THE INDUSTRIAL TRIBUNALS 

CASE REF:    358/12

CLAIMANT:	Hilda Gail McCully

RESPONDENT:	A & J Clandeboye Limited

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed by the respondent.  The claimant also claimed in her claim form to the tribunal that her wages had been less than the statutory minimum wage laid down under the provisions of the National Minimum Wage Act 1998.  However she produced no evidence to support this contention and so this claim is also dismissed.

Constitution of Tribunal:

Chairman:	Mr S M P Cross

Panel Members:	Mrs V Foster
	Mr S Kearney

Appearances:

The claimant appeared in person and was not represented.

The respondent was represented by Mr T Campbell Solicitor of Messrs Campbell Stafford.

FINDINGS OF FACT

1.	At the outset of the hearing it was agreed between the parties that the above named respondent, A&J Clandeboye Limited was the employer of the claimant and that the other company named in the proceedings, A&J (Clandeboye) Kelso Limited, should be dismissed from the title to the case.

2.	The claimant commenced her employment with the respondent in September 2008.  Although she had had a period of employment with the respondent prior to that, there was a break in her service.  She was employed on the day shift at the respondent’s filling station and supermarket.  Some months before her dismissal the claimant was moved from the day shift to the nightshift at the request of Mr Kelso.  Mr Kelso and his wife were the principal directors of the respondent company which had a business partnership with the Musgrave Group (hereinafter referred to as “the Group”), and traded under the name of Centra.  The Group provided 90% of the goods sold in the supermarket and gave financial, human resources advice and other expertise to the various supermarket owners who were in partnership with the Group.

3.	During September 2011.  Mr Kelso experienced cash flow problems in the business.  He asked for advice from the Group and as a result, a meeting was arranged between him and the accountancy adviser to the Group, Ms Marie Bowers.  The meeting took place on 6 October and it quickly became apparent that the problem was the low value of the turnover during the night shift.  Most of the sales during the night, were of petrol and cigarettes which carried a very narrow profit margin.  During the day groceries and other profitable goods sold well but this was not replicated at night.  The Group had come across this problem on other forecourts.

4.	It was decided, by Mr Kelso and Ms Bowers, to hold any decision regarding the nightshift until a proper survey had been carried out to see what the losses were at night.  Another meeting was held on 25 October after some results had come in from the survey, confirming that the night sales were of low profit margin.  Mr Kelso found it hard to accept, that what seemed to him the large cash turnover each night, could result in such small profit.  After consulting with his wife and Ms Bowers he asked that the survey be continued for another two weeks, to see if the results were consistent.  After this further period it was quite clear that the nightshift was unprofitable and the advice that Mr Kelso received was that the respondent should close the forecourt and business at night.

5.	Mr Kelso was most concerned about the implications of this decision, as he had three people working on the nightshift, including the claimant.  The claimant was a particularly valuable employee, in that she was a supervisor and had proved to be very reliable.  The other two employees were younger man who Mr Kelso had recruited and trained.  Mr Kelso asked the Group to advise him on how to deal with this redundancy situation and the human resources team of the Group gave him advice and letters and notices which the tribunal was shown.  These documents explained in a straightforward way how to handle a redundancy situation.

6.	Among these documents was a flowchart, showing how the procedure would be carried out.  The claimant said she had seen this flowchart attached to Mr Kelso's diary on his desk in September.  Mr Kelso stated that he did not receive a flowchart and other redundancy documentation until November.  The tribunal accepts the evidence of Mr Kelso that the flowchart and other documents did not come to Mr Kelso until after the various meetings concerning the cash flow problems.  This was after the third meeting which Ms Bowers and Mr Kelso held on 3 November 2011.

7.	Mr Kelso then, on the advice of the human resources department, proceeded to make the nightshift redundant.  He held an informal meeting on 30 November at which a statement was read out and the problems, as identified by the survey, were explained.  Mr Kelso asked for any suggestions from the members of the nightshift, as to how things could be turned round.  During the week commencing 5 December, formal meetings were held with each member of the nightshift.  The final meeting, at which the redundancy consultation with the claimant took place, was held on 9 December and the redundancy was confirmed by letter on 19 December.  An appeal was offered to the claimant but was not taken up.

8.	The claimant stated that she had written two letters to Mr Kelso on 17 October and 1 November, in which she asked to be put back on the day shift.  She placed these letters on his desk but got no response to them.  Mr Kelso denied seeing the letters and the claimant did not refer to them during the discussions leading up to the redundancy.  The tribunal prefer the evidence of Mr Kelso, that he never got these letters, to that of the claimant.  If the letters were of such importance to her the tribunal considers that she would have enquired about them and referred to them again during the discussions leading up to her redundancy.  Furthermore the claimant did not complain about being on the night shift “under protest”, when discussing the redundancy of that shift.

9.	The claimant left her employment on 30 December 2011.  She commenced these proceedings and the claim for payment of the minimum wage.  However she has been in receipt of wages greater than the National Minimum Wage, and did not proceed with this aspect of her claim.

THE LAW

10.	The claimant claims that she was unfairly dismissed.  Under the provisions of Article 126 of The Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”), “an employee has a right not to be unfairly dismissed by his employer.” Article 130 of the 1996 Order states that it is for the employer to show that the reason for the dismissal is either a reason relating to the employee’s capability to do the job in question, his conduct, or because of a redundancy situation, or some other substantial reason, as to justify the dismissal of an employee, holding a position of the type held by the employee in question.  In this case the reason for the dismissal is redundancy.  Under Article 174 of the 1996 Order, redundancy is defined.

11.	Article 174 of the 1996 Order sets out the definition of redundancy as follows:- 

	Redundancy

	174.— 	(1)	For the purposes of this Order an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to—

			(a)	the fact that his employer has ceased or intends to cease— 

			(b)	to carry on the business for the purposes of which the employee was employed by him, or 

				(ii)	to carry on that business in the place where the employee was so employed, or 

			(b)	the fact that the requirements of that business— 

				(i)	for employees to carry out work of a particular kind, or 

				(ii)	for employees to carry out work of a particular kind in the place where the employee was employed by the employer, 

			have ceased or diminished or are expected to cease or diminish.

DECISION

12.	The tribunal holds that there was no malign motive behind the transfer of the claimant to the night shift.  This transfer occurred before the respondent had even begun to investigate the cash flow problems and well before Ms Bowers had visited the business and started her checking of the night shift sales.  It also transpired, during the evidence of the claimant, that another supervisor had been asked to transfer to the night shift before the claimant was asked, but he failed to respond to the request in a timely way, which resulted in the claimant being asked.  Furthermore there was a slight pay advantage in working the night shift.

13.	The tribunal then considered the arrangements that the respondent made to implement his decision to close the night shift.  The tribunal accepts Mr Kelso’s evidence that he and his wife did this with great regret.  They were so reluctant to accept this situation as fact, that they put the idea off at first and decided to continue with the survey of the night shift cash flow.

14.	Once a redundancy situation has arisen, it is necessary for the employer to make a decision as to who should be made redundant. In this case the employer was faced with the requirement to close a complete shift of the business.  All the employees in that shift were to be dismissed.  The claimant did not make the case that anyone in the day shift should have been considered for redundancy, with a consequent change of shift pattern, for a night shift person being retained.  The day shifts which were two in number accounted for over 20 employees and to involve that shift in the redundancy selection exercise would have prolonged and complicated the exercise greatly.  The tribunal raised the point with the parties, but the respondent director, Mr Kelso stated, that he had acted on the advice of the HR Department of the Group and after discussing the various possibilities he and his advisors had decided that the respondent should confine the selection to the night shift alone.  The respondent did examine the possibility of offering any unfilled position on the day shift to the employees facing redundancy, but no such positions were available at that time.

15.	The tribunal also considered the case of Wrexham Golf Co Limited  v  Ingham  UKEAT /0190/12/RN, in which His Hon Judge David Richardson considered the duty of a tribunal faced with a problem, of deciding whether an employee acted reasonably, in creating a pool from which to select a candidate for redundancy.  In that case there was only one person doing the job being made redundant and the tribunal decided, that it was not necessary for the respondent to introduce other employees into the pool of possible employees who could be considered for redundancy.  The English Employment Appeals Tribunal, on the appeal in that case, warned itself that it was not for the tribunal to make its decision, on what it would have done in the circumstances.  The tribunal has to decide, whether what the employer did was within a band of reasonable responses that a reasonable employer might have adopted, if faced with such a problem.  See Williams  v  Compair Maxim Limited [1982] IRLR 18.  In the particular context of the case it was hearing, the Employment Appeal Tribunal decided to remit the case to the tribunal for a fresh hearing.  However the guidance from that case to the present tribunal is, that if the respondent considered the various options presented to it and it and its advisors, then, it is reasonable for the employer, to decide on one method of selection and if that is one of a band of reasonable solutions open to the respondent, then it is not for the tribunal to substitute its own preferred method.

16.	This view is supported by the editor of Harvey, in the Section on unfair selection for redundancy.  Paragraph 1686.01 states as follows:-

		“As in any area of unfair dismissal law, there is a balance to be struck here between on the one hand a tribunal’s power of adjudication and on the other hand the level of discretion to be given to an employer making economic decisions and the rule that the tribunal must not substitute its own view.”

17.	This tribunal holds that the respondent company, with the advice of the HR Department of the Group, considered this matter and decided that the whole night shift should be made redundant and the tribunal finds that this is a reasonable business decision and within the band of reasonable responses, that might be expected of a reasonable employer, faced with a problem of this kind.  For these reasons the claimant’s claim is dismissed.

Chairman:

Date and place of hearing:    6 September 2012, Belfast.

Date decision recorded in register and issued to parties: