THE INDUSTRIAL TRIBUNALS
CASE REF: 5260/03
APPLICANT: Nigel Henning
RESPONDENT: IDS Media Group
DECISION
The unanimous decision of the tribunal is that the applicant's complaint is not well-founded, and the complaint is dismissed by the tribunal, without further Order.
APPEARANCES:
The applicant appeared and represented himself.
Ms Gillian Seymour appeared on behalf of the respondent.
This is a decision in summary form.
THE ISSUE
- In his Originating Application to the tribunal the applicant complained of "unfair selection for redundancy". The respondent, in its Notice of Appearance, conceded that the applicant had been employed and was dismissed, the grounds of dismissal being stated as redundancy. Accordingly, the tribunal had to determine whether the dismissal of the applicant on that ground was fair or unfair.
THE TRIBUNAL'S DECISION
- In reaching its decision the tribunal had regard to all matters both oral and written, raised in evidence and to its findings of fact in regard to these. The tribunal found the facts set out below.
- The applicant was employed as an IT officer by the respondent commencing in that employment on 27 September 1999 and he was dismissed on 22 July 2003. The respondent was a company engaged in information technology and brokering of intellectual property and the sale and marketing thereof. The applicant's specific function, in respect of which he was initially employed, that of IT Officer, was to attend to the maintenance and generally to deal with the respondent's clients' database and any IT functions in respect of this, and also to attend to certain additional functions in accordance with his job description, more of which shall be commented upon below.
- For a number of reasons the respondent's business declined in certain areas throughout 2002 and into 2003. As a result a review was conducted in May 2003 in respect of certain functions and operations of the company's business, including the role of IT officer. That review assessed the applicant's job functions and responsibilities as either having ceased to be entirely or as having considerably diminished, and as a consequence it was decided that the function of IT officer could be subsumed into other duties then being performed by the respondent's Head of IT, who was then a Mr Stokes. Thus the post of IT officer became redundant. The tribunal noted that the applicant accepted that proposition at hearing, without difficulty.
- On 26 May 2003 the applicant was called to a meeting which was attended by Mr Stokes and by the respondent's then Operations Director, Mr Brown. Although no formal notes or records of that meeting exist, the company did hold such a meeting and the applicant did concede that evidence of a reconstructed record of what is stated to have transpired placed before the tribunal was accurate. At that meeting the applicant was warned that his post was being made redundant and that over the following four weeks an attempt would be made to look at other possible vacancies to see if any other job function could be fulfilled by him. He was invited to comment on the position and it was indicated that any questions could be addressed by him to Mr Brown or Mr Stokes.
- On 24 June 2003 Mr Brown and Mr Stokes met with the applicant to inform him that no alternative vacancies within the respondent company could be found and that he would be made redundant with effect from 22 July 2003. It would appear that the applicant raised no issue about his prospective dismissal on grounds of redundancy at the time. The redundancy dismissal then proceeded with effect from 22 July 2003 and the applicant was fully paid any monies due under contract and any redundancy entitlement. Again, there were no formal records kept of the meeting of 24 June 2003 but the tribunal accepts that such a meeting did take place and the applicant accepted that the reconstructed records of what is stated to have transpired were accurate, as presented to the tribunal.
- The tribunal notes that the applicant, at various times, did perform other job functions. However the tribunal also accepts that these other assigned functions were performed for trial periods only and in an unsatisfactory manner by the applicant, and that thereafter the applicant reverted back to his original job functions.
THE TRIBUNAL'S DECISION
- An employee has a right not to be unfairly dismissed by his employer under Article 126(1) of the Employment Rights (Northern Ireland) Order 1996 unless the employer can show that the dismissal is fair for one of the reasons set out in Article 130 of the Order. One such reason is redundancy. A redundancy is defined in Article 174 of the Order which Article states:
174(1) For the purposes of this Order an employee who is dismissed shall be taken to be dismissed by reasons of redundancy if the dismissal is wholly or mainly attributable to:-
(a) The fact that his employer has ceased or intends to cease - (i) to carry on the business for the purposes of which the employee was employed by him, or (ii) to carry on that business in the place where the employee was so employed, or
(b) The fact that the requirements of that business - (i) for employees to carry out work of a particular kind, or (ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish
- As the applicant conceded that there was a proper redundancy in that his post had become redundant in accordance with the foregoing definition, the only issue to be addressed by the tribunal was the allegation that the applicant had been unfairly selected for redundancy and that there was perhaps something procedurally unfair as to the manner of selection. The tribunal bears in mind the case of Polkey -v- A E Dayton Services Limited [1987] IRLR 503 HL, where the House of Lords (per Lord Bridge) emphasised that in the case of redundancy, an employer will not normally act reasonably unless he warns and consults any employees affected, adopts a fair basis upon which to select for redundancy, and takes such steps as may be reasonable to avoid or to minimise redundancy by redeployment within his own organisation. In this case the tribunal takes the view that there was fair warning and consultation. As the only post to be made redundant was the applicant's post, the issue of a fair basis upon which to select for redundancy can only relate to whether or not other employees than the applicant might have been selected in his stead. The tribunal does not see, on the facts, any basis for that argument. Looking at the workforce there was no suitable job to which the applicant could have been deployed and the tribunal does not expect any employer in this situation to go to such lengths as to distort the commercial viability of an organisation to achieve the end desired by the applicant. There was no prospect of redeployment within this organisation. The applicant was therefore fairly and properly dismissed by the respondent on grounds of redundancy.
- The tribunal heard an application for costs on the part of the respondent, it being argued that the applicant had behaved in a frivolous and vexatious manner in pursuing a case which was unreasonable and without merit. Having considered this submission, the tribunal takes the view that this is not an appropriate case for costs to be awarded. The tribunal notes with some concern the absence of any documentation concerning what was an important process which ought to have been dealt with by the respondent with a degree of formality which would ordinarily necessitate the keeping of proper records and the issuing of appropriate correspondence to any employee so affected. That was not done. Had it not been for the applicant's concession that reconstructed records were accurate, the tribunal's view of the essential facts might have been quite different. The tribunal had some difficulty on that account in reaching conclusions of fact in regard to what had transpired, and reached its conclusions on the balance of probabilities. That being the case it is not fair to say that the applicant's case in terms of potential procedurally unfair redundancy selection was misconceived and was without merit or was brought in a frivolous or vexatious manner. On that ground the tribunal declines to award costs.
Chairman:
Date and place of hearing: 22 and 23 March, Belfast
Date decision recorded in register and issued to parties:
