Mr R Jarvis v De Montfort University (hereinafter referred to as DMU): 2601028/2018
JUDGMENT
The claim, which is one of unfair dismissal, is dismissed.REASONS
[1]The claim (ET1) was presented to the Tribunal by the Claimant on 8 May 2018. It is a claim for unfair dismissal and the Claimant had prepared it himself. In due course a response (ET3) was filed by DMU on 5 July 2018 setting out quite comprehensively why this was a fair dismissal in what is a redundancy/reorganisation scenario. At the time when this claim was brought there was also a claim on similar lines presented to the Tribunal on behalf of Yvonne Hughes who fits into the equation for my purposes in terms of the role she was performing which I shall briefly address. That claim was also discussed before my colleague Regional Employment Judge Swann on 6 December 2018 and he set out comprehensively all the issues. Subsequent thereto the claim of Ms Hughes was dismissed upon withdrawal there having been a COT3 via ACAS. What it means is that whereas originally this hearing was scheduled for 3 days with the case of Hughes to follow on, post the settlement this hearing was shortened for 2 days. As directed by Regional Employment Judge Swann there was a half day reading on day one when this Judge read the comprehensive bundle which is before him hereinafter referred to as Bp (equals bundle page) followed by any relevant page number when I see the need to refer to.[2]I also read in the 3 witness statements. Stopping there it follows that I heard evidence in the following order. First Mr Zubair Limbada (ZL) who is head of financial services for DMU. He had a lead role in the decision to not appoint the Claimant to a role that did emerge in the reorganisation which was that of Cash Page 1 of 8 and Payments Manager. He also took part in the appeal which brings me to the second witness for the Respondent Joanne Cooke (JC). She is an associate Chief Operating Officer and an Executive Director within the DMU but in a separate department from finance in which the Claimant was employed. She heard that appeal hearing on 29 November 2017 which was against the decision of the panel including ZL to not shortlist the Claimant for the role. She upheld that decision and in that sense the appeal failed but she decided that the Claimant should be given an interview for the post. She also recommended that the interview panel be supplemented with at least one further “independent” member of DMU at senior level. This happened and I will come back to it. On 19 December 2017 the Claimant duly had an interview before that panel and failed. Thus his redundancy came into effect and the employment ended on 19 January 2018. The third witness I heard from was the Claimant.[3]The core issues that I have to determine are as follows:-3.1 Pursuant to the Section 98(1) of the Employment Rights 1996 (the ERA), did the Respondent have a genuine reason within the classification thereto for this dismissal, namely redundancy, or was there some underlying improper motive for the downfall of the Claimant?3.2 If I decide on that limb that there was no improper motive and redundancy was the genuine reason, then the case proceeds pursuant to Section 98(4):(a) whether the dismissal was fair or unfair “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 the dismissing the employee, and(b) shall be determined in accordance with equity and the sufficient merits of the case.” FINDINGS OF FACT First issue: redeploymentFINDINGS OF FACT
[4]I can strip away at this stage one issue in relation to the fairness or otherwise. The compass of the enquiry before me inter alia focussed on alternatives to dismissal and in this particular case that would engage the redeployment processes within the DMU. Suffice it to say that I am wholly satisfied that the Respondent acted fairly in that respect. It provided the Claimant with alternative vacancies that he could apply for on a ringfenced basis, certainly in terms of a first interview. Had he wanted it he could have had support from the relevant part of the HR team that deals with redeployment in order to prepare himself for any such application. He could even be assessed by them in terms of skills, aptitudes etc for the kind of post he might be able to succeed in. As it is the Claimant didn’t apply for any of those roles. I will accept that by then he felt it was pointless because of how he felt about what had happened to him in relation to the non selection. Be that as it may, it does mean that I am quite satisfied that the employer did offer and thus comply with its obligations in terms of suitable alternative employment vis the redeployment register. So the core focus that I have to deal with is what was the process by which the Claimant came to be dismissed. Page 2 of 8 The reorganisation[5]I had before me the comprehensive policies of the Respondent including in the context of redundancy consultation which is a usual fundamental of establishing a fair redundancy procedure. From the evidence before me what is clear is that the then Interim Director of Finance, Michelle Holden (MH), undertook a comprehensive review within the financial directorate and particularly focussing on financial services following the integration of 18 Financial Administrators into the then team from another department. She concluded that post the integration there would be 11 established roles at risk within the enlarged team but conversely there would be 17 new posts. These would be essentially at administrative grade, so lower that the Claimant’s grade[6]Into the equation comes the Claimant. He had first of all joined the Respondent via an agency in February 2014. He was established in post as an employee on 2 March 2015. His then role was (see Bp 135) as Treasury Manager at Grade G, reporting to the Head of the Financial Services. He is ZL and who had taken up that post on 1 February 2016. On the flow chart at Bp136 sitting at the same level as the Claimant in the management structure of accounts payable and treasury was the post of Payments Controller which was at a Grade F. That was the role performed by Yvonne Hughes. In the proposed reorganisation of MH both those posts would go. In their stead there would be a new post of Cash and Payments Manager at Grade G. Below that the four administrators would become five , all of whom would report into the new Cash and Payments Manager. I have before me the job description for this new person and the personal spec commencing at Bp 178. Compared with the job description (Bp 89-92) for the Treasury Manager role it is clear that there are significant differences. The primary function of that role really was treasury based fund management; the report line flowing upwards to ZL; thence MH; and then to the relevant governing body panel. It would engage such things as bond offerings via the City; liaising with the Respondent’s bankers in terms of deposits as opposed to liquidity strategy; investments and matters of that nature.[7]The Claimant had strongly critical opinions, based upon his extensive expertise, about the approach the DMU had been taking to fund management historically. For example, he was highly critical of one bond issue and didn’t think that the DMU was organising its financial affairs in a way that was sufficiently income yielding in terms of being able to manage surpluses vis usual expenditure. None of that is relevant to the issues that I have to deal with other than it goes to issues about the Claimant’s range of expertise and in terms of thus why he didn’t get the new role and to which I shall come.[8]The new role of Cash and Payments Manager was very different. The focus of it was primarily upon managing the Accounts Payable team. Despite the Claimant’s efforts to persuade me to the contrary and which was somewhat over complicated, it is actually a very straightforward role. What it entails, and I am entirely with ZL and it fits with the job description and the personal spec, is that you can strip away so to speak some of the “globspeak” and focus on what the core activities are: and the first one is obvious. That would be the need to be able to manage a team whose job was to deal with the payment of invoices. That of course means put simply checking the invoices when they come in against the purchase orders; checking with the appropriate department that the goods have been received and are as per specification; then authorising the payments and Page 3 of 8 putting them through the pay runs via the computer system; then reconciling the same; finally, making reports at required intervals in terms of the level for the purposes of such as cash flow which is part of the overall functions of ZL. So what the role would fundamentally require was a current knowledge of day to day working of an Accounts Payable team as opposed to the sophistication so to speak of higher level treasury financing type functions.[9]The second key requirement was an ability to man manage on a daily basis and including setting people tasks. I notice for instance on the questions that were proposed at the interview the looked for replies included such basic things as organising who opens the post on a daily basis, distributing work to the team, doing so on the basis of ensuring that payments out were done within the required time of the DMU which in that respect is subject to Government remit and can’t for instance therefore play on extended times for payment of customers as does happen with many a Plc.[10]The final one is perhaps fundamental. Clear communication skills which are polite but to the point and don’t obfuscate and muddy the waters. The Consultation Process and further on the rationale for dispensing with the Claimant’s role[11]This cannot be faulted, it meets best practice. As soon as the strategic review had been finalised all those affected were informed. The relevant trade union, Unison, of which the Claimant was not a member, was notified on 15 June 2018. It is to be borne in mind that the numbers affected included the Sports Division of the DMU and which was also under reorganisation. Consultation started circa 2 August 2017. The Claimant himself was informed because of course his existing role was going on 14 August 2017. Why was it going? This was because there wasn’t a need for a full time post in that role. Whatever the Claimant might think I am wholly persuaded by ZL that there wasn’t the need for the kind of sophisticated input that the Claimant would like to have seen. The Respondent’s board was quite satisfied with the conservative approach to finance of the Finance Directorate and it didn’t want to therefore engage in any further sophistication. Thus, the amount of work the role needed was very much reduced. All that needs to be said is that post the Claimant’s departure ZL and a junior member of the team who kept her job, Sheena, have been easily able to cope with that role and perform their mainstream functions.[12]The Claimant was then informed that slotting wouldn’t apply to him. I am well aware what slotting is. It is when there is a role in the new structure which in fact meets the same specification and grade as the role which is going. I have already made plain that this wasn’t the case here and explains why the Claimant wasn’t slotted and inter alia because “the role required different duty skills, aptitude and/or experience in comparison with the existing role”, see Bp 145. So, what it meant was that the Claimant would have the opportunity to have a first bite so to speak at the new role of Cash and Payments Manager in terms of the redundancy policy. But that meant only that if he could get through the short listing process, then he would get a preferential interview. And what is crucial as per Bp 159 reiterated at 198 is the fundamental for the purposes of the appointment policy, which had to be open and not opaque, lest for instance the union might complain that it lent itself to favouritism, namely that anybody applying had to make sure that they covered fully in their application the essential criteria and person specification and that they met it. If the applicant did not, it was made clear and indeed underlined in bold that he or she would not be Page 4 of 8 shortlisted.[13]The Claimant duly made his application. It is lengthy (Bp 192-216). The panel undertaking the shortlisting consisted of ZL and MH. In terms of ensuring that they complied with the protocol it was in that sense something that would be reviewed by HR partner Ms Upexa Mistry (UM) but she would have no input in the actual decision. I accept that evidence because it is well within my knowledge as a highly experienced Judge that in these kinds of reorganisations that that would be the usual function of HR. ZL and MH first did their individual scorings on 28 September 2017 against the essential requirements from the person specification and indeed the desirables and which is in the bundle before me commencing at Bp 219. They then compared and discussed their scorings and which were not out of kilter the one to the other. Again this process is from the experience of this Judge a common and approved process in terms of best practice. Crucially they didn’t shortlist the Claimant in particular because he failed to demonstrate from his application that he met the requirements. Before I come to why, I I found the Claimant as with the other witnesses an honest and honourable man. To turn it round another way I found nothing about his character which in that sense impacted upon the trustworthiness of his evidence. As to ZL what shone through for me is that this was a man who was quiet, composed, professional and consistent. I found nothing about his evidence to indicate that there was any bad motive in terms of his decision making and to which I shall come. As to Joanne Cooke (JC) at the appeal the Claimant persuaded her that he had got more to offer than he might have put in his job application. Thus, although she dismissed his appeal in terms of the integrity of the failure to shortlist him, she decided to recommend he be interviewed as the post had yet to be fulfilled. This happened. Of course, such a decision flies in the face of her being motivated against the Claimant. As it is he failed the interview for reasons to which I shall come.[14]Reverting to his original application, the following shines through. The Claimant who by the time of the dismissal would have been 67 had a long career at high levels in finance in the private and thence for a short term nationalised but then privatised Rail and Royal Mail sectors. The work that he did as his career progressed was very high level. For Rolls Royce it was inter alia running a serious fraud investigation team. When he moved across into the rail sector, to what ultimately became a privatised business known as ABB and which was involved with rolling stock for the railways I will again accept that he performed high powered roles. Part of what he had to do was to manage the business in a cash flow crisis: over stocked, paying out too much, not getting enough in. And he did the classic which was to stall paying invoices, renegotiate payment terms, hold back on expenditure, streamline stock control. And then when he went to Royal Mail inter alia again involved in financing including large scale leasing arrangements. Finally, he was employed at a housing association in London performing a similar financial control role. And then I have already dealt with what he dealt with when he joined DMU and up to the reorganisation.[15]At first blush it follows that what he had been doing was way above the pay grade for what was now required albeit I have no doubt that he believed that he had everything to offer which fitted the job requirements. The problem is that he had to show DMU that he had those skills. In other words that he could come out of the mindset of the former high flyer and be able to manage on the ground floor day to day much more mundane type tasks. I am with ZL and JC, in his application he doesn’t address they key requirements but instead sets out at great length his previous career. And so he doesn’t tailor that experience to the Page 5 of 8 key requirements of the new role and crucial to which would be the ability to communicate in clear simple terms and manage the function on a day to day basis meeting the criteria upon which I have touched. In other words is there something perverse about ZL to that effect that raises an inference of an agenda to improperly do the Claimant down? Is the decision perverse and without objective justification and thus so as to make their decision unfair? Has JC got it wrong when that’s her evaluation at the appeal? And where does MH fit into all of this? The Claimant is not alleging she had any bad motive against him. Indeed, she praised him for some of his efforts when working in treasury. What it means is that the Claimant unfortunately simply failed to demonstrate in that all important application that he had addressed those core criteria and thus paid heed to the fundamental that he do so in the guidance to which I have referred.[16]The Claimant has eluded in his statement, but has never gone further than that, despite every opportunity to do so before me to spell out really how ZL was motivated against him. So, at most it is an inference of a clash of views over management of money at DMU. But that of course would bring the Claimant also potentially into a clash with MH and her predecessor Mr Shooter. The other point however is that the Claimant never raised any of this before JC. His appeal to her against the failure to shortlist him and which is before me at Bp 234 makes no such reference. As to the appeal hearing (Bp 65-271) the same applies. It follows that JC never had on the agenda that there was something improper about the motivation of ZL in particular in the shortlisting process that somehow or another undermined the integrity of the process. I bear in mind that she dealt with some 5 appeals in the reorganisation process. She is a very experienced member of DMU’s senior management team. Indeed, she’s risen up through the ranks at DMU having been employed by it for 29 years. In one of those appeals where she found there were shortcomings in the interview that had taken place, she in fact appointed an entirely fresh panel. Thus, I have no doubt that if something had been raised before her about improper motive, then she would have explored it thoroughly. And if she had concluded there was something in it that she would have appointed a fresh panel; but there wasn’t.[17]It follows that there was nothing unfair about the scoring that I have referred to commencing at Bp 219 and the non selection. So this leads me to the being given an interview as a consequence of the appeal. The interview[18]At the Claimant was saying he had more to offer in terms the role than might have been apparent from the application, and in particular that he had direct frontline accounts management experience when at ABB, JC decided to initiate an interview. Because from her findings there was nothing untoward about the scoring and thus non selection by ZL and MH they would be on the interview panel. That decision given my reasoning so far is not unfair to the Claimant. What she did however do was to recommend there be at least one further panel appointment. What is critical to me is that the Respondent accordingly selected in particular Yasmin Ali. She is Head of Strategy and Planning, Strategic International Partnerships. She is at senior management level. She had no input at all in the reorganisation and because it did not affect her department. She had no detailed knowledge of the Finance Directorate. It is suggested by the Claimant, and no more, that she would be unable to assess at interview the required for the role. I am again with JC in particular and inputting as I do again my extensive experience as an employment Judge. There is no reason why a senior member of management of a given business would be Page 6 of 8 unable to meaningfully participate in the interview panel for a potential post outside his or her own team. It is an expected competency of senior management. Furthermore, Ms Ali had before her the job spec/criteria documentation; thus, it is within the expected range of management competencies that she would be able to competently perform on the panel including evaluating the Claimant’s answers to the panel’s questions. I have heard nothing to the contrary. The final member of the panel actually was Ms Mistry (UM), the HR partner in DMU to whom I have previously referred. Again, as she had previously only been performing an advisory role in terms of review of the processes, absent evidence to the contrary and I do not find that it was unfair that she was placed on the panel. I have no such evidence other that an unsubstantiated inference.[19]So that brings me to the actual interview. It took place on 19 December 2017. The Claimant was first of all required to give a presentation. Put at its simplest he had 10 minutes in which to explain to the panel how in terms of managing the cash flow in terms of in particular accounts, he would be able to advise DMU including a strategy to deal with the ramifications of Brexit and the cap on student fees. Put at its simplest I am entirely with ZL that the panel didn’t want to hear an in-depth analysis of Brexit, issues of Article 50 and all of that. They could read that for themselves; and indeed, I would be surprised even in December 2017 if anybody of any intelligence would not have been aware of the issues and the implications. What they wanted to know was how he would risk manage the implications at DMU and particularly in accounts ie put simply as ZL put it in terms of an outline anticipated answer: “We are probably going to see a decline in the value of the pound sterling, how will that affect our income ie foreign students. We are probably going to see an increase in the costs of imported supplies because of the conversant impact of a decline in sterling. With the likely cap on student fees and possibly Government restrictions due to economic fall out we may also see a decline in UK income. Thus we will need to do the following…”[20]The problem with the Claimant’s presentation, which is before me starting at Bp 275, is there is so much of it on Brexit in terms of the political dimension rather that focussing on DMU. Presentation pages as to the nitty gritty only appear at the back. And I heard from ZL, and it fits with the feedback that the Claimant got (Bp305), that although he could have had time management training for the interview, but conversely the Claimant in declining has told me how experienced he is over the years in giving presentations, that by about the eighth minute he was having to be told by MH that he had best hurry up because he had only got 2 minutes left to go. And he hadn’t at that stage delivered on the core issues. Thus he failed to give the majority of the on point presentation focussing on what the panel wanted to hear. On this particular topic ZL has the clearest possible recall. His witness statement covers it comprehensively commencing at paragraph 74 onward. Conversely the Claimant says that he can’t believe that he would not have addressed the core points of the question; but he can’t remember.[21]Now I come on to the pre-prepared panel questions which he was asked at the next stage of the interview. Also, had been prepared the model answers against which the panel would score his actual answers. This documentation is all in the bundle before me. This would enable the panel to assess if he met the criteria. ZL in his paragraphs in his statement on this issue details why the Claimant failed in his answers. Essentially, he was back on his historical accomplishments. So, he was displaying the same mindset as per his written Page 7 of 8 application as I have already referred to. Tragically perhaps for the Claimant, the weight of the evidence is that he just could not get out of the mindset that he was so qualified for this role that the panel would really just pick it up straightaway and that he wasn’t really there to sell himself. The problem is that he was. As to these shortcomings at the questions stage, as with the presentation the Claimant doing his best says well I would have covered the questions but can’t remember if I actually did. So I have one clear witness, ZL, on this fundamental. I have another witness, the Claimant who just can’t remember.[22]Finally, I then have the feedback which is consistent with the evidence that ZL has given before me. Redeployment[23]As per the DMU policy the Claimant received details of vacancies identified as suitable for him. Had he applied, then again he would have got a preferential interview provided his application demonstrated that he met the criteria. He applied for none.Conclusions
[24]I am wholly persuaded, far beyond a balance of probabilities insofar as it matters, that the Respondent had a genuine belief that this was a redundancy situation and that the Claimant had failed to demonstrate that he fitted the which had been created.[25]Was the dismissal within the range of reasonable responses of an employer of the size and administrative resources of DMU (very large) having regard to equity and the substantial merits of the case. I have addressed all the issues. Given my findings, I conclude that the Respondent did act within the range of reasonable responses. It follows that the dismissal was fair.