THE INDUSTRIAL TRIBUNALS 

CASE REF:	1528/03
1529/03
4413/03
4414/03

CLAIMANTS:	George Douglas Wilson
Michael Davin Owen

RESPONDENT:	JLS Technology (NI) Limited
DECISION

The unanimous finding of the tribunal is that the claimants were not unfairly dismissed by the respondent and their claims are dismissed.

Constitution of Tribunal:

Chairman		Mr Greene
Members		Mr Copeland
			Mr McLaughlin

Appearances:

The claimants appeared in person.

The respondent was represented by Mr J Peel, Employment Law Advisory Services Limited.

Sources of Evidence

1.	The tribunal heard evidence from the claimants and for the respondent from Harry Black and John Brett.  The tribunal also received 5 bundles of agreed documents amounting to 218 pages.

The Claim and Defence

2.	Both claimants claimed unfair dismissal through unfair selection for redundancy.  The respondent denied unfair dismissal.

Both claimants abandoned re-instatement, without objection, and sought compensation as their preferred remedy.

The Issues

3.	(a)	Were the claimants unfairly dismissed?

	(b)	If yes what is the appropriate remedy?

Findings of Fact

4.	(a)	The respondent employed the first claimant as a computer engineer from 1 
May 2000 to 28 April 2003 when it dismissed him following a redundancy selection procedure.

(b)	The respondent employed the second claimant as an onsite engineer (computer) from 1 February 2001 to 28 April 2003 when it dismissed him following a redundancy selection procedure.

(c)	Both claimants worked at the Halifax Call-Centre, Cromac Wood, Gas Works site, Belfast.

(d)	Following a merger of Halifax and the Royal Bank of Scotland the number of providers of computer services to Halifax was reduced and this led to a reduction of computer engineers on site at the Cromac Wood site from 6 to 4 from 1 May 2003.

(e)	All parties accepted that there was a redundancy situation at the Cromac Wood site.

(f)	There was not any evidence before the tribunal that an option open to the respondent, to reduce or remove the need for redundancies, was to reduce overtime or, remove temporary or locum workers or independent contractors.

(g)	The respondent considered redeployment but this was not possible.  It decided not to seek volunteers for redundancy lest the wrong people applied.

(h)	A meeting was held on 18 March 2003 to consult with the employees, including the claimants, about the criteria for redundancy.  The respondent only became aware of the necessity for redundancies in early March 2003.

(i)	The respondent proposed 9 criteria upon which the employees would be assessed i.e. compact certification; technical ability; reporting; ownership/integrity; teamwork; timekeeping/attendance; disciplinary issues; and years of service with each heading attracting up to 3 marks except years of service which could attract up to 5 marks.

(j)	Harry Black carried out the assessment.  He was provided with the employees’ disciplinary records, attendance records and a number of e-mails either from or about the claimants by John Brett.

(k)	On the scoring sheet reporting; ownership; teamwork; and flexibility were to be construed in a particular way.

(l)	The pool for selection comprised the 6 engineers who worked the rota system at the Cromac Wood site.

(m)	On 24 March 2003 Harry Black discussed with each engineer his score.  At that discussion the second claimant’s score was increased.

(n)	The first claimant, through illness, was unable to attend the meetings on 18 and 24 March 2003.  The respondent however sent the information to him and was in contact with him by e-mail and telephone and invited his comments.

(o)	The scoring for the 6 candidates was 30; 27; 27; 24; 20; and 18.  The first claimant scored 18 and the second claimant scored 20.

(p)	As the 2 claimants had the lowest scores they were made redundant effective from 28 April 2003.  

(q)	The claimants make a number of criticisms of the criteria used for selection, the information used to do the scoring and the scoring itself.

		Specifically they made the following criticisms:-

(i)	Compact certification as used in the assessment became 2 headings attracting up to 6 marks whereas at the meeting on 18 March 2003 it was set out as a single heading attracting only 3 marks.

(ii)	The use of attendance records was unfair as they were off ill due to circumstances beyond their control and reduced marks awarded were too harsh.

(iii)	The respondent should not have used the claimants’ disciplinary record as they disputed that they should have been disciplined at all.  They also dispute the mark they were given under that heading.

(iv)	They dispute the mark they achieved for teamwork as they had refused to work Christmas 2002 because of a dispute they had with the respondent about monies owed to them.  They further assert that they had worked previous Christmases and others refused to work with them which manifested their lack of teamwork yet all candidates except the claimants scored full marks.

(v)	The reduced scores given to the claimants under the headings of reporting; ownership/integrity; and flexibility were influenced by quite a number of e-mails from colleagues about the claimants and which were adverse to the claimants in their comments or their tone.

The claimants had never seen the e-mails and were not at the time they were made informed of them or given an opportunity to reply to the adverse comments contained in the e-mails at any time.

The Law

5.	(a)	To establish that a dismissal is not unfair an employer must establish the 
reason for the dismissal and that it was one of the statutory reasons that can render a dismissal not unfair.  If an employer satisfies both of the above requirements then whether the dismissal was unfair or not depends on whether in the circumstances the employer acted fairly and reasonably in treating the reason as a sufficient reason for dismissing the employee.

(b)	Where an employer dismisses an employee by reason of redundancy he must warn and consult the affected employees; adopt a fair basis on which to select for redundancy; apply the selection criteria fairly; and take such steps as may be reasonable to avoid or minimise redundancy.

Application of the Law and Findings of Fact to the Issues

6.	(a)	The tribunal is satisfied that the respondent has shown the reason for the 
claimants’ dismissal (redundancy) and that that reason is one of the statutory reasons that can render a dismissal fair.

(b)	The tribunal is persuaded that the respondent has acted fairly and reasonably in all the circumstances in dismissing the claimants.  In so concluding the tribunal was influenced by the following matters:-

(i)	That there was a redundancy situation at the Halifax site at Cromac Wood.  This is not disputed.

(ii)	That it was reasonable to limit the pool for selection to the 6 engineers who provided rota cover at the Cromac Wood site.

(iii)	That the selection criteria were reasonable and were not objected to by the engineers.

(iv)	That in warning the employees of the risk of redundancies in mid-March 2003 when the respondent was only aware of their necessity in early March the respondent acted reasonably in the circumstances.

		(v)	That the respondent did consult with the employees affected.

The respondent made reasonable efforts to involve the first claimant in the discussions even though he was off ill at the pertinent time.

(vi)	The tribunal is not persuaded that there was a sinister motive in splitting compact certification into 2 headings attracting up to 6 marks.  The claimants believe that this was done to disadvantage them.  The tribunal is not persuaded that this was the motive because as neither claimant was compact certified the respondent would have been fully entitled to award each claimant 0 when in fact they were awarded 2 and 4 respectively as their compact certification had lapsed by effluxion of time.

(vii)	The reduced marks given to the claimants under time-keeping; disciplinary issues and teamwork can be objectively justified by reason of the attendance record, disciplinary record and their refusal to work Christmas 2002 and the better records of each of the other 4 candidates under these headings.

(viii)	The tribunal accepts that in the circumstances of this case the use of e-mails to reduce the claimants’ score under reporting; ownership/integrity and flexibility was unfair as the claimants were not given an opportunity to deal with the adverse matters contained in these e-mails.

The tribunal thinks that the proper way to deal with these headings would have been to award the claimants full marks i.e. both of them would gain an additional 3 marks.

While this would change the claimants’ score to 21 and 23 respectively it would not change the order of the candidates and the claimants would still be selected for redundancy.

(ix)	The tribunal does not find that the respondent’s failure to seek volunteers for redundancy is fatal to the fairness of the selection of the candidates for redundancy as the seeking of volunteers is usually subject to the needs of the business.

	(c)	Accordingly the claimants’ claims for unfair dismissal are dismissed.

Chairman:

Date and place of hearing:	26, 27 April, 15, 16, 17 June, 15, 16 September and 4 October 2005, Belfast.

Date decision recorded in register and issued to parties: