Mr A I Laird v Patrick Trinity Church of Scotland: 4103175/2022
JUDGMENT
EMPLOYMENT resisted accepted that the claimant was dismissed; their position isREASONS
TRIBUNALS (SCOTLAND) and was fair. The claimant TRIBUNAL that the claimant on 9 June 2022, The Solicitor Mr D Di Paola - Represented Respondent In Person Claimant by: was , In the event the Tribunal is satisfied that the claimant was dismissed for the there is an issue as to the fairness of It is the claimant’s position that the respondents failed to warn or consult with him prior For the respondent’s evidence was given by the Rev Timothy Sinclair of Patrick Trinity Church of Scotland (the Church); Ms Janice Kemp, an Elder and trustee of the Church; and Mr Neil Murray and Elder and trustee of the Rev Timothy Sinclair is the resident minister at the Church, which is a part of include the spiritual direction and the organisation of worship of the Congregation. The Kirk of Session is a body which has charitable status. The Kirk of Session oversees the operation of the The claimant, whose date of birth is 10 April 1960, was employed by the respondents as an Organist from April 1998. His contract provided that he played both the piano and organ at church services. The organ was almost always played at Sunday services, although other music was also played. The These comprising of Elders of the Church, who are also trustees of the Church, would play the organ and piano as required at Sunday services. The claimant claimant’s income from that employment was agreed to be £49.37 per week. They all perform The respondents have three employees in addition to the claimant. the dismissal in terms of the process adopted by the respondents. Church, and is the court of the Church at the Congregational level. different functions to the claimant, involving different skill sets. are a Youth Worker; a Cleaner and an Administrator. The claimant gave evidence on his own behalf. the Church of Scotland. His responsibilities The parties joined a bundle of documents. potentially fair reason of redundancy, to dismissing him. Findings in Fact 4103175/2022 Church. 10. 4. 5. 6. 7. 8. 9. 20 25 10 15 25 20 io 15. 14. 13. 12. 1 1 . Ms Kemp would also be in attendance. meet him. The claimant was not advised of the purpose of the meeting or that Rev Sinclair emailed the claimant on 29 January 2022 (page 101) asking to were initially left in the hands of Rev Sinclair and Ms Kemp. by the Kirk of Session to their Finance Team, and to Rev Sinclair. Responsibility consideration meaning they became more involved in the Church. There was also a financial services, which should be provided by lay volunteers involved with the church, considered that there should be a variety of instruments and vocals at Sunday organ music the music and worship, and that the permanent post of organist and regular forward the Church had to be flexible and creative in its forms of provisions of practice of worship. in terms of declining numbers of attendees at the Church and the role and considered to be a post-Christian culture and the changes it was experiencing reflections longer considered organist had been an excellent fit for the Church for many years, it was no The reason for this decision was that while it was considered the post of (2)(1) motion to make the post of organist redundant in the following terms: churcITs purpose and vision. members There were ongoing discussions within the Church involving Rev Sinclair, At a Kirk Session meeting on 1 9 January 2022, the Kirk of Session passed a handled fairly and properly consultation with CoS Law Department. The Elders and members of the Finance Team ensure that this is a process that has various stages, in consultation with the post holder. Make redundant the post of organist. In practice this means beginning of the Kirk Session in the leadership of the Church on how to respond to what it in that the Church was operating at a loss. at Sunday services for implementation to be a good fit. This had emerged from a series It was considered that in a modern environment about the future form of worship, and the of the redundancy was not consistent process was allocated with this. Matters It was going and of suggestions in writing. He told the claimant that the next part of the process with the claimant about changes in relation to worship music, which had become an The meeting of 31 January 2022 was a very intense meeting and a very difficult one for the claimant, who had come to the meeting in anticipation of discussing music for the church. No notes of the meeting were taken and the The meeting took place on 31 January with the claimant, Rev Sinclair and Ms as part of the of the three other post holders, who all did different types of work. The work Rev Sinclair began the meeting by expressing sympathy for the fact that would be difficult for the claimant to hear this, but that the Kirk Session had taken the decision to begin the process of making the post of organist redundant. Rev Sinclair told the claimant that it was no longer felt that organ music was a good fit for the Church’s worship. He told the claimant that there did not consider that there was any alternative to redundancy. Rev Sinclair told the would be that he would receive a redundancy notice and he explained what would be paid by way of redundancy pay and notice pay. He told the claimant The claimant told Rev Sinclair that he did not wish Mr Murray to be involved against him to the effect that the claimant had told a member of the Parish issue with at least one other parishioner, which Mr Murry sought to resolve. redundancy process, as it was not considered that he had the skill set required claimant that he had a period of 7 working days to make any alternative in the process as he believed that Mr Murry had made a false accusation No notes were taken of the meeting, which lasted for around over an hour. which the other three employees did was considered to be essential.• were no suitable alternative vacancies and that the respondents In October 2021, Mr Murray had been involved in a discussion who was identified that he could appeal the decision to make him redundant. This was not a conduct or disciplinary matter. was the only person that he had been stabbed in the back. Kemp attending. The claimant 16. 17. 18. 19. 20. 21. 22. '20 25 30 5 io 25 20 15 10 26. 25. 24. 23. Murray, Ms Burnside, The claimant’s (3)(2) (1 ) of appeal: him, which he did. His letter of appeal (page 64) identified the following basis The claimant was advised that he had the right to appeal the decision dismiss avoided’. alternative employment. in which redundancy decided to confirm the redundancy of the role. Party Trinity has explored ways considered As you know, proposed changes mean that the role of Organist was being employment as a result. has decided to make redundant the role of Organist and terminate ‘I am writing to confirm that Patrick Trinity Church of Scotland (Party Trinity) February 2022. The letter stated: The claimant The claimant did not make any written suggestions to avoid redundancy. discussed. claimant did not receive any correspondence piano. and understand The claimant’s contract provided for him to play the organ and piano meeting he would arrange to have been accompanied; Ms Kemp will be there, and had he been aware of the purpose of the January he thought it was to discuss church music. He did not know That the no consultation; when the claimant went to the meeting of 31 aware that his post was being considered for redundancy; That and no time prior to the meeting of 31 st January was the claimant employment for redundancy Unfortunately we have not been able to identify any suitable received appeal was dealt with by three of the Church Elders, Mr and Ms Roud. could be avoided, how that was no longer a need for him to play the for you or any way which redundancy a letter dismissing and following Advice was taken about whether Mr and the possibility consultation after it confirming what had been him as redundant, Party Trinity and Page 5 of alternative could dated your has be Murray should be involved in the appeal, but the view was taken that there The appeal hearing took place on 24 February 2022. The claimant was At the appeal hearing, the claimant reiterated that he was unaware of the purpose of the meeting of 31 January 2022. He also stated that he did not alternatives or to submit comments and proposals. The claimant advised that and Ms Kemp separately, asking for their account of the meeting. They both confirmed that they had told the claimant that he had a period of seven The appeal on 31 January 2022, which in their view supported the accuracy of what they concluded that at the meeting on 31 January 2022 the process was clearly to the claimant and he was informed that he had until 9 The appeal committee also found there were no new roles planned in the music of his employment, which came to an end on 5 May 2022. The claimant was also Mr Murray produced a summary note of what was discussed at the appeal, know that he had a period until 9 February 2022 in which to suggest Further to the Appeal meeting, Mr Murray contacted both the Rev Sinclair, committee also looked at the advice which had been given prior to the meeting The appeal committee decided to reject the appeal, that this was confirmed to the claimant in a letter dated 3 March 2022. The appeal committee he understood that he was being told that he was being made redundant. February 2022 to make any suggestions for alternative to redundancy. of the termination working days in which to make written representations. which was sent to the claimant on 27 February 2022. subsequently paid his statutory redundancy payment. notice was nothing to prevent him hearing the appeal. accompanied by a family member and a friend. were told had been said to the claimant. was given 12 weeks’ type such worship of the churth. communicated 32.• The claimant• 29. 27. 28. 30. 31. 10 15 20 25 25 20 15 10 40. 39. 38. 37. 36. 35. 34. 33. Note on evidence 4103175/2022 this information set out to mislead the tribunal. On balance the Tribunal was persuaded that in that he did not form the impression The Tribunal did not necessarily find this an easy conflict to resolve, not least, the evidence of Rev Sinclair and Ms Kemp, that the claimant had told this. It was the claimant’s evidence that no such information be given to him; it was redundancy. within which to make written representations the meeting on 31 January 2022 that he had a period of seven working days Tribunal had to resolve. That was whether Rev Sinclair told the claimant at There was however a significant the process because of alleged false allegation. at the meeting of 31 January 2022 that he did not want Mr Murray involved in be attended by Ms Kemp. Nor is it in dispute that the claimant told Rev Sinclair given notice of its purpose and that he was not advised that the meeting would that the claimant was invited to the meeting on 31 January 2022 without being A good deal of the evidence was not in dispute in this case. It was accepted of the fact that he is retired and not looking for work, and his level of savings. The claimant did not claim benefits as he was not eligible to do so on account that date. 2022, which means that he will not suffer anu ongoing loss of income The claimant has managed to secure a permanent job, starting on 1 October he earned £737. and managed to secure a number of assignments, from which it was agreed After the termination of his employment members of the church since the termination of the claimant’s employment. The Church has not played organ music since the claimant’s employment came to an end. Music for Sunday services have been provided by volunteer had been given to the claimant, albeit it had not been t area of dispute in the evidence which the that any of the witnesses in this case the claimant took steps to find work, or comments on how to avoid from identified to him as a consultation period. In reaching conclusions of the Tribunal attached particular weight to Ms Kemp’s evidence as to what was convincing, and it corroborated Rev Sinclair’s evidence on the same point. In There was also a dispute as to what the Kirk of Session had decided with contended the decision had been made to make him redundant and he was which involved a process which had to be Having regard to the terms of the Motion passed by the Kirk of Session the redundant, with a recognition that the respondents would have to follow a The Tribunal was satisfied that the claimant was told that the decision was made to make the post redundant, and that was told that this was the beginning of the meeting on 31 January. This conclusion was supported by been met in this case. He also submitted that dismissal was fair, applying the said about the claimant having a period of 7 working days which to make on this was clear and reaching its conclusion the Tribunal also take into account the date of issue of letter of dismissal by reason of redundancy is consistent with the claimant having been given a period of 7 working days which to make written representations, as are the terms of that letter to extent they refer to a period regard to the Organist post and what the claimant had been told. The claimant told that at the meeting; the respondent’s witness suggested it was a decision Tribunal was satisfied that they took a decision to make the post of Organist Ms Kemp’s evidence to the effect that what was communicated to the claimant Mr Di Paola took the Tribunal to the relevant law, and submitted that dismissal was by reason of redundancy, the statutory definition of redundancy having Page 8 was that that the decision had been made to make the post redundant evidence Ms Kemp’s to make the post redundant written representations. redundancy process. Respondent’s submissions conducted fairly. of consultation. Submissions * 41 . 42. 43. 44. 15 20 25 30 5 io 20 15 10 48. 47. 46. Consideration 45. Claimant’s submissions Section 98(4) provides: (2) employee is fair or unfair, it is for the employer to show — In determining Section 98 provides: to be unfairly dismissed. Section 94 of the Employment Rights Act 1 996 (the ERA) creates the right not been given that opportunity he would have made proposals. opportunity to suggest alternatives or information on which to do so. Had he not know in advance of the purpose of the meeting and was not given the particular, the decision had been made to make his post redundant; in summary that there had been inadequate The claimant took the Tribunal to the salient points in evidence and submitted 42. reduced in line with the principles and Polkey vAE Dayton Services 1 989 ICR Tribunal found the dismissal to be unfair, then compensation principles in Williams v Compair Maxim 1982 ICR 156. In the event (c) A reason falls within this subsection if it— (b) (a) is that the employee was redundant, of an employee holding the position which the employee held. other substantial reason of a kind such as to justify the dismissal that it is either a reason falling within subsection (2) or some dismissal, and the reason (or, if more than one, the principal reason) for the for the purposes of this Part whether the dismissal warning and consultation; should he did of an of the be in (1), the (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a and the The burden of proof rests for the respondents to establish the reason for dismissal. In considering the application of Section 98(4) the burden of proof the reason for the Tribunal had regard to the definition of For the purposes of this Act an employee who is dismissed shall be if the dismissal is to carry on the business for the purposes of which the where the for employees to carry out work of a particular kind in the by the determination of the question whether the dismissal is fair or unfair (having for employees to carry out work of a particular kind, or the fact that his employer has ceased or intends to cease — of subsection was employed with equity in the place sufficient reason for dismissing the employee, and redundancy contained in Section 139 of the ERA which states: the fact that the requirements of that business— whether the respondent had established depends on whether in the circumstances taken to be dismissed by reason of redundancy employee was employed by him, or Where the employer has fulfilled the requirements in accordance employee was so employed, or the employee to carry on that business regard to the reason shown by the employer) — substantial merits of the case. wholly or mainly attributable to— shall be determined where employer, dismissal was redundancy place (i) (ii) (i) (ii) In determining (a) (b) (a) (b) is neutral. (1) 49. 50. 15 25 5 10 20 30 25 55. 54. 53. 52. 51 . factors: that a reasonable Williams v Compare Maxam (1982) ICR 156. What was said in that case is section 98(4) of the ERA. In doing it obtained guidance from the case of The Tribunal then considered whether dismissal was fair or unfair in terms of the claimant was dismissed for any reason other than redundancy. point was convincing, there was no evidence to support the contention that dismissal, and it was satisfied that it was. The respondent’s evidence on this The Tribunal also considered whether that redundancy was the reason for Section 139 (1) (b) (i) had been met. circumstances organ, piano, or providing music for the Sunday Service has ceased. In these for employees to carry out work which the claimant was performing, playing employees of the respondents, to provide organ music and that they now rely upon the services of unpaid lay volunteers the Sunday service. It was also satisfied that the respondents no longer play The Tribunal found that the claimant played both the organ and the piano at or diminished, or were expected to cease or diminish. was carrying out (the provision of music for the Sunday Service) had ceased respondents’ business for employees to carry out the work which the claimant redundancy requires the T ribunal to consider whether the requirements Mr Di Paola submitted that Section 139(1) (b) (i) applied. That definition was redundant as defined by Section 139 of the ERA. whether it had been established by the respondents that the post of organist had established The first matter which the Tribunal considered was whether the respondentsa. whether applied; have ceased or diminished or are expected to cease or diminish. music the Tribunal was satisfied that the definition of redundancy the selection the reason for dismissal. employer would be expected for their Sunday criteria and therefore the need for the respondents were objectively service. That firstly involved considering These volunteers to consider the following chosen and fairly Page 1 1 are not of the in of has to ask itself whether dismissal lay with the range of conduct which a It was open to respondents acting to take the decision to make the post of reasonably. In conducting this exercise, it is the objective standard of a consider that mattes could have been handled better. For example, the respondents could be criticized for not giving the claimant advance notice of the purpose meeting, or who would be attending the meeting or providing him unfair and applying the objective standard of a reasonable employer, the inviting the claimant to the meeting on 31 January 2022 and advising him the post had been selected for likelihood, of impending redundancy. Further the respondents advising the claimant that he had a period of 7 working days within which to make for to a consultation as to how his redundancy might be avoided. That is so even although this was not identified as a consultation period, or that the reality of the situation was that there was effectively there was little or nothing which about the In the Williams case, the Employment Appeal Tribunal stressed that it was not for the T ribunal to impose its standards in deciding whether an employer acted reasonably or should have acted differently. Instead, the question Tribunal organist redundant. It is not for the Tribunal to investigate the reason behind The Tribunal did however consider whether, applying the objective standard of reasonable employer, in taking the decision to dismiss for the reason of that redundancy ,the respondents had acted reasonable employer which has to be applied, even if the Tribunal itself redundancy amounted to a warning, of what in reality was a very high However not all deficiencies in process are capable of rending a dismissal Page 12 amounted c. if there was a Trade Union, whether its views were sought; and and consulted as to how to avoid his redundancy, d. whether there was any alternative work available. were warned Tribunal was satisfied that the respondents reasonable employer might have adopted. the employees with information following it written suggestions redundancy; such a situation.b. whether the claimant 56. 57. 58. ' 20 25 30 io 25 20 15 63. 62. 61 . 60. 59. would applying the principles post was genuinely redundant and that was the reason for his dismissal, procedurally Finally, the Tribunal would note that even if it had found the dismissal to be out with the band of reasonable responses and the claim is dismissed. the claimant, it concluded that dismissal by reason of redundancy did not fall In these circumstances, redundancy and met their obligation in this regard. dismissal written reason for his dismissal. The respondents did confirm the reason for Lastly, his cross examination the claimant made reference to the lack of a appeal panel. January would not have caused the respondents standard the information evidence that this had not been a conduct issue, and applying an objective claimant circumstances unreasonable The claimant was given the right of appeal which he exercised. It was not alternative work available in order to avoid the claimant's dismissal. was not unreasonable create any new jobs or any new musical roles, and in these circumstances, three posts there was no other jobs, and the respondents different roles to the claimant, which required different skill sets. Beyond there going, and the respondent’s three other employees all carried out completely claimant into a pool one for redundancy selection. It was his post which was Applying the same standard, it was reasonable for the respondents to put the were to be provided by unpaid volunteers, going forward. could be done to avoid dismissal where the services provided by the claimant have been reduced and music in the Church. to the claimant in their letter of 10 February 2022, which was unfair, in the circumstances where he had dealt with an issue in October 2021 involving the for the respondents to have Mr Murray deal with the appeal in in Polkey v AE Dayton Service, any compensation for the respondents while the Tribunal had a good deal of sympathy for disclosed to reflect the fact that the claimant to Rev Sinclair by the claimant The Tribunal of this case, where the claimants to conclude that there was no to remove him from the accepted had no plans to Page *13 Mr Murray’s would on 31 it had been even if a fair procedure 29 September 2022 7 October 2022 have been dismissed, L Doherty