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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Wylie v RFD Ltd [2008] NIIT 9466_03IT (04 January 2008) URL: http://www.bailii.org/nie/cases/NIIT/2008/9466_03IT.html Cite as: [2008] NIIT 9466_3IT, [2008] NIIT 9466_03IT |
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CASE REF: 9466/03
CLAIMANT: Clifford David Wylie
RESPONDENT: RFD Limited
The unanimous decision of the tribunal is as follows:-
(A) The claimant was unfairly dismissed.
(B) The claimant did not fail to mitigate his loss during the period up to 18 April 2004.
(C) The dismissal was unfair because of some important defects in connection with the decision-making process which culminated in the claimant's dismissal. If there had been no such defects, there is a 50% chance that the respondent could and would have fairly dismissed the claimant in September 2003 in any event.
(D) The following deductions must be made from any compensatory amount which would otherwise be payable to claimant. These deductions must be made in the following order:-
(i) There must be a deduction of £5,396 in respect of the payment in lieu which was made to the claimant.
(ii) The resulting balance must be reduced by 50% to reflect the chance that the claimant could and would have been fairly dismissed in any event.
(iii) The resulting balance must then be reduced by £3,900; that is the amount by which the claimant's actual redundancy payment (the redundancy payment actually paid to him) exceeds the amount of any potential basic award.
Constitution of Tribunal:
Chairman: Mr Buggy
Members: Mr Hampton
Mr Welsh
Appearances:
The claimant appeared in person.
The respondent was represented by Ms S McCrory, of Employment Law Services.
REASONS
The questions for determination at this stage of the case
(1) Whether the claimant was unfit for work after the termination of his employment and, if so, during what periods?
(2) Whether or not any such unfitness for work was caused by the dismissal and, if so, to what extent?
(3) What is the amount of any pension loss which the claimant has sustained as a result of the dismissal?
In addition, we have decided that, at this stage of the case, we will not attempt to calculate the amount of any financial loss sustained by the claimant during any period from 18 April 2004 onwards.
The sources of evidence
(1) The claimant himself
(2) Mr Frank Stirling (the claimant's representative at the first stage of the internal redundancy hearing procedure)
(3) Ms Eleanor Dickey (a former work colleague of the claimant)
(4) Mr Leonard McKee (a work colleague of the claimant)
(1) Ms Judith Marrs (the Human Resources Manager of the employer)
(2) Ms Karen Blythe, who was the employer's Plant Director at Dunmurry at the time when the claimant was dismissed
(3) Mr Gavin Gillespie, who was the respondent's Production Engineering Manager at the time of the claimant's dismissal
(4) Mr Ronnie Coburn (who, at the time of the claimant's dismissal, was Group Operations Director of the group of companies to which RFD Limited belonged)
(5) Mr Ernie Cavan, who was Industrial Engineering Manager of the respondent company at the time of the claimant's dismissal, and who was present at the second-stage internal redundancy appeal hearing
(1) a bundle of documents consisting of approximately 430 pages; and
(2) various miscellaneous documents.
We told the parties that we would only have regard to any document within the bundle if our attention was specifically drawn to that document.
The facts
(1) Throughout his period of employment at the Dunmurry plant, the claimant has been employed, and has only been employed, by RFD Limited.
(2) RFD Limited, Beaufort Air-Sea Equipment Ltd and RFD Beaufort Ltd are all separate and individual limited companies. They are all subsidiaries of Survitec Group Ltd ("Survitec").
(3) Originally, RFD Limited was solely responsible for the Dunmurry plant at which the claimant worked. Originally, Beaufort Air-Sea Equipment Ltd was solely responsible for a plant at Birkenhead ("the Birkenhead site"). RFD Beaufort Ltd was incorporated in February 2003. All employees at the Birkenhead site who commenced employment prior to that date of incorporation have been, and continue to be, employed by Beaufort Air-Sea Equipment Ltd. All employees who commenced their employment at the Dunmurry site prior to that date of incorporation have been, and continue to be, employed by RFD Limited. All employees at both plants who have commenced employment since that date of incorporation have been employed by RFD Beaufort Ltd.
(4) In 2003, hundreds of staff were employed at the Dunmurry plant (either by RFD Limited or by RFD Beaufort Ltd).
(5) The plant was situated at Kingsway, Dunmurry, Co Antrim. The respondent company is engaged in the manufacturing, distribution and installation of safety and evacuation equipment for the maritime and aeronautical industries.
(6) The claimant was employed by the respondent as a Production Engineer in its Production Engineering Department.
(7) Survitec had five manufacturing sites altogether. One of the witnesses in these proceedings, Mr Ronnie Coburn ("Mr Coburn") was Operations Director for the entire group. Ms Karen Blythe ("Ms Blythe") was also a witness in these proceedings. At all material times, she was Plant Director of the Dunmurry site. In that capacity, she had overall responsibility for the operation of that site. One of her immediate subordinates was Mr Gavin Gillespie. Mr Gillespie was the Production Engineering Manager at Dunmurry.
(8) Immediately prior to the claimant's dismissal, there were three people working solely within the Department, namely Mr Gillespie, the claimant and Mr David Curry (another Production Engineer).
(9) Because of upheaval in the air travel industry caused by the aftermath of the 9/11 atrocities of 2001, the respondent company found trading conditions more difficult than previously. Accordingly, in August 2003, the employer at the Dunmurry plant began a redundancy consultation process. By the end of that process, only five employees had been dismissed by reason of redundancy. Seven posts had been declared to be redundant in all. (Two employees within redundant posts accepted re-deployment posts elsewhere in the company).
(10) The claimant began his employment with the respondent in August 1989 as a Production Engineer at the Dunmurry site. He held that post until the date of his dismissal.
(11) Both the claimant and Mr Curry carried out duties that mainly involved the development and procurement of tooling, initial production runs, work instructions, laser programming and providing general engineering support to the manufacturing team (including the interpretation of drawings). At one time, the Production Engineering Department had a pattern marker, Mr Martin Clarke, who manufactured and maintained all production patterns.
(12) Mr Gillespie had been a Senior Project Engineer in the Marine Technical Department at Dunmurry. He was appointed as the manager of the Production Engineering Department in November 2000.
(13) The claimant and Mr Coburn knew one another very well. An acrimonious relationship had developed between them.
(14) On 30 June 1999, the claimant had written to Mr Coburn in the following terms:-
"I wish to formally complain against your biased treatment against myself and unfairly favourable bias towards other groups within and without this company, and your appalling employment practices.
You have given numerous well paid appointments without advertising within the company to people less qualified and experienced than myself, and in the past given advertised ones to people outside the company before I was even interviewed.
You advertised another one for which I am very well experienced, qualified and apply for (Production Engineering Manager); then you bring someone in from outside with minimal or no relevant experience as in 3 previous occasions, who have all aptly demonstrated their inability to perform the task.
You fabricate and slanderously mis cite a non existent deficiency against me as an excuse. There are also numerous examples of how the Production Engineering Department has been discriminated against, through non availability and depletion of resources.
I respectively request an over due increment in salary to above the level of the appointments which I refer, and the opportunity and resources to bring this company out of the pit it is making for itself".
(15) At the beginning of that note, the claimant included the following:-
"(For references "to you" read "RFD").
However, we have no doubt that, in reality, the memorandum was mainly aimed at Mr Coburn personally and we also have no doubt that Mr Coburn saw the memorandum as a complaint about his own personal conduct. He never replied to that note. Nobody in the respondent company ever addressed the issues which were set out in that note, in any dialogue with the claimant.
(16) Under Survitec policy, appraisals of the performance of Production Engineers were carried out on an annual basis. The appraisals were carried out by each Production Engineer's line manager. The appraisal form contained space for comments by the line manager's own superior. Neither the policy nor the relevant appraisal forms provided for a situation in which the appraiser's line manager's line manager would intervene. However, Mr Coburn added to the claimant's appraisal form of October 2002 with the following, sharply critical, comments of his own:
"In my opinion [the claimant is] far [too] slow to complete projects. We have been working for one year to remove language from raft labels and language from canopies. This is still not completed".
(17) By the time of the redundancy process in September 2003, Mr Gillespie was well aware of the fact that there was an acrimonious relationship between the claimant and Mr Coburn and that Mr Coburn had a poor opinion of important aspects of the way in which the claimant usually went about carrying out the claimant's work. Mr Coburn was a dominant figure in the Dunmurry plant. Mr Gillespie knew that if there was a choice between keeping Mr Curry and keeping the claimant, Mr Coburn would be strongly in favour of keeping Mr Curry and of letting the claimant go. Mr Gillespie was keen to please Mr Coburn and was keen not to displease him. That situation made Mr Gillespie feel very uncomfortable in the context of the redundancies process and he mentioned that discomfort, in conversations with Mr Leonard McKee.
(18) Mr Gillespie was appointed as manager of the Production Engineering Department as the result of a recruitment competition. The claimant had competed for that post alongside Mr Gillespie. The claimant was never fully reconciled to the outcome of that process; at all material times, he considered himself to be the better candidate. Mr Gillespie was also aware of those particular matters. However, he did not bear any grudges towards the claimant. In fact, he rather liked him. Furthermore, he respected the claimant's vast technical knowledge and the fact that the claimant was a diligent worker.
(19) The claimant was a very competent engineer. He had high technical standards. He was often at odds with the prevailing philosophy within the Dunmurry plant because the claimant wanted very high technical standards to be maintained and was unable or unwilling to water down those standards in the interests of pragmatism, proportionality or value-for-money.
(20) Appraisals were carried out in respect of the claimant by Mr Gillespie in September 2001 and in October 2001 respectively. In the October 2002 appraisal, Mr Gillespie made the following overall comments in respect of the claimant's performance:
"Performs very well consistently. Enthusiastic and always willing to help. Influences others due to amount of previous experience."
(21) Ms Blythe commented, in connection with that appraisal that:-
"Clifford is a very valued member of the team".
(22) In evidence in this case, witnesses on behalf of the respondent have asserted that the claimant's written communication skills were not good. In considering that evidence, we have had regard to the fact that, in the 2001 appraisal, and in the 2002 appraisal, the claimant's written communication had been rated as "above satisfactory". However, we have noted the content, format and overall presentation of the claimant's written communications in a variety of documents which were produced by him in the course of his employment with the respondent. Having considered those documents, we accept that the claimant has significant shortcomings as a written communicator.
(23) It is not the role of an employment tribunal to second-guess the commercial judgements of an employers. The respondent has been somewhat inconsistent in its explanations for what it claims was the need to make redundancies in September 2003. However, we note that, as a result of that round of redundancies, the respondent did permanently reduce the number of Production Engineers employed by it. We also accept that there were additional business difficulties because of the implications of the 9/11 atrocities.
(24) Against that background, on balance, we accept that there was a genuine redundancy situation in September 2003 (in the broad sense in which the term "redundancy" is defined for the purposes of the unfair dismissals legislation).
(25) The respondents decided to make a redundancy in the Production Engineering Department. The claimant said that this was an unfair and inappropriate decision and that the respondent should, instead, have made a redundancy somewhere else within the company. However, we consider that, in deciding to make a redundancy in the Production Engineering Department, the respondent was not stepping outside "the range of reasonable responses".
(26) The claimant had never had any important managerial responsibilities, whereas Mr Gillespie had significant managerial responsibilities as part of his role as manager of the Production Engineering Department.
(27) The 2003 redundancy process was announced at the end of August 2003.
(28) On 27 August 2003 a general announcement was made by Mr Coburn, in a staff canteen, to approximately 90 employees. Those employees were from the potentially affected Departments. They were notified that there was a risk of redundancy within their respective Departments.
(29) There were nine potentially affected Departments, including the Department to which the claimant belonged.
(30) It was decided that there should be one redundancy from the latter Department and that the redundancy pool should consist of two people, Mr Wylie and Mr Curry. We regard the choice of that pool as being within the range of reasonable responses. We also accept that the choice of that pool was made for genuine economic reasons and that the size of the pool, and the identity of those belonging to the pool, were unaffected by bias against the claimant.
(31) At a meeting on 3 September 2003, the claimant was advised of the background and circumstances of the redundancy exercise, the selection criteria to be used, and the potential for any alternative employment within the company.
(32) Prior to the commencement of the redundancy exercise, the respondent company did not have any pre-determined or agreed redundancy criteria which could be applied to the Production Engineering Department redundancy exercise. The lack of pre-determined selection criteria was a serious failing on the part of the respondent company. It fell well short of good employment practice.
(33) Mr Gillespie drafted the criteria in time for a meeting which was held with the claimant on 1 September 2003. (Mr Gillespie was not at that meeting because he was on holiday at that time). Mr Gillespie drafted those criteria against the following background. First, he knew that the assessment of Mr Curry's qualities, and the assessment of the claimant's qualities, against whatever criteria he drafted, would determine which of them was to stay and which of them was to be made redundant. He knew, that given a choice between Mr Curry and the claimant, Mr Coburn would want Mr Curry to be retained, in any likely scenario.
(34) The claimant has been critical of the criteria which Mr Gillespie drafted. He has told us that some significant criteria (relating to technical matters mainly) ought to have been included in the Gillespie criteria. However, we consider that the relevant choices made by Mr Gillespie, as to the actual criteria, and as to the maximum weightings, were well within the range of reasonable responses for an employer in those circumstances, particularly having regard to the business and organisational context of the respondent company at that time. In our view, the criteria chosen are consistent with the criteria upon which the claimant and Mr Curry had on several occasions been appraised.
(35) Under the redundancy procedure, a maximum of 115 points were available. Mr Gillespie awarded Mr Curry 102 points, while he awarded the claimant 91 points. So there was a relatively small difference (a difference of 11 points) between the two men under the procedure.
(36) The redundancy procedure criteria fell into four categories:-
(a) Knowledge (A maximum of 29 points were available);
(b) Performance (A maximum of 28 points were available);
(c) Attributes (A maximum of 52 points were available); and
(d) Disciplinary Record (attracting a maximum of 6 points).
(37) The marks awarded in respect of the knowledge criteria are uncontroversial. (The claimant was awarded 28 of the available 29 points, while Mr Curry got 26 points).
(38) The disciplinary record criteria were also uncontroversial. (There were only six points available under this heading and both men got all 6 points).
(39) That leaves the following categories:-
(a) Performance
(b) Attributes
(40) The "performance" group is important in the context of the liability issues, for two reasons. First, a large number of maximum points (28) was available. Secondly, Mr Curry got substantially more points in this group than the claimant got. (Mr Curry was awarded 25 points compared with the 19 points awarded to the claimant).
(41) The "performance" group was made up of the following criteria:-
(a) Meeting objectives (which attracted a maximum of 10 points);
(b) Planning/time management (which attracted a maximum of 10 points); and
(c) Written communication (which attracted a maximum of eight points).
(42) There had been no suggestion that the claimant's ability to meet objectives deteriorated during the year ending September 2003 or that Mr Curry's ability in that connection was the subject of substantial improvement during that period. In the October 2002 appraisal, Mr Gillespie graded both the claimant and Mr Curry the same. (Both fell into the "above satisfactory" category under the heading "Planning and Organising to meet objectives"). However, under the redundancy procedure, Mr Gillespie awarded the claimant only seven points for meeting objectives, while Mr Curry was given the maximum points of 10.
(43) To get the maximum points for meeting objectives would suggest a truly spectacular quality of achievement, but Mr Curry had only been graded as "above satisfactory", in respect of the analogous criterion, in the 2002 appraisal.
(44) Furthermore, in the commentary which formed part of the redundancy procedure assessment, Mr Gillespie commented that the claimant "lacks planning and time management skills required to meet objectives within desired timescales …". That comment seems inappropriate in respect of an individual who, at the 2002 appraisal, was graded as "above satisfactory" in relation to "planning and organising to meet objectives".
(45) Under the redundancy procedure, the "Attributes" group was made up of the following criteria:
(a) Initiative (a maximum of 10 points was available);
(b) Reliability (a maximum of 10 points);
(c) Flexibility (a maximum of 12 points);
(d) Working with others (a maximum of 10 points); and
(e) Verbal communication skills (10 points maximum).
(46) There was no suggestion in the evidence we received that the claimant's ability to work with others had declined during the year ending in September 2003. In his October 2002 appraisal, Mr Gillespie had graded the claimant as being "exceptional" under most of the sub-attributes which made up the "working with people" attribute. (In the course of that appraisal, the claimant was graded as "exceptional" in respect of "contribution at meetings", "keeping superior informed" and "ability to influence others"). In the same appraisal, Mr Gillespie commented that the claimant "Influences others due to amount of previous experience".
(47) However, under the redundancy procedure, the claimant was awarded only six points out of 10 (for "Working with others") and in the commentary which formed part of that assessment, Mr Gillespie commented that the claimant: "Does not possess the flexibility nor communication skills to work successful within multi-skilled project teams".
(48) From the foregoing, the following apparent anomalies in particular are notable:-
(a) The marking of Mr Curry in respect of "objectives" appears to be unduly generous, when this is compared with his grading in respect of objectives in the 2002 appraisal.
(b) Under the redundancy procedure, Mr Curry got significantly more points for objectives than the claimant got, even though they got the same grading, in respect of the analogous criterion, in the course of the 2002 appraisal.
(c) The redundancy procedure comments, in respect of the claimant's alleged lack of ability to meet objectives, appear to be inconsistent with his "above satisfactory" grading in the 2002 appraisal.
(d) In the 2002 appraisal, the claimant was graded as "exceptional" in relation to most of the sub-attributes which make up the "working with others" criterion in the redundancy procedure. Nevertheless, he was only given 6 points out of 10 in relation to "working with others" under the redundancy procedure.
(e) The comment in Mr Gillespie's note, as part of the redundancy procedure assessment, about the claimant's alleged shortcomings in relation to working with others (as already quoted above), seems to be out of line with the 2002 appraisal gradings of the claimant, in respect of analogous criteria.
(49) We have reminded ourselves that, in considering Mr Gillespie's assessments under the redundancy procedure, we are not entitled to substitute our own judgement, or our own assessment, for the assessments which he carried out. Instead, we have to consider whether the employer has stepped outside the range of reasonable responses in connection with Mr Gillespie's redundancy procedure assessments.
(50) Having considered all the evidence in this case, we have come to the conclusion that the most likely explanation for the apparent anomalies (as identified above) is that Mr Gillespie's assessments under the redundancy procedure were unduly influenced (whether at a conscious, sub-conscious or unconscious level) by his knowledge of Mr Coburn's attitude to the claimant, and by his own reaction to that knowledge, and that significant aspects of those assessments were unfair.
(51) The unfair redundancy procedure pointings, in respect of objectives and in respect of working with others, are important in themselves. However, their chief significance, when considered alongside all the other evidence in the case, is as an indicator that Mr Gillespie's overall redundancy procedure assessments, both of the claimant and of Mr Curry, were affected by an illegitimate consideration (Mr Gillespie's knowledge of Mr Coburn's attitude to the claimant, his wish to please Mr Coburn and his reluctance to displease him.)
(52) Mr Gillespie's actual assessment of the claimant under the redundancy criteria was the subject of reviews by Ms Marrs and Ms Blythe. However, those reviews were limited in their scope. First, Ms Marrs merely looked at the assessment of the uncontroversial criteria relating to disciplinary record. Secondly, Ms Blythe merely reviewed the assessment to check for any internal inconsistencies and for any obvious inaccuracies. No aspect of Mr Gillespie's initial assessment was ever modified in any way whatsoever.
(53) A process of redundancy consultation was carried out with the claimant. The process was pursued over quite a short period. Indeed, that consultation period was shorter than usual. Nevertheless, during the course of that consultation, it would have been open to the claimants to have expressed views on a wide variety of matters, including the nature of the redundancy criteria, the various maximum weightings applied to the various criteria, and the fairness (or otherwise) of the points awarded (under the process) to the claimant.
(54) However, the actual representations made by and on behalf of the claimant, in the course of the process, were quite limited. The claimant and his advisers took a relatively fatalistic attitude in relation to the process. Quite understandably, they took the view that the respondent was already committed to the choice of the claimant as the potential redundant employee.
(55) There was a preliminary meeting with the claimant on 1 September 2003 at which Ms Marrs and Ms Blythe were present. There was a second meeting with the claimant on 3 September 2003 at which the claimant was represented by Mr Frank Sterling (as union representative). Ms Marrs and Ms Blythe were also present at that meeting. When Mr Gillespie returned from leave, a further consultation meeting was arranged, and that meeting took place on 11 September 2003. At the 11 September meeting, the selection criteria were discussed in some detail. However, the meetings did not result in the making of any changes whatsoever to any of the points which had been awarded (under the redundancy criteria) to the claimant. The claimant's selection for redundancy was confirmed in 11 September, by letter. The claimant was dismissed on 22 September 2003, with effect from that date. There was an appeal against dismissal in October 2003 (to Mr Coburn) which was unsuccessful.
(56) In terms of form, the consultation process which the respondent carried out in respect of the claimant's redundancy was very good. However, in terms of substance, the position was different. All concerned in the redundancy consultation process were aware of the acrimonious relationship between the claimant and Mr Coburn and of the fact that Mr Coburn had a low opinion of how the claimant carried out various aspects of the claimant's work. Against that background, the management representatives in the redundancy consultation process knew that any decision to change the initial pointings (of Mr Curry or of the claimant) would be highly controversial. Against that background, those involved in the consultation were very reluctant to change any of the points which had been awarded to the claimant and indeed, throughout the consultation process, there was no real discussion, within the Management of the respondent company, of the possibility of up-lifting the claimant's points.
(57) We have noted the detail of the various gradings awarded to Mr Curry and to the claimant respectively in the course of their 2002 appraisals. In our view, the two 2002 appraisals showed that, in Mr Gillespie's view at that time, both men were in broadly the same overall category, in terms of general suitability for the posts which the two men then held.
(58) As Mr Gillespie himself acknowledged (in a handwritten note which Mr Gillespie prepared in the context of the redundancy procedure assessments), he found it:-
"very difficult to separate [the claimant and Mr Curry] in key areas".
(59) The availability of a training post (as an alternative to redundancy) was adequately and appropriately brought to the claimant's attention during the course of the consultation process, but he did not express an interest in that post during that process.
(60) The respondent, through relevant witnesses, has not been candid in providing the tribunal with clear evidence on the question of when the respondent company first became aware that a vacancy for a Quality Manager would soon become available. We are satisfied that they became aware of that matter some time before the date of the claimant's dismissal. However, we are satisfied that the Quality Manager post was not "suitable alternative employment" because of a combination of two factors. First, that post was a promotional post. Secondly, the provision of clear and readable written reports would be a prerequisite in respect of that post. The provision of such reports was not one of the claimant's strengths, as we have noted, having had regard to the content and format of various documents which the claimant produced during the course of his employment with the respondent company.
(61) Although the company did advertise for a temporary project engineer around the time of the claimant's dismissal, that advertisement was for a project engineer who had a degree-level qualification in mechanical engineering. The claimant did not have such a qualification (although we accept that, as the holder of a degree in aeronautical engineering, the claimant would in practice have been able to carry out a substantial element of the duties of the post). Because of the requirement for a specific mechanical engineering qualification, we cannot regard the temporary project engineer post as "suitable alternative employment".
(62) The claimant genuinely believes that the vacancy for a Network Administer was not properly brought to his attention in the course of the redundancy consultation process. However, we accept the evidence of Ms Marrs on that point and we are satisfied that this post was brought to the claimant's attention at the consultation meeting on 3 September 2003. We also accept (having noted the content of Ms Marrs' letter of 11 September 2003 to the claimant) that the claimant did not express an interest in the Network Administer post at any time up to the date of his dismissal.
(63) If the claimant had still been employed by the respondent, during the period from the date of his dismissal until 18 April 2004, he would have earned a net salary of approximately £9,800.
(64) Upon dismissal, the claimant was paid £5,396 by way of pay in lieu of notice and he was paid a redundancy payment of £7,800.
(65) The claimant has not retained adequate documentary evidence in respect of his efforts to obtain employment during the period up to 18 April 2004. However, having considered his evidence on these matters, we are satisfied that he did make substantial efforts to obtain employment during that period.
Liability
The issues and the arguments
(1) The respondent says that the claimant was dismissed because of redundancy but the claimant asserts that there was no true redundancy situation.
(2) According to the claimant, Mr Ronnie Coburn and himself had been involved in acrimonious exchanges in the past and this was the real reason for the claimant's dismissal. The respondent denies that any such earlier interactions had any effect upon the decision to dismiss the claimant.
(3) According to the claimant, the unit of selection was too small: It should have included the claimant's line manager, and it should have included all engineers, not just the production engineers in the claimant's Department. According to the employer, the unit of selection which the employers chose was the right unit of selection. Alternatively, the unit of selection which they chose was within the range of reasonable responses. There was good reason for not including the claimant's line manager. It was appropriate to confine the unit of selection to engineers within the particular department to which the claimant belonged.
(4) According to the claimant, there was inadequate consultation in respect of the criteria used. The respondent said that there was adequate consultation in relation to the criteria.
(5) The claimant argues that the criteria were inappropriate and were deliberately designed to disadvantage the claimant. According to the respondent, the criteria were the right criteria or, alternatively, the choice of the particular criteria was within the range of reasonable responses. Furthermore, according to the employer, the choice of these particular criteria were not affected in any way by any wish to disadvantage the claimant.
(6) The claimant argues that the criteria was not fairly applied. The respondent argues that the criteria were impartially and carefully and fairly assessed.
(7) The claimant says that the respondent failed to comply with its duties in relation to offering suitable alternative employment, mainly because of the following considerations:-
(a) The availability of a training post was not adequately and appropriately brought to the claimant's attention.
(b) Secondly, according to the claimant, the employer knew that the quality manager post was about to become available and should have explored the possibility of the claimant filling that post.
(c) Thirdly, in the immediate aftermath of the claimant's dismissal, the respondent company had a need for a temporary project engineer and this post ought to have been made available to the claimant.
(d) The claimant also would have been able to have carried out the duties of the Network Administrator post and had expressed an interest in that post and ought to have been considered for that post.
The law
(1) The law relating to unfair dismissal is mainly to be found in Part XI of the Employment Rights (Northern Ireland) Order 1996 ('the 1996 Order').
(2) Article 126 of the 1996 Order provides that an employee has the right not to be unfairly dismissed by his employer.
(3) Article 130(1) of the 1996 Order provides that, in determining for the purposes of the unfair dismissal legislation whether the dismissal of an employee is fair or unfair, it is for the employer to show the reason (or, if more than one) the principal reason for the dismissal, and that the relevant reason is a potentially fair reason for dismissal.
(4) The potentially fair reasons for dismissal are listed in Article 130(1)(b) and Article 130(2) of the Order. Redundancy is one of those listed reasons.
(5) Article 174 of the Order makes it clear that, for the purposes of that legislation, the concept of redundancy includes:-
"(b) the fact that the requirements of that business –
(i) for employees to carry out work of a particular kind,
…
have ceased or diminished or are expected to cease or diminish."
(6) If an employer fulfils the requirement to show the reason (or the principal reason) for the dismissal, and fulfils the requirement to show that the relevant reason is a potentially fair reason, the focus of attention moves onto the provisions of Article 130(4), which provides that the determination of the question of whether a particular dismissal is fair or unfair (within the meaning of the unfair dismissal legislation):-
"(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) an employer acted reasonably or unreasonably in treating [the employer's principal reason for dismissal] as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case."
(7) In deciding whether a dismissal is fair or unfair, a tribunal is in many situations required to apply what is known as the 'range of reasonable responses' criterion. That criterion applies both to any substantive aspects of the reasonableness issue and also to the procedural aspects of that issue.
(8) The main relevant aspects of that criterion can be summarised as follows:-
(a) In considering whether a dismissal is fair or unfair (within the meaning of Article 130(4) of the 1996 Order), a tribunal must consider the reasonableness of the employer's conduct, not simply whether the members of that particular industrial tribunal themselves consider the dismissal to be fair or unfair.
(b) In judging the reasonableness of the employer's conduct, a tribunal must not substitute (for the decision of the employer) its own decision as to what was the right course to adopt.
(c) In many (though not all) cases there is a band or reasonable responses within which one employer might reasonably take one view and another quite reasonably take another view.
(d) The function of a tribunal, as an industrial jury, is to determine whether, in the particular circumstances of a particular case of dismissal, the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within that band, the dismissal is fair. If the dismissal falls outside that band, it is an unfair dismissal.
(9) As a general rule, it is not open to an employee to claim that his dismissal is unfair merely because the employer acted unreasonably in choosing to make redundancies. Tribunals will not sit in judgment on that particular business decision. Ms McCrory drew our attention to the case of Moon v Homeworthy Furniture (Northern) Ltd [1976] IRLR 298, which is an authority for that proposition.
(10) In Muckford v Midland Bank [1997] IRLR 208, the EAT pointed out that it will be a question of fact and degree for an industrial tribunal to consider whether consultation with a dismissed individual (and/or with his union) was so inadequate as to render the dismissal unfair. According to the EAT in Muckford, a lack of consultation in any particular respect will not automatically lead to that result; instead, the overall picture must be viewed by the tribunal, up to the date of termination.
(11) As is clear from paragraph T/1708 of "Harvey on Employment and Industrial Relations Law", the process of consultation, in the present context, is not one in which the consultor is obliged to adopt any or all of the views expressed by the person whom he is consulting. However, fair consultation includes:-
(a) consultation when the proposals are still at an formative stage; and
(b) conscientious consideration by the consultor of the consultee's response.
Conclusions
(1) We have noted the extended definition of 'redundancy' in the context of the Order. We note that it includes a situation in which the requirements of a particular business for employees to carry out production engineering have ceased or diminished or are expected to cease or diminish. Having had regard to that broad statutory definition, we are satisfied that, in this case, the claimant's dismissal took place as part of a genuine redundancy process, whereby the respondent company sought to reduce its costs by reducing the numbers of employees, in various parts of the relevant undertaking. Therefore, the respondent has shown that the principal reason for the claimant's dismissal was redundancy (which is a potentially fair reason).
(2) Accordingly, our remaining task is to determine whether the dismissal of the claimant for redundancy, in the particular circumstances of the case, was fair or unfair. Determination of that issue involves consideration of the matters mentioned below.
(3) First, should the unit of selection have included the claimant's line manager? In our view, in failing to include the line manager (Mr Gillespie) within the pool, the employer did not step outside the range of reasonable responses. (There was an important management dimension to Mr Gillespie's job, which was absent from the jobs of the claimant and of Mr Curry).
(4) Secondly, should the respondent have included other engineers in the Belfast Plant within the relevant unit of redundancy (instead of confining that unit of redundancy to the engineers in the Production Department)? In our view, to have included other engineers was an option which was certainly open to the employer. However, we cannot say that the failure to adopt such an option rendered the dismissal unfair. In arriving at that determination, we have borne in mind that our task is not to decide whether we ourselves would have dismissed in the circumstances. We are satisfied that, in deciding that the unit of selection should not extend beyond the Production Engineering Department, the employer was not stepping outside the range of reasonable responses.
(5) On the other hand, we are satisfied that the consultation process was so inadequate that the process brought the employer outside the range of reasonable responses. It was inadequate because there was no 'conscientious consideration', by the consultor, of the consultee's observations. Instead, by the time of the first consultation meeting with the claimant, the employer had, in effect, already made up its mind that the claimant was the appropriate choice for redundancy.
(6) The claimant argues that the selection criteria chosen by the employer were inappropriate. We do not agree. The particular criteria chosen were criteria which a reasonable employer might use, for the purpose of choosing who should become redundant, in the circumstances in which the respondent found itself in 2003.
(7) The claimant argues that this dismissal was also unfair because the criteria were not fairly applied. We do agree with the claimant on that point. Mr Gillespie's actual assessment of the merits of the claimant, in the context of the redundancy selection criteria, was not a fair assessment. It was unduly harsh because of the effect of Mr Gillespie's awareness of Mr Coburn's attitude to the claimant. (See above).
(8) However, we wish to make it clear that we are not finding this to be an unfair dismissal merely because we disagree with the points awarded by Mr Gillespie in the course of the redundancy procedure assessments. Instead, we are finding this dismissal to be unfair because the assessments were unduly harsh and were affected (to the claimant's disadvantage) by the illegitimate consideration that the claimant had had an acrimonious relationship with Mr Coburn and was not in good standing with Mr Coburn. Those two factors (unfairness of the assessments and the reasons for those unfairnesses) have the cumulative effect of bringing the employer's actions out of the range of reasonable responses.
(9) In relation to the claimant's arguments in respect of alternative employment, our conclusions are as follows:-
(a) In our view, the availability of the training post was adequately and appropriately brought to the claimant's attention, during the course of the September redundancy consultation process.
(b) The Quality Manager post had not become available by the date of termination of the claimant's employment. In any event, that post would not have been suitable for the claimant (because it was a promotional post and because he was not good at writing clear, accessible and easily readable written reports).
(c) The claimant told us that he could have carried out the post of Temporary Project Engineer which was advertised in the Autumn of 2003. However, that post, as advertised, called for mechanical engineering qualifications, which the claimant did not have. Therefore, this was not suitable alternative employment.
(d) Perhaps the claimant would indeed have been able to carry out the duties of the Network Administrative post. However, he did not clearly and unambiguously express an interest in that post, even though the existence of the vacancy had been brought to his attention at the 3 September meeting
(e) Accordingly, against that background, we cannot accept that the respondent has failed to offer the claimant "suitable alternative employment".
(10) Accordingly, the dismissal was unfair, because of two considerations:-
(a) By the time of the first consultation meeting with the claimant, the employer had, in effect, already decided that the claimant was the appropriate choice for redundancy. That conclusion was the result of the knowledge of the consultors about Mr Coburn's attitude to the claimant.
(b) The assessment of the merits of the claimant, in the context of the redundancy selection criteria, was unduly harsh and that undue harshness was the result of Mr Gillespie's awareness of Mr Coburn's attitude to the claimant.
Compensation
The issues and arguments
(1) The claimant received a redundancy payment. He accepts that he is therefore not entitled to any basic award.
(2) The respondent argues that the claimant failed to mitigate his loss from January 2004 onwards until the date on which he became unfit for work. The claimant says that, during that period, he did make proportionate efforts to obtain alternative employment.
(3) The respondent says that, even if the dismissal was procedurally unfair (which the respondent strongly denies), nevertheless the claimant should in any event receive no compensatory award because (according to the respondent) the claimant could and would have been fairly dismissed in any event. (In other words, he could and would have been dismissed in September 2003 even if there had been no procedural shortcomings in connection with dismissal). The claimant rejects this proposition.
(4) There is an issue between the parties as to the order in which deductions should be made from any compensatory award.
The law
(1) The law relating to remedies for unfair dismissal is set out in Chapter II of Part XI of the Order. Article 152 of the Order provides that a compensatory award is to be calculated in accordance with Articles 157, 158, 160 and 161 of the Order.
(2) Article 157(1) sets out the basic rule for the calculation of a compensatory award, in the following terms:-
"(1) Subject to the provisions of this Article and [the provisions of certain other Articles], 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 in so far as that loss is attributable to action taken by the employer."
(3) The award has to be "just and equitable" in all the circumstances having regard to the loss sustained by the complainant "in consequence of" the dismissal. In considering "loss" in this context, the focus of attention is on loss which is attributable to action taken by the employer. Accordingly, a claimant is unable to recover in respect of losses which he or she has failed to mitigate. (The concept of mitigation usually involves proportionate and prompt job-searches in the aftermath of the relevant dismissal.) In the context of mitigation, the onus of proof is on the employer.
(4) In cases where the main reason for dismissal is a failure to follow a fair procedure, the compensatory award may be reduced, if it can be shown that a fair procedure would have resulted in a dismissal anyway. This is part of the assessment of what is "just and equitable" as required by Article 157(1). If a tribunal is not certain that the relevant employee would have been fairly dismissed, even if fair procedures had been followed (in circumstances in which the dismissal was unfair for procedural reasons), the compensatory award can be reduced by a percentage representing the chance that the employee would still have lost his employment. Therefore, a tribunal could, for example, make a "20%" compensatory award (a compensatory award reduced by 80%) if that tribunal considers that there is only a one in five chance that a fair procedure would have resulted in a claimant keeping his job. This type of deduction is usually referred to as a "Polkey" deduction.
(5) In order to calculate the compensatory award, it is first necessary to ascertain the employee's total loss in consequence of the dismissal, in so far as that loss is attributable to the employer's action (See Article 157(1) of the Order). Deductions then (potentially) have to be made from that amount. We are satisfied that the proper order of deductions is as follows:-
(a) First, you deduct any payment which the employer has already made to the claimant as compensation for the dismissal (for example, an ex gratia payment or a payment in lieu of notice, but not any enhanced redundancy payment).
(b) Afterwards, you make any percentage "Polkey" deduction. (See sub-paragraph (4) above).
(c) Next, you deduct any enhanced redundancy payment, to the extent that any such enhanced payment exceeds the amount of any potential basic award.
(6) The last of those deductions is provided for in Article 157(7) of the Order, which provides as follows:-
"(7) If the amount of any payment made by the employer to the employee on the ground that the dismissal was by reason of redundancy … exceeds the amount of the basic award … that excess goes to reduce the amount of the compensatory award.
Conclusions
(1) We are not satisfied that the claimant failed to mitigate his loss during the period from January 2004 to April 2004.
(2) This dismissal was unfair because of important procedural defects. If there had been no such defects, there is a 50% chance that the claimant would have been fairly dismissed in September 2003 in any event. That conclusion takes account of all of our findings of fact, as set out above. However, we wish to highlight the following in this connection:-
(a) There were only two people in the relevant merit of redundancy.
(b) The 2001 and 2002 appraisals are likely to have been influenced to some significant extent, by Mr Gillespie's knowledge of Mr Coburn's attitude to the claimant.
(c) The 2001 and 2002 appraisals show that Mr Gillespie was recording broadly similar patterns of performance in respect of the claimant and in respect of Mr Curry. (In this connection, we have not took lost sight of the fact that only some of the appraisals criteria were included in the redundancy criterion).
(d) In the redundancy assessments actually carried out by Mr Gillespie, Mr Curry was accorded only 11 points more than the claimant.
(e) Mr Gillespie has himself acknowledged, in the context of the redundancy procedure assessments, that he found it very difficult to 'separate' the two men 'in key areas'.
(3) Ignoring, at this stage of the case, any pensions loss, and any payment due in respect of loss of statutory rights, the claimant's financial loss during the period up to 18 April 2004 was approximately £9,800. However, from that sum must be deducted the amount paid to the claimant in lieu of notice (£5,396). That leaves a balance of £4,404.
(4) As noted above, we are satisfied that there was a 50% chance that, on a fair application of the selection criteria, the claimant could and would have been fairly dismissed in any event, in September 2003. Therefore, the sum of £4,404 has to be reduced by 50%, leaving a balance (a post-Polkey figure) of £2,202.
(5) The difference between the amount of the redundancy payment actually made to the claimant and the amount of the claimant's statutory redundancy entitlement is £3,900. The latter amount is referred to below as the "redundancy excess" amount.
(6) The redundancy excess amount has to be deducted from the post-Polkey figure. However, that excess amount is considerably greater than the post-Polkey figure.
Next steps
(1) Was the claimant unfit for work from 18 April 2004 to 19 November 2004? If so, what medical condition caused that incapacity and was that medical condition caused by the respondent company's dismissal of the claimant, or by the manner of that dismissal? If so, to what extent?
(2) Has the claimant been unfit for work at any time from 19 November 2004 to the present date? What was the cause, or what were the causes, of any such period, or periods, of medical unfitness? In each instance, was the relevant dismissal of the claimant (or the manner of that dismissal) a cause of any such period of unfitness? If so, to what extent?
General comments
Chairman:
Date and place of hearing: 22 – 24 October 2007; 26 October 2007;
29 – 30 October 2007; and 1 November 2007
Belfast
Date decision recorded in register and issued to parties:
