THE INDUSTRIAL TRIBUNALS

CASE REF:	05741/09IT

CLAIMANT:			Samuel Brush

RESPONDENT:		The HIV Support Centre

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent and compensation of £27,857.93 calculated as set out in this decision is awarded to the claimant (subject to recoupment of Jobseekers Allowance). The claim of unlawful age discrimination is dismissed. 

Constitution of Tribunal:

Chairman:		Mr N Kelly

Members:		Dr D Mercer
			Mr I Lindsay

Appearances:

The claimant was represented by Mr T Brownlee of NIPSA

The respondent had not entered a valid response, did not attend the hearing and was not represented. 

ISSUES TO BE DETERMINED

(1)	The two issues to be determined were;

(i)	Whether the claimant had been unfairly dismissed contrary to Article 131 of the Employment Rights (Northern Ireland) Order 1996 (The 1996 Order) and 

(ii)	Whether the respondent had unlawfully discriminated against the claimant on grounds of his age in selecting him for redundancy.
THE RESPONDENT

(2)	The claimant lodged his claim in the tribunal on 6 May 2009. A copy of that claim together with a blank response form was sent by the tribunal to the respondent on 23 June 2009. The original time limit for responding to the claim would therefore have expired on 21 July 2009. 

(3)	That original time limit was extended three times by the tribunal, on the application of the respondent; on 22 July 2009 to 10 August 2009, on 10 August 2009 to 24 August 2009, and on 25 August 2009 to 28 August 2009. No response was received by the tribunal within the time limit as extended. 

(4)	The tribunal advised the respondent, in a fax on 28 October 2009, that no response had been received and that the respondent had no entitlement to seek a postponement of the hearing. 

(5)	On 30 November 2009, the day before the hearing of this claim, a Jennifer Andrews of the respondent sent a letter to the tribunal stating that she had delivered a response to the tribunal offices on 26 August 2009. Attached to that letter was a copy of a letter dated 26 August 2009 which itself had two pages attached which purported to set out the grounds on which the respondent disputed the claim. 

(6)	That response, received in the tribunal offices on 30 November 2009, was rejected on the same day as being out of time. The response was received outside the 28-day time limit set out in Rule 4 (1) of Schedule to the Industrial Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (“the rules”). Although the purported response was not on the prescribed form as required by Rule 4 (2), that did not form part of the decision to reject the response. 

(7)	The respondent was telephoned by the tribunal on the morning of the hearing to be informed that the hearing of the claim had been moved to Laganside Courts. The respondent did not indicate in the course of that telephone call that they did not intend to attend the hearing. The hearing was due to start at the normal time of 10.00am but the tribunal delayed the start of the hearing for thirty minutes in case the respondent was having difficulty in locating the court. However the respondent did not either attend the hearing or notify the tribunal that it did not intend to do so.
 
(8)	The tribunal notes that the respondent did not respond to the tribunal’s fax on 28 October 2009 and that it failed to enter what was a straightforward response to the claim either within the original time limit or at any stage during the three extensions of that original time limit. The tribunal does not, for the record, accept that the response had been lodged on 26 August as claimed by the respondent. If it had been lodged on that date, the fax of 28 October would have provoked an immediate response. The tribunal is required by Regulation 3 of the 2005 Regulations to ensure that cases are dealt with expeditiously and fairly. Affording a further opportunity for delay to a respondent who has approached this claim in a careless and discourteous manner would assist neither expedition nor fairness. The tribunal did consider whether it should adjourn the hearing in case the respondent wanted to apply for a review of the tribunal’s decision to reject the response. However given the dilatory manner in which the respondent has hitherto approached this claim the tribunal decided not to do so.  

(9)	The hearing of the claim proceeded on 1 December 2009, in the absence of the respondent. The claimant and Mr Brownlee gave evidence. 

RELEVANT FINDINGS OF FACT

(10)	The respondent is a company limited by guarantee which assists individuals who suffer from HIV and their carers.  It also seeks to educate the general public and individuals such as health professionals, about the condition. 

(11)	The claimant is 55 years of age.  He started unpaid work with the respondent in May 1986 as a volunteer and worked as a volunteer for the next ten years. He was instrumental in setting up most of the services that the respondent now provides and sat on the respondent’s management committee for three years as a volunteer.  During his last two years working as a volunteer, he had responsibility for internal and external training and for educational services. 

(12)	On 6 May 1996, he became an employee of the respondent as the Volunteer and Training Manager. He remained in that position for nearly 13 years until his dismissal on 31 March 2009. 

(13)	During that period of paid employment, he was asked to cover other posts within the respondent’s organisation. This included acting as director for six months and sharing the role of finance officer for 18 months. At the time of his dismissal in 2009, he was the longest serving member of staff. 

(14)	The staff employed by the respondent in March 2009, apart from the claimant, were;

Kieran Harris–Chief Executive

Marie Kinney–Business and Development Officer

Cherie Davidson–Support Worker

Stewart Kirk–Facilities Manager

Liz McClure–Young People’s Sexual Health Worker

Rory Thompson–Administrator

Jim Lawther–Part-time Finance Officer

(15)	The role of the claimant, as Volunteer and Training Manager, was firstly to organise approximately 40 core volunteers who were volunteers who attended regularly and about 60 non-core volunteers and, secondly, to organise internal and external training and educational services. 

(16)	The role of the Business and Development Officer was to act as a fund raiser and to promote the public profile of the organisation. The claimant could have carried out all or any part of this post’s duties.

(17)	The role of Support Worker was to assist people living with or affected by HIV. It involved advising on various matters including social security issues. The claimant had carried out these duties for lengthy periods as a volunteer and could have carried out all or any part of this post’s duties. 

(18)	The role of Facilities Manager was to oversee the practical running of the respondent’s organisation, looking after equipment, ordering materials etc. The claimant could have performed all or any part of the duties of this post. 

(19)	The role of the Administrator was straightforward administration and reception duties. The claimant could have performed all or any part of the duties of this post. 

(20)	The role of the Young People’s Sexual Health Worker was funded for three years and ended in July 2009 when the project funding ceased. The then-postholder left to pursue further studies. 

(21)	The role of the part-time Finance Officer is self-explanatory and the claimant had previously shared this role with another employee. He could have performed parts of the duties of this post. 

(22)	The claimant’s post was originally funded from the general or core funds of the respondent. From 2006 his post was three-fifths funded by funding received from the Community Volunteer Scheme. On 7 September 2005, the claimant had received an email from the then Chief Executive which stated;

“I would be happy to second you to a new position as this would leave you on an equal playing field with other staff re redundancies etc at the end of the project funding, if the organisation is still not financially stable.”

(23)	On 12 January 2009, Kieran Harris, the Chief Executive, wrote to the claimant stating that CVS funding was coming to an end on 31 March 2009 and that three-fifths of his salary funding would then cease. He suggested a meeting. 

(24)	At that meeting on 13 January 2009, the claimant told Mr Harris that he had been promised that his post would revert to core funding at the end of CVS project funding and that there would be a level playing field for redundancies. 

(25)	The second meeting was held on 4 February 2009 attended by the claimant, Mr Brownlee, Mr Grain, the chairperson, and Mr Harris. The claimant was assured at that meeting by Mr Harris that “no-one was talking about redundancies. “

(26)	A third meeting was held on 27 February 2009 attended by the claimant, Mr Brownlee, Mr Grain, Mr Harris and Ms McCutcheon, a Board member. It was a very short meeting and Mr Grain simply told the claimant that he would be made redundant and that the respondent had sought legal advice.

(27)	A fourth and final meeting was held on 29 March 2009 attended by the claimant, Mr Brownlee, Mr Grain, Mr Harris and Ms McCutcheon. The claimant was informed that he would be made redundant on 31 March 2009 (in two days’ time.) He was given no letter of termination at this stage. 

(28)	On 20 March 2009, the respondent left a memorandum in the claimant’s pigeonhole which began;

“Given that you will be leaving the centre on Tuesday 31 March 2009,”

and asked for the return of work-related materials.

	There was no mention of the reason for the termination or of any appeal process.

(29)	Mr Brownlee wrote to the respondent on the same day to appeal the decision to select the claimant for redundancy. He received a holding reply dated 3 April 2009 saying that the correspondence had been forwarded to the trustees. Mr Brownlee and the claimant heard nothing further in respect of an appeal. 

RELEVANT LAW

(30)	Article 130 (A) of the 1996 Order provides;

(1)	 “An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if–

(a)	One of the procedures set out in Part 1 Schedule 1 to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Procedures) applies in relation to the dismissal; 

(b)	The procedure has not been completed and, 

(c)	The non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements. 

(2) 	Subject to paragraph (1), failure by an employer to follow a procedure in relation to  the dismissal of an employee shall not be regarded for the purposes of Article 130 (4) (a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure. 

(3) 	For the purposes of this article, any question as to the application for procedure set out in Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under Article 17 of that Order.” 

(31)	Article 17 of the 2003 Order provides;

(3)	“If, in the case of proceedings to which this Article applies it appears to the Industrial Tribunal that–

(a)	The claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies, 

(b)	The statutory procedure was not completed before the proceedings were begun, and

(c)	The non completion of the statutory procedures was wholly or mainly attributable to failure by the employer to comply with the requirements of the procedure, 

It shall subject to paragraph (4) increase any award which it makes to the employee by 10% and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make the total increase of more than 50%. 

(4)	The duty under paragraph (2) and (3) to make a reduction or increase of 10% does not apply if there are exceptional circumstances which would make a reduction or increase of that percentage unjust or inequitable, in which case the tribunal may make no reduction or increase or a reduction or increase of such lesser percentage as it considers just and equitable in all the circumstances.”

(32)	The standard dismissal procedure set out in full in Schedule 1 to the Employment (Northern Ireland) Order 2003 provides for a three stage procedure.  The first stage is a written statement of the circumstances which lead the employer to contemplate dismissing the employee. That written statement must be sent to the employee together with an invitation to attend a meeting to discuss the matter. The second stage is the meeting at which the employer informs the employee of the decision and notifies the employee of his/her right to appeal against the decision. The third stage is the appeal and notification by the employer to the employee of the decision and appeal.

(33)	In Williams v Compair Maxam Ltd [1982] IRLR 83, the Employment Appeal Tribunal set out the standards which should guide Industrial Tribunals in determining whether a dismissal on the grounds of redundancy is fair in all the circumstances. It stated;

	“There is a generally accepted view in industrial relations that, in cases where the employees are represented by an independent union recognised by the employer, reasonable employers will seek to act in accordance with the following principles;

(1)	“The employer will seek to give as much warning as possible of impending redundancies so as to enable the union and employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions, and, if necessary, find alternative employment in the undertaking or elsewhere.

(2)	The employer will consult the union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible. In particular, the employer will seek to agree with the union the criteria to be applied in selecting employees to be made redundant. When the selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria. 

(3)	Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for selection which so far as possible do not depend solely on the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency at the job, experience, or length of service. 

(4)	The employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider any representations the union may make as to such selection. 

(5)	The employer will seek to see whether instead of dismissing an employee he should offer him alternative employment. “

(34)	In Polkey v AD Dayton Services Ltd [1988] ICR 142, Lord Bridge stated:

“In the case of redundancy, the employer will normally not act reasonably unless he warns and consults any employees affected or their representative, adopts a fair basis on which to select for redundancy and takes such steps as may be reasonable to avoid or minimise redundancy by redeployment within his own organisation. It is quite a different matter if the tribunal is able to conclude that the employer himself, at the time of dismissal, acted reasonably in taking the view that, in the exceptional circumstances of the particular case, the procedural steps normally appropriate would have been futile, could not have altered the decision to dismiss and therefore could be dispensed with. “

(35)	In some cases, it may be necessary for an employer to consider dismissing some other (perhaps less long serving) employee to make way for the employee whose job has disappeared–Thomas and Betts Manufacturing Ltd v Harding [1980] IRLR 255. This is the practice known as “bumping.” 

(36)	The law on age discrimination is set out in the Employment Equality Regulations (Northern Ireland) 2006. Direct and indirect discrimination are defined in Regulation 3. Discrimination in employment is defined in Regulation 7 and Regulation 7 (2) (d) stipulates that discrimination can consist of subjecting an employee to a detriment. 

(37)	The shifting burden of proof provided for EC Council Directive 97/80 and Council Directive 2000/78/EC applies to age discrimination.  The Northern Ireland Court of Appeal, when considering the shifting burden of proof in relation to race discrimination, held in MacDonagh and others v Royal Hotel [2000] NICA 3, that the guidance in Igen v Wong can be applied to all forms of discrimination and stated, “For the purposes of the present case, the first question that the judge should have articulated was “Have the plaintiffs proved on the balance of probabilities facts from which I could conclude, in the absence of an adequate explanation, that the respondent has committed an act  of discrimination against them?” 

	In Madarassy v Nomura International PLC [2007] EWCA CIV33 stated;

“The court in Igen v Wong expressly rejected the argument that it was sufficient for the claimant simply to prove facts from which the tribunal could conclude that the respondent “could have“ committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which the tribunal “could conclude” that on the balance of probabilities, the respondent had committed an unlawful act of discrimination.”

	The Court also stated;

“could conclude” in Section 63A (2) must mean that “a reasonable tribunal could properly conclude” from all the evidence before it. This would include evidence adduced by the claimant in support of the allegations of sex discrimination such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint.”

DECISION

(38)	The respondent clearly failed in this case to follow the three stage procedure set out in the 2003 Order. While it held a series of meetings with the claimant and his representative, it failed to comply with the first stage of the procedure in that no written statement of the reasons which led the respondent to contemplate dismissal was furnished to the claimant together with an invitation to an interview. Furthermore the claimant was not offered an appeal. His NIPSA representative had to take the initiative, and lodge a written appeal, which was then effectively ignored. The dismissal is therefore automatically unfair. 

(39)	The tribunal is under a duty to increase the compensatory award by a minimum of 10% and a maximum of 50% unless exceptional circumstances apply. The tribunal is satisfied that no such exceptional circumstances exist in this case. The tribunal has considered the manner in which the respondent approached this dismissal. No attempt was made to comply with statutory procedure although the respondent did allege to the claimant and his trade union representative that they had had the benefit of legal advice and that they were entitled to dismiss the claimant on the ground of redundancy. The tribunal therefore considers it appropriate to increase the compensatory award by a   factor of 25%.

(40)	Even if this dismissal had not been automatically unfair under the terms of the 2003 Order the tribunal would still have concluded that the dismissal was unfair in all the circumstances of this case. The respondent met with the claimant and his trade union representative on four occasions to discuss the shortfall in funding. At the second meeting on 4 February 2009, some eight weeks before the date of dismissal, the claimant and his representative were assured by the chief executive that redundancy was not an issue. The claimant was only told, and then verbally rather than in writing, at the third meeting, which was held on 27 February 2009, that he was to be made redundant. Mr Grain assured the claimant and his representative that he had sought legal advice and that he was entitled to proceed in this manner. This verbal notification was given just one month before the effective date of termination and followed two meetings in which the claimant had been given no effective notification of what lay in store. It cannot therefore be said, in the opinion of the tribunal, that there was either effective or genuine consultation. Furthermore, the respondent does not appear to have given any consideration at all to the possibility of finding suitable alternative employment for a longstanding and experienced employee by considering making another employee redundant or by considering rearranging some or all of the duties then undertaken by other employees. The respondent seemed to focus automatically on the claimant as the only candidate for redundancy, even though a reasonable employer in these circumstances would have looked at the workforce as a whole and considered whether there were alternative solutions. 

(41)	The tribunal has found that the claimant could have performed any of the duties of the business and development officer, the support worker, the facilities manager and the administrator. The tribunal has also found that the claimant could have performed part of the duties then undertaken by the part time Finance Officer. There is no evidence that the respondent gave any thought at all to these obvious alternatives to redundancy and therefore the tribunal concludes that, even if it had not been an automatically unfair dismissal, the dismissal would in any event have been unfair.  The tribunal, on the evidence before it, cannot conclude that the claimant would still have been selected for redundancy if the correct procedures had been applied by the respondent. Given the variety of alternative approaches that could have been adopted by the respondent in terms of “bumping” or reallocating duties, the tribunal, again on the evidence before it, is not in a position to consider a Polkey deduction at any level.

(42)	The claimant’s evidence was that all the other members of staff, with the exception of the part-time finance officer, were younger than him and he stated that he felt that he had been singled out for redundancy because of his age. In Madarassay, it was held that a simple difference in status (whether that is a difference in age or a difference in gender) and a difference in treatment, is not in itself sufficient to move the burden of proof to the respondent. In the present case, the claimant’s allegation of unlawful age discrimination faces a difficulty in that the part time finance officer, Mr Lawther, was older than him and he was not made redundant.  Furthermore there is no evidence on which the tribunal could reasonably conclude that the decision to select the claimant for redundancy was motivated by his age. The claim of unlawful age discrimination is therefore dismissed. 

COMPENSATION

(43)	The claimant has already received a statutory redundancy payment in the correct amount and therefore no basic award in respect of unfair dismissal is payable.  

(44)	The tribunal concludes that the claimant had made real efforts to mitigate his loss in these circumstances. The tribunal asked for and inspected his jobseeker’s log which records as contemporaneous notes his efforts to seek employment, for the purposes of Jobseekers Allowance, and is satisfied that he made all reasonable efforts to secure alternative employment in the period from his dismissal on 31 March 2009 to the date of hearing. He remains unemployed. 

(45)	The tribunal notes that the claimant quite properly is prepared to seek employment outside his ordinary field of employment and is of the view that it would be reasonable to expect him to be successful in obtaining employment within one year from the date of his dismissal. The tribunal therefore awards a compensatory payment of 52 weeks at £20,338.32 in respect of the loss of net wages. The tribunal accepts the claimant’s evidence that the respondent contributed 7% to the claimant’s defined contribution pension. The   compensatory award is therefore increased by 7% of gross salary in respect of this loss. The compensatory award, at this stage in the calculation, is £22,286.35.

(46)	That compensatory award is uplifted by 25% as a result of the respondent’s failure to comply with the statutory dismissal procedure. The final figure for the compensatory award is therefore £27,857.93. 

(47)	The claimant is in receipt of Jobseeker’s Allowance and, for the purposes of a  recoupment notice;

(i)	The monetary award is £27,857.93

(ii)	The prescribed element is £13,689.20

(iii)	The relevant period for the prescribed element is 1 April 2009 to 1 December 2009.

(iv)	The monetary award exceeds the prescribed element by £14,168.73

(48)	Your attention is drawn to the notice below which forms part of the decision of the tribunal.

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

 

Chairman:

Date and place of hearing:		1 December 2009, Belfast

Date decision recorded in register and issued to parties: