Mr Graham v The Governing Body of Felpham Community College: 2405043/2017
JUDGMENT
[1]The Claimant’s claim for unfair dismissal is dismissed.REASONS
[2]The Claimant was formerly employed by the respondent as a Design and Technology Technician (“DTT”). It is clear, however, that he regularly involved himself in a range of activities that went beyond those that might strictly be required and that he was a considerable asset to the College.[3]His role was 0.8 FTE. He was a member of a team which included a site manager, a senior caretaker, a caretaker (Mr Heffron) and a grounds maintenance officer (Mr Evans).[4]The Headmaster of the College is Mr Anstiss. During the course of the Autumn term 2016, he was in discussions with his finance officer about the budget for the 2017/18 academic year. It was clear that the College faced a deficit of some £160,000 and that savings would have to be identified. Mr Anstiss’s position was that the deficit could only sensibly be avoided by cuts to staff costs.[5]In December 2016, he contacted Mrs Emma Priest to seek her assistance with a proposed re-structuring exercise. Mrs Priest works for Capita. Capita provided contracted-out human resources services for West Sussex County Council, the body with ultimate responsibility for the College.[6]Mr Anstiss developed a proposal for a restructure in or about January 2017. It was wide-ranging. Some roles were entirely removed; others were merged; still others preserved unaffected. Mr Anstiss decided that the role of caretaker could be combined with that of DTT.[7]The proposed new structure was put first to a staffing sub-committee of the Board of Governors on 8 February 2017. Mrs Quiroga was a member of that subcommittee. She told the Tribunal that the governors on the sub-committee approved the proposal. The proposal was then put to the full board on 15 February 2017 and was again approved.[8]The staff were informed of the proposal on 28 February 2017. The Claimant first heard about it at what he described as a “satellite meeting”. This was a meeting with his team that took place in the caretaker’s workshop. He was unhappy with what he was told. There were, broadly, three areas of concern. First, Mr Anstiss spoke about needing to lose 0.8 FTE. The Claimant did not think it was coincidence that he was 0.8 FTE. He considered that Mr Anstiss had some lingering hostility arising from a dispute that arose between them a number of years previously. However, I accepted Mr Anstiss’s evidence that that was not the case. The previous incident was of historic interest only, and there was a genuine business rationale for combining the two roles. Mr Anstiss accepted that the reference to 0.8 FTE was not, as it were, a coincidence. 0.8 FTE represented the saving that could be achieved by combining the roles but it was that saving and not any previous dispute that was the reason for the decision to combine them. The second matter that concerned the Claimant was that Mr Anstiss did not have at his fingertips the precise monetary saving that the combination of roles would generate. I do not consider that there is anything sinister in that. The third matter was that at an “all staff” meeting that took place shortly afterwards, on the same day, it became clear that only the Claimant and Mr Heffron were at risk, whereas that had not been made clear earlier. Again, I am unable to draw any adverse conclusion about the good faith of the process from that fact.[9]On 1 March 2017, the Claimant and Mr Heffron submitted an alternative proposal. The proposal was that the senior caretaker, Mr Heffron and the Claimant should all be responsible for DTT, caretaker and ground maintenance duties. Mr Evans, the grounds maintenance officer would then be made redundant. Considerable thought was put into the plan and it deserved careful consideration. It was considered at length by the Governors’ staff sub-committee on 20 March 2017 and rejected by letter dated 5 April 2017. There were three reasons given:(1) The existing proposal would minimise disruption to the existing structure;(2) Having a distinct job description for the proposed DTT/Caretaker role would “ensure a greater level of accountability and co-ordination”; and(3) It would be too expensive to consider training the whole team in everyone’s role. It is unclear what the rationale behind the first ground is. It seems to amount to saying that the alternative proposal would involve more roles changing, which is correct, but if such change produced the material benefits for which the Claimant contended, it is not obvious why less change would be a good in itself. It is equally unclear what the burden of the second ground of objection is. On the Claimant’s proposal there would need to be new job descriptions which might be expected to deliver equivalent benefits. It was on the third ground that Mr Anstiss and Mrs Quiroga concentrated. It was assumed that training two caretakers to perform the DTT function and the grounds work would erode some of the financial benefit of terminating Mr Evans’s employment. Mrs Quiroga was clear in her evidence that this was largely assumed, but it seemed to be a genuine assumption and one that was not unreasonable in all the circumstances.[10]The Claimant was interviewed on 8 May 2017. His score was lower than that of Mr Heffron. As a result, Mr Heffron was offered the DTT/Caretaker role. The Claimant did not appeal. That was not because he felt that Mr Heffron, judged objectively, was necessarily the better candidate but because Mr Heffron had longer service and lived on site. He thought it would be unfair to try to “unseat” Mr Heffron by means of an appeal. It reflects well, therefore, on the Claimant that he did not seek to challenge the decision.[11]The Claimant then asked to be considered for the role of grounds maintenance officer. He wanted the Respondent to consider “bumping” Mr Evans. The Claimant considered that Mr Evans had got his job inappropriately. There had been no advertisement and he was, the Claimant suggests, appointed because he was a friend of the Site Manager’s son. The Claimant had, at some point, performed all of the duties that Mr Evans was tasked with and in addition had taken on responsibility for maintaining the grounds equipment – something he suggested was beyond Mr Evans’s capabilities. He also had much longer service than Mr Evans.[12]The Claimant was interviewed on 22 May 2017. Mr Evans was successful in seeing off the bumping challenge outscoring the Claimant by 84 to 39 points. This enormous gap arises from the criteria applied: qualifications; experience; and training and the weight that they were given: x1; x3; and x2 respectively. The criteria and weighting very obviously favour an incumbent. That was something that troubled me considerably but was not a matter I ultimately considered represented unfair treatment. First, because the same criteria and weightings were used for the DTT/caretaker role and the Claimant raised no complaint about them in that context. The fact that those criteria were used consistently and had been used before a bumping application was even envisaged meant that I could not conclude that the criteria had been “fixed”, as it were, to produce a particular outcome in the bumping scoring exercise. Second, because the criteria and weighting were not matters that the Claimant complained about specifically and it would not be appropriate for me to take on his behalf points that merely concerned me.[13]Turning to what the Claimant does complain about, he says first that there should have been a skills test that would have allowed him to demonstrate that he had the skills for which the existing criteria were effectively proxies. Whilst a skills test would have been an entirely sensible course of action, it does not follow that a reasonable employer might decide to take a different path. I agree with the Respondent that the CV and interview process was capable in principle of producing the information that they needed to produce a fair decision. The Claimant also complains that Mr Evans was irregularly appointed. Even assuming that that is right (and I am some considerable way away from accepting it), that would not, in my view, affect the reasonableness of the bumping process. The criteria that the Respondent identified are appropriate (or are, in the absence of complaint about them, to be taken to be) and they do not allow room for what is, in my view, an extraneous consideration. That same answer applies to the Claimant’s complaint that he was involved in a wide range of other activities (e.g. set making and frame-making). Those were valuable to the College but were not part of the grounds maintenance officer role and the criteria reflected the role and not the added value that the Claimant might otherwise bring. A reasonable employer could elect to focus on criteria relevant to the role in issue. Similarly, the Claimant had much greater length of service but I consider it was open to a reasonable employer not to adopt that as a specific criterion.[14]The Claimant appealed the decision to keep Mr Evans in role. The appeal meeting took place on 14 June 2017. Mr Anstiss gave evidence. Mrs Priest gave HR advice and two governors who had not been directly involved in the decision challenged conducted and determined the appeal.[15]The Claimant complains that during the course of the appeal Mr Anstiss lost his temper, shouted and banged the table. Mr Anstiss denies that. Mrs Priest remembers him losing his cool but no banging of the table. Even if this occurred in the way the Claimant recalls, it would be grounds for criticism of Mr Anstiss but not, I consider, of the appeal panel or of their decision. The Claimant also complains that a supportive letter from colleagues was kept from the governors considering the appeal but accepted he had provided them with a copy and that they had it before them.[16]I can see nothing unfair in the appeal.[17]The Claimant was given notice and put on garden leave. He received his statutory redundancy entitlement and left a little before what would otherwise have been his EDT to take up another job. Issues[18]There are two questions identified at the PH on 7/12/17 for consideration:(1) What was the reason for dismissal; and(2) Did the Respondent adopt a fair procedure? The latter question is a compression of the true question posed by ERA 1996 s. 98(4). I have had the statutory language in mind.[19]In light of the findings made above I conclude:(1) The reason for the Claimant’s dismissal was redundancy; and(2) The Respondent adopted a fair procedure. The dismissal was fair because, in the circumstances (and having regard to the equity and substantial merits of the case), the Respondent acted reasonably in treating redundancy as a sufficient reason for dismissing the Claimant. I therefore dismiss the claim.