Fair Employment Tribunal Northern Ireland Decisions

FAIR EMPLOYMENT TRIBUNAL

 

CASE REFS: 6/16FET

238/16IT

 

 

 

CLAIMANT: Tracey Campbell

 

 

RESPONDENT: Irish Football Association

 

 

 

DECISION

The unanimous decision of the Tribunal is that the claimant was unfairly dismissed and is awarded the sum of £28,716.54 in compensation.

 

 

Constitution of Tribunal:

 

Employment Judge Murray

Mr E Grant

Mr J Hughes

 

Appearances:

 

The claimant was represented by Mr N Phillips, Barrister-at-Law instructed by Worthingtons Solicitors.

 

The respondent was represented by Mr Southall of ELAS.

 

THE CLAIM

 

1. The claimant's claim was for unfair dismissal. The respondent claimed that the dismissal was for redundancy and was fair.

 

2. The claimant's claim under the Fair Employment and Treatment (Northern Ireland) Order 1996 (as amended) was withdrawn at the outset of the hearing and is therefore hereby dismissed.

 

THE ISSUES

3. The issues for the Tribunal therefore were as follows:

 

(1) Whether there was a redundancy situation at the relevant time;

 

(2) Whether the redundancy process was a sham designed to get rid of the claimant;

 

(3) If there was a redundancy situation, whether adequate steps were taken by the respondent's managers to seek alternative employment or alternatives to redundancies;

 

(4) Whether irregularities in the process and in the interview process rendered the decision to dismiss unfair;

 

(5) If the claimant is successful, the level of compensation to be awarded. Specifically in this regard the respondent accepted that the claimant had mitigated her loss and the respondent did not allege contributory conduct.

 

SOURCES OF EVIDENCE

 

4. The Tribunal had written statements and oral evidence from the following witnesses for the respondent:

 

(1) Oonagh O'Reilly, Director of Sales and Marketing, who took the decision to dismiss;

 

(2) Gerry Crossan, Director of Corporate Services, who sat on the interview panel and was involved in the strategic plan.

 

(3) Caroline Ash of Human Resources.

 

(4) Elaine McCann of EMC Consulting Ltd, who dealt with the grievance report.

 

(5) Lisa Doherty of AXUM Consulting, who dealt with the appeal against the grievance outcome.

 

(6) Gill Fairly of People Align Ltd, the consultant who dealt with the appeal against the redundancy dismissal.

 

5. The claimant gave evidence on her own behalf.

 

6. The Tribunal took account of all the evidence both oral and documentary and the documents to which it was referred during the hearing.

 

THE LAW

 

7. The law on unfair dismissal is set out in the Employment Rights (Northern Ireland) Order 1996 as amended (referred to below as "ERO"). The right not to be unfairly dismissed is set out at Article 126 of 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.

 

8. Redundancy is defined at Article 174 of ERO 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 the 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."

 

9. The parties referred the Tribunal to the cases elucidating the general principles in this area in oral and written submissions. The Tribunal took account of both parties' oral and written submissions.

 

10. The authorities are clear that the mere fact of reorganisation is not conclusive of redundancy: it is rather a question of fact for the Tribunal as to whether or not a reorganisation results in a redundancy situation because work of a particular kind has ceased or diminished.

 

11. Redundancy is a potentially fair reason for dismissal and it is for the Tribunal to consider whether the respondent acted reasonably or unreasonably in treating redundancy as a reason for the dismissal of the claimant.

 

12. 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 Maxam [1982] EAT and established the following principles to be applied in a fair redundancy process:

(i)             There should be fair warning and consultation;

 

(ii)           There should be fair selection;

 

(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.

 

13. The following statement from the Williams case has resonance in this case:

 

"the employer will seek to give as much warning as possible; will seek to ensure the selection is made fairly in accordance with agreed and established criteria and; will seek to see whether instead of a dismissing an employee he could offer him alternative employment. The court must be satisfied that the decision has been made fairly and not on the basis of a personal whim". (emphasis added) .

 

FINDINGS OF FACT AND CONCLUSIONS

 

14. The Tribunal made the following findings of fact on a balance of probabilities and applied the principles of law to the facts found in order to reach the following conclusions. It is important to note that this decision records the primary facts found and does not set out all the competing evidence.

 

Introduction

 

15. We found the evidence of Ms O'Reilly and Mr Crossan to be unsatisfactory and, indeed, evasive in several respects. In particular we were concerned that, when questioned on the issue of whether or not there was restructuring envisaged in the organisation prior to Ms O'Reilly joining it, both Ms O'Reilly and Mr Crossan referred to the 2015 business plan which, despite several attempts, was never produced to us. Other documents were produced during the hearing in support of this contention and no explanation was given to us for the failure to provide these documents on discovery if they were relevant to the issues in the case. Ultimately none of the documents belatedly produced to deal with this point contained the promised evidence.

 

16. We found the evidence of Mr Crossan in particular to be most unsatisfactory in relation to the "tippex" on, and alterations made to, the interview notes of the claimant. The initial explanation given in cross-examination was then changed by Mr Crossan and this tainted his credibility and reliability generally for us.

 

17. In contrast we found the evidence of the claimant to be clear, convincing and consistent. The claimant fairly conceded points in cross-examination which were not to her advantage and this enhanced her credibility for us.

 

18. For the reasons set out above where there was a conflict between the evidence of the claimant and the evidence given by the respondent's witnesses, we preferred the evidence of the claimant.

 

Background

 

19. In 2013 a restructuring began in the respondent organisation which led to the departure on redundancy by several senior members of staff. This meant that the head of the claimant's department left in December 2013 leaving essentially the claimant to cover his work and her own. Whilst Mr Crossan joined the organisation in February 2014 and nominally took over as line manager for the claimant, in reality he had very little, if any dealings with the claimant and her work, other than signing-off on sponsorship deals which had been negotiated and finalised by the claimant.

 

20. The claimant was Commercial Manager at the relevant time and worked at a high level dealing with sponsors and sponsorship contracts on her own. She made several representations to Mr Crossan and other senior managers in relation to the volume of work in her department following the departure of the head of department in December 2013 which led to an increase in workload for the remaining team.

 

21. On 9 January 2015 (over a year after the departure of the former Head of Department) Oonagh O'Reilly was appointed as the new head of the claimant's department and immediately set about having one-to-one conversations with her staff. The first one-to-one with the claimant took place on 13 January 2015, the next took place on 23 February 2015, and a third took place on 1 April 2015.

 

22. On 15 June 2015 five staff including the claimant were told that their roles were at risk of redundancy, that seven new roles had been created, and the job descriptions for those roles were handed out at that meeting. On the same day the individual redundancy consultation meeting took place with the claimant. A further redundancy consultation meeting took place between the claimant and Ms O'Reilly on 26 June 2015.

 

23. One of the new roles was that of Sponsorship Activation Manager (SAM). The claimant applied for that role on 10 July 2015 as it was the closest match to her existing job.

 

24. The claimant submitted a grievance about the process and about Ms O'Reilly in particular on 6 August 2015. The grievance against Ms O'Reilly accused her of unjustified criticism; that she took an instant dislike to the claimant without getting to know her and without assessing her work; that she excluded the claimant from meetings; that she targeted the claimant unfairly and criticised and demeaned her in front of colleagues. The claimant gave seven detailed examples of this treatment.

 

25. The claimant's interview for the SAM post took place on 11 September 2015 and on 16 September 2015 she was notified that she had been rejected for the job. She was the only internal candidate to go for that job and the job was subsequently advertised externally. The successful external candidate was an individual who Ms O'Reilly had worked with for three years in another organisation immediately before Ms O'Reilly joined the respondent.

 

26. The grievance report was received by the claimant on 15 September 2015. Her grievance was not upheld although some criticisms were levelled against the organisation in relation to communication and a lack of clarity of what the claimant's role consisted of and where her remit started and ended.

 

27. The final redundancy consultation took place with the claimant on 24 September 2015.

 

28. The claimant appealed against the grievance outcome and the grievance appeal meeting took place on 28 September 2015. The grievance appeal report was received by the claimant on 30 September 2015.

 

29. The claimant appealed against the redundancy decision on 5 October 2015. A redundancy appeal hearing took place on 9 October 2015 and the outcome of the redundancy appeal was received by the claimant on 13 December 2015.

 

30. Following the claimant's unsuccessful interview for the new post, she was dismissed for redundancy with effect from 24 September 2015. The Effective Date of Termination (EDT) was therefore 24 September 2015.

 

Was there a redundancy situation?

 

31. The initial burden is on the respondent to prove the reason for dismissal and that it is one of the potentially fair reasons set out in ERO. The only reason relied upon by the respondent in this case was redundancy.

 

32. The first issue for us is whether or not there was a redundancy situation at all and in this regard we go back to the wording in the ERO set out at paragraph 8 above.

 

33. We reject the respondent's case that a redundancy situation pertained at all for the following principal reasons:

 

(1) Five roles were said to be redundant and seven roles were created to replace them. We were told that the two extra roles related to "digital content" and that the redundancy in relation to the other roles related to a restructuring. The net effect was that the number of roles did not reduce.

 

(2) We accept the claimant's evidence that the job description for the new role of Sponsorship Activation Manager comprised 70% of the duties she already carried out. We accept her evidence that the remaining duties were "hived off" to another role and that this accounted for the remaining 30%.

 

(3) We specifically reject Ms O'Reilly's evidence that the Sponsorship Activation Manager role comprised 30% of the claimant's existing role. The reason we reject her evidence on this, is that the only point that she referred to which was new to the Sponsorship Activation Manager role was the ability to be "strategic". The Sponsorship Activation Manager job description lists 19 criteria of which only two mention the word "strategic". One of those criteria relates to the CRM process which everyone agreed was not in existence in the respondent's organisation at the relevant time.

 

(4) In relation to CRM, Ms O'Reilly's evidence changed from a requirement for someone who could design a CRM system to someone who could instruct the relevant computer experts to provide a system tailored to the department. In those circumstances we find that the claimant could easily have been trained in that CRM process if, indeed, that was required at all.

 

(5) Ms O'Reilly stated that the other strategic element of the job related to dealing at Director level with sponsors and "peer-to-peer" contact with sponsors. We accept the claimant's evidence that she was engaged in exactly that high level of contact in the years prior to Ms O'Reilly joining the organisation and until the claimant left.

 

34. The authorities are clear that a re-organisation of roles of itself does not necessarily meet the statutory test for redundancy. We find that the "hiving off" of 30% of the claimant's duties did not mean that her role was redundant in circumstances where the number of staff overall increased and this is not a case where new specialisms were required.

 

35. As we have accepted that the new job description essentially covered the claimant's existing duties, and that the "strategic" element of it related to work with sponsors which was already being carried out by the claimant, we find that it is not the case that the claimant's role was redundant. The respondent's case therefore fails on this point alone as it has not shown that the claimant was dismissed for one of the potentially fair reasons set out in ERO.

 

Findings on redundancy process

 

36. Given that we heard evidence in relation to all aspects of the redundancy process, we record below our findings in that regard.

 

37. In this case we find that the redundancy process was a sham and was part of a drive by Ms O'Reilly to replace the Claimant with someone else. We find that this indicates that personal whim was a key factor in the redundancy process. We so find for the following principal reasons.

 

38. There was no mention in documents prior to Ms O'Reilly's joining the organisation that a restructuring would be required and that redundancies might result.

 

39. There was no audit of existing staff despite the claimant's reasonable suggestion that this should take place. The lack of documents regarding the decision-making process when redundancies were decided upon by senior management, leads us to conclude that there was no real assessment of staffing levels. We find that the process was essentially driven by Ms O'Reilly's desire to get rid of those that she did not feel she could work with. Ms O'Reilly stated in the redundancy appeal meeting as follows:

 

"(1) GF - TC felt you have identified 'favourites' within the team and these people were retained?

 

(2) OO - There were people who were delivering who were supportive of heading in a new direction and who were working with me. I had regular monthly 1-2-1's from Jan to April with all employees, and everyone's performance was being managed. I was asking people to take on additional work and assist me. Some people were performing, some weren't. I asked everyone to do things and some didn't. So I would go to the people who were taking on tasks and completing them".

40. We specifically reject the respondent's contention that the capabilities being assessed by Ms O'Reilly related to the capabilities of the department and that this was nothing to do with the people within that department. Mr Crossan's evidence was very clear that the assessment of performance or capabilities of individual staff were irrelevant to the process of deciding on restructuring and redundancies. This evidence was therefore to some extent at odds with the evidence of Ms O'Reilly who, whilst insisting that capabilities related to the structure of the department, repeatedly mentioned deficiencies in the claimant's performance and attitude.

 

41. Reference to the claimant's deficiencies in working with Ms O'Reilly were referred to in submissions by the respondent's representative Mr Southhall who then clarified that the relevance of this material for the Tribunal was to show that Ms O'Reilly did not take any complaints by the claimant personally. Mr Phillips for the claimant contended that any such evidence was irrelevant to the issues before the Tribunal.

 

42. We find that the repeated reference to alleged deficiencies in the claimant's performance give an indication of the real motivation of Ms O'Reilly, in that it is clear that, on very little evidence, she formed an adverse view of the claimant and her work. We find that this was one of the motivating factors in requiring the claimant effectively to apply for her own job.

 

43. In addition we were most concerned about the irregularities in the interview documentation. In summary, those deficiencies relate to: discrepancies in dates of completion of the documents; tippex on forms; confusion on whether the forms were completed at the time of the interviews or later; and handwriting apparently from someone other than the interviewers appearing on the forms. Our assessment of the evidence and the documents to which we were referred and the way the original documents were only produced at the behest of the Employment Judge, leads us to conclude that there was something untoward about the interview process. We find that these irregularities, in turn, colour in an adverse way, the decision-making process on the restructuring.

 

44. We further find that inadequate attempts were made to avoid the claimant's redundancy in that there was no consideration of training, for example in the CRM system, nor was proper consideration given to matching her role to the new SAM role. If that had been done properly we fail to see why the claimant was not simply placed in that role, unless there was an ulterior motive on the part of Ms O'Reilly and Mr Crossan in relation to making the claimant redundant. We find that such an ulterior motive applied in this case in that there was a determination to replace the claimant.

 

45. Ms O'Reilly carried out one-to-one conversations with the claimant and, unbeknown to the claimant, she was being assessed for her abilities and performance in those conversations. As a key purpose of the one-to-one was not revealed to the claimant, we find that this was an inadequate way for Ms O'Reilly to glean evidence of the extent of the claimant's existing role and her performance, especially as
Ms O'Reilly had just joined the organisation.

 

46. A detailed "matching process", whereby old roles were matched to new, was outlined by Mr Crossan when he was questioned in the respondent's internal processes and yet no documentation whatsoever was produced then or to us to show that this in fact took place. The job description relied upon for the matching exercise was also four years out-of-date

 

47. We conclude that an ad-hoc, impressionistic exercise was undertaken based on out-of-date job descriptions and without seeking the specific input of the claimant to outline the scope of her role. In addition, no account seems to have been taken of the fact that the claimant had for over a year been expressing concerns about the workload and the requirement for further resources in order to carry out the role more effectively in circumstances where the Head of Department role was unfilled for over a year.

 

48. We note the following findings in Ms McCann's grievance report:

 

"It does appear that in some regards, Oonagh O'Reilly was picking up years of discontentment in the absence of a Head of Department. In the absence of clarity of what Tracey's role perhaps consisted of and where her remit started and ended appears to have compounded the relationship between both Tracey and Oonagh. For a relationship to work it needs to work both ways and Tracey has pointed out that she withheld information from Oonagh, claiming she mistrusted her. Ownership would lie with both parties to make a positive working relationship."

 

49. We find that Ms O'Reilly formed an adverse view of the claimant's performance based on Ms O'Reilly's contention that she had asked for things to be done and they were not done. The claimant admitted this to some degree in the internal processes and was candid in her evidence to us that as matters progressed she had withheld some information from Ms O'Reilly because she felt she was being excluded from the high-level contact that she had been engaged in for the years prior to Ms O'Reilly joining the organisation and she therefore feared for her future. However as no proper assessment was done on the claimant by Ms O'Reilly, this admission by the claimant does not outweigh our finding that lack of proper assessment pointed to a determination by Ms O'Reilly to replace the claimant.

 

50. We also note with concern that, despite the claimant raising a detailed grievance about Ms O'Reilly's behaviour towards her and the claimant's suspicion that Ms O'Reilly wanted to replace the claimant with a new team, Ms O'Reilly sat on the interview panel for the new post which the claimant applied for. In Tribunal hearing, following a panel question posed to Mrs Ash of HR, it became apparent that Mrs Ash had specifically raised concerns at the time about the appropriateness of Ms O'Reilly continuing to being involved in that interview process, given that the grievance was still under consideration. Despite those misgivings (with which we completely concur in the circumstances of this case) Ms O'Reilly pressed to be included in the interviewing panel as (on Mrs Ash's evidence) Ms O'Reilly stated that it was "imperative" for her to be on that panel to ensure that she had "the right team". This evidence supports our finding that the process was a sham with a predetermined outcome for the claimant.

 

51. We also note with concern that, given the nature and extent of the grievance which had been raised and the concerns about Ms O'Reilly, the interview process was not halted until the outcome of the grievance process. The two matters were clearly interlinked because, if the grievance had been upheld, then Ms O'Reilly should most certainly not have been on the interview panel. We are concerned that the independent consultants simply went along with the decision of the IFA that the two processes (namely the grievance and the redundancy appeal) should run separately.

 

52. One consultant did not follow up on documents she requested in relation to the matching process after she had identified this as a weakness with Mr Crossan. We are concerned that whilst the consultants were brought in to be independent of managers, in this case they accepted the stance of managers without much scrutiny.

 

 

 

SUMMARY

 

53. As the respondent has failed to prove that there was a redundancy situation at all, the respondent has failed to show that the claimant was dismissed for a potentially fair reason under ERO. The claimant therefore succeeds in her claim of unfair dismissal.

 

54. Even if the respondent had shown that there was a true redundancy situation, in view of our factual findings set out above, we find that the dismissal would have been otherwise unfair for failure to take reasonable steps to redeploy the claimant to avoid redundancies. We find that the redundancy process and recruitment interview were unnecessary and they were part of a drive to bring in a new team which meant getting rid of the claimant. The outcome of the redundancy process was therefore predetermined and the redundancy process was a sham.

 

55. The claimant is therefore entitled to compensation for unfair dismissal.

 

COMPENSATION

 

56. The parties produced a Schedule of Loss set out below which was agreed except for the following:

 

(1) The respondent stated that figure of £500.00 for loss of statutory rights was excessive and that a figure of £250.00 should be substituted. We have decided to award £500.00.

 

(2) The respondent alleged that no sum for future loss should be awarded as the claimant had mitigated her loss and obtained a new job albeit on lower pay. We reject that contention and set out below our calculation based on loss until the end July 2017 ie 10 months from the date of hearing.

 

(3) We note that no account was taken by the parties of the recoupment provisions. The JSA figure noted below was therefore not deducted.

 

57. We have decided that the claimant should be entitled to a sum for future loss. She is now in a temporary administrative role earning approximately £9,500.00 less per annum than she received in her role as Commercial Manager. It was conceded by the respondent that the claimant had taken reasonable steps to mitigate her loss and indeed the claimant was due to sit an interview on the last day of the hearing. The temporary post is due to end in April 2017.

 

58. We must decide what length of time we allow for her to get a job at the same salary after her temporary role ends in April 2017. Given her CV and the ease with which she obtained a temporary job, we have decided to award 10 months' loss from the date of hearing rather than a full year. The calculation is set out below.

 

59. EDT 24 September 2015

Length of service 9 full years' complete service

Age at EDT 44

Gross weekly wage £557.00

Net weekly wage £427.11

Statutory maximum £490.00

Date of hearing 6 September 2016

 

Basic Award

 

As the claimant received a redundancy payment it was agreed that she is not entitled to a basic award.

 

 

Compensatory Award

 

(1) Loss of Statutory Rights £ 500.00

 

(2) Loss of earnings from EDT to date of hearing

ie from 24 September 2015 to 6 September 2016

49 weeks x £427.11 £ 20,928.39

 

(3) Loss of Pension for 49 weeks at 7.5% of gross

wage. The Claimant did not receive employer

pension contributions in the PILON figure above.

 

£557.00 gross per week x 49 weeks = £27,293.00

 

£27,293.00/100 x 7.5 £ 2,046.98

 

Subtotal A £23,475.37

 

 

Deductions

 

(1) 10 weeks PILON (net) £ 3,458.97

 

(2) Income from Job Seeker's Allowance

from 9 October 2015 for 6 months.

£73.10 per week x 26 weeks - £1,900.60.

This is not deducted as recoupment applies.

 

(3) Income from new employment with Northgate.

This is a temporary role for a period of 10 months,

ie, from June 2016-April 2017.

 

Net earnings from new role from 8 June 2016 £ 1,867.51

 

Estimated approximate earnings until

first day of hearing (06.09.2016) (2 weeks).

£1,055.98 net per month x 12/52 = £243.69

 

£243.69 per week x 2 weeks £ 487.38

 

Subtotal B £ 5,813.86

 

 

 

Loss to date of hearing - A-B £17,661.51

Future Loss (to 9 July 2017)

Estimated approximate ongoing loss

of £177.11 per week from 09.09.2016 to

09.04.2017 (30 weeks). The Claimant's temporary

role with Northgate will end in April 2017.

 

ie, £427.11 - £243.69 = £183.42 per week

 

£183.42 per week x 30 weeks £ 5,502.60

 

From 10.04.17 to 09.07.17 (13 weeks)

 

£427.11 x 13 weeks £ 5,552.43

Total future loss: £11,055.03

Plus £17,661.50

 

Total loss £28,716.54

 

 

Recoupment Statement

A. Total Compensatory Award: £28,716.54

 

B. Prescribed element ie loss of wage

Relating to the period between EDT of

24 September 2015 and date of hearing

6 September 2016 = £17,161.51

 

Plus loss between 06.09.16 and

date decision issued 13.12.16

14 weeks x £183.42 = £2,567.88 £19,729.39

A-B = £ 8,987.15

 

60. Your attention is drawn to the notice attached which forms part of the decision of the tribunal.

 

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

 

 

 

Employment Judge:

 

 

Date and place of hearing: 6-9 September 2016 at Belfast.

 

 

Date decision recorded in register and issued to parties: