Barnes v Rathlin Island Ferries Ltd [2010] NIIT 00292

THE INDUSTRIAL TRIBUNALS

CASE REF: 292/09

CLAIMANT: Jonathan Barnes

RESPONDENT: Rathlin Island Ferries Ltd

DECISION

The unanimous decision of the tribunal is as follows:

1. the claimant was not unfairly dismissed by the respondent ,

2. the claimant was not subjected to bullying and harassment by the respondent,

3. the claimant was provided with a written statement of particulars of change of employer,

4. the claimant did receive his contractual notice entitlement,

5. the claimant is entitled to £2,102.61 in respect of unpaid pension contribution.

Constitution of Tribunal:

Chairman: Ms Fionnuala Oliver

Members: Mr Alan Henry

Ms Mary-Jo McReynolds

Appearances:

The claimant appeared and was represented by Mrs Sinead Barnes.

The respondent appeared and was represented by Mr Adrian Higgins BL instructed by Stewarts Solicitors.

The Issues

1. The claimant claims unfair dismissal, breach of contract and failure by the respondent to provide a written statement of change of employer. The claimant also claims that he was subjected to bullying and harassment so as to constitute a detriment on the grounds of a protected disclosure. The legal and factual issues were reduced to an agreed written form at a Case Management Discussion on 28 October 2009 and this has formed the basis of the issues to be considered at hearing.

2. The respondent filed a response indicating that it had dismissed the claimant on the grounds of redundancy and had provided the claimant with all payments due under his contract. At hearing the respondents agreed to reimburse the claimant for unpaid pension contributions of £2,102.61 and this was accepted by the claimant. The respondent denies that the claimant has been subjected to bullying and harassment.

3. The legal and factual issues identified at the CMD were as follows:-

Legal Issues

(i) Was the claimant unfairly dismissed contrary to Article 130 (4) of the Employment Rights (NI) Order 1996 in that he was unfairly selected for redundancy?

(ii) Was the claimant unfairly dismissed for having made a protected disclosure by virtue of his e-mail dated 7 July to the Department, contrary to Article 134A of the Employment Rights (NI) Order 1996?

(iii) Was the claimant unfairly dismissed by reason of having brought issues pertaining to health and safety to his employers attention contrary to Article 132 (1)(c) of the Employment Rights (NI) Order 1996?

(iv) Was the claimant unfairly dismissed for a reason connected to the transfer of the Rathlin Island ferry from Calmac to the Respondent company, contrary to Regulation 7 of the Transfer of Undertaking (Protection of Employment) Regulations 2006?

(v) Was the claimant subjected to bullying and harassment by the respondent company prior to his dismissal, so as to constitute a detriment, on the grounds of his Protected Disclosure, contrary to Article 70B of the Employment Rights (NI) Order 1996?

(vi) Has the claimant suffered an unlawful deduction and/or breach of contract in respect of unpaid pension entitlement, holiday pay and travelling expenses?

(vii) Did the respondent comply with Article 36 of the Employment Rights (NI) Order 1996 in providing the employee a written statement giving particulars of the change of employer?

(viii) Did the claimant receive his full contractual notice entitlement? If not, is his dismissal wrongful?

Factual

(i) Was the respondent correctly selected for redundancy in terms of the pool, criteria, suitable alternative employment and procedural requirements of his contractual redundancy policy?

(ii) Was the e-mail sent by the claimant on 7 July a protected disclosure, when did the respondent become aware of same and did this form any part in the reasoning behind his subsequent dismissal?

(iii) What were the health and safety concerns raised by the claimant, when were they raised and did these form any part in the reasoning behind his subsequent dismissal?

(iv) Does the claimant’s refusal to assist with the preparation of documentation prior to the transfer constitute a reason related to the transfer and did this form any part in the subsequent decision to dismiss?

(v) Was the claimant (a) ostracised (b) have his job role and duties reduced (c) denied proper access to a PC and mobile phone (d) requested to undertake duties not normally undertaken by an Engineering and Business Manager such as toilet cleaning? and what was the reason for same?

(vi) What was the agreement in respect of pension payments on transfer? Was the claimant paid his proper outstanding holiday pay on termination? Should the claimant be reimbursed for expenses in attending meetings with the respondent companies solicitor?

(vii) Does the correspondence from the company and their solicitors satisfy the requirements of Article 36 of the Employment Rights (NI) Order 1996?

(viii) Which is the correct clause within the contract of employment to be applied in a redundancy situation? What if anything is/was the custom and practice at Calmac?

Sources of evidence

4. The tribunal heard oral evidence from the claimant. The tribunal also heard oral evidence from the directors of the respondent company, Mr Ciaran O’Driscoll and Mrs Mary O’ Driscoll, from Ms Julie Pollock an independent human resources advisor and from Mr Paul Smart the respondent’s solicitor. The tribunal considered the four bundles of documents provided by the parties as well as further documents handed in during the course of the hearing.

Findings of facts

5. The respondent is a ferry operator involved in the Ballycastle to Rathlin Island ferry route. It took over the operation of this route on 1 July 2008 after tendering for the contract with the Department of Regional Development. The takeover was not welcomed by the previous operators of the route Calmac Ltd, who were less than helpful in providing assistance and documentation to the respondent.

6. The claimant was employed as an engineering and business manager by Calmac Ltd or its predecessor from 1 May 2003 and transferred as an employee to the respondent on 1 July 2008. The claimant was also less than helpful to the respondent in the run up to the takeover of the route.

7. Mr Ciaran O’Driscoll met with the claimant on at least two occasions prior to their commencement on the route and asked for assistance in preparation of documentation. The claimant indicated that he was unable to assist as he was still employed by Calmac. Mr Ciaran O’Driscoll was understandably disappointed by this but arranged other assistance. He indicated that the period up to 1 July 2008 was hectic and uncertain. His company was given changing dates for the takeover of the route and he was extremely busy. Mr Ciaran O’Driscoll gave evidence that he did not hold the lack of assistance against the claimant but just got on with preparing for the challenge ahead. We accept this evidence from Mr Ciaran O’Driscoll.

8. On Friday, 27 June 2008, the directors came to Ballycastle to make preparations over the weekend for the commencement of their operations on Monday, 1 July 2008. Perhaps surprisingly, the claimant was not available to meet them as he had arranged to take the morning off.

9. The operation commenced on 1 July 2008 and by all accounts the next week was hectic. There were new systems in place, new computers and ticketing systems and a new vessel. The claimant indicated that everyone mucked in.

10. The claimant gave evidence that he tried to raise safety issues during that week with Mr Ciaran O’Driscoll but that Mr Ciaran O’Driscoll was very busy. Mr Ciaran O’Driscoll gave evidence that as far as he was aware, everything had been done to ensure the safety of the operation and to comply with all legal requirements.

11. On Friday, 4 July 2008, three new company phones arrived and the claimant was annoyed to find out that contrary to the previous position, he was not to be provided with a phone.

12. On 7 July the claimant came in for work as usual. There was some discussion between Mr Ciaran O’Driscoll and the claimant about the claimant’s role and about the claimant’s concerns.

13. The claimant gave evidence that this discussion became quite heated and that he asked for and was given the remainder of the day off.

14. The claimant went home and sent an e-mail to Mr Keith Walsh in DRD raising safety concerns. It is this disclosure which the claimant maintains is a protected disclosure.

15. Mr Keith Walsh copied the e-mail to both the respondent’s solicitor and to the respondent company.

16. Mr Ciaran O’Driscoll states that he operated the ferries in a safe manner at all times and that DRD had no concerns and did not follow up with any sanctions in relation to the issues raised by the claimant.

17. The directors realised that the claimant appeared to be unhappy and in an effort to reassure him and to bring him on board with the new operation, they arranged a meeting between their solicitor and the claimant. This meeting took place on 9 July 2008. We accept that the purpose of this meeting was to reassure the claimant and smooth the way for a better working relationship.

18. We accept Mr Smart’s evidence in relation to this meeting and we accept that his
e-mail of 24 October 2008 to Ms Julie Pollock is an accurate reflection of what occurred at that meeting. We accept that the claimant did not inform Mr Smart that he was being harassed, victimised or bullied by Mr Ciaran O’Driscoll. We do not accept the claimant’s statement that he raised these issues at that meeting. We believe that the claimant has raised this at a later stage to manufacture a claim for victimisation, harassment and bullying once he realised he was being considered for redundancy.

19. The claimant raised an issue regarding the use of a mobile phone. He was perhaps understandably aggrieved that he was no longer to be provided with a phone but his main concern seems to have been with the use of the previous number. We accept the evidence of Mr Ciaran O’Driscoll that the company would have been happy to transfer this number. This was offered but was not pursued by the claimant.

20. A further incident arose at the end of July 2008 regarding payment of the claimant’s salary. We accept entirely that this arose out of a misunderstanding and was not intended to undermine the claimant in his role. This did not contribute in any way to the circumstances which led to the claimant’s dismissal. Again we believe that this was raised at a later date to bolster the claimant’s claims. An issue did arise as to whether the directors were aware that the claimant had made a disclosure to DRD on 7 July 2008. It is clear from the evidence before us that the directors were aware of this disclosure.

21. For the next two months the directors were not aware of any concerns raised by the claimant. Both directors gave evidence that he was courteous and helpful and appeared happy in his role.

22. The directors indicated that when they took over the operation, they had no intention of making anybody redundant and we accept this evidence. They took on new seafaring staff in July 2008 as the operation had increased from one vessel to two vessels. The directors gave evidence that they believed that the claimant would be a crucial and important staff member.

23. The initial two months of operation were beset by difficulties, most importantly, one of the vessels was not available immediately and a replacement was required which led to unexpected charter fees. The directors state that by mid September they were not in a good financial position. Mr Ciaran O’Driscoll stated that by the end of September the company was facing into a winter where the main season was over, there would be no tourist income for 6-8 months and they did not have the funds to continue. They embarked on a financial exercise to identify areas where they could make savings.

24. The respondent obtained accounts from their accountant on 17 September 2008. Having considered these they identified staffing costs as the main area where they could make savings. They carried out an assessment of their employees and came to the conclusion that the job of Engineering and Business Manager was no longer required by the company. They identified the pool of staff at risk of redundancy as a pool of one.

25. The respondent’s solicitor Mr Smart met with the claimant as a matter of courtesy on 22 September 2008 to inform him that his job was at risk of redundancy and informed him that the company would be starting formal procedures.

26. The respondent retained the services of Human Resources consultant, Ms Jackie Pollock to guide them through the redundancy process.

27. The directors gave evidence that they wanted to follow the correct redundancy procedure and they wanted to treat the claimant fairly. They were hampered in this by the failure of the previous employer to provide details of the procedures which were in place in relation to employees in the same position as the claimant.

28. Initially Ms Pollock was under the impression that the redundancy situation was governed by a document entitled Redundancy Agreement Appendix B (page 2 (7) of claimant’s bundle). At the initial meeting with the Union Representative, Mr Bobby Hanna on 30 September 2008, Mr Hanna agreed that this document applied to a much larger organisation and he agreed to a deviation from the detailed consultation requirements of that document.

29. Ms Pollock gave evidence that she contacted Mr Alan Moffatt from the Human Resources Department of the previous employer on 20 October 2008. He indicated that the redundancy document referred to above did not govern the claimant’s situation as it applied to sea going staff only. In the absence of a redundancy procedure document Ms Pollock advised the respondent to follow the statutory redundancy procedures and this is what happened.

30. We find that the respondent followed a full and fair procedure in relation to the redundancy. The respondent wrote to the claimant on 6 October 2008 inviting him to a meeting where a possible redundancy would be discussed. The initial redundancy meeting took place on 16 October 2008 at which the claimant was told that his job was at risk of redundancy. He was accompanied to this meeting by his Union Representative, Mr Bobby Hanna.

31. The respondent wrote to the claimant on 21 October 2008 providing a copy of the document which the respondent had prepared outlining the commercial reasons for the possible redundancy.

32. A further redundancy meeting took place on 23 October 2008 at which the claimant was again accompanied by his Union Representative, Mr Bobby Hanna.

33. Following this meeting, the respondent decided to proceed with the redundancy and the claimant was dismissed by reason of redundancy on 24 October 2008.

34. The claimant was at work on 24 October 2008 but left on being given notice of his dismissal. However, prior to leaving, the claimant was on the slipway. He phoned his wife to inform her that the vessel leaving the harbour was carrying dangerous goods which had not been correctly secured. The claimant’s wife then phoned the MCA to report this. This does not appear to be the action of someone who was genuinely interested in the health and safety of the vessel as the claimant could and should have informed the master of the vessel prior to leaving if there were health and safety issues. We find that this report was not made with a genuine intent to secure health and safety but rather was a deliberate and malign attempt to undermine the respondent’s credibility with the authorities. In any event, this event occurred after the decision had been taken to make the claimant redundant and therefore did not influence the decision.

35. The claimant appealed against the redundancy decision and his appeal was heard on 7 November 2008 by Mr Ciaran O’Driscoll and another director Mr Aidan O’Driscoll. This was in an effort to provide a differently constituted appeal board. The appeal panel upheld the decision to dismiss on the grounds of redundancy.

36. The tribunal noted that during his period of employment, the claimant was also involved in instigating an investigation into the initial awarding of the service by the DRD to the respondent. DRD carried out an investigation and concluded that there was no manifest error in awarding the contract to the respondent. We find that this investigation did not have any bearing on the respondent’s decision to make the claimant redundant.

37. The claimant was considered for re-deployment but all existing roles were filled.

38. We make the following specific findings in relation to the factual issues:

(1) The claimant was correctly selected for redundancy in terms of the pool, criteria, suitable alternative employment and procedural requirements of his contractual redundancy policy.

(2) The e-mail sent by the claimant on 7 July 2008 was a protected disclosure. The respondent became aware of it on 8 July 2008. This did not form any part in the reason for dismissal.

(3) The claimant raised a concern regarding the absence of a written risk assessment for boarding practices and procedures. This was raised by
e-mails of 7 July 2008 and 8 July 2008. The fact that the claimant raised these issues did not form any part in the reasoning behind the dismissal.

(4) The claimant’s refusal to assist with the preparation of documentation prior to the transfer did not form any part in the decision to dismiss.

(5) The claimant did not give any oral evidence of being ostracised and we do not accept that he was ostracised. The job role and duties did reduce giving rise to a redundancy situation. The claimant was not denied proper access to a computer. The respondent made a legitimate business decision not to provide the claimant with a mobile phone as the business did not require it. The claimant did not give oral evidence of being requested to clean the toilet and this was not put to the directors. We accept that in a small company, all members of staff were required to help out with administration and the maintenance of the office space.

(6) The respondent has agreed to pay agreed pension contributions of £2,102.61. The claimant was paid his proper outstanding holiday pay on termination. The claimant is not entitled to be reimbursed for expenses.

(7) The requirements of Article 36 of Employments Rights Order (ERO) 1996 have been complied with by the correspondence dated 26 June 2008 from the respondent’s solicitors to the claimant. This confirms that the respondent will take over the employment of the claimant on 1 July 2008 and his terms and conditions of employment will remain unchanged.

(8) The claimant received his correct redundancy entitlement under his contract of employment. He also received his correct notice entitlement.

The law

39. By virtue of Article 126 of the 1996 Order an employee has the right not to be unfairly dismissed by his employer. However, prima facie, dismissal for redundancy is fair as it falls within one of the reasons outlined in Article 130 (2) of the 1996 Order. It is up to the respondent to prove that the reason for dismissal is redundancy.

40. The definition of redundancy is found in Article 174 of the 1996 order

''174—(1) For the purposes of this Act 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) ........

(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 so employed by the employer,

have ceased or diminished or are expected to cease or diminish.''

41. Essentially it is up to the employer to provide evidence to show that the alleged reason for the dismissal does have some basis in fact, and that a proper business decision has been reached. If the employer fails to satisfy a tribunal of this, he is not establishing that redundancy is the true reason for dismissal.

42. As well as the reasons outlined in Article 130 (2) it is also possible to show that a dismissal is fair if it is for some other substantial reason of a kind such as to justify the dismissal of the employee. However, the respondent did not plead this in its response and did not make this case at hearing. The tribunal would therefore be reluctant to make a finding on this where it has not been advanced as an argument by the respondent.

43. If the tribunal is satisfied that the dismissal is for a potentially fair reason it must go on to consider whether the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee in accordance with Article 130 (4).

44. The respondent must show that it has complied with the statutory dismissal procedures otherwise the dismissal will be automatically unfair.

Application of findings of fact to the law

45. The claimant was dismissed on the grounds of redundancy. The respondent has provided evidence that it undertook a review of its finances and operations and came to the conclusion that the job of Engineering and Business manager was no longer required within the business. The roles of the claimant had been subsumed within the roles of the new directors. One of the claimant’s main roles prior to the takeover was to report to Calmac but as Calmac were no longer involved and the directors were on hand to reach decisions, this part of the claimant’s role ceased to exist. We note that despite the fact that passenger numbers have doubled since the takeover of the route by the respondent, no one has been employed to replace the claimant. This is further evidence that the role of the claimant was no longer required and a genuine redundancy situation had arisen. We accept that at the time of the Transfer, the respondent did not anticipate making redundancies. In view of the fact that a further vessel had been added to the route, we accept the respondent’s evidence that it did not anticipate having a redundancy situation. It was only after the financial situation deteriorated that it became apparent to the respondent that staffing costs were an issue. The respondent was entitled to decide that the pool of employees was one and that it was only the claimant’s job which was at risk. The respondent followed a fair procedure and came to a reasonable decision to dismiss the claimant on the grounds of redundancy. They considered possible redeployment but there were no suitable alternative roles.

46. We believe that the respondent did all they could to ensure that the procedure they followed was fair. They realised that the claimant would be unhappy with the proposed redundancy and made a genuine effort to reach a fair conclusion.

47. Having found that the dismissal was on the grounds of redundancy, we now consider whether the decision was reasonable. In all the circumstances, we consider that the decision to dismiss was a reasonable conclusion which a reasonable employer could reach.

48. We answer the legal issues raised as follows:

(1) The claimant was not unfairly selected for redundancy.

(2) The claimant was not dismissed for having made a protected disclosure.

(3) The claimant was not dismissed by reason of having brought health and safety issues to his employer’s attention.

(4) The claimant was not dismissed for a reason connected to the transfer of the Rathlin Island Ferry from Calmac to the respondent. In any event we find that even if it is accepted that the redundancy arises out of the transfer, the respondent has shown that the redundancy arises from an economic technical and organisational reason.

(5) The claimant was not subjected to bullying and harassment by the respondent. We believe that the claimant has manufactured this claim after he became aware of the possibility of redundancy. We note that the claimant did not raise these issues at his meeting with the solicitor on 9 July 2008 or at any stage later until the possibility of redundancy arose.

(6) The claimant is entitled to a pension contribution of £2,102.61. The claimant has received his correct holiday entitlement and is not entitled to expenses. The respondent complied with Article 36 of ERO.

(7) The claimant received his full contractual notice entitlement. The claimant’s contract of employment states that in the event of redundancy the employee will be entitled to four weeks payment for every completed year of service plus one week in lieu of notice for every completed year of service. The claimant received five weeks notice pay in accordance with his contract.

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

Chairman:

Date and place of hearing: 22-24 September 2010; 19, 20 and 22 November 2010, 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 >> Barnes v Rathlin Island Ferries Ltd [2010] NIIT 00292_09IT (01 March 2011) URL: http://www.bailii.org/nie/cases/NIIT/2011/00292_09IT.html Cite as: [2010] NIIT 00292_09IT, [2010] NIIT 292_9IT

Industrial Tribunals Northern Ireland Decisions