Mr I Vale v Portsmouth City Council: 1401468/2018
JUDGMENT
[1]The claimant has no standing to bring his claim under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 and this is dismissed.[2]The claimant’s claim of unfair dismissal is not well-founded and is dismissed.REASONS
[3]At the beginning of the hearing, Mr Parsons confirmed that, notwithstanding references to disability and discrimination in the claimant’s claim form, there was no application to amend and the claimant was content to proceed with the claims in the claim form, namely: 3.1. unfair dismissal, pursuant to section 98 of the Employment Rights Act 1996 (“ERA): 3.2. failure to comply with the collective redundancy consultation obligation, pursuant to section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRA”). Section 188[4]The respondent took as a preliminary point that the claim for did not include any claim under TULRA section 188. After hearing argument, we were satisfied such a claim was included. We are required to read the claim form in a fair and non-technical manner, all the more so where, as here, the claimant was acting in person. The claimant ticked the both the “unfair dismissal” and the “another type of claim” boxes on the ET1. The claimant set out that he was complaining of “unlawful consultation”, before reciting that he was an elected UNISON representative and making various criticisms of the collective consultation process. There is a plain factual complaint that the collective consultation was unlawful and this in substance is a complaint with respect to TULRA section 188, notwithstanding the absence of an express reference to that statutory provision. We are reinforced in that conclusion, by the respondent’s solicitor having recognised the claim form as including such a claim and responding to it in the ET3.[5]Mr Macdonald’s next point was that the claimant did not have standing to bring his TULRA section 188 claim and we find he is right about this. The claimant confirmed that he relied upon section 188(1B)(a), as he was an appropriate representative because the affected employees were of a description (or included those) in respect of which UNISON was a recognised Trade Union and he was a representative of that Union. His factual complaint, at least in relation to section 188, was that the respondent’s consultation with him as a TU representative was defective. The person who may bring a claim in this regard is governed by TURLA section 189. Section 189(1) provides: (1) Where an employer has failed to comply with a requirement of section 188 or section 188A, a complaint may be presented to an employment tribunal on that ground– (a) in the case of a failure relating to the election of employee representatives, by any of the affected employees or by any of the employees who have been dismissed as redundant; (b) in the case of any other failure relating to employee representatives, representatives to whom the failure related, (c) in the case of failure relating to representatives of a trade union, by the trade union, and (d) in any other case, by any of the affected employees or by any of the employees who have been dismissed as redundant.[6]Given the failure relied upon by the claimant was relating to him as a trade union representative, this fell within TULRA section 189(1)(c) and only the Union could bring such a claim. We were not persuaded by the claimant’s argument that his case fell within section 189(1)(d), as the words “any other case” must mean not one falling within sub-sections (a)-(c). The fact that the claimant now wishes to complain in a personal capacity, does not mean that the respondent had an obligation to consult with him in that capacity under section 188, nor that he can bring his claim under section 188(1)(d). Accordingly, the claimant does not have standing to bring his claim under section 188 and this is dismissed. Issues[7]The issues arising on the claimant’s unfair dismissal claim are set out below.[8]Whether the reason for the claimant’s dismissal was that the requirements of the respondent for employees to carry out the work of a particular kind that he did had ceased or diminished, or were expected to cease or diminish, within ERA section 139.[9]If yes, whether that dismissal was fair within ERA section 98(4) and in particular: 9.1.whether the claimant was warned he was at risk of dismissal for redundancy; 9.2.whether the respondent consulted with the clamant about the risk to his employment; 9.3.whether the respondent carried out a fair redundancy selection process: 9.3.1.whether there was a reasonable pool for selection; 9.3.2.whether reasonable selection criteria were relied upon; 9.3.3.whether the selection criteria were reasonably scored; 9.3.4.whether the respondent explored any suitable alternative employment.[10]The parties agreed to the issues as set out above, save the respondent offered the qualification that its case was that all of the affected employees were put into a single pool for selection and then invited to apply, in a competitive process, for available positions in the new structure. On this basis, the selection criteria were, effectively, the criteria against which candidates for the new positions were scored.[11]During the course of the hearing, it having been explained to the claimant that whether there was a redundancy situation within ERA section 139 would be determined by the factual position and not whether the respondent’s decision to reduce its workforce was fair and / or in accordance with its existing policies, he conceded that the reason for his dismissal was redundancy. The claimant continued, however, to contest the fairness of that dismissal. Evidence[12]We heard evidence from the following witnesses: for the claimant 12.1. Mr Ian Vale, the claimant, formerly a Wellbeing Worker; for the respondent 12.2. Ms Dominique Le Touze, the respondent’s Consultant in Public Health; 12.3. Mr Mark William Folkes, the respondent’s HR Business Partner; 12.4. Mr Alan George Knobel, the respondent’s Public Health Development Manager; 12.5. Ms Sian Elizabeth Rixon, the respondent’s Recruitment Officer; 12.6. Ms Helen DuCane, the respondent’s Recruitment Officer.[13]We received an agreed bundle of documents running to numbered page 159. During the course of the hearing, whilst Ms Rixon was being cross-examined by the claimant about the interview process and how he had been scored, Mr Macdonald intervened to say he had just been passed a relevant document by his client and needed to disclose this to the claimant immediately, as it was relevant to the matter he was questioning the witness about. This document, it transpired, was a pro forma question document with handwritten notes made contemporaneously during the claimant’s interview. A short adjournment was granted for the claimant to consider this document, after which it was added to the bundle with the parties’ consent. The Tribunal take this opportunity to repeat the observations made during the hearing: this was an obviously relevant document; it should have been disclosed to the claimant far earlier; the respondent is a large employer with considerable administrative resources and the benefit of legal representation; this was a surprisingly poor failure by the respondent which must not to be repeated in the future.Facts
[14]The claimant was employed by the respondent local authority as a Wellbeing Worker within its Wellbeing Service, which provided advice and support in connection with public health issues arising from matters such as smoking, alcohol misuse and unhealthy weight. There were several teams of such workers. The claimant was based in the North Team at Paulsgrove, a few miles from Portsmouth city centre. Other teams were more centrally located, being at the Civic Centre, or in the Summers Town Hub.[15]In common with many local authorities, the respondent has faced very substantial budget cuts.[16]On 8 August 2017, the respondent sent an email to employees in the Wellbeing Service advising of the need to make up to £1m in savings and that a consultation process would begin on 4 September 2017. The employees were asked to make time available in their calendars to attend this meeting.[17]In an email of 24 August 2017, the respondent advised the recognised trade unions that it wished to start a consultation process on 4 September 2017 with respect to the Wellbeing Service. An embargoed restructure consultation document was attached. Whilst the claimant was an elected representative of Unison, another named official of that union was identified as the official contact for the purposes of collective consultation.[18]The respondent’s consultation document was officially published on 4 September 2017 and then provided to the affected employees by email. On the same day, there was a first consultation meeting with employees.[19]The respondent’s proposal included a restructure of the Wellbeing Service and substantial reduction in the size of its workforce, going down from 40.14 full-time equivalent (“FTE”) employees to 22.14. As part of this, there were to be fewer Wellbeing Workers. Job profiles, a timeline and a FAQ document were part of the proposal pack. Whilst the respondent hoped to organise and discharge its activity more efficiently going forward, the immediate requirement was for a reduction in staff numbers and associated wage cost.[20]Feedback sessions, whereby employees might ask questions informally, took place on 18 and 25 September 2017; the claimant went to the second of these and agreed he had been invited to the first.[21]Questions were asked by or on behalf of the employees. The respondent received a number of formal comments and representations, which in turn were responded to and recorded in a document running to 34 pages. Further and amended FAQ documents were published.[22]In light of the feedback and consultation, changes were made to the proposed restructure. There would still, however, be a marked reduction in the workforce, including in the number of Wellbeing workers.[23]A further consolation meeting with staff took place on 9 October 2017. There was then a discussion of various issues raised in the consultation, together with additional questions and answers.[24]By an email to employees of 10 October 2017, the respondent provided an outline of how it intended to proceed. This included a further timeline, with interviews being held for the new posts, and advised that the final restructure documents would be published shortly. The email also indicated that careers coaching, interview technique, CV design and the like, was available whether or not individuals were pursuing a position in the new structure. The claimant did not take up the offer of coaching.[25]The respondent published its final restructure proposal on 18 October 2017, sending this by email to employees by way of an email link. Job matching would take place for two senior posts where the new roles were substantially the same as the old and the FTE numbers did not reduce. For all other posts, employees were required to complete preference sheets indicating which roles in the new structure they wished to be considered for, and selection would be based upon performance in interviews for the same.[26]The respondent was intending to put all affected employees (save the two senior post-holders) into a single redundancy pool and then invite them to apply for roles in the new structure. Individuals would be appointed to these positions based on their performance in a competitive interview process. Redundancy selection, therefore, was to be by way of all the affected employees having the opportunity to apply for the new jobs. Those who were unsuccessful would be eligible for redeployment. Those who failed either to secure one of the new roles or find a position elsewhere, would be dismissed for redundancy.[27]The respondent’s redundancy procedure, at appendix 1, para 2.1 provided: 2.1 The process will be fair and transparent and appropriate for the type of role and number of staff which could include; - Job matching - Ring fence / Recruitment process (i.e. interview/assessment) - Redundancy selection matrix[28]The process to be followed on this occasion, and as had been applied in previous redundancy exercises, fell within the second bullet point, namely an interview-based selection.[29]Having initially expressed interest in 3 new posts, by an email of 1 November 2017, the claimant indicated that he only wished to pursue his application for Band 6 Wellbeing Worker, which was equivalent to the position he was already occupying.[30]The respondent prepared a pro-forma document containing the interview questions and including space to record the candidate’s answers and any comments.[31]The interviews for Band 6 Wellbeing Workers were carried out by a panel of 3, Ms Rixon Mr Knobel and Ms Simmons. They each completed their own pro-forma, taking the candidates through the various questions. Where answers given were brief or lacking in detail, the panel asked additional questions by way of a prompt. The interviews were conducted over several days. At the end of each day, the panel would go through the completed proforma sheets before agreeing scores against the questions asked.[32]The claimant’s interview took place on 21 November 2017. The answers he gave were noted, along with the panel’s comments. As with some other candidates, the claimant was prompted where necessary and this is reflected in the notes. The comments included that the answers lacked depth, did not evidence reflection, or otherwise failed to provide relevant detail. The manner in which the claimant answered the questions resulted in his interview being one of the shorter ones. Mr Knobel was aware of the claimant’s experience, but scored him on the basis of his answers, as he did for all for all others.[33]The highest scoring candidate got 27.5 points. The lowest scoring candidate who secured a job got 16 points. The highest scoring unsuccessful candidate got 15.5 points. On 15 points, the claimant was joint 19th out of 22, and did not secure a position.[34]In cross-cross-examination, the claimant made repeated reference to the fact that of the 5 unsuccessful candidates for Wellbeing Worker, 4 came from the North Team, which he said indicated bias against that team. Asked by the Tribunal whether he could explain why the North Team had fared so badly, Mr Knobel said that the Practice Lead had commented he had not been surprised by the outcome at he felt the North Team were not the highest performing.[35]Detailed written feedback was prepared for the claimant. This document summarised the answers he gave, identifying where and why these had not been considered strong. This feedback was offered to the claimant by Ms Simmons on 27 November 2017 and he declined to receive it. The document was, however, provided during his subsequent appeal.[36]By a letter on 29 November 2017, the claimant was given notice of his dismissal for redundancy. The claimant was advised of his right to appeal.[37]The claimant’s details were put onto the respondent’s redeployment register. On 1 December 2017, Ms DuCane telephoned the claimant to discuss the redeployment process. Having failed to make contact by this method, Ms Du Cane wrote to the claimant by email. The claimant did not respond to this email.[38]On 5 December 2017, Ms DuCane was successful in contacting the claimant by telephone. He advised that he did not wish to work near the Civic Centre (i.e. the respondent’s main offices). She explained that a recruitment officer would be in touch to provide job details for posts at the same band or one band below. Ms DuCane also explained salary protection. The claimant said he would want any further contact to be by email only.[39]By an email of 8 December 2017, the claimant lodged appeals against dismissal on his own behalf and for other unsuccessful candidates (as their TU rep). The grounds were general in nature, alleging the respondent failed to follow lawful and fair procedures. The claimant did not take issue with his own interview scores.[40]On 13 December 2017, Ms DuCane emailed the claimant asking if he had applied for any jobs and whether there was any support she could provide. The claimant replied on 14 December 2017 saying he was off sick until 28 December 2017.[41]On 14 December 2017, Ms Rixon sent the claimant details of an Administrator post (band 5 p/t) and a Referral Co-ordinator post (band 6 p/t). On 16 December 2017, she sent him information on a High Street Warden post (band 6 f/t). The claimant did not acknowledge or respond to any of these communications.[42]The claimant attended an appeal hearing on 17 January 2018. The panel comprised Jon Bell (Director of HR, Legal and Performance), Simon Bosher (a Councillor) and Lara Creamer (HR Manager). The claimant repeated that the selection was unlawful and unfair because the correct procedures had not been followed. The Claimant also argued there was bias as the majority of those selected for redundancy came from the North Team and he alleged there had been “coaching”. Separately, the claimant said he was the victim Trade Union discrimination.[43]By a letter of 22 January 2018, the claimant’s appeal was dismissed. In connection with alleged bias, the panel heard from and accepted the evidence given by a member of the interview panel to the effect that the same questions were asked of all candidates and no consideration were given to where individuals worked.Law
[44]Pursuant to section 98(1)(a) of ERA, it is for the respondent to show a potentially fair reason for dismissal within section 98(1)(b).[45]If the reason for dismissal falls within section 98(1)(b), neither party has the burden of proving fairness or unfairness within section 98(4) of ERA, which provides: In any case where the employer has fulfilled the requirements of subsection (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 sufficient reason for dismissing the employee, and(b) shall be determined in accordance with equity and the substantial merits of the case.[46]As to redundancy, ERA section 139 provides: “(1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to... (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.”[47]The leading authority on the definition of redundancy is Murray v Foyle Meats [1999] IRLR 562 HL. Lord Irvine said of section 139: “My Lords, the language of para. (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. This is a question of causation. 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 that state of affairs had led to the appellants being dismissed. That, in my opinion, is the end of the matter.”[48]As to a fair redundancy selection process, guidance was provided by the EAT in Williams v Compair Maxam [1982] IRLR 83, Browne-Wilkinson J presiding set-out principals of good practice: “1. The employer will seek to give as much warning as possible of impending redundancies so as to enable the union and employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and, if necessary, find alternative employment in the undertaking or elsewhere. 2. The employer will consult the union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible. In particular, the employer will seek to agree with the union the criteria to be applied in selecting the employees to be made redundant. When a selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria. 3. Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency at the job, experience, or length of service. 4. The employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider any representations the union may make as to such selection. 5. The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment.”[49]The band of reasonable responses test applies to the respondent’s decision in identifying the pool from which the redundant employee will be selected, which is to say that a dismissal would only be unfair for this reason if the pool was such that no reasonable employer would have chosen it; see Capita Hartshead v Byard [2012] ICR 1256 EAT. Discussion Reason for DismissalDiscussion
[50]As set out above, the claimant conceded that he was dismissed for the reason of redundancy with ERA section 139. In any event, the Tribunal find this to be the case. The respondent decided to substantially reduce the number of Wellbeing Workers it employed. There was, therefore, a reduction in the respondent’s need for employees to carry out work of that particular kind. Warning[51]The claimant was warned his employment was at risk of redundancy. The need for budget cuts in the Wellbeing service and the intention to commence a consultation process was first brought to his attention in early August 2017. The proposal to reduce the number of posts in that department was communicated to the Union in confidence at the end of August and then made public to all affected employees at the beginning of September. The likelihood of redundancy dismissals affecting Wellbeing Workers was central to the consultation process. The timeline and process, with preference submissions, interviews for the new posts, followed by compulsory redundancy for those who were unsuccessful, was set out in the final consultation document. The claimant accepted in cross-examination that he was aware his position was at risk of redundancy. Consultation[52]The claimant attended formal consultation meetings along with all other employees in the Wellbeing Service on 4 September and 9 October 2017. The claimant attended a feedback session on 25 September 2017 and had been invited to the earlier session, although chose not to go. FAQ documents were provided and revised during the consultation process. The claimant was invited to raise questions with the respondent and did so. Whilst the claimant says his questions went unanswered, the documentary evidence shows that responses were given and his complaint, therefore, would seem to be that he considered those answers unsatisfactory.[53]Notwithstanding the various meetings and communications passing between the claimant and the respondent, he denies there was any consultation with him. The claimant argues for this position on the basis that at all times has was acting in an official rather than a personal capacity. We are not persuaded by the claimant in this regard. Whilst the claimant was an official of the Union, he does not appear to have been nominated by Unison as a contact for the purposes of collective consultation in this exercise. In any event, however, even if the claimant did speak for the Union at various meetings he attended, we do not accept that means there was no consultation with him as an individual. The logical extension of his argument would seem to be that the respondent consulted with every other member of the Wellbeing Service when they attended the consultation meetings or feedback sessions, but not to any extent with him because he was wearing his trade union hat. We consider this to be an artificial and unrealistic position. The object of those meetings was for the employees to better understand the respondent’s proposals and to make representations, with a view to influencing the employer in its decision on the way forward. The claimant had that opportunity in both his official and personal capacities. The claimant could, perfectly well, ask questions or make points which were relevant to his own position as much as that of other affected employees. There was, accordingly, reasonable consultation with the claimant. Pool for Selection[54]The pool for selection was, according to the respondent, the entire workforce in the Wellbeing service, save for the two managers who were mapped directly into the two new roles.[55]The claimant’s challenge to the pool was a factual one, he said it was unfair because it only extended to the North Team. This is, in substance, an assertion that the selection exercise was a sham since it had been predetermined that members of the North Team would be dismissed. We do not find that the process was a sham or that the North Team members were pre-selected. The claimant’s assertion must be wrong on the agreed facts, given that at least one employee who was not a member of the North Team was dismissed for redundancy. Furthermore, we accept the evidence of Mr Knoble and Ms Rixon that the pool for selection was the entire wellbeing service (save for two senior managers). The outcome about which the claimant complains is the result of the interview scoring, not the pool for selection. Selection Criteria[56]The redundancy selection criteria were the interview criteria. Whilst the respondent might have chosen to use objective data, such a length of service as part of a matrix, we are not persuaded that an interview process must be unfair. The respondent’s policy allowed for interview-based selection. The respondent adopted a rigorous approach to these interviews, in that each candidate was asked precisely the same set of questions and had the same opportunity to answer them. Although the assessment of answers to questions may to some extent be a subjective exercise, the pro-forma included written details of what the panel should be looking for in the answers as well as prompts to the candidate. In this way, some objectivity is added. The questions asked were not criticised and appear to be relevant to the skills required for the position of Wellbeing Worker. Furthermore, there was no objection by the recognised trade unions to this method of selection. In these circumstances, where the number of posts was to be substantially reduced and the respondent wished to retain the best candidates, we cannot say the criteria were such that no reasonable employer would have relied upon them. Scoring[57]The essence of the claimant’s attack on the scoring is the allegation of bias. The only matter relied upon by the claimant to support this inference was the fact that of the 5 employees who were unsuccessful in this exercise and dismissed for redundancy, 4 were members of the North Team. The claimant said the odds against this happening without bias were “astronomical", asserting that it was a “1,600 to 1” prospect or that members of the North Team were “10 times more likely” to be dismissed. The claimant’s approach was, therefore, not to challenge in any meaningful way the specific scores he was given, but instead to work back from the end result; because the North Team fared so badly, the claimant says there must have been bias.[58]Two of the three panel members were witnesses in these proceedings, namely Mr Knoble and Ms Rixon, and the claimant did not suggest to either of them in the course of cross-examination that they had marked him at a lower level because he was a member of the North Team.[59]When the effect of the claimant’s case was put to Mr Knoble (by the Tribunal) for comment, he denied any bias. His evidence was that all candidates were asked the same questions, all candidates were prompted to expand upon their answers where necessary, and the answers were scored against the model answers at the end of the day.[60]In the course of the claimant being cross-examined, he said he was not accusing any individual on the panel of bias and marking him down because he was a member of the North Team. Asked by the Tribunal, how bias could have led to his lack of success in the interview process other than by one of more of the panel marking him down for that reason, the claimant could suggest no other mechanism. The claimant then said he was alleging that the panel were so influenced, but he did not know which member or members had acted against him for that reason.[61]Whilst the claimant could only understand the outcome in terms of bias, the Tribunal considers there are other realistic possibilities. The outcome could simply be a matter of chance; the claimant’s statistical analysis in such a small exercise in not especially compelling. Or, it may be, the North Team were not high performers, either generally or in terms of interview performance. The simplest explanation for the unsuccessful candidates’ scores is that they reflect the answers they gave.[62]The feedback provided to the claimant in writing was entirely consistent (as the claimant himself conceded in the course of cross-examination) with the contemporaneous manuscript notes made during his interview. These in turn tend to support the scores he received[63]We found both Mr Knoble and Ms Rixon to be credible witnesses, who answered the questions they were asked in a direct, clear and consistent manner. We accept their evidence that they scored the claimant by reference to the quality of the answers he gave and that his poor score is reflective of a lack of depth or detail in much of what he told the panel at interview. In particular, we accept their evidence they did not consider the claimant’s work location; no credible motive has been advanced for why any of the panel would have sought to mark-down the North Team in this way, and we find they did not.[64]Whilst the claimant’s main argument was based upon bias, he developed some other points which we address below.[65]The claimant criticised the panel for scoring candidates at the end of each day, rather than contemporaneously whilst they were being interviewed; which, he said, would prevent the scores from being ‘fixed’. As set out above, we do not find the scores were fixed. Nor are we satisfied that the respondent’s method, scoring at the end of each day, was unfair. The respondent’s approach allowed for debate and a comparative view. Whilst it may have been possible for the respondent to have scored fairly using the method contended for by the claimant, we are not persuaded the way it was done was unreasonable.[66]The claimant alleged “coaching”. There was no evidence of any improper coaching (e.g. candidates having the questions in advance). Such evidence as we have is that all candidates were offered training in interview technique. We do not know what take-up there was of that generally, we do, however, know that the claimant declined this, which is unfortunate given that his relatively brief interview and answers lacking detail suggest he could have done better.[67]The claimant challenged Ms Rixon’s ability to score, given her HR background and lack of detailed knowledge in terms of the work he did. We are satisfied, however, the panel was a balanced one. Mr Knobel had the relevant professional expertise.[68]For the reasons set out above, we find the selection / interview criteria were fairly scored. Suitable Alternative Employment[69]The claimant was contacted and advised of alternative employment available within the respondent. He did not pursue any of these opportunities. The claimant did not say there was any other employment he should have been offered; beyond his underlying assertion that there should have been no reduction in the number of Wellbeing Workers. The claimant did not complain of any lack of effort by the respondent in looking for alternative employment or seeking to bring that to his attention. We are satisfied that the respondent made reasonable efforts in this regard.Conclusion
[70]The claimant was fairly dismissed for the reason of redundancy.