Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 6954/09         

 

 

 

CLAIMANT:            Lee Andrew Stevenson   

 

 

RESPONDENT:      LMC Systems Ltd 

 

 

 

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly selected for redundancy and is entitled to compensation totalling £6743.09 as detailed below.

 

 

Constitution of Tribunal:

Chairman:    Mrs M Watson      

Members:    Mr J Welsh 

                      Mr J Hampton

 

Appearances:

The claimant was represented by Mr Paul Upson of Thompson & McClure, Solicitors

The respondent did not attend and was not represented

 

Preliminary Issue

1.       The respondent had been represented in the past and had presented a response to the originating claim form. Shortly before the hearing which had been listed for 3 days, the tribunal office received a letter from the respondent’s advisors, Employment Law Advisory Services (ELAS), asking to come off record as the respondent company was going into administration. The letter enclosed 2 other letters; the first was from the respondent company’s owner, Roy Millar, to say that the company was ceasing to trade due to the loss of a main client for whom he had worked for 20 years. The second was from the solicitors acting for the respondent who was stated to be insolvent. The solicitors, Carnson Morrow Graham, working along with the company’s accountant, advised that the company would be going into liquidation in 4-6 weeks and that there were no assets or dividend to pay creditors.

 

2.       The claimant and his solicitor told the tribunal that they were ready to proceed. The claimant said that he had spoken to an employee of the respondent who was still employed. The claimant did not accept that the company was ceasing to trade.

 

3.       The tribunal had received a bundle of documents from the respondent and the claimant. The respondent had chosen not to attend or have his representative attend but the advisor had prepared a bundle of documents for the assistance of the tribunal. The tribunal decided to dispose of the proceedings as permitted by Rule 27(5) of the Industrial Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005. Rule 27 (6) requires a tribunal in these circumstances to firstly ‘consider any information in its possession which has been made available to it by the parties.’

 

Contentions of the parties

 

4.       The respondent contended that the claimant had been selected for redundancy following a fair selection procedure. The respondent needed to reduce its workforce due to a downturn in business and chose the two employees who scored lowest in the selection criteria.

 

5.       The claimant denied that there was a need for redundancy, but if there was, his selection was unfair.

 

Determination of the tribunal

 

6.       As noted, the respondent did not appear but provided a comprehensive bundle of documents. The claimant gave oral evidence and his solicitor made oral submissions and provided extensive written submissions and authorities and a Schedule of loss.

 

7.       The Employment Rights (Northern Ireland) Order 1996 (as amended) at Article 126 declares that employees have the right not to be unfairly dismissed. The statute goes on, at Article 130, to deal with the fairness of dismissals. The Statutory Dismissal Procedures were incorporated at Article 130A while the remedies for unfair dismissal are dealt with in Article 145 et seq. The tribunal gave careful consideration to all of these statutory provisions and the relevant case law including Williams & Others v Compare Maxam [1982] IRLR 83 and Eaton Ltd v King [1995] IRLR 75.  Harvey on Industrial Relations and Employment Law at Division D1 was also considered.

 

8.       The tribunal also referred to the oral evidence of the claimant and the minutes of the meetings he had with the owner of the respondent company, Mr Roy Millar, and Mrs Anne Millar. The claimant raised his concerns with Mr Millar who had been responsible for the scoring of the workforce of 5 employees, all electricians, against the selection criteria. In particular, the claimant compared himself to Andrew Robinson who had been employed by the respondent for only 18 months, 15 of which were as an apprentice. The claimant had nearly 5 years service almost 2 of which were time served. Even though length of service was the first criterion, no marks were awarded in this category. This unfairly disadvantaged the claimant.

 

9.       The claimant gave evidence that the quality of Andrew Robinson’s work was not as good as his, customers had complained about him and he did not bring in as much income to the company as the claimant did, but he socialised with Mr Millar.

 

10.     The claimant had scored less than any other employee for disciplinary and reliability even though he had never had any verbal or written warnings. Mr Millar had told the claimant that he believed that the claimant was less reliable than other employees and had two disciplinary matters on his file.  The claimant’s personnel file was not provided even though requested on discovery.  There was no documentary evidence in support of the low marks given to the claimant or any indication of how the scores were assessed. One employee was awarded 7 marks in one category even though the maximum was 4.

 

11.     The appeal hearing was conducted by Mrs Anne Millar who was described by the respondent as an independent Human Resource Manager. The claimant was accompanied at this appeal by a Trade Union Official, Jackie Pollock who asked for clarification of the basis on which each of the criteria had been selected and scored. He was assured that Mrs Millar would ‘look in to’ these questions and respond.

 

12.     The claimant had met Mrs Millar previously when he had carried out work on her husband’s bakery where she worked from time to time. Her husband is the brother of Roy Millar, the owner of the respondent company. Mrs Millar’s letter of reply to Jackie Pollock, stated that at the appeal meeting it had been alleged that the selection was ‘unfair and very subjective’.  Having ‘perused the Criteria’, Mrs Millar found them fair and both subjective and objective. The appeal was unsuccessful.

 

13.     The tribunal, having considered all the above, find that there was need for redundancies but that the means by which the claimant was selected were not objective, not objectively verifiable and depended exclusively on the opinion of the respondent, Mr Millar who showed apparent bias against the claimant and in favour of Andrew Robinson. The defects were not remedied by the appeal process which was unsatisfactory in every respect.

 

Compensation

 

14.      Basic Award is covered by the redundancy payment already received.

 

 

15.     Compensatory  Award

         

The claimant was earning £376.23 weekly at the date of termination.

He received Jobseekers Allowance of £64.30 for 14 weeks between then and 14             December 2009. His weekly loss was £311.93

The total loss for this period is £311.93 x 14 = £4367.02

 

The claimant started his own business in December 2009. He is presently earning £140 per week. His weekly loss is now £236.23. The period from 14 December 2009 to the date of the hearing on 16 February 2010 is 9 weeks.

The total loss for that period is £236.23 x 9 =                                  £2,126.07

 

Loss of statutory rights =                                                                £   250.00

 

Compensatory loss between the date of termination and

tribunal hearing                                                                               £6743.09     

 

16.           The tribunal found that it was unlikely that the claimant’s employment  would have continued beyond the date of the tribunal hearing. While the tribunal accepts that there will, and have been, circumstances where tribunals have awarded the costs incurred by a claimant who seeks to mitigate his loss by starting his own business.  The tribunal have decided that such an award is inappropriate in this case and would be unfair to the respondent.  

 

      Interest

 

17.     This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (NI) 1990.

 

 

 

 

 

 

 

 

 

 

 

 

 

Chairman:

 

 

Date and place of hearing: 16 February 2010, Belfast                

 

 

Date decision recorded in register and issued to parties: