THE INDUSTRIAL TRIBUNALS

CASE REF:	2365/10

CLAIMANT:			Natasha Dale

RESPONDENT:		Laura Ashley

DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed and is entitled to the sum of £6,607.99.

Constitution of Tribunal:
Chairman:		Mr P Kinney
Members:		Ms Brenda Callaghan
			Mr John McAuley

Appearances:
The claimant appeared in person and represented herself.
The respondent was represented by Mrs Sheridan, of Peninsula Business Services Limited.

1.	The claimant makes a claim for unfair dismissal.  She contends that she has been unfairly dismissed.  The respondent contends that she was dismissed for a fair reason, namely redundancy, and that a proper process was followed.

2.	The claimant was employed by the respondent in its Boucher Road Store as a Sales Leader.  She was employed on a full-time contract working 30 hours per week, normally Monday to Friday.  She commenced employment on 13 February 2008 and her employment terminated on 3 July 2010.  At the date of the termination the claimant earned £184.70 per week gross, £163.91 net.

3.	At the end of 2009 the claimant’s store manager introduced the store’s rota for January 2010.  The claimant felt the rota was unfair as she was being asked to work for full weekends when others were not.  She complained to her store manager.  She then wrote to the respondent’s Area Manager, Mr Kenny Walsh, on 6 January 2010 setting out her concerns.  Mr Walsh spoke to the claimant and she subsequently spoke again to her store manager.  The notes of the meeting with her store manager on 15 January 2010, as recorded by the store manager, referred to the staff rota and the need for all staff to be flexible.  In this meeting the claimant agreed to work certain promotional weekends but still had reservations about weekend working in general.  There was no reference, at this meeting or in this series of communications, to any redundancy exercise and the meeting was not part of a redundancy consultation exercise.  

4.	The respondent identified the Boucher Road Store as requiring re-organisation and in April 2010 an external store manager, Debbie Folliard, carried out consultations in the store.  Ms Folliard met with the claimant on 14 April 2010, setting out in general terms the nature of the proposed changes to the store structure.  There were no specific details of the claimant’s role discussed.

5.	Ms Folliard met the claimant again on 22 April 2010.  The claimant was told that her job did not exist any more.  There were two new positions of Sales Leader created which required a 371/2 hour week and weekend working.  The claimant was told that this was a new recruitment process and she would have to apply for one of the posts.  The claimant asked what would happen if she did not get the post and was reassured that there was a position for everyone in the store.  This comment was repeated several times throughout the meeting and the process.  The claimant contended she should have been given the Sales Leader job as she was doing it already.  She was told by Ms Folliard that she would not be given the job as it involved new hours and a different contract.  In fact, it was accepted by the respondent, at hearing, that the only difference between the jobs were the extra hours and the need for flexibility to work at weekends to meet the business needs of the respondent.

6.	The next meeting was on 29 April 2010.  Ms Folliard confirmed that the claimant’s position was no longer available and also confirmed that if the claimant got the Sales Leader job her contract would remain the same with simply an increase of 71/2 hours.  The final consultation with the claimant took place on 21 May 2010.  The claimant again insisted that she should be offered the Sales Leader job as a suitable alternative employment.  Ms Folliard was equally insistent that the claimant would have to apply for the post.  The claimant did not apply for the post.  She believed, and the tribunal fully accepted that she did so believe, that if she applied for the new post and was unsuccessful she would not be entitled to redundancy pay.  

7.	On 4 June 2010, Ms Folliard wrote to the claimant.  She informed the claimant that as the claimant did not wish to apply for the Sales Leader role and that there were no other alternative positions available, her employment was terminated due to redundancy.

8.	The claimant appealed this decision to Mr Walsh.  He conducted the appeal by way of a complete re-hearing.  On 25 June 2010, Mr Walsh wrote to the claimant to confirm Ms Folliard’s decision to make the claimant redundant.  He stated that the new role was materially different from the claimant’s role because of the increase in hours and the requirement to work more flexibly, including weekends.  

9.	One of the Sales Leader posts was filled by another employee at the Boucher Road Store who had previously been a Sales Assistant.  The other remained vacant for some time before being filled by an employee from the respondent’s Castle Court Store.  At the time of conducting the appeal, Mr Walsh was aware that there was at least one vacancy for Sales Leader.  He did not raise this with the claimant during the appeal process.  

10.	The claimant had been made aware during the redundancy process that there were a number of Sales Advisor posts.  There was no specific reference to these in the redundancy process or the appeal process with the claimant.  The respondent contended that the new Sales Leader post was different because of the extra hours and the flexibility needed to work weekends.  The respondent contended that the claimant was inflexible and would not work weekends.  No other post was offered to the claimant.

The law

11.	Under Article 126 of the Employment Rights (Northern Ireland) Order 1996 an employee has a right not to be unfairly dismissed.  By Article 130 to determine whether a dismissal of an employee is fair or unfair it is for the employer to show that the reason for the dismissal falls within the terms of that Article.  By Article 130(2)(c) one such reason is that the employee was redundant.  If a potentially fair reason is established the tribunal should then consider whether the respondent acted reasonably in all the circumstances.  Dismissal must be within the band of reasonable responses which a reasonable employer might take, and the tribunal must not substitute its own view for that of the employer.  There will only be a redundancy dismissal if a dismissal is attributable wholly or mainly to redundancy.  The employer must act reasonably in treating redundancy as a sufficient reason for dismissal.  In order to show that he has acted reasonably the employer should adopt and apply an objective and fair selection procedure, warn and consult the relevant employees and consider any alternatives to dismissal (Williams  v  Compare Maxam Ltd [1982] IRLR 83).

Tribunal’s conclusions

12.	The burden of proof is on the respondent, having accepted that there was a dismissal of the claimant, to show that there is a potentially fair reason for the dismissal.  The reason offered by the respondent in this case is redundancy.  The tribunal is satisfied that there was a genuine redundancy situation in the respondent’s Boucher Road Store as a result of the re-organisation and restructuring of its business.  There was, however, considerable confusion created, in our view, in the consultation process with the claimant by the repeated assertions that there was a job for everyone after the re-organisation had been completed.  In the event there were five redundancies made at the store.

13.	In conducting the process and the consultation it was the respondent’s position throughout that the claimant was not flexible.  However, it relied entirely, for evidence of this, on the meetings/exchange in January between the claimant, her branch manager and Mr Walsh.  This related entirely and exclusively to the claimant’s old rota and was nothing to do with the redundancy process.  This need for flexibility was a main issue when considering the difference between the claimant’s existing role and the new Sales Leader role and why the post could not simply be offered to the claimant as suitable alternative employment.  There was no evidence whatsoever that the issue of flexibility was ever expressly discussed with the claimant after the initial meeting in January between the claimant and her store manager or before the consultation process commenced.  There was no evidence that the claimant made any demands for a change to the new Sales Leader post during the consultation.  Indeed, she insisted that she wanted the post offered to her.  She placed no conditions on taking up the post.  She did not apply for the post because of a genuine fear she would be gambling on her redundancy.  Whilst never expressly stated by her in the redundancy process, the respondent did nothing to make sure that such erroneous beliefs were dealt with and countered.  No offer of any post was made to the claimant on the assumption of inflexibility on her part.  

14.	The claimant had been told that she would have to apply in open competition for the post in question.  One of the Sales Leader posts was filled by a sales advisor from the Boucher Road Store.  The other post was eventually filled by an employee from the Castle Court Store after the consultation process involving that store completed some time later.  There was no evidence as to how this post was made available to that candidate, if there was a competition for it or if there was any other applicant for the post.  

15.	Mr Walsh gave evidence that he conducted the appeal by way of a complete         re-hearing.  He also said that he would have done anything to avoid creating a redundancy.  However, at the time of that appeal he was aware that at least one of the Sales Leader posts was available and unfilled.  He took no steps to bring this to the claimant’s attention.  

16.	The tribunal concludes that the new Sales Leader post was not materially different to the post and role currently occupied by the claimant.  It was the same job description and had been described by Ms Folliard as being the same job simply requiring 71/2 hours more and flexibility to work weekends.  The claimant was never given the chance to demonstrate her flexibility.  The tribunal concludes that the new Sales Leader post was suitable alternative employment and should have been offered to the claimant.  In any event, and bearing in mind the repeated assertions by Ms Folliard during the process that there was a job for everyone, the tribunal is not satisfied that the respondent has taken appropriate steps to find other suitable posts for the claimant.  There is simply a bald assertion in the in the redundancy letter that no suitable alternative employment was available.  This appears to be contradicted by the assertions in the consultation process that there was a job for everyone and the availability of a number of sales adviser posts.  The claimant was not given an opportunity to consider any of those posts.  The tribunal therefore concludes that the claimant was unfairly dismissed.

17.	The claimant does not seek reinstatement or re-engagement.  She wishes her remedy to be compensation.  The tribunal was provided with an agreed schedule of loss.  The claimant’s basic award has already been met because of the redundancy payment made.  The claimant had obtained £680.00 by way of Jobseeker’s Allowance whilst she was out of employment after the respondent dismissed her.  She received the sum of £269.10 by way of redundancy payment.  She obtained new employment in the middle of October as a Catering Assistant in a local primary school working 20 hours per week.  She has been paid £470.00 per month.  The claimant is unsure when her employment will end as she in a temporary post covering another employee’s sick leave.  She has applied for a variety of other posts.

18.	Basic award

The claimant is entitled to a basic award in the sum of £269.10.  The claimant has already received her redundancy pay in this sum and so no further basic award is required.

19.	The claimant’s loss to the date of the tribunal has been agreed in the sum of £3,404.80.  This includes a loss of statutory rights compensation in the sum of £250.00.  

20.	The tribunal then considered the future loss of the claimant.  The tribunal accepts that the claimant has made efforts to find alternative employment and has taken on a new post, albeit temporary, which is providing lower remuneration than the job she lost with the respondent.  Whilst it is always difficult to anticipate how long a post, which is covering sick leave, may last, the tribunal is satisfied that it is unlikely to last beyond the end of the current school year.  The tribunal has taken into account the current economic climate and the difficulties of obtaining work in the retail sector.  The tribunal has also taken into account that the claimant has shown that she is prepared to seek work in a much wider field.  In assessing future loss the tribunal therefore is assuming that the claimant will be able to continue in her current post until the end of June 2011 and assess a further reasonable period thereafter for compensation from her loss of employment from the respondent to the end of September 2011.  The tribunal calculates that the ongoing loss therefore of the claimant from 25 January 2011 to 30 June 2011 and based on the figures provided in the agreed schedule of loss, is £1,039.58.  The loss from 1 July 2011 to 30 September 2011 is £2,163.61.  The total compensatory payment therefore to the claimant is £6,607.99.

21.	This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

22.	Your attention is drawn to the notice below which forms part of the decision of the tribunal.

Chairman:

Date and place of hearing:	25 January 2011, Belfast

Date decision recorded in register and issued to parties:

Case Ref No: 2365/10	

CLAIMANT:			Natasha Dale		

RESPONDENT(S):		Laura Ashley
ANNEX TO THE DECISION OF THE TRIBUNAL

STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME –RELATED EMPLOYMENT AND SUPPORT ALLOWANCE/ INCOME SUPPORT

1.	The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996; The Social Security (Miscellaneous Amendments No.6) (Northern Ireland) 2010.

	£	
(a)  Monetary award	6,607.99	
(b)  Prescribed element	3,404.80	
(c)  Period to which (b) relates:	    03/0710 – 25/01/11	
(d)  Excess of (a) over (b)	3,203.19	

	The claimant may not be entitled to the whole monetary award.  Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance, Income-related Employment and Support Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department of Social Development has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance, Income-related Employment and Support Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department.  The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.

2.	The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing.  When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.

3.	The claimant will receive a copy of the recoupment notice and should inform the Department of Social Development in writing within 21 days if the amount claimed is disputed.  The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the claimant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the claimant and regardless of any dispute between the claimant and the Department.