Dumigan v Whiteabbey Royal British Legio... [2012] NIIT 01743

THE INDUSTRIAL TRIBUNALS

CASE REF: 1743/11

CLAIMANT: John Beattie Dumigan

RESPONDENT: Whiteabbey Royal British Legion Club

DECISION

The decision of the tribunal is that the claimant was dismissed by reason of redundancy in circumstances where employment offered to him as an alternative to redundancy was not suitable and was reasonably refused by him. He is entitled to a redundancy payment in the sum of £10,200.00.

Constitution of Tribunal:

Chairman: Mrs A Wilson

Panel Members: Mr J Hughes

Mrs P Weir

Appearances:

The claimant was represented by Ms Gemma Lieberman of QDOS Consulting Limited.

The respondent was represented by Mr Conor Hamill, Barrister-at-Law, instructed by Worthingtons Solicitors.

THE ISSUES

1. In circumstances where it is accepted that the claimant was dismissed by reason of redundancy, was the employment offered to the claimant by the respondent as an alternative to redundancy suitable alternative employment within the meaning of Article 176 of the Employment Rights (Northern Ireland ) Order 1996 [the Order]?

2. If the alternative employment offered to the claimant was suitable, did the claimant act unreasonably in refusing to accept the offer thereby forfeiting his right to a redundancy payment in accordance with Article 176(2) of the Order?

3. If the answer to the questions rose at paragraphs 1 and 2 is no, what is the claimant’s entitlement to redundancy pay?

THE HEARING

4. The tribunal considered the sworn testimony of Mr Jim Brown, Honorary Secretary of the respondent club and the sworn testimony of the claimant. The tribunal considered extracts from a bundle of documents prepared by the respondent and referred to by the parties during the course of the hearing. The tribunal also considered the submissions of Ms Lieberman and Mr Hamill.

FINDINGS OF RELEVANT FACT

5. The claimant was employed by the respondent as club manager from 14 February 1994 until his dismissal on 6 May 2011. From the commencement of his employment until 5 March 2011 he also held the position of Honorary Club Secretary.

6. The claimant was the only full time staff member employed by the respondent. All other employees including a temporary bar steward, were employed on part time contracts. However from time to time some part time employees worked the equivalent of full time hours depending on the business requirements of the respondent.

7. The claimant worked daily (to include Sundays) from in or around 7.15 am until in or around 1.30 pm with the exception of Tuesdays when he worked until 2.00 pm. This was his working pattern throughout the period of his employment. On Tuesdays from 11.00 am until 2.00 pm and otherwise from time to time he worked behind the bar.

8. It is the claimant’s case that his working pattern hours suited him for a number of reasons including the fact that it enabled him to care for his grandson thereby allowing his daughter to work. His daughter works for the respondent. It is the respondent’s contention that they were unaware of the claimant’s caring responsibilities prior to the hearing and the tribunal accepts this to be the case. The claimant accepts that he never informed his employers of his responsibilities and it is Mr Brown’s evidence (which the tribunal accept) that he was unaware of it.

9. The claimant as club manager had many responsibilities in connection with the running of the club and these were set out in his job description dated 27 November 2005. Responsibilities included oversight of staff rotas, supervision of special events, keeping of staff records and implementing disciplinary policies with authority to suspend an employee with pay. He was also the principal key holder with responsibility for security of the club.

10. The claimant delegated responsibility for preparation of staff rotas to Ms Vivienne Hope who was a part time member of the bar staff. However the tribunal is satisfied based upon the claimant's testimony that he retained overall responsibility for the oversight of the rotas and ultimately dealt with any problems arising from them.

11. The claimant cannot recall any disciplinary issues arising in recent years and certainly no disciplinary action was required of him in recent times.

12. At the Annual General Meeting of the club on 5 March 2011, a new management committee was elected. The claimant was not a member of this new committee. Mr Jim Brown replaced him as Honorary Secretary.

13. Shortly after the AGM, the newly elected management committee met with the club’s accountant and it emerged that the club was running at a deficit and considerable financial savings were needed if the club was to remain solvent.

14. On 26 March 2011, the claimant was invited to attend a meeting with the committee. It transpired that this meeting had to be re arranged due to a misunderstanding on the part of the respondent. At a re arranged meeting on 3 April 2011, the claimant was advised that the club was in a critical financial position and a number of material points were raised. In particular the claimant was questioned as to why he started work so early and he was asked how he felt about working behind the bar doing regular shifts and serving customers. He was also asked if he would be willing to work from 10.00 am until 4.00 pm daily.

15. The claimant said that he would not work shifts. This refusal is recorded in the minutes of the meeting and is not in contention. However the minutes record that the claimant was prepared to negotiate working 10.00 am to 4.00 pm daily and this is in contention. The tribunal accepts the evidence of the claimant on this point. It is the claimant's case that he never agreed to negotiate a change to his working pattern. This is consistent with his evidence and with a memo he sent dated 16 April 2011 seeking a correction to the minutes in this regard.

16. The claimant was informed by letter dated 6 April 2011 that a decision had been taken to make the role of club manager redundant. The claimant was invited to a meeting on 9 April 2011 to discuss the redundancy, its impact on his employment and the possibility of suitable alternative employment.

17. By letter dated 13 April 2011, the claimant was offered alternative employment as bar steward working on a rota of shift work for a trial period of 4 weeks earning £9.00 per hour. A copy of the proposed rota was attached. He was asked to confirm his acceptance of the position within 5 working days but an extension within which to reply was granted at his request.

18. Having considered the offer, the claimant wrote to the respondent on 21 April 2011 in very clear terms refusing the offer of alternative employment on the grounds that it was "of lower status, too low in wages and different working times".

19. By letter of 23 April 2011, the claimant was notified that his employment was to be terminated in circumstances where he would not be entitled to a redundancy payment. He was given 12 weeks notice and informed that he would be required to work in accordance with the rota already furnished to him during his notice period.

20. The position of bar steward offered to the claimant as suitable alternative employment differed in significant respects from the position of club manager. The post attracted a salary of £5,000.00 less than the claimant had been earning as club manager, it required a major change to the claimant’s working pattern and in particular required him to work a shift pattern behind the bar. In addition many of the responsibilities he enjoyed as club manager were to be removed from him including oversight of staff rotas and responsibility for disciplinary matters. The claimant considered himself as club manager to be the boss and reasonably considered the role of bar steward to be a demotion.

21. It is the respondents case that as bar steward, the claimant would continue to be the only full time member of staff , would continue to carry out many of the duties previously undertaken by him and would have continued responsibility for stock control and equipment amongst other things.

22. The claimant took exception when asked to provide members of the committee with a set of keys, access to filing cabinets and alarm codes. He believed that these requests to be an unacceptable interference with his role as club manager and with his responsibility for club security. The tribunal does not accept this to be the case and find that the management committee was perfectly within their rights as officers of the club and as the claimant's employer to make these requests and the claimant should have readily acceded to them.

23. The tribunal does not accept that the role of bar steward was similar to that of club manager albeit that it included some responsibilities already carried out by the claimant and retained his status as the only full time member of staff. It is significant that it attracted a much reduced salary, entailed a substantial change to his working pattern and removed responsibilities thereby diminishing his authority. As club manager the claimant had an autonomous role. The position of bar steward was entirely different and was not deemed suitable by the claimant.

THE LAW

24. Article 176 of the Employment Rights (Northern Ireland) Order 1996 provides for the purposes of this case:-

“176.—(1) This Article applies where an offer (whether in writing or not) is made to an employee before the end of his employment—

(a) to renew his contract of employment, or

(b) to re-engage him under a new contract of employment, with renewal or re-engagement to take effect either immediately on, or after an interval of not more than four weeks after, the end of his employment.

(2) Where paragraph (3) is satisfied, the employee is not entitled to a redundancy payment if he unreasonably refuses the offer.

(3) This paragraph is satisfied where—

(a) the provisions of the contract as renewed, or of the new contract, as to—

(i) the capacity and place in which the employee would be employed, and

(ii) the other terms and conditions of his employment,

would not differ from the corresponding provisions of the previous contract, or

(b) those provisions of the contract as renewed, or of the new contract, would differ from the corresponding provisions of the previous contract but the offer constitutes an offer of suitable employment in relation to the employee”.

25. The tribunal has been referred to and has considered the following case law:
Cambridge & District Co-operative Society v Ruse [1993] IRLR 156, Hindes v Supersine Ltd [1979] IRLR 343, Harris v E Turner and Sons (Joinery) [1973] ICR 31, Bird v Stoke-on-Trent Primary Care Trust UKEAT/0074/11/DM, and Denton v Neepsend Ltd [1976] IRLR 164.

26. The tribunal has considered Harvey on Industrial Relations and Employment Law and found paragraph 1479 to provide a useful summary of the law.

“Assuming the employer did make a proper offer, the next question is whether the terms offered differed in any respect from the previous terms of employment—whether as to capacity or place of employment or any other terms and conditions of employment. If they did not differ, then the only issue is whether the employee was reasonable in refusing the offer: if he was reasonable, he retains his right to a redundancy payment; if unreasonable, he loses it (ER (NI) Order Article 176). On the other hand, if the terms offered did differ, then there are two issues: (a) was the employment offered suitable in relation to the employee, and if so (b) did he refuse it unreasonably? The employee loses his right to a payment only if the answer to both questions is 'yes' (s 141(2), (3)). The test of whether the terms differ or not is whether they are identical, subject to the maxim de minimis non curat lex (see para 1426 above)”.

27. The tribunal also considered paragraph 1482 as follows:

”... where the employee refuses further employment on the same terms, the only issue is whether he was reasonable in refusing; where he refuses further employment on different terms, there may be two issues: whether the employment offered was suitable and whether the employee was reasonable in refusing. In the latter event, suitability and reasonableness should be treated as separate issues and should be separately assessed”

Paragraph 1489 in the following terms was also considered:

”Under 'suitability' you must consider the nature of the employment offered. It is for the tribunal to make an objective assessment of the job offered (Carron Co v Robertson (1967) 2 ITR 484, Ct of Sess). It is not, however, an entirely objective test, in that the question is not whether the employment is suitable in relation to that sort of employee, but whether it is suitable in relation to that particular employee. It comes really to asking whether the job matches the person: does it suit his skills, aptitudes and experience? The whole of the job must be considered, not only the tasks to be performed, but the terms of employment, especially wages and hours, and the responsibility and status involved. The location may also be relevant, because 'commuting is not generally regarded as a joy' (Laing v Thistle Hotels plc 2003 SLT 37, Ct of Sess, per Lord Ordinary Eassie). No one single factor is decisive; all must be considered as a package. Was it, in all the circumstances, a reasonable offer for that employer to suggest that job to that employee? And the sole criterion by which that is to be judged is 'suitability'”.

28. The first question this tribunal must consider is whether the job of bar steward was suitable for the claimant. In circumstances where there was a substantial reduction in pay, a material difference in the working pattern associated with the new role and a diminution in the responsibility and status attached to the role, the tribunal is satisfied that it was not suitable alternative employment for the claimant. The tribunal accepts that it matched the claimant's skills, experience and aptitudes. However when looked at as a whole package the tribunal finds that overall it was a role of much lesser status and the associated reduction in pay (some £5,000.00) was substantial. The working pattern was materially different and there was a diminished level of authority and responsibility. These were factors that were quite reasonably of some importance to the claimant and he was entitled to regard them as rendering the position of bar steward unsuitable alternative employment.

29. It is accepted that the claimant perceived a diminished level of responsibility in some areas where there was in reality no diminution. Paragraph 23 above refers. However removal of responsibility for staff discipline and oversight of rotas were part of the claimant’s duties as club manager. These duties were removed from him and his position of authority was diminished. The claimant regarded himself as no longer "the boss" and this was a matter of great importance to him.

30. Notwithstanding a finding that the offer of employment as bar steward was not suitable alternative employment for the claimant, the tribunal moved to consider whether the claimant's refusal to accept it was unreasonable.

31. The claimant's refusal was clearly founded on 3 factors as stated in his letter of 21 April 2011. He objected to "lower status, too low wages and different working times".

32. The tribunal finds that a reduction of £5,000.00 in salary is significant and the tribunal finds that the claimant’s refusal to accept such a reduction was reasonable in all the circumstances of the case.

33. The matter of status was important to the claimant. He had been "the boss" for some 17 years. Notwithstanding the fact that he would retain some of his previous responsibilities, were he to accept the position as bar steward, the tribunal finds his refusal to accept a position of lower status in all the circumstances of the case to be reasonable.

34. The working pattern and particularly the requirement to work shifts on a rota basis presented a major challenge to the claimant. It did not suit his personal circumstances or the manner in which he had organised his private life over a period of some 15 years. The tribunal accepts that this was in part due to his caring responsibilities for his grandson and although the tribunal accepts that the respondent was unaware of this, it does not alter the fact that his caring responsibilities had a bearing on his refusal to work a shift pattern. It was also the case that working a shift pattern would have required the claimant to work a night shift (4.00 pm to 11.30 pm) and he was opposed to working nights in circumstances where he had not worked nights for 15 years and where it was likely that a morning shift would follow the night shift on occasion leaving him inadequate time to rest. The tribunal finds his refusal to accept the proposed change to his working pattern to be reasonable in all the circumstances of the case.

35. The tribunal having taken all the above factors into account, find that the claimant's refusal to accept the alternative role as bar steward was reasonable in all the circumstances of the case and in accordance with the law.

36. The claimant indicated in evidence that he was not interested in alternative employment unless it was "the same job, same title and same pay". It is the respondent's case that this demonstrates unwillingness on the part of the claimant to consider or to accept any offer of alternative employment. The tribunal considered this argument but ultimately must consider this case on the facts as found from the evidence. Those facts are that the claimant was offered alternative employment on lower pay with lower status and a different working pattern. This constituted the offer of alternative employment within the meaning of Article 176(1). This was the offer of alternative employment offered to and refused by the claimant and this is the offer the tribunal must consider in deciding this case in accordance with the law.

37. For reasons given above the tribunal finds that the claimant is entitled to a redundancy payment in accordance with Article 180 of the Employment Rights (Northern Ireland) Order 1996 and awards the sum of £10,200 in accordance with the agreed schedule of loss furnished.

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

Chairman:

Date and place of hearing: 29 November 2011, Belfast.

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Dumigan v Whiteabbey Royal British Legio... [2012] NIIT 01743_11IT (18 January 2012) URL: http://www.bailii.org/nie/cases/NIIT/2012/01743_11IT.html Cite as: [2012] NIIT 1743_11IT, [2012] NIIT 01743_11IT

Industrial Tribunals Northern Ireland Decisions