Agnew v Maine Tankers Limited Maine Tankers Limited [2012] NIIT 00461

THE INDUSTRIAL TRIBUNALS

CASE REFS: 469/12

461/12

CLAIMANTS: 1. Ivor Taggart

2. Jonathan Agnew

RESPONDENT: Maine Tankers Limited

WRITTEN REASON

(1) The first-named claimant’s claim in respect of breach of the Statutory Dismissal Procedures is well-founded and we order the respondent to pay the first-named claimant the sum of £1,160.92 in respect of 4 weeks’ pay.

(2) The first-named claimant claimed unfair dismissal. We believe that the respondent failed to consult in relation to redundancies and so this dismissal is procedurally unfair. However, it is our finding that if the respondent had followed proper consultation procedures the first-named claimant would nevertheless have been dismissed in any case and so the dismissal is not unfair.

(3) The first-named claimant’s claim for written terms and conditions of employment is well founded and we order the respondent to pay the first-named claimant the sum of £580.46 in respect of 2 weeks’ pay.

(4) The first-named claimant’s claim in respect of holiday pay is not well-founded and it is ordered that this claim should be dismissed.

(5) The second-named claimant’s claim in respect of beach of the Statutory Dismissal Procedures is well founded and we order the respondent to pay to the
second-named claimant the sum of £1,101.80 in respect of 4 weeks’ pay.

(6) We find that the respondent failed to consult with the second-named claimant in respect of redundancy and therefore the dismissal is procedurally unfair. However, it is our finding that if the respondent had followed proper consultation procedures the second-named claimant would nevertheless have been dismissed and accordingly the dismissal is not unfair.

(7) The second-named claimant’s claim for written terms and conditions of employment is well founded and we order that the respondent shall pay to the second-named claimant the sum of £550.90 in respect of 2 weeks’ pay.

(8) The second-named claimant’s claim in respect of holiday pay is not well founded and it is ordered that the claim is dismissed.

Constitution of Tribunal:

Chairman: Miss E McCaffrey

Members: Mr P Killen

Mr I Foster

Appearances:

The claimants were represented by Ms Niamh McKenna, Solicitor of Law Centre (NI).

The respondent was represented by Mr Gilmore, one of the respondent company’s Directors.

Following the oral decision of the tribunal given on 13 September 2012, the claimants requested written reasons for our decisions and accordingly we set out the reasons for our decisions.

THE ISSUES

1. The issues for the tribunal to decide in respect of each of the claimants were as follows:-

(1) Did the respondent fail to follow the Statutory Dismissal Procedures in the dismissal of the claimants?

(2) Were the claimants unfairly dismissed by reason of redundancy?

(3) If the claimants were unfairly dismissed by reason of the respondent’s failure to follow the correct procedures, would the claimants nevertheless have been dismissed had the correct procedures been followed?

(4) Did the respondent provide the claimants with written terms and conditions of employment?

(5) In relation to the claimants’ claim for holiday pay, were they entitled to pay in respect of untaken holidays or unpaid holiday pay?

THE FACTS

2. We heard evidence from Mr Matthew Gilmore, a Director of the respondent company and from each of the claimants. In light of our findings of fact and our decision in this case, it is important to note that the evidence which we heard in this case was in many respects incomplete and unsatisfactory. However, on the basis of the evidence which we heard and applying the civil standard of proof as we are bound to do in these cases, the following are our findings of fact.

3. It was conceded by the respondent that the Statutory Disciplinary and Dismissal Procedure had not been followed in relation to this case. The first-named claimant Mr Taggart started employment with the respondent in mid 2006 as a mechanical fitter. Initially he worked on a contract that they had with United Dairy Farmers, carrying out the servicing and maintenance of milk tankers at the Cullybackey plant. He was subsequently transferred to work on oil tankers at the respondent’s depot at Mallusk. There he was amongst five or six people who were carrying out general repairs on the building and assembly of oil tankers.

4. Mr Agnew the second-named respondent commenced work for the respondent in September 2010 and was also working as a fitter and welder and doing similar work to Mr Taggart on oil tankers. It was his evidence that they swapped work from
time-to-time with those who were working on the milk tankers on the United Dairies contract.

5. It was Mr Gilmore’s unchallenged evidence that the business had been in difficulty for approximately two years before the autumn of 2011 due to the widespread recession. At that stage the respondent was notified that the service contract for the United Dairy Farmers fleet of milk tankers (which operated from their Cullybackey premises) would terminate in February 2012. Originally the respondent had three sites, one at Connsbrook in Belfast, Mallusk and Cullybackey. Both the claimants were employed at Mallusk at this time, but because of the mild winter, work had dropped off. There were a number of cancelled orders and there was little business going forward. The respondent had no documentation in relation to cancelled orders, but no evidence was adduced to demonstrate that his assertion was in any way ill founded. Mr Gilmore said they had no option but to make a number of people redundant.

6. In response to the request for discovery sent to the claimants’ representative by the respondent, the respondent had produced a chronology of the employment history of various members of staff from late 2010 onwards. The Engineering Department had moved to Mallusk on 1 February 2011. On 29 March 2011 Mr Cameron, the Sales Manager, died and was not replaced. On 22 April 2011, the Parts Assistant Mr Spratt left Maine Tankers’ employment and was not replaced. On 29 April 2011 the credit controller, Ms Hampton, left the respondent’s employment and was not replaced. Mr Simmons was employed as Work Shop Manager on 16 May 2011 and subsequently made redundant on 23 September 2011. On 5 August 2011, Mr Stewart, the storeman was made redundant and not replaced.

7. On 31 October 2011, the respondent was advised that United Dairy Farmers was terminating its maintenance contract and exit terms were negotiated until February 2012. At this point Mr Dunlop and Mr McToal left and were not replaced. On 28 November 2011 Mr McCrea was employed as a Workshop Manager. The claimants were made redundant on 9 December 2011. On 17 February 2012 when the Cullybackey site closed, Mr Ross, Mr Letters, Mr Smyth and Mr McMaster, who were fitters like the claimants, were made redundant and not replaced. On 24 May 2012 remaining site at the Mallusk site relocated to Connsbrook and Mallusk was closed. On 30 June 2012 Mr Johnston, the Business Development Manager was made redundant and not replaced. On 31August 2012 Ms Wilson the Administration Assistant left the respondent and was not replaced. On 14 September 2012 Mr L Cathal, the Electronical Engineering apprentice left the respondent’s employment and at the hearing the respondent said that there were no plans to replace him. This meant that in the space of two years, the number of staff employed by the respondent dropped from 24 to 8. On the basis of this undisputed evidence, we accept that the respondent’s business was in severe financial difficulties and they had no choice but to make redundancies.

8. The claimants gave evidence that on 9 December 2011, they were both called into the office on a Friday afternoon and handed a letter by Terry Johnston, the then Manager. He told them that effectively they were redundant. There was no discussion in relation to the matter and no consultation. The claimants were paid their statutory redundancy pay, notice pay and any amounts due in relation to unpaid wages. They were asked to vacate the premises immediately and they were not given any right of appeal against their dismissal. No selection process had been carried out and no individual consultation took place. The respondent also conceded that they had not discussed any individual opportunities for redeployment with the claimants, but indicated that as both Cullybackey and Mallusk sites were closing, there were no opportunities for redeployment. This was not disputed by the claimants, but their argument was that they had been unfairly selected for redundancy and that they should have been retained.

9. Mr Gilmore however gave evidence that the respondent had made a decision to retain three fitters, Mr Hamilton, Mr Wray and Jonathan McCauley. He indicated that these employees were retained because of their flexibility and the fact that they were in his words “top line” fitters. They were retained because of their knowledge, experience and their length of service. He indicated that they could be sent to do a job anywhere and work independently, whereas the claimants both needed to be supported and usually would work alongside other fitters. Although the claimants both took the view that they could work independently, they did not produce any evidence regarding their skills or experience to show that they should have been retained in preference to Mr Hamilton, Mr Wray and Mr McCauley.

10. It was put to the respondent that appraisals had been carried out on the two claimants by a previous manager, Mr Simmons, but that these had not been agreed or signed off by the claimants. Mr Gilmore’s evidence was that he had not taken these assessments into account. Mr Simmons was no longer employed by the respondent company and Mr Gilmore said he had based his assessment of his staff and the decision on who should be retained and who should be made redundant on his own knowledge of their ability. He was clear that he knew the staff, their skills and capabilities. This was not disputed by the claimants.

11. On the question of written terms and conditions of employment, Mr Gilmore indicated that written terms and conditions had been prepared in cooperation with Invest NI. He said that he was clear that these had been handed out but that they probably had been handed out by the Human Resources Sub-Contractor and this had not been done by him himself. Both the claimants were adamant that they had never received written terms and conditions of employment and on balance we accept that evidence.

12. In relation to the issue of holiday pay, the evidence which was given by the claimants in relation to this matter was unclear and had gaps. The main part of Mr Agnew’s case seemed to be that he had been off sick for a period of time due to a work injury but that this had been treated as holidays and that he had received his normal pay rather that Statutory Sick Pay for this period. He had not given any clear evidence in relation to holiday entitlement or what holidays they had actually taken. Mr Agnew agreed that he had received one week’s notice pay and one week’s pay by way of a redundancy payment. Neither claimant gave evidence as to their exact rate of pay. From the letters which were sent to each of the claimants, the contents of which were not disputed, it appears that both claimants were given their full redundancy payment, notice pay and unpaid wages and the claimants did not raise any issue in relation to this.

THE RELEVANT LAW

13. It is well established that the claimants have the right not to be unfairly dismissed as set out in Articles 130 and following of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”).

14. Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides as follows:-

“130(i) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –

(a) the reason (or if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within paragraph (ii) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held;

(ii) A reason falls within this paragraph if it -

(a) relates to the capability or qualifications of the employee for performing work of a kind which he was employed by the employer to do;

(b) relates to the conduct of the employee;

(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or that of his employer) of a duty or restriction imposed by or under a statutory provision………..”

In relation to the issue of procedural fairness, the appropriate provisions are to be found in Article 130 A which provides as follows:-

“130A(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 I of 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 130A (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 of a procedure set out in Part I 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.”

The statutory disciplinary and dismissal procedures set out in Schedule 1 of the 2003 Order comprise three stages: a letter from the employer to the employee, setting out the alleged misconduct and inviting the employee to a disciplinary meeting at which he is entitled to be accompanied; the disciplinary meeting at which the employee is entitled to be heard and to reply to the allegations against him; a written decision to the employee and if appropriate, the right to appeal the decision. In the case of a redundancy, the same steps should be gone through in relation to selection for redundancy and the opportunity for an appeal against selection for redundancy provided.

It is widely recognised that consultation is an important part of any redundancy process and that reasonable employers will need to have a good reason for not consulting. As Lord Bridge said in Polkey v AE Dayton Services Ltd [1987] 3 All ER 974,

“….in the case of redundancy, the employer will normally not act reasonably unless he warns and consults any employees affected or their representative…”

However this does not mean that the failure to consult is inevitably unfair. The law was summarised in Mugford v Midland Bank [1997] IRLR 208 as follows:-

(1) Where no consultation about redundancy has taken place with either the trade union or the employee the dismissal will normally be unfair, unless the tribunal finds that a reasonable employer would have concluded that consultation would be an utterly futile exercise in the particular circumstances of the case.

(2) Consultation with the trade union over selection criteria does not of itself release the employer from considering with the employee individually his being identified for redundancy.

(3) It will be a question of fact and degree for the tribunal to consider whether the consultation with the individual and/or his union was so inadequate as to render the dismissal unfair. A lack of consultation in any particular respect will not automatically lead to that result. The overall picture must be viewed by the tribunal up to the date of termination to ascertain whether the employer has or has not acted reasonably in dismissing the employee on the grounds of redundancy.

Article 17(3) of the Employment (Northern Ireland) Order 2003 makes provision for the uplift of awards in a case to which the statutory procedures apply, but they have not been followed due to the failure of the employer. The tribunal should increase the award by 10% and may, in situations where it considers it just and equitable to do so, increase it by up to 50%.

REASONS

Breach of the Statutory Disciplinary and Dismissal Procedures

15. On the admission of the respondent, we accept that the Statutory Disciplinary and Dismissal procedures were not followed in relation to this case and therefore that the claimants are each entitled to receive an award of up to four weeks’ pay for failure to follow the correct procedures. Accordingly, we award each of the claimants 4 weeks’ net pay.

Unfair dismissal

16. As set out above, we agree that there was a breach of the Statutory Disciplinary and Dismissal Procedures in relation to each of the claimants and that therefore on the face of it, the dismissals were automatically unfair. However on the unchallenged evidence of the respondent, we also accept that the respondent’s business was going through considerable difficulties as evidenced by the drop in employees from 24 down to 8 over a year and a half. It was clear that the number of fitters and welders would be have to be reduced markedly because of the loss of the United Dairy Farmers contract and cancellation of other contracts. All of the fitters who were employed at Cullybackey on the United Dairies contract were made redundant, although their termination of employment was delayed until February 2012 to facilitate a handover of that contract. Both the claimants were dismissed in December 2011, but this was because contracts due to be carried out at the Mallusk depot, where they worked, were cancelled. Although there was no documentary evidence of this, the respondent gave unchallenged oral evidence that the contracts had been cancelled. There were no alternative jobs to which the claimants could be redeployed.

17. The main issue of dispute seems to have been that the claimants argued they were unfairly selected for redundancy. However the respondent indicated that he had chosen the fitters to be retained on the basis of their length of service, experience and their flexibility in that they could be sent to work on a wild variety of jobs and could work independently. Again, although the claimants said they could work independently, they did not dispute that they had been placed to work with the fitters who were retained. Nor did the claimants produce any evidence relating to their own skills or experience to show that they should have been retained in preference to those who were kept. Although therefore there was no consultation before the decision was taken to select the claimants for redundancy, Mr Gilmore’s evidence made clear that he did consider the respective skills, flexibility and experience of each of the individuals concerned. We agree that it would have been best practice for the proper consultation to be carried out and indeed may well have avoided these proceedings. However, we accept that if the correct procedure had been followed, then in all likelihood the claimants would still have been made redundant. In these circumstances we find that the dismissal was not unfair in accordance with Article 130(a) of the Employments Rights (Northern Ireland) Order 1996.

Terms and Conditions of Employment

18. In relation to the issue of terms and conditions of employment it does appear clear that the terms and conditions of employment were prepared by the respondent. However Mr Gilmore was not able to say that these contracts had definitely been handed to the claimants and the claimants were adamant that they had not received them. Accordingly we award each of the claimants two weeks’ pay for the respondent’s failure to provide written terms and conditions of employment.

Holiday pay

19. In relation to the issue of holiday pay, we were not presented with sufficient evidence in relation to the holiday pay to which the claimants were entitled or the holiday pay they were due for untaken holiday. Accordingly, we are unable to reach any conclusion in relation to this matter and the claimants’ claim for holiday pay will be dismissed.

20. In summary, we award the first-named claimant the sum of four weeks’ net pay in respect of the respondent’s failure to follow the Statutory Dismissal and Disciplinary Procedure. His net pay was £275.45 per week. We also award him two weeks’ pay in respect of the respondent’s failure to provide written terms and conditions of employment. Accordingly we order the respondent to pay the first-named claimant the following sum:-

£275.45 x 6 = £1,652.72

21. We order the respondent to pay the second-named claimant four weeks’ pay in respect of the respondent’s failure to follow the statutory dismissal and disciplinary procedures. The claimant’s net pay was £290.23 per week. We also award him two weeks’ pay in respect of the respondent’s failure to provide written terms and conditions of employment. Accordingly we order the respondent to pay the
second-named claimant the following sum:-

£290.23 x 6 = £1,741.38

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

Chairman:

Date: December 2012

Date and place of hearing: 13 September 2012, Belfast.

Date written reasons 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 >> Agnew v Maine Tankers Limited Maine Tankers Limited [2012] NIIT 00461_12IT (13 September 2012) URL: http://www.bailii.org/nie/cases/NIIT/2012/461_12IT.html Cite as: [2012] NIIT 461_12IT, [2012] NIIT 00461_12IT

Industrial Tribunals Northern Ireland Decisions