Mr D Walker v Blachair Illuminations Ltd: 1400891/2020
JUDGMENT
The Judgment of the Tribunal is as follows: The claimant’s claim of unfair dismissal is not well-founded.REASONS
[1]By a claim presented to the tribunal on 17th of February 2020 following early conciliation from 2nd of January to 7th of February, the claimant claims unfair dismissal from his employment as assistant construction manager at the respondent’s Blockley depot on 10th of December 2019. The respondent in its response dated 17th of March 2020 relies upon redundancy as being the reason or principal reason for dismissal. The essence of the claimant’s complaint is that he was not offered the opportunity to be placed in a pool for selection for the new post of operations manager/head of operations, to which Jonathan Bradford was appointed on 11th of December 2019 with effect from the 1st of January 2020. He also complains that in his post as assistant contract manager he had not been the subject of KPIs and thus his performance in that role could not be properly assessed. It is not in dispute that there was a restructure of the respondent’s business in November/December, and that redundancies were declared including the claimant’s former role of assistant contracts manager; and that parts of the claimant’s role were assimilated into other roles. His role was one of three roles which were made redundant .[2]This hearing took place by CVP. The respondent called three witnesses: – first, Miss Kelly Tucker HR consultant who dealt with the first redundancy hearing on 10th of December; secondly Mr Robert Stalker, managing director of the respondent; thirdly Mr Jonathan Bradford, who was appointed to the new post of operations manager/head of operations. The claimant gave evidence. All relied upon written statements. There was a joint bundle of documents consisting of 84 pages. 3. The tribunal’s self-direction on law. The initial burden lay on the respondent to prove a reason for dismissal of a kind specified in section 98 of the Employment Rights Act 1996, one of which is redundancy. Redundancy occurs where it is shown that there is a reduction in the requirements of the business for work of a particular kind, or that they have ceased or diminished or are expected to cease or diminish. See Section 139 (1) of the Act. If the respondent employer proves the reason for dismissal, the tribunal has next to consider whether the dismissal was fair or unfair having regard to the reason shown, applying section 98 (4) of the Act. “ 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 employers undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason foDismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case”. There is no burden on either party to prove that the dismissal was fair (in the case of the employer) or unfair (in the case of the employee). In the case of a redundancy dismissal, there is an obligation on the part of the employer to engage in sufficient consultation with the employee or employees under threat of redundancy, including consideration of alternative roles, and, in a case where there is a pool from which selections are to be made, a fair and, in so far as is possible, objective method of selection is adopted. The essential issue in this case is whether the respondent was at fault in failing to create a pool for selection for the new post, including in particular the claimant and Mr Bradford. This involves consideration whether they were doing the same or similar work. If they were, the employer will be expected to show justifiable reasons for excluding someone from consideration for the new post. Were the tribunal to find in this case that there was a failure to establish a pool for selection for redundancy, the dismissal is likely be found to be unfair as outside the band of reasonable responses but the tribunal will have to consider, applying the rule in Polkey v AE Dayton and Son Ltd, what the chances were, if any, that the claimant would have been successful, and to reduce the compensation accordingly, or not award any compensation if it decides that there was no chance that the claimant would have been appointed. 4.Background facts. 4.1 the claimant was appointed on 24th of July 2017 as warehouse and site electrician based at one of three depots of the respondent, one the head office being in Scotland, another in Wakefield, and a third at Brockley in the Cotswolds covering the south of England. There is a job description for that role at page 18. It records that he was to report to the contracts/Brockley manager, Tim Roffey. 4.2. The respondent’s main business was the manufacture and provision of light shows in particular for local authorities covering the Christmas period between October and January each year. The respondent had a workforce to which subcontractors were added at busy times. 4.3 As of the 1st of January 2018 the claimant was appointed by Mr Stalker to the post of assistant contracts manager, still based at Brockley on a salary of £34,505 per annum. This involved some extra responsibilities and was created after the Brockley contracts manager had left. The claimant had a colleague, Mr Mulholland, also employed as a warehouse and site electrician who reported to the claimant, but who left on 28 June 2019. He was not replaced. There is a job description at page 21 which the respondent says was for this new role, but I accept that the version originally given to the claimant during disclosure was headed “contracts manager“, not “assistant contracts manager“. Also, it was agreed in the appeal outcome that there was no job description for the claimant’s promoted role at that time. I accept however that the contracts manager job description did describe some of the activities and duties which the claimant performed. It is agreed that the claimant was to report to the managing director, Mr Stalker. There was a discussion about creating KPIs for the job but these were never prepared. It is agreed that the claimant’s salary was £34,500 per annum. 4.6. The claimant was substantially off work with a broken coccyx from 9 September to 29th of November 2019. On 26th of November 2019 the claimant was called to a meeting with Ms Tucker, the purpose of which was to notify the beginning of redundancy consultation – see page 18. - to be implemented in January 2020. I accept that Mr Stalker had earmarked three roles for redundancy: The claimant’s; that of Anne Collins, a receptionist in the Scottish office who was dismissed by letter of 6 December; and Richard Ryan, general manager, who was notified of dismissal on 9 December 2019. The claimant was interviewed by Mr Stalker and Kelly Tucker on 10th of December – see notes at page 35 – and was dismissed on that day with redundancy pay and pay in lieu of notice. 4.7. The claimant appealed and an appeal hearing took place on 20th of December 2019, chaired by Jenny Hardy (independent HR consultant, who has not been called to give evidence). However there are comprehensive notes at pages 38 to 40. 4.8. It is agreed that during the consultation period, the claimant was offered two alternative live roles which he turned down, that of sales manager (job description at page 22 – salary £30,000 per annum plus OTE), and project manager (job description at pages 24 to 25, salary £35,000. He turned both down. 4.9. These roles, and the two management roles made redundant, are illustrated in the respondent’s organisational charts for December 2019 (preredundancy) and January 2020, (post redundancy). The post-redundancy chart also shows the new post of project manager/a.k.a. head of operations. The charts are at page 28. The job descriptions for the head of operations role filled by John Bradford at a salary of £53,000 is at pages 26 to 27.[5]Conclusions. It is not in dispute that the claimant’s role was genuinely redundant. It was not replaced in the structure with any other similar role. I accept however that some elements of the role were distributed elsewhere. I accept that a decision was taken by Mr Stalker to create an entirely new role of operations manager/head of operations, with considerable added responsibilities which were reflected in the substantial increase in salary. It is also reflected in the Key duties and responsibilities at pages 26 to27. This is a much more strategic role than that undertaken by the claimant, whether as demonstrated in the claimant’s role as described in the job description of page 18 or in the claimant’s assistant contracts manager role. Albeit that the contracts manager role at page 21 does not reflect the claimant’s role assistant contracts manager, satisfied that the role the claimant was performing in terms of people management responsibilities was negligible in comparison with the requirements of the head of operations role. Even the claimant recognises that he would have had to have received training additional instruction to perform the new role. I also accepted Mr Bradford had not only the existing experience to perform the job but also a degree in design which the claimant did not have and made which made him particularly suitable for the key duty of liaising with the Design team at bullet point 4. The superiority of the head of operations role is not reflected in the reporting hierarchy in the organisational chart of January 2020 at page28. The salary for the post is substantially greater than that of either of the two other post holders – the Ladybank general manager and design team leader. I have considered the respondent’s redundancy policy at page 13: “Whenever possible staff will be offered the opportunity to apply for all suitable vacant posts as an alternative to redundancy. Alternative posts should be within the employee’s capability, after retraining and should not involve unreasonable additional inconvenience. The company recruitment policy must be followed”. Having regard to the key nature of this single and unique role, I accept that it would not have been appropriate to have created a pool including Mr Bradford and the claimant. It would have been different if for example there had been a role with four jobs vacant for which more had applied, such as the sales manager role for which the claimant chose, for whatever reason, not to apply. In those circumstances it would have been appropriate to create a pool and a selection process in which event the applicant’s performance on KPIs (which did not occur) would have been relevant. Even if I were to find that it would have been appropriate to create a pool of two, Mr Stalker and the claimant, there is no chance that the claimant would have been successful having regard to his limited qualifications and experience. The role needed to be filled and there would have been little point in appointing someone who would have needed to be trained up in the role when there was someone already competent to perform it. This would still apply even if the job description was tailored to suit Mr Stalker’s abilities and experience. In reaching this conclusion I have taken into account the contents of the document at page 32 which is headed “Summary of differences between head of operations and assistant contracts manager”. I accept that this document was created after the event to justify not including the claimant in a pool for selection, but the contents have not been substantially challenged by the claimant .