Cousins & Ors v B/E Aerospace (UK) Ltd (Unfair Dismissal) [2002] NIIT 00493_00 (5 July 2002)
THE INDUSTRIAL TRIBUNALS
CASE REF: 00493/00 and Others
APPLICANTS: Neil Cousins and Others
(see attached list)
RESPONDENT: B/E Aerospace (UK) Limited
DECISION
The unanimous finding of the Tribunal is that:-
(i) The applicants, Mr Nigel McKee, Mrs Majella Rooney, Mr Alan McKee, Mr Kieran Young, Mr Michael Anthony Hughes, Mr Liam McGlue, Ms Andrea O'Rourke, Mr Stephen Sloan and Mr Neil Cousins were employed by the respondent and were dismissed by the respondent on grounds of redundancy. The dismissal of those applicants by the respondent was not unfair.
(ii) The complaints of unfair dismissal of Mr Nigel McKee, Mrs Majella Rooney and Mr Kieran Young are dismissed, without further Order.
(iii) The complaints of Mr Michael Anthony Hughes, Mr Liam McGlue, Ms Andrea O'Rourke, Mr Stephen Sloan, Mr Neil Cousins and Mr Alan McKee are dismissed with costs in each case in favour of the respondent of the amounts indicated as follows:-
(a) in the case of Mr Michael Anthony Hughes, the sum of £500; and
(b) in the respective cases of Mr Liam McGlue, Ms Andrea O'Rourke, Mr Stephen Sloan, Mr Neil Cousins and Mr Alan McKee, the sum each of £100,
and the Tribunal orders these applicants to pay to the respondent costs in each case of the amount so specified.
(iv) The complaint of Mr Robert J Marsh is adjourned, by consent.
Appearances:
The applicants were represented by Mr Gary Purvis, Barrister-at-Law, instructed by Edwards & Co, Solicitors.
The respondent was represented by Mr Ralph Murphy of Engineering Employers Federation.
This is a reserved decision in extended form under Regulation 10(4)(d) of Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 1996, as the Tribunal considers that reasons given in summary form would not sufficiently explain the grounds for its decision.
BACKGROUND TO THE MATTER AND ISSUES
- The ten applicants in this consolidated matter, Mr Neil Cousins, Mr Michael Anthony Hughes, Mr Liam McGlue, Ms Andrea O'Rourke, Mrs Majella Rooney, Mr Stephen Sloan, Mr Kieran Young, Mr Alan McKee, Mr Nigel McKee and Mr Robert J Marsh were all employees of the respondent company, employed under contracts of service, and all were dismissed by the respondent company. This Tribunal has, in an earlier record of proceedings, dealt in some detail with the background to the dismissals and the reasons for the respondent company implementing a programme of redundancy, which programme resulted in these dismissals. The Tribunal has also dealt in some detail with the relevant authorities and the principles of law in regard to redundancy selection. In the case of each of these applicants, a complaint was lodged with the Office of Tribunals alleging unfair dismissal. As between each of the applicants, there was quite a difference in the manner in which the applications to this Tribunal were framed and in the details specified in respect of the complaints as alleged. A Consolidation Order was made by the Tribunal on 3 July 2000, consolidating these claims.
- A hearing by this Tribunal of the complaints commenced with all the applicants (whose complaints were originally commenced with a number of different representatives) being represented by a single firm of Solicitors and by instructed Counsel. At the outset of the hearing it was made clear that one applicant, Mr Michael Anthony Hughes, was in the USA and did not, it would appear, intend personally to take part in the proceedings. The case of Mr Hughes was allowed to stand with the other cases until a determination had been reached in respect of those other complaints.
- The matter was then listed for disposal of preliminary issues. It has now come forward for a hearing in respect of the substantive merits of each applicant's complaint against the respondent. On the first two days of this hearing all the applicants were absent save for three, these being Mr Nigel McKee, Mrs Majella Rooney and Mr Kieran Young. In regard to the case of Mr Robert John Marsh, evidence was given on the first day of the hearing that Mr Marsh had been dispatched to Japan by the respondent company in the course of his employment and that he would not be returning to Northern Ireland until after the final day listed for the hearing. The Tribunal accordingly adjourned the case of Mr Marsh upon application by his representative and without objection on the part of the respondent.
- On the afternoon of the second day of the hearing, the applicants' representative confirmed that, in respect of the applicant, Mr Hughes, that person had emigrated to the USA and he had no intention of returning to this jurisdiction for the purpose of the proceedings. In respect of the other five of the six applicants who were not in attendance before the Tribunal, the representative for those applicants indicated that the applicants in question had retained that representative, and the retainer was still a current one. It was indicated to the Tribunal that the applicants: Mr Cousins, Mr McGlue, Mr Alan McKee, Ms O'Rourke and Mr Sloan, would not be in attendance before the Tribunal; the representative had contacted each of the applicants and they had each expressed the reason for their not being in attendance as 'work commitments'.
- The Tribunal then heard an application from the respondent's representative that the respective complaints of these applicants who had chosen not to attend before the Tribunal should be dismissed, with costs in each case. The Tribunal heard the submissions on the second day of the hearing and reserved its determination. There was an indication then given by his representative that day that the applicant, Mr Alan McKee, would be in attendance for the following day's hearing. Mr Alan McKee was not in attendance for the following (the third) day of the hearing. However, the Tribunal did hear other evidence in regard to his complaint and, in common with those other applicants who did not appear at the hearing, did consider any documents, including Originating Applications, and did hear any submissions in respect of these complaints.
- The Tribunal heard oral evidence in respect of the cases of the three applicants, Mr Nigel McKee, Mrs Majella Rooney and Mr Kieran Young, which three persons had been in attendance from the outset of the proceedings. In each of these cases, the Tribunal therefore had to determine whether or not the respective complaints of unfair dismissal were made out upon the evidence placed before it.
THE TRIBUNAL'S FINDINGS
In consequence of the written and oral evidence adduced before it the Tribunal made the findings of fact set out below:-
- It must be said, at the outset, that the Tribunal did not have to deal with any significant issues of witness credibility in respect of those persons appearing to give oral evidence, nor were there widely-differing contentions as to the facts requiring to be resolved; indeed, the Tribunal found all witnesses appearing before it to be largely competent and credible in their evidence. The Tribunal does not intend, for brevity, to recite here many of the matters of fact which have been referred to in earlier records of proceedings; nor to recite the earlier legal submissions and the Tribunal's determination in respect of those, insofar as this would be material to the Tribunal's final determination set out in this decision. These are recorded in the earlier records of proceedings. It should suffice to say that the Tribunal found that the ten applicants in this consolidated matter were employed by the respondent company, which company carried on a manufacturing business in the Aerospace Industry from premises in Kilkeel, County Down. The respondent was part of a group of companies having their base of operations in the USA. At the material time, the company granted official recognition to a trade union, the 'GMB', for consultation in regard to issues such as redundancy. In the latter part of 1999 the respondent suffered a significant downturn in levels of business. A decision was taken that redundancies would be necessary. Consultation took place with appointed representatives of GMB and redundancy selection criteria were identified by the respondent's management, without objection from GMB. These criteria were:-
(i) Timekeeping;
(ii) Absence; and
(iii) disciplinary record.
- Over a number of days the respondent extracted relevant information and statistics from the company's records. This information was then presented in tabulated form and, after a scoring exercise had been conducted, a number of employees in the selected part of the workforce identified for redundancy were categorised as being 'at risk'. The company then conducted interviews ('at risk interviews') with these employees in the early part of December 1999. After the relevant scores were put to the employees in question, each employee was asked if he or she wished to put forward mitigating circumstances which it might be felt ought to be considered by the respondent. Any representations made by the employees were then further investigated as was felt necessary and any records were re-checked. When that process was concluded, the final 'at risk' interviews took place in respect of each selected employee and each was advised whether he or she had been selected for redundancy. Each of the applicants in this matter was selected for redundancy and each was dismissed, having received any outstanding wages due and basic statutory redundancy pay. All of the applicants accepted that any monies thus received were correctly calculated, the only outstanding issue in each case being the respective complaints now before this tribunal.
- Much of the case appears to the Tribunal to relate to the issue of the purpose and the intent of the 'at risk' interviews, and the expectations on the part of the individual employees and of management as to what would turn upon the discussions at such interviews. This needs to be examined. The case also necessitates an examination of the selection criteria and of the application of those criteria to the cases of the individual employees.
Examining then the selection criteria, the first of these criteria was 'timekeeping'. One instance of poor timekeeping (for instance a late arrival, late return from lunch, or going home early) would be scored at one point. Secondly, in respect of each instance of absence from work, this was referred to as an 'incident'. This equated, according to the respondent, to sickness or other absence from work, not covered by holiday leave form. However, into a special category fell a sequence of four or more hospital attendances for a particular medical condition. A company rule established by custom and practice dictated that such sequential hospital attendances for a particular medical condition ought to be disregarded by management; thus instances of absence might be deleted from an employee's scoring. Finally and thirdly, in respect of disciplinary record, a recorded verbal warning would not carry any score. However, a written disciplinary warning carried a score of twenty-five points, and a final written warning carried a score of fifty points. None of the applicants was affected by that latter category save Mrs Rooney. Mrs Rooney had received a written disciplinary warning and therefore would have a score of twenty-five points attributed to her.
- The 'at risk' interviews were conducted by the respondent's Human Resources Manager, Mr Kevin Ives, assisted by Mr Kieran Cole, the respondent's Production Manager. The Tribunal examined the expressed purpose of the procedure employed by the respondent in regard to the 'at risk' interviews. Whilst the respondent contended that the main purpose of the 'at risk' interviews was to explain the selection criteria and the scoring application thereof to each selected employee, as far as the respondent was concerned, the facility also afforded an opportunity for each employee to make representations and to volunteer information which might possibility have had some effect in suggesting that the company ought to re-visit the scoring or otherwise look again at the situation of the individual employee. By way of example, one employee drew to the respondent's attention that there was a computation error in his points score on account of a mis-classification of certain work attendance information. Points were subsequently deducted from that employee's score to rectify this error. In other example, an employee's score contained certain recorded absences. When these were re-classified to accord with the company's hospital attendance policy, that employee's points total was reduced and such absences were disregarded for scoring purposes. However, leaving aside these instances, the company's position was claimed to be quite clear; it was stated that the respondent could not take account of any other matters argued in mitigation by the employees, for instance the commonly-raised issue of domestic hardship. Notwithstanding this, it is clear that a certain number of the applicants, if not all of them, had an impression that the 'at risk' interviews afforded to them an effective opportunity to present a wide range of arguments in general mitigation of their position, for instance by raising issues of domestic hardship or other responsibilities or difficulties faced by them in their personal lives. Such arguments were referred to before the Tribunal, perhaps rather harshly, as 'hard luck stories'. The company's position was that, in the application of the selection criteria, such hard luck stories had to be disregarded, cruel though that might seem. The proposition was put forward by the respondent that no other alternative presented itself to the respondent in the fair, albeit strict, application of the criteria.
- On the strength of the selection criteria and of the resultant scoring, the list of employees to be selected for redundancy was made out from those who had the highest scores. Such persons included the applicants before this Tribunal. The Tribunal will deal further below with the situation of those applicants who did not appear before it to give evidence. At this point, it is beneficial to mention the facts as they apply to the situation of the three individuals who chose to appear before the Tribunal.
MR NIGEL McKEE
- Mr Nigel McKee was called to his at risk interview on 9 December 1999. He had been placed on the at risk list on account of a points total which brought him over the relevant threshold. He had a total of thirty-three timekeeping incidents and ten attendance incidents. At the at risk interview, Mr McKee brought to the attention of the respondent an issue of domestic hardship in that he had custody of a child and was a single parent facing a difficult domestic situation. The respondent felt that this situation merited further investigation. It was conscious of a possible issue requiring particular legal advice to be taken. Legal advice was duly taken and further information was gathered, including documentation supplied by Mr McKee. Mr McKee had originally been included in a round of redundancies scheduled to take effect on 15 December 1999. A decision was deferred. At a further meeting on 8 February 2000, Mr McKee supplied information and documentation. An administrative error was discovered; four incidents between 13 and 16 April 1999 had been counted when Mr McKee was on night shift. This was an error. These incidents were removed, leaving twenty-nine timekeeping incidents and ten attendance incidents. Legal advice received by the company confirmed that the respondent was under no specific obligation to Mr McKee, which would have merited a further alteration of his points score, in respect of Mr McKee being a single parent and having custody of a child. As Mr McKee's score was in excess of the relevant threshold, he was selected for redundancy. He was made redundant with effect from 20 February 2000.
MRS MAJELLA ROONEY
- Mrs Rooney was called to her at risk interview on 8 December 1999 and this was further adjourned to 9 December 1999 in order that her situation might be further appraised. Mrs Rooney had a total of fourteen time-keeping incidents and eighteen absence incidents. Mrs Rooney was asked if there were any mitigating circumstances. In response, she raised a number of issues. Mrs Rooney had put forward some documentation explaining her absences from work which related to personal doctor's appointments and also those in relation to her children's illnesses. In particular, Mrs Rooney was unfortunate to have a daughter who was suffering from a disability. Mrs Rooney contended that she had previously discussed the situation and the respondent understood that she would have to take time off work on account of these matters. In response to this, Mr Ives stated that he could not distinguish between various categories of reasons for absence. He was obliged to apply the same policy and procedure whether the absences were for documented cause (such as illness or medical appointments) or otherwise. Mrs Rooney also raised the issue of the points in relation to her disciplinary record. She contended that she had been assured by her supervisor, a Mr Miller, that because of the circumstances surrounding that disciplinary matter, the points would not be taken into account in the redundancy selection. Mrs Rooney also referred to other issues relating to overtime worked by her and to the suggestion that she had been sent home early from work on account of there being no work to carry out. At the end of the second day's interview, Mr Ives announced that Mrs Rooney was to be made redundant with effect from 15 December 1999. Her redundancy did become effective on that date.
MR KIERAN YOUNG
- Mr Young was called to his at risk interview on the 9 December 1999. He had a total of twenty-four time-keeping incidents and thirteen attendance incidents. At the at risk interview Mr Young brought to the attention of the respondent the fact that he had been late for work on a number of occasions as his wife, who was a childminder, had to pick up a child in the morning and there had been consequent delays. He also expressed surprise at the number of incidents in his scoring. The interview was adjourned and was reconvened on 13 December 1999. Mr Young was given an opportunity to inspect the list of time-keeping incidents and to refer to the relevant clock cards from which the information had been compiled. Mr Young also raised the issues of a claim that on occasions he had been asked to go home early when work was slack, and also a claim that an industrial injury absence from work had wrongly attracted a points score. The respondent investigated the records in regard to that latter issue at the time it was raised. At the conclusion of the meeting on 13 December 1999, it was confirmed to Mr Young that he was to be made redundant, and his dismissal for redundancy took place on 15 December 1999.
THE TRIBUNAL'S DECISION
- Each applicant in these proceedings has lodged a complaint alleging unfair dismissal. The Tribunal's task is to consider whether or not, as the respondent had conceded that it had dismissed all of the applicants, these dismissals were fair or unfair. An employee has a right not to be unfairly dismissed by his employer under Article 126(1) of the Employment Rights (Northern Ireland) Order 1996, unless the employer can show that the dismissal is fair for one of the reasons set out in Article 130 of the said Order. One such reason is redundancy. This is set out in Article 130(2) (c) of the said Order. A redundancy is defined in Article 174 of the said Order, which Article states:-
174(1) for the purposes of this Order an employee who is dismissed shall be taken to be dismissed by reason of redundancy if a dismissal is wholly or mainly attributable to -
(a) the fact that his employer has ceased or intends to cease –
(i) to carry on the business for the purposes of which the employee was employed by him, or
(ii) to carry on that business in the place where the employee was so employed, or
(b) the fact that the requirements of that business –
(i) for employees to carry out work of a particular kind, or
(ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer,
have ceased or diminished or are expected to cease or diminish.
- Redundancy is the reason stated by the respondent for these dismissals. The Tribunal takes the view that none of the applicants (save Mr Hughes upon whose complaint the Tribunal comments further below) appears to have taken serious issue with the suggestion that there was a genuine redundancy situation falling within the terms of the foregoing statutory definition, and that there were proper reasons for making some of the workforce redundant on grounds of economic necessity. As redundancy is a potentially fair reason for dismissal in consequence of Article 130 of the said Order, the Tribunal had to determine whether, in any material aspect, the dismissals were fair or unfair, taking into account relevant considerations. This decision deals first of all with the cases of the three employees who were in attendance before the Tribunal to give evidence in respect of their respective complaints.
- Dealing initially with the redundancy selection criteria, before discussing the specific application of these criteria to the cases of the individual applicants, the Tribunal had better state that it does accept that these criteria were chosen by the respondent properly and for good cause. The selection criteria were discussed in some detail with the trade union representatives; these criteria were found not to be objectionable (although not expressly agreed to by these representatives for reasons of union policy), and they were objectively fair. The Tribunal cannot take issue with these criteria nor can it substitute its own principles of selection for those of this employer, but rather it can interfere only if the criteria adopted are such that no reasonable employer could have adopted or applied them in the way the respondent did (see Earl of Bradford v Jowett (No. 2)[1978] IRLR 16). It had been submitted on behalf of the applicants that an employer does not act reasonably unless he considers for example the reasons why the employees selected on attendance redundancy selection criteria were absent; the case of Paine and Moore v Grundy (Teddington) Ltd [1981] IRLR 267 EAT was argued in support of that submission. As mentioned above, this Tribunal has earlier considered and has dealt in some detail with the issues of procedure in regard to redundancy selection criteria and the application thereof. There is no necessity to repeat the Tribunal's expressed views here. The issue therefore is whether or not there was fair application of the redundancy selection criteria to each of the selected employees in the matter and whether the process of selection and of dismissal was, in overall terms, fair. The general law is in accordance with the guidelines as set out in the case of Williams v Compair Maxam Ltd [1982] IRLR 83 EAT, which were approved by the Court of Appeal in Northern Ireland in Robinson v Carrickfergus Borough Council [1983] IRLR 122. Furthermore, the general importance of adhering to procedural safeguards has been emphasised by the House of Lords (per Lord Bridge) in the case of Polkey v AE Dayton Services Ltd [1987] IRLR 503.
- Dealing with the issue of disciplinary record being taken into account, in the case of Mrs Rooney the Tribunal notes the applicant's contention that the attribution of twenty-five points to a disciplinary record which included a written warning had a disproportionately significant effect on Mrs Rooney's overall score. However, in the selection of that criterion and in the application of a points system thereto, the Tribunal sees nothing inappropriate or disproportionate in the respondent's attribution of a score of twenty-five points. Furthermore, the Tribunal accepts that, once a disciplinary record exists, it would be neither fair nor reasonable to expect an employer to re-run the disciplinary process by further enquiry into the background of the matter and by further addressing the issue of whether or not the disciplinary record should properly exist and whether it should properly have stood in the computation of points. This criterion was discussed with the trade union representatives; no objection was raised. The Tribunal cannot find fault with the application of these twenty-five points; it seems fair in all respects, and the Tribunal believes that any contention of alleged assurances given to Mrs Rooney by her supervisor to the contrary are not material to a decision in this matter.
- Turning then to the criteria of the time-keeping and attendance records, the Tribunal examined the definition of what were known as 'incidents'. The Tribunal specifically examined the respondent's documentation in respect of what were referred to as 'revised redundancy selection criteria'. This documentation quite clearly spells out the nature of a 'timekeeping incident' or an 'attendance incident'. The Tribunal further notes that in each letter directed by the respondent to each of the applicants explaining the points computation as it related to each at risk employee, the respondent has defined each type of incident with reference to these stated criteria. However, part of the applicants' argument in this case is that there was a type of 'sub-text' running parallel to the expressly stated and seemingly clear criteria definitions. It has been argued that the definitions are not all that they seem - that they are capable of or require further interpretative measures. The Tribunal heard in evidence from Mr Ives that a time-keeping 'incident' meant that if an employee came in late to work in the morning, arrived late back after lunch, or was away from work early, irrespective of the issue of permission to do so from, for instance, a supervisor, any one of these instances was an 'incident'. Mr Ives used in his evidence the explanatory device of a distinction between 'paid' and 'unpaid' time off. He particularly emphasised and focused upon those absences which were not paid. He further stressed that the reason for or cause of these absences was not in issue, nor was it really of any relevance at all. He contended that, in his dealings with such a vast amount of statistical information, he simply could not conduct a minute investigation into the reasons for each of these absences. He stated that there were approximately fourteen thousand clock cards. The only realistic method of dealing with such a vast amount of information was to apply an objective, one could say a mathematical, interpretation, in a strict fashion, without becoming involved at all in issues of subjective judgement.
- In respect of attendance, Mr Ives further explained that an attendance 'incident' was an absence from work which was not authorised. By way of example, the revised selection criteria defined an attendance incident as 'sickness or absence not covered by a holiday form'. However, the Tribunal noted that the reality was a little more complicated than that. Whether it was a whole day or part of a day seems to have made no difference. Any day or part thereof when the employee was absent was regarded as being an 'absence incident'. For instance, if Mrs Rooney took off only part of a day on account of a medical appointment for a child's illness, that was counted as an incident. (There was of course the exception in regard to the hospital appointments procedure which had been referred to above). However, part of the confusion which some applicants appear to have experienced arises from the use of the expression by Mr Ives 'unauthorised absence'. Again, to take the example of Mrs Rooney, there is little doubt that she did seek and did secure permission from her work supervisor to be absent for medical and other appointments relating to her children. Her absence was therefore not, in common parlance, 'unauthorised'. She was clearly authorised by her supervisor. However she was not paid for this absence. It is thus that Mr Ives' 'paid/unpaid' distinction becomes material. However, the Tribunal sees no evidence that this 'paid/unpaid' distinction was expressly stated at the time of the at risk interviews. Perhaps the use of the expression 'not covered by holiday form' might be saying the same thing. However, the Tribunal feels that greater clarity of language on this point would have been most helpful in avoiding a potential source of misunderstanding on the part of some if not all of the selected employees. A similar comment could be made about the definition of an absence incident covering a day or part of a day or indeed a number of days in sequence. However, whilst the respondent might be criticised perhaps for lack of clarity in the language employed, the Tribunal does note that, whilst primary responsibility for the determination and the clear expression of the redundancy criteria rested with the respondent, the employees' trade union representatives had every opportunity for input into all of this over a number of meetings, and those representatives must bear some responsibility if a source of confusion did arise as a result of the terminology used.
- Whilst the Tribunal is being somewhat critical of the respondent's use of language, it is also worth mentioning that the use of the word 'mitigation' in the at risk interviews was similarly unhelpful. The reality was that there was engendered a considerable divergence in expectation as between the respondent's management on the one hand, and the selected employees on the other, as to what could really be achieved at these interviews. By way of example, Mrs Rooney was quite critical of the manner in which Mr Ives appeared to disregard the evidence which she had assembled to support her contention that she had had to attend a number of medical appointments on account of her children. Mr Ives appeared to be dismissive, she felt, and he would not look at the documentary evidence. She therefore believed that by 'mitigation' was meant that a facility was being afforded to her to put forward one or more out of a broad range of possible considerations by way of a plea in mitigation, as it would be understood in common usage. To Mr Ives, in contrast, "mitigation" seems to have meant a very much more restricted concept. For instance, Mr Ives took on board information regarding possible computation or misclassification errors in the points scores at these mitigation interviews. Thus, Mr Nigel McKee's scoring was amended because of a misclassification and computation error relating to night shift work. Whilst Mr Ives, in his evidence, put forward the suggestion that mitigation extended to all kinds of possibilities, it is clear to the Tribunal that the reality was that very little could be raised by the selected employees which would have had any effect whatsoever on their scoring. However, it is clear that the at risk employees' view of the purpose and possible outcome of these at risk interviews in terms of possible mitigation was very different from that of the respondent's management. The Tribunal believes that it is on account of this disparity that a considerable amount of the discontent and indeed confusion on the part of the selected employees was engendered.
- In the particular case of Mr Young, an investigation was carried out into Mr Young's contention that he had been allocated points for absence stated to be due to an industrial injury sustained in the course of his employment. Mr Young contended that he had been assured that three points in that regard were to be subsequently deducted. However, there is no evidence that the respondent did indeed deduct any points, nor is there any mention of this matter in the correspondence in relation to Mr Young's case seen by the Tribunal. However, leaving that aside, the process of the respondent looking into the facts of Mr Young's industrial injury illustrates that, in practice, mitigation was seen by Mr Ives as going a little beyond the mere investigation of computation and misclassification mistakes. However and unfortunately in Mr Young's case, there was insufficient evidence adduced before the Tribunal for it to reach any conclusion at all in respect of any distinction between absence on account of an industrial injury and absence for what might be termed more 'routine' sickness. The Tribunal did also note that it was further argued by the respondent that, even if these three points relating to the injury absence in question had been deducted from Mr Young's score, that score would still have been in excess of the applicable threshold, and Mr Young would have been dismissed in any event. That contention appears to be correct.
- The Tribunal then examined whether there was in reality a category of excused or authorised lateness or absence. In his evidence, Mr Ives contended that there was no authorised but unpaid absence. The Tribunal has some difficulty in accepting that. The Tribunal notes, for instance in the case of Mrs Rooney, instances of apparently authorised absence which nonetheless appear to have been unpaid. The respondent's witnesses did not try to make the case that Mrs Rooney had taken leave without permission, for instance for these medical appointments. The Tribunal thus believes that the material distinction here must be between absence being authorised and payment being authorised. The Tribunal therefore had some difficulty with the expression 'unauthorised absence' as employed by the respondent; the Tribunal notes the confusion which that seems to have been engendered thereby.
- The next point for the Tribunal's consideration was the respondent's stated 'custom and practice' in respect of four or more hospital appointments for the same medical condition. Whilst it may possibly have been the case that Mrs Rooney was attending medical appointments with one or more of her children on more than four occasions for the same medical complaint, Mr Ives was at pains to stress that that type of potential situation did not fall within the custom and practice rule relating to individual employees with four or more appointments. Whilst at first sight that stance might seem to be unfair or even to be contradictory, upon reflection, the Tribunal is sympathetic to the respondent's position here. There is insufficient evidence of any such custom and practice in relation to parental responsibility for the attendance of medical appointments with children for the Tribunal to conclude that it existed; the situation of an employee personally attending a series of four or more hospital appointments for the same medical condition is quite another matter.
- In respect of all of the foregoing, for the applicants it had been argued that, far from there being in reality rigid criteria which were firmly and indeed dispassionately applied, the respondent's approach opened up what has been referred to in the applicants' submissions as a 'Pandora's Box'; once opened, the respondent was in fairness obliged to consider any argument whatsoever raised in mitigation, it was contended. The Tribunal has difficulty in accepting that argument when it examines the cases of the individual applicants. The Tribunal's difficulty is for the reason that, when one scrutinises the application of these criteria, despite the rather unhelpful use of language, one cannot see that the employer, firstly, intended to, secondly, that it felt itself obliged to, or thirdly, that it was indeed legally obliged to open up the process to involve detailed scrutiny on its part of the entire field of possible arguments in mitigation. Most of these the respondent felt would have been entirely irrelevant to the matter.
- If one then looks at the individual cases of the employees, in regard to Mrs Rooney's case, the Tribunal cannot take issue with the disciplinary record scoring. In regard to the other incidents (the particular contention that Mrs Rooney was sent home early is for ease of reference dealt with in the next paragraph) the Tribunal has great difficulty in seeing that there was anything intrinsically unfair in the application of the selection criteria to Mrs Rooney's employment record. In that regard, the Tribunal bears in mind the statutory provisions contained in Article 130(1), 130(2)(c) and 130(4) of the Employment Rights (Northern Ireland) Order 1996. Whilst the nature of the terminology employed by the respondent was perhaps unsatisfactory, and whilst that may have been a source of confusion, that fact of itself does not make Mrs Rooney's selection for redundancy and her dismissal on that ground unfair. The tribunal does not see in the facts anything to support Mrs Rooney's contention that she was unfairly dismissed. Accordingly, in the case of Mrs Majella Rooney the Tribunal finds that that applicant was dismissed by the respondent on grounds of redundancy and that the respondent's selection of Mrs Rooney was fair and, furthermore, that the procedure employed in that selection and dismissal did not lead to any degree of material unfairness sufficient to permit the Tribunal to conclude that Mrs Rooney had been unfairly dismissed.
- In regard to the case of Mr Young, dealing firstly with Mr Young's contention that he had been sent home early and thereby points had been attributed, upon the evidence there appears to be no rule of company policy covering that situation, either by way of an express or an implied term. His situation is rather different from that of Mrs Rooney in that he stated in his evidence that he went home early as a favour on behalf of a supervisor. Mrs Rooney contended that she was sent home early; that was denied by the respondent. Mr Young's going home early was not compulsory nor on foot of a company direction or instruction. The Tribunal does not accept that Mrs Rooney was sent home early - that there was any element of compulsion. There is no evidence that either she or Mr Young were dealt with in any way which was different from the other employees. Mr Young's other "mitigation" argument in the course of the at risk process was that his spouse was a childminder and lateness connected with domestic difficulties in that regard ought to have been taken into account and excused. The Tribunal cannot conclude that there was anything unfair in the respondent's application of the criteria to exclude that argument in mitigation. In respect of the industrial injury absence matter, there was no evidence that the three points deduction from the overall score was ever effected. However, even if it had been, Mr Young's total score would still have been above the applicable threshold and he would have been dismissed, regardless; there would have been no difference in the outcome. Looking at the facts of the matter, and applying the relevant legal principles, the Tribunal cannot take any other view but to conclude that, firstly, Mr Young was dismissed on grounds of redundancy, and, secondly, that the application of the redundancy selection criteria to his case and the selection of Mr Young on that account were fair and proper to such a degree as to preclude Mr Young from being successful in his complaint of unfair dismissal.
- Turning then to the complaint of Mr Nigel McKee, when Mr McKee raised the misclassification issue in the course of his at risk interview, the respondent investigated and properly amended the points total on that account, as there had been an error. Regarding the issue of the dependent child raised by Mr McKee, the respondent addressed that issue fully and properly, with appropriate advice being sought and appropriate investigation conducted, and the respondent decided to make no alteration of the points score on that account. Mr McKee was accorded quite a high points score. The Tribunal saw no reason why that score ought properly to have been reduced to a level below the threshold for redundancy selection. There was no material unfairness done to this applicant. Accordingly, the Tribunal finds, firstly, that Mr Nigel McKee was dismissed on grounds of redundancy and, secondly, that the application of the redundancy selection criteria to his case and the selection of Mr Nigel McKee on that account were fair and proper to such a degree as to preclude Mr McKee from being successful in his complaint of unfair dismissal.
- Turning now to the cases of the other applicants, the Tribunal has adjourned the case of Mr Robert J Marsh for the reasons stated above. Regarding the remaining six applicants, the Tribunal particularly notes that the applicants' representative at the hearing did not effectively oppose the respondent's representative's application to have these six applications struck out for want of prosecution. The Tribunal is satisfied that all of these six applicants, Mr Michael Hughes, Mr Liam McGlue, Ms Andrea O'Rourke, Mr Stephen Sloan, Mr Neil Cousins, and Mr Alan McKee, were properly notified and were aware of the various dates fixed for the hearing of this matter, and that each of these applicants had, both on an individual basis and jointly, retained and instructed a representative in each of their respective cases. However, each of these applicants had chosen not to appear before this Tribunal to give evidence or otherwise to assist in the clarification of the issues relating to the matter of their individual complaints. The Tribunal has had regard to the respective Originating Applications of each of these applicants and to any other evidence. Clearly the contentions of each applicant can only properly be dealt with and determined by the adduction of each applicant's oral testimony in clarification of the issues. Having been afforded a fair opportunity to do so, these applicants have each chosen not to give the Tribunal the information necessary to determine their complaints. The Tribunal therefore had no difficulty in acceding to the application on the part of the respondent's representative, without significant objection on the part of the applicants' representative, that the complaints of these six applicants, Mr Michael Anthony Hughes, Mr Liam McGlue, Ms Andrea O'Rourke, Mr Stephen Sloan, Mr Neil Cousins and Mr Alan McKee ought properly to be struck out for want of prosecution.
- Furthermore, the respondent's representative has applied for costs in each of these six cases. The Tribunal considered the application of Rule 12 in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 1996. That Rule states that an Order containing an award against that party in respect of the costs incurred by the other party may be made by the Tribunal:
'12. - (1) where, in the opinion of the tribunal, a party has in bringing or conducting the proceedings acted scandalously, frivolously, vexatiously, abusively, disruptively or otherwise unreasonably '.
The Tribunal was of the opinion that there was little evidence that these six applicants had acted in anything other than a frivolous fashion. They had however acted in disregard to the proper procedures and functions of the Tribunal and in disregard to the difficulties and expense to which a respondent might be put when faced with an applicant who initiates a complaint but who then neither withdraws the complaint nor properly pursues that complaint to a conclusion. In regard to the individual cases, dealing firstly with the case of Mr Michael Anthony Hughes, the Tribunal cannot but take the view that Mr Hughes acted in an entirely cavalier fashion as regards both the Tribunal and the respondent. In contrast to the others, his Originating Application seeks to suggest that there were no proper grounds for redundancy at all, and that the reason stated by the respondent for his dismissal was, as he puts it, a 'disguise'. He further suggests that his employer did not properly make clear to him the reason why the employment was terminated. Both of these contentions are, upon the facts, quite unsustainable. It must be said that this complaint and the manner in which it was prosecuted is nearer to, but just falls short of, the category of 'vexatious', as opposed to 'frivolous'. Mr Hughes, it would seem, departed to live and to work in the USA. It appears that he did so having no intention of returning to assist in the determination and the conclusion of his complaint and of these proceedings, nor indeed does he appear to have taken the trouble to instruct his appointed representative that some other means of properly prosecuting his complaint should be found. Despite that, he has chosen not to discontinue proceedings. He has thus put the respondent to some considerable difficulty and to some expense in preparing to meet and to counter the allegations which have been made against them in his complaint. In this case, taking full account of the approach displayed by Mr Hughes to the matter, the Tribunal feels that it is appropriate to make a substantial award of costs in favour of the respondent against this applicant. Accordingly, the Tribunal Orders, on foot of Rule 12 of the Tribunal's Rules of Procedure, that Mr Michael Anthony Hughes shall pay to the respondent the sum of £500.00 in costs.
- In the five other cases, these being the cases of Mr Liam McGlue, Ms Andrea O'Rourke, Mr Stephen Sloan, Mr Neil Cousins, and Mr Alan McKee, the Tribunal notes the contents of each Originating Application. These applications are not, upon the facts determined by this Tribunal, capable of being construed as intentionally misleading nor as an attempt to misrepresent the facts. The Tribunal also notes that each of these applicants did appear at hearing on either the first day of the hearing of the preliminary issues or in the next days thereafter, although each of these applicants did not appear at the substantive hearing of his or her respective case, once the preliminary issue matters had been dealt with and disposed of by this Tribunal. The Tribunal believes that the fairest conclusion which can be drawn is that the parties in question seem to have lost interest in the proceedings when, at the earlier preliminary hearing stage, matters took a somewhat technical turn and became rather protracted on that account. The Tribunal feels that, having initially attended the hearing of the proceedings, each of these applicants' respective decisions not to attend was quite recently taken. Looking at the issue of the respondent's costs, it cannot be fairly said that these five applicants in any way caused or contributed to the costs of dealing with those technical issues which were heard and were dealt with earlier and at some length before this Tribunal. The costs of the latter days of the hearing, in proportionate terms and as these costs might relate to the individual complaints of these five applicants, are a relevantly small proportion of the respondent's total costs, the Tribunal believes. However, the Tribunal cannot disregard what it sees as the issue of a rather frivolous disregard being shown for these proceedings on the part of each of these five applicants which emerged towards the conclusion of the hearing, and the issue of any detriment in terms of costs incurred sustained by the respondent on that account. The Tribunal therefore determines that it is appropriate to make an award of costs under Rule 12 against each of these five applicants, Mr McGlue, Ms O'Rourke, Mr Sloan, Mr Cousins, and Mr McKee to reflect this. The Tribunal thinks that an appropriate figure is £100.00 in each case. The Tribunal does not feel that it is appropriate to make any distinction in terms of that figure as between any of these five applicants. In contrast, the position of Mr Hughes is rather different and the Tribunal feels that the figure of £500.00 for costs in his case is fair and is proportionate. Accordingly, the Tribunal Orders, on foot of Rule 12 of the Tribunal's Rules of Procedure, that Mr Liam McGlue, Ms Andrea O'Rourke, Mr Stephen Sloan, Mr Neil Cousins, and Mr Alan McKee shall each pay to the respondent the sum of £100.00 in costs.
- The Tribunal having considered the content of the respective Originating Applications of, and any other evidence in regard to, Mr Michael Anthony Hughes, Mr Liam McGlue, Ms Andrea O'Rourke, Mr Stephen Sloan, Mr Neil Cousins, and Mr Alan McKee, and having considered any representations made on their behalf by their appointed representative, cannot determine that any one of these six applicants has been unfairly dismissed. On that account, the Tribunal dismisses each of these six applications with costs in each case in favour of the respondent of the amount indicated above, but without any further Order.
Chairman:
Date and place of hearing: 1-5 July 2002, Belfast
Date decision recorded in register and issued to parties:
