THE INDUSTRIAL TRIBUNALS

CASE REF:	2105/11

CLAIMANT:			Gerard Gallagher

RESPONDENT:		North West Regional College

DECISION
The majority decision of the tribunal is that the dismissal of the claimant on the ground of redundancy was a fair dismissal for the purposes of the Employment Rights (Northern Ireland) Order 1996.

Constitution of Tribunal:
Vice President:		Mr N Kelly
Members:			Mr A Huston JP
				Ms E McFarline

Appearances:
The claimant was represented by Mr E McArdle, Barrister-at-Law, instructed by Mark Reid, Solicitor.
The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Worthingtons, Solicitors.

Background

1.	The claimant was employed by the respondent from 1 September 1993 to 31 August 2011.  He was initially employed as a lecturer and subsequently as a principal lecturer/Head of School in Community Education, one of 12 schools set up by the respondent following a re-organisation in 2007.  

2.	The School of Community Education organised ‘outreach’ education, including   part-time, day and evening classes outside the respondent’s own premises.  The courses offered by the school were generally non-vocational and covered a wide range of subjects, such as literacy, flower-arranging, photography, etc.

3.	Latterly, the claimant’s post and duties as principal lecturer/Head of School were managerial in nature and did not involve any teaching time.  

4.	The claimant had a HND in Business Studies, a Degree in Economics and a MSC in Applied Economics.  He also had a Post Graduate Diploma in Further and Higher Education and other minor qualifications.  

5.	The respondent is a further education college formed in 2007 following the amalgamation of two further education colleges.

6.	The respondent decided to re-structure its operations by reducing the number of schools from 12 to 8.  The claimant was one of five principal lecturers/Heads of School (‘principal lecturers’) who were potentially redundant as a result of this              re-structuring exercise.  They were invited to apply for one of the two vacancies existing at that level; one vacancy in the School of Business and General Education and one vacancy in the School of Media, Multi-media and the Arts.  The claimant applied for the former vacancy and was unsuccessful.  

7.	The claimant’s previous principal lecturer post in the School of Community Education ceased to exist on 1 December 2010 as a result of the re-structuring exercise.  He remained in the employment of the respondent thereafter, for a further nine months, until he was dismissed on the ground of redundancy on 31 August 2011.  

The issue

8.	The issue for the tribunal to determine was whether the dismissal of the claimant on 31 August 2011 was fair or unfair for the purposes of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’).  

9.	The tribunal is grateful to the claimant’s counsel, Mr McArdle, who identified and focused on the core issue in this case, ie whether or not the respondent had properly sought alternative employment for the claimant before the claimant was dismissed on the ground of redundancy.  

The hearing

10.	The claim was listed for three days and was heard on 6, 8 and 20 June 2012.  The parties were directed to exchange and lodge written submissions by 5.00 pm on 29 June 2012 and further directed to provide final written submissions to the tribunal by 5.00 pm on 6 July 2012.  The panel met on 19 July 2012 to consider the evidence and the written submissions and to reach a decision.  

11.	The following witnesses gave evidence on behalf of the respondent:-

Mr Seamus Murphy, the Principal and Chief Executive of the respondent college;

Mr Callum Morrison, the Director of Curriculum of the respondent college;

Ms Kate Duffy, the Director of Workforce Development and Administration of the respondent college; and

Mr John Agnew, a member of the respondent college’s Governing Body.

12.	The claimant gave evidence on his own behalf and called no other witnesses.

13.	As indicated above, the tribunal is grateful for Mr McArdle’s focused and proper approach to the issues in this claim.  However, as a preliminary argument, Mr McArdle sought to explore and to challenge the respondent’s requirement for 13 redundancies at the lower (lecturer) grade in two particular schools in the respondent’s college.  He argued that these redundancies, although part of a separate redundancy exercise, were implemented contemporaneously with the reduction in principal lecturer posts and that they restricted the scope for the claimant’s redeployment.  

14.	Mr Hamill, for the respondent, argued that the claimant’s redundancy at principal lecturer level was not directly related to the redundancies at lecturer level which had been conducted separately, albeit at roughly the same time.  

15.	The tribunal ruled that the fairness of the claimant’s dismissal on the ground of redundancy had to be judged in the circumstances that had actually applied when his redundancy was considered and implemented.  It would highly artificial to explore hypothetical scenarios and to consider whether re-deployment would have been more or less possible if others had not been made redundant, or had been made redundant at a later time, at the lower (lecturer) grade and to consider hypothetical scenarios where the vacancies potentially available at the lecturer level had not been reduced.  Such hypothetical exercises could not go to the fairness or unfairness of the claimant’s dismissal.  It was beyond the tribunal’s proper jurisdiction to speculate on whether the claimant might have been redeployed if circumstances within the respondent college, following another redundancy exercise, had been different.  It is not the tribunal’s role to deconstruct history.  

Relevant law

16.	Article 130 of the 1996 Order provides:-

“(1)	In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –

(a)	the reason (or, if more than one, the principal reason) for the dismissal, and

(b)	that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.  

		 (2)	A reason falls within this paragraph if it –

				(c)	is that the employee was redundant, 

(4)	In any case where the employer has fulfilled the requirements of Paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –

(a)	depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b)	shall be determined in accordance with equity and the substantive merits of the case.”

17.	The burden of proof rests on the respondent to establish a potentially fair reason within the meaning of Article 130(2) of the 1996 Order.  Once that potentially fair reason is established, the burden of proof thereafter is neutral.  In the circumstances of the present case, there was no dispute in relation to whether or not there had been a redundancy situation and furthermore no dispute as to whether the redundancy situation had been the reason or the principal reason for the claimant’s dismissal.  The respondent college has therefore discharged the burden of proof placed upon it to establish a potentially fair reason for the dismissal.  The remaining issue, as set out in Article 130(4) and as relevant in the present case, ie whether or not the respondent college had properly and adequately sought to provide alternative employment for the claimant, is a matter on which the burden of proof is therefore neutral.  

18.	The Employment Appeal Tribunal in Williams  v  Compair Maxam Ltd [1982] ICR 156 listed the principles which reasonable employers must adopt when dismissing employees on the ground of redundancy.  Much of what the EAT had to say related to consultation and to the requirement to give as much warning as possible of redundancies.  Neither of these matters were at issue in the present case.  However, the fifth of five principles which the EAT set out was:-

“The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment.”

19.	In Polkey  v  AE Dayton Services Ltd [1988] ICR 142, Lord Bridge stated at Pages 162 – 163:-

“In the case of redundancy, the employer will normally not act reasonably unless he warns and consults any employee affected or their representative, adopts a fair basis on which to select for redundancy and takes such steps as may be reasonable to avoid or minimise redundancy by redeployment within his own organisation [tribunal’s emphasis].”

20.	In Langston  v  Cranfield University [1998] IRLR 172, the EAT held:-

“Having regard to the established principles of law relating to unfair redundancy dismissals, it is implicit in a claim of unfair dismissal by reason of redundancy that the unfairness incorporates unfair selection, lack of consultation and failure to seek alternative employment on the part of the employer.  Since there is now no onus on either party to establish the reasonableness or unreasonableness of the dismissal, it is incumbent upon the industrial tribunal to consider each of those three questions, in the same way as a tribunal will consider the three-fold Burchell test in an appropriate conduct case.  Thus, normally, an employer can be expected to lead some evidence as to the steps which were taken to select the employee for redundancy, to consult him and/or his trade union and to seek to find him alternative employment [tribunal’s emphasis], and the tribunal would be expected to refer to these three issues on the facts of the particular case in explaining its reasons for concluding that the employer acted reasonably or unreasonably in dismissing the employee by reason of redundancy [tribunal’s emphasis].”

21.	It is clear that there is an obligation upon an employer in a redundancy situation to look for alternative work for a potentially redundant employee and it is equally clear that such work can, in some circumstances, be at a lower grade than the post currently held by the potentially redundant employee, thereby incorporating demotion.  It is also clear that alternative work may properly mean, in some cases, dismissing another, perhaps more recently recruited, employee, a practice generally known as ‘bumping’.  An employer, in such circumstances, may be able to defend an unfair dismissal claim brought by that second employee by relying on the redundancy of the first employee.  However, it is important to remember that there is no general or positive obligation on an employer in a redundancy situation to dismiss or to reduce the working hours of other more junior employees to create a post for an employee whose current post is redundant.  

22.	In determining whether an employer has discharged its duty to look for suitable alternative employment before implementing a redundancy, the tribunal has to be conscious of two things in particular; firstly, the earlier legislation which placed the burden of proof on the employer has long been repealed and the burden of proof is neutral; secondly, the employer is not obliged to go to extraordinary lengths in looking for alternative employment.  Its actions must be judged against the objective standard of a reasonable employer.

	In United Shoe Machinery  v  Clarke [1978] ICR 70, the EAT held:-

“It is perhaps worth stressing that in determining whether the employer has discharged that obligation, the standard to be applied is that of the reasonable employer, and that industrial tribunals ought to avoid demanding some unreal or ‘Elysian’ standard.”

23.	Some earlier decisions in this area, eg Vokes  v  Bear [1973] IRLR 363 and Thomas & Betts Manufacturing Ltd  v  Harding [1980] IRLR 255, predated the legislative change in relation to the burden of proof and must be approached with caution.  In Green  v  A & I Fraser (Wholesale Fish Merchants) Ltd [1985] IRLR 55 the EAT held:-

“Contrary to the argument raised on the appellant’s behalf, under current legislation, the Court of Appeal’s decision in Thomas & Betts Manufacturing Ltd  v  Harding [1980] IRLR 255 cannot be regarded as laying down the general proposition that in selecting for redundancy, an employer should not confine himself to employees holding similar positions in the same undertaking.  That case was decided when [GB legislation] placed an onus on the employer to show that he acted reasonably.  It was, moreover, distinguishable on its facts, involving unskilled work in a factory where an employee of longstanding could easily have been fitted into other work which she had already done even at the expense of an employee who had been recently recruited.

The present case was a classic example of a situation where two reasonable employers might follow a different course of action.  The respondent’s action did not fall outside the band of reasonableness and therefore the dismissal was not unfair.”

24.	In Barratt Construction Ltd  v  Dalrymple [1974] IRLR 385, the EAT overturned a finding of an industrial tribunal which had in effect speculated, in the absence of evidence, in relation to what might have been the case if further efforts had been made to find alternative employment.  It stated:-

 “The industrial tribunal had erred in holding that before dismissing the respondent employee on grounds of redundancy, the appellant should have offered him employment in a junior capacity if that was available or canvassed the possibility of employing him in other autonomous companies within their corporate group and that since there was no evidence to show that had such enquiry been made it would have been fruitless, the employee was entitled to the benefit of the doubt and his dismissal therefore had to be found unfair.

The principle that a reasonable employer will not make an employee redundant if he can employ him elsewhere, even in another capacity, still holds good, notwithstanding that there is no longer an onus on the employer under [equivalent GB legislation] to show that he acted reasonably.  Since there is no longer an onus on an employer to show that he acted reasonably, there can be no question of giving the benefit of doubt to one party or another in the absence of further evidence postulated by an industrial tribunal.  The tribunal must decide the question of reasonableness on the evidence before them in accordance with equity and the substantial merits of the case.  It is not for an industrial tribunal to speculate as to what further steps might be taken and to draw an inference adverse to the employer because he did not take them.

In the present case, therefore, the industrial tribunal exceeded their function in postulating that the appellant should have canvassed the possibility of employing the respondent in other independent companies in the group and that there was an obligation upon them in the circumstances of this case to offer employment in a junior capacity if that was available.  The evidence before the industrial tribunal disclosed that efforts were made to see if alternative employment was available within the appellant company.  No suggestion was ever made by the respondent that he would be interested in a more junior appointment until he gave evidence before the industrial tribunal.”

25.	In Stacey  v  Babcock Power Ltd (Construction Division), the industrial tribunal considered a case where work potentially became available for the redundant employee after the date on which the redundancy notice had been given.  The tribunal felt that they were precluded by law from considering that additional factor in assessing the fairness or unfairness of the decision.  The EAT held they were not so precluded.  It stated:-

“The industrial tribunal erred in holding that they were precluded from taking into account changes in circumstances between the date the appellant was given notice of dismissal on grounds of redundancy and the date that notice expired so as to find that the dismissal which would have been fair at the date of notice had become unfair by the date of its expiry.

There was no authority precluding the EAT from accepting the submission that where an employee has been given notice of dismissal, the process of dismissal is not complete until the notice period has expired.  The expression ‘dismissal’ is applied by statute solely to cases where the contract is terminated by the employer and in cases of dismissal on notice the contract does not terminate until the notice has expired.  In such cases therefore the dismissal whose reasonableness falls to be tested under [equivalent GB provisions] is the whole process initiated by the giving of notice and completed by its expiry.

-	In the present case, therefore, where there was a substantial period between the giving of notice and the effective date of termination, the industrial tribunal were not prevented by law from considering whether the respondent’s failure to offer the appellant work on a new contract which they gained towards the end of his notice period, rendered unfair the dismissal which was incontestably fair at the time notice was originally given.  Fair industrial practice would have required the respondent to offer the appellant, as a longstanding employee, the opportunity of new employment before filling all the vacancies with newly-recruited employees.”

26.	At paragraph 8 of Colvin  v  Attol Business Systems Ltd [EAT/0880/02RN] (HHJ McMullan QC) the EAT stated:-

		“It is clear that all information available to an employer at the date of the termination of the employment relationship is relevant in considering the fairness of the dismissal – see Williamson  v  Alcan (UK) Ltd [1978] ICR 104 EAT per Phillips J at 109 B-C.  It is also proper to note that any information becoming available during the course of, for example, an internal appeal, even post-termination, is relevant – see West Midlands                     Co-Operative Society Ltd  v  Tipton [1986] 1 ALL ER 513”.  

Relevant findings of fact – (these findings of fact are unanimous)

27.	In a paper submitted in June 2010 to the staffing committee of the Governing Body of the respondent college, Mr Murphy, the principal and chief executive, recommended that the 12 academic schools within the respondent college and the post of Vice Principal Co-Ordinator should be re-structured and consolidated into eight academic schools each headed by a principal lecturer.  That recommendation was accepted and went to the full Governing Body for consideration at or about the end of June 2010, together with alternative options, including the maintenance of the status quo.  

28.	The next step was that Mr Murphy’s recommended option and one alternative option were put to the staff in the respondent college in a consultation exercise during August and September 2010.  Following that consultation exercise, the option recommended by Mr Murphy was accepted.

29.	The majority of non-vocational courses previously taught in the School of Community Education, were transferred to the new School of Business Services and General Education.  The remainder of the courses previously taught in the School of Community Education were transferred to one or other of the new schools.  

30.	Following the re-structuring, two posts remained to be filled at principal lecturer (head of school) level.  One was in the School of Business Services and General Education and one was in the School of Media, Multi-media and the Arts.  

31.	Five principal lecturers, including the claimant, were potentially redundant.  They were invited, in a ring-fenced trawl, to apply for the two vacant posts.  In the event, the claimant applied for only one of the posts, in Business Services and General Education.  His application was unsuccessful.

32.	Mr Callum Morrison, the director of curriculum, was primarily responsible for handing the potential redundancies following the re-structuring, subject to supervision from Mr Murphy and with the assistance of Ms Kate Duffy.  Mr Murphy described his role in this exercise as a ‘watching brief’.  

33.	Ultimately, the claimant was the only principal lecturer facing compulsory redundancy.  Two of the five principal lecturers who were potentially redundant were successful in their applications in the ring-fenced trawl for the two principal lecturer posts in the School of Business Services and General Education and in the School of Media, Multi-media and the Arts.  The other two potentially redundant principal lecturers accepted voluntary redundancy packages and resigned.  

34.	Mr Murphy, Mr Morrison and Ms Duffy, as part of a review of the re-structuring process, met two consultants from Pricewaterhousecoopers (‘PWC’).  PWC complied notes of that meeting.  Those notes indicated that ‘part of Ms Duffy’s role was ensuring that redundancy procedures were adhered to.  She was responsible for briefing management and the HR team with respect to these procedures’.

35.	The notes show that the claimant was specifically discussed during the meeting between Mr Murphy, Mr Morrison, Ms Duffy and the PWC consultants.  The notes complied by PWC record that:-

“The expectation was that in our [PWC] meeting with GG [the claimant] we would hear a song and dance regarding staff hours in the pivot tables being wrong, eg sustainable hours, project work, curriculum development, potential to be gainfully employed and various other things.  He didn’t believe in the process.  He had also put together his own re-structuring paper.  Given his background he had had the opportunity to apply for a post in Business.  He’d been in a ring-fenced pool of three and had been unsuccessful in his application.  He then argued for the creation of a new post for him.  The point was to take cost out of the organisation; it was not in the organisation’s interest to create a new post for him.”

36.	The PWC notes continued:-

“GG [the claimant] was said to be a very angry individual despite his placid exterior.”

37.	These comments are contained within notes complied by external consultants from a reputable firm.  Those consultants were acting in a professional role and there is no reason for the tribunal to conclude that these notes were inaccurate or that they wrongly represented what had been expressed to them by the three witnesses for the respondent.  It is disappointing to note that the management of the respondent college appears to have referred to the claimant in such disparaging and disrespectful terms and in terms which suggest that they regard him as a nuisance for not going quietly in the redundancy exercise.  

38.	The tribunal’s attention has been drawn by the claimant to the clear statement that it was not in the respondent’s interest to create a new post for the claimant; the object of the exercise was ‘to take costs out of the organisation’.  The tribunal does not see anything sinister or inherently wrong in this statement.  This was clearly a situation where the respondent organisation had been restructured to take costs out of the organisation.  Against that background there is nothing wrong in an employer stating the obvious, ie that it was not in the respondent’s interests to create a new post for the claimant.  It has to be remembered that the respondent was under no legal obligation to create a new post for the claimant.

39.	The response lodged on behalf of the respondent college stated that the claimant had been offered, and had turned down a management post.  In evidence to this tribunal, the post was described as a post as manager of the Steps to Work Programme.  The college had been awarded a nine month contract by DELNI.  After the expiry of that nine month period, the contract could have been awarded elsewhere, in which case the post holder would have potentially been transferred to that new contractor under TUPE terms.  The tribunal was not given any evidence that there was any form of guarantee of a continuing post after the expiry of the initial nine month period.  Given that this post was government funded and given the economic situation prevailing at the relevant time, the tribunal must conclude that there had been no guarantee that this post would necessarily have extended beyond nine months with the respondent college or indeed with any alternative contractor.  It was also common case that the terms and conditions of employment were significantly different from the terms and conditions enjoyed at the relevant time by the claimant.  The salary was significantly less than the claimant’s existing salary.  The pension scheme, holiday entitlement and retirement age were different and less advantageous than the claimant’s existing entitlements.  Most importantly, it was common case that, under a collective agreement, a redundant teacher or lecturer, such as the claimant, redeployed to another academic post which offered a lower salary would have benefited from the preservation of their existing terms and conditions including the current higher salary and not simply on a mark time basis.  If the claimant had accepted the Steps to Work post which was outside the academic arena, those benefits, which were significant, would have been lost.  

40.	The academic staff in the respondent college comprised:-

(a)	full-time permanent lecturer staff with a teaching contact time of 828 hours per annum;

(b)	part-time permanent lecturing staff described as associate lecturers with guaranteed teaching hours of a fraction, eg 50% of 828 teaching hours per annum and 

(c)	fixed term hourly paid lecturers engaged, as required, to teach courses either in the respondent college or under the auspices of the respondent college through its outreach programme.

41.	The respondent’s witnesses stated in evidence and it appears to be common case, that the practice, in allocating hours at the start of each academic year, was that hours would be filled first by the full-time and part-time permanent lecturers, ie that the contractual entitlement to a fixed number of hours (828 hours or less), for each permanent lecturer would be met.  There was disagreement between the parties as to whether there had been a settled practice of allocating a minimum of 50% of their previous year’s hours to hourly paid lecturers.  It seems clear that the respondent college wanted to minimise the risk of tribunal claims and believed that if the hours dropped below 50% of the previous year’s allocation hourly paid lecturers would be entitled to claim redundancy payments, unfair dismissal or unlawful discrimination.  Thereafter any additional teaching hours would be allocated to both permanent staff, in the form of overtime, or to hourly paid staff as appropriate.  It does not seem to matter to this tribunal whether or not what was described as the ‘50% rule’ applied generally.  It is sufficient to note that there were a large number of hourly paid lecturers doing work at that lower grade and that some had acquired employment rights.  

42.	In the course of several meetings between the claimant and Mr Morrison and Ms Duffy, the claimant suggested that teaching hours should be removed from hourly paid lecturers, and from excess hours allocated over and above contractual entitlement to permanent lecturers, and re-allocated to him.  He argued that as a long-term and permanent employee, facing redundancy, this would be a reasonable course of action to secure his employment.  Mr Morrison stated in evidence that he had explored this option, but that ‘no substantial and sustainable’ hours were available.  Very little documentary evidence was submitted to the tribunal by either party to demonstrate hours available elsewhere.  The tribunal was referred to fairly short tables.  The evidence from Mr Morrison to the tribunal, particularly under cross-examination, was that he had examined those hourly paid lecturers who had less than one year’s service with the respondent college to see if their hours could be re-allocated.  He was concerned that if he took hours off those hourly paid lecturers with longer service, the respondent would face claims of unfair dismissal, redundancy or unlawful discrimination.  The result of that search was that insufficient hours were available for re-allocation to the claimant.  

43.	The claimant also asked, over a series of meetings, that the teaching requirements for 2011/2012 should be closely examined to see whether a redeployment opportunity existed for the claimant undertaking lecturing duties.  The claimant made it plain that he was prepared to accept duties at a lower level although, of course, under the collective agreement, his financial and other terms and conditions would be protected.  According to Mr Morrison’s evidence and according to his responses to the claimant during these meetings, no scope for such redeployment existed because of a general reduction in the teaching requirements of the respondent college.  

44.	Mr Murphy, the principal and chief executive for the respondent college, in a letter to the claimant dated 18 May 2011, twice pointed out that even if there had been scope for such a redeployment, it would not have been regarded by him as a ‘reasonable deployment opportunity’.  As with the PWC notes, referred to above, this letter indicates that reallocating the claimant to teaching duties as a lecturer on his principal lecturer terms, as agreed between management and UCU in a collective agreement would not have been regarded as reasonable by Mr Murphy, presumably on the grounds of cost as indicated at the end of the PWC notes.  

45.	The employer in a redundancy situation is obliged to make reasonable efforts to find suitable alternative employment for those facing redundancy.  Those efforts and the suitability of any alternative employment must be determined in the context of the redundancy situation that existed at the relevant time.  Each case is fact-sensitive.

46.	Mr Murphy stated in cross-examination that Mr Morrison, who had primary responsibility in this area, had not been aware of his (Mr Murphy’s) attitude to a teaching redeployment for the claimant.  Given Mr Murphy’s earlier and clear evidence that he had had a ‘watching brief’ over Mr Morrison’s management of the redundancy situation; given the claimant’s position, as the only senior employee facing compulsory redundancy within the respondent college; given the details of the discussion of the claimant’s position at the PWC meeting and further given that Mr Murphy and Mr Morrison met on at least a weekly basis, the tribunal does not find that evidence credible.  The tribunal concludes that Mr Murphy must have indicated, as part of his ‘watching brief’, what his views were of the potential for a teaching redeployment for the claimant and concludes that it is inconceivable that this was not discussed during the PWC meeting and on a regular basis between the two managers.  

47.	Paragraph 10 of the collective agreement for handling redundancies required that the respondent should consider the possibility of re-training a potentially redundant employee.  Paragraph 10 states:-

“The employing authority shall consider the possibility of enabling the lecturer(s) to be retained in post while undertaking a period of re-training for service in the education sector.  The question of re-training may arise in connection with redeployment within the college or to another college or to a school but will also have regard to the individual capacity of the lecturer concerned to satisfy the requirements of the vacant post after a suitable period of re-training.”

	It seems clear that the respondent did consider the possibility of re-training the claimant to teach a course known as ‘essential skills’.,  That re-training had been offered generally to staff, including to the claimant, in early 2010.  The claimant had not then been aware that he was potentially redundant and had not taken up the offer of re-training in that subject at that time.  The re-training would have taken one year to complete and the respondent was not prepared to enter into that commitment which would have involved paying the claimant his full (protected) salary while undergoing that training and thereafter while undertaking duties at the lower (lecturer) grade.

48.	Paragraph 7 of the Further Education Negotiating Committee procedure for handling redundancies provided:-

“The overriding body shall attempt to secure redeployment within the college compatible with the aims and needs of the college, taking into account any natural reduction that might occur.”

49.	In a voluntary redundancy exercise at the lower (lecturer) grade, applications for voluntary redundancy from three lecturers in Essential Skills were rejected by the respondent.  The tribunal heard no evidence to indicate that these three posts, or any of them, were properly redundant.  They were posts for which the claimant was not qualified, and would not have been qualified, for a full academic year.  They were also posts currently filled by staff paid substantially less than the claimant would have been paid, if the respondent had decided to, firstly, pay voluntary redundancy to one of the three lecturers and then, secondly, to offer the post to the claimant on protected terms.

50.	A lecturer in mathematics, Mr Liam O’Kane, gave notice of retirement on 8 March 2011.  That post was then filled by a potentially redundant member of staff at the lecturer grade.  That other member of staff had a degree in mathematics.  The claimant did not have a degree in mathematics.  There was a great deal of argument as to whether the post holder was required to hold a degree in mathematics.  In the absence of any positive evidence of such a requirement and given that some individuals previously appointed to similar posts did not have a mathematics degree, the tribunal concludes that there was no such requirement.  However, it is clear that a degree in mathematics, even if not required, is a more relevant qualification for a mathematics lecturer than a degree, or two degrees, in economics.  Given the availability of that other potentially redundant employee to fill the post at the grade of lecturer and given his superior qualifications for the post in question, the tribunal does not regard this particular issue as impacting on the fairness or unfairness of the dismissal.

51.	Just before the claimant’s redundancy dismissal on 31 August 2011, another principal lecturer, Mr Lavery, the head of the School of Science and Technology, advised Mr Murphy that he was being admitted for surgery for a heart condition.  The length of his ill-health absence could not have been accurately predicted at that stage.  It would obviously have depended on a range of factors including the nature of the surgery required, the length of time required for recuperation and whether any complications emerged.  However, the tribunal has concluded that it was clear to the respondent, just before the claimant’s redundancy took effect, that a principal lecturer post would have been vacant for a period of several weeks if not months.  It was not a situation in which, as Mr Murphy suggested in cross-examination, he could have been back to work within a week or so.  In the event, he was off work for approximately four months.  

52.	The settled practice of the respondent in such situations was to get the line manager of an absent principal lecturer to cover the short-term absence.  The respondent followed this practice and the relevant Director ‘acted down’ and covered Mr Lavery’s duties during his absence from 1 September 2011 to 16 December 2011.  The evidence from Mr Murphy and Mr Morrison was that they had decided to follow their usual policy of getting the line manager to act down; that they did not know at that time how long the absence would have been; that they did not regard a temporary sick leave cover as a suitable redeployment; a suitable redeployment, to their minds, was a permanent post and no permanent post was available.  

53.	The tribunal also heard evidence in relation to posts which had become available as Campus Managers.  However, the evidence was clear that these were mainly lecturer posts with only three hours per week remission from standard teaching hours for management duties.  They were filled by lecturers on the relevant sites who were already available.  To have allocated one of these posts to the claimant would have meant displacing an existing lecturer and replacing him/her with the claimant, who, on protected terms, would have been paid significantly more.  

54.	Ms Duffy wrote to the claimant on 22 November 2010 advising that posts may need to be filled from time to time in the respondent college.  If the respondent did not consider such a post to be a redeployment opportunity, the post would be advertised.  If this occurred a copy of the advertisement would be forwarded to the claimant for comment.  He did not comment on any advertisement that was sent to him with the possible exception of the campus manager posts.  

55.	A temporary post was found for the claimant helping with the preparations for a QAA Audit in Higher Education provision.  That post was to last from 1 December 2010 until 31 August 2011, the date that his redundancy took effect.

Meetings between the claimant and management

56.	Following the claimant’s unsuccessful interview for the principal lecturer post in the School of Business and General Education, the claimant met with Ms Duffy and Mr Morrison on 8 November 2010.  The claimant confirmed that he wanted to be redeployed.  Mr Morrison stated that teaching hours were not available at that time, because there was ‘massive overcapacity’’.  In relation to the campus manager posts, Mr Morrison stated that those posts carried a teaching load of 18 – 20 hours per week and that whoever took those posts needed that teaching load.  That excluded the claimant from consideration.

57.	A further meeting took place on 23 February 2011 between the claimant, Mr Morrison and Ms Duffy.  Mr Limb of UCU was also present.

	Mr Morrison stated that he was pursuing the possibility of redeployment.  In relation to the campus manager posts, Mr Morrison again referred to the significant teaching hours required

	The claimant argued that reducing the hourly paid lecturers’ hours to 50% of their previous year’s hours would create work for him at the lecturer grade.  He also raised the issue of associate lecturer staff who currently worked excess hours.  Mr Morrison stated that he did not know the position in this respect but stated there was no significant teaching load available.

	The claimant stated that he was willing to re-train in ‘essential skills – numeracy’ and possibly ‘essential skills – literacy’.

58.	A further meeting between the claimant, Mr Limb, Mr Morrison and Ms Duffy took place on 30 March 2011.

	Mr Morrison stated that no redeployment post had been found but that the respondent was actively seeking redeployment and would continue to do so.  He confirmed that the campus manager posts were restricted to staff who currently had teaching duties capable of being delivered in the relevant campus.  He stated that the respondent would not be taking hours off hourly paid lecturers to create a post for the claimant and that 828 teaching hours (the standard annual figure for a           full-time permanent lecturer) were not available for the claimant.  There were only a small number of teaching hours available in trade union studies.

	In relation to excess hours (overtime) worked by current permanent staff, his position was that this did not provide an opportunity for ‘significant and sustainable hours’ that would provide a redeployment opportunity.  Re-training in essential skills – numeracy or essential skills – literacy would take 12 months.

	The claimant argued that the respondent had a budget for 90,000 casual teaching hours and that he could teach in two areas, ICT and Business,.

	A further meeting, with the same participants, took place on 12 April 2011.  Mr Morrison stated that the respondent was still actively seeking redeployment opportunities for the claimant but there were no posts available.  The compulsory redundancy notice would therefore issue during the following week.

	The claimant again raised the issue of excess hours being allocated to associate lecturers and hours being given to hourly paid lecturers.

59.	A letter giving four months’ notice of redundancy issued on 18 April 2011.

60.	On 20 April 2011, the claimant appealed against the redundancy notice.

61.	On 24 May 2011 there was as further meeting, with the same participants, to discuss a possible vacancy as Training Manager for the Steps to Work programme.  The terms and conditions associated with this post were explained to the claimant.  He was to notify the respondent of his decision but did not do so.

62.	The claimant’s appeal took place on 26 May 2011.  The claimant was represented by Mr J McKeown of UCU.  The appeal was heard by three members of the Governing Body, Mr Arthur Rainey, Ms Joan Doherty and Mr Martin Agnew.

63.	The claimant argued that:-

(i)	the respondent had been thinking about restructuring from February 2010 and should have considered redeployment opportunities earlier;

(ii)	he had been given different explanations for his unsuitability for the campus manager posts.  On 13 October 2010 he had been told the posts had been ‘temporary’.  Later, he had been told the posts had a significant teaching load;

(iii)	he should have been considered for a business development post; and

(iv)	that hours should have been taken off others and given to him.  He argued that in the Business School, there were hours available for him.

64.	Mr Murphy, who represented the respondent at the appeal, argued that the respondent had consulted closely with the claimant over seven meetings and that they had actively sought redeployment opportunities.  He argued:-

(i)	in relation to the campus manager posts, they were temporary with the possibility of permanence.  They were not posts in their own right but ‘additional duties’ and had been restricted to existing staff with teaching loads who were willing to undertake those additional duties;

(ii)	in relation to the Business Development post, that had initially been advertised unsuccessfully.  A modified version of the post was              re-advertised and filled on 24 February 2010.  This had been in advance of the respondent knowing who would have been displaced by restructuring;

(iii)	in relation to fixed term lecturing hours, they had restricted that search to those lecturers recruited in 2010 – 2011, ie staff that could be terminated without risk.  In that group there were only 58 hours currently available with the possibility of a further 60 hours with some staff development  The respondent had not looked wider because it had been concerned about unfair dismissal claims and potential             part-time worker discrimination claims;

(iv)	in relation to the ‘50% rule‘, he denied that it existed.

(v)	the respondent had considered whether there was scope to                  re-allocate excess hours worked by permanent staff.  This had not provided significant or sustainable hours.  Five associate lecturers had applied to increase their hours and all had been refused;

(vi)	Essential skills re-training would have taken 12 months.  It was not an appropriate action; and

(vii)	the Steps to Work post had been offered to the claimant.  The claimant had not replied.

65.	The appeal was dismissed on 2 June 2011.  The appeal panel was satisfied that the respondent had actively sought redeployment opportunities for the claimant.

Decision

66.	The tribunal reached an unanimous decision except on one narrow issue.  That issue was whether the respondent’s decision not to offer the claimant a temporary delay on his redundancy, to provide sick leave cover for Mr Lavery, rendered the dismissal unfair.  Two members of the panel determined that it did not; one member of the panel determined that it did.  

67.	The decision will first deal with those issues on which the tribunal’s decision was unanimous before turning to the one issue on which there is a majority decision.

68.	The tribunal’s task is to consider whether a reasonable employer could reasonably have terminated the claimant’s employment in all the circumstances of the case.  The tribunal must be careful not to substitute its view for that of a reasonable employer, judged against an objective standard.  Equally, it has to be remembered that the determination of what is ‘reasonable’ or ‘fair’ is a decision for it to make, and not for the employer to make – provided that the tribunal is careful to judge reasonableness and fairness against the objective standard of a reasonable employer and not against the subjective standard of what it might have done in analogous circumstances.  The tribunal should be careful not to impose an unrealistic standard.

69.	This was a situation where a senior employee with long service was facing redundancy in a situation where it would be difficult for him to secure further employment in his chosen career.  Against that, the claimant was a principal lecturer.  There was no post available for him at that level.  A reasonable employer in those circumstances can be expected to make serious efforts to explore the potential for redeployment.  The question is therefore whether the respondent did so in this case.  

Unanimous decision

70.	The unanimous decision covers all matters relating to the respondent’s efforts to redeploy the claimant (the sole issue in this case) save for the respondent’s decision not to temporarily redeploy the claimant in place of Mr Lavery from 1 September 2011.

71.	The tribunal must focus on the evidence before it (see Barratt Construction Ltd  v  Dalrymple – Paragraph 24 above).  The tribunal heard evidence and arguments in relation to various matters which the claimant put forward as potential redeployment opportunities and similarly heard evidence and argument from the respondent in relation to the efforts which it had made to investigate the possibility of redeploying the claimant.

72.	The respondent first of all placed the claimant on temporary duties in the Higher Education Department when his post as principal lecturer ceased to exist.  Those temporary duties lasted from 1 December 2010 to 31 August 2011.  That step enabled the claimant’s position to be considered for a further nine months.  There was no rush to bring the claimant’s employment to an end.  

73.	The claimant argued that he should have been considered for one of the two campus manager posts.  The tribunal does not accept that argument.  These posts involved approximately three hours per week of additional management responsibilities but were largely teaching posts – based in those two locations and at the lecturer, rather than the principal lecturer, grade.  An employer might have displaced one of the existing teaching staff to replace him/her, at greater expense, by the claimant on protected terms.  However, in the context of a restructuring exercise which was designed to reduce public expenditure, it would have been an extraordinarily generous step (to the claimant, if not to the displaced and more junior lecturer) for the respondent to have taken.  It would have been difficult to justify in financial terms.  The unanimous decision of the tribunal is that the decision to exclude the claimant from these posts was a decision which a reasonable employer in the circumstances of this case was entitled to take.

74.	The tribunal also heard evidence about the post of Business Development Manager.  This was a post which had been advertised unsuccessfully on more than one occasion.  A successful candidate had finally been appointed to the post at the start of 2010.  That was some five to six months before even the initial recommendation for restructuring was put before the Governing Body and some nine months before the consultation exercise had been completed and the decision to implement restructuring was made.  There was no obligation on a reasonable employer to displace the current post holder, who was not otherwise at risk of redundancy in order to redeploy the claimant.  The respondent’s decision not to do so cannot, on any measure, be described as unreasonable.

75.	The claimant argued that the respondent should have re-trained him to teach Essential Skills and that he should have been retained in employment for a full academic year to enable him to complete that course.  There are several difficulties with that argument from the objective standard of a reasonable employer.  Firstly, the delay would be significant.  Secondly, other duties would have to be taken off other staff to keep the claimant in employment while following that course in evening classes at QUB.  Thirdly, the claimant had failed to express any interest in that training course when it had been offered to him in April 2010.  While the claimant had not been at risk of redundancy at that point, a previous lack of interest in a course was something a reasonable employer would have considered.  Finally, and more importantly, any future work in relation to Essential Skills would have been at lecturer level.  The claimant would have had to be paid on protected terms at principal lecturer level.  Again the tribunal concludes that the decision of the respondent not to offer this re-training option was within the band of reasonable responses open to a reasonable employer in the circumstances of this case.  

76.	Another matter raised in evidence was the possibility of taking hours of work from ICT lecturers and overtime from associate lecturers to create a post for the claimant.  The respondent’s position on this was plain.  There were not sufficient or sustainable hours available to create a post for the claimant.  The ICT Department was in a redundancy situation.  Overtime requirements could be short-term arising from illness etc.  The tribunal cannot speculate.  It would require solid evidence that a sustainable and sufficient pool of available hours existed.  That evidence was not put before the tribunal.  The burden of proof is neutral.  The tribunal therefore cannot conclude that the actions of the respondent in this respect were outside the band of reasonable responses open to a reasonable employer in the circumstances of this case.  

77.	a significant part of the claimant’s case was an argument that the respondent was obliged to strip out hours which would otherwise have been worked by hourly paid fixed term lecturers and to reallocate those hours to him.  He argued that it would have been possible to have combined such hours to have created a full-time post (838 teaching hours per annum).  As with the question of associate lecturer overtime, the respondent’s position was that there were not sufficient and sustainable hours available.  Mr Morrison was concerned about the possibility of claims for unfair dismissal, redundancy and unlawful discrimination.  He looked at those fixed term lecturers who were in their first year of employment.  There were only 58 hours available per annum that could have been offered to the claimant.  With further training, there was the possibility of a further 60 hours per annum.

78.	It is one thing for an employer to offer a post at a lower level to a redundant senior employee where:-

(a)	that post actually exists and the work is not being done by some else who would have to be displaced; and

(b)	where the post at the lower level would be remunerated at the lower level.  

It is quite another proposition to suggest that a reasonable employer should go to extraordinary lengths, taking hours from different, more junior, employees to their detriment, to artificially construct a post which would then be remunerated at the principal lecturer level of remuneration; in the context of a cost-cutting exercise.

79.	Even if there were evidence before this tribunal to enable it to conclude that it would have been possible to accumulate enough teaching hours that the claimant could fulfil, and there is not, the unanimous decision of the tribunal is that the respondent’s decision not to go down that route was a decision which a reasonable employer was entitled to take in the circumstances of this case.

80.	The post of lecturer in mathematics was given by the respondent to a potentially redundant employee, at that grade, who had a mathematics degree and who was therefore better qualified to fulfil that role.  Again that decision by the respondent can hardly be viewed as being outside the range of reasonable responses open to a reasonable employer.  

81.	The claimant argued that one or more of three Essential Skills lecturers who applied for voluntary redundancy should have been made redundant and that therefore a post should have been created for him.  The respondent took the view that this was a growth area, there was not a redundancy situation in this area and the application for redundancy should be refused.

	Furthermore, the claimant was not qualified to teach Essential Skills and could not have been so qualified for another academic year.

	As with the claimant’s other proposals for redeployment, previously dealt with in this decision, his approach was that the respondent had been obliged to go to extraordinary lengths to create a vacancy for him.  That is not the legal position.  Again, the unanimous decision in that the respondent’s decision in this respect was one which a reasonable employer was entitled to make.

82.	Finally, the tribunal does not accept that the appeal process was either in breach of the statutory dismissal procedure or otherwise so flawed as to make the dismissal unfair.  While the appeal panel members had previously expressed general approval of the redundancy process the notes of the appeal and the evidence before the tribunal clearly shows that the appeal panel approached their task conscientiously and fairly.

83.	The decision will now turn to the one issue on which the decision is not unanimous.

Majority decision

84.	The claimant was told by Mr Lavery at the end of August 2011 that he was going to have heart surgery.  That surgery could have been keyhole surgery or normal surgery.  The length of Mr Lavery’s absence at that point was uncertain, but it was clear that Mr Lavery was expected to return.

85.	The respondent had a settled practice of the line manager ‘acting down’ to cover a principal lecturer’s absence.  It did not regard a temporary sick leave cover as a suitable redeployment.  It did not offer the claimant the opportunity for a delay in his termination date and a temporary role taking over Mr Lavery’s managerial duties.

86.	A reasonable employer could have offered the claimant a temporary role covering Mr Lavery’s absence.  However, equally a reasonable employer could have done what the respondent did in these circumstances.  The redundancy had crystallised in December the previous year.  There were no permanent principal lecturer posts available.  The respondent had done all it was reasonably obliged to do in the context of cost-cutting restructuring exercise to find sustainable alternative employment.  Nine months had passed.  A temporary short term sick leave cover was a possibility.  However in the view of the majority, a reasonable employer could properly have done what the respondent did, in all the circumstances of the case.  As in the Green decision (Paragraph 23 above):-

“The present case was a classic example where two reasonable employers might follow a different course of action.”

	The majority decision of the tribunal is that the respondent did what it was obliged to do in investigating and considering suitable alternative employment for the claimant and that the dismissal was therefore a fair dismissal on the ground of redundancy.

Minority decision

87.	The claimant was a long-serving senior employee.  The respondent, at the end of August and start of September 2011, could not have been sure that a redeployment opportunity would not have emerged in the course of a short term sick leave cover, even if that had lasted only a month or so.  In the event, no such opportunity emerged, but at the time the respondent made the decision not to offer the sick leave cover to the claimant, that possibility was a real one

	The decision not to offer the sick leave cover to the claimant was not a decision which a reasonable employer could reasonably have made.  This means that the decision to proceed with the redundancy dismissal on 31 August 2011 was an unfair dismissal.

88.	If this had been the majority decision the measure of damages would have been the loss of net pay from 1 September 2011 to 16 December 2011, when Mr Lavery returned to duty.  If the respondent had  offered the temporary sick leave cover to the claimant he would on the balance of probabilities still have been made redundant but on 16 December 2011 rather than 31 August 2011.

Vice President:

Date and place of hearing:	6, 8 and 20 June 2012, Belfast

Date decision recorded in register and issued to parties: