Mr M Taylor v Parkside Flexibles Europe Ltd: 1801348/2016
JUDGMENT
This complaint of unfair dismissal fails and is dismissed JUDGMENT having been sent to the parties on 24 February 2017 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:REASONS
[1]This is a claim brought by Mr Martin Taylor against Parkside Flexibles Europe Ltd whereby he complains that he has been unfairly dismissed. Mr Taylor has been represented today by Ms Garside, a lay representative who I know to be very experienced in Employment Tribunal matters, the Respondents being represented by Ms Davies of counsel.[2]The issues that I have to determine were helpfully reduced to a list of issues agreed between the parties but they are the conventional issues relating to a redundancy related dismissal: firstly, was there a genuine redundancy situation and that is conceded; secondly, did the Respondents behave reasonably in using that as a reason to dismiss the Claimant, and in determining that issue I look in particular at questions of selection, consultation and whether appropriate efforts were made to avoid Mr Taylor’s compulsory redundancy.[3]The relevant facts I find are as follows. The Respondents are a large company with a full time HR function. They are, as I understand it, in the printing and packaging industry. The Claimant has given them 23 years of valuable service, ultimately ending up as a Project Manager, his job being to identify appropriate equipment to acquire, to plan the installation of such equipment and to plan the maintenance of the Respondent’s machinery.[4]The Respondents relied substantially for their business upon the tobacco industry. About 70% of their business involved the design and printing of tobacco packaging. Government decided to impose restrictions upon the packaging which the tobacco industry could use. When those proposals were put forward the Respondents actively campaigned with a view to putting an end to, or moderating, those proposals but their efforts were without success and in due course, as we all know, there was a prohibition placed upon the tobacco industry selling their products in attractive packaging and inevitably that had an impact upon Parkside’s business.[5]They could foresee a reduction in the amount of work available to them and they could foresee a reduction in their profits and indeed there came a time when it was predicted that profits would turn to losses unless something was done to reduce expenditure. I have heard all the efforts that were made at Board level to make savings so as to avoid compulsory redundancies but inevitably when work volume reduces employers ultimately need to look to reduce the number of employees working for them.[6]Their HR Manager, Mrs Grace, is extremely experienced and skilled in HR issues and understood her obligations in relation to proposed redundancies. Guidance was given to the Departmental Managers as to where they should look to make potential headcount savings. One of those areas where it was thought savings could be achieved were in, what were regarded as, luxury roles within the business. Those were roles which provided valuable service to the Respondents but were roles that, if necessary, could be absorbed by other people.[7]The Respondents went to considerable lengths to consult collectively with their staff consultation committee. As Ms Davies submits collective consultation has limited relevance to the issues that I have to determine. Nonetheless, however, in deference to the way that this case has been put on behalf of the Claimant having read through all the documentation which evidences the contents of the consultation meetings, the questions raised by the employee representatives and the detailed responses provided by the Respondents it is abundantly plain to me that at a collective level these Respondents did absolutely everything that they needed to have done to obtain representations from this representative committee and to provide information which could then be cascaded down to the workforce.[8]The extent to which that information was effectively cascaded to Mr Taylor has been an issue before me in this hearing and I accept that for whatever reason he received a limited amount of information. That is not to be regarded as a criticism of Ms Naughton (who was the representative on the SCC who represented Mr Taylor). When redundancies are threatened it is a thankless task to serve on such a committee and it is a great credit to her that she gave the time and effort required to serve in that capacity. To the extent that there were any such shortcomings, that was not the responsibility of the Respondents. Their responsibility, once they had engaged in meaningful collective consultation is then to engage in appropriate individual consultation with the employee’s potentially effected.[9]Unhappily Mr Taylor was one such employee. It was identified that his role was not only regarded as a luxury role, the project work, such as there was left to do in this time of declining business, was work that could be absorbed by others. His role therefore was identified as being potentially redundant.[10]The Respondents also identified that they had four people performing the task of shift manager and it was their belief that they could reduce those roles by one person. Mr Taylor has in the past done that sort of work and I have no doubt at all that it was work that, if offered to him, he would have been able to satisfactorily perform.[11]Mrs Grace has told me, and I accept, that she gave some thought to whether it was appropriate to link Mr Taylor’s role with that of the shift managers so as to include Mr Taylor within that pool. She concluded that the role of Project Manager and Shift Manager was so different that that was not an appropriate way to proceed. Ms Garside urges me to accept that it would have been more appropriate to have given Mr Taylor the opportunity of being assessed as against those shift managers which would have given him, at least, the chance of avoiding redundancy. Mr Davies submits it is not for me to tell these Respondents how they should go about such a redundancy exercise. It is not for me to determine what pools should have been formulated. She submits, and in my view correctly, that I just need to satisfy myself that they adopted a reasonable and coherent approach to this redundancy process and they followed it in a fair way. As the authorities make clear the determination of whether somebody should or should not have been included within a selection pool is not for my determination provided that I am satisfied that the Respondents approach lay within the band of reasonable responses.[12]Where, as is accepted in this case, Mr Taylor’s role was so distinct from the shift managers’ role I could not conclude that deciding that Mr Taylor’s role should be looked at in isolation was a decision that was outside that band of reasonable responses. As a consequence Mr Taylor was in the unfortunate position of being within a pool of one.[13]The Respondents therefore came to the position of determining that they were looking for 39 potential redundancies. They started off by seeking voluntary redundancies. One of the shift managers did volunteer for redundancy thus taking the risk of redundancy away from the remaining three. The Claimant was however still at risk and the Respondents determined that they would need to enter into an individual consultation process with him. Unfortunately that process did not start well.[14]Mr Taylor came across a piece of paper on one of his colleague’s desk which set out the proposed new structure within this factory. He saw that his role had been deleted from that structure. It was by that unfortunate means that he discovered, for the first time, that he was at risk of redundancy. He raised this concern with Mr Henderson, his manager. Mr Henderson quite rightly consulted with Mrs Grace and they decided that, in fairness to Mr Taylor, they should have a meeting with him rather sooner than had previously been intended. As a consequence that first consultation meeting which took place on the 11th May was not as structured and prepared a meeting as Mrs Grace had intended.[15]Mr Taylor tells me that he was very shocked to be told that his role was being made redundant. He complains that he had no warning of that first meeting but of course every process has to begin somewhere and it is well within my experience that the initial meeting notifying the employee that they are at risk of redundancy can only be regarded as very much the start of the process. They have to be informed somehow and then given time to formulate their thoughts in order then to enter into a meaningful consultation process.[16]Mr Henderson and Mrs Grace were however able to tell Mr Taylor that there was a vacancy as a Laser Operator should Mr Taylor wanted to apply for that. That was a role that Mr Taylor fully understood. He has explained to me it is a physically demanding role. He has a back complaint and did not think that he could possibly perform that role and he informed Mr Henderson accordingly. Mr Taylor wanted to know how much he would be paid in the event that he was to be made redundant. The Respondents undertook to provide him with that information. The meeting came to an end on the basis that Mr Taylor would be given the opportunity of considering what had been said and that there would then be a further meeting.[17]Mr Taylor was understandably upset and he asked for permission to go home early which was allowed. Mr Henderson then noticed that Mr Taylor packed up his laptop computer with a view to taking that home with him. That caused Mr Henderson concern. Mr Henderson had not worked with Mr Taylor for very long. He had the impression that Mr Taylor did not usually take his lap top home with him. He knew that Mr Taylor would be able to access the Respondents systems remotely and he was concerned that, in his upset state, there was a risk that he might do harm to the Respondents. It is unfortunate that such suspicions would have arisen in relation to an employee who had given such long and valuable service to the Respondents.[18]He spoke to Mrs Grace about his concerns. Mrs Grace confirmed her understanding that the IT systems were such that Mr Taylor’s remote computer access could be disabled and she gave instructions to the IT department accordingly. Unfortunately, unknown to Mrs Grace, by disabling his remote access with his laptop his mobile phone was also disabled and Mr Taylor discovered that he was not even able to telephone his wife to say that he was on his way home early and to explain why that was the case. That was a very unfortunate start to this consultation process. To be told that his role was to be made redundant and then to discover that his mobile phone had been disconnected understandably gave him the impression that the final decision had already been taken. I have absolutely no doubt that this was wholly unintended by Mrs Grace but there is no doubt that, as a consequence, Mr Taylor believed that the subsequent consultation with him involved little more than going through the motions.[19]There was a second meeting on 17 May when the Respondents, as had been requested, told him of the approximate sums of money that he would receive if he were made redundant.[20]There was a third meeting on 25 May where matters were discussed with him in more detail. In the light of the clear impression that Mr Taylor had gained that the decision had already been made he focussed upon the opportunity that he knew that he would be given to appeal any decision to dismiss him.[21]Mr Taylor accepts that insofar as there were internal vacancies during the course of this consultation process they were advertised on the company notice boards. He accepts that these were available to him. He made no such applications.[22]Accordingly, on 1 June a final consultation took place when it was confirmed to Mr Taylor that he was to be made redundant, that being confirmed in writing on 3 June and a substantial redundancy payment and other payments due to him were made.[23]Mr Taylor did appeal against that decision. It appears that by that time he had obtained the assistance of Ms Garside. I see two detailed and helpful letters of appeal, which I suspect she had a hand in preparing, setting out a variety of reasons why Mr Taylor believed that his redundancy had been unfair.[24]The appeal hearing was scheduled before Mr Smith, the Managing Director, on 12 July. It is clear that in advance of that appeal hearing Mrs Grace briefed him comprehensively about the way in which that hearing should be carried out. It is right to say that she cautioned him against permitting Mr Taylor to have anybody as a representative who was not either a trade union representative or a colleague. She cautioned him about making any comments or decisions there and then but that he should simply listen to what Mr Taylor or his representative had to say and ensure that he understood what was being said and then take time to consider the position.[25]Ms Garside, who is an accredited Trade Union Representative, was permitted to represent Mr Taylor at that appeal. As the notes of that meeting make clear Mr Smith took the greatest of care to go through each of the items raised by Mr Taylor in his letters of appeal to ensure that he did understand what was being said. He then adjourned the appeal to enable him to pursue investigations to deal with all the issues raised and to enable him to come to a conclusion.[26]As Ms Garside points out those investigations involved consulting again with Mr Henderson and Mrs Grace who of course had been the ones who had led to the decision to dismiss Mr Taylor being made, and Ms Garside makes the point that in some ways that could have been seen as tainting the fairness of this appeal process if Mr Smith was simply looking to Mrs Grace and Mr Henderson to provide the justification for the decision that had already been made.[27]Mr Smith however told me when he was being cross-examined that his position was far from that. He gave me an assurance, which I accept, that when he looked to investigate all the matters that Mr Taylor had raised, or that had been raised on his behalf, he was challenging of Mrs Grace and of Mr Henderson to satisfy himself that what they were saying to him accurately reflected the position.[28]Having done so on 4 August he wrote to Mr Taylor giving him the outcome of the appeal which was rejected. Again, I have read through that letter it is the most detailed of letters dealing with each and every point that had been raised by Mr Taylor or on his behalf, and giving a rational explanation in relation to each of those matters, all of which, as far as I can ascertain, being based upon an accurate reflection of what had actually happened during the course of this redundancy process.[29]Turning to the law, I remind myself of the provisions of Section 98 of the Employment Rights Act 1996. It is for the Respondents to satisfy me that the Claimant was dismissed for a potentially fair reason. In this case they rely upon redundancy. Ms Garside helpfully concedes both that there was a genuine redundancy situation and I find as a matter of fact that that was the reason that led to his redundancy. There was some suggestion that Mr Taylor might have been picked out because he received advantageous pension contributions. Mr Henderson denies that he knew about that and I have no reason to doubt that evidence.[30]I then have to go on to consider whether they behaved reasonably in using that as a reason to dismiss the Claimant. I look firstly at the issue of selection, indeed it could have been the case that Mr Taylor could have been pooled with the shift managers which would have lead me to have to consider the criteria used and the way in which they were applied. As I have already found, however, for reasons that I cannot criticise, the Claimant found himself in a pool of one and so selection is not an issue before me.[31]In terms of consultation, I have already found there to have been perfectly sufficient collective consultation with the staff consultation committee. I have found that the individual consultation with the Claimant was blighted by the events of that first meeting and to some extent I accept that that hindered his ability to participate fully in that consultation process. To the extent, however, that the Respondents could be criticised for that it is abundantly clear that Mr Taylor set his stall out to present each and every argument that could be raised, with the assistance of Ms Garside, as part of the appeal process and that Mr Smith fully and meaningfully engaged in that process. Taking the procedure as a whole therefore I am perfectly satisfied that the Respondents entered into meaningful consultation with Mr Taylor.[32]I come to the final issue of whether all reasonable efforts were made to avoid Mr Taylor’s compulsory redundancy. Unfortunately like it or not the Respondents were downsizing. There was a limit to what could have been achieved. In reality the only alternative to compulsory redundancy would have been to find existing vacancies within this business that Mr Taylor was willing and able to do. He was aware of such vacancies, it was open to him to apply for them, he chose, for his own good reasons no doubt, not to. I cannot think that these Respondents could have done more than that. As I have already said Mr Taylor gave this company 23 years service, it is indeed a sadness for his employment to come to an end in this way.[33]I absolutely understand why Mr Taylor feels aggrieved that his 23 years of service came to an end in this way. Whatever sympathy I may have for Mr Taylor the simple fact remains that faced with a decline in business the Respondents had to take steps to address the situation. Unfortunately Mr Taylor was in a role that lead to him being vulnerable to redundancy. Objectively the Respondents procedures were flawless, whatever inadvertent problems arose, and, in reality, there were very few options that were likely to lead to Mr Taylor’s job being saved. I, therefore, have to conclude that this dismissal was a fair dismissal which means that this claim fails.