THE INDUSTRIAL TRIBUNALS

CASE REF:	1429/15

CLAIMANT:			Gerard Meli	

RESPONDENT:		Contract Services Northern Ireland Ltd	

DECISION 
The decision of the tribunal is that the claimant’s claims are dismissed.

Constitution of Tribunal:
Employment Judge:		Employment Judge Murray
Members:				Mr H Stevenson
					Mr A Carlin

Appearances:
The claimant was represented by Mr P Moore of PM Associates.
The respondent was represented by Mr T Sheridan of Peninsula Business Services Ltd.

THE CLAIM

1.	The claimant claimed unfair dismissal and also claimed unpaid holiday pay and notice pay.  The respondent denied unfair dismissal stating that the claimant was fairly dismissed for redundancy.

THE ISSUES

2.	The issues for the tribunal were therefore as follows:
(1)	At the outset of the hearing Mr Moore withdrew the claims for holiday pay and notice pay and they were therefore dismissed at the hearing.

(2)	The claimant did not dispute that there was a redundancy situation at the relevant time and did not dispute the composition of the pool for redundancy.  

(3)	The claimant’s contention related to his selection for redundancy, the application of the selection criteria to him and, in particular, compared his score to the scores obtained by two co-workers namely Simon Smyth and Darren Kane.  It was the claimant’s contention that they should have scored lower on attendance and time-keeping and if they had been properly scored one or both of them would have been below him in the list and his job would therefore have been safe.

SOURCES OF EVIDENCE

3.	The tribunal had the written and oral evidence of the claimant on his own behalf.  The tribunal also had the written and oral evidence of:  Gordon Gillespie, who dealt with the redundancy process and was Contracts Manager; Rory McNaughton, Managing Director who dealt with the grievance appeal process; and Patricia McNaughton, Director and Office Manager, who dealt with the grievance and appeal process.  The tribunal also had regard to the relevant documentation to which it was referred.  

THE LAW

4.	The law on unfair dismissal is set out in the Employment Rights (Northern Ireland) Order 1996 as amended.  The right not to be unfairly dismissed is set out at Article 126 of the ERO and at Article 130 are listed the potentially fair reasons for dismissal, one of which is redundancy.  It is for the employer to show that the dismissal was for one of the potentially fair reasons and it is for the tribunal to determine whether the dismissal was fair in all circumstances.

5.	The decision of the Northern Ireland Court of Appeal in Robinson v Carrickfergus Borough Council [1983] IRLR 122 approved the approach of the EAT in the case of Williams v Compair Maxim [1982] EAT  and established the principles to be applied in a fair redundancy process.  The principles relevant to this case are:
 
(i)	there should be fair warning and consultation;

(ii)	there should be fair selection which involves applying objective transparent selection criteria to the pool;

(iii)	suitable alternative employment should be actively considered and offered by the employer;

(iv)	fair consultation involves providing adequate information and time for the employee to respond to a proposed redundancy so the employee is in a position to suggest alternatives.

FINDINGS OF FACT AND CONCLUSIONS

6.	The claimant was employed as an electrician by the respondent from 16 May 2013 until 2 July 2015 when he was dismissed for redundancy.

7.	There was an “at risk” meeting with the claimant on 16 June 2015.  There were consultation meetings with the claimant on 18 June 2015, 29 June 2015 and 7 July 2015.  The process complied with the SDP; there was fair warning and consultation; and alternatives to redundancy were fairly explored.

The scoring matrix

8.	Mr Maguire was involved with Mr Gillespie in arriving at the scores.  We find nothing untoward in Mr Maguire’s involvement as he was a manager and he had knowledge of all the individuals in the different sites.  

9.	We have recorded an extract from the scoring matrix together with the totals.  The respective scores of the three individuals in issue in this case were as follows:

						Darren Kane		Gerard Meli		Simon Smyth

	Sickness Attendance	  5			  5			  5
	Lateness /Timekeeping	  5			  5			  4
	Skills				  3			  2			  3
	Initiative			  2			  1			  2
	_________________________________________________________________
	TOTALS			26			24			25

The reference period

10.	The respondent in the form of Mr Gillespie and the McNaughtons, gave clear evidence that the period in issue was one year prior to the scoring exercise.  That exercise was carried out in June 2015 and the reference period therefore started in June 2014.  

11.	It was the claimant’s case that the fact that a one-year reference period was used, when a “template” for redundancy stipulated two years for attendance, was of itself unfair.  We reject that contention and find that it was not unfair, per se, to use one year as the reference period in this exercise.  

12.	In the event this did not affect the outcome given that using the two-year period would not have affected the scores.  (see below)

Darren Kane

13.	The claimant’s case was that Darren Kane had had extensive sick leave which was not reflected in his score of five being the maximum score for attendance.  

14.	The respondent applied a period of one year when looking at records for attendance and time-keeping.

15.	The claimant’s evidence in relation to Mr Kane was that Mr Kane had had an injury to his knee which meant that he was off work for three months from March 2013.  Even on the claimant’s own case, which was that the respondent should have looked at a two-year period, the absence of Mr Kane took place outside the two-year period and was therefore irrelevant to that consideration.

16.	The respondent’s evidence was that Mr Kane had had keyhole surgery on his knee and had taken two-and-a-half weeks off using holidays for that instead of sick leave.  

17.	We therefore had conflicting evidence on this point but even if we accepted the claimant’s own evidence on this point it would not have supported the case made by him.  

Simon Smyth

18.	The claimant’s point in relation to Mr Smyth was that “he was never there” and that it was well known that he was always late.  For this reason the claimant’s case was that he should not have scored four out of five for timekeeping.  As there was only one point between the claimant and Mr Smyth it is the claimant’s case that if Mr Smyth had been scored properly then he would have been made redundant instead of the claimant.  

19.	It was common case that Mr Smyth worked on one of Bombardier’s sites and was a lone worker.  The claimant worked on other Bombardier sites.  It was also common case that Mr Smyth had had a neck injury following an accident on holiday.  The respondent’s evidence was that following this serious injury Mr Smyth had regular medical appointments and physiotherapy appointments which meant that he had to come into work late on occasion.  It was the respondent’s case that this was always notified to managers in advance and that Mr Smyth made up the hours on the same day as his appointment by working late.  The respondent’s further evidence was that, as a lone worker, a procedure was put in place whereby Mr Smyth had to send an email each day as soon as he arrived onsite to show the time at which he started work and had to send a further email when he finished work so that the employer had a record of his start and end times each day.  

20.	We accept Mr Gillespie’s evidence on this that there was such an arrangement and we therefore accept his evidence that, whilst co-workers may have formed the impression that Mr Smyth was late on a regular basis, this was not counted by managers as lateness because it was by prior arrangement and Mr Smyth’s hours of work were completed by his staying late.  

21.	Where objective criteria are being used for redundancy scoring, it is preferable to have objective evidence to support the scores.  In this case Mr Gillespie relied on his knowledge of the seven men in the pool and their timekeeping to provide the scores.  In the event Mr Smyth lost one point on the timekeeping criterion.

22.	We find that, whilst the process can be criticised in relation to the lack of records for the lateness point, we do not find that that rendered the dismissal unfair in this case.  Our reason for so finding is that the individuals in the pool worked on different sites and, in particular, Mr Smyth worked as a lone worker on a site where an arrangement had to be put in place in relation to emails to show his attendance.  In these circumstances we do not find it to be a defect in the procedure that the respondent did not search out documentation to support Mr Gillespie’s own knowledge of the situation.  This would have involved locating daily emails over a period of a year for this worker and we find this would have been disproportionate given Mr Gillespie’s personal knowledge of each person in what was a small pool.  

23.	Whilst it is not ideal to have objective criteria which are not backed up by objective documentation we find that there is an unusual feature in this case where the email procedure was in place which meant that it was not unfair for the employer to fail to seek out all the documentation to support what Mr Gillespie already knew.  

Skills

24.	The claimant scored less than the other two men under the heading “Skills”.  The respondent was focussed on that and we find that that was the real reason that the claimant scored lower than his colleagues and was therefore liable to be made redundant.  

25.	It is clear from the documentation that the respondent’s concern about the claimant was in relation to skills and in particular the fact that he was reluctant to work alone.  It was uncontested that the claimant had to be spoken to about taking his holidays at the same time as his supervisor.  Indeed the claimant admitted in the first internal hearing that he was incapable of finishing a job by himself and always had to get a second opinion.  It is clear that this meant that the claimant lost 2 points for skills and initiative when compared to Smyth and Kane.  We find that that was the real focus of the comparison between the claimant and his colleagues and was the reason that led to the claimant’s selection for redundancy.

Nepotism 

26.	The claimant’s point on this was that Mr Kane was the son of one of the directors in the respondent company.  This point was not raised at any point during the internal process and was only raised after the claimant sought advice from Mr Moore.  By that stage one of the letters inviting the claimant to a Grievance/Appeal hearing was signed by Mr Kane.  The allegation of nepotism appeared in a letter from Mr Moore of 27 July 2015.  It is noteworthy that it did not appear in the claimant’s grievance.

27.	The respondent’s point on this was that Mr Kane senior was not involved in the marking process.  In addition the Grievance/Appeal letter referred to Mr Smyth’s score in the process and made no reference to Mr Kane at all.

28.	The height of the claimant’s point on this was that Mr Gillespie and others ignored the two-year stipulation relating to absence so that Mr Kane would score the highest mark of five.  On the claimant’s own evidence this is not correct as Mr Kane’s period of absence fell outside the two-year period relied on by the claimant.  

29.	In summary we find that the claimant’s point on nepotism is of no bearing in this case and we reject his claim in that regard.  

Grievance/Appeal process

30.	The Grievance letter was treated as a Grievance combined with an appeal against dismissal and was dealt with by Ms McNaughton.

31.	The claimant did not attend the grievance meetings despite the fact that they were rearranged several times and he was encouraged to attend in correspondence.  The process therefore went ahead in the claimant’s absence. 

32. 	Mr McNaughton dealt with the appeal against the outcome of the grievance.  Again several meetings were arranged and the claimant was invited to attend.  The appeal proceeded in the claimant’s absence.

33.	The claimant’s point was that he did not attend because Mr Gillespie told him that there would be no point in doing so as the decision would not be overturned.  Following our assessment of Mr Meli in tribunal and our assessment from the documentation where he was ready and able to argue his point and raise issues, we do not accept that he did not attend the hearings because he had been told not to.  The claimant should have attended and argued his point.  It was not a defect in the procedure or decision-making process for matters to proceed in the claimant’s absence.  We do not fault the processes conducted by the McNaughtons.

34.	The criticism of the McNaughtons related to the two-year point.  We accept entirely their evidence that one year was the reference period.  In our experience that is a reasonable period to look at in relation to a redundancy process and we do not find that the reference to two years for attendance in the template meant that the company was bound to follow that period particularly as it was clear that timekeeping was looked at over a one-year period.

SUMMARY

35.	The initial burden is on the respondent to prove the reason for dismissal.  We find that the respondent has done so and that the reason for dismissal was redundancy.

36.	We find that the claimant was fairly selected for redundancy following a process which was within the band of reasonable responses for a reasonable employer in the circumstances in this case.  The claimant’s dismissal was therefore not unfair.

37.	We specifically reject the contention that using a one-year reference period for attendance and timekeeping was of itself unfair when a template mentioned a two-year reference period for attendance.  

38.	We reject the allegation of nepotism as it is irrelevant to this case given the findings on Mr Kane’s absence set out above.  

39.	The claimant’s claim of unfair dismissal is therefore dismissed.

40.	The holiday pay and notice pay claims were dismissed at the hearing.

Employment Judge:

Date and place of hearing:  8 and 9 December 2015, Belfast.

Date decision recorded in register and issued to parties: