Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 07172/09       

 

 

 

CLAIMANT:                      Hugh Gourley       

 

 

RESPONDENT:                Gray & Adams (Ireland) Ltd      

 

 

 

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent.  Compensation payable will be assessed at a later hearing.

 

 

Constitution of Tribunal:

Chairman:                        Mrs M. Watson     

Members:                        Mr A. Huston        

                                        Mr J. Magennis

 

Appearances:

The claimant represented himself.

The respondent was represented by Mr Alan Ferguson of Personnel and Training Services.

 

Contentions of the parties

1.       The claimant contends that there was not a need for redundancies or that he was unfairly selected for redundancy by the respondent from his position as fitter/welder on 7 July 2009. The respondent contends that there was a need for redundancies due to a downturn in its business and that the claimant was selected following a fair procedure.

 

 

 

Sources of Evidence

2.       The claimant gave oral evidence and provided the tribunal with a written statement of his evidence and written submissions relating to his case and the law relating to redundancy prepared by a solicitor. Terry Lavery, Workshop Manager and Billy Dougan, Managing Director gave oral evidence on behalf of the respondent. The tribunal was also provided with an agreed bundle of documents prepared by Mr Ferguson.

 

Findings of Fact

 

3.       The claimant had been employed as a fitter/welder by the respondents from 28 April 2003.

 

4.       The respondent company makes refrigerated and dry freight vehicles. They have made and repaired vehicles for, among others, Tesco and the Prison Service. The vehicles are made to each customer’s specification. The claimant was employed in the New Build Section.

 

5.       In June 2009, the respondent reduced its workforce by 9 because of a downturn in its orders due to the prevailing economic conditions. On 30 June 2009, the respondent carried out a further analysis of its financial position and notified the workforce that a further 3 staff, including the claimant, were also being considered for redundancy.

 

6.       The claimant had been given a letter the previous day inviting him to meet with Mr Terry Lavery, Workshop Manager, to discuss the proposal that his position be redundant and welding work would be reallocated to the remaining staff in the New Build Section.

 

7.       The tribunal was satisfied that the amount of welding carried out in the workplace had declined considerably. Mr Lavery explained that on a work project of 100 chargeable hours, welding would only make up between 4 and 5 hours. In the 6 months prior to the claimant’s redundancy, his non-productive/non-chargeable hours were 9 hours per week on average.

 

8.       The claimant was accompanied at the meeting by Jim Stewart, an employee’s representative. Helen Etherson, from Personnel and Training Services (PTS), the respondent’s advisers, was also present.

 

9.       At this meeting, the claimant asked what the selection criteria were. He was informed that the welding duties were reduced and he was employed as a welder. The claimant made the point that he had done any job that he had been asked to do and questioned his selection. He also asked if other measures had been considered.

 

10.     The claimant had a further meeting with the same representatives on 6 July. He was informed that the other ideas he had put forward were not viable but he was told that the company hoped that there might be some additional orders in the near future. He was asked if he would consider taking 8 weeks unpaid leave to see if any further work became available. The claimant refused this suggestion as he could not afford to be unpaid for that period.

 

11.     The claimant’s redundancy was confirmed by letter dated 7 July 2009. He lodged an appeal against this decision that same day.

 

12.     The appeal was heard on the following day, 8 July 2009 by Mr Billy Dougan, the Managing Director and Linda Robinson from PTS. Jim Stewart accompanied the claimant as before.

 

13.     The claimant said that the basis of his appeal was that the selection had not been based on any criteria and that he was selected because he was a welder. He believed that the type of work he was doing was the same as Zbigniew Bryla who had been employed for a shorter period. 

 

14.           The tribunal was provided with minutes of this meeting which showed that the claimant was told that;

 

(i)          it was the position that was made redundant, not a person;

 (ii)      people with different job titles could not be compared or scored together;

(iii)      there may be other people who do the job, but there is no-one else with that job title; and

(iv)      that disciplinary matters relating to other employees could not be discussed as these were confidential.

 

15.     The tribunal was informed that there had been a serious incident in the workplace that had resulted in some employees being issued with Final Written Warnings.

 

16.     Mr Dougan informed the tribunal that the respondent had a Redundancy Policy but it was not produced as he had not used it or referred to it during the redundancies.

 

17.     The Code of Practice on Redundancy Consultation and procedures prepared by the Labour Relations Agency had not been used by the respondent or their advisers.

 

18.     The tribunal found that the claimant had worked closely with Mr Bryla in the New Build Section but as the amount of welding decreased, the claimant had increasingly done work in other areas such as maintenance and Health & Safety repairs while Mr Bryla was involved in coachbuilding tasks. In addition, the tribunal found that the claimant’s belief in his ability to undertake work in other sections was not shared by Mr Lavery. When cross examined by the claimant, Mr Lavery identified skills that the claimant did not have and why other workers were retained.

 

19.     Mr Dougan wrote to the claimant on 22 July to inform him of the outcome of the appeal hearing. In his letter, Mr Dougan addressed the points made by the claimant at the hearing. With regard to Mr Bryla, Mr Dougan had analysed the work done by him and the claimant during the previous 6 months and found that while 77% of the claimant’s time was spent welding, only 44% of Mr Bryla’s time was. The letter went on;

 

“Therefore it is clearly evident that (Mr Bryla) has spent considerably less time than you performing welding related duties. In light of this, it would not have been viable for the Company to compare the two roles as like for like.”

 

20.     Mr Dougan also referred to the respondent’s standard contract of employment which requires flexibility to carry out other duties. 

 

21.     The appeal was rejected as the panel felt that ‘the correct procedure was followed in identifying your position of fitter/welder as being redundant.’ The decision of the original panel was upheld and the claimant was notified that his financial entitlement would be processed.

 

The Law

 

22.     The Employment Rights (Northern Ireland) Order 1996 (as amended) sets out the potentially fair reasons for dismissal, one of which is redundancy (Article 130(2)(c)).

Article 130(4) then provides that where a potentially fair reason has been found, the question of fairness has to be considered. This will depend on factors which include the reasonableness or otherwise of the employer’s reason for the dismissal. 

 

23.     Article 174 states that for a dismissal to be fair by reason of redundancy, it has to be wholly or mainly attributable to

 

(b)      the fact that the requirements of that business ----------

 

(ii)             for employees to carry out work of a particular kind …have ceased or diminished or are expected to cease or diminish.

 

24.     In redundancy cases, reasonable employers should ensure that they have followed a fair selection procedure.  In Williams & Others v Compair Maxam Ltd [1982] ICR 156, the Employment Appeal Tribunal laid down guidelines which a reasonable employer is expected to adopt.

 

The factors that a reasonable employer might consider are:

 

·       selection criteria which are objective and fairly applied

·       employees warned and consulted before the redundancy

·       the views of the union sought (if applicable)

·       whether alternative work was available.

 

25.     The Labour Relations Agency issued a Code of Practice in 1992 under the Industrial Relations (Northern Ireland) 1992 to assist employers in this difficult situation.  The Code was revised in 2002 and while the content is not statutory, tribunals should refer to it when determining a relevant issue.

 

26.     The Code advises that the appropriate pool of employees to which the selection criteria are to be applied should be identified. The selection criteria applied should be fair and as far as possible objective. The criteria most commonly used are identified as ability and performance (with evidence of objective appraisal), length of service, and attendance and disciplinary records. The employer should be able to demonstrate fair comparison of the information relating to the pool for selection. 

 

 

 

Tribunal’s determination

 

27.     The tribunal determines that the requirements of the respondent company’s business for work of a certain kind, in this case welding, had diminished and that redundancies were needed. However, the procedures adopted were inadequate and not within the band of reasonable responses that a reasonable employer should adopt. No proper consideration was given to the proper pool for comparison or to the selection criteria to be used.

 

28.     The tribunal noted that all workers were expected to be flexible and to be willing and able to carry out other duties but there was no apparent consideration or objective assessment made of the comparative skills of the employees.  Selection was based solely on the job title of the claimant. There was no investigation of other skills he may have had  such as those from previous employment. Other objective and measurable criteria such as length of service and disciplinary record were not used.

 

29.     The respondent fulfilled their obligations under the Statutory Dispute Resolution Procedures and carried out investigation of the issues raised by the claimant and his representative but the tribunal do not find that this has rectified the serious deficiencies in the overall procedures adopted for selection.

 

30.     Nor did the tribunal find that even if the respondent had used the proper procedures, it would still have resulted in the same outcome. However, the tribunal considers that there was a possibility that the same outcome would have resulted and assesses that possibility at 25% in the light of the fact that Mr Lavery was able to satisfy the tribunal that the claimant did not have the level of expertise for other sections that he thought he had.

 

31.     The tribunal was not provided with the details of the loss sustained by the claimant arising from his dismissal. It is aware that the claimant has already received the equivalent of the basic award as a redundancy payment. He had also received outstanding holiday pay. A further hearing will be arranged to assess the compensation payable in the circumstances.

 

 

 

 

 

 

 

Chairman:

 

 

Date and place of hearing: 8 February 2010, Belfast                  

 

 

Date decision recorded in register and issued to parties: