr Justice Browne-Wilkinson states at paragraph 12 of his judgement:-

“It also seems to us that it is possible that the majority were not correctly directing themselves to their function. The passage which we have read indicates that they may have thought that it was the function of the tribunal to decide whether they (the tribunal) thought that the correct selection had been made, in the sense of being a selection that they would have made. The correct question they had to ask themselves was whether the selection was one that a reasonable employer, acting reasonably, could have made”.

(iii) In relation to using absence as a criterion for redundancy Lord McDonald at page 80C of his judgement in the case of Dooley -v- Leyland Vehicles Ltd [1987] SLT 76, states as follows:-

“The method of selection refers to absence, and is silent as to the reason for or cause of any absence. That that should be so, it is quite intelligible. The reason for or cause of any particular absence may not be clear, and, if it is disputed, some inquiry would be necessary to determine what the reason for or cause of the absence was. In the context of selecting for redundancy, such an inquiry would not be practical”.

(iv) At paragraph 15 of his judgement in the case of Drake International Systems Ltd [T/A Drake Ports Distribution Services] -v- Colin O’Hare. EAT/0384/03/TM EAT/0577/03/TM Judge Ansell states, in relation to the tribunal’s function in such cases, as follows:-

“We are left in no doubt that the Tribunal were in error in this case in seeking to impose their own views as to the reasonableness either of the criteria or the implementation of those criteria, as opposed to asking the correct question which was whether the selection was one that a reasonable employer acting reasonably could have made”.

(v) Judge D Serota at paragraph 27 of his judgement in the case of Mrs J K Bansi -v- Alfa Flight Services UKEAT/0652/03/MAA states:-

“… However it is for the employer to select the appropriate skills it wished to retain”.

(vi) The tribunal also considered the guidance given by Glidewell LJ in the case of R -v- British Coal Corporation and Secretary of State for Trade and Industry, ex p Price [1994] IRLR 72. At paragraph 24 of his judgement he states:-

“It is axiomatic that the process of consultation is not one in which the consultor is obliged to adopt any or all of the views expressed by the person or body whom he is consulting. I would respectfully adopt the tests proposed by Hodgson J in R -v- Gwent County Council ex parte Bryant, reported, as far as I know, only at [1988] Crown Office Digest p 19, when he said:

(d) conscientious consideration by an authority of the response to consultation”.

(vii) The tribunal also obtained useful guidance from Judge Peter Clark’s judgement in the case of Langston -v- Cranfield University [1988] IRLR 172 at paragraph 33ff:-

“(4) Where an applicant complaints of unfair dismissal by reason of redundancy we think that it is implicit in that claim, absent agreement to the contrary between the parties, that the unfairness incorporates unfair selection, lack of consultation and failure to seek alternative employment on the part of the employer.

(5) Because there is now no onus on either party to establish the reasonableness or unreasonableness of the dismissal under s.98(4) it is for the industrial tribunal to determine that question ‘neutrally’.

(6) In these circumstances we think it is incumbent on the industrial tribunal to consider each of the three questions mentioned in (4) above, in the say way that an industrial tribunal will consider the threefold Burchell test in an appropriate conduct case. It is desirable that at the outset of the hearing the live issues are identified by the industrial tribunal.

(7) Normally, an employer can be expected to lead some evidence as to the steps which he took to select the employee for redundancy, to consult him and/or his trade union and to seek alternative employment for him.

(8) We would normally expect the industrial tribunal to refer to these three issues on the facts of the particular case in explaining his reasons for concluding that the employer acted reasonably or unreasonably in dismissing the employee by reason of redundancy.

In setting out these propositions we are not seeking to replace the statutory test under s.98(4) but to ensure it practical application in redundancy cases”.

7. The tribunal, having carefully considered the evidence together with the submissions from both parties and having applied the principles of law to the facts as found concludes as follows:-

The tribunal has sympathy with the claimants in the circumstances in which they found themselves but is unable to uphold their claims which are therefore dismissed.

Date and place of hearing: 6- 8 August 2008, 24 – 26 November 2008, Belfast

OFFICE OF THE INDUSTRIAL TRIBUNALS & THE FAIR EMPLOYMENT TRIBUNAL (BELFAST)

The Respondent’s position as set out in Forms 1T3 at Documents 3, 5 and 7 of the Joint Inventory of
Productions is that the Claimants’ employment with the Respondent was terminated as a result of
redundancy, a potentially fair reason for dismissal (cf s 1 30(2)(c) of the Employment Rights (Northern
Ireland) Order 1996.)

The right not to be unfairly dismissed is set out in Part Xl, Chapter 1 of the Employment Rights (Northern Ireland) Order 1996, which states at Section 126(1) “An employee has the right not to be unfairly dismissed by his employer”.

In terms of Section 130(1) of the 1996 Order, in determining whether the dismissal of an employee is fair or unfair, the employer must show (a) the reason for the dismissal (in this case, redundancy) and (b) that it is a reason falling within Section 130(2) of the 1998 Order. As indicated, redundancy does fall within paragraph 2 of Section 130 of the 1996 Order.

In terms of Section 130(4) of the 1996 Order, the question of whether the dismissal is fair or unfair (having regard to the reasons shown by the employer (the Employment Tribunal when determining
fairness) will (a) depend on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) this shall be determined in accordance with equity and the substantial merits of the case.

The Claimants have all made a claim for compensation and (in the case of Watson) reinstatement. In terms of Section 146(4) of the 1996 Order a Tribunal is entitled to make an award of compensation for unfair dismissal (subject to the cap of £63,000 in accordance with the Schedule to the Employment
Rights (Increase of Limits) Order (Northern Ireland) 2008). In terms of Section 148 of the 1996 Order the Tribunal may make an Order for reinstatement.

When considering these dismissals in terms of Section 130(4) the tribunal, it is respectfully suggested, will benefit from certain appellate judgments. From the cases cited by the Respondent .the following
principles emerge:
• There are five principles which a reasonable employer will be expected to follow: Compair.
Maxam Ltd @ para 19. These are “standards of behaviour’ not principles of law (para 35).
• When assessing selection the tribunal should ask: “whether the selection was one that a
reasonable employer, acting reasonably, could have made”. BL Cars @ para 12 as cited in

Drake International @ para 10.
• When absence is used as a criterion it is “understandable” that the employer does not consider neither the cause nor reason for it: Dooley @ 80C as cited in Drake International @ para 11, See also view of dissenting Chairman quoted in Drake @ 8.
• A tribunal which by a majority (Chairman dissenting) decided that an employer had acted unreasonably by rejecting an employee request that industrial injuries be ignored was overturned: Drake International @ paras 6 & 15
• See also Bansi @27 (use and choice of skills) and 33 + 34 (use of attendance)

The LRA guidelines of October 2007 post-date these dismissals and no management witnesses should ‘be criticised for not having read them.

The Claimants do not dispute that a redundancy situation existed, nor that it was appropriate and admirable for the company to respond initially by considering a new shift pattern so as to maintain full employment. The Respondent gave as much warning as possible’ of the
impending redundancies. (cf principle 1 in CompairMaxam Lid). See letter 15 (15/12/06).

The company is criticised for one failing in 2006 however: both Eamon Sullivan (ES) and John Rafferty (JR) were asked why the company continued to recruit operatives when it had known since late 2005 of the likely consequences of the second terminal opening at Belfast Harbour. ES and JR responded convincingly that it was not until one week before the announcement by ICG that CCL knew that it was to lose both lines (UCON and Euro Feeders). Previously, the business had been expressly told by ICG that one of these lines would be left with the company. That would still have lead to a downturn in business but it was a downturn which the company thought it could cope with. JR was strong in rebutting this line of questioning. He said: You can’t take a view in June that in November you might lose [business], and cut a shift and end up with no customers. You have to resource it [the business].”

At some point between 19 and 29 January 2007 management representatives identified criteria for selection amongst the pool of Port operatives, but did not analyse individuals
against those criteria at that time.

So long as this was done on a provisional basis only (as it was) then this exercise is appropriate. It is accepted that neither ES nor JR could say precisely when the discussions took place but it has been possible, nonetheless, to identify what the provisional criteria looked like going into the meeting of 29 January 2007: the Respondent proposed to use a. combination of attendance, skills and disciplinary records. It is suggested that it was for the Respondent to decide what to propose and that, the categories chosen were the product of careful consideration of the business needs going forward.

In the scheme of things, this was an important meeting for the company as it undoubtedly presented an opportunity for the recognised trade union (full time official and shop stewards) to comment on the proposed, selection criteria, an opportunity which they took.

It should be remembered that the company did not ‘require agreement from the trade union about the selection criteria proposed (cf principle 3 Compair Maxam Ltd). It will be sufficient it there was proper consultation about those criteria (cf principle 2 Compair Maxam Ltd).
At the meeting there was proper consideration of those criteria.
For example, it is clear that Davy McMurray (DM) the full time official had the opportunity to

respond to the company’s decision to use skills as one of the criteria. His objection (that the category was too “subjective”) is hard to understand. He does not appear to have had any further objection to the use of the skills category.

In cross-examination, DMcM explained that he used the word ‘subjective’ not as an objection to skills being used as a criterion, but rather to reflect his own concerns that it might be difficult to ascertain which employees could work which piece of machinery, a point considered below (section 11).

His comment when told that absences would be considered in a two year period was that the company should use occasions of absence rather than days of absence a point which was accepted by the company.

There was no union objection to the proposal to consider the respective disciplinary records of the affected employees.

Accordingly, the Respondent submits that it gave the trade union opportunity to comment on the proposed criteria and responded accordingly.

JR was asked if the company had ever tried to agree the final matrix and he replied “no”.

He was then asked if that had been because he did not think there would be an agreement. He replied: “I don’t believe there was such a difference. Only one item was raised [re absences] and we accommodated that”.

There is correspondence led by Duncan Beaumont after the meeting on 29th January 2007 which stands as evidence of further deliberations with the Trade Union. ES and JR both spoke of ad hoc meetings with the stewards in the period leading up the individual consultation meetings in March.

Further, JR explained how his job allowed him to carry out individual consultation on an informal basis: “At local level on my walks it was a like a question and answer session with individuals”.

In addition, DMcM expected his stewards to brief the members about the collective discussions. From the evidence of the Claimants it seems that that briefing may not have taken place, a failing for which the Respondent cannot be responsible.

The relevant pool was port operatives only, a group composed of 42 employees which excluded the 3 employees employed full time as shunt drivers (paid approximately £180 gross per week less).

JR was involved in the decision and he explained it by referring to the fact that the shunt drivers had “A single duty. It was a different category. Different pay rates.” LR emphasised the unfairness which would have followed had the shunt drivers been included in the pool: para 7 of her witness statement. It is pretty obvious that had the shunt drivers been included then they would have either totally failed the skills assessment (the maximum they would have scored is 2 out of 15) or succeeded on the basis that their score of 2 out of 2 was equivalent to a port operative’s score of 15 out of 15. the point is further emphasised by their different contracts and different rates of pay.

The Claimants suggest, in the alternative, that the shunt drivers should have been bumped out to accommodate them (that is ‘bump out’ lower grade employee to accommodate re-deployed higher grade employee). It is doubtful that this argument was advanced pre-dismissal with the same force as has been the case before the tribunal. In any event, there is no legal obligation to use bumping to address a redundancy situation.

In re-examination, ES confirmed that the Trade Union was aware that the shunt drivers were not being included in the pool for selection. They did not complain about that at the time.

The company can take credit from the fact it was prepared to deal with the situation by inviting volunteers for redundancy.

As LR.clarified (paras 13 + 16 of her witness statement) there was movement in the numbers seeking voluntary redundancy right up until the Claimants were dismissed.

Both ES and JR referred to the uncertainty involving volunteers as being one of the reasons why they were not able to mastermind those who would ultimately be selected for dismissal by reason of redundancy as has been alleged.

The company cannot deny that the progress of Port Operatives’ training on the various machines did not occur directly in proportion to the commencement date of their employment.

There are many reasons why that is the case. Relevant to this case are the facts that Watson did not apply to be trained on the Gantry Crane; English and McConnell had fewer opportunities for training on the weekend nightshift; some operatives e.g. Begley who started after the Claimants arrived with experience (FLT); some individuals took to the machines quicker than others; some individuals volunteered for training in their own time. Further, English accepted during his appeal that he had been negligent in not putting himself forward for training.

The Claimants argue that, as soon as it was determined that skills should be part of the selection criteria, all training should have ceased altogether until the selection had taken place.

As best can be assessed on the state of the evidence that would have meant stopping training around 29 January 2007 and resuming approximately 2 months later. There are a number of reasons why that would not have been viable.

ES made the point that, in this period, “Training was more critical because the company was moving to a lesser workforce”.

Similarly, JR stated “we would have to re-organise the labour left in the wake of the redundancies, consider the ability of individuals within that wake, look at where we could lose people, the training needs of those people and move it forward”. Both witnesses accepted it would have been unfair on individuals who were due to be trained during that two month period simply to freeze that training in order to create an artificial level of fairness.

With respect to the Claimants, it would seem a remarkable conclusion were the tribunal to accept that such an essential part of the Ports Operation (training) should simply have been suspended because of the health and safety implications, because of the need to maintain a level of service and because of the requirement to have a versatile, trained, smaller workforce from April onwards.

As part of their challenge the Claimants rely on the document produced at 64 which was prepared by Michael Shields prior to the appeals being heard.

Both ES and JR have made it clear that the document should not be interpreted as recording employees being trained for the first time on the various pieces of machinery being described there. There are obvious examples of re-assessments.

Towards the end of the cross-examination of JR there was a half-hearted attempt to suggest that he personally was activated by a grudge.

For example it was suggested to him that Watson will say in evidence that he had “minor run ins” with JR. JR’s response was convincing. He has no specific recollection Of having minor run-ins with Watson but ‘he would have minor run-ins on a regular basis with many people’ which is not surprising in that environment. It was also suggested that after the decision was taken to move McConnell and English from the weekend nightshift that JR “perceived them as being spare”. JR responded “in that case why did I move them to the dayshift in 2006?”

When it was suggested that the company had failed in its attempt to fully staff the weekend nightshift JR did not deny than and in fact in a point he made to emphasise the Jack of skilled applicants he said: ‘What’s the point of taking on 10 untrained men?”

Further, JR seemed genuinely surprised to be told that English had fork-lift experience prior to joining the company. It was even suggested that because JR knew his father he should have known that English had that experience! JR dealt with that and also said that “At his interview he didn’t offer any evidence of fork-lift truck experience. He didn’t mention it”.

It appears that Watson is going to say in evidence that he did seek training on the Gantry Crane a point dealt with by JR summarily: “Certainly not”.

It is suggested that the individual consultation meetings (on 15, 21 and 29 March 2007) followed best practice and went beyond the minimum necessary to be fair. The Claimants were properly briefed and represented and had ample opportunity to raise issues.

As has been identified above, DMcM’s concern about the use of skills as a criterion was that the evidence may be inconclusive. In fact, it was not. Working with his training manager Michael Shields, JR was.able to complete the skills matrix 28 without difficulty. Its accuracy
has not been challenged.

The Claimants’ challenge is that they were denied the opportunity to obtain more skills, no that their skills were over-looked. DMcM had only been concerned about the latter issue.

To varying degrees, all the Claimants invite this tribunal to carry out the very exercise which the appellate courts have warned is not the function of tribunals: to substitute your decision for that of the employer.

They also criticise the employer for not looking behind the objective criteria (attendance and skills) which it chose. The reasoning in Dooley and Bansi suffices to rebut that criticism re attendance and, by analogy, skills. Consider PM’s evidence about his difficulties during Gantry crane training.

Even if it is right for the tribunal to adjudicate on this, the evidence base is not there. The closest that anyone came to advancing a challenge was DW but in doing so he found himself directly in conflict with the meeting note 48. It is notable that neither JF nor DMcM were asked about the supposed inaccuracies identified by DW.

In these cases it is suggested that neither the law nor thd facts are particularly complex.
In fact the legal approach was summed up by A during cross-examination. When he was asked (in relation to the use of absences as a tie-break) “you thought that was fair?”, he responded “It certainly wasn’t unfair”.
The Respondent has acknowledged that with hindsight it ought to have pro-rated its absence

statistics to avoid short servers being unfairly advantaged. By re-assessing the figures (of Doc 62) it hopes to have persuaded the tribunal that there would have been no difference in the final outcome as far as the Claimants are concerned.

If a compensatory award is made it is suggested that it should be subjected to a reduction to reflect the possibility that the Claimants might have been dismissed even had a different approach been used.

As a general point, the Respondent respectfully submits that the lapse of time since the dismissals and the worsening economic conditions for the Respondent make an award for future loss inappropriate.
The present (Nov 08) round of redundancies could result in six compulsory redundancies and so it is suggested that reinstatement is not practicable.

1. The Claimants in this matter were employed by the Respondent company for a number of years. In the case of Mr Watson, over 20 and Messrs English & McConnell for just over two.

2. Despite the five days of evidence, their claim is a straightforward one,, that being that they were unfairly dismissed contrary to Article.130 of the Employment Rights (NI) Order. There is no case pled that either this dismissal was unfair on automatic grounds nor is the case being made that a redundancy situation did not exist

4. Employees are protected against unfair dismissal by the Employment Rights (NI) Order
1996. This includes protection against unfair selection for redundancy. In a nutshell what is
required is warning and consultation, fair selection criteria, properly applied and a
consideration of alternative employment.

5. If I may deal with the last point first no case is being advanced in respect of alternative employment.

6. To narrow the issues for determination, albeit at this late stage, I would submit that the matters for determination by the Tribunal are as follows:

A. Was the consultation sufficient?
B. Was the correct pool identified?
C. Were the selection criteria fair?
D. And were said criteria properly applied?

7. The case of Williams v Compair Maxim is accepted as being the benchmark case in this area and within it the EAT set out the standards which should guide Tribunals in determining whether a dismissal is unfair under Article 130. The position is succinctly summarised in the in Harvey at para 1666.02

In Williams v Compair Maxam Ltd [19821 IRLR 83, the EAT set outthe standards which should guide tribunals in determining whether a dismissal for redundancy is fair under s 98(4). Browne-Wilkinson 3, giving judgment for the tribunal, expressed the position as follows:
‘…there is a generally accepted view in industrial relations that, in cases where the 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 result can be achieved fairly and with as little hardship to the employees as possible. In particular, the employer will seek to agree with the union the criteria to be applied in selecting the employees to be made redundant. When a selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria.

3 Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency at the job, experience, or length of service.

4 The employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider any representations the union may make as to such selection.

5 The employer will seek to see whether Instead of dismissing an employee he could offer him alternative employment.

The lay members stress that not all these factors are present in every case since circumstances may prevent one or more of them being given effect to. But the lay members would expect these principles to be departed from only where some good reason is shown to justify such departure. The basic approach is that, in the unfortunate circumstances that necessarily attend redundancies, as much as is reasonably possible should be done to mitigate the impact on the work force and to satisfy them that the selection has been made fairly and not on the basis of personal whim’.

The Chairman correctly referred the parties to the case of Langston v Cranfield University - concern

In respect of consultation we would contend the following evidence to be crucial:

I would stress that in light of your inability to meet with this union to discuss such matters with regards to redundancies i.e. mitigating the number of redundancies, the method of selection and the value of the redundancy payment……

That the company could not have been under any impression, even erroneously gained, that any agreement had been reached.

I,
It is submitted that the conduct of the respondent company in this regard falls way short of the standard envisaged. In Williams the crucial sentence is that:

It is submitted hat the following guidance given by Glidewell U in the case of R v British
Coal Corpn and Secretary of State for Trade and Industry, ex p Price [1994] IRLR 72,
provides guidance in this regard at para 24:

24. It is axiomatic that the process of consultation is not one in which the consultor is obliged to adopt any or all of the views expressed by the person or body whom he is consulting. I would respectfully adopt the tests proposed by Hodgson J in R v Gwent County Council ex parte Bryant, reported, as far as I know, only at [1988] Crown Office Digest p 19, when he said:

It is accepted that a meeting was held at a formative stage of the companies proposals and that evidence given to the Tribunal was that this was the system that the company put to the Union on the 29 January. However, with the exception of a couple of minor changes, the Trade Unions overriding objection to the use of skills as defined in the criteria was not acted upon. We have no evidence of any description, either written or through witnesses that the company sat down and even had a further discussion and looked at the Union’s concerns. Indeed the lack of documentation in respect of the actions of the employer generally in this matter is astounding.

The above guidance was quoted with approval, in the context of stipulating what was
involved in consulting a trade union, by the Inner House of the Court of Session in King v
Eaton Ltd 119961 IRLR 199.

In this case the original Tribunal held that there had been a number of meetings with the Trade Union. Notes of these meetings showed that no discussion had taken place in respect of the selection criteria and the submission made on behalf of the Respondents was that no specific objection had been made. This was accepted and still the Court of Session in Edinburgh were satisfied that there was no proper consultation with the Trade Unions stating in their decision at para 26,

There were a number of meetings with the unions, but there is no justification for the conclusion that there was extensive consultation with the unions regarding the selection for compulsory redundancies being by the assessment method. –

In respect of the -individual consultation that took place, the evidence given by both the Claimants and Respondent would suggest that these meeting were no more than an exercise in allowing the Claimant’s to raise their complaints. If I may draw the Tribunal’s attention to one example Which seems to go some way to evidencing their attitude towards same.

Ms Rae in her evidence candidly admitted that with hindsight we should have pro-rated in relation to the employees who hold less than two years service. I will refrain from commenting on the table produced during the course of proceedings, for now, save for the fact that this was not produced or undertaken at the time. I would submit that if the Respondent had actually being applying ‘conscientious consideration’ as it is described to the points raised by the Claimants, an exercise of this nature would have been conducted at the time and put to the Claimants in any one of their meetings in an attempt to satisfy their concerns

An employer is required by law to include all persons in a redundancy pool that the reasonable employer who has genuinely applied his mind to the matter would have included. A Tribunal can interfere with the selection of the selection criteria including the choice of pool if no reasonable employer would have adopted such a criteria.

• The Claimants have given evidence that they regularly undertook the role of shunt driver
• The Respondent has averred in the pleadings that the selection was on the basis of skills held at a particular date — paragraph 12 of the 1T3 - ‘to be objective and fair the matrix only recorded actual skills possessed and did not analyse the various reasons why some possess skills and others do not’
• It is accepted that the shunters were employed to do a specific role and their contract
- states thus
• It was stated in evidence that the position of Mr Newell a former manager may have had a bearing on the decision to exclude the shunt drivers from the prOcess
• Mr McMurray gave evidence that the Union certainly did not agree the removal of the shunters and specifically objected to same when they became aware as did the individual claimants during their meetings
• The original documentation, compiled for the purposes of this redundancy exercise in respect of the skills held included the shunters in the pool
• It is not disputed that any one of the Claimants could have undertaken this role

It is submitted that it is settled law that an employer may need to transfer an employee whose job has become redundant to an existing job already held by another employee in order to behave fairly towards all employees. This is a process referred to as bumping.

A crucial preliminary problem in relation to redundancy selection is to choose the group of employees from which the selection must be made. As the EAT decision of Cowen v Haden Carrier Ltd [1982/ IRLR 225, indicates, this group will not simply be those who are actually doing the work which has been reduced by the employer. If these employees can be required under their contracts to do other world and such work is available, they will not even be redundant at all. More importantly for the purposes of redundancy selection, even c/no such other work is available, so that there are in law redundancies, ie a diminution in the requirements of the business for employees to do the work they can be contractually required to do, it does not follow that the workers directly affected, should be dismissed They might be able to claim that they should not be selected ahead of other workers whose jobs they are capable of doing and could indeed be contractually required to do

The pool from which the selection will be made is for the employer to determine, and will be difficult for the employee to challenge where the employer has genuinely applied his mind to the problem. It need not, however, be limited to employees doing the same or similar work; indeed, where Jobs are interchangeable an employer might be expected to widen the pool to include all the jobs that might potentially be done.

I would submit that this was a situation where clearly the facts merited consideration and thereafter inclusion of the shunt drivers within the pool of those candidates to be selected for redundancy.

There was a general downturn in work. There was no specific reduction in work attributable tc the port operatives as compared to the shunt drivers and the only reasons advanced by the respondent was that there was continuing need for this to be done and it would have been unfair on them as they possessed less skills. There was no continuing need for any of the individuals shunt drivers as was evidenced by the offer of voluntary redundancy to any of the shunt drivers who sought same and the need could have been supplied from within the labour pool of port operatives. This was a classic case of where bumping should have been applied and I would submit not do so does not accord with the actions of a reasonable employer. Under cross examination, Mrs Rae responded that it was not a legal requirement to do so. I would submit that this understanding of the situation, whilst technically correct, certainly does not release the Respondent from the obligations imposed upon a reasonable employer

The criteria in this matter were three-fold, skills attendance and disciplinary. For the avoidance of doubt no issue is taken on behalf of the claimants as to the inclusion of disciplinary.

The general principle in this regard is well established and it is accepted that tribunals cannot substitute their own principles of selection for those of the employer. They can interfere only if the criteria adopted are such that no reasonable employer could have adopted them or applied them in the way in which the employer did

At first glance the headings of skills and absence may seem perfectly reasonable criteria however I would submit both have not only been applied unfairly in this case but were intrinsically unfair in themselves.

(1) If I may turn to skills first and invite the Tribunal to consider the following:

• It is still not clear what skills actually refers to, Mr Sullivan in his evidence during was specifically asked if the skills element was based on formal qualifications and he replied yes; He further stated, even once I had referred him to the ERA document which states, inter alia,

Formal qualifications and advanced skill should be considered, but not on their own

Whereas Mr Rafferty provided a completely different perspective on the situation when I asked him if certificates were sufficient to get what became known throughout our proceedings as a Y —he answered No.

I would submit that the Tribunal has little option but to conclude from the evidence and
Ms Rae confirmed in her evidence that that no agreed method of deciding skill was set
down.
• The Claimant’s gave evidence, Mr Watson in respect of his twenty years experience with the Respondent and Mr English and Mr McConnell in respect of their previous docks experience of many years, of having driven machinery within the docks.
• No documentary evidence or indeed testimony was given in respect of any appraisal system in operation
• No evidence was led from the companies training manager

It is submitted that the choice of skills may, prima fade, seem meritorious and indeed is accepted, in principle, by the LRA in its Code or Practice as being commonly used. However this presupposes there is some semblance of reasonableness from the employer in how these are going to be assessed. In this case that was patently not done. It is submitted that common sense alone would lead one to the conclusion that the use of skill requires some element of consideration of the actual skill possessed by each individual and not on the basis of either formal qualifications, which was Mr Sullivan’s view nor the continual assessments (of which we saw no evidence) made by Mr Rafferty. On this last point I would refer again to the case of Williams wherein the EAT made clear that it is important that the criteria chosen for determining the selection should not depend solely upon the subjective opinion of a particular manager but should be capable of at least some objective assessment.

(ii) In respect of absence, I would make a similar paint. Again although it might be justified to consider attendance records as the basis for selecting redundant employees, the employer will not be acting reasonably if he fails to look at the reasons why the employees selected were absent. This was the view of the EAT in Paine and Moore v Grundy (Teddington) Ltd 119811 IRLR 267.

It was accepted in evidence by Ms Rae that a decision was taken not to consider the reason for absence. I would submit that that this is plainly contrary to the authority and is expressly contrary to the guidance of the Labour Relations Agency.

At this stage I will refer briefly to the position of Mr Watson whose dismissal was ultimately decided upon on the basis of the tie break as it became known.

The evidence led by the Respondent in this matter was that Mr Sullivan consulted Ms Rae on this matter and than decision was taken to utilise attendance. Without wishing to labour the point I have just made, if the Tribunal is not with me in respect of my initial submission that this criteria cannot have been fair without the necessary inquiries, I would submit that at this stage, the obligation on the employer increases markedly –

Mr Watson gave evidence in respect of his IBS and although Ms Rae disputed same, I would contend that Mr Watson was both a truthful and credible witness in this respect. No inquiry was made of the company doctor or Mr Watson’s GP on this issue and whilst the cause of same may still be in dispute it is contended that its existence cannot be.

I would therefore submit that to actually dismiss Mr Watson as result of same without inquiry cannot be the actions of a reasonable employer and had they done so a different outcOme would have been reached. Mr Watson’sattendance record had improved markedly in the preceding year and the castigation of him a ‘someone who never turned up for work;’ was neither correct and ill befitting of someone in Mrs Rae’s position.

As the EAT indicated in the Williams case, the actual application of the selection criteria should be carried out fairly and, at least where there is a recognised union, after consultation with the union. This requirement is closely linked with the need for some element of objectivity to be introduced into the criteria themselves, for where the criteria are too subjective and rest unduly upon personal opinions and assessments it will be impossible to determine whether they have been applied fairly or not.

It is accepted that the courts will not be willing to carry out a detailed examination of the way in which the employer applied the selection criteria however this does not end the Tribunals involvement. Harvey continues at para 1702.02 ills, however, important to emphasise that the criteria themselves must be fair, they must be genuinely applied and there must be no reason to doubt the reliability of the information received. As the tribunal also recognised, there may be some cases where the marking may suggest that the application of the criteria was, or may have been, unfair.

If I may deal firstly with the evidence in respect of same. In relation to skills it is submitted:

• It was not disputed that training continued throughout the period from which the Respondent notified the Trade Union as the start of the consultation period.
• Messrs Sullivan and Rafferty stated in evidence that a provisional view had been formed as to the matrix and the values to be attributed to the various pieces of machinery
• •The evidence of Mr Rafferty that some of this training was reassessment, I would submit, should not be accepted. This is a crucial point and I will expand further:

• If reassessments had been the simple answer as it is submitted on behalf of the Respondent then why did Mr Forrester not cover this in his investigation and if he did, why then not include this in his letter to the Claimants?

It is submitted that no such process of reassessment had been in place previously. The process of reassessment as it was described was simply put in place to allow Mr Rafferty to place Ys in boxes and allow certain individuals for reasons known only to him, some of which may even be genuine, to amass points in the redundancy process. However even if this was the case, it is submitted that it fatally undermines the integrity of the whole system and cannot be accepted as a fair application of criteria

Mr English has given evidence of his previous experience within the docks on fork lift machinery and it is submitted that had any proper process of reassessment been open to him he would have attained further points.

If a genuine process of reassessment was to take place prior to the evaluation of individuals on the basis of the criteria selected, the only reasonable course of action open to an employer would be to open such a process to all or no-one.

• In the document provided by the Respondent showing training having taken place, there are examples of individuals who attained Ys in the matrix, who undertook training after the date of the claimants dismissal. If so, why were they the allocated points in the matrix? . Either they had been assessed or they hadn’t.
• The Claimant’s evidence that training was a source of frustration should also be accepted. Reference was made by a number of witnesses to a training programme. No evidence of same has been produced for the purposes of these proceedings.
• It is clear from the documentary evidence that individuals were not put through the training in any systematic or fair way
• The evidence of the Respondent’s witness that training needed to be continued for operational needs is just not credible

It is submitted that the actions of a reasonable employer at this stage would undoubtedly have involved the suspension of training for a period of time. This would only have entailed a brief stoppage. To continue training, whist this would, and did, affect the redundancy situation is manifestly unfair

Further, the application of the criteria was , on his own evidence and that of Ms Rae’s left to
Mr Rafferty to undertake and in this regard I would refer to the recent decision in
E-Zec Medical Transport Service ltd v Ms A Gregory UK.EA T 2008 and to paragraph 25 of
Judge Ansell wherein he states:

We agree with the Tribunal’s view that it was an unfair process that fell outside the band of reasonable responses for the key criteria to be left to one individual who was not able to support his marking by. reference to any company documents such as performance appraisals who had not spoken to any other manger concerning those marks and who had made no notes of even any indication as to how he had made this individual choice.

I would submit that a similar criticism can be levied .at Mr Rafferty. Mr Sullivan was not aware of how the marks were attained and Ms Rae’s role at this juncture was purely administrative. He was the only one who claims to have gone through the records, records that were not produced for the benefit of these proceedings, crucially on the issue of reassessments. Indeed, Mr Forrester even claimed to have seen a spreadsheet in reference to the alleged training programme, again, something I would submit could have been produced in evidence.

Indeed, .Mr Rafferty’s evidence that certificates don’t get you a Y would seem to put in place a whole new system which is not even based on actual assessments.

• No evidence of a two year period being custdm and practice was given, despite the assertions of Mr Forrester that this was the case

• Mr Rafferty stated in evidence that he did not consider the interests of this period being used and Mr Sullivan would not accept, as I put it him, that this was like comparing apples with pears.

• Mrs Rae in her evidence, to her credit, accepted that with hindsight she would have done this differently.

It is submitted that whilst Mrs Rae’s candour, at this juncture, is to be applauded, it does not negate the effect of the decision being taken at that time. .The Respondent applied the criteria
of absence in a way that does not allow a fair comparison. It is intrinsic in any comparative exercise that fairness is represented by comparing like with like and this was not done, despite the protestations of both the Union and client at the consultation stage, which I have referred to earlier.

The table produced in response to this query during the course of the interlocutory process is remarkable for two reasons. Firstly, as I have stated this exercise was not carried out at the time and secondly, whilst I accept it may be marginally more justifiable as a comparative exercise, it still does not escape the allegation that for such an exercise to be fair like must be compared with like. It is self evident that someone employed for a period of a year or less is likely, statistically, to have less absence than someone who was actually employed over a
period of two.

If I may now turn briefly to the issue which I raised with a number of the Respondent’s witnesses, that being the continuing of recruitment during the course of 2006.

I would accept that nothing in itself would turn on this point and the Respondent’s evidence that they cannot operate on the basis of rumour is accepted as genuine. The latter point would be entirely reasonable industrial practice however, once these rumours started to become more than so, it would seem equally reasonable at this stage to have ceased recruiting. It is certainly directly in contradiction to the Labour Relations Agency advice.

On this issue, I would do no than draw the Tribunal’s attention to the acceptance by all of the Respondent’s witnesses that they had not taken he trouble to have even read this document prior to the redundancy exercise. I will save the Tribunal from listing the litany of advice that was ignored, save to say that many of the complaints that are the subject of these proceedings could have, been avoided if even a cursory glance had been taken at the document.

The basis of the computations in respect of the Claimants are agreed. There are only a couple of points I would wish to make in respect of the period over which future loss is to be assessed.

I would suggest that it is within judicial knowledge that there is little likelihood of Messrs McConnell or Watson returning to a position within the docks in the foreseeable future and consequently the level of remuneration that they enjoyed with the Respondent company.

Mr Watson provided exemplary evidence of his earnings and efforts to return to gainful employment. Mr McConnell’s evidence, whilst not entirely satisfactory, should be taken on’ the basis of his revised calculation of earnings which is submitted today. In mitigation, I would only draw the Tribunal’s attention to the nature of the industry in which he is employed and the fact that he is new to same and has not been thorough the accounting process as of yet.

The current economic climate has unfortunately resulted in the spectre of redundancy raising its head in all professions and if I was to, with any certainty, be able to advance a period of time, within which this ‘situation would come to an end, I would be a wiser man than the

Chancellor. Lest to say, I would suggest that the Tribunal must give serious consideration to the figures in respect of future loss continuing for a not inconsiderable period of time.

Lastly, in respect of pension loss; it is again within the knowledge of the panel that the prospects of securing employment, in the present day, save for the public sector, wherein pension contributions are part of any renumeration package, are slim and I would suggest that similar consideration to the length of time this is likely to continue be given by the Tribunal

In CONCLUSION, I would contend on the basis of the arguments I have outlined above, the
Claimants were unfairly dismissed in contravention of Article 130 of the Employment Rights
(NI) Order. I would invite the Tribunal to conclude that in all the circumstances, the employer
failed to act in accordance with the principles of fairness contained therein.

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> English v Coastal Container Line Ltd [2008] NIIT 01356_07IT (17 December 2008) URL: http://www.bailii.org/nie/cases/NIIT/2008/01356.html Cite as: [2008] NIIT 1356_7IT, [2008] NIIT 01356_07IT

Industrial Tribunals Northern Ireland Decisions