INDUSTRIAL TRIBUNALS

CASE REF: 1851/02

APPLICANT:	Eric Kelly

RESPONDENT:	Hughes Christensen

DECISION

The unanimous decision of the tribunal is that the applicant was not unfairly dismissed.  

Appearances:

The applicant was represented by Ms T McKenna Barrister-at-Law, instructed by Francis Hanna & Company Solicitors.

The respondent was represented by Mr I Carroll of Engineering Employers Federation.

Summary Reasons

The tribunal found the following facts:-

1.	The applicant was employed by the respondent for a period of 12 years.

2.	The applicant worked as a cell leader for the respondent.

3.	The applicant was made redundant by the respondent in the round of redundancies which took place in April – May 2002.  The applicant’s only ground of complaint concerning his selection was that the company had taken into account a verbal warning which was at the date of the redundancy spent, and this was used to deduct points from his overall total.

4.	The tribunal had before it the redundancy notice dated 24 April 2002, in which it was made plain to the workforce that any warnings which were effective during the period from 15 April 2001 to 14 April 2002 would be taken into account in reaching the final points total.  This was directly in line with the company’s previous selection criteria of 10 December 2001 which provided that warnings that had an effect during the year 26 November 2000 to 25 November 2001 were considered.  Each particular type of warning was given a negative points rating and this was applied to the overall score.  The tribunal found that the applicant was aware of this criterion as it would have equally applied to him in the round of redundancies in January 2002.  The tribunal found that both the January and April notices were posted on the company notice board.

5.	Whether or not the applicant agreed that this was a suitable criterion for selection for redundancy is not a matter for the tribunal.  The tribunal can only consider whether in accordance with the principles laid down in Williams & Others –v- Compair Maxam Limited [1982] IRLR 83, the employer established criteria for selection which could be objectively checked against such things as attendance record, efficiency at the job, experience or length of service.  We find that of itself it is not objectionable to include a disciplinary record in a list of selection criteria for redundancy.  However, we have a concern that it has not been made sufficiently plain by the respondent in its documentation that while a warning such as a verbal warning may be considered spent for disciplinary purposes after the appropriate period of time (in the case of a verbal warning six months), there was nothing to suggest that employees were on notice of the fact from the date of discipline that the disciplinary record (even if it is spent) could be considered for redundancy purposes.  We consider that this is poor industrial relations practice.

6.	In this case, we find that the applicant was aware of this criterion and that the company had a custom and practice over two redundancy rounds of using a disciplinary record as a factor in selection for redundancy.  As such, we are unable to find that use of a disciplinary record is of itself unfair, and as in this case the actual application of the criterion was not challenged, but purely the fairness of the criterion itself, then we find that the applicant’s claim fails and that he was not unfairly dismissed.

7.	We do have a concern that in this case the applicant was given no time to prepare his appeal concerning his redundancy, but was simply marched immediately from his “at risk” meeting to the appeal.  However, as there was no objective evidence before the tribunal to enable it to consider whether or not an opportunity to prepare his case would have necessarily changed the outcome, we are unable to find this procedural flaw is such as to render the dismissal of the applicant unfair.

Chairman:
Date and place of hearing: 19 November and 16 December 2003, Belfast.
Date decision recorded in register and issued to parties: