Hillerby v Castle Engineering & Constructtion Company Ltd [2017] NIIT 02768

THE INDUSTRIAL TRIBUNALS

CASE REF: 2768/16

CLAIMANT: Roy Robert Hillerby

RESPONDENT: Castle Engineering & Construction Company Ltd

DECISION

The unanimous decision of the tribunal is that:-

(1) The claimant was not unfairly selected for redundancy. He therefore was not unfairly dismissed, and his claim in that regard is dismissed.

(2) The claimant was given the requisite period of notice. He therefore is not entitled to any pay in lieu of notice, and his claim in that regard is dismissed.

Constitution of Tribunal:

Employment Judge: Employment Judge Browne

Members: Mrs K Elliott

Mr I Acheson

Appearances:

The claimant was represented by Mr J Bowers.

The respondent was represented by Mr P Moore, MCL Associates.

The Claim

1. The claimant’s case is that he was unfairly dismissed because he was unfairly selected for redundancy.

2. He also claims that he is entitled to notice pay, arising from an alleged failure by the respondent to provide him with sufficient warning that his employment was to be terminated on the ground of redundancy.

3. It was common case that the claimant worked as a security guard at the Belfast Telegraph from 1997 until 31 August 2016, at which time he was made redundant. During his time there, there had been a TUPE transfer in 2002 from his previous employer, the Belfast Telegraph, to the respondent, which provides security and other staff services to the Belfast Telegraph. Two years later, the claimant was promoted to deputy security manager, which resulted in an increase in pay.

4. In 2015, the respondent was informed by its client that it had decided to stop all printing operations at its premises in Belfast, and also that it would be selling its building and moving to smaller premises. The estimated implications of this for the respondent were that it would adversely affect around half of its staff then working for that client, reducing the number of security officers from thirteen to six.

5. The timing of the potential redundancies depended mainly upon the sale of the client’s building and relocation to smaller premises. In the meantime, the respondent attempted to draw up contingency plans by identifying the numbers likely to be affected. Those numbers were estimated by the respondent by October 2016, but were not to be acted upon until the respondent had received final confirmation from the client that their plan to move was imminent.

6. Security staff were informed by the respondent of the potential for redundancies at a meeting arranged by the respondent in early January 2016, by which time the client had asked the respondent to reduce security services by 56 hours per week, resulting in two potential redundancies even before the change of premises was settled. The security staff were then put on three months' notice by the respondent, which was renewed at the end of April 2016 because there by that date was still no confirmation from the client of the timing of the move. The respondent had previously had very little notice from the Belfast Telegraph of changes to its requirements, so the issuing and renewal of the three months’ notice was used by the respondent as a precautionary measure in anticipation of its client suddenly announcing its plans. The claimant by virtue of his length of service would automatically be entitled to receive three months’ notice.

7. In an effort to avoid security staff redundancies because of the reduced hours, the respondent in January 2016 consulted the security staff and, amongst other options, asked them to agree to reduced hours. The respondent also invited suggestions from the security staff as to how to avoid redundancies.

8. Whilst working reduced hours would have resulted in individuals earning less pay, the redistribution of hours worked would save the two jobs. Whilst the redundancies were ultimately avoided by the fact that one member of staff took voluntary redundancy and others agreed to reduce their hours, the claimant (and two others) had at his individual consultation refused to agree to reduce his hours.

9. At his individual consultation on the proposed voluntary reduction in hours with Mrs Cara Bonnar, the respondent’s personnel manager, the claimant was wearing headphones round his neck, from which she recorded in her notes that she could hear loud music playing. Mrs Bonnar told the tribunal that she found this to be very disrespectful, and later regretted that she had done nothing to address it at their meeting. It was the claimant’s contention that he attended the individual consultation on his day off and had been out running, listening to music on his headphones. It was also his contention that, even at maximum volume, the music would not have been audible to Mrs Bonnar.

10. On 23 June 2016, all staff received a detailed letter, and in it were again invited to individual consultation meetings, because by that date, the respondent could confirm that by 31 August the client would be relocating its business to smaller premises at Clarendon Dock, which included a smaller car park some distance from the building. It was the respondent’s case that the claimant refused to operate the new car park.

11. The number of staff required had been identified by the respondent as being only four, thereby putting up to seven jobs at risk of redundancy. This reduced number also meant that there was no room for a supervisor, which meant that the claimant’s role as such was also redundant. He therefore would have to be assessed along with the others for the lesser role of security officer, which meant a reduction in pay.

12. The respondent claimed that all staff at those meetings were informed that there would be a redundancy selection process, which would take account of criteria such as service, attendance, disciplinary records, experience and flexibility. The claimant stated in his evidence to the tribunal that he had not been told by the respondent what the selection process entailed regarding any criteria to be applied.

13. On 15 July 2016, the claimant and the other security staff were invited in a detailed letter to a further individual consultation meeting. In that letter, it was stated that “having only sufficient hours for four staff within the new location there will be a necessity for all staff to be willing and able to cover annual leave and sickness of others. Staff will also be required to work a rotating shift pattern of both days and nights and all shifts will be of twelve hour duration”. The letter, in common with that of 23 June, included the right to be accompanied by a trade union representative or a work colleague.

14. The respondent had drawn up a list of criteria to be applied by it when considering each individual employee. This list was in two parts; the first consisted of four headings, namely length of service; attendance; lateness; and discipline. Each heading contained a number of components, each progressively ranked to attract more or fewer marks, depending on the individual employee’s employment record.

15. The second section of the criteria was headed ‘subjective criteria’, and its categories were under the broad heading of ‘capability and performance’. These categories were work performance; co-operation/commitment; flexibility; ability to perform as a team player; motivation; current skill base; and experience. Again, there was a sliding scale. The closer the individual employee was deemed by the scorer to fulfil the ideal of each heading, the higher the mark would be awarded.

16. The respondent’s evidence was that the claimant, at his individual consultation in June, was told of the fact that his supervisory position was redundant, and that the decision as to redundancy would be based upon the points system.

17. The respondent said that the claimant did not raise any objection to the proposed points system. He also did not request to be put forward to go to the new building, although later telephoned to Mrs Bonnar, requesting that he be considered for one of the security jobs at the new building, although it inevitably meant a cut in pay to the minimum wage. The evidence of the claimant in effect confirmed that sequence of events, although his evidence to the tribunal was that the points system had not been explained to him.

18. The claimant received a letter dated 27 July, confirming that because there was no longer a need for security supervisors, and because no alternative role could be identified for him, his redundancy was confirmed, and he was given notice that his employment would cease on 31 August 2016. He appealed the decision, and an appeal hearing was heard by Mr Paul Carvell, who had been instrumental in awarding the scores in the first place. This was despite an assertion in the letter of 27 July that the appeal would be held by a senior manager who had not been involved in the case to date. The respondent sought to explain this to the tribunal as being because the only other people at a level to deal with the appeal were not available to do so.

19. The appeal hearing degenerated in to what Mr Carvell in his evidence described as a ‘shouting-match’ between him and the claimant. This would appear to have been due to the fact that he in assessing the claimant’s marks had made deductions for a number of incidences of the claimant’s difficult behaviour and attitude in the recent past. The respondent had decided not to have regard to any staff appraisals or to disciplinary proceedings more than a year before the redundancy assessments.

20. This was to put everyone on a ‘level playing field’, and the respondent stated that it had regard to the claimant’s and others’ behaviour within that timeframe. Despite potential disciplinary issues involving other staff, the respondent had been very reluctant within the redundancy process period to initiate disciplinary proceedings against anyone, including the claimant, as such action inevitably would put individuals at a disadvantage from the outset.

21. The level of disagreement at the appeal hearing would appear to be because it was the first time the respondent told the claimant the grounds upon which he had received lower markings than those other security staff not selected for redundancy.

22. The incidents cited by the respondent which led to lower marks being awarded to the claimant were not capable of or appropriate for adjudication by the tribunal. The question for the tribunal was whether or not they were capable of appropriately being used by the respondent when marking the scores for the claimant.

23. One incident, under the heading of co-operation and commitment, arose when the claimant previously refused to tell Mr Carvell the identity of a person, employed by the respondent, suspected of stealing stolen copper from the Belfast Telegraph, until the claimant had spoken to him. There was disagreement about the sequence of events, but there was the impression that the claimant decided that he would deal primarily with the Belfast Telegraph and not with Mr Carvell.

24. Another incident under the same heading was the claimant’s alleged truculence in supplying a contact number, as all security staff had to be easily contacted during working hours.

25. On one occasion, the claimant left his post at lunchtime and was seen at the new premises at Clarendon Dock. On his version, as a result of the TUPE arrangements in 2002, he was not paid for lunchtimes, so regarded himself as being entitled to leave the building. On the other hand, however, a minute of a security meeting in October 2014, which the claimant attended in his supervisory capacity, recorded that it was agreed by those who attended that security staff should be within the premises during breaks and reachable in the event of an emergency. This requirement was said by the respondent to be of particular need because just a week before the claimant left the building, the Belfast Telegraph had been informed of a specific threat from the terrorist group ISIS.

26. Another issue which led to the claimant being marked down was because he allegedly refused to operate the new car park. He claimed that he had never been asked, and that he, in any event, had extensive experience of working at the car park of the client’s original premises. In his view, he was not asked because it would cost the respondent more.

27. The respondent’s case in that regard was that he had made it clear from the outset that he would only operate in the new building, not the car park, and that he consequently was not further approached about it. It was also the respondent’s case that the new car park, in being some distance away from the new building, and with different operating procedures, was not the same as the previous car park.

28. Whilst Mr Carvell awarded additional points to the claimant as a result of his appeal, these were still not enough to overtake any of the successful staff, and his redundancy was confirmed. He subsequently was paid the amount commensurate with his years of service.

Law and Conclusions

29. 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.

(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) in. 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 scrutinize 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.” (Paragraph 31).

30. 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’. 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.

31. In the absence of evidence to the contrary, it makes good business sense for an employer in a redundancy exercise to make every effort to retain those members of its staff who are most skilled and experienced, and who will best serve the business needs of the operation in its scaled-down workforce. The tribunal concluded that the respondent addressed a very difficult situation promptly with its workforce. The early giving of notice not only gave staff an early warning of the likelihood of job losses, in what was a matter of ‘when’, not ‘if’. This action preceded what the documentation satisfied the tribunal was a lengthy period of genuine consultation, collective and individual, as well as a serious attempt by the respondent to avoid job losses by inviting staff to agree to reduced hours, and inviting their suggestions.

32. When redundancies became inevitable, the tribunal is satisfied that the criteria used were reasonable, and were a serious attempt by the respondent to identify those best suited to be retained. No challenge was mounted by the claimant to the appropriateness of the individual headings, or their sub-categories, other than that those already identified by the respondent as being such, were subjective.

33. The respondent is a small business, with very few staff, working in non-technical roles, which would be unlikely to give a wide range of scores in the first section of the criteria headings, sufficient in themselves to give a clear divergence in scores. It therefore seemed to the tribunal that the addition of a subjective set of criteria, clearly segregated from the objective criteria, was a logical and necessary addition to the criteria document.

34. Those additional criteria appeared to the tribunal to be reasonable and necessary, especially when assessing what the reasonable business needs of the respondent were in trying to move forward from a severe cut in its contract with the client. The tribunal also accepted that the respondent had to ensure that it in future would not lose the contract altogether due to inflexibility or lack of commitment of its significantly reduced staff numbers.

35. There appeared to the tribunal to be undercurrents of a difficulty on the part of the claimant to fully embrace the fact that, whilst he still was working at the Belfast Telegraph, he was in fact an employee of the respondent.

36. These manifested themselves in his assertion that he was entitled by virtue of his TUPE contract to leave the client’s premises during his lunch breaks because he was not paid for them. This was despite the fact that he had participated in a meeting in 2014, when it was specifically agreed that security staff should remain on the premises. If he disagreed with that decision, or if he was in fact technically correct, there is no record of any assertion of it by him either at the time or at his appeal hearing. The requirement to remain on site was particularly acute at the time of the incident because of the recent ISIS threat, regardless of how severe it was.

37. These loyalty issues in the opinion of the tribunal were also displayed by the claimant in his attitude to Mr Carvell by refusing to divulge the identity of the suspected thief to him, but readily did so to Mr Jim More of the Belfast Telegraph. The claimant sought to justify this by claiming that he was co-operating, but the tribunal is of the opinion that it was reasonably viewed by the respondent as high-handed and unco-operative.

38. The respondent did not institute disciplinary proceedings against the claimant on the occasions identified by it as being relevant to marking him against the selection criteria. The claimant made the case that if the incidents were not sufficiently serious to be the subject of disciplinary proceedings, they ought not to have been used for redundancy selection. The respondent’s case was that they wished to avoid bringing disciplinary proceedings in such a sensitive selection process, and the incident about the stolen copper, which had occurred some time before, was used by the respondent as an example, albeit a stark one, of poor attitude to the respondent’s authority and lack of co-operation, rather than the conduct itself.

39. The tribunal concluded that the examples identified by the respondent were appropriate to the criteria, and reasonably reflected the claimant’s suitability. The letter of 15 July 2016, which included specific reference to the need for flexibility of staff, was in the view of the tribunal an accurate statement. The claimant, even in the context of the consultation process, had on at least two occasions demonstrated a lack of engagement, namely by refusing to accept fewer hours, and by the incident with his headphones.

40. The tribunal on balance accepts the evidence of Mrs Bonnar on the latter issue. She made a contemporaneous note of it, at a time well before there was any redundancy selection procedure. It therefore seems less likely that she was gathering examples of conduct to match against any future criteria.

41. There was no case put by or on behalf of the claimant in his application form, in his witness statement, or in cross examination of the witnesses, that there had been any plan on behalf of the respondent to single him out for redundancy in order to get rid of him. It was raised only at the stage of final submissions that the respondent had been targeted because of his adherence to what he perceived to be his enhanced entitlements regarding pay and conditions under his TUPE transfer in 2002. No such suggestion was made until that point, either in writing or verbally, and there was no historical record of this ever having been an issue between the claimant and the respondent. The instances around the claimant leaving the building and his decision to disclose information to Mr Millar but not Mr Carvell perhaps give a clue to the claimant’s perception of himself as being a Belfast Telegraph employee, and not the respondent’s.

42. The tribunal is satisfied that the respondent took a genuinely serious attitude to fairly and reasonably identifying the best people to retain, and that it applied fair and appropriate criteria in a measured way to achieve that end. The tribunal is also satisfied that the claimant was probably aware of the criteria to be used; there was ample documentary evidence of the painstaking process followed by the respondent, in trying to avoid job losses, in consultation and in the criteria it identified and followed.

43. At the individual consultation in July, the tribunal is satisfied that the claimant was told what the criteria would be, but that his position at that stage was that, as his supervisor’s position was redundant, he was not really interested. It was only afterwards that he decided he wanted to be considered for the reduced pay of a security post at the new building.

44. The tribunal is therefore satisfied the claimant was fairly selected for redundancy. He therefore was not unfairly dismissed, and his claim in that regard is dismissed.

45. As regards the claimant’s claim for notice pay, the tribunal is satisfied that the respondent twice gave him the appropriate period of three months’ notice. His final notice, at the end of July 2016, informing him that his employment would cease on 31 August, was in the opinion of the tribunal only final confirmation of what he had been told some six months before. That claim is also dismissed.

Employment Judge:

Date and place of hearing: 10, 11 & 12 April 2017, 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 >> Hillerby v Castle Engineering & Constructtion Company Ltd [2017] NIIT 02768_16IT (20 June 2017) URL: http://www.bailii.org/nie/cases/NIIT/2017/02768_16IT.html Cite as: [2017] NIIT 2768_16IT, [2017] NIIT 02768_16IT

Industrial Tribunals Northern Ireland Decisions