THE INDUSTRIAL TRIBUNALS

CASE REF:    2840/10

CLAIMANT:	Isobel Loughran

RESPONDENT:	Women into Politics

DECISION  

It is the unanimous decision of the tribunal that the claimant was not unfairly dismissed and neither was she unfairly dismissed by reason of non-completion of the statutory dismissal procedure by the respondent.

Constitution of Tribunal:

Chairman:	Ms W A Crooke

Members:	Mr P Killen
	Mr R Gourley

Appearances:

The claimant appeared in person and represented herself.

The respondent was represented by Mr Neil Richards, Barrister-at-Law, instructed by Worthingtons Solicitors.

SOURCES OF EVIDENCE

1.	The tribunal heard from the claimant who gave evidence on her own behalf.  The tribunal heard evidence from Ms May De Silva on behalf of the respondent.  In addition, there was an agreed bundle of documents before the tribunal to which references were made in the course of the hearing.

THE CASE AND THE DEFENCE

2.	It was the claimant’s case that she had been unfairly dismissed and the respondent denied this case.

THE LAW

The relevant law before the tribunal is as follows:-

3.	(a)	Article 130A(i) of the Employment Rights (Northern Ireland) Order 1996.

	(b)	Schedule 1 Employment (Northern Ireland) Order 2003.

	(c)	Regulations 12 and 13 Employment (Northern Ireland) Order 2003.

		(Dispute Resolution Regulations) (Northern Ireland) 2004.

		Regulation 8 Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002.

Case Law

4.	J Moon  v  Homeworthy Furniture [1976] IRLR 298.

	Association of University Teachers  v  University of Newcastle-upon-Tyne [1988] IRLR 10.

	Mugford  v  Midland Bank Plc [1997] IRLR 208.

	Duffy  v  Owens and Partners Ltd [1994] IRLR 642.

	Software 2000 Ltd  v  Andrews [2007] IRLR 568.

	Duncan  v  Secretary of State for Childrens Schools and Families [2011] UKSC 14.

	Polkey  v  A E Dayton Services Ltd [1987] IRLR 503.

	Campbell  v  Dunoon and Cowal Housing Association Ltd [1993] IRLR 496.

	Morgans  v  Alpha Plus Security Ltd [2005] IRLR 234.

	Alexander  v  Bridgen Enterprises Ltd [2006] UKEAT 0107 06 1204.

	Williams  v  Compair Maxam Ltd [1982] UKEAT 372 81 2201.

	Num  v  BIC Management [2007] UKEAT/0141/07.

	Elkouil  v  Coneyisland Ltd [2001] UKEAT 0520 00 3010.

	British United Shoe Machinery Co Ltd  v  Clarke [1978] ICR 70.

	Murray  v  Foyle Meats Ltd [2000] 1AC51.

FACTS FOUND

5.	The respondent is a charity which by way of delivering training facilitates the entry of women into debate about political and other relevant issues.  The claimant was employed by the respondent as a Training and Education Co-ordinator.  The claimant was employed on a succession of fixed-term contracts with the respondent from 15 October 2002 to 30 September 2010.

6.	The respondent is a small organisation.  The workforce consisted of the following individuals:  Ms May De Silva, who was the Director; Ms Nuala McCusker, the administrator; Ms Catherine McCartney and the claimant who were trainers; Ms Marie Keen and Ms Mary Catherine McGuinness.  For the purposes of this case it is the situation of the claimant and Ms Catherine McCartney that will be focused upon.  This charity also had a board of 7 persons who gave their services to it voluntarily.

7.	The claimant was involved in delivering a programme about political awareness.  This programme was funded by the Special European Union Programmes Body (“SEUPB”) through the Training for Women Network (“TWN”).  These were the organisations through which the respondent received Peace Three Funding.  The Peace Three Funding was inextricably linked to the claimant and her colleague, Ms McCartney, as their jobs and the programme were 100% funded.  On or about 1 July 2010 the claimant received a protective notice of redundancy from the respondent.  This stated, however, that they were trying through various methods to ensure that redundancy would not happen.  A reason why this letter was issued was that SEUPB had not to that date issued any letter of offer extending the Peace Three Funding beyond 30 September 2010 which was the original end date to the contract.  The letter from the respondent expressed the hope that this would be a temporary measure and stated that measures were in place to ensure the survival of the organisation.

8.	While it might be an exaggeration to say that measures were in place to ensure the future of the organisation, it was undoubtedly the case that the respondent was trying to explore alternative sources of funding.  Applications to the Joseph Rowntree Foundation and other organisations were not successful.  An unused amount of funding in the sum of £36,700.00 was identified by the respondent and an effort was made to re-profile its budget to extend the life of the contract by using this £36,700.00.  This also came to nothing.  It is important to note that this was not money that was unconditionally due to the respondent, it was money for which a business case had to be put up to the funding body SEUPB and it in turn had to improve the new budget.

9.	The backdrop against which the events in question in this case played out was one of general employee dissatisfaction with Ms De Silva’s management to the extent that formal grievances were raised by the claimant and Ms McCartney in August 2010.  The claimant’s grievance was raised on 27 August 2010.  In reaching its decision the tribunal took no account of these grievances as it did not consider that they were in any way relevant to the question of whether or not there was a valid redundancy situation in the respondent and how that situation was handled by the respondent.

10.	By a letter dated 16 September 2010, on the same day all Peace Three staff were called to a meeting and a letter from PWM was read out informing them that the respondent was in breach of contract.  Letters were distributed informing staff members that their employment would be terminated because of lack of funding.  The claimant was warned that funding for her post had not been renewed and her contract would come to an end on 30 September 2010.  She was invited to attend a meeting with two executive board members at a convenient time to be arranged preferably the next week.  The letter indicated that the respondent wished to initiate a redundancy consultation process and the tribunal has noted that effectively the respondent was initiating consultation only after the decision had been made to make the claimant and Ms McCartney redundant.

11.	By an e-mail from Ms De Silva to the claimant, on 18 and 19 September 2010 Ms De Silva clarified to the claimant that the redundancy option is “part of a process as we have no offer letter with regards to the extension of the project.  We have yet to go through a consultation process before this is finalised, hence I will be seeking advice with regards to your annual leave.  There is also the option of WIP paying any accrued leave owed to you”.

	“Can you please let me have any training dates arranged up to 30 September?  I would also be grateful if you could please forward me details of any agreement with the Unison training and dates scheduled with them in future.”

12.	The tribunal finds that this corroborates the respondent’s version of events that in fact a “step two” meeting was proposed to take place with the claimant on 20 September 2010.  As the claimant indicated, this e-mail was issued by Ms De Silva partly in response to the claimant’s e-mail of 17 September 2010 indicating that she intended to take seven days accrued leave and therefore would be leaving the organisation on 21 September 2010.  The tribunal finds that there was enough information in the e-mail of 19 September 2010 to constitute a request to hold a meeting and to support the respondent’s version of events which was that the meeting discussed the redundancy situation.  The claimant contended strongly that nothing was discussed concerning the redundancy situation but the question of annual leave and outstanding work was discussed.  Given the terms of the e-mail of 17 September 2010, the tribunal finds that the claimant was aware of the impending redundancy and that the respondent’s version of events was in fact correct.  At the meeting of 20 September 2010, the respondent through its director, Ms De Silva, amongst other things offered the claimant the opportunity to finish outstanding work on the project as a self-employed consultant.  This was an option that the claimant had previously taken up in 2008 when the same situation pertained, ie, that no letter of extension of grant had been issued and funding was in question.  The tribunal has some sympathy with the claimant’s contention that because of her being offered a consultancy option in 2008, she believed that the redundancy would not actually take place as it had previously been avoided.  However, as the claimant had previously taken up the consultancy option as a way of maintaining her employment with the respondent in 2008, the tribunal does not consider that there is any merit in the claimant’s contention that she was not offered suitable available alternative employment.  As it happened, the claimant was taking leave, but as she had previously accepted this option in 2008, we do not consider that the respondent was taking an empty offer to her.  At the meeting, Ms De Silva explained that the reason for the redundancy was that they did not have the formal letter extending their funding, even though the claimant had believed that redundancy could be avoided and funding would issue, we do not consider that she was unaware of the situation.  The claimant by her own admission was a senior member of staff and this was a very small organisation.  She had been warned from 1 July 2010 that this could very well be a possibility.  Therefore, we do not accept her contention that she was not warned and informed correctly of the situation amongst other times by way of the meeting of 20 September 2010.  There then followed a sequence of letters which were directed to trying to arrange a consultation with the claimant, albeit after the redundancy had taken effect.  By an e-mail to the claimant from Catherine Cook, the Chairperson of the respondent charity, she reminded the claimant that they wished to set up a consultation meeting with her.  By letter from the claimant to the respondent dated 8 October 2010 the claimant did not accept the respondent’s reason for dismissal and contended that the termination of her contract arose because she initiated the grievance procedure.  By a separate letter of the same date from the claimant to the board she indicated that she would not be able to attend any meetings until after 19 October 2010 and gave her availability which was limited to Tuesday, Wednesday and Thursday afternoon in any given week.  However, the claimant indicated that “given the unfair dismissal claim I will be taking advice on the relevance or necessity of a redundancy consultation process at this late stage”.  Catherine Cook responded to the e-mail and letter sent by the claimant indicating that they were taking advice upon the matter and would revert to her as soon as they could and that was communicated to the claimant by an e-mail dated 13 October 2010 by a letter from Catherine Cook on behalf of the respondent to the claimant dated 25 October 2010, the claimant was informed that the question of her redundancy and her grievances would be dealt with by two separate processes.  There was no further discussion between the parties and the claimant lodged her claim with the Industrial Tribunal on 7 December 2010.  By a letter to the claimant from Catherine Cook on behalf of the respondent dated 15 December 2010, the claimant received confirmation that her role was redundant and the respondent contended that it had attempted to consult with her and that the claimant had chosen not to attend any meetings.  By a separate letter from Catherine Cook on behalf of the respondent to the claimant dated 15 December 2010 the claimant was informed that the respondent were treating her letter of 8 October 2010 as an appeal.  The claimant did not take up this option.

13.	Part of the claimant’s claim to the respondent was in respect of pension payments unpaid.  As this claim was conciliated through the Labour Relations Agency at the suggestion of the tribunal, the tribunal is not dealing with the question of the pension entitlement and the facts and allegations surrounding it in any way.  It has been excluded from the consideration of the tribunal in reaching this decision for the avoidance of all doubt.

CONCLUSIONS

The Reason for Dismissal

14.	The tribunal on the evidence before it had no difficulty in accepting that redundancy was the reason for the dismissal of the claimant.  Although the claimant had grievances with Ms De Silva, the director, we do not consider that these were in any way linked to the claimant and Ms McCartney being made redundant when the funding for their roles ran out.  It was not disputed that their funding was specific to them.

Was it a valid redundancy situation?

15.	In reaching its decision that it was a valid redundancy situation the tribunal has had reference to both the wording of the statute and the restatement of the law in the case of Murray  v  Foyle Meats Ltd.  It is settled law that an employee is dismissed by reason of redundancy if his dismissal is attributable wholly or mainly to:-

		“The fact that the requirements of that business… for employees to carry out work of a particular kind… have ceased or diminished…  .”

	In the case of Murray  v  Foyle Meats Ltd, the House of Lords said that “Foyle Meats employed a number of “meat plant operatives”.  Some in common, like Murray, worked on the “killing lines” in the slaughter hall; others, in the boning hall; others, in the loading bay, and so on.  Trade declined.  The company decided to close down one of the killing lines, and Murray was dismissed as redundant.  He appealed, contending that he was not redundant because his contract did not specify that he was to be employed in the slaughter hall; therefore, he could lawfully have been redeployed to the boning hall or elsewhere instead of being dismissed”.  The House of Lords unanimously held that Murray was redundant and the terms of his contract were not relevant in the circumstances, and Lord Irvine, the Lord Chancellor, said this:-

		“My Lords, the language of paragraph (b) is in my view simplicity itself.  It asks two questions of fact.  The first is whether one or other of various states of economic affairs exists.  In this case, the relevant one is whether the requirements of the business for employees to carry out work of a particular kind have diminished.  The second question is whether the dismissal is attributable, wholly or mainly, to that state of affairs.  In the present case, the tribunal found as a fact that the requirements of the business for employees to work in the slaughter hall had diminished.  Secondly, they found that the state of affairs had led to the [claimants] being dismissed.  That, in my opinion, is the end of the matter.”

	The tribunal found this dictum to be of particular relevance in this case.  By reason of funding not being extended by the external funding bodies the requirements for the respondent to do work of the kind for which the claimant was employed had ceased or diminished and she was as a result redundant.

How was the redundancy effected?

16.	The tribunal finds that the statutory procedure was not completed and that the reason for that was that while there was a letter from the respondent to the claimant and an informal meeting of 20 September 2010 that arguably fulfilled the substantive acquirements of the Statutory Procedures Step One and Step Two, the claimant beyond stating her availability was not really interested in trying to arrange a consultation meeting.  The terminology in her letters was combative.  She was very focussed on the issues surrounding her grievance.  While the claimant contended that a valid consultation would have made a difference because she would have been able to source other areas of funding and work, the tribunal was not given any actual objective evidence that this would have been the case.  The respondent indicated that they would have offered the position of office administrator to the claimant when it became available in December 2010, but did not get the opportunity to do so even though once the claimant had lodged her originating claim to the tribunal, the respondent was still willing to hold an appeal with her.  The tribunal considers that if the claimant had really been interested in engaging properly with the respondent, she would have made more effort to do so.

17.	Failure to complete the statutory procedure was because she failed to engage in it.  It is undoubtedly the case that the well recognised requirements of a sound redundancy procedure were not all in place in this case.  Mr Richards however did not seek to distinguish the case of Williams  v  Compair Maxam (1982), other than to say that the selection method used by the respondent was entirely reasonable in the circumstances of the case and indeed was the only method open to it in this case.  The Peace Three funding was restricted to the particular posts and the claimant’s post was specifically to be tied to Peace Three funding.  Given the size of the organisation, it would not have been open to the respondent realistically to use selection criteria and a group of persons potentially to be made redundant.  Neither was there any consultation prior to the redundancy taking effect other than the somewhat late informal meeting carried out by Ms De Silva on 20 September 2010.  The claimant rightly placed emphasis on the requirement to consult, but she did not indicate that the consultation would have made any difference.  She was not able to say that the funding had not been withdrawn.  She contended strongly that the £36,700.00 was money immediately available to the respondent, but did not have any objective evidence to back this up.  There were many similarities in the issues in this case to the issues raised in the case of Alexander  v  Bridgen Enterprises Ltd.  In this case, the Employment Appeal Tribunal restated the law as it was set down in the case of Polkey  v  A E Dayton Services Ltd at paragraph 52:-

		“If an employer has failed to take the appropriate procedural steps in any particular case, the one question the Industrial Tribunal is not permitted to ask in applying the test of reasonableness posed by Section 57(3) is the hypothetical question whether it would have made any difference to the outcome if the appropriate procedural steps have been taken.  On the true construction of Section 57(3) this question is simply irrelevant.  It is quite a different matter if the tribunal is able to conclude that the employer himself, at the time of dismissal, acted reasonably in taking the view that, in the exceptional circumstances of a particular case, the procedural steps normally appropriate would have been futile, could not have altered the decision to dismiss and therefore could be dispensed with.  In such a case the test of reasonableness under Section 57(3) may be satisfied.”

18.	We consider that this is such an exceptional case because of the fact of the claimant’s job being dependant upon external funding from SEUPB.  There was not proper consultation in this case.  Proper consultation involves a process being undertaken that must be fair and genuine before the dismissal actually takes effect.  However, exceptionally in this case the tribunal finds that it would not have made any difference and the employer was justified in contending that it would not have made any difference.  The tribunal is supported in reaching that view by the fact that the claimant did not produce any clear objective evidence of funding sources that she could have pursued and pieces of work for other organisations that she could have undertaken as a consultant.  In fact she refused to undertake work as a consultant for the respondent.  In reaching its decision the tribunal has also had regard to the case of Mugford  v  Midland Bank Plc [1997].  In this case, the Employment Appeal Tribunal found that a lack of consultation did not necessarily automatically render a decision to dismiss on the grounds of redundancy as necessarily being a pre-requisite for a fair dismissal.  A lack of consultation in any particular respect will not automatically lead to rendering a dismissal unfair.  The overall picture must be viewed by the tribunal up to the date of termination to ascertain whether the employer has or has not acted reasonably in dismissing the employee on grounds of redundancy.  In his submissions to the tribunal Mr Richards urged it to consider the circumstances of the respondent, ie, that it was a small organisation  -  a charity which did not have endless administrative resources and which was largely dependant on external funding.  Taking these circumstances into account we consider that the employer acted reasonably in treating the withdrawal of funding leading to the redundancy of the claimant as a sufficient reason for dismissing her.  We also consider that the respondent while acknowledging the importance of proper consultation in any case involving a redundancy, is entitled to consider that in the particular circumstances of this case a prior consultation such as that set out in the case of Williams  v  Compair Maxam Ltd would have made no difference.  It had made strenuous efforts to avoid the redundancy.  It had tried to source alternative sources of funding and had tried to draw down unused funding.  When all these efforts came to nothing, there was literally nothing else to be done, no other course of action open to the respondent.

Chairman:

Date and place of hearing:	11-13 April 2011, and 28 April 2011, Belfast.

Date decision recorded in register and issued to parties: