Mr J McGill v VGC Leeds Ltd: 1804791/2019
JUDGMENT
The claimant’s claim for unfair dismissal is hereby dismissed.REASONS
[1]Claim The sole claim in this case is unfair dismissal.[2]Issues The sole issue in this case is whether the claimant was unfairly selected for redundancy because of what had happened concerning the claimant during the period of his employment with the respondent. The claimant accepts that the reason for his dismissal related to redundancy.[3]The law The Tribunal has to have regard to section 98 of the Employment Rights Act 1996 and in particular subsection (4), which states as follows: “Where the employer has fulfilled the requirements of subsection (1)” (and subsection 1 is where the employer shows the reason for the dismissal which we know is not an issue in this case because the reason is redundancy) “the determination of the question of 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 a sufficient reason for dismissing the employee, and(b) shall be determined in accordance with equity and the substantial merits of the case.”[4]The facts The Tribunal having carefully reviewed the evidence (both oral and documentary) before it finds the following facts (proved on the balance of probabilities): 4.1. The claimant was employed as an electronic gaming team leader at the respondent’s Victoria Gate casino in Leeds from 19 December 2016 until his dismissal for redundancy on 14 June 2019. The respondent employed between 160 and 170 employees on that site at the time of the claimant’s dismissal. 4.2. The claimant was not subject to any disciplinary action in his employment and in his own words following a re-organisation in September/October 2017 “I worked in the same way until my dismissal”. In the only “appraisal” the claimant had during his employment, described by the respondent as a “coffee chat”, he was described by his then line manager Andrew Phillips in a positive manner. 4.3. The claimant saw his employment history differently and there were a number of issues which concerned him and which he raised in one way or another with the respondent. 4.4. The claimant plainly did not get on with his first line manager David Dalziel, with whom he had a mediation in June 2017 and then, in September 2017, the claimant was the subject of unpleasant email correspondence involving Mr Dalziel, following which a re-organisation took place on 11 September 2017, the claimant becoming supervised by Mr Phillips instead of Mr Dalziel. 4.5. The claimant raised a grievance against Mr Dalziel on 2 December 2017. 4.6. Clearly the claimant could not shake Mr Dalziel off as after the reorganisation the claimant was criticised by him relating to a gaming machine in October 2017 and then Mr Dalziel spread rumours about the claimant mistreating staff in January 2019, which turned out to be unfounded. 4.7. This was against a background of the claimant complaining that he was experiencing insubordination from his staff over 2018 and 2019. 4.8. The claimant also raised a grievance against another member of staff, Christine Arlott-Clay, in December 2018 and she evidently returned the compliment. 4.9. Hanging over all this was the claimant’s feeling that he did not have the support of management over the period July 2018 to March 2019. 4.10. This was all plainly getting too much for the claimant and on 27 March 2019 the claimant wrote a letter to Savinder Flora, a human resources employee of the respondent. It seems that Miss Flora was out of the office when the claimant wrote the letter so the claimant took it upon himself to copy the letter to Patrick Noakes, the managing director of the respondent. There is no doubt that that communication, which contained a number of complaints, including those at paragraphs 4.7, 4.8 and 4.9 above and Mr Dalziel’s suggestion that the claimant was mistreating staff. There is also no doubt that that communication was intended for human resources. The claimant also stated in the letter that all this was causing him mental health issues and that the workplace did not care for his well-being. 4.11. In Miss Flora’s absence Mr Noakes sent an acknowledgement to the claimant and set out the self-certification process for sickness. At no time did Mr Noakes say that he personally would deal with these matters and he expected and later checked that they would be dealt with down the line. The claimant had returned to work within a week, without having sought medical advice. 4.12. Mr Noakes had no further involvement with the claimant save for a brief passing conversation with the claimant on the gaming floor. 4.13. Unhappily by 29 May 2019 a number of posts in the respondent were at risk of redundancy. The claimant was of the view that he had been singled out because of his history, not by his line managers, Mr Dalziel, Mr Phillips or a Mr Barrow, but by Mr Noakes, the claimant feeling that the letter of 27 March 2019 caused his redundancy. The claimant is of the view that the respondent plotted his exit and specifically Mr Noakes did. Indeed, the claimant consulted his brother, who was of the view that the claimant was tricked into “voluntary” redundancy. 4.14. Against this background the claimant accepts his position was redundant. 4.15. There were two unfortunate incidents whereby the forthcoming redundancy consultations, which led to seven posts being at risk, were exposed other than through the formal redundancy process. One of these involved the claimant but the claimant did not wish to make an issue of that. 4.16. On 29 May 2019 Mr Noakes personally explained to the claimant the process and handed him a sheet with details. It was at this meeting that the claimant said he was not surprised because he had heard it from a customer a week before (see paragraph 4.15). 4.17. It was Mr Noakes who took the consultation meetings with the claimant. The first of these was on 30 May 2016. The claimant wanted to accelerate the process to save his rent, because he was considering going to live in Newcastle, but as the claimant was due to go on annual leave the next consultation was arranged to take account of that on 11 June 2019. 4.18. At the second consultation meeting the claimant felt his role should not be in the process but did not have other proposals. The claimant was given a vacancy list and although there was some discussion about alternative roles the Tribunal finds as a fact that at the time none were suitable for the claimant and at that time neither did the claimant. At this point the claimant raised his grievances and said he would put his representations in writing. Mr Noakes wanted the claimant to bring matters to the table but the claimant wanted confirmation of redundancy before “taking things forward”. 4.19. On 12 June 2019 the claimant re-sent his letter of 27 March 2019 with a copy of the outcome of his grievance dated 11 September 2017, some evidence of the conversation with the customer about the redundancies, reference to alternative roles, together with supporting information. 4.20. The third consultation meeting took place on 14 June 2019. The claimant was resisting redundancy for his role. The claimant now wanted to avoid a Tribunal. The claimant said he was being discriminated against because he had raised issues in the workplace, leading to mental health issues. Instead of help, he was getting dismissal. The claimant elected to pursue his grievance externally, that is the grievances in the past. After an adjournment in that meeting the respondent through Mr Noakes came back and terminated the claimant’s employment by reason of redundancy and this was confirmed in a letter dated 17 June 2019. 4.21. The claimant appealed on 20 June 2019 and on 26 June 2019 Duncan Bachelor, the finance director, conducted the appeal meeting. The decision to dismiss the claimant was upheld by a letter dated 5 July 2020.[5]Determination of the issues (After listening to the factual and legal submissions made by and on behalf of the respective parties): 5.1. Did the respondent act reasonably in treating the claimant’s redundancy as a sufficient reason for dismissing the claimant? 5.1.1. The claimant accepts he was made redundant, so in the first instant did the respondent follow a fair procedure? 5.1.2. It is clear that there was a problem with leaks of the redundancy process, but the claimant did not wish he said to make an issue of that very early in the process. The Tribunal is not of the view that that disturbs reasonableness. 5.1.3. What we had was an explanatory note of the consultation notice handed over by the managing director, two consultation meetings and a final consultation meeting and a list of vacancies, albeit unsuitable and an appeal. 5.1.4. On the face of it there is nothing to transgress the reasonableness of the respondent’s conduct. 5.2. However, the case must be determined in accordance with equity and substantial merits of the case. 5.2.1. There is no doubt that the claimant, for whatever reason, met many challenges in his time working for the respondent. 5.2.2. The claimant has a record of raising each and every item, which I have recorded, as facts. 5.2.3. The claimant raised a number of them again on 27 March 2019 and again during the consultation process, in his appeal and at this Tribunal. 5.2.4. On the other hand, the claimant accepts that his role was redundant and he barely attacked the redundancy process in his case, which goes to the root of the reasonableness of the procedure. 5.2.5. I have to balance whether all of the claimant’s “grievances” disturb or interfere with the redundancy process and I find that they do not. It was not a rigged redundancy. It was a fair and reasonable one. 5.2.6. Therefore, the claimant’s claim is dismissed.