Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 2106/16IT

 

 

 

CLAIMANT: Janet Blades

 

 

RESPONDENT: Harvey Norman Trading (Irl)

 

 

 

DECISION

 

The unanimous decision of the tribunal is that the claimant was unfairly dismissed on the grounds of redundancy and that her dismissal was also automatically unfair due to the failure by the respondent to comply with the statutory dismissal procedure. The tribunal awards the claimant £34,700.09 in compensation.

 

 

 

Constitution of Tribunal:

 

Employment Judge: Employment Judge Wimpress

 

Members: Mr C McIlwaine

Mrs M J McReynolds

 

 

Appearances:

 

The claimant was represented by Mr Philip Boomer.

 

The respondent was represented by Mr Einde O'Donnell of Purdy Fitzgerald Solicitors.

 

 

SOURCES OF EVIDENCE

 

1. The tribunal received witness statements from the claimant, Mr Robbie Auckram and Mr Philip Boomer. The claimant and Mr Auckram gave oral evidence and the tribunal received a bundle of documents from each party together with several additional documents which were produced during the course of the hearing.

 

THE ISSUES

 

2. The main factual and legal issues were helpfully set out following a Case Management Discussion which took place on 16 January 2017. The main legal issues were recorded as follows:

 

(1)        Did the respondent unfairly dismiss the claimant by reason of redundancy contrary to Article 130 of the Employment Rights (Northern Ireland) Order 1996?

 

(2)        Did the respondent discriminate against the claimant on grounds of her sex contrary to the Sex Discrimination (Northern Ireland) Order 1976 by unfairly selecting her for redundancy?

 

(3)        Did the respondent treat the claimant less favourably than the Furniture Manager (Mark McAllister) on the ground of her sex by dismissing her?

 

(4)        Is the claimant entitled to pursue compensation for dismissal under both the Employment Rights (Northern Ireland) Order 1996 and the Sex Discrimination (Northern Ireland) Order 1976?

 

(5)        Did the respondent breach the claimant's contract of employment?

 

(6)        Subject to the above, what (if any) compensation is the claimant entitled to receive?

 

The Record of Proceedings also noted that that the claimant accepted that she was dismissed because of redundancy and that she now complains only of her dismissal which she says was both unfair and a gender discriminatory dismissal. A further refinement of the sex discrimination issues was noted as follows:

 

(a)        Was the fact that the claimant is a woman a significant reason for the employer's choice of her as the person to be dismissed?

 

(b)        Was the fact that the furniture manager is a man a significant reason for the employer's choice of the claimant as the person (from among the two-person pool of redundancy candidates) to be dismissed?

 

Seventeen separate factual issues were identified which it is not necessary to set out here. Whilst we have found these helpful some did not require to be addressed by the tribunal on the case as presented by the parties.

 

In the course of a further Case Management Discussion on 16 March 2017 the same

Employment Judge considered whether to require the respondent to provide the matrix associated with Mr Mark McAllister. On 4 April 2017 the Employment Judge gave a written ruling requiring this matrix to be produced and indicated that the main tribunal should permit the claimant to adduce oral evidence in chief to address this document.

 

THE FACTS

 

3. The respondent is large retail furniture and bedding business. The claimant commenced employment with the respondent as an Assistant Manager on
28 March 2008 in the Furniture and Bedding Division. In anticipation of stores opening in Newtownabbey and Holywood the claimant relocated to Belfast in August 2008. Having worked initially as a training manager in the Furniture and Bedding Department in Holywood she was appointed as Bedding Manager in the Holywood store on 1 January 2009 when the furniture and bedding department was split into two separate departments. The claimant remained in this role until the termination of her employment on 27 September 2016. The claimant's gross pay at the material time

 

 

was £730.74 per week which equated to £580.07 net. These figures included monthly bonuses based on performance assessed against Key Performance Indicators. In theory the claimant was also eligible for additional payments as part of a profit sharing arrangement but the claimant never benefitted from this as the respondent was making a loss at all material times. The claimant's employment terminated on 27 September 2016. She was not required to work a notice period.

 

4. The respondent decided to re-structure the business due to financial conditions and following a strategic review. This resulted in a reduction in the management structure at the Holywood site. The outworking of this decision was that the claimant was made redundant. The Furniture Manager, Mr McAllister, was given the new role of Store Manager and the separate Bedding Manager post was suppressed and subsumed into the Store Manager role.

 

5. The material provided by the respondent in the course of these proceedings included a pithy Redundancy Policy which read as follows:

 

"Should it be necessary to reduce manpower every effort will be made to avoid job losses. The following are some of the measures that will be considered according to the circumstances prior to any redundancy/ies being effected:-

 

-        Recruitment freezes

-        Transfer to other work

-        Short term working

-        Lay off

 

Notwithstanding the above it is recognized that circumstances may arise which leave the Company with no alternative to declare redundancy/ies. Where employees are made redundant, the prime consideration will be to protect the employment of as many people as possible, consistent with maintaining a fully efficient operation. Therefore, selection will be on the basis of retaining key employees required to maintain an efficient operation. The company may present and use a matrix against which employees will be measured and selection will occur. All else being equal, a policy of 'last-in, first-out' may apply. Should the need for redundancy arise, appropriate consultation will take place with staff involved."

 

6. On 8 June 2016 at 6.00 pm Mr Auckram the Bedding General Manager and Ms Dennis the Human Resources Manager met with the claimant. The meeting was the first stage in the redundancy process and the substance of the discussion is set out in a document entitled - "Individual Consultation Meeting". The purpose of the meeting was stated to be a formal and confidential discussion about the structure of the store management and what it meant to the claimant and her role. The document goes on to state that this was the first of a number of individual meetings to take place over the coming weeks and that its purpose is to ensure that she was clear about her options, including alternative roles or re-deployment within the planned new structure. The material portion of this document reads as follows:

 

"The background to the changes is that the Holywood Bedding Department has the lowest turnover within the Bedding to the extent that we have identified that the business does not justify a Bedding Manager role. A similar format that we currently have in Boucher Road will now be introduced to the Holywood Store and this was identified during the company's annual strategic review. This store will now be managed by the Furniture Manager who will be

 

 

responsible for the day to day management of the current Team and will report to both Furniture & Bedding General Managers. As a result of this change, we are sorry to inform you that your role is at risk of redundancy."

 

The document went on to append a copy of the new organisation chart and to discuss the selection process for any alternative jobs that may be found. It further stated that a generous ex-gratia package would be offered in the event that the claimant did not wish to explore alternative jobs and that the respondent had decided to enhance the statutory redundancy package available.

 

7. On the same day and the same time the General Manager - Furniture, Mr Ryan Pheloung, met with the Furniture Manager, Mr McAllister for what was termed an "Individual Informative Meeting". It contained an identical description of the background but did not indicate that Mr McAllister was at risk of redundancy. As with the claimant's Individual Consultation Meeting Mr McAllister was informed that the store would now be managed by the Furniture Manager and that the Bedding Manager's role was at risk of redundancy. No mention was made of Mr McAllister's job being at risk of redundancy or alternative roles or re-deployment for him. It is therefore clear that at this point Mr McAllister was not considered by the respondent to be at risk of redundancy. Mr McAllister took up his new role shortly thereafter.

 

8. On 8 June 2017 the claimant sent an email to Ms Dennis in which she requested a copy of the redundancy selection criteria and posed a number of questions including how the restructuring selection criteria were applied to the two managers. The claimant also sought details of the enhanced statutory redundancy package.

 

9. On 17 June 2016 Mr Auckram responded to the email and explained why the Bedding Manager role could no longer be sustained. He stated that the Bedding Department at Holywood had the lowest turnover in the group and had suffered deep losses for many years. Mr Auckram went on to explain that in order to reduce costs it had been decided to no longer run bedding as a separate business unit and pointed out that the Boucher Road store operated without a dedicated bedding manager and had a similar management structure to the leaner one that they planned to implement at Holywood. Mr Auckram continued thus - "The selection for redundancy has therefore been made based on the role itself of bedding manager no longer being required for the store." Mr Auckram then referred to a list of other roles that had been provided to the claimant on 8 June 2016 and set out details of the enhancement to the statutory redundancy package.

 

10. On 20 June 2016 the claimant responded and asserted that the rationale provided in Mr Auckram's letter was significantly different from the explanation given at the consultation meeting and that the losses attributed to the bedding department were significantly lower than the losses sustained by the furniture department. The claimant went on to suggest that the consultation process was pointless as the Furniture Manager had been informed at his consultation meeting on 8 June 2016 that he had been appointed to the restructured manager post. The claimant suggested that Mr McAllister would therefore receive a financial benefit from her redundancy. The claimant further stated that that the currently available employment roles were not suitable as they involved unreasonable loss of status and remuneration and were based in a different jurisdiction. The claimant complained that she had been unfairly selected for redundancy and had been discriminated against on the ground of her sex by way of the process he had applied.

 

 

 

 

 

 

 

11. On 30 June 2016 Mr Auckram replied to the letter. He refuted the suggestion that different explanations had been given to the claimant and stated that the bedding department in Holywood had the highest percentage loss to sales in the company a figure which he put at 29.4% in the eleven months leading up to the end of May. He also stated that it had the lowest sales per square foot of all the units both north and south. The percentage loss of the furniture department in Holywood was 19.1% for the same period and the sales per square foot was 120.56 euros as compared with 103.76 euros for the bedding department which gave the furniture department a higher turnover. Mr Auckram also refuted the suggestion that the furniture manager would receive a financial benefit as a result of her redundancy. Mr Auckram sought to assure the claimant that the consultation period was not pointless and that they would consider all alternatives that she put forward. Mr Auckram advised that the consultation period was being extended to 19 July 2016 and invited the claimant to meet with him and Ms Dennis on that date to discuss any alternatives to redundancy that the claimant wished to put forward. There was no suggestion however that the decision to place the claimant at risk of redundancy would be changed or that Mr McAllister would be placed at risk of redundancy.

 

12. On 19 July 2016 the meeting took place as scheduled. Mr Boomer attended with the claimant. We have the benefit of two records of this meeting which provides a comprehensive picture of what occurred. In the course of the meeting an alternative role for the claimant, that of Floor Manager, was discussed. Mr Boomer indicated that it was not suitable as it would mean that the claimant would be working under employees whom she had trained and managed. According to Mr Boomer it would also involve a massive drop in pay. Mr Boomer stated that the claimant was preselected for redundancy and that all decisions were taken before consultation. The respective losses of the bedding and furniture departments were also discussed. The claimant and Mr Boomer asserted that the furniture department was making bigger losses than the Bedding Department. Mr Auckram replied that the Bedding Department's sales per square foot was less than any other bedding department. The claimant did not accept the validity of this comparison and stated that the Holywood Bedding Department had a larger floor area than any other bedding department. In addition, she contended that the bedding department in the north had no advertising or drive and a result comparison with stores in the South was pointless. According to the claimant this was Head Office's responsibility. There then followed a discussion about the impact of the claimant not having a second in command ("2IC") about which there was no meeting of minds. Mr Boomer maintained that that the redundancy process was seriously deficient with all decisions being made before the consultation. Mr Boomer suggested that the respondent needed to think about re-running the selection process. There was some further discussion about roles and pay rates. Mr Boomer also stated that there was a gender issue with a female being disadvantaged and a male being advantaged and that this constituted sex discrimination. The meeting then concluded.

 

13. On 2 August 2016 Ms Dennis wrote to the claimant and informed her that following the meeting she and Mr McAllister were scored "as per the attached matrix" and that she was not successful. The matrix referred to was divided into 12 categories but no scores were given in respect of either the claimant or Mr McAllister.

 

14. Ms Dennis advised that as a result she was writing to give the claimant formal notice of the respondent's decision to terminate her employment by reason of redundancy with effect from 27 September 2016. Ms Dennis advised that the notice period was to commence on 2 August 2016 but the claimant would only be required to work until 2 August 2016 with the remaining period being paid in lieu. The letter did not inform the

 

 

 

 

claimant that she had a right of appeal. Neither the claimant nor Mr Boomer raised any issue about the absence of an appeal. In his witness statement Mr Boomer described the meeting on 19 July 2016 as having been convened to allow the claimant to appeal the decision to declare her redundant but it is clear that it was nothing of the sort. As stated by both the claimant and Mr Auckram it was a consultation meeting.

 

15. The respective scorings on the matrix were not provided to the claimant until shortly before this claim was due to be heard. In a letter dated 16 March 2017 the respondent refused to provide Mr McAllister's scorings on the matrix on the basis that to do so would be in breach of the respondent's data protection obligations. At a Case Management Discussion on 16 March 2017 an Employment Judge ordered the respondent to provide the matrix completed in relation to the claimant. The Employment Judge also indicated that the respondent would be required to provide the matrix associated with Mr McAllister but only when the Tribunal Office had confirmed that particular direction in writing. In the event such confirmation was not provided until 4 April 2017 when the Record of Proceedings of the Case Management Discussion was issued. The claimant's matrix was provided by the respondent's solicitors in a letter dated 23 March 2017. The letter also responded to an Additional Information request made by the claimant's representative for details of when the alleged redundancy selection matrix was drafted and by whom. The response reads as follows:

 

"The selection matrix was constructed by Mr Robbie Auckram and Mr Ryan Pheloung following a meeting on the 19 ^th July 2016 wherein the Claimant and indeed her representative raised an issue with regard to the manner in which she had been selected for redundancy. On foot of the issue raised and in the interests of fairness the selection matrix was constructed and applied objectively. The matrix was constructed within a few days of the meeting on 19 ^th July 2016."

 

In answer to a further question as to when the matrix was previously used the solicitors replied that it was used in 2014 at the respondent's store in Newtownabbey.

 

16. The information disclosed in the matrix in respect of each is set out below.

Metric Mark McAllister Janet Blades

 

Percentage of division sales LFY 8.1% 5.6%

 

Percentage of division GP LFY 8.7% 5.5%

 

Revenue Growth LFY - 0.4% 11.1%

 

GP Growth LFY 7.9% 24.6%

 

Mystery shopping results LFY 87.7% 91.8%

 

Loss as percentage of sales LFY 20.0% 28.3%

 

Sales per square foot LFY £97.13 £85.54

 

Profit Improvement LFY £37,243 £48,733

 

Stocktake loss as percentage of sales LFY -0.34% -0.44%

 

 

 

 

Aged Stock 365 Days by Product 11.7% 9.1%

 

Daylight (most recent stocktake) 7.5% 8.4%

 

Wages as Percentage of Sales LFY 8.1% 10.2%

________________________________________________________

Metrics with better performance 8 4__

 

17. As appears from these scores Mr McAllister was considered to have outperformed the claimant in 8 of the metrics and the claimant outperformed Mr McAllister in 4 of the metrics. In her evidence to the tribunal the claimant disagreed with the metrics in respect of which Mr McAllister was recorded as scoring higher than her.

 

18. With regard to possible alternative roles within the business it was a matter of contention as to whether a Furniture Manager post in Carrickmines, Dublin was available at the material time. The claimant gave evidence that this post had been vacant since May 2016 and was not filled until 28 June 2016 when Kevin McCrudden, an employee of the respondent in its Boucher Road store, was appointed to the position. The claimant contended that she ought to have been considered for this post as her Individual Consultation Meeting took place on 8 June 2016 which in terms of timing took place was half way between the post at Carrickmines being advertised and filled. The claimant did put forward alternative employment suggestions at the consultation meeting on 19 July 2016 but this took place approximately three weeks after the post in Carrickmines was filled.

 

RELEVANT LAW

 

Redundancy

19. Article 130 of the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order") provides that:-

 

"(1) 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 reasons (or, if more than one, the principal reason) for the dismissal, and

 

(b) that it is either a reason falling within Paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

 

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

 

...

 

(c) is that the employee was redundant,

 

...

 

(4) Where the employer has fulfilled the requirements of Paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

 

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

 

(b) shall be determined in accordance with equity and the substantial merits of the case."

 

20. A redundancy is defined in Article 174 of the 1996 Order as follows:

 

174(1) for the purposes of this Order an employee who is dismissed shall be taken to be dismissed by reason of redundancy if a dismissal is wholly or mainly attributable to -

 

(a) the fact that his employer has ceased or intends to cease -

 

(i) to carry on the business for the purposes of which the employee was employed by him, or

 

(ii) to carry on that business in the place where the employee was so employed, or

 

(b) the fact that the requirements of that business -

 

(i) for employees to carry out work of a particular kind, or

 

(ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.

 

21. The Employment Appeal Tribunal in Williams v Compair Maxam Ltd [1992] ICR 156 listed the principles which, in general, reasonable employers adopt when dismissing for redundancy employees who are represented by independent trade unions. Those principles can be adapted where the employee is not represented by a recognised trade union. They are as follows:-

 

" 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 the employees to be made redundant. When a 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 upon 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 could offer him alternative employment."

 

22. These guidelines were expressly approved in  Robinson v Carrickfergus Borough Council [1983] IRLR 122, a decision of the Northern Ireland Court of Appeal.

 

23. In  Langston  v  Cranfield University  [1998] IRLR 172 , the Employment Appeal Tribunal held that, so fundamental are the requirements of selection, consultation and seeking alternative employment in a redundancy case, they will be treated as being an issue in every redundancy unfair dismissal case.

 

24. In the decision of the Employment Appeal Tribunal in the case of  Halpin v Sandpiper Books Ltd [2012] UKEAT/0171/11, it was confirmed that the correct approach to dealing with redundancies is set out in  Williams  v  Compair Maxam Ltd  [1982] IRLR 83 .  It also confirmed that decisions as to pools and criteria are matters for management and rarely will it be for an employment tribunal to interfere with any such decisions.

 

25. In  Taymech  v  Ryan [UKEAT/0663/94], Mummery J, as he then was, said on the issue of the basis of the pool for selection:-

 

"There is no legal requirement that a pool should be limited to employees doing the same or similar work.  The question of how a pool should be defined is primarily a matter for the employee to determine.  It would be difficult for the employee to challenge it, where the employer has genuinely applied his mind to the problem."

 

26. In  Capita Hartshead Ltd  v  Byard [UKEAT/0445/12] it was held:-

 

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

 

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

 

27. A tribunal is not entitled to substitute its view for that of an employer, who has genuinely applied his mind to the said issue (see further  Family Mosaic Housing Association  v   Badman [UKEAT/10042/13]).

 

28. In  Fulcrum Pharma (Europe) Ltd  v  Bonassera [UKEAT/0198/10] there was no criticism of the management decision to have a pool of two, the employer's failure related to the failure to consult on the size of the pool. Similarly, in  Halpin v Sandpiper

 

 

 

Books Ltd  since the claimant was the only employee based in China, the respondent's decision to make the post redundant was correctly based 'on a pool of one'.

 

29. Where redundancy arises in consequence of a re-organisation and there are new roles to be filled, it is recognised (see  Tolley's Employment Law Handbook Paragraph 53.11) that an employer's decision is likely to centre upon the assessment of the ability of the individual to perform in the new role - especially where appointment to a new role is likely to involve something more akin to an interview process than a traditional selection process. Although the tribunal is entitled to consider how far the process was objective, it should recognise that the decision as to which candidate will perform best in the new role will involve a substantial element of judgment ( Morgan v Welsh Rugby Union [2011] IRLR 376). Similarly, when an employee is interviewed for an alternative role, the tribunal is entitled to consider how far the process was objective but should recognise that the decision as to which candidate will perform best in the new role will involve a substantial amount of judgment on the part of the employer and there is no obligation to always use objective criteria ( Samsung Electronics (UK) Ltd v Mote-D'Cruz [2012] UKEAT/0039/11).  The Employment Appeal Tribunal emphasised a finding of unfair dismissal in such a case should not turn upon the minutiae of good interview practice.

 

30. In Polkey v AE Dayton Services Ltd [1988] ICR 142 the Court 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, procedural steps normally appropriate would have been futile, could not have altered the decision to dismiss and therefore could be dispensed with."

 

31. In  Mugford v Midland Bank  [1997] IRLR 208 , the EAT stated:-

 

"It will be a question of fact and degree for the tribunal to consider whether 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."

 

32. In the case of  Robinson  v  British Island Airways Ltd [1977] IRLR 477, a new, higher level post was held to be 'in a different league' from the existing post and a redundancy situation was created. Thus a redundancy situation can arise where the upgrading of a post involves a change in the kind of work required and thereby creating a redundancy situation by reducing the need for 'lower level' work.

 

33. The Employment Appeal Tribunal in the case of  Hakki  v  Instinctif Partners Ltd [2014] UKEAT/0112, HH Judge Clarke has again emphasised, following  Murray  v  Foyle Meats Ltd and  Safeway Stores Ltd  v  Burrell, -

 

"... the question is whether there is a reduction, actual or anticipated, in the employer's requirement for employees to do work of a particular kind".  Here the Judge found as fact that the requirement for an employee to do the

 

 

claimant's old job, was going to be replaced by two materially different jobs.  In fact the work increased, as did the employees to do it.  But there was nevertheless a state of affairs which rendered the role performed by the claimant redundant. Examples in the cases may be found in  Robinson v British Island Airways Ltd   ... and  Murphy v Epsom College.  In both cases, following a re-organisation, the new job differed from the old job.  The requirement of the employer for an employee to do work of a particular kind, the claimant's old job had gone or was expected to go..."

 

34 . In Rowell v Hubbard Group Services Ltd [1995] IRLR 195 Judge Levy QC in the context of the requirements of fair consultation emphasised that consultation with an employee in the context of dismissal for redundancy must be fair and genuine. Judge Levy QC also cited with approval a passage in Glidewell LJ's judgment in R v British Coal Corporation and Secretary of State For Trade and Industry ex parte Price and others,[1994] IRLR 72 as follows:

 

"24 It is axiomatic that the process of consultation is not one in which the consultor is obliged to adopt any or all of the views expressed by the person or body whom he is consulting. I would respectfully adopt the tests proposed by Hodgson J in R v Gwent County Council ex-parte Bryant, reported, as far as I know, only at {1988} Crown Office Digest p.19, when he said:

 

`Fair consultation means :

 

(a) consultation when the proposals are still at a formative stage;

 

(b) adequate information on which to respond;

 

(c) adequate time in which to respond;

 

(d) conscientious consideration by an authority of the response to consultation.'

 

25 Another way of putting the point more shortly is that fair consultation involves giving the body consulted a fair and proper opportunity to understand fully the matters about which it is being consulted, and to express its views on those subjects, with the consultor thereafter considering those views properly and genuinely".

 

35. Article 130A of the 1996 Order is concerned with the procedural fairness of dismissals.  Employees are regarded as unfairly dismissed if the statutory dismissal procedure was not complied with and the failure to comply was attributable to the employer. By Article 130A (1) of the 1996 Order where the statutory dismissal procedure is applicable in any case and the employer is responsible for non-completion of that procedure, the dismissal is automatically unfair. A tribunal is required to consider whether the dismissal is automatically unfair under article 130A even where this issue has not been specifically raised by the claimant - see Venniri v Autodex Ltd (EAT 0436/07) .

 

36. When considering the termination of any employment the employer must follow the three-step procedure set out in Schedule 1 of the 2003 Order. Paraphrasing that schedule, the procedure for a redundancy dismissal is:-

 

 

 

 

 

 

"(i) The employer must set out in writing the circumstances which lead him to contemplate dismissing the employee as redundant, and must send a copy to the claimant and invite the employee to a meeting to discuss it.

 

(ii) There must be a meeting. The employee must be told of the decision and of his right to appeal.

 

(iii) If the employee wishes to appeal, there must be an appeal meeting and the employee must be told of the decision."

 

37. Article 17 of the Employment (Northern Ireland) Order 2003 ('the 2003 Order') provides for adjustment of awards made by industrial tribunals where the claim relates to any of the jurisdictions listed in Schedule 2 of that Order.  Unfair dismissals are included in that Schedule. Where a tribunal finds that a failure to complete the statutory procedure is attributable to failure by the employer, it may increase any award it makes to the employee by between 10% to 50% if the tribunal considers it just and equitable in all the circumstances to do so unless there are exceptional circumstances which would make an increase of that percentage unjust or inequitable . This only applies to the compensatory award.

 

38. In Software 2000 Ltd v. Andrews & Ors [2007] UKEAT 0533_06_2601 Mr Justice Elias set out the following principles in relation to compensation at paragraph 54:

 

"(1) In assessing compensation the task of the Tribunal is to assess the loss flowing from the dismissal, using its common sense, experience and sense of justice. In the normal case that requires it to assess for how long the employee would have been employed but for the dismissal.

 

(2) If the employer seeks to contend that the employee would or might have ceased to be employed in any event had fair procedures been followed, or alternatively would not have continued in employment indefinitely, it is for him to adduce any relevant evidence on which he wishes to rely. However, the Tribunal must have regard to all the evidence when making that assessment, including any evidence from the employee himself. (He might, for example, have given evidence that he had intended to retire in the near future).

 

(3) However, there will be circumstances where the nature of the evidence which the employer wishes to adduce, or on which he seeks to rely, is so unreliable that the tribunal may take the view that the whole exercise of seeking to reconstruct what might have been is so riddled with uncertainty that no sensible prediction based on that evidence can properly be made.

 

(4) Whether that is the position is a matter of impression and judgment for the Tribunal. But in reaching that decision the Tribunal must direct itself properly. It must recognise that it should have regard to any material and reliable evidence which might assist it in fixing just compensation, even if there are limits to the extent to which it can confidently predict what might have been; and it must appreciate that a degree of uncertainty is an inevitable feature of the exercise. The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence.

 

 

 

 

 

 

(5) An appellate court must be wary about interfering with the Tribunal's assessment that the exercise is too speculative. However, it must interfere if the Tribunal has not directed itself properly and has taken too narrow a view of its role.

 

(6) The s.98A(2) and Polkey exercises run in parallel and will often involve consideration of the same evidence, but they must not be conflated. It follows that even if a Tribunal considers that some of the evidence or potential evidence to be too speculative to form any sensible view as to whether dismissal would have occurred on the balance of probabilities, it must nevertheless take into account any evidence on which it considers it can properly rely and from which it could in principle conclude that the employment may have come to an end when it did, or alternatively would not have continued indefinitely.

 

(7) Having considered the evidence, the Tribunal may determine:

 

(a) That if fair procedures had been complied with, the employer has satisfied it - the onus being firmly on the employer - that on the balance of probabilities the dismissal would have occurred when it did in any event. The dismissal is then fair by virtue of s.98A(2).

 

(b) That there was a chance of dismissal but less than 50%, in which case compensation should be reduced accordingly.

 

(c) That employment would have continued but only for a limited fixed period. The evidence demonstrating that may be wholly unrelated to the circumstances relating to the dismissal itself, as in the O'Donoghue case.

 

(d) Employment would have continued indefinitely.

 

However, this last finding should be reached only where the evidence that it might have been terminated earlier is so scant that it can effectively be ignored."

Sex Discrimination

39. The Sex Discrimination (Northern Ireland) Order 1976 ("the 1976 Order"), Article 3, provides as follows:-

 

"(2) In any circumstances relevant for the purposes of a provision to which this paragraph applies, a person discriminates against a woman if -

 

(a) on the ground of her sex, he treats her less favourably than he treats or would treat a man."

 

Article 8 (2) of the 1976 Order provides as follows:-

 

"(2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Northern Ireland, to discriminate against her -

 

(a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or

 

(b) by dismissing her, or subjecting her to any other detriment."

 

Burden of Proof

40. Article 63 A of the 1976 Order states:-

 

"(2) Where, on the hearing of the complaint, the complainant proves facts from which the Tribunal could, apart from this Article, conclude in the absence of an adequate explanation that respondent -

 

(a) has committed an act of discrimination or harassment against the complainant which is unlawful by virtue of Part III or

 

(b)  is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination or harassment against the complainant, the Tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, he is not to be treated as having committed that act."

 

The Court of Appeal in England and Wales in  Igen v Wong  [2005] IRLR 258 considered the equivalent provisions to the Northern Ireland statutory provisions in a sex discrimination case and approved, with minor amendment, the guidelines set out in  Barton v Investec Henderson Crosthwaite Securities Ltd  [2003] IRLR 332 . The Northern Ireland Court of Appeal has given approval to  Igen v Wong and the two-stage process, inter alia, in the case of  Bridget McDonagh & Others v Samuel Thom t/a The Royal Hotel Dungannon [2007] NICA 3.  There, the Court of Appeal, in reference to this two-stage process stated:

 

"The first stage required the complainant to prove facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination against the complainant. The second stage, (which only came into effect if the complainant had proved those facts) required the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act, if the complaint is not to be upheld "

 

Igen v Wong  has been the subject of a number of further decisions, including  Madarassy v Nomura International Plc [2007] IRLR 246, a decision of the Court of Appeal in England and Wales, and  Laing v Manchester City Council [2006] IRLR 748, both expressly approved by the Northern Ireland Court of Appeal in  Arthur v Northern Ireland Housing Executive  and   SHL (UK) Ltd [2007] NICA 25.

 

41. In  Madarassy, part of the judgement of the Court of Appeal, per Mummery LJ reads (at paragraphs 56, 57, 71 and 72) as follows:-

 

"56. The court in  Igen  v  Wong expressly rejected the argument that it was sufficient for the complainant 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 a tribunal "could conclude" that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.

 

57. "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 complainant 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.  Subject only to the statutory "absence of an adequate explanation" at this stage.... the tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required ....... and available evidence of the reasons for the differential treatment.

 

...

 

71.      Section 63A(2) does not expressly or impliedly prevent the tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing and rebutting the complainant's evidence of discrimination.  The respondent may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the complainant; or that the comparators chosen by the complainant or the situations with which comparisons are made are not truly like the complainant or the situation of the complainant; or that, even if there has been less favourable treatment of the complainant, it was not on the ground of her sex or pregnancy.

 

72.     Such evidence from the respondent could, if accepted by the tribunal, be relevant as showing that, contrary to the complainant's allegations of discrimination, there is nothing in the evidence from which the tribunal could properly infer a prima facie case of discrimination on the proscribed ground.  As Elias J observed in  Laing (at paragraph 64), it would be absurd if the burden of proof moved to the respondent to provide an adequate explanation for treatment which, on the tribunal's assessment of the evidence, had not taken place at all".

 

42. Accordingly, matters normally involve a two-stage analysis of the evidence but this does not prevent the tribunal at the first stage from drawing inferences from evidence adduced by the respondent disputing and rebutting the claimant's evidence of discrimination.  It is not necessary in every case for the tribunal to go through the two-stage procedure. In some cases it may be appropriate for the tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the  Igen  v  Wong test.

 

 

 

 

 

 

43. The explanation for the less favourable treatment does not have to be a reasonable one; it may be that the employer has treated the claimant unreasonably. Unreasonable treatment might be evidence of discrimination such as, if applicable, to engage stage two in   Igen v Wong. The mere fact that the claimant might have been treated unreasonably however does not of itself suffice to justify an inference of unlawful discrimination to satisfy stage one; per Lord Browne-Wilkinson in  Zafar  v  Glasgow City Council [1997] IRLR 229:-

 

' it cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee that he would have acted reasonably if he had been dealing with another in the same circumstances.'

 

44. Any inference is then drawn not from the unreasonable treatment of itself but rather from the failure to provide a non-discriminatory reason for it.  If the employer does properly demonstrate that the reason for the less favourable treatment has nothing to do with the prohibited ground that discharges the burden at the second stage, however unreasonable the treatment.

 

SUBMISSIONS

 

45. Both parties provided helpful written and oral submissions. Their written submissions are appended to our decision.

 

Claimant's Submissions

Evidential Issues

46. On behalf of the claimant Mr Boomer alleged that the respondent's evidence was inconsistent, contradictory, evasive, incoherent and fabricated in significant respects. Mr Boomer also attacked the respondent's failure to call material witnesses namely Ms Dennis and Mr Pheloung. Mr Boomer submitted that the tribunal could draw adverse inferences from the failure to call them as witnesses.

 

Redundancy

47. Mr Boomer submitted that the respondent had failed at every stage of the redundancy process - consultation, selection and consideration of alternative employment. Mr Boomer emphasised that the approach was no different in a case involving a reorganisation and appointment to new positions.

 

48. Mr Boomer submitted that the best guidance was to be found in Williams v Compair Maxim Ltd. In relation to consultation Mr Boomer drew attention to R v British Coal Corporation ex parte Price in which the court held that fair consultation meant consultation whilst proposals were still at a formative stage, adequate information upon which employees can respond, adequate time in which to respond and conscientious consideration of the response to consultation. Mr Boomer drew attention to the Employment Appeal Tribunal's decision in Morgan v Welsh Rugby Union in which it distinguished Williams on the basis that the appointment to new roles after a re-organisation may involve a substantial element of judgement on the part of the employer. Mr Boomer went on however to refer the tribunal to the decision of the Employment Appeal Tribunal in Green v London Borough of Barking & Dagenham in which it was held that the approach adopted in Morgan must not be elevated to a rule of law and that employment tribunals must always direct themselves back to Article

 

 

 

130(4) unvarnished and review whether the decisions made and the process fell within the range of reasonable responses. Mr Boomer submitted that in the present case the respondent had failed in every respect of the three standard stages of a redundancy process namely consultation, selection and suitable alternative employment. Consultation must not mean simply going through the motions and there must be genuine engagement long before any final decision is made and a genuine consideration of any response. Mr Boomer submitted that in the present case there was no genuine consultation as the decision to dismiss the claimant and appoint Mr McAllister as store manager had been taken before the claimant was notified that she was potentially redundant on 8 June 2016. Mr Boomer submitted that the purported consultation process did not start until 17 June 2016 and was nothing more than the respondent going through the motions in order to garner a defence as was the appeal meeting on 19 July 2016.

 

49. Mr Boomer placed reliance on Mr Justice Silber's review of the authorities in Capita Heartshead Ltd v Byard [2012] IRLR 814 EAT in relation to the relevant pool for redundancy.

 

50. Mr Boomer submitted that Mr Auckram did not give genuine consideration as to who should be made redundant and admitted that the respondent had not applied a fair redundancy process and that using the matrix from the start would have been a better means of determining the redundancy. Mr Boomer went on to submit that Mr Auckram gave conflicting evidence about when and how the matrix came into being. He contrasted Mr Auckram's assertion that the matrix was constructed a few days after the meeting on 19 July 2016 with his evidence that it was constructed seven years previously and was used in a redundancy situation in the respondent's Dundalk store. This was not mentioned in Mr Auckram's witness statement or in the respondent's replies to the requests for discovery and additional information.

 

51. Mr Boomer also placed reliance on Mr Auckram's oral answer to a question posed by the tribunal that it was the company rule that in redundancy situations the larger size of the business takes over and that Mr McAllister was not considered for redundancy because he had a larger turnover and could deal with more customers. Mr Boomer criticised the respondent for not informing the claimant that this was the basis for placing her at risk of redundancy which was substantially different from the grounds set out in the correspondence notifying her of her redundancy. Nor is size mentioned in the respondent's Redundancy Policy. On this basis he submitted that the question arises as to why the matrix was necessary at all. Mr Boomer also drew attention to Mr Auckram's inability to explain why the matrix was not used initially at Holywood and he challenged the suggestion that it was used after 19 July 2016 on the basis that the claimant was not notified of this and at no time was Mr McAllister put at risk of redundancy. Mr Boomer submitted that both the claimant and Mr McAllister should have been placed in the redundancy pool as the Store Manager post was a new post.

 

52. Mr Boomer drew attention to the claimant's evidence that her performance was in fact better in the majority of the metrics contained in the matrix and submitted that in any event the matrix was a fabrication which was being used to justify a decision which was not taken on an objective basis.

 

53. Mr Boomer also criticised the respondent's failure to offer the claimant suitable alternative employment. He submitted that the only direct offer made, that of Floor Manager in the Bedding Department, was unsuitable and that the claimant should have been offered the vacant Furniture Store Manager post in Carrickmines. Alternatively

 

 

the respondent should have implemented a moratorium on recruitment as required by its own Redundancy Policy.

 

54. Overall and applying the relevant case law Mr Boomer contended that the respondent's actions did not fall within the range of reasonable responses open to the respondent. Additionally Mr Boomer submitted that the respondent had not called any evidence to show that the requirements of its business for employees to carry on work of a particular kind had ceased or diminished or was expected to cease or diminish given that the Bedding Department in Holywood continues to operate without any obvious change.

Compensation

55. With regard to compensation Mr Boomer submitted that the tribunal should award two years future loss in addition in addition to the financial cost incurred by the claimant up to the date of hearing. Mr Boomer further submitted that the tribunal should award compensation for loss of pension benefits, loss of profit share as well as bonuses/future bonuses and breach of contract. In respect of breach of contract Mr Boomer submitted that the tribunal should consider making a similar award to that made in Kinnear v Marley Eternit t/a Marley Contract Services ETS/4105271/2016 namely £25,000 in light of the respondent's casual, slapdash and dismissive attitude towards the claimant's employment and her employment contract.

 

Discrimination

56. In relation to discrimination Mr Boomer submitted that the claimant was treated differently and less favourably than Mr McAllister and Mr Eamonn McFadden. Mr Boomer submitted that the claimant had proved facts from which the tribunal could properly conclude that the respondent had discriminated against her in the arrangements made for the redundancy of her post. Mr Boomer relied in particular on the admitted absence of investigation as to who should be put in the redundancy pool and the promotion of Mr McFadden to the Store Manager post in the new Boucher Road store following the closure of the Newtownabbey store without any redundancy exercise. Mr Boomer also relied on the respondent's refusal to offer the Store Manager post in Rathmines. Mr Boomer submitted that on the basis of these facts the tribunal could conclude that the respondent was guilty of sex discrimination in the absence of an adequate explanation by the respondent and that this was sufficient to pass the burden to the respondent to prove that it did not commit a discriminatory act. Mr Boomer correctly referred the tribunal to the relevant case law on this topic and the principles derived therefrom. Mr Boomer submitted that the respondent had failed to provide anything approaching a cogent or non-discriminatory explanation for the treatment afforded to the claimant. Mr Boomer characterised the respondent's defence in this regard as no more than an assertion that it would not discriminate because its CEO was female. Mr Boomer also described a statement purportedly made by the CEO as a fabrication and criticised the respondent's reliance on statistics which he claimed had no probative value. He also cast doubt on the validity and authenticity of the management reports produced by the respondent in support of its decision. Mr Boomer sought to contrast these with the "indisputably original" reports produced by the claimant. In terms of compensation for injury to feelings Mr Boomer submitted that the award should fall within the top band range of the Vento guidelines.

Respondent's Submissions

57. On behalf of the respondent Mr O'Donnell firstly addressed the submission that the tribunal should draw an adverse inference from the respondent's failure to call certain

 

 

 

witnesses. Mr O'Donnell submitted that in compliance with the Overriding Objectives he called only such evidence that was necessary and proportionate to a just determination of the issues and that the respondent therefore deemed it unnecessary to call a succession of witnesses to give the same evidence.

 

Redundancy

 

58. In relation to unfair dismissal Mr O'Donnell submitted that it was clear that a redundancy situation existed and that this was not disputed by the claimant or Mr Boomer who based their case on this. Mr O'Donnell placed reliance on the financial performance of the Bedding Department and the group wide organisational restructure which resulted in the respondent's other stores no longer having a dedicated Bedding Store manager. According to Mr O'Donnell the question for the tribunal was whether the respondent acted fairly and reasonably in effecting the redundancy which he submitted it did.

Selection Process

59. According to Mr O'Donnell the evidence clearly showed that the claimant was selected for redundancy for a number of reasons - (i) the financial performance of the Bedding Department, (ii) the overall group wide organisational structure in which Bedding Department managers were no longer employed and (iii) the relative size of the Bedding Department as compared with the Furniture Department. Mr O'Donnell submitted that a redundancy pool of one was sufficient as long as to do so was within the range of reasonable responses which he submitted it was and that the question of how a pool should be defined is primarily a matter for the employer to determine. Mr O'Donnell further submitted that it was difficult for an employee to challenge the pool where the employer had genuinely applied his mind to the issue which he submitted had been done and the decision to restrict the pool to the claimant was both within the range of reasonable responses and based on objective criteria and issues. Mr O'Donnell submitted that when the claimant then raised issues about the matter the pool was increased to two to include Mr McAllister and that the subsequent use of the matrix ameliorated any issue about the initial decision to place only the claimant at risk of redundancy. Mr O'Donnell submitted that the matrix was based on objective criteria and that these were applied in a fair and objective manner to the claimant and Mr McAllister. Mr O'Donnell refuted Mr Boomer's contention that the claimant scored higher than Mr McAllister in the majority of metrics and took issue with the suggestion that the respondent's documentary evidence was fabricated. Mr O'Donnell equated this with an allegation of fraudulent activity and drew attention to the need for clear evidence to prove such an allegation which he submitted was absent in the present case.

Consultation

60. Mr O'Donnell submitted that a consultation process was entered into with the claimant which commenced with the initial consultation meeting on 8 June 2016 and continued thereafter up to and including the final consultation meeting on 19 July 2016 in the course of which the claimant was given the opportunity to raise issues regarding the initial decision to place her at risk of redundancy which she did. These issues were taken on board by the respondent and led to the implementation of the redundancy selection matrix. Mr O'Donnell also addressed the claimant's contention that she should have been consulted about the content of the redundancy selection matrix and submitted that even if this was unfair it would not have made any difference as it was clear that these criteria were objective and were marked in a reasonable and fair

 

 

 

manner. Accordingly even if the consultation period was deemed insufficient or conducted in a different manner it would have made no difference to the outcome.

 

Compensation

61. In terms of future loss Mr O'Donnell submitted that any award should reflect that the claimant is likely to obtain an equivalent job in the near future. Mr O'Donnell further submitted that any award should reflect that the evidence established that even if the alleged procedural failings were proved the dismissal might have occurred in any event and that the tribunal should express its views in percentage terms. Mr O'Donnell also submitted that the claimant had failed to adduce evidence regarding her efforts to mitigate her loss.

 

Discrimination

62. Mr O'Donnell noted that during her oral evidence the claimant made no reference to being treated less favourably on the ground of her sex. In addition, she had failed to identify Mr McFadden as a comparator in her claim form and thus the issue was not properly before the tribunal and was out of time. Mr O'Donnell further submitted that there was no evidence to support the allegation of sex discrimination and that even if the tribunal was satisfied that the redundancy process was procedurally flawed it does not automatically follow that this was as a result of discrimination. It was not sufficient for the claimant simply to establish a difference in status and a difference in treatment. A mere possibility of sex discrimination was not sufficient to shift the burden of proof to the respondent. Mr O'Donnell drew attention to the clear evidence given as to the reasons why the claimant's role was placed at risk of redundancy - (i) the financial performance of the Bedding Department, (ii) the overall group wide organisational structure in which Bedding Department managers were no longer employed and (iii) the relative size of the Bedding Department as compared with the Furniture Department which he submitted were clearly objective and in no way related to the claimant's sex. In addition, the final decision to make the claimant redundant was based on the objective criteria contained in the matrix and that even if was held that the burden had shifted the respondent had clearly established a non-discriminatory explanation for its actions. Mr O'Donnell further submitted that statistics produced by the respondent to show that it employed persons of different characteristics was of evidential value. Finally, Mr O'Donnell pointed out that the claimant had given no evidence as to injury to feelings and accordingly no award could be made under this heading.

 

Conclusions

Unfair Dismissal

63. The issue in a nutshell is whether the claimant was unfairly selected for redundancy. A redundancy situation arose as in consequence of the respondent's decision to suppress the Bedding Manager post was and subsume it into the new Store Manager role. The parties were both in agreement that the claimant was dismissed on a potentially fair ground namely by reason of redundancy and we are satisfied that this was indeed the case.

 

64. On 8 June 2016 Mr McAllister was informed at an Individual Information Meeting that he was to be made Store Manager. It is clear from the contents of the script and the oral evidence of Mr Auckram that there was no threat to his job. On the same date the claimant was informed at an Individual Consultation Meeting that she was at risk of

 

 

 

 

 

 

 

redundancy. She was also told that Mr McAllister was to be the Store Manager. Mr Auckram made clear that her job was at risk and he provided her with a list of alternative roles. No explanation was given as to how this decision was arrived at. Nor was any mention made of the strategic review or the use of a matrix to make a selection for redundancy notwithstanding the reference to the possible use of such a matrix in the Redundancy Policy.

 

65. When Mr Auckram was subsequently challenged by the claimant and Mr Boomer about the use of the matrix he stated that the metrix exercise was undertaken in the interests of transparency and fairness. It is clear however that the process was very far advanced by that stage and we are not satisfied that this was a genuine attempt to re-run the process. Rather it seems to us that the aim of this exercise was not to reconsider its decision to appoint Mr McAllister and make the claimant redundant but rather to support it.

 

66. The claimant did not receive either her own scores or Mr McAllister's before her employment came to an end. The suggestion that the respondent was precluded from providing this material to the claimant due to data protection issues while possibly valid in respect of Mr McAllister should not have inhibited the respondent from giving the claimant her own scores.

 

67. Had the outcome the matrix exercise been different the respondent would have been placed in a difficult position having already appointed Mr McAllister to the Store Manager post. Mr Auckram rather unconvincingly sought to suggest that the decision making process would have to revisited. We do not believe that this would have occurred. We regard the whole process as a sham and the absence of the opportunity for the claimant to appeal the decision, which we will come to, reinforces this impression.

 

68. We heard a lot of evidence about the matrix much of which we have found difficult to assess. The Court of Appeal and the Employment Appeal Tribunal have sensibly discouraged tribunals from undertaking a close scrutiny of judgemental criteria ( Green Eaton Ltd v King [1995] IRLR 75, EAT). The matrix scores were not however the basis on which the respondent selected the claimant for redundancy in the first place and we are satisfied that the respondent never genuinely engaged in the consultation process in an open minded manner. Evidence of this mind-set is the failure to either inform Mr McAllister that the process was being re-run or to notify him that he was at risk of redundancy. The plain fact of the matter was that he was never at risk. We are unable to accept or believe Mr Auckram's contention that this would have been the case if the matrix had worked out in favour of the claimant.

 

69. At the consultation meeting on 19 July 2016 the respondent's focus was on suitable alternative employment. Mr Boomer suggested that the selection process should have been re-run. In our view this is what a reasonable employer would have done. Instead what was essentially a checking exercise was undertaken. We do not regard Mr Auckram's assertion that Mr McAllister's job would have been under threat as credible. The situation could have been corrected by starting the matter afresh but this was not considered.

 

70. Following the meeting on 19 July Ms Dennis wrote to the claimant and gave her formal notice that her employment was being terminated by reason of redundancy with effect from 27 September 2016. The letter made no mention of the claimant's right to appeal the decision and this renders the dismissal procedurally unfair as the right to appeal is a fundamental aspect of a fair dismissal process.

 

 

 

 

 

71. The criticism of the respondent's alleged failure to offer the claimant suitable alternative employment is also well founded. The obligation is important and is an essential component of the required consultation. In fairness to the respondent it did offer the claimant a managerial role that of Floor Manager in the Bedding Department albeit that this was a lower status role with considerably less remuneration. However, this would have resulted in the claimant working under staff that she had trained and managed. It was therefore entirely understandable that the claimant rejected this role and we are satisfied that the claimant was justified in not accepting this role even on a trial basis as it could not be considered suitable alternative employment in view of the substantial reduction in pay, grade and status. In relation to the managerial post in Carrickmines, we are satisfied that it was not available at the relevant time.

 

72. As indicated above we consider that the consultation process was a sham and on this basis we conclude that the claimant was unfairly dismissed and is entitled to compensation. In so finding we have had regard to the proper approach to consultation as described by Judge Levy QC in Rowell v Hubbard Group Services Ltd. The dismissal was also procedurally unfair due to the failure to offer the claimant an appeal.

 

73. In view of our finding that the decision to dismiss the claimant was procedurally unfair due to the absence of an appeal it is clear that the respondent also failed to comply with the minimum three-step procedure set out in Schedule 1 of the 2003 Order. While the respondent complied with Step1 by setting out in writing the circumstances which led it to contemplate dismissing the claimant as redundant and invited her to a meeting to discuss it, it failed to comply with Step 2 because although the claimant was told of the respondent's decision she was not informed of her right to appeal the decision. As a result there was no appeal meeting as required by Step 3. The claimant's dismissal was therefore automatically unfair due to the failure of the respondent to adhere to the statutory procedure. The fact that neither the claimant nor her representative challenged this failing or sought to bring an appeal in any event does not detract from or minimise the seriousness of this breach of the statutory procedure.

 

74. We do not consider that a Polkey deduction is appropriate in this case as the process was so fundamentally flawed that it is impossible to assess what the outcome might have been had a fair procedure been adopted particularly in view of our finding that the process conducted by the respondent was a sham. This is most certainly not a case in which the tribunal can conclude that the same outcome would have resulted if a fair process had been undertaken.

 

Sex Discrimination

75. In Igen the Court of Appeal cautioned Tribunals, ' against too readily inferring unlawful

discrimination on a prohibited ground merely from unreasonable conduct where there is no evidence of other discriminatory behaviour on such ground '. In the present case we are not satisfied that the claimant has proved facts which would enable to tribunal to consider shifting the burden of proof . Mr McAllister is the obvious comparator having been chosen to fill the newly created General Manager role. Whilst it is clear that the claimant was treated less favourably than Mr McAllister there is no persuasive evidence that this was on the basis of a protected characteristic namely sex. The mere fact that the claimant is a female and Mr McAllister is a male who was more favourably treated is not in itself sufficient to discharge the burden. Nor are we prepared to infer from the failure to consult properly or the other matters that were drawn to our attention by
Mr Boomer that the claimant was less favourably treated because of her sex. As
Mr O'Donnell put it not all unreasonable behaviour is evidence of discrimination.

 

76. The claimant belatedly sought to introduce Mr McFadden as a comparator for the first time in her evidence to the tribunal. No mention was made of Mr McFadden as a potential comparator in the claim form, the correspondence, the discovery sought or particulars requested by the claimant. This is an unsatisfactory state of affairs. However, on the basis of the evidence that we have received and heard we are not satisfied that Mr McFadden is an appropriate comparator as he worked in a different store and in a different role to the claimant. We do not therefore consider that the claimant has established facts from which the tribunal could conclude that that she was treated less favourably than Mr McFadden on the basis of her sex and thus the burden does not pass to the respondent to prove that it did not discriminate against the claimant.

 

77. As we have noted the respondent submitted that in the event that the tribunal found that the claimant had been discriminated against on the ground of her sex no award should be made under this heading as no additional financial loss accrued as a result no evidence was given of injury to feelings. In view of our finding that the respondent did not discriminate against the claimant on the ground of her sex it is not strictly necessary to resolve this issue. Our inclination however would have been to make an award in favour of the claimant if she had succeeded in making out her sex discrimination claim notwithstanding the absence of evidence of injury to feelings. However, as injury to feelings did not feature in the claimant's written or oral evidence this would undoubtedly have served to confine any award to a modest amount.

 

SUMMARY

 

78. Dealing with the legal issues set out at paragraph 2 above our conclusions may be summarised as follows:

 

(1)        The respondent unfairly dismissed the claimant by reason of redundancy contrary to Article 130 of the Employment Rights (Northern Ireland) Order 1996. The matrix process was a sham and the dismissal was procedurally unfair due to the failure to offer the claimant an appeal and no appeal therefore taking place.

 

(2)        The respondent did not discriminate against the claimant on grounds of her sex contrary to the Sex Discrimination (Northern Ireland) Order 1976 by unfairly selecting her for redundancy.

 

(3)        The respondent did not treat the claimant less favourably than the Furniture Manager (Mark McAllister) on the ground of her sex by dismissing her.

 

(4)        The fact that the claimant is a woman was not a significant reason for the employer's choice of her as the person to be dismissed.

 

(5)        The fact that the furniture manager is a man was not a significant reason for the employer's choice of the claimant as the person (from among the two-person pool of redundancy candidates) to be dismissed.

 

(6)        As we have found that the respondent did not discriminate against the claimant on the grounds of her sex we do not need to determine whether she was entitled to pursue compensation for dismissal under both the Employment Rights (Northern Ireland) Order 1996 and the Sex Discrimination (Northern Ireland) Order 1976.

 

 

 

 

 

 

(7)        We have not found that the respondent breached the claimant's contract of employment.

 

(8)        The issue of what compensation the claimant is entitled to is addressed separately below.

 

Remedy

 

79. The claimant is 48 years of age and had more than 10 years of completed service with the respondent. The claimant's gross weekly pay was £730.74 and her net weekly pay was £580.07. At the time of the claimant's dismissal the statutory limit on a week's pay was £479.00. The claimant had a theoretical entitlement to 25% profit share and bonuses. The respondent had not operated at a profit for some time and therefore the question of a profit share does not arise. The bonus element is included in the claimant's weekly pay. The claimant received a redundancy payment of £5,250.00 and received welfare benefits of £143.00 per fortnight from the time of her dismissal. In terms of future loss the claimant made the case that she had difficulty in securing a new job because she was over qualified and had too much experience. Records of her engagement with the Job Centre clearly demonstrate that she has been actively seeking employment but without success. We are therefore satisfied that the claimant has done all that she could to mitigate her loss. The claimant presented as a very able person whom one would expect to secure employment in her field within a reasonably short period of time. The fact remains however that she has not managed to do so thus far but given at 48 she has plenty to offer prospective employers we consider that the appropriate period for future loss should be 12 months. In terms of compensation it is necessary to consider whether this period should be limited on the basis that the claimant would have been made redundant in any event had a fair procedure been followed. This inevitably requires a degree of speculation on the part of the tribunal. If one views the matrix scores as interpreted by the respondent as a reliable guide as to the outcome it would likely have been the case that the claimant would have been dismissed in and around the date on which her employment terminated. However, in view of our conclusion that the consultation process was a sham and the conflicting evidence about the legitimacy of the matrix exercise it is difficult to predict with any degree of confidence when or whether the claimant might have been fairly dismissed by reason of redundancy had a fair and genuine consultation taken place. Doing our best however we consider that future loss should be limited to 6 months on the basis that the dismissal might have occurred in any event. In doing so we have had regard to the helpful guidance offered by Elias J in the Software 2000 Ltd case.

 

80. In view of our finding that the claimant was also automatically unfairly dismissed we may increase the compensatory award by between 10% to 50% if we consider it just and equitable in all the circumstances to do so. We consider that it would be just and equitable to increase the compensatory award by no more than 10% as the respondent's failure while blameworthy did not attract any criticism or complaint by the claimant or her representative.

 

81. We do not accept Mr Boomer's submission that the tribunal should make a similar award to that made in Kinnear v Marley Eternit t/a Marley Contract Services ETS/4105271/2016 , namely £25,000. That was a case in which a contract of apprenticeship was terminated early and as a result the apprentice's loss of earnings was almost at the maximum that the tribunal could award. Although it was treated as a redundancy situation its facts bear no relation to the case before us.

 

 

 

 

Pension

82. An issue in relation to pension loss arose in the latter part of the hearing. At that time both parties had limited information in relation to the claimant's pension entitlement, if any. At the hearing both parties' representatives appeared to be under the impression that the claimant did not have the benefit of a workplace pension and that instead the claimant had a Personal Retirement Savings Account which qualified for tax relief. The tribunal was not satisfied that this issue had been properly addressed and therefore requested the parties to look into the matter further and provide the necessary information to the tribunal. The tribunal thereafter received both information about the pension issue and brief written submissions which we summarise in the following paragraphs.

 

83. By letter of 7 July 2017 the respondent's solicitor provided details of the respondent's pension scheme. The respondent's solicitor very properly corrected his misapprehension about the matter in his letter and provided the tribunal with details of the respondent's pension scheme which came into operation in October 2014. The material provided included a letter to the claimant dated 24 October 2014 informing her that she was being enrolled into the respondent's workplace pension scheme on 31 October 2014. The pension provider was NEST. Payments into the pension scheme would comprise of a contribution by the employee of 1% of total pay which would be matched by a 1% payment in by the employer. The letter also dealt with future increases in contributions. From September 2017 the employer's contribution would go up to 2% and the employee's to 3%. From October 2018 3% would be paid by both employer and employee. The letter also enclosed a table setting out the exact contributions made by the claimant and the respondent from October 2014 to September 2016.

 

84. Armed with this information Mr Boomer set out his calculation of the claimant's pension loss in a letter to the respondent's solicitor dated 16 August 2017. The letter stated that the average yearly pension contributions made by the claimant and the respondent were £624.00 based on a monthly average of 52.02 during the period October 2014 to September 2016. Mr Boomer submitted that the claimant had a legitimate expectation of continuing her career with the respondent until her retirement at age 67 and as a result of her dismissal she lost the benefit of further pension contributions in the sum of £12,485.00 (on present figures) for the additional 20 years of service which would have been invested in her workplace pension. By letter of 22 August 2017 to the tribunal Mr Boomer drew attention to the Employment Appeal Tribunal's decision in University of Sunderland v Drossou UKEAT/0341/16/RN in which it was held that the calculation of a 'week's pay' under the Employment Rights Act 1996 should include employer pension contributions.

 

85. By letter of 23 August 2017 Mr O'Donnell set out the respondent's position in relation to compensation for loss of pension in the event that the overall claim was successful. Mr O'Donnell submitted that any entitlement under this heading should be limited to the employer's pension contributions as to include the claimant's would amount to double compensation. The respondent calculated the average employer contribution at 28.90 euros per month and that any payment under this heading could only be for a period commensurate with any potential award for loss of earnings up until when the tribunal deemed that she could reasonably have returned to work.

 

86. The tribunal accepts Mr O'Donnell's submission that the claimant's potential pension loss cannot extend beyond the period in respect of which she may be compensated for future loss. It would not therefore be appropriate to award compensation for

 

 

 

 

pension contributions up until retirement age as Mr Boomer contends for. In our view it is just and equitable to make an award which covers the employer's pension contributions for 26 weeks future loss. In addition, the claimant is entitled to compensation for pension contributions in respect of the period from her dismissal to the date of the tribunal hearing. We also consider that the monthly average employer contribution proposed by Mr O'Donnell is reasonable although it should be expressed in pounds sterling rather than euros.

 

 

87. AWARD

 

BASIC AWARD

 

£730.74 x 3 weeks = £2,192.22

 

£730.74 x 10.5 weeks = £7,672.77

 

SUB-TOTAL = £9,864.99

 

COMPENSATORY AWARD

 

£479.00 x 29 weeks = £13,891.00

 

SUB-TOTAL = £23,755.99

 

Less Redundancy Payment £5,250.00

 

SUB-TOTAL £18,505.99

 

10% increase for failure to follow

the minimum statutory procedure £1,850.60

 

Loss of Statutory Rights £300.00

 

Future Loss

 

£479.00 x 26 weeks = £12,454.00

 

LOSS OF EMPLOYER'S PENSION CONTRIBUTIONS

 

To date of hearing £28.90 x 29 weeks = £838.10

 

Future Loss £28.90 x 26 weeks = £751.40

 

Total Pension Loss = £1,589.50

 

TOTAL AWARD = £34,700.09

88. The claimant was in receipt of Jobseeker's Allowance following her dismissal. The Employment Protection (Recoupment of Jobseeker's Allowance and Income Support ) Regulations (Northern Ireland) 1996 therefore apply in this case.  Rule 4(3) requires that the tribunal set out:-

 

 

 

            (a) the monetary award;

 

            (b) the amount of the prescribed element, if any;

 

            (c) the dates of the period to which the prescribed element is attributable; and

 

            (d) the amount if any by which the monetary award exceeds the prescribed element.

 

89.      For the purposes of the unfair dismissal proceedings the monetary award is £34,700.09. The prescribed element is the amount of compensation for loss of earnings up to the date of the hearing.  The relevant dates are 27 September 2016 to 14 June 2017 . The tribunal finds that the amount of the prescribed element is £23,753.16. The amount by which the monetary award exceeds the prescribed element in this case is £10,946.93.

 

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

 

 

 

Employment Judge:

 

 

Date and place of hearing: 11-13 April 2017 and 14 June 2017, Belfast.

 

 

Date decision recorded in register and issued to parties:

 

 

Submissions