Mr G Thornton v IBM UK Ltd: 1403981/2018
JUDGMENT
[1]The Claimant’s claim of Age Discrimination is dismissed, following a withdrawal by the Claimant. The Claimant’s remaining claim will proceed to a 2-day hearing, notice of which will be sent to the parties in due course. The telephone hearing listed on 16 May 2019 has been vacated. Employment Judge O'Rourke 10 May 2019[2]JUDGMENT SENT TO THE PARTIES ON ........................................................................................ FOR THE TRIBUNAL OFFICE Case No: 1403981/2018 10.2 Judgment - rule 61 February 2018 EMPLOYMENT TRIBUNALS Claimant: Mr Gregory Thornton Respondent: IBM United Kingdom Ltd Heard at: Southampton On: 21st and 22 November 2019 Before: Employment Judge Dawson Representation Claimant: In person Respondent: Mr Cross, counselREASONS
[1]In this case, Mr Thornton, claims that he was unfairly dismissed by reason of unfair selection for redundancy.[2]For the purposes of determining the case I heard from Mr Thornton on his own behalf and from Mrs Reynolds, Mr Welsh and Mr Zimsek for the respondent. I was also provided with a bundle of documents running to 258 pages and, except where stated, references to page numbers in this judgment are to that bundle.The Issues
[3]The claim, originally, was based on assertions;a. that the respondent did not make reasonable efforts to find the claimant an alternative role,b. that the selection scoring was flawed andc. that the claimant was subjected to age discrimination. Case No: 1403981/2018[4]The claimant withdrew his age discrimination claim and, by the time the case reached hearing, there was an agreed list of issues as appears at page 41.[5]The only remaining issue on liability is whether “the claimant’s dismissal [was] unfair for the purpose of section 98 of the Employment Rights Act 1996… by reason of a lack of reasonable efforts by the respondent to find [the claimant] an alternative role.” (Issue one, page 41)[6]At the outset of the hearing the claimant confirmed that the only basis on which he was asserting that there was a lack of reasonable efforts to find an alternative role was that the respondent did not offer him the “GDPR role” referred to within box 8.2 of the ET1.[7]At the outset of the hearing Mr Cross indicated that he did not anticipate pursuing any argument on contributory fault.[8]A timetable was agreed for the calling of evidence which both parties stuck to, indeed both parties finished cross examination earlier than the time which was permitted. I was grateful to both Mr Thornton and Mr Cross for their cooperation in this respect.Findings of Fact
[9]Given the limited issue in this case, I will not send out a full history of matters but limit my findings to those which are necessary to make sense of my determination of the issue.[10]The claimant was a good employee as the appraisals set out in paragraph 1 and 2 of his witness statement make clear.[11]Towards the end of 2017 he was employed by the respondent as a Program Risk Manager within the respondent’s Global Technology Services (GTS) team. The claimant was employed within the Transition and Transformation (T&T) division of GTS.[12]The respondent company is part of a group of companies that I shall refer to as IBM.[13]According to the witness statement of Mrs Reynolds, GTS is a business unit within IBM. Each business unit operates independently of other business units, has its own management, team budget and HR support structure (see paragraphs 4 and 11).[14]It is not in dispute that GTS, along with other parts of IBM, operated on a trans-national basis and across different companies within the IBM group. Members of GTS would be employed by separate legal entities within IBM (for instance IBM United Kingdom Limited or IBM Ireland).[15]Within the evidence I heard was a reference to the UKI market. UKI is a reference to the UK and Ireland. UKI is regarded as a geographic market for GTS and known as “UKI GTS” (see, for instance, paragraph 17a of the statement of Mrs Reynolds). UKI is one of 8 European markets, the others being Benelex, CEE, DACH, France, Italy, Nordics and SPGI as set out in more detail in paragraph 17b of Mrs Reynold’s statement. However, the Case No: 1403981/2018 geographic markets do not entirely match the corporations within IBM, and in particular, within UKI is both the respondent (IBM United Kingdom Limited) and IBM Ireland.[16]In 2017 the implementation of the General Data Protection Regulation was a major business undertaking for the respondent. Mr Zimsek, Global Manager of the GTS Engagement Risk Management team, was involved in setting up a team to ensure GTS compliance with GDPR. He worked within the Security Regulatory and Risk Management (SRRM) service line in the GTS Infrastructure Services Delivery Business Unit. He states that SRRM was tasked with ensuring GTS compliance with GDPR. He was involved in setting up a team consisting of, initially, 150 employees globally (Workstream 1) and, then, an additional 18 to 20 employees within Workstream 2.[17]This judgment need only concern itself with Workstream 2 which, as described by Mr Zimsek “would create tools, processes and a global new deals team of 18 to 20 employees, including personnel ideally based in IBM’s 8 different European markets, including UKI, who would perform the role of Solutions Assurance or Regulatory Consultant. The UKI market could be serviced from either the UK or Ireland but I envisaged that at least one member of this team would be based in the UK” (his witness statement paragraph 11).[18]Mr Zimsek knew the claimant. He thought that the claimant would be a good candidate for the roles he was setting up. In late November 2017/early December 2017 he approached the claimant who was keen to take on the role. At the same time as Mr Zimsek, approached the claimant a draft job description was created (page 63) which was sent to the claimant (page 61).[19]The Respondent operates a job vacancy platform known as GOM. GOM stands for Global Opportunities Marketplace. It is the respondent’s external and internal job vacancy platform. It contains vacancies in IBM globally. If a role which requires the employment of additional personnel (and therefore headcount) is to be advertised, it is advertised on GOM (see the witness statement of Mrs Reynolds, paragraph 15). The headcount increase and consequent cost to the business must, before advertising, have been approved in a three-step process as follows;a. at a domestic level by the geographic market for the business unit (UKI GTS),b. by the European Reference Board- at a European Level,c. by the Global Resource Board, which gives final sign off for costs.[20]In her witness statement Mrs Reynolds states that, in respect of the requirement for approval at domestic level “each geographic market for a business unit (i.e. UKI GTS) has their own budget and funding in place and the board determines whether there is affordability at the market level to support the spend request” (paragraph 17 a)[21]For the GDPR roles being created within Workstream 2 , rather than go through the three-step process set out above, matters went straight to the Case No: 1403981/2018 Global Resource Board who approved the creation of the GDPR team in January 2018. It appears, to me, that was because the team was to operate globally. However, I was told by Mrs Reynolds, and accept, that payment of salary etc. still had to be made by the geographic market for the business unit (relevant to this case, UKI GTS) and approval for funding still had to be given at that level..[22]In December 2017, the respondent commenced a headcount reduction within GTS. The claimant’s division of T&T was within the affected areas. The required headcount reduction within GTS was 362 employees. An Employee Consultation Committee was established and there were 13 meetings of that committee between December 2017 and March 2018.[23]At a meeting on 13th of December 2017 the Employee Consultation Committee was given a series of questions and answers. One was “will employees placed at risk of redundancy be able to apply for roles that would displace landed, import or subcos that IS Delivery have not previously been able to displace? E.g. there are 6 India landed service managers on [redacted] account where there are no firm plans to replace with UK resource, will these 6 roles be placed on GOM and available to at-risk employees to apply for? The answer is “the only roles that someone at risk of redundancy can apply for those that are raised as formal GOMs. Given someone at risk is already identified as unaffordable to the IS Delivery business, the GOM is needed to secure the additional funding over above the IS delivery cost base. People at risk may not have all the requisite skills to perform a specific landed, import or Sub Co role – which is why securing a role through a GOM requires commitment to working for [a] trial period to prove effectiveness.” (Page 78) . I highlight this question since it shows that consideration had been given to the question of redeployment and it had been determined that it would be done through GOM. It was on that basis that collective consultation had been carried out.[24]Moreover, generally, where a redundancy programme exists within the respondent, an employee identified as being at risk can only be redeployed within the respondent if they have successfully applied for a role advertised on GOM, which has the effect of meaning they only apply for roles which have been approved for funding. Employees are not permitted to move to a vacant assignment (open seat) which has not been advertised on GOM because doing so would not reduce headcount. Moreover, requests to place an advertisement on GOM will not receive domestic approval. The situation is more fully explained in the witness statement of Mrs Reynolds at paragraphs 18 to 20 which I accept in this respect.[25]Individual consultation with persons affected by potential redundancy did not start until March 2018 but it is clear that the claimant was aware of the forthcoming redundancies from December 2017. However, for the reasons he gives in paragraph 4 of his witness statement he did not expect that he would be made redundant.[26]At some point a discussion took place between the claimant and Mr Welsh who was his first line manager. The claimant informed Mr Welsh that Mr Zimsek had identified him as somebody who might be suitable to perform the GDPR role. Case No: 1403981/2018[27]The evidence shows that, at least up to the early part of 2018, Mr Zimsek was confident that he could appoint the claimant to the GDPR role. He appears to have believed that because the role had been approved at Global Resource Board levels it either would not necessary for a GOM advertisement be made or, if it was, doing so would be a formality. One email suggests that he thought that because of the global level approval “we can bypass any resource board” (page 87). On 21st of December 2017 he wrote to the claimant stating that “there are potentially 4 posts to fill. I’d say your chances are very good.” (Page 88). Mr Zimsek was an impressive witness in terms of credibility but I gained the impression that he was not too concerned about the finer details of how recruitment worked. However, it is also clear that during January 2018 he became aware that the position might be more nuanced than he had first thought (see page 89).[28]On 29 January 2018 Mr Zimsek wrote to Mr Welsh stating “as discussed, can we now start the process by which Greg moves to the SIH West GDPR Solution Assurance role? As discussed the desired timescale is “ASAP” and if Greg could start working part-time on GDPR very soon that would be very helpful… There is a GDPR Workstream… workshop in Dublin… next week, if Greg could participate that would be hugely valuable to him.” (Pages 95 to 96). That was not permitted by the claimant’s managers on the basis that the claimant could not be released from his existing duties at that stage.[29]It is clear, therefore, that Mr Zimsek was very keen to appoint the claimant, presumably on the basis that he had been identified as being very suitable for the role. It is also clear that the claimant’s manager was aware of that keenness.[30]In March 2018, Mr Zimsek approached Mr Haldenby to request approval to raise an advertisement on GOM for someone in the UK to join the newly created GDPR team (page 146). It was, by now, clear to him that the only way in which the claimant (or anyone) could be appointed to that GDPR role was for it to be advertised on GOM.[31]As I have set out, the normal position would be that there would be a refusal to advertise such a role within GTS UK because of the redundancy situation. As Mrs Reynolds states “it would not be affordable or consistent with the necessary headcount reduction”.[32]However, Mr Zimsek was permitted to put forward a business case to justify an exception to the rule. Because that situation was unprecedented (at least to the knowledge of Mrs Reynolds) she put into place a three-step approval process by which the UK market might enable an exception to be granted. The process required approval froma. the UKI Delivery Leaderb. the UKI GTS Finance Lead (to approve the cost and affordability in the UK market) and thec. UKI GTS HR (to ensure fairness and consistency of method). (Mrs Reynolds statement paragraph 30). Case No: 1403981/2018[33]Although the UKI Delivery Leader approved the appointment in April 2018, the Finance Lead did not and, therefore, it was not possible to advertise for the role within GTS UK (p37). Communication of the refusal to fund the role was given on 24 May 2018 and Mrs Reynolds states “Stuart Hill verbally informed us that GTS Finance had decided no roles and therefore no GOMs should be raised within GTS UK whilst the redundancy programme was ongoing as it would prevent the necessary headcount reduction being achieved within GTS UK.” (Paragraph 37). In circumstances which remain opaque to me a distinction was now being made between the UKI GTS market and GTS UK. I do find, however, that the initial approach from Mr Zimsek would have required the respondent (i.e. IBM United Kingdom Limited) to fund the GDPR role and the respondent was refusing to do so.[34]In the meantime, despite the claimant’s confidence that he would not be selected for redundancy, on 23 March 2018 the claimant was notified that he was at risk of redundancy and individual consultation commenced with him (page 123). It was explained to the claimant that he could seek redeployment through GOM and Mr Welsh told the claimant that he would support him through the redeployment process.[35]Mr Welsh assisted the claimant with updating his CV (page 143) and, himself, accessed GOM to search for roles which might be suitable for the claimant and shared them with the claimant (see page 144 by way of example).[36]I find that Mr Welsh was supportive of the claimant in his attempts to find alternative employment. On 29th of March 2018 the claimant wrote to Mr Welsh stating “I’ve got an interview for the Info Assurance roles a week on Monday – so thanks for your help, without your pushing I would have left them.” (Page 183).[37]At a meeting on 12 May 2018 Mr Welsh asked the claimant if there was anything else he could do and the claimant said nothing at this time. (Page 214). In his closing submissions, Mr Thornton accepted that the witnesses from whom I had heard had assisted him in finding alternative employment, although he criticised IBM’s systems.[38]The claimant did not obtain alternative employment within the respondent.[39]In the absence of the respondent being able to find any other role for the claimant, on 10 April 2018 his employment was terminated. The letter dismissing him stated “your final date of employment, which will be your actual leaving date will be on 03/07/2018… unless adjusted in accordance with clause 9, unless suitable alternative employment is found before that date.” (Page 192).[40]Mr Zimsek’s evidence at paragraphs 38 and 39 is as follows [38] Prior to the completion of the redundancy programme, we identified another individual based in the UK who was suitable for a Regulatory Consultant role (as noted on the organisation chart of 3 July 2018 (p.225)). However, her manager did not release her and therefore we stopped attempting to raise a GOM for the role in the UK. To date, Case No: 1403981/2018 there has been no opportunity on GOM to join the GDPR team that a UK employee would be eligible to apply for without relocation. [39] The UK-based GDPR role was never filled in the UK. We currently have approximately 15 employees within the new deals/Workstream 2 GDPR team, employed by IBM across Europe. None of them are based in the UK or funded by GTS UK. The individual who looks after the UKI market is employed by IBM Ireland.[41]In his evidence, Mr Zimsek gave the following answers to questions:a. Question: “In para 38 of your witness statement you were still looking to fill UK role, when did you offer that?”b. Answer: “Don’t know, but we still couldn’t raise a GOM”c. Question: “But could offer the person a role without GOM”d. Answer: “She wasn’t at risk of redundancy”e. Question: “If she had been released a GOM would have been raised”f. Answer: “My understanding is that in normal times do not need a GOM, but not the case in redundancy”g. Question: “When did you fill it”h. Answer: “July 2018, have UKI rep based in Dublin, they claim to a global cost code which gets charged out to other countries”[42]Is useful to recap that, as set out by Mrs Reynolds, the domestic level geographic market for GTS is UKI (i.e. United Kingdom and Ireland). Mr Zimsek’s intention was to appoint one of the 18 to 20 employees within Workstream 2 to the UKI market which could be serviced either from the UK or Ireland (paragraph 11 of his statement). Mr Zimsek also states in his witness statement “I had identified 2 individuals who might be suitable to join the team, one in the UK (Greg [claimant]) and one in Germany” (paragraph 16).[43]It was only the respondent (i.e. the UK company) which was restricted in its ability to recruit. That is clear from the fact that, ultimately, the appointee who looked after the UKI market was employed by IBM Ireland. It appears that no consideration was given to transferring the claimant to IBM Ireland and offering him the role through that company.The Law
[44]Section 98 Employment Rights Act 1996 provides that it is for the respondent to show the reason for dismissal and that it is a potentially fair reason. Redundancy is such a reason.[45]Section 98(4) states that “The determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the Case No: 1403981/2018 employer)- 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 shall be determined in accordance with equity and the substantial merits of the case”.[46]In Byrne v Arvin Mentor UKETA/0239/02 the EAT stated that “the issue is what a reasonable employer would do in the circumstances and, in particular, by way of consideration by the tribunal, whether what the employer did was within the band of reasonable responses of a reasonable employer?” Mr Cross reminds me, and I accept, that it is not for me to substitute my view for that of the employer.[47]In Amazon v Hurdus the EAT stated “[17] Here the tribunal has, in our judgment, lost sight of the review function which it was required to carry out. The question was whether the Respondent took reasonable steps to find alternative employment for the Claimant so that he could retain his employment. Even if the Claimant had no realistic prospect of securing the Labour Manager's position (see para 48) because the job had been effectively promised to Ms Danvers if her six month fixed-term employment in the post went well, that does not render his dismissal by reason of redundancy unfair. It is only if there was a vacant post for which the Claimant was suitable but he was not considered for it that the employer acts unreasonably in this context.”[48]The question of considering alternative employment within group companies has been considered in Vokes v Bear [1973] IRLR 363, Barratt Construction v Dalrymple [1984] IRLR 385 and in Euroguard Ltd v Alan Edward Rycroft [1993] Lexis Citation 711.[49]In Barratt Construction the EAT reiterated “It is well accepted that a reasonable employer will not make an employee redundant if he can employ him elsewhere, even in another capacity. This dates from the decision in Vokes Ltd v D C Bear [1973] IRLR 363 and is a principle which has received approval from the Court of Appeal in Thomas & Betts Manufacturing Ltd v Harding [1980] IRLR 255. We were also referred to Avonmouth Construction Co Ltd v Shipway [1979] IRLR 14. It is to be noted that all these cases were decided before s.57(3) was amended, at a time when there was a clear onus upon an employer to prove that he had acted reasonably. The principle which they decided still holds good. A reasonable employer will seek to see whether instead of dismissing for redundancy he can offer alternative employment (Williams and others v Compair Maxam Ltd [1982] IRLR 83). It is not however, for an Industrial Tribunal to speculate as to what further steps ought to be taken and to draw an inference adverse to the employer because he has not taken them”[50]In Euroguard the EAT stated “The main authority upon which the appellants' arguments were based was Barratt Construction Ltd v Dalrymple [1984] IRLR 385. That was a case in which it was held that an Industrial Tribunal had gone too far in holding that an employer should have made enquiries from other companies in a group before dismissing the particular employee. In that case, it was clearly stated by the Employment Appeal Tribunal that the other companies, within the large group involved, were autonomous. The Employment Appeal Tribunal accepted that a reasonable Case No: 1403981/2018 employer would not make an employee redundant if he could employ him elsewhere, even in another capacity, and referred with approval to the decision in Vokes Ltd v DC Bear [1974] ICR 1, [1973] IRLR 363. That, in turn, was a case in which it was accepted that it might be proper to consider whether other employment might have been made available for a redundant employee in other companies within a group, and, although it was emphasised in MDH Ltd v Sussex [1986] IRLR 123 that the case of Vokes Ltd v Bear does not lay down any binding rule, breach of which could be regarded as conclusive of unfairness, there is nothing in that decision to suggest that there may not be circumstances in which it is appropriate to look beyond the immediate employer company, to other companies within the group, in considering whether alternative employment might have been made available. In the circumstances of this case, it seems to us to be obvious that, in fact, the affairs of the companies in the group, at least in regard to the appointment or redundancy of staff at the level and of the type to which the respondent belonged, were closely integrated, and that the same individuals were involved, and the same policy as to selection applied”Conclusions
[51]As I have indicated, the claimant does not (any longer) challenge the fact of a redundancy situation, the scores for selection for redundancy or the consideration of alternative employment except in relation to the GDPR role.[52]In my judgment, there is no scope for criticising the decision by the respondent (i.e. IBM United Kingdom Ltd) not to fund and recruit to the GDPR role in the circumstances in which it found itself. It took a rational and reasonable business decision that, in circumstances where it was trying to reduce its headcount, it did not wish to create and fund a new role and advertise it on GOM. There is no obligation on an employer who is making somebody redundant to create a new role for them to move into.[53]Moreover, the respondent did take a significant number of steps to assist the claimant in finding alternative employment. I have set them out above and they are well within the band of reasonable responses of an employer.[54]The question that has caused me concern, is whether consideration should have been given to offering the claimant the GDPR role in IBM Ireland. Although Mr Cross, in submissions, suggested that the claimant did not strongly put his case on this basis, it seems to me that the point is sufficiently in issue for me to consider it. The claimant has been clear that he believed he should have been given the GDPR role. Mr Zimsek explained, in his statement, what the GDPR role in question was and made clear that the UKI market role could be serviced from either the UK or Ireland. He was then asked by the claimant, in cross examination, whether that role had been filled and he said that it had been by IBM Ireland. In those circumstances I do not consider there is anything inappropriate in the case being considered on this basis. Although the respondent was not prepared to employ somebody in the GDPR role created by Mr Zimsek (or his team) it is clear that another company in the group did, in the month the claimant left, appoint somebody to exactly the same role (IBM Ireland). In those circumstances, it seems to me that this situation is similar to that in Euroguard v Rycroft where the affairs of the company in this group, were Case No: 1403981/2018 closely integrated: the same individuals were involved and the same policy applied. Everything was taking place within GTS.[55]I have not been provided with any evidence as to how the role was ultimately filled. I do not know if it was advertised on GOM or if Mr Zimsek picked somebody in the same way as he had identified the claimant. It is clear that the claimant’s employment came to an end on 3rd of July and somebody else was doing the GDPR role through IBM Ireland in July. However, it is also clear that the claimant was able to look on GOM right up to the point of leaving the respondent and either did not see the role in Ireland (suggesting it was not advertised) or chose not to apply for it.[56]Whilst I was, for some time, of the view that it could be said the respondent did not go far enough because it did not consider offering the claimant the GDPR role with IBM Ireland, ultimately I am not able to say that the way in which the respondent operated was outside the band of reasonable responses for the following reasons.[57]This was not a situation where only a small number of employees was facing redundancy. The headcount had to be reduced by in excess of 360. Each of those employees who was facing compulsory redundancy was entitled to insist on being treated fairly. In a large scale redundancy, fairness requires consistency of treatment. To treat employees inconsistently runs the risk of discriminating on proscribed grounds.[58]In this case the respondent had set up a process whereby redeployment would be considered. That process required employees to apply for roles which were advertised on GOM. That was the system which had been set out in consultation at an early stage. That ensured that everybody had the same chance to be redeployed. In essence what the claimant asks for is a departure from that system so that he was offered a role which was not advertised on GOM in another company within IBM.[59]In this respect I am not unsympathetic to the claimant in the circumstances which existed. However, the respondent had put in place a fair system. To offer the claimant the job without it being advertised on GOM would be to circumvent that system. I am not able to say whether, if the role had been advertised on GOM more people than the claimant would have applied for it but it is, at least, possible that other people facing redundancy would have wanted to do so.[60]I have considered, further, whether the respondent should have ensured that the IBM Ireland role was advertised on GOM, before the claimant left. However, I have seen no evidence which would enable me to find when funding for the role was agreed and whether or not it was before the claimant left. I remind myself of the importance of not speculating as to what further steps ought to be taken by an employer as per Barratt. In the final analysis, I do not know whether the GDPR role within IBM Ireland existed at the point claimant left the respondent on 3 July. I remind myself of the statement of the EAT in Amazon that “it is only if there was a vacant post for which the claimant was suitable but he was not considered for it that the employer acts unreasonably in this context”. Whilst it is clear that a need for the role had been identified by the point the claimant left, that is not the Case No: 1403981/2018 same as saying, at that point, that there was a vacant post within IBM Ireland.[61]Thus it was reasonable to require employees facing redundancy to seek alternative roles through the GOM system. There is no evidence on which I could find that the respondent behaved unreasonably in failing to advertise a GDPR role with IBM Ireland on the GOM system before the claimant left the respondent’s employment. The process followed by the respondent was one which was within a band of reasonable processes which a reasonable employer could follow. The failure to make an ad hoc exception to that process and offer one employee facing redundancy an alternative role directly, does not take the process outside the band of reasonable responses.[62]Thus, I have concluded that having regard to the size and administrative resources of the respondent, in circumstances where the respondent needed to reduce its headcount by 362 employees, it acted reasonably in treating redundancy as a sufficient reason for dismissing the claimant.[63]The claim is dismissed.