Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 956/17

 

 

 

CLAIMANT: Martin Straub

 

 

 

RESPONDENT: Dave Lake and Cathy Lake, t/a Goodness Rocks

 

 

 

 

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly selected for redundancy. He therefore was not unfairly dismissed, and his claim is dismissed.

 

 

Constitution of Tribunal:

Employment Judge: Employment Judge Browne

Members: Ms E McFarline

Mr H McConnell

 

 

Appearances:

The claimant attended and represented himself.

 

The respondents were represented by Mr Keith Smith of KIS HR Solutions.

 

 

 

ISSUES AND EVIDENCE

 

1.          The tribunal was required to decide if the claimant was unfairly dismissed. It was the claimant's case that he had wrongfully been selected for redundancy.

 

2.          The claimant was employed by the respondents as the head chef at their coffee house/restaurant. He worked for them from August 2015 until he was dismissed on
10 January 2017. The reason given by the respondents for dismissing the claimant was that it was on the grounds of redundancy.

 

3.          It was clear that the claimant is a very experienced and highly-skilled chef.

 

4.          The respondents' business appeared to be in financial difficulties due to cash flow problems, with substantial monies owed to suppliers, and default on the rates bill leading to the prosecution of the respondents. In order to address these issues, the respondents sought the advice of their independent accountants, to whom the respondents also owed money for professional services.

 

5.          The advice of their accountants was that they should address such issues by reducing their opening hours, simplifying their menus, and, of particular importance in this case, addressing the cost of employing a head chef.

 

6.          As such, the accountant's proposal was that Cathy Lake could replace the claimant. The accountant wrote that, "This was, I believe, extremely important in order to achieve the gross profitability needed to sustain the business".

 

7.          Two letters from the respondents' accountant, identical in content, both dated
30 June 2016, were produced by the respondents in discovery in this case. One referred to a meeting with the respondents on 23 March 2017 (namely, after the claimant had been dismissed). The other referred to a meeting held with them on
25 November 2016 (namely, before the claimant was dismissed).

 

8.          The claimant raised the issue that he felt this was suspicious. The respondents stated that, whilst there had been meetings with their accountant on both dates, their accountant had confused the November meeting with the March meeting when he wrote the letter. They stated that he had corrected his mistake by email, but they did not produce that email.

 

9.          The Employment Rights (Northern Ireland) Order 1996 (as amended) provides that redundancy is a potentially fair reason for dismissal (A130) and provides as follows in relation to redundancy:-

 

"174(1) For the purposes of this Order an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the 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 employee, have ceased or diminished or are expected to cease or diminish.

 

(2) For the purposes of paragraph (1), the business of the employer together with the business or businesses of his associated employers shall be treated as one unless either of the conditions specified in
sub-paragraphs (a) and (b) would be satisfied without so treating them)

 

...

 

(5) In paragraph  (1) "cease" and "diminish" means cease and diminish either permanently or temporarily and for whatever reason."

 

Mr  Justice  Silber reviewed the authorities (in relation to the pool for redundancy). He stated:-

 

"Pulling the threads together, the applicable principles where the issue in an unfair dismissal claim is whether an employer has selected a correct pool of candidates for redundancy are that:-

 

(a) It is not the function of the [Employment] Tribunal to decide whether they would have thought it fairer to act in some other way; the question is whether the dismissal lay within the range of conduct which a reasonable employer could have adopted" (per Browne-Wilkinson  J in Williams    v Compair Maxam Ltd [1982] IRLR  83 );

 

(b) ... the courts were recognising that the reasonable response test was applicable to the selection of the pool from which the redundancies were to be drawn (per Judge  Reid  QC in Hendy Banks City Print Limited  v Fairbrother and Others (UKEAT/0691/04/TM);

 

(c) There is no legal requirement that a pool should be limited to employees doing the same or similar work. The question of how the pool should be defined is primarily a matter for the employer to determine. It would be difficult for the employee to challenge it where the employer has genuinely applied his mind [to] the problem" (per Mummery  J in Taymech  v Ryan EAT/663/94);

 

(d) The Employment Tribunal is entitled, if not obliged, to consider with care and scrutinise carefully the reasoning of the employer to determine if he has "genuinely applied" his mind to the issue of who should be in the pool for consideration for redundancy; and that

 

(e) Even if the employer has genuinely applied his mind to the issue of who should be in the pool for consideration for redundancy, then it will be difficult, but not impossible, for an employee to challenge it."

 

10.       The tribunal must be satisfied that it was reasonable to dismiss the claimant, selected on the grounds of redundancy. It is not enough to show that it was reasonable to dismiss an employee; it must be shown that the employer acted reasonably in treating redundancy 'as a sufficient reason for dismissing the employee'.

 

11.       Therefore, if the circumstances of the employer make it inevitable that some employee must be dismissed, it is still necessary to consider the means whereby the applicant was selected to be the employee to be dismissed and the reasonableness of the steps taken by the employer to choose the claimant, rather than some other employee, for dismissal.

FINDINGS OF FACT

 

12.       The tribunal concluded that the respondents genuinely applied their minds to addressing a very difficult situation promptly, reasonably following the independent professional advice of their accountants.

 

13.       This action preceded what the documentation satisfied the tribunal was a reasonable period of genuine consultation with the claimant. Unfortunately, as he was the only person whose role as sole chef was far and away the biggest outgoing in the wages bill, it was from the outset more likely to be a case of 'when', not 'if'.

 

14.       Whilst the accountant's email would have been helpful, the tribunal concluded that the conflicting dates in his letters dated 30 June 2017 was probably a genuine mistake on his part. He is an independent professional, liable to severe sanction by his professional body if he had concocted such information post facto. The tribunal could find no reason why he would do so.

 

15.       Additionally, those letters were provided by the respondents in the course of these proceedings; if they were trying to conceal something, they would be unlikely to have produced the incorrect version.

 

16.       The tribunal also concluded that the contents of the letter were much more likely to relate to the situation the claimants found themselves in in November 2016. Their financial difficulties at that time could readily be expected to necessitate a meeting with their accountant, to seek his guidance at that time on how to resolve it.

 

17.       It is not for the tribunal to determine if the decision was a sound commercial one; that has to be the judgment of the respondents in the best interests of the success of, or, as in this case, the survival of, their business. Not only did they have to act in order to save the business, but they clearly did not relish the prospect of Cathy Lake having to spend much more time working in it. It clearly had been their hope and expectation that, at this stage in the business's history, she would have been working less, not more.

 

18.       The tribunal accepted that, to follow the accountant's advice, Cathy Lake's position as co-owner of the business and her training and background made her the obvious choice to replace the claimant. The tribunal also accepted, without making any judgment upon the efficacy of the proposed action, that it was reasonable for the respondents to follow their adviser's independent, professional advice.

 

19.       The tribunal is also satisfied that the respondents went through a fair and thorough process. In truth, the decision to dismiss the claimant was the only likely outcome. The respondents did however afford the claimant the opportunity to utilise his considerable previous experience to suggest alternatives. The claimant was clearly taken somewhat by surprise at the first consultation meeting on 28 December 2016, just before he went on holiday.

 

20.       His response upon his return at the second meeting on 6 January is recorded as being that he had not really given any thought to the situation while he was away; nor did he ask for a postponement of this meeting with the respondents upon his return.

 

21.       It also is of note that the claimant did not appeal against his dismissal until
3 February 2017, well outside the time of five days indicated in the dismissal letter of
10 January 2017. It was the respondents' case that the claimant had been handed the letter at the meeting on 10 January 2017, but that he did not open it; the claimant denied ever receiving it.

 

22.       Before that request for an appeal, the claimant wrote to the respondents on
16 January 2017, stating that "there has been no meaningful discussion regarding my redundancy and no explanation as to why I was made redundant."

 

23.       That claim sat uneasily with the notes produced by the respondents of the meeting on 6 January 2017, at which the claimant was unaccompanied, although he had been informed that he could bring someone with him. The claimant is recorded as saying: "... I'm the only one in the kitchen there is only my role. I can't take another role on, it would be different if you guys took a step back and I could run the business for you." The claimant also raised the proposed use of a van as a mobile catering outlet, but that plan never came to fruition.

 

24.       The claimant sought to raise doubts about the accuracy, and indeed the veracity, of the notes of meetings produced by the respondents. The claimant had opted not to be accompanied, and had taken no notes at the meetings. He stated in evidence that he did not recall notes being taken by the respondents, and he also did not remember saying some of the things which later appeared in the notes. He also expressed surprise that so much could be written down in such a fast-moving conversation.

 

25.       Cathy Lake stated in evidence that the source of the typed notes were pre-written questions, and that immediately after the meeting, she typed up the questions and the claimant's answers.

 

26.       As such, there was no specific evidence from the claimant to contradict the respondents' evidence as to the provenance and accuracy of the notes. He was not in a position to say that what had been recorded was wrong, only that he did not recall it. He had not made any notes, and had decided not to bring anyone with him to the meetings who would have been in a position to say what had or had not been discussed.

 

27.       There was no evidence, or suggestion, of any previous friction between the parties, or of any complaint by the respondents about the claimant's ability, which might give rise to a suspicion of a situation being concocted by them to force him out. The claimant in his application to the tribunal stated that "I had a perfect work record with them and there were no written or verbal warnings of any sort."

 

28.       On the contrary, the tribunal accepted that the respondents were extremely reluctant for Cathy Lake to have to take over the claimant's heavy workload. It is also worthy of note that, as of the date of hearing, nobody other than her was doing the claimant's work in the kitchen. It therefore was not a case of forcing him out in order to recruit someone else.

 

29.       In those circumstances, it seemed to the tribunal that it was unlikely that the respondents' records of events were anything other than a broadly accurate summary of what had been discussed in the meetings.

 

30.       As regards the disputed letter dated 9 January 2017, the tribunal is of the opinion that the contents of the letter dated 13 January 2017 in effect replicated and expanded upon its contents. The claimant in cross examination of Cathy Lake specifically alleged that he had only seen it for the first time in the course of the tribunal proceedings, and that it had been fabricated.

 

31.       The respondents' case was that the claimant had been handed the letter but that he did not open it. Ms Lake told the tribunal that she had gone out after the claimant with his mobile phone, which he had left behind. She stated that she had observed the unopened letter lying on the passenger seat beside him. The claimant refuted this, stating that he was not even back at the car when Ms Lake approached him.

 

32.       On this issue, the tribunal prefers the evidence of the claimant. The respondents' letter to him dated 13 January 2017 was something of an unusual hybrid, in that it started off purporting to be written by the respondents, but halfway through, it is written by
Mr Smith, the respondents' representative, who also signed it.

 

33.       The contents of that letter are very detailed, with specific reference to the meeting on 10 January, but at no point does it refer to the letter allegedly given to the claimant on that date. The relevant paragraph states: "At our scheduled meeting on
10 January 2017 you asked for clarification [in the letter handed to the respondents by the claimant at that meeting] and as we were heading away on holiday, we asked our HR adviser to respond on our behalf based on the information and timelines we shared with him."

 

34.       The omission strikes the tribunal as being more likely than not to be because the claimant was not given it; otherwise, its contents would have been highly likely to have been referred to in the respondents' letter of 13 January 2017.

 

35.       The claimant contends that he did not receive the letter of 13 January 2017. The tribunal however is satisfied that it is more likely than not that it was sent to him. By that stage, Mr Smith was acting on behalf of the respondents and advising them of the proper procedures to follow. He also partly wrote and put his name to the letter of
13 January 2017. It appears to the tribunal inherently unlikely that he would allow himself be party to attempting to mislead the tribunal about sending the letter.

 

36.       The claimant wrote to the respondents on 16 January 2017, but made no reference in it to the contents of the letter of 13 January 2017. It was unclear as to whether he had not received or read it by that date, or if he was simply ignoring it.

 

37.       The tribunal considers that, even if the claimant had not been given the
9 January 2017 letter, he could not have been in any doubt as to the reasons for his dismissal, and of his right to appeal, from the clear contents of the letter dated
13 January 2017.

 

38.       The tribunal considers that the respondents' evidence as to the letter of 9 January 2017 is more likely than not untrue. That finding clearly casts a shadow over their veracity. The tribunal's finding however that the letter of 13 January 2017, containing all the necessary information, was in fact sent, does not assist the claimant.

 

CONCLUSIONS

 

39.       The tribunal concludes that the process followed by the respondents complied with that necessary in all the circumstances of this case. It also concludes that the respondents were genuinely and reasonably acting in order to save their business, and that their actions were appropriate and in accordance with the professional advice they reasonably sought and followed.

 

40.       The tribunal also considers that the claimant was properly consulted, although the size of the respondents' business was such that consultation was unlikely to result in any outcome other than that the claimant would be dismissed by reason of redundancy.

 

41.       The tribunal therefore unanimously concludes that the claimant has failed to establish that he was unfairly selected for redundancy. He therefore was not unfairly dismissed, and his claim is dismissed.

 

 

Employment Judge:

 

 

Date and place of hearing: 18 September 2017, Belfast.

 

 

Date decision recorded in register and issued to parties: