THE INDUSTRIAL TRIBUNALS

CASE REFS:   4377/03
4368/03

CLAIMANTS:		John Patrick Lynn
				Joe Anthony Donegan 

RESPONDENT:		Bombardier Aerospace

DECISION
The unanimous decision of the tribunal is that the claimants were not unfairly dismissed by reason of unfair selection for redundancy.

Constitution of Tribunal:
Chairman:		Mr D Buchanan
Members:		Ms A Hamilton
			Ms T Madden

Appearances:
The claimants were represented by Mr M Potter, Barrister-at-Law, instructed by Thompsons McClure, Solicitors.
The respondent was represented by Mr E R Murphy, Solicitor, of Engineering Employers Federation.

1.	(i)	By claims presented to an industrial tribunal on 8 August 2003, the claimants in these consolidated claims alleged that they had been unfairly selected for redundancy.  It was the respondent company’s case that the claimants had been dismissed following a fair and properly conducted redundancy situation exercise.	
			
	(ii)	In order to determine this matter, the tribunal heard evidence from Mr Rory Galway, Manager, Equal Opportunities and Training, and Mr Sidney Buchanan, Head of Stress for Aerostructures (formerly Head of Stress for Learjet and Challenger Aircraft at the relevant time) on behalf of the respondent company.  It heard evidence from the claimants, and also had regard to the documentary evidence submitted by the parties.	
			
2.	(i)	Before determining the issue referred to at Paragraph 1(i) above, the tribunal had to make a ruling on whether or not it could hear, as part of the claimants’ case of unfair selection for redundancy, evidence that their religious beliefs and/or political opinions had played a part in their dismissal.	
			
	(ii)	In their applications to the tribunal each claimant had alleged that he had “been dismissed unlawfully and unfairly, and that the respondent acted unreasonably and unlawfully in dismissing me in that it took into account unlawful considerations”.	
			
	(iii)	When submitting their applications to the tribunal neither claimant ticked Box 15 on the claim form used at that time which asked whether a claimant was alleging that he had been unlawfully discriminated against on the grounds of religious belief or political opinion.	
			
	(iv)	On 27 June 2005 the solicitors for the claimants sent a document to the Office of the Tribunals, which contained additional information relating to the ‘unlawful considerations’ referred to in the responses.  

It provided the basis for claims founded on religious discrimination, and the letter stated that if this material was not accepted as additional information, the claimants sought leave to amend their applications to include a claim of religious discrimination.  	
			
	(v)	In accordance with the practice of the tribunals, an Order was made under Article 85 of the Fair Employment and Treatment (Northern Ireland) Order 1998, and the matter was listed before the Fair Employment Tribunal.	
			
3.	(i)	A pre-hearing review was held on 3 September 2008 before another Chairman in the Fair Employment Tribunal to decide if the documentation provided on 27 June 2005 amounted to additional information in respect of an existing claim of discrimination on the grounds of religious belief and/or political opinion established by the allegations contained in the claimants’ claim forms that the respondent company took into account ‘unlawful considerations’ when it dismissed them.

The Chairman was satisfied that the claimant’s application forms did not contain claims of unlawful discrimination on the grounds of religious belief and political opinion.  He also refused leave to amend the claims to include such an allegation, principally because of the passage of time and the prejudice to the respondent, and for similar reasons held that it was not just and equitable, in all the circumstances of the case, to extend the time for presenting a claim to the Fair Employment Tribunal.	
			
	(ii)	No applications were made to review this decision, nor was it appealed.	
			
4.	(i)	The case then progressed before an industrial tribunal.  It became clear from the pleadings – at a relatively late stage in the overall context of the case – that a substantial element of the industrial tribunal claims consisted of allegations that the claimants had been subjected to discrimination on the grounds of religious belief and/or political opinion in their selection for redundancy.	
			
	(ii)	At a Case Management Discussion on 20 May 2009, the President of the Tribunals directed that written submissions be made to the industrial tribunal relating to whether or not it could hear and determine a claim of unfair dismissal in which the claimants were alleging that they were unfairly selected for redundancy because of their religious belief and/or political opinion.

By that stage, the Fair Employment Tribunal had ruled that the claimants could not bring distinct claims of discrimination on the grounds of religious belief and/or political opinion.	
			
5.	(i)	It was contended on behalf of the claimants before this tribunal that the decision of the Fair Employment Tribunal had been on a jurisdictional point.  They accept that they cannot bring a claim before the Fair Employment Tribunal, but argue that in deciding whether the selection procedure was unfair, and whether the principal reason for dismissal was redundancy, the tribunal can hear evidence of any religious bias in relation to the question of fairness in the selection procedure.
	
	(ii)	The focus in this case is on the fairness and reasonableness of the decision to dismiss.  The tribunal must scrutinise the reason for dismissal (to ensure that it is not a sham), and to see whether the redundancy procedure was fair, ie that the selection criterion were fair and genuinely applied.

Whilst we do not think it is in dispute that a discriminatory element or bias in a selection procedure can go to the question of fairness or otherwise, we consider that such an allegation in this case is something which the Fair Employment Tribunal has already ruled out.	
			
	(iii)	The claimants are now attempting to make a case which they did not initially plead in their applications to an industrial tribunal in 2003.  An attempt to amend the claim was dismissed by the Fair Employment Tribunal in a decision issued on 16 October 2008.  As stated, that decision was accepted in the sense that it was not reviewed or appealed.  The matter was again raised at a Case Management Discussion some nine months later, and less than two weeks before the date fixed for the hearing of the substantive cases.

This seems to us to be an impermissible attempt to circumvent the decision of the Fair Employment Tribunal issued on 16 October 2008.  To permit such a course at this stage would be to prejudice the respondent company, and it would also be inconsistent with the overriding objective.

In these circumstances, we decline to permit the claimants to adduce evidence in relation to allegations of unlawful discrimination on the grounds of religious belief or political opinion in the operation of the selection process.	
			
	(iv)	In the succeeding paragraphs we set out the facts found in relation to the claimants’ selection for redundancy.	
			
6.	(i)	Both claimants were employed as Senior Stress Engineers with the respondent company which, as is well known, manufactures aeroplanes and aeroplane parts.  In 2001, the company was on a sound footing and was doing well.  At that time around 7,000 people were directly employed by it.	
			
	(ii)	As a result of terrorist attacks, using aircraft, which took place in the United States on 11 September 2001 (’9/11’), the aviation industry worldwide went into severe decline.  The respondent company’s business was no exception, and it was greatly affected by these events.	
			
	(iii)	In the following three year period, there were 2,000 redundancies out of the company’s workforce of around 7,000.  Large numbers were made redundant in December 2001, January 2002, December 2002, May 2003 (when the claimants were made redundant) and subsequently in 2005 and 2007.  These were the major instances of redundancy.  Smaller scale redundancies also took place.	
			
	(iv)	We are satisfied that in May 2003 a genuine redundancy situation existed, and this was not seriously disputed before us.  Appropriate statutory notification of the prospective redundancies was made to the Department of Employment & Learning, there was consultation with trade unions, and volunteers for redundancy were sought (though volunteers could, however, be refused a redundancy package on the basis of the company’s operational needs, for example, where they had skills which were needed).	
			
7.	(i)	The system for redundancy selection which was applied to staff and      shop-floor redundancies was known as the ‘720’ system.  It was a complex system, and was one which had been used in previous redundancy selection exercises.  It had its origins in an agreement made in 1988 between the respondent company and the unions represented in the Confederation of Shipbuilding and Engineering Unions.  The agreement has never been revoked.

Each employee was assessed against five set criteria and scored by his or her direct manager – in the case of the claimants this was Mr Sidney Buchanan at the relevant time.	
			
	(ii)	The full selection criteria which were relevant in this case were:-	

(a)	productivity;

(b)	quality of workmanship;

(c)	attitude;

(d)	ability to work unsupervised; and

(e)	housekeeping.

		Provision was also made for the deduction of points in respect of disciplinary warnings, etc.  That eventuality did not arise here, and it should be recorded that the respondent company viewed both claimants as good and valued workers who would have remained in its employment had it not been for the unfortunate downturn in business after 9/11.

It should also be noted that length of service was not one of the criteria employed.  The company had abandoned it as a criterion in 1995 having taken legal advice which suggested that it could be potentially discriminatory under fair employment legislation.	
			
	(iii)	Each employee in the relevant group – here Band 6 Stress Engineers – was assessed against the set criteria over an assessment period.  For the May 2003 redundancies, the period was 15 March 2002 – 14 March 2003.	
			
	(iv)	The manager, Mr Buchanan, completed an assessment sheet.  There were nine potential marks available for each of the five criteria.  However, one of these prescribed marks had to be given.  It was not permissible to award an intermediate mark.

The basis on which the set points for each criteria should be awarded is also pre-determined.  For example, in relation to productivity there are six definitions and those definitions indicated what a manager had to bear in mind when awarding one of the set scores, as is shown by the table below:-	

			PRODUCTIVITY

			Degree			Definition				Score

			Very much			Diligent worker with output		300
			above standard		levels always high

			Intermediate								270

			Above standard		Diligent worker with output		240
							mostly higher than standard

			Intermediate								210

			Standard			Usually produces work to the	180
							Output level required but can
							lapse occasionally

			Intermediate			(Has been counselled)		150

	(v)	A handbook, ‘Assessment Procedures – March 2003’, set out how the 720 system should be operated.  It included certain provisions designed to ensure consistency.

Paragraph 3.3 provided:-	

“Within each assessment group the assessor should identify the employee whose overall work performance would most represent the average performance within the group.  This employee will then be used as the benchmark against which all other employees within the group will be ranked, on a relative basis, same, above or below.  To assist consistency on the company-wide basis this average employee within each group will assume the ‘Above Average’ score for the overall performance assessment, ie 720.”

		Paragraph 3.4 stated:-	

“The relative score values, on a factor by factor basis, for all other employees ranked against the benchmark employee must then be completed.

The assessor should sign each assessment form upon completion.  You should ensure that the overall distribution of scores for the whole group is such that when totalled and averaged it converges about the 720 value.  The Employee Assessment form should also be completed.”

		Finally, Paragraph 4.1, dealing with ‘Overall Consistency’, provides:-	

“On completion of the scoring exercise for all groups within a section/ department, the appropriate manager should, through consultation with the Immediate Superior/Manager, ensure that the principle of ‘720’ average is maintained consistently across all groups”.

	(vi)	Managers operating the system are provided with guidance in assessing what is relevant, and are provided with training by Human Resources Branch.  A score of 720 represents the sort of performance expected from employees.  Each manager carrying out an assessment has to rank employees around this 720 average.	
			
	(vii)	A manager carrying out the assessment does it on his own, and then provides the assessment form to his superior, who has to ensure that the 720 average score is maintained across the group.  A manager assessing his subordinates would not necessarily be aware of how many workers within the group he was assessing would be at risk of redundancy.

This was the case with Mr Buchanan here.	
			
8.	(i)	In this case the peer group to be assessed consisted of 22 people, who each performed a single function, namely that of senior stress engineer.  

Mr Buchanan was one of six assessing managers, and he assessed seven people in the group, including both claimants.  Mr Buchanan was familiar with the 720 system, having received training in it and having used it in another redundancy exercise some months previously.	
			
	(ii)	Following Mr Buchanan’s assessment exercise, the claimants were sent ‘at risk’ letters on 6 May 2003 telling them that they could be made redundant, as their scores fell within those of the group of employees from which the final selection would be made.	
			
	(iii)	Each subsequently attended an ‘at risk’ interview with Mr Buchanan.  He spoke to each of them, informed them of their scores, and of their right to appeal.  These ‘at risk’ interviews were essentially a device to provide information.  It was not intended that a manager and an employee at risk of redundancy should enter into a debate about the latter’s score.	
			
	(iv)	Both claimants were made redundant.  They were among three out of the twenty two in this group who suffered this fate.

Neither claimant exercised his right of appeal, though scores had been changed on appeal on other occasions.	
			
	(v)	In view of the seriousness of the situation facing the company, no consideration was given to finding them suitable other employment, or to    re-deploying them in some other capacity.	
			
9.	(i)	The claimants make various criticisms of the marks which they received in the redundancy selection exercise carried out by Mr Buchanan.  	
			
	(ii)	They contend that overall the marking was unfair and that they should have been awarded higher scores against some or all of the criteria.  While accepting that ‘experience’ was not one of the set criteria applied by Mr Buchanan (it was a factor to be taken into account in the event of a tie in the marks, but would in such an eventuality have been applied by Human Resources Department) they argued that it was generally the case that people with greater or longer experience, such as them, were getting higher marks and that there was a clear relationship between years of doing a job, the skills required, and the ability to work unsupervised, which their marks did not reflect.	
			
	(iii)	The tribunal does not accept that experience of necessity equates to skill in a job.  There will be those whose skills peak at a certain stage of their careers, and will not increase with the passage of time.

The claimants’ contention in this regard seems to us to be an attempt to introduce length of service as a criterion through the back door.	
			
10.	(i)	It was also suggested by the claimants that there had been irregularities in the marking, and that the final marks had been settled in some improper way.  There was, it was suggested, an ‘invisible hand’ at work.  This suggestion was based on the proposition that it was unbelievable that the final marks averaged out at around 720 in redundancy selection exercises carried out not just in 2003, but also in 2001 and 2002 and that an inference of irregularity could be drawn from this.

However, we found no evidence suggesting the presence of such an ‘invisible hand’.

It also seems to us that if managers are marking to a 720 benchmark there must be a fair chance, if not a mathematical probability, that the final scores will average out at 720.	
			
	(ii)	We accept the evidence of Mr Buchanan that the figures on the assessment sheet completed by him were his own, that he did not improperly change them, and that he was not asked, or invited, to re-assess them or to change them.	
			
11.	(i)	The claimants also alleged that the respondent company had failed to substantiate their low marks, and that there had been discrepancies in the explanations provided by the respondent company’s witnesses of the application of the system used.

For example, the top mark for ‘Attitude’ was 150.  Both claimants scored 105, whereas others scored 120.  The top mark for ‘Housekeeping’ was 50.  All the other candidates in the redundancy selection exercise apart from the claimants scored 40 under this heading.

However, the marks attained by the claimants in these categories were not bad marks by any means, and we are satisfied from the evidence of Mr Buchanan that he has provided an adequate explanation of why he awarded the marks he did in these categories.	
			
	(ii)	Furthermore, the claimants had featured in previous redundancy selection exercises using the 720 system in September 2001 and October 2002.

In both these exercises they had been assessed towards the lower end of their group.  In September 2001 both had been assessed by a Mr Wright, someone in whom they expressed confidence and to whose marks they had raised no objections.  Mr Lynn had scored a mark of 710 and Mr Donegan a mark of 675.  In the 2002 exercise, Mr Lynn was again assessed by Mr Wright with a score of 660.  Mr Donegan was assessed by Mr Buchanan on that occasion, also with a score of 660.

This seems to us to show that the marking system was consistent overall and also within the specific categories marked.	
			
	(iii)	We are satisfied that in the particular exercise with which we are concerned, Mr Buchanan, who saw the claimants’ work on a regular basis, assessed them conscientiously and honestly.  He was an experienced manager who had conducted previous assessments.  There is no evidence before us that he acted dishonestly, or that his system of marking was tainted in any way.  Overall, he was able to give an explanation for the marks he awarded which, as we have indicated earlier, were good marks, though unfortunately not sufficient to save the claimants from being made redundant.

The claimants did not appeal their marks.	
			
12.	(i)	It is convenient to deal at this stage with a further point made on behalf of the claimant, Mr Lynn.  This is that the respondent company failed to follow the prescribed procedure in relation to Mr Lynn given his transfer between units within the respondent company in 2002.	
			
	(ii)	The assessment guidelines provided, at Paragraph 7, that if an employee had been transferred from unit to unit after 14 September 2002, he should be assessed by both his current and previous managers, and scored on the basis of the average of these two assessments.	
			
	(iii)	Mr Lynn transferred from Mr Wright’s unit to Mr Buchanan’s unit in the latter half of 2002.  This much does not appear to be in dispute.  It is also not in dispute that Mr Buchanan scored this claimant.	
			
	(iv)	There is a dispute between the claimant and Mr Buchanan as to when the former transferred.  The claimant gave evidence that he transferred in or about the beginning of December 2002, whereas Mr Buchanan testified that he had transferred at the relevant time in September of that year.  If the claimant is correct, then Paragraph 7 of the guidelines would apply and he would be assessed on the average of the scores awarded by Mr Wright and Mr Buchanan.  If Mr Buchanan is correct, then he properly made the assessment on his own.	
			
	(v)	In addition to hearing the witnesses, we have had regard to documentary evidence submitted by the claimant and Mr Buchanan.  However, we do not find the documentary evidence to be conclusive either way.  Although the claimant produced his diary in support of his contention, very few – only 6 out of 163 – entries related to work.  On balance, we prefer the evidence of Mr Buchanan on this aspect of the matter, and we do not find that there was any breach of the respondent company’s procedure.

Even if there were such a breach of procedure, there is no evidence that it resulted in  any unfairness bearing in mind what we have said above at Paragraph 11 in relation to consistency in marking.	
			
13.	(i)	In these cases, it is not disputed by the respondent company that the claimants were dismissed.  The reason given for their dismissals was redundancy which by virtue of Article 130 of the Employment Rights (Northern Ireland) Order 1996 is a potentially fair reason for redundancy.  The claimants accept that there was a genuine redundancy situation, but contend that they were unfairly selected for dismissal.	
			
	(ii)	Guidelines for the handling of redundancy cases were set out by the Employment Appeal Tribunal in Williams & Others  v  Compair Maxam Ltd [1982] IRLR 83.  At Paragraph 19 of the judgment, Browne-Wilkinson J stated as follows:-	

“In law therefore the question we have to decide is whether a reasonable tribunal could have reached the conclusion that the dismissal of the applicants in this case lay within the range of conduct which a reasonable employer could have adopted … there is a generally accepted view in industrial relations that, in cases where the employees are represented by an independent union recognised by the employer, reasonable employers will seek to act in accordance with the following principles:-

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

(2)	The employer will consult the union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible.  In particular, the employer will seek to agree with the union the criteria to be applied in selecting 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.

The lay members stress that not all these factors are present in every case since circumstances may prevent one or more of them being given effect to.  But the lay members would expect these principles to be departed from only where some good reason is shown to justify such departure.  The basic approach is that, in the unfortunate circumstances that necessarily attend redundancies, as much as is reasonably possible should be done to mitigate the impact on the workforce and to satisfy them that the selection has been made fairly and not on the basis of personal whim.”

	(iii)	On the issues of whether there was a reasonable system of selection for redundancy and whether the selection system was applied without any overt form of bias, it is clear that an industrial tribunal must not attempt to second guess or re-score the points awarded in a properly conducted redundancy selection procedure.  In British Aerospace PLC  v  Green [1995] ICR 1006, at 1010, Waite LJ stated:-	

“Employment law recognises, pragmatically, that an over-minute investigation of the selection process by the tribunal members may run the risk of defeating the purpose which the tribunals were called into being to discharge, namely a swift, informal disposal of disputes arising from redundancy in the workplace.  So in general the employer who sets up a system of selection which can reasonably be described as fair and applies it without any overt sign of conduct which mars its fairness will have done all that the law requires of them.”

(See also : Eaton Ltd  v  King [1995] IRLR 75; Buchanan  v  Tilcon Ltd [1983] IRLR 417; and generally Harvey on Industrial Relations and Employment Law, Volume 1, Division D, Paragraphs 1702.01.)

	(iv)	In stating the above principles the tribunal accepts that managers must be able to show that they took sufficient steps to make their decision as objective and unbiased as possible.  Harvey, op cit at Paragraph 1702.02 states:-	

“It is, however, important to emphasise that the criterion themselves must be fair, they must be genuinely applied and there must be no reason to doubt the reliability of the information received.  

As [was] recognised, there may be some cases where the marking may suggest that the application of the criterion was, or may have been unfair.”

		Examples of such cases are where there is evidence of bad faith, victimisation, or discrimination because of trade union activities.

While a tribunal cannot substitute its decision for that of management or conduct a re-marking exercise, it can consider whether an employer has acted unfairly and in a way in which no reasonable employer would have acted.  In discharging this function a tribunal can scrutinise the scoring where some inference of bad faith or unfairness appears from the markings.	
			
14.	(i)	Having regard to the facts of this case and the relevant law we now reach the conclusions set out below.	
			
	(ii)	The claimants were each dismissed because of redundancy.  It is clear that the company faced a genuine redundancy situation, and this was not disputed by the claimants.	
			
	(iii)	There was appropriate consultation both with trade unions and the persons concerned.  Consultation in respect of the latter included the ‘at risk’ interviews.  There was also provisions for an appeal though regrettably neither claimant invoked this right.	
			
	(iv)	We are satisfied that there was a reasonable system of selection for redundancy in this case.	
			
	(v)	We are further satisfied that the system was applied without any overt sign of bias.  We reject the suggestion that there were any covert influences at work.  We found Mr Buchanan to be a credible witness, who marked each claimant conscientiously and fairly.  We do not accept that there were anomalies in the respondent’s explanation of how the system was applied.	
			
	(vi)	No consideration was given to alternative employment.  This was a conscious decision of management which was reasonable.  The company faced mass redundancies and quite simply there was no alternative employment available.	

15.	We are satisfied that each of the claimants was fairly dismissed.  We therefore dismiss their claims.

Chairman:

Date and place of hearing:	1 – 5 June 2009

Date decision recorded in register and issued to parties: