THE INDUSTRIAL TRIBUNALS

CASE REF:	1093/15

CLAIMANT:			Geoffrey Johnston

RESPONDENT:		Capita Managed IT Solutions Ltd

DECISION 
The unanimous decision of the tribunal is that:-

(1)	The claimant was not unfairly dismissed and his claim to the tribunal is therefore dismissed.

Constitution of Tribunal:
Employment Judge:	Employment Judge Drennan QC
Members:			Mr I O’Hea
				Mrs K McCrudden

Appearances:
The claimant was represented by Mr M Potter, Barrister-at-Law, instructed by Campbell Stafford, Solicitors.
The respondent was represented by Mr T Warnock, Barrister-at-Law, instructed by Pinsent Masons LLP, Solicitors.

1.1	The claimant presented a claim to the tribunal on 10 June 2015, in which he made a claim of unfair dismissal, following the termination of his employment by the respondent on 28 April 2015, on the grounds of redundancy.  The respondent presented a response to the said claim, in which it denied liability, on 14 July 2015.  

The claimant’s representative confirmed, during the course of the hearing, having obtained relevant instructions, if the tribunal found the dismissal of the claimant was unfair, that the claimant wished to obtain, by way of remedy, an Order for Reinstatement, pursuant to Articles 148, 150 and 151 of the Employment Rights (Northern Ireland) Order 1996, if appropriate, by way of an alternative to an award of compensation.  In the event, in light of the tribunal’s decision, this issue did not require to be further considered by the tribunal.

1.2	In accordance with the tribunal’s normal case-management procedures, the claimant’s claim was the subject of a Case Management Discussion, by way of a Telephone Conference, held on 14 August 2015.  As set out in the Record of Proceedings, dated 17 August 2015, the following issues were identified, namely:-

“This is a claim of alleged unfair dismissal (selection for redundancy) and an allegation of automatic unfair dismissal for breach of statutory procedures.  Pursuant to consent orders made at that Case Management Discussion, the interlocutory process was to be concluded by 9 September 2015, with simultaneous exchange of witness statements on 2 October 2015 and lodgement of the trial bundles on 26 October 2015 and the substantive hearing commencing on 2 November 2015, and the tribunal reading the said witness statements and to the extent necessary parts of the exchanged documentation prior to the commencement of the substantive hearing.”

1.3	However, a further Case Management Discussion was required to be held on 29 October 2015, as set out in the Record of Proceedings, dated 29 October 2015 to consider the following issues:-

“(1)	Whether the claimant should have leave to present a supplementary witness statement to the tribunal.

(2)	Whether the claimant should be provided with further discovery, on foot of the claimant’s representative’s application, dated 21 October 2015, both of which applications were strongly objected to by the respondent’s newly-appointed legal representatives.”

At all times material to these proceedings, the claimant had been represented by the representatives, who appeared on his behalf at the substantive hearing of this matter, as set out above.

The tribunal, at the Case Management Discussion on 29 October 2015, as set out in the said record, made an Order for the further discovery to be made by the respondent of the following documents, namely:-

(1)	unanonymised version of the anonymised (grid) which has already been provided to the claimant; and 

(2)	copies of any notes made by or on behalf of the respondent during the individual consultation meetings with each of the other persons who were within the same redundancy pool as the claimant.

The time for compliance with his Order was immediately prior to the commencement of the substantive hearing on 2 November 2015.

The tribunal also, by consent, decided:-

“The question of whether the claimant should be granted leave to present a supplementary witness statement is a question which will be left for consideration by the main tribunal at the beginning of the main hearing (obviously, pending its decision in respect of that question, the main tribunal should not be sent any supplementary witness statement).”

Arising from the decisions made at the Case Management Discussion on 29 October 2015, as set out above, the tribunal at the substantive hearing, was initially faced with a number of applications, as set out below, which required to be determined before any evidence could be given by the parties at the substantive hearing.  

2.1	Unfortunately, there was a breakdown in the timetable for compliance with the tribunal’s previous case-management directions/orders.  For the purposes of this decision, it is not necessary to consider further the reasons for that breakdown.  The matter was further complicated by reason of the time for compliance for the Order for Discovery granted by the tribunal at the Case Management Discussion on 29 October 2015, as referred to previously.  In light of the foregoing, it was necessary for the tribunal, before the substantive hearing could commence, to consider making further case-management directions/orders, as set out below.  When making the said directions/orders, set out below, the tribunal orally gave its reasons; but it was agreed, having regard to the terms of the overriding objective but in order to save time, that the tribunal would set out its detailed reasons, in writing, in this decision for the making of the said case-management directions/orders.  

2.2	The first case-management direction/order to be considered and determined by the tribunal related to whether the tribunal should grant the claimant’s application for leave to admit, in evidence, the claimant’s proposed supplementary witness statement, which had been the subject-matter of the claimant’s representative’s application, dated 21 October 2015.  This witness statement is referred to as the ‘first supplementary witness statement’ (see later).  The claimant’s representative submitted that the proposed ‘first supplementary witness statement’ had become necessary, in light of the witness statement of the respondent’s witness, Mr Maginnis, and, in particular, Paragraphs 9, 13 and 15 thereof.  It should be noted that the proposed ‘first supplementary witness statement’ of the claimant was drafted prior to the ‘new discovery’ provided by the respondent in compliance with the tribunal’s order made at the Case Management Discussion on 29 October 2015 and the production of that discovery was not therefore relevant to this application.  

	Having considered the claimant’s claim form, the claimant’s replies to the respondent’s Notice for Additional Information, which said Notice was largely based on the allegations set out in the claimant’s claim form, the tribunal was not convinced that the necessity for such a supplementary witness statement arose from what was said by the respondent’s witness, but arose more from a new focus to the claimant’s claim by the claimant’s representative, following consultation with counsel in October 2015.  In the event, for the purposes of the tribunal’s decision, it was not necessary to consider further what had resulted in the proposed ‘first supplementary witness statement’ of the claimant.

	In essence, the tribunal was of the opinion that what was stated in the proposed ‘first supplementary witness statement’ of the claimant raised new allegations, which if relevant, required to be the subject of an amendment to the claimant’s claim.  If the said amendment was allowed by the tribunal, then the tribunal was satisfied that the proposed ‘first supplementary witness statement’ would require to be admitted in evidence at the hearing of this matter.  The claimant’s representative reluctantly agreed that his application for leave to admit the proposed ‘first supplementary witness statement’ in evidence required to be combined with an application for leave to amend the claimant’s claim to include these further allegations, set out in the said ‘first supplementary witness statement’.  The respondent’s representative objected to the said amended application, in particular, on the grounds of delay; but he accepted that this would not be a determinative factor in itself.  He also acknowledged that, if the said statement was admitted in evidence, he was in a position to deal with the matters raised therein, by his witness giving further evidence orally, as might be required, to which the claimant’s representative did not object, and further there would be no requirement for an adjournment of the proceedings.

	The tribunal referred the representatives to a decision of this tribunal in the case of Carol Crockett  v  Police Federation of Northern Ireland and Another [2013] NIIT 005, which related to an application to extend the word-limit for a witness statement.  The said decision reviewed relevant case law relating to the admissibility of evidence and, in particular, the decision of Underhill J, as he then was, in the case of HSBC Asia Holdings BV and Another  v  Gillespie [2010] UKEAT/0417, when he reviewed many of the relevant authorities but also stated, in particular:-

“The basic rule is that if evidence is relevant it is admissible and if it is irrelevant it is inadmissible.  Relevance is not an absolute concept.  Evidence may be ‘logically’ or ‘theoretically’ relevant but nevertheless too marginal or otherwise unlikely to assist the Court, for its admission to be justified.  There may be some diversion in the case law as to whether the exclusion of evidence in such cases is to be described as being on the basis that the evidence in question is, properly understood, not relevant at all or rather that it is not sufficiently relevant.  The language of ‘sufficient relevance’ gives a better idea of the nature of the judgment required, but the difference is one of terminology only.  It makes no real difference whether or not the exercise of judgment required is the described as the exercise of a discretion.  There is no distinction in principle between the powers in this regard to the Civil Courts and those of the Employment Tribunal.  If anything, it is arguable that Employment Tribunals, while guided by the same principles, should be rather more willing to exclude a relevant, or marginally relevant, evidence, as Employment Tribunals are intended to be relatively informal and inexpensive.  The fact that evidence is inadmissible because it is insufficiently relevant does not, however, mean that it is necessary to take steps to exclude it in every case, and certainly it is not always necessary to do so at a pre-hearing review or at the outset of a hearing.  On the contrary, Employment Tribunals are consistency presented with irrelevant evidence, but most often it is better to make no fuss and simply disregard it, or if the evidence in question is liable to prejudice the orderly progress of the case, to deal with it by a ruling in the course of the hearing.  In the generality of cases, the cost and trouble involved in a pre-hearing ruling is unjustified.  Further, where there is a genuine room for argument about the admissibility of evidence, the tribunal at a preliminary hearing may be less well placed to make the necessary assessment ... .”

The tribunal was satisfied that, if it decided that the allegations set out in the ‘first supplementary witness statement’ should be the subject of an amendment of the claimant’s claim, then in light of the guidance of Underhill J in HSBC Asia Holdings BV, the evidence contained therein should be admitted in evidence.

Therefore, in considering the claimant’s application for leave to amend the claimant’s claim to include the allegations set out in the proposed ‘first supplementary witness statement’, the tribunal considered the relevant authorities in relation to any such application.  Those have been recently reviewed in a decision of this tribunal in the case of Gillian Elizabeth McKay  v  Asda Stores Ltd & Others, recorded in the Register and issued to the parties on 9 October 2015.  

In the decision, the relevant principles in relation to any such application for amendment of the claimant’s claim are set out:-

“2.3.1	If a claim is in time, or the tribunal considers time should be extended, the tribunal must then still consider the other factors relevant to the exercise of the discretion, as set out previously.  Equally, if the claim is out of time and the tribunal considers time should not be extended under the appropriate test, the issue arises to be considered what is the position and, in particular, is this finding fatal to the application for amendment?  This issue of time, in relation to the exercise of the discretion, gives rise therefore to potentially considerable difficulties.

It is correct that Mummery J observed in Selkent that if a new complaint or cause of action is proposed to be added by way of amendment, it is ‘essential’ for the tribunal to consider the matter of time-limits.  Indeed, it has been considered in some cases that this dicta would be read as implying, if the claim is out of time and times does not fall to be extended under the applicable legislative test, then the application for amendment must necessarily be refused.  However, Underhill J in Safeway Stores Ltd and again in Abercrombie, as referred to above, makes it clear that, in his view, it is not what Mummery J intended and to do so would be to take what Mummery J said out of context.  According to Underhill J, in Safeway, the reason why it is essential, in Mummery J’s words, that a tribunal consider whether the claim in question is in time is simply that it is ‘a factor’ – albeit an important and potentially decisive one in the exercise of the discretion.  Thus, it would seem that, if the relevant time-limit for presenting the ‘new’ claim has expired, this will not, in itself, prevent the tribunal exercising its discretion to allow the amendment and is therefore not an absolute bar; but it is a significant important factor for the tribunal to weigh in the balance when considering how to exercise its discretion (see further Chaudhary  v  Secretary of State for Health [UKEAT/0512/04]) and UCATT  v  Amicus and Others [2009 ICR 852.  

2.3.2	Interestingly, in this context, the fact of ‘balance of relevant injustice and hardship involved in refusing or granting an amendment’, as seen in Selkent, has been held, in Ali  v  Office of National Statistics [2004] EWCA Civ 1363, to be little different to the ‘just and equitable’ ground, which applies in relation to extension of time, under the relevant legislation, in discrimination claims.

In a recent decision, Langstaff P in Thomson  v  East Dunbartonshire Council [UKEATS/0049/13], referred to the Mummery test in Selkent of ‘relative injustice and hardship’, whereas the Employment Judge had referred to the ‘balance of hardship’.  Langstaff P commented:-

‘It seems to me that the balance of prejudice, essentially, is intended to convey the same concept.  It may perhaps be helpful to return to the words used by Mummery J in future consideration of a case such as this, though frequently ‘balance of prejudice’ is the lawyer’s shorthand for the necessary exercise, purely because it may focus more closely on two separate questions : injustice o the one hand, hardship on the other.  But balance of prejudice is capable of including matters which might not strictly be described as unjust or hard but may nonetheless be relevant.  All the circumstances of course have to be taken into account ... ‘.

In the case of Evershed  v  New Star Asset Management [2009] UKEAT/0249/09, Underhill J, as he then was, said, which was not challenged in the context of the subsequent appeal, to which reference has been made previously:-

‘33	... It is not the business of the tribunals to punish parties (or their advisers) for their errors.  In very many, perhaps most, cases where permission is given to amend a pleading, the party in question could if he had been sufficiently careful got it right first time round’.”

2.4	The tribunal was satisfied that to grant leave to allow the claimant to make the allegations set out in the proposed ‘first supplementary witness statement’ was a major amendment.  Undoubtedly, in the judgment of the tribunal, the necessity for these new allegations to be the subject of this application should have arisen earlier but any such delay, in the tribunal’s opinion, was not determinative in the circumstances.  Given the tribunal’s opinion that a relevant factor was the new focus to the claimant’s claim following counsel’s consultation, the tribunal was mindful of what was said in Evershed, as referred to above, and it was not the business of the tribunal to punish parties (or their advisers) for their errors and that in very many, perhaps most, cases where permission is given to amend the pleading, the party in question could if he had been sufficiently careful got it right first time round.  Undoubtedly, if leave was granted it would require some more evidence to be produced, in particular, by the respondent than might have been the case prior to any such amendment.  However, the tribunal was satisfied that the granting of leave to amend would not significantly increase the amount of evidence which would require to be heard and determined by the tribunal or indeed the length of the hearing (see Evershed and Abercrombie).  Indeed, the tribunal noted, in particular, that the respondent’s representative fairly and properly accepted that, if leave was granted, that he would be in a position to deal with the new allegations by the giving of further oral evidence by his witnesses and that an adjournment would not be required.  In the circumstances, the tribunal was satisfied that having regard to the terms of the proposed supplementary witness statement, that the said amendment fell within either the first or second classification in Harvey or both.  In either case, as acknowledged by the representatives, no issue of time therefore arose.  Although clearly the respondent, if leave is granted, would require to deal with the matters set out in the proposed ‘first supplementary witness statement’, the respondent was not able to show any real prejudice if leave was granted.  These issues are always difficult to determine, not least in carrying out the balancing exercise referred to by Mummery J in Selkent.  However, after taking account of the conclusions as set out in the previous paragraphs, the tribunal decided that, in considering the relevant injustice and hardship involved in granting and refusing the proposed amendments, that the greater hardship and injustice would be for the claimant.  Therefore, the tribunal decided to grant leave to the claimant to amend his claim to include the matters set out in the proposed ‘first supplementary witness statement’ and his claim was so amended.  In the circumstances, it was agreed that there was no requirement for the respondent to formally amend its response in this matter; but, of course, acknowledging the respondent’s denial of the claimant’s claim in the response form.  In the circumstances, having amended the claimant’s claim, as set out above, the tribunal agreed that the claimant’s proposed ‘first supplementary witness statement’ should be admitted in evidence at the substantive hearing.  

2.5	As set out previously, the tribunal, at the Case Management Discussion on 29 October 2015, made Orders for Discovery and Inspection of certain documents by the respondent to the claimant.  That Order has not been the subject of any appeal and having made the said Order, relying on the decision in FDR Ltd  v  Holloway [1995] IRLR 400, the Employment Judge, at that Case Management Discussion, was clearly satisfied that the said documents were relevant and necessary in order to dispose fairly of the claim or to save expense.  Again, it may be a matter of regret that it was necessary for such an Order to be made in these proceedings, so close to the commencement of the substantive hearing.  However, it was for this tribunal to deal with the situation that had arisen, following the making of the said Order for Discovery and Inspection.  It was not surprising that, following the making of the said Order and the production of the further discoverable documents by the respondent to the claimant, that the claimant would wish to have admitted in evidence a further supplementary witness statement.  For similar reasons, to those set out previously in relation to the ‘first supplementary witness statement’, the tribunal was of the opinion that any application to admit a further supplementary witness statement (hereinafter referred to as the ‘second supplementary witness statement’) would require to be combined with an application for leave to amend the claimant’s claims to include the matters set out in the said ‘second supplementary witness statement’.  In the circumstances, it was agreed and the tribunal so directed, that the claimant would draft the ‘second supplementary witness statement’ overnight at the conclusion of the first day of the hearing of this matter and the tribunal would then deal with the claimant’ said amendment application at the commencement of the second day of the hearing, after the respondent’s representative had had an opportunity to consider its position.  The parties having carried out the said directions, it became apparent that the same issues which had governed the tribunal’s treatment of the ‘first supplementary witness statement’ also arose in relation to issues relating to the proposed ‘second supplementary witness statement’.  The claimant’s and respondent’s representatives made similar submissions to those made previously.  In light of the foregoing, the tribunal was satisfied that it should give leave to amend the claimant’s claim to include the matters set out in the proposed ‘second supplementary witness statement’ and the claimant’s claim would be so amended and the tribunal would give leave for the said ‘second supplementary witness statement’ to be admitted in evidence.  Again, it was agreed that it was not necessary, in the circumstances, for the respondent to formally amend its response in relation to the matters set out in the ‘second supplementary witness statement’.

2.6	Having given leave therefore for the ‘first supplementary witness statement’ and the ‘second supplementary witness statement’ of the claimant to be admitted in evidence the substantive hearing was therefore in a position to commence, with the respondent being given leave to give oral evidence, in addition to the witness statements already exchanged with the claimant’s representative, in relation to the matters, the subject-matter of the claimant’s claims as now amended.

3.1	The tribunal heard oral evidence from the claimant and also, on behalf of the respondent, Jamie Maginnis and Geoffrey McFarland.  Having considered the evidence given to the tribunal by the parties and their witnesses, as referred to above, the documents contained in the ‘trial bundle’, as amended, to which the tribunal was referred during the course of the hearing, together with the written submissions of the representatives, the tribunal made the following findings of fact, set out in the following sub-paragraphs, insofar as necessary and relevant for the determination of the claimant’s said claim of unfair dismissal.

3.2	The claimant was born on 15 May 1964.  He commenced employment with the respondent on or about 27 February 1988, as a computer engineer working in the repair centre (workshop engineer); and his employment terminated on or about 28 April 2015, when he was dismissed on the grounds of redundancy.  It was not disputed he was paid by the respondent the monies to which he was entitled upon his said redundancy.  He was paid, at the date of his dismissal, £2,131.43 gross per month and approximately £1,591.06 net per month.  The claimant had an excellent disciplinary and attendance record.  On or about 12 September 2014 the claimant commenced a period of long-term sick absence, which required him to have serious bypass heart surgery in October 2014.  After six months’ sick leave he returned to work on or about 1 April 2015.

3.3	Geoffrey McFarland had worked for the respondent for approximately 19 years.  He was the workshop team leader from May 2013 and prior to that he was the senior workshop engineer.  In these capacities he had considerable knowledge of the work carried out by the workshop team, which was a close knit team of seven engineers, most of whom had been members of the team for a considerable period of time.  His line manager was Jamie Maginnis, the Regional Service Manager.  He had managed parts of the workshop team since 2006 and took on management of the full workshop team in March 2012.  Prior to March 2012 there were two workshop teams, ‘Education’ and ‘Commercial Business’.  The teams were combined into one larger team with Geoffrey McFarland appointed as the team leader in May 2013, as set out above.  This was in order to try to secure jobs in the Commercial team by taking on additional workload from the Education team.  

3.4	Since 2012, the respondent tried to increase sales for the Commercial Business but it was not altogether successful due to changes in the IT industry.  In previous years the workshop would have completed component level repairs on items such as tape drives, monitors, tills, power supplies but, where previously the workshop would have carried out repairs on these items.  These items were now treated as disposable items and it has been found to be more cost effective to replace the full unit than carry out repairs of individual items.  This resulted in a large drop in calls.  Also the respondent lost a contract with a large supermarket chain, whereby the respondent supported their equipment, such as tills and receipt printers; which again resulted in a drop in calls being worked on in the workshop.

3.5	In September 2014, 15,000 laptops and over 2,000 servers were taken out of service in the Education Customer base.  This resulted in a further drop in calls.

3.6	During late 2014, Mr Maginnis had a number of conversations with his manager, Mr Low (Support Services Director) about the lack of work for the workshop team and lack of new business.  At all times the respondent was hopeful that the respondent would win new business in this area to increase the amount of work in the workshop; but, unfortunately, the hoped for potential new business did not arise.

3.7	During a meeting in February 2015, Mr Low advised Mr Maginnis, there would require to be a review of the headcount within the workshop with a view to reduce the cost of the team as it was not sustainable due to the current work level and lack of new business in this area; and thereby to protect the jobs of the wider team.  Following a review of call numbers and customer SLAs, it was decided it would be necessary to reduce the team by two employees without impacting on the work of the team and for a redundancy process to take place/ in order to achieve this reduction in the number of employees.

3.8	In the subsequent period, Jamie Maginnis and Geoffrey McFarland held various meetings.  Mr Maginnis, with some assistance from Mr McFarland, drew up draft criteria, for use in relation to the said redundancy process and for further consultation with members of the workshop team.  In doing so, the main focus of the draft criteria was to ensure the criteria was relevant to the respondent’s business needs moving forward and, in particular, the skills that were needed to be protected, namely Education Kit repair, Warranty PCs and Printers.

3.9	A meeting of all the workshop team was arranged for 27 March 2015, which all members of the team were asked to attend, including the claimant who was about to resume his work, following his period of lengthy sick absence, as referred to previously.

3.10	At the meeting, an announcement letter was read out, which set out the reasons for the said redundancies.

3.11	The Employee Announcement letter stated:-

“In recent years our workshop call levels have dropped year on year.  The type of call has also changed from high end technical repairs, fixing equipment at component level to now where the bulk of our calls are low end replacements, hard disk, screens, etc.  For example, it is much more cost effective for us to replace a £40 monitor than to repair it.

This has resulted in us having too many higher skilled engineers than required for the business that we can win.  Most of the contracts that we bid for require hardware to either be fixed extremely quickly at low cost or disposed of, this can’t be achieved with the current workshop model.

There is now a requirement to reduce the workshop headcount by two engineers.  This will allow us to be more competitive in future bids and maintain current contracts.  The main focus of the team going forward is the education contract the printer support business and PC warranty repair processes.  The selection criteria is based on the skills needed to best service these contracts.

As a result, the business has reviewed the operation and we have proposed the following structure in order that we can compete in the current market.

We have identified that it may be likely that we will need to reduce the number of roles and we felt it was important to advice you of this at the earliest opportunity.  We envisage that this will entail a reduction of headcount in the workshop from seven down to five.

This means that we may need to make compulsory redundancies and I must advice you that two workshop engineer roles will potentially be redundant.  At this stage, no final decision has been made.  We intend to carry out a meaningful and fair consultation in relation to this proposal and we will be consulting with you in detail regarding the proposal and we welcome your feedback and input in relation to this.

...

The purpose of the consultation period is to provide an opportunity for you to ask us any questions in relation to the proposals.  It is also about reaching possible solutions to avoid a redundancy situation and we welcome your views and feedback.  As I advised earlier, at this stage this is a proposal and we are open to your views on how we can avoid compulsory redundancies.

You will have the opportunity over the coming period to speak to Jamie Maginnis or your HR adviser, Alison Simpson, on an individual basis in order to discuss any concerns and explore any redeployment opportunities that may be available.

Every effort will be made to seek alternative employment within Capita.  All internal vacancies are advertised on Capita Connections and I encourage you to have a look at current vacancies and other opportunities across Capita.  You will also be issued with a Redeployment Pack which will give you information and advise on redeployment opportunities.

If at the end of the consultation period, the situation has not changed or you have not been redeployed within Capita, it may be necessary to issue you with formal notice of redundancy.  

Following this meeting we will provide you with a letter which details the matters outlined to you today.

... .”

3.12	The said ‘At Risk Letter’, dated 27 March 2015, insofar as relevant and material stated:-

		“ ...

Further to the recent announcement and after attending the meeting held on 27/3/2015 with Jamie Maginnis and Geoff McFarland, I would like to take this opportunity to confirm and clarify the discussions.

I have attached a copy of the announcement, for your information.

Under the proposed new structure, it is likely the company will need fewer employees to carry out the duties and responsibilities of workshop engineers.  At the moment it is envisaged that the requirement will be reduced from                7 to 5.  

In the event of a redundancy situation, all roles will be assessed against an agreed formal selection criteria.  I attach a copy of the proposed selection criteria for your review and information.  I would encourage you to consider this criteria and forward your views to Geoff McFarland or Jamie Maginnis.  I will seek to obtain your feedback on this at our next meeting.

...

The purpose of the consultation period is to give you every opportunity to discuss the proposed restructure and for us to obtain feedback and any alternative suggestions from you in relation to our proposals ...

In addition, you will be given every opportunity and be invited to meet with myself or Geoff McFarland, to discuss the situation in more detail.  An individual consultation meeting has therefore been arranged for you to attend on Friday 3 April ...

During the consultation period we will also explore with you any redevelopment opportunities within Capita, and I would welcome any views you may have in relation to this.  You will also be provided with a redeployment pack ... I would also like to draw your attention to Capita Connections, where all internal vacancies are advertised and would encourage you to seek alternative employment within Capita.

If, during the consultation period, we are unable to resolve the current employment situation, it will be necessary to consider making redundancies.  Subject to the outcome of the consultation period, if you receive notice that your role has been made redundant, you will be allowed reasonable time off to seek alternative employment.

...

Throughout this period, please contact myself, Geoff McFarland or HR Adviser Alison Simpson, in the first instance, should you wish to discuss any alternatives you may consider to this proposal or if you have any concerns or queries.

Yours sincerely

Jamie Maginnis
Regional Service Manager – Ireland”

3.13	During the course of the meeting, it was made clear to the team, but also to the claimant, that the respondent, as part of the criteria for the redundancy process, did not intend to use sickness as a criteria; as it was not considered it would be fair to do so, given two members of the team, one of whom was the claimant, had had periods of long term sick absence due to serious illness, prior to the commencement of this redundancy process.

3.14	As set out in the letter, a copy of the proposed draft selection criteria matrix was given to each member of the team, along with the letter, for their review and information.  It was made clear at the meeting and in the said letter their views and feedback on the said draft criteria was welcome and would be further discussed at the next meeting.  At the meeting, not many questions were asked by the team, as it was readily understood the team were in shock at the announcement, albeit they were all fully aware of the downturn in work in the previous months, and would therefore need time to consider the terms of the announcement letter but also the draft criteria set out in the said matrix provided to them at the conclusion of the meeting.

3.15	The draft workshop matrix stated:-

			Criteria						Scoring

		1.	Appraisal (most recent) (20 pts)			Ex = 20   Ach = 5
										Other = 2

		2.	Average call rate (10 pts)				>4 = 0   >5 = 5
										>10 = 20

		3.	Warranty Qualifications 				<5 = 10   >5 = 20

4.	Knowledge/Experience of EDUPC		High = 20   Med = 10
										Low = 5

		5.	Knowledge/Experience of IS Printer		High = 20   Med = 10
										Low = 5

		6.	Knowledge/Experience of IS PC			High = 20   Med = 10
			(Warranty)						Low = 5

		7.	Knowledge/Experience of EDU Server		High = 20   Med = 10
										Low = 5

		Total points from each criterion for each member of the workshop team

	By way of further explanation of the said draft matrix:-

		(i)	Appraisal referred to most recent appraisal

(ii)	Scoring – Ex/Excellent, Ach/Achieved, Other reference to other appraisal scores that could be achieved

(iii)	Avg call rates/Average call rates

(iv)	IS reference to Infrastructure Services – which was Commercial Business – non-educational

3.16	There was a workshop team meeting on 1 April 2015.  It was attended by the claimant and all the other workshop engineers the subject of the redundancy process and Geoffrey McFarland (team leader) following the announcement on 27 March 2015.  Notes of that meeting stated, insofar as relevant, and which the tribunal is satisfied is an accurate summary of the main points which were raised and addressed at the meeting:-

“1.	Announcement Letter – feedback from the team was that this was a total shock and has come as a surprise.  The question was asked if the workshop was the only department being affected, I told the team that there were other departments within the company going through the same process.

 2.	Process discussed – I told the team there would be four 1 on 1 meetings over the 30 day consultation period and that they are entitled to be accompanied by a fellow employee or union rep ...

	I gave a rough outline of the meetings.  1.  Confirmation of announcement and the matrix.  2.  Score and redundancy package discussed.  3.  Feedback on score and the two at risk told.                 4.  1 on 1 meeting with the two engineers who scored lowest.  I told the group that until the whole process was finished the two engineers who scored the lowest could change at any time as scoring on the matrix could be challenged and changed if successful.
								[Tribunal’s emphasis]

 3.	Employee representative ... the team discussed and due to the small numbers of people involved thought it would not be necessary as they were happy enough to speak to myself or Jamie if required.

4.	Matrix – Scoring matrix given at the announcement was discussed and a few points were raised:

		4.1	score weighting inconsistent

4.2	AVG calls unfair as Education calls can be closed quicker due to parts available and no software involved

4.3	Warranty qualifications unfair as different engineers have had different opportunities for training

4.4	Only Education Server and PC Kit taken into consideration but there are other Education Kit looked at by engineers, ie UPS

4.5	A question was asked if IS and EDU PC category was just PCs, I informed them that it included laptops as well and was just a generic term

I told the team that I would pass the information back to Jamie and I would discuss any changes with him.

5.	Questions raised

5.1	Could a voluntary package be offered to encourage someone to come forward to avoid forced redundancy?

5.2	Could the final 2 be offered a position after redundancy in the new ENNI laptop rollout?

5.3	Job sharing – could the final two to part-time and share a wage through job sharing?

5.4	Would there be any help with CVs and looking for new jobs?

5.5	Wages covered by current contracts could the company not remove these costs from any future bids?

I informed the tem that I would discuss these with Jamie.”

3.17	The tribunal is satisfied the claimant was given every opportunity at the meeting to participate in the meeting, to ask questions, to address and/or comment on the issues raised but failed to do so at all.  He raised no objection to the changes proposed, as set out in the notes.  Jamie Maginnis did not attend the meeting, as he was away.  On his return, he was made aware of what had been discussed, as set out in the said notes.  Mr McFarland reported to Mr Maginnis that, following the discussion, he was satisfied by the response of the members of the team were content with the criteria to be used for the redundancy process.

	After reviewing what had been said at the meeting, Mr Maginnis agreed to change the criteria, as set out later, and which would be the subject of the further consultations with members of the team as part of the consultation process.  ‘Job share’ which had been raised, as an issue at the meeting, was not considered to be a relevant solution to avoiding redundancies, as it would have required four people to volunteer for such a situation, which was not seen as a relevant solution in the circumstances by the team.

3.18	As a consequence, a final workshop matrix was drawn up by Mr Maginnis as set out below:-

			Criteria						Scoring

		1.	Appraisal (most recent) (20 pts)			Ex = 20   Ach = 10
										Other = 5

		2.	Avg calls IS						>2 = 5   >3 = 10
										>5 = 20

3.	Average call rate (10 pts)				>4 = 5   >7 = 10
										>10 = 20

		4.	Warranty Qualifications 				30% = 5   50% = 10
										80% = 20

5.	Knowledge/Experience of EDUPC		High = 20   Med = 10
										Low = 5

		6.	Knowledge/Experience of EDU Misc		High = 20   Med = 10
										Low = 5

7.	Knowledge/Experience of IS Printer		High = 20   Med = 10
										Low = 5

		8.	Knowledge/Experience of IS PC			High = 20   Med = 10
			(Warranty)						Low = 5

		9.	Knowledge/Experience of EDU Server		High = 20   Med = 10
										Low = 5

		Total points from each criteria for each member of the workshop team”

3.19	Arising from the said meeting and what had been discussed, as set out in the said notes, the main changes reflected in the final matrix were, in summary, as follows:-

•	The scores for each criteria would be made consistent

•	The Avg calls would be split between Education and Commercial with a scoring more reflective of commercial calls taking longer.  It was recognised that commercial calls generally took longer to do than education calls and that, as a result, the two types of call required to be split.  It is important to note that each member of the team was not scored in both categories for the purpose of selection.  The claimant was scored under Education as the majority of his calls at the relevant time were Education calls.  It might have been more appropriate, with hindsight, to have made clearer on the matrix ‘Ave calls IS’ related to Commercial calls and ‘Avg call rate’ related to Education calls.  However the tribunal was satisfied, as part of the consultation process all members of the team were informed of the above distinction and that a number of the team was only scored under the one relevant heading not both.  (The reference in the matrix to Ave call rat ’10 pts’ was agreed to be a typographical error and the correct scoring was as set out under scoring at the bottom of the matrix.)

•	Warranty qualifications would be calculated using a percentage of exams done against numbers they could physically do, taking into account that not all the members of the team had been able to do the same amount of exams.

•	Another criteria should be added to include Education Miscellaneous items such as UPSs/Switches.

The tribunal is satisfied these changes arose from the discussion at the meeting raised by the members of the team.  The tribunal is not satisfied, as suggested by the claimant’s representative, that by making these changes to manipulate the result or was done with any mal intent.  There was no evidence that the scoring was not properly administered and the claimant’s scoring was not challenged at any time during the consultation process.  This was a close knit team, who had been working together for many years.  If the claimant genuinely felt that his managers were manipulating the redundancy process to achieve a result, whereby he was made redundant, or were acting with mal intent, that he would have raised some query about what was taking place during one or other of the consultation meetings significantly, but he failed to do so.

3.20	Following the drawing up of the final matrix, an individual consultation meeting was held with each member of the team, including the claimant.  These individual meetings all followed the same format.  Before each meeting started the issues raised during the meeting on 1 April 2015 were covered and no further issues were raised by the team, including the claimant.  In the notes of the meeting, signed by the claimant, it is stated, after reference to, inter alia, the announcement and proposed structure, method of selection and process and timetable, the claimant confirmed he had no comments in relation to same.  The selection criteria to be applied was discussed and the changes to the final matrix, which was attached to the notes, were highlighted.  Again the claimant made no comment or raised any issues.  Each employee was given until 8 April 2015 to feedback any queries or concerns but in fact none were raised.

3.21	Following these meetings on 3 April 2015, and in the absence of any further issues raised, Mr McFarland and Mr Maginnis worked through the matrix, scoring as appropriate, in advance of the next consultation meeting.  It will be necessary to consider this scoring in more detail later in this decision.  However, at the conclusion of the scoring exercise, the claimant was found to have the lowest score, namely 75.

3.22	With the said scores from the said matrix, Mr Maginnis and Mr McFarland then conducted a series of individual consultation meetings with each member of the team.  During the meeting there was a discussion about how the claimant compared with other members of the team and how, as a result he was at the bottom of the scoring.  Again the claimant said nothing of relevance during the meeting, as is confirmed by the notes of the meeting held with him, as set out below.

3.23	In the said notes of the meeting on 10 April 2015 of a redundancy individual consultation discussion with the claimant and Jamie Maginnis and Geoffrey McFarland, again signed by the claimant, it is stated, inter alia, he had no feedback from the first meeting on 3 April 2015.  He confirmed he understood the selection criteria and process and he had no comments to make on the method of assessment and scoring, as carried out by Mr Maginnis and Geoffrey McFarland, as set out in the final matrix.  Under the section ‘Understanding Skills : What are your skills?  Have you had specific training?  Do you have any professional qualifications?’, it is noted ‘see matrix’.  He had no suggestions for options that would mitigate the risk of redundancy.

3.24	As a consequence of the said meting, and that the claimant was in the bottom two of the said scoring, the following letter was sent from Jamie Maginnis to the claimant, dated 13 April 2015, insofar as relevant and material:-

“Thank you for attending the meeting with me on Friday 10th April, I would like to confirm the outcome of the selection process and take this opportunity to clarify the matters we discussed.  As you are aware you were included in a pool of workshop engineers where it was proposed that the number of employees be reduced from 7 to 5 and that selection for the roles in the new structure would be made by assessing each person against an agreed selection criteria.  As discussed, the assessment process has now been completed and unfortunately you have not been successful in the selection process for the roles in the new structure.

At our meeting I discussed the situation in detail with you and went through your scores for each of the selection criteria.

You confirmed that you accepted the situation and that you had no comments that you wished to make.

A copy of this assessment is attached to this letter ...

Going forward the company will continue to consult with you ... until the conclusion of the consultation period on 27/4/2015.  We will also continue to look for alternative positions for you within the organisation and I welcome your feedback regarding any ideas that you may have in order to mitigate the risk of redundancy.  I have to inform you however that unless anything changes in the meantime as stated above, it may be necessary to issue you with formal notice at the end of the consultation period which ends of 27/4/15.

You have the right to an appeal and if you wish to do so you can let myself or Geoff McFarland  know before 5 pm on 16 April 2015.

... .”

3.25	A further individual consultation meeting was held with the claimant on 17 April 2015.  As set out in the said notes of the said meeting, it is noted the meeting was to cover, inter alia, ‘Feedback on Selection’ and, significantly, in the view of the tribunal, the claimant confirmed, at the meeting, he had no comments to make in relation to how comments had been taken on board from the previous consultation meeting and, in particular, he had no feedback on the final assessment.

	(The notes of the said meetings are standard consultation documents; but the tribunal was satisfied the said notes accurately reflected what took place at the said meetings and in the consequential correspondence following each said meeting referred to [previously].)

3.26	At the conclusion of the said notes of the meeting, informing the claimant, the date of the next meeting on 17 April 2015, it was noted under ‘Process Going Forward’:-

•	Any comments will be reviewed against preliminary score and adjustments made as required

•	The company will look for alternative roles

•	Feedback will be provided on any questions/queries

•	You should contact me or your manager or employee/union rep with any questions

•	Further consultation meeting will be held

3.27	On 27 April 2015, the two lowest scoring members of the team, which included the claimant, as set out above, were required to attend a further individual consultation meeting.  As set out in the notes of the said meeting with the claimant, Jamie Maginnis and Geoffrey McFarland, which expressly confirmed the claimant had no feedback or queries from previous meetings after an update of situation -‘following announcement and selection unfortunately you were not selected for a role in the new structure and have remained at risk of redundancy.  To date we have been unable to find a redeployment opportunity for you.  The notes also stated he had not seen any suitable vacancies, he did not have any further suggestions for ways that could avoid the redundancy situation and there was no change to proposal or consultation process.  The notes confirmed, in the absence of alternatives, and not being able to find the claimant a redeployment opportunity, confirmation of formal notice of redundancy would be given, effective 28 April 2015; and also informed the claimant confirmation of the decision would be provided along with right of appeal.

	It was at no time suggested by the claimant or his representatives, that the respondent, after relevant enquiries had been made by Mr Maginnis and/or Mr McFarland, that the respondent was in a position to provide alternative employment/redeployment, in the absence of any other relevant vacancies.

3.28	A letter was sent from Jamie Maginnis to the claimant, dated 28 April 2015, which stated, insofar as relevant and material:-

“Further to my letter dated 27 March 2015 and our recent discussions you were advised that in recent years our workshop calls have dropped year on year.  The type of call has also changed from high end technical repairs, fixing equipment at component level to now where the bulk of our calls are low end replacements.  This has resulted in us having too many higher skilled engineers then required for the business that we can win.  Most of the contracts that we bid for require hardware either to be fixed extremely quickly at low cost or disposed of, this can’t be achieved with the current workshop model and that this may result in possible redundancies.  During the consultation period, we met with you to discuss the situation further and also to explore redeployment options across the business.  This was in order to consider ways of avoiding compulsory redundancies.  In addition, we met with you on 27 April 2015 to consider the matters discussed to date, prior to making a final decision.  A summary of the notes of this meeting are attached.

Throughout the consultation period we have attempted to seek alternative employment within Capita.

I regret there are no suitable alternative vacancies available at the present time.

We have now considered all matters raised during the consultation period and at our recent meeting with yourself, but regrettably no viable alternative proposals have been provided and therefore the need for the business to make redundancies remains unchanged.  This letter is to be treated as formal notice that your role as workshop engineer is redundant and serves as formal notice of your dismissal due to redundancy.  Your redundancy will be effective from 28 April 2015 ...

...

You have the right to appeal against this decision and, in this event, should inform me in writing, setting out the grounds for your appeal within 7 days of receiving this letter.  If I do not hear from you within this time, I will assume that you accept my final decision.

... .”

The claimant did not appeal the said decision.

3.30	In the scoring under the said matrix the claimant scored as follows:-

		1.	Appraisal (most recent) (20 pts)
			20

		2.	Av calls IS
			0

		3.	Avg call rate
			5 pts

		4.	Warranty qualifications
			10

		5.	Knowledge/Experience of EDU PC
			10

		6.	Knowledge/Experience of EDU Misc
			5

		7.	Knowledge/Experience of IS Printer
			10

		8.	Knowledge/Experience IS PC (Warranty)
			10

		9.	Knowledge/Experience EDU Server
			5

			Total  75

3.31	The claimant was given ‘full marks’ for the criteria of appraisal.  He was not scored under the second criteria, which related to commercial work, because, at the relevant time, the majority of his calls were education calls (ie third criteria).  Indeed, it became apparent, during the course of the hearing, the claimant was under the mistaken impression that he had been marked under the both the second and third criteria.  The claimant did not dispute that he had been doing education work from in or about 2013.  It was therefore appropriate, in the judgment of the tribunal, he was only scored under the said third criteria.  Under the third criteria, the claimant was given a mark of five.  In working out his average call rate from the relevant statistics, obtained by the respondent prior to scoring the claimant and the other members of the team, the tribunal was satisfied his sick absence during 2014 had no impact on this calculation.  It was apparent from the said statistics that the claimant had 732 calls (combined IS (commercial calls) and ENNI (education calls)) and of these 690 (95%) were education calls.  His average calls, as shown in the statistics, were 4.9 (95% of which were education) and therefore fell in the category > than 4, < than 7 and he was therefore properly given the score of 5 under the said criteria.  Although the claimant disputed, in evidence, the 95% figure, he did not produce any relevant evidence to show a different figure and, indeed, he accepted that a good proportion of his said work at the relevant time was education work.  He also accepted, in evidence, that, generally, commercial work took longer than education work and that he therefore understood why it had been appropriate for him to be scored under the third criteria and not the second criteria.  He also acknowledged that in those circumstances it was appropriate for the second and third criteria, following discussion with the team, had to be introduced into the final list of criteria.  He also accepted C and P did mainly commercial work at the relevant time and were therefore properly scored under the second criteria.

3.32	In relation to the criteria of warranty qualifications, these were the qualifications each member of staff had to achieve in a set of exams which the manufacturers required for work to be done on various pieces of equipment; and as a consequence when achieved, allowed the respondent to obtain certain rebates.  The claimant was given the mark of 10 against this category – which suggested he had achieved in excess of 50%.  The statistics obtained by the respondent for notebook tablet training suggested he had achieved relevant qualifications against Dell PC and Dell SD and against Denovo DKP and Lenovo LPB, Lenovo Tab.  It was considered by Mr Maginnis and/or Mr McFarland that the Lenovo qualifications should not be included as these had been introduced after he went off sick; with the result that these were excluded from the calculation.  In relation to printer training, the relevant record showed he had only completed two out of a possible five (40%).  Following the scoring matrix, he should only have therefore achieved 5 not 10, which was only for those who had achieved 50%.  It seems Mr Maginnis and Mr McFarland, decided to give the claimant the benefit of the doubt and to mark him on the basis of 50% and not 40%.  This again reinforced the tribunal’s view that there was no issue of manipulation/ mal intent, as referred to previously.  It should be noted, in this context, the claimant, in the course of his evidence suggested he had relevant Dell qualifications when he went off sick; albeit the records obtained by Mr Maginnis/Mr McFarland, as he accepted, showed differently.  The claimant, during the redundancy process and, in particular, the consultations, did not suggest the respondent’s records were inaccurate and therefore his resultant scoring was wrong.  At the hearing, he produced no other relevant evidence, other than his bland assertion that he had the said qualifications.  Given the absence of any challenge at the time and the benefit of the doubt which was given to the claimant, when scoring this criteria, the tribunal could not see any grounds for criticism of the respondent.  Indeed, it became apparent, during cross-examination of the claimant, that the claimant’s assertion that he may have had relevant Dell qualifications may have been based on a misunderstanding by him, where he was referring to administrative examinations (not the substantive examinations) which only allowed the claimant to order parts but did not give the respondent the relevant rebates, referred to above.

3.33	In relation to the fifth and sixth criteria, these were introduced by the respondent to capture the knowledge and experience members of the team had of education equipment.  In relation to EDUPC – this was to cover the PCs/laptops of the education customers of the respondent; and EDU MISC was to cover other devices used in education (eg communication, uninterrupted power supply devices/UPS/network devices).  It has to be recalled that, in the original draft matrix, the sixth criteria was not included; but again, following discussion at the meeting with Geoffrey McFarland, it was included, as this was acknowledged by the management, but also the members of the team, as important technology worked on but not ‘covered’ by the fifth criteria.  Again, the relevant data obtained by the respondent showed the breakdown of those working on the education PCs and laptops and the tribunal was satisfied that the mark for the claimant of 10 for the fifth criteria properly reflected that he fell within the ‘midpoint’ of the said data.  It has to be noted that the marks given to the other members of the team also properly reflected the said data and, in particular, that some other members of the team had done more work on such equipment and for longer and some for less.  C, for example, was only give 5 marks (see later).  In considering the data and how to mark each member of the team under high/med/low, the tribunal acknowledges that an element of subjective judgment was inevitably involved on the part of the managers in coming to a final decision on the precise score to be made.  This was based, in the judgment of the tribunal, on their intimate knowledge of the actual work carried out by the members of the team.  This could never be a strictly mechanistic exercise.  Significantly, the claimant, although fully aware of what marks he had been given, at no time sought to challenge them at any of the consultation meetings.  

	In considering the sixth criteria, similar decisions were made in light of the data obtained by the respondent, relating to call volumes.  In the recent past, the claimant, through no fault of his own, because of changes made to his work, had no relevant calls reflected in the said data.  Since it was accepted he would have had the knowledge, but not the experience, it would have been possible for the claimant to have been given no marks under this criteria.  However, reflecting his knowledge, the claimant was given, properly in the tribunal’s view, a mark of 5 (ie low).  The tribunal is satisfied, as stated previously, the inclusion of the criteria in the final matrix arose out of the discussion at the meeting with the team held by Mr McFarland, before the matrix was finalised.  The claimant suggested, in evidence, he had no recollection of such a discussion at the meeting, which the tribunal found less than credible in the circumstances.

3.34	The seventh criteria related to the commercial work, which, as stated previously, was declining; albeit printer work remained an important part of what remained.  Again, in order to obtain the score, use was made of the relevant data from the call numbers.  It was acknowledged that, although the claimant had the knowledge, he had not done little or no work on such printers in the relevant past.  At the relevant time, the tribunal is satisfied the person carrying out the majority of the work on such printers was C.  It was not surprising, in those circumstances, C was awarded 20 marks in comparison with the claimant’s 10 (see also later).

3.35	In relation to the eighth criteria, this was to include the commercial work with PCs.  The reason warranty was in brackets was that more recently PCs were under warranty.  Again the relevant call data showed P had done the most of such calls and this was reflected in his mark of 20, which was the highest under this criteria.  C, for example, got 5, the lowest.  Given the claimant’s data showed no calls, the managers, properly in the tribunal’s opinion, decided to give a mark of 10 – to acknowledge that although he did not have the specific experience, he did have some knowledge.  The above difference in marks between members of the team against is a reflection that considerable care was taken in the scoring under each criteria for each member of the team.

3.36	In relation to the ninth criteria, this was to cover the work on service in the educational environment.  Again the relevant call data under ENNI (education calls) was considered.  Under the server, the claimant had only done one call, whereas PH had done 304 calls.  Not surprisingly PH scored 20, whereas the claimant only scored 5, along with the other members of the team who had no calls under the data.  The tribunal accepts there was little or no difference, for the purposes of scoring between 0 and 1 call.  D who had 7 calls was given a mark of 10 to reflect his 7 calls, as set out in the data.  

3.37	In contrast with the initial scoring method under the first draft matrix, by using a score of 5, 10 or 20 in the final matrix, the tribunal accepts the respondent was able to reflect a more consistent system of scoring between the various criteria to be applied under the matrix.  The tribunal had no difficulty in accepting that the call repair data, given the work of the team, was appropriate data to base the scoring – since it reflected factual measure of the work each member of the team carried out.  It also, in particular, when considering knowledge and experience, was a good basis for such a calculation, combined with the knowledge of the relevant line manager, where required, in particular Mr McFarland, as team leader, who knew from personal knowledge what each member of the team actually did.  Indeed, every member of the team, including the claimant, given their long period working together knew very well what work was done by each of them.

3.38	The claimant suggested he had as much printer experience as C; but the tribunal had no difficulty in accepting the evidence of Mr Maginnis and Mr McFarland, that his principle work, in the past and ongoing, was on printers.  This was therefore properly reflected in the scoring in the matrix, as set out previously.  It was acknowledged the claimant did have experience on printers but not as great as C and, in particular, given the more recent changes in technology applicable to printers.  As a consequence, the tribunal is satisfied this was properly reflected in the marking of the claimant on the matrix in contrast to C, where C obtained 20 and the claimant obtained 10.  Similarly, given that P’s principle work was on ISPCs, it was not surprising he scored 20 in the eighth criteria (see before); but, as expected, scored lower in the other criterion, where he could not show he had been working on the relevant equipment.

3.39	Again, the tribunal could find no evidence, as suggested by the claimant, that the line managers, Mr Maginnis and/or Mr McFarland ‘targeted’ N, as part of the redundancy process, who achieved a score of 80.  Indeed, at a consultation meeting N’s score, following challenge by him, was adjusted from 10 to 20 in relation to his printer work, which was more recent than that of the claimant.  It meant this change made no difference to the outcome of the process.  However, it reflects that, where appropriate, after explanation, changes were made to the scoring during the consultation process.  Significantly, the claimant did not take this opportunity.

3.40	At all times, as set out previously, the criteria were chosen by the respondent’s managers to try to capture the skills and knowledge required by the respondent going forward, in light of the financial difficulties which it faced.  Unfortunately, through no fault of their own, some of this work was no longer required, following, for example, the loss of the supermarket contracts supporting the customers tills etc.  The tribunal is satisfied the criteria and method of scoring were properly finalised after consultation and took into account the fact, not disputed by the claimant, that it takes longer to repair, for example, commercial PC, in comparison to an education PC; and further this distinction was reflected and achieved by separating the commercial and education calls.  Obviously, the changes made between the first draft matrix and the final matrix, resulted in changes in the process and potentially to the final outcome.  However, all the members of the team were entitled and given the opportunity to participate in the discussions which resulted in the final matrix.  The tribunal is satisfied the changes were properly made, following consultation and not for any manipulative purpose or mal intent, as suggested by the claimant in the course of these proceedings.  Indeed, it reflects the proper purpose of a genuine consultation process, which the tribunal is satisfied occurred in this case.  The claimant had every opportunity to involve himself in the discussion at the meeting with Mr McFarland and subsequent consultation about the changes and the scoring given to him; but did not do so at the relevant time.

4.	Relevant legislation and law

4.1	The Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) provides:-

“1(i)	Article 126 of the 1996 Order:-

(1)	An employee has the right not to be unfairly dismissed by his employer.

  (ii)	Article 130 of the 1996 Order:-

(3)	In determining for the purposes of this Part whether the dismissal of the employee is fair or unfair it is for the employer to show –

(a)	the reason (if more than one the principal reason) for the dismissal; and

(b)	that it is either a reason falling within Paragraph (ii) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2)	The reason falls within this paragraph if it –

		...

		(c)	is the employee was redundant, or

		...

(4)	Where the employer has fulfilled the requirements of Paragraph (1) the determination of the question whether the dismissal is fair or unfair, (having regard to the reasons shown by the employer) –

(a)	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 dismissing the employee; and

...

(c)	shall be determined in accordance with equity and the substantive merits of the case.

		...

(6)	Paragraph (4) is subject to Article 130A ... .

  (iii)	Article 130A of the 1996 Order –

(1)	An employee who is dismissed shall be regarded for the purposes of this Part is unfairly dismissed if –

(a)	one of the procedures set out in Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Procedures) applies in relation to the dismissal;

(b)	the procedure has not been completed; and

(c)	the non-completion of the procedure is wholly or mainly attributable to the failure by the employer to comply with these requirements.

(2)	Subject to Paragraph (1) failure by an employer to follow a procedure in relation to the dismissal of an employee will not be regarded for the purposes of Article 130(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to have dismissed the employee if he had followed the procedure.

(3)	For the purposes of this Article, any question as to the application of the procedure set out in Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to Regulations under Article 17 of that Order.”

4.2	Substantial changes to the law of unfair dismissal were introduced, following the commencement in April 2005 of the Employment (Northern Ireland) Order 2003 (‘the 2003 Order’); and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (‘the 2004 Regulations’).  

The 2003 Order and the 2004 Regulations introduced, inter alia, statutory procedures to be complied with by an employer relating to matters of discipline and/or dismissal.  These provisions came into operation on 3 April 2005.  They were not repealed by the Employment Act (Northern Ireland) 2011 and were therefore applicable, insofar as relevant and material to this matter.  In essence, the statutory procedures, which were introduced under the said legislation, require employers, subject to certain exceptions, to follow a specific minimum procedure when subjecting employees to disciplinary action or dismissal.

As the claimant’s representative, during the course of the hearing, accepted that the minimum statutory dismissal procedures, pursuant to the 2003 Order and the 2004 Regulations had been complied with by the respondent in the procedures used by it in relation to this redundancy exercise, it is not therefore necessary to set out the detail of the said statutory procedures and the consequences of any failure to comply with same.  In the circumstances, therefore, no issue of automatic unfair dismissal, pursuant to Article 130A of the 1996 Order arose to be further considered and determined by the tribunal in this matter (see further Venniri  v  Autodex Ltd [UKEAT/0436/07]).

4.3	Article 174 of the 1996 Order provides:-

“(1)	For the purposes of this Order an employee who is dismissed shall be taken to be dismissed by reason 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. 

...

(5)	In Paragraph (1) ‘cease’ and ‘diminish’ mean cease and diminish either permanently or temporarily and for whatever reason.”

The respondent’s representative accepted that, when the claimant had been dismissed by the respondent by reason of redundancy, the respondent relied on Article 174(1)(b)(i) and/or (ii), as set out above.  In this context, it is also necessary to note that the respondent did not seek to contend the dismissal was for some other substantial reason such as to justify the dismissal of an employee holding the position which the claimant held (see Murphy  v  Epsom College [1984] IRLR 271).

4.4	It was not disputed by the parties that once the fact of dismissal has been established, the burden in on the employer to establish, pursuant to Article 130(1) of the 1996 Order, the reason relied on by it.

The employer is only allowed to rely upon facts known to him as at the time of the dismissal to establish what the reason for the dismissal was.  Facts which came to light after the dismissal cannot be relied upon to justify the dismissal, although they may be relevant to the issue of any compensation to be awarded to the employee by the employer (Devis and Sons Ltd  v  Atkins [1977] ICR 662).

4.5	Given it was not disputed by the parties that the dismissal in the present proceedings was by reason of redundancy, the question of whether the said reason did in fact justify the dismissal required the tribunal to consider whether the respondent acted reasonably in all the circumstances in treating the reason as sufficient, pursuant to the provisions of Article 130(4) – (6) of the 1996 Order (see further Harvey on Industrial Relations and Employment Law, Section D1, Paragraph 808 and Mental Health NHS Trust  v  Sarkar [UKEAT/0479/08], where it was established, in relation to the issue of fairness, there is no burden of proof on either party.  In essence, it has long been established that, in relation to the matters set out in Article 130(4) of the 1996 Order there is a ‘neutral’ burden of proof (see further DSG Retail Ltd  v  Mackey [2013] UKEAT/0454/13 and Singh  v  DHL Services [2013] UKEAT/0462/12.

4.6	In Iceland Frozen Foods Ltd  v  Jones [1982] IRLR 439, Browne-Wilkinson J offered the following guidance in relation to the correct approach for a tribunal to adopt in answering the question posed by Article 130(4) of the 1996 Order, as referred to above, namely:-

“ ...

(1)	the starting point should always be the words of [section 57(3)] themselves;

(2) 	in applying the section an industrial tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;

(3)	in judging the reasonableness of the employer's conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

(4)	in many (though not all) cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;

(5)	the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted.  If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.”

In Sainsburys Supermarkets Ltd  v  Hitt [2003] IRLR 23, it was held by the Court of Appeal that the objective standards of the reasonable employer must be applied to all aspects of the question whether an employee was fairly and reasonably dismissed.  Although these are cases relating to dismissal for misconduct, this guidance is also relevant and to be followed in the case of dismissal for redundancy, when applying Article 130(4) of the 1996 Order (see further Halpin  v  Sandpiper Books Ltd [2012] UKEAT/0171/11 and The Post Office  v  Foley [2000] IRLR 827).]

The guidance set out in Iceland Frozen Foods Ltd  v  Jones [1982] IRLR 439 was followed and adopted in this jurisdiction in the Court of Appeal in the cases of:-

	Dobbin  v  Citybus Ltd [2008] NICA 42; and

Rogan  v  South Eastern Health & Social Care Trust [2009] NICA 47

Again more recently in the cases of:-

Antrim Borough Council  v  McCann [2013] NICA 7; and

Gould  v  Regency Carpet Manufacturing Ltd [2013] NICA 26

The procedural defects in an initial dismissal hearing may be remedied on appeal, provided that in all the circumstances, the appeal is sufficient to cure any earlier unfairness (see Taylor  v  OCS Group Ltd [2006] EWCA Civ 702):-

“If an early stage of a disciplinary process is defective and unfair in some way then it does not matter whether or not an internal appeal is technically a re-hearing or a review, only whether the disciplinary process as a whole is fair.  After identifying a defect a tribunal will want to examine any subsequent proceeding with particular care.  Their purpose in so doing will be to determine whether, due to the fairness or unfairness of the procedures adopted, the thoroughness or lack of it of the process and the open-mindedness (or not) of the decision-maker, the overall process was fair, notwithstanding any deficiencies at an early stage.”

As referred to previously, the claimant did not exercise his right of appeal in this matter.

4.7	As stated previously, dismissal for redundancy is potentially a fair reason for dismissal (see Article 130A(2)(c) of the 1996 Order).  In this context, redundancy has the meaning assigned by it by Article 174 of the 1996 Order, as set out previously.  

It has long been recognised that generally it is not open to an employee to claim that his dismissal is unfair because the employer acted unreasonably in choosing to make workers redundant.  

In Moon  v  Homeworthy (Northern) Ltd [1976] IRLR 298, the Employment Appeal Tribunal emphasised that it was not the job of the courts or tribunals to review that business decision.  In James W Cook & Company (Wivenhoe) Ltd  v  Tipper [1990] IRLR 386, the Court of Appeal confirmed that it was not for the court to investigate the commercial and economic reasons prompting the particular redundancy.  In Tipper, the Court of Appeal, however, recognised that the tribunal can question in an appropriate case, the genuineness of the decision and the tribunal should be satisfied that it is made on the basis of proper information.

In Harvey on Industrial Relations and Employment Law, Section D1, Paragraph 1654, it is noted that:-

“Essentially they simply require the employer to provide evidence to show that the alleged reason for dismissal does have some basis in fact, and that a proper business decision has been reached.  If the employer fails to satisfy a tribunal of this, he has not established that redundancy is the true reason for dismissal.  The wisdom or otherwise of that decision remains beyond the tribunal’s scrutiny.”

Further, in Harvey on Industrial Relations and Employment Law, Volume 1, Section E, Paragraph 277, it is emphasised:-

“ ... The point cannot be made too strongly that the act is not concerned to enquire what caused the redundancy situation.  The question is what was the reason for the dismissal not what was the reason for the redundancy.  ERA 1996 enquires whether the dismissal was attributable to a cessation of the business of a cessation of, or diminution in, its requirements, but says in terms that the cessation or diminution may arise (for whatever reason) [ERA 1996, Section 139(6)].  To that extent the employer does not have to justify a declaration of redundancies.  For the purposes of the redundancy scheme, the tribunal will not go behind the facts and investigate how the redundancy situation arose and whether it could have been avoided and whether there are any viable alternatives; the tribunal will not go into the rights or wrongs of a declaration of redundancy ... .”

In these particular proceedings, as set out previously, the respondent’s representative did not question the requirement for a redundancy exercise to be carried out but rather questioned the selection of the claimant on foot of that redundancy exercise.]

4.8	In Williams  v  Compair Maxam Ltd [1982] IRLR 83, the Employment Appeal Tribunal gave general guidance to tribunals in determining whether dismissal for redundancy was fair under [Article 130(4) of the 1996 Order]:-

“ ... there is a generally accepted view in industrial relations that, in cases where the employees are represented by an independent union recognised by the employer, reasonable employers will seek to act in accordance with the following principles:

(1)	The employer will seek to give as much warning as possible of impending redundancies so as to enable the union and employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and, if necessary, find alternative employment in the undertaking or elsewhere.

(2)	The employer will consult the union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible.  In particular, the employer will seek to agree with the union the criteria to be applied in selecting the employees to be made redundant.  When a selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria.

(3)	Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency at the job, experience, or length of service.

(4)	The employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider any representations the union may make as to such selection.

(5)	The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment.

The lay members stress that not all these factors are present in every case since circumstances may prevent one or more of them being given effect to.  But the lay members would expect these principles to be departed from only where some good reason is shown to justify such departure.  The basic approach is that, in the unfortunate circumstances that necessarily attend redundancies, as much as is reasonably possible should be done to mitigate the impact on the work force and to satisfy them that the selection has been made fairly and not on the basis of personal whim.”

These guidelines were expressly approved in Robinson  v  Carrickfergus Borough Council [1983] IRLR 122, a decision of the Northern Ireland Court of Appeal.

In Polkey  v  AE Dayton Services Ltd [1988] ICR 344, referred to previously, the House of Lords referred to the relevant procedures required in a redundancy dismissal in the following terms:-

“In the case of redundancy, the employer will normally not reasonably unless he warns and consults employees affected or their representative, adopts a fair basis on which to select for redundancy and takes such steps as may be reasonable to avoid or minimise redundancy by redeployment within his own organisation.”

In Langston  v  Cranfield University [1998] IRLR 172, the Employment Appeal Tribunal held that, so fundamental are the requirements of selection, consultation and seeking alternative employment in a redundancy case, they will be treated as being an issue in every redundancy unfair dismissal case.  

HH Judge P Clark stated at Paragraph 33F of his judgment:-

“Normally, an employer can be expected to lead some evidence as to the steps which he took to select the employee for redundancy, to consult him and/or his trade union and to seek alternative employment for him.”

In British Aerospace PLc  v  Green & Others [1995] IRLR 433, Waite LJ observed:-

“In general, an employer sets up a system of selection which can reasonably be described as fair and applies it without any overt sign of conduct which mars its fairness, will have done all that the law requires of it.”

Further, in British Aerospace PLc  v  Green it was held that in cases of alleged unfair selection for redundancy, documents relating to assessments of retained employees are not likely to be relevant in any but the most exceptional circumstances.  The question for the Employment Appeal Tribunal, which must be determined separately for each claimant, is whether that claimant was unfairly dismissed, not whether some other employee could have been fairly dismissed.  The tribunal is not entitled to embark upon a reassessment exercise.

4.9	In the decision of the Employment Appeal Tribunal in the case of Halpin  v  Sandpiper Books Ltd [2012] UKEAT/0171/11, it was confirmed that the correct approach to dealing with redundancies is set out in Williams  v  Compare Maxim Ltd [1982] IRLR 83.  It also confirmed that decisions as to pools and criteria are matters for management and rarely will it be for the Employment Tribunal to interfere with any such decisions.

	In Taymech  v  Ryan [UKEAT/0663/94], Mummery J, as he then was, said on the issue of the basis of the pool of selection:-

“There is no legal requirement that a pool should be limited to employees doing the same or similar work.  The question of how the pool should be defined is primarily a matter for the employer to determine.  It would be difficult for the employee to challenge it where the employer has genuinely applied his mind the problem.”

	In Capita Hartshead Ltd  v  Byard [UKEAT/0445/12], it was held:-

“ ... 

(d)	the Employment Tribunal is entitled, if not obliged, to consider with care and scrutinise carefully the reasoning of the employer to determine if he has ‘genuinely applied’ his mind to the issue of who should be in the pool for consideration for redundancy; and that

(e)	even if the employer has genuinely applied his mind to the issue of who should be in the pool for consideration for redundancy, then it will be difficult, but not impossible, for an employee to challenge it.”

Certainly, subject to the foregoing, a tribunal is not entitled to substitute its view for that of an employer, who has genuinely applied his mind to the said issue (see further Family Mosaic Housing Association  v  Badman [UKEAT/10042/13].

In Fulcrum Pharma (Europe) Ltd  v  Bonassera [UKEAT/0198/10] there was no criticism of the management decision to have a pool of two, the employer’s failure rated to the failure to consult on the size of the pool.

4.10	As set out in Paragraph 1687 of Harvey on Industrial Relations and Employment Law, Section D1:-

“It is now well-established that tribunals cannot substitute their own principles of selection for those of the employer.  They can interfere only if the criteria adopted are such that no reasonable employer could have adopted them or applied them in a way which the employer did (see EG Earl of Bradford  v  Jowett (No 2) [1978] IRLR 16; and NC Watling  v  Richardson [1978] IRLR 255.”

Further, in Paragraph 1701.01 of Harvey it is stated:-

“However, objectivity cannot be considered an absolute requirement and ultimately this all remains a question of balance.  In the early case of Graham  v  ABF Ltd [1986] IRLR 90, the EAT refused to find that the tribunal had erred in law when it concluded that redundancy criteria based on ‘quality of work, efficiency in carrying it out and the attitude of the persons evaluated to their work’ were not so intrinsically nebulous and subjective that they could not form proper criteria for selection (though not the interesting rider that it had had that the vaguer the criteria the more important it was for the employer to consult).  More recently there has arguably been a move to a rebalancing in this area, stressing that objective criteria are only one factor and, perhaps more importantly, that few criteria can ever be wholly objective; an element of judgment and/or assessment will often be involved and the overall question remains whether that element was carried out fairly.  This approach was seen in Samsung Electronics (UK) Ltd  v  Monte-(d)’Cruz [UKEAT/0039/11] and the specialised context of effecting redundancies by dismissing all and re-appointing some.  However, it was subsequently applied to ‘straight’ redundancy selection in Mitchells of Lancaster (Brewers) Ltd  v  Tattershall [UKEAT/0605/11] where the EAT upheld as fair the selection for redundancy in one of five members of the senior executive team of a small brewery in financial difficulties, done purely by the directors and largely on the basis of who they could best afford to lose.  Obviously the size of the undertaking and the urgency of the situation were relevant, but more generally, the Master of the Rolls said:-

‘Just because criteria for this sort are of matters of judgment, it does not mean that they cannot be assessed in a dispassionate or objective way, though inevitably such criteria involves a degree of judgment, in the sense that opinions can differ, possibly sometimes quite markedly, as to precisely how the criteria are to be applied, and the extent of which they are satisfied, in any particular case.  However that is true of virtually any criterion, other than the most simple criterion, such as length of service or absenteeism record.  The concept of the criterion only be valid if it can be ‘scored or assessed’ causes little concern, as it can be invoked to limit procedures to box ticking exercises’.

This was then cited and applied in Nicholls  v  Rockwell Automation Ltd [UKEAT/0540/11], another straightforward case of redundancy selection.  Thus, challenged by selected employee purely on the ground that one or more criteria was too subjective may now be dubious, he or she may also have to show that the subjective element was applied unfairly.  On the other hand, from an employer point of view, it is still good advice to make the criteria as objective and measureable as possible in order to minimise challenges in the first place.”

	Further in Paragraph 1702.01 of Harvey it is stated:-

“It appears, however, that the courts will not be willing to carry out a detailed re-examination of the way in which the employer applied the selection criteria.  In Eaton Ltd  v  King [1995] IRLR 75 the Scottish EAT (Lord Coulsfield presiding) stated that it was sufficient for the employer to have set up a good system for selection and to administer it fairly.  This approach was expressly endorsed by both Waite and Millett LJJ, in the Court of Appeal decision in British Aerospace PLc  v  Green [1995] IRLR 437 ... Waite LJ summed up the position as follows:-

‘Employment law recognises, pragmatically, that an over-minute investigation of the selection process by the tribunal members may run the risk of defeating the purpose which the tribunals were called into being to discharge - namely a swift, informal disposal of disputes arising from redundancy in the workplace.  So in general the employer who sets up a system of selection which can reasonably be described as fair and applies it without any overt sign of conduct which mars its fairness will have done all that the law requires of him’.

In 1702.2 similar sentiments were expressed by Pill LJ in Bascetta  v  Santander [2010] EWCA Civ 351:-
‘The tribunal is not entitled to embark upon a reassessment exercise.  I would endorse the observations of the appeal tribunal in Eaton Ltd  v  King ... that it is sufficient for the employer to show that he set up a good system of selection and that it was fairly administered, that ordinarily there will be no need for the employer to justify all the assessments on which the selection for redundancy was based’.”

In First Scottish Searching Services Ltd  v  McDine [UKEATS/0051/10] the Employment Appeal Tribunal held that a tribunal had fallen into the trap of ‘microscopic’ or ‘over-minute’ examination of a particular redundancy exercise.

It is also necessary to have regard to the warning by Waite LJ in British Aerospace PLc  v  Green when he said that in relation to the workings of the selection criteria ‘are not to be scrutinised officiously’.

4.11	In Eaton Ltd  v  King [1996] IRLR 199, in relation to the issue of consultation which, as set out previously in the case of Polkey, is an essential part of a redundancy exercise, it was held that:-

“Although the consultation required of an employer before dismissing on the grounds of inefficiency may be directly with the employees concerned or with their representatives, such consultation must be fair and proper.  The definition set out by Glidwell LJ in R  v  British Coal Corporation ex parte Price – that fair consultation means (a)  consultation when the proposals are still at a formative stage; (b)  adequate information on which to respond; (c)  adequate time in which to respond; and (d)  conscientious consideration by an authority of a response to consultation. – would be adopted.

Although individual consultation is not always necessary (see further Mugford  v  Midland Bank Plc [1997] ICR 399) an employee should have the opportunity to contest their selection, either themselves or through their trade union.  This can involve showing the employees the marks given to them in a selection process.  However, in Davies  v  Farnborough College of Technology [2008] IRLR 14 the EAT held that an employee must be given sufficient information so that he may understand the dismissal and be placed in a position to challenge the accuracy of markings, correct them, and provide supplemental information.  This may be something short of disclosing actual markings to the employee.  However, what the employer must disclose in order to have acted within the range of reasonable responses would turn upon the facts of the case, with factors of particular relevance being what the employee asked for and whether he/she challenged the scores awarded to him/her (see further Camelot Group PLC  v  Hogg [UKEATS/0019/10].”

4.12	It has long been held that a dismissal of an employee may be considered unfair if no consideration is given to finding him another job within that company, or if the company is a member of a group, within that group (Vokes Ltd  v  Bear [1974] ICR 1.  

	In Byrne  v  Arvin Meritor LUS (UK) Ltd [UKEAT/0239/02] Burton P put it thus:-

“The obligation of an employer to act reasonably is not one which imposes absolute obligations, and certainly no absolute obligation to ‘bump’, or even consider ‘bumping’.  The issue is what a reasonable employer would do in the circumstances and, in particular, by way of consideration by the tribunal, whether what the employer did do was within the reasonable band of responses of a reasonable employer?”

5.1	In light of the facts as found by the tribunal, and after applying the guidance set out in the legal authorities referred to in the previous paragraphs of this decision, the tribunal reached the following conclusions, as set out in the following                      sub-paragraphs.  

5.2	As stated previously, it was not disputed the claimant had been dismissed by reason of redundancy.  In such circumstances, it was therefore necessary for the tribunal to consider whether the respondent acted reasonably in all the circumstances in treating the reason as sufficient, pursuant to Article 130(4) – (6) of the 1996 Order (see further Paragraph 4.5 of the decision).  In doing so, the tribunal took into account it was not what this tribunal would have done but rather whether, in the particular circumstances of the case, the decision to dismiss fell ‘within the band of reasonable responses’, as set out in the various authorities referred to in Paragraph 4.6 of this decision.

5.3	The tribunal, as set out in the facts found by it, could find no fault in the redundancy process adopted and carried out by the respondent and concluded that the process followed by it was fair and reasonable.  The changes to the original criteria to those set out in the final matrix were appropriate in the circumstances and, in particular, followed relevant discussion and consultation with all the members of the team, including the claimant.  The claimant, in essence, took no part in the discussion at the meeting and indeed raised no objections/challenges during the discussion or to the scores given to him during the consultation process.  In essence, the claimant has sought, during these proceedings, to re-start the whole process, which in the judgment of the tribunal, without more, he is not entitled to do.  Further, the tribunal is not required to enter into a microscopic/over-minute                       re-examination of the redundancy exercise (First Scotland Searching Services Ltd).  The tribunal is not normally entitled to embark on a reassessment exercise, any more than the claimant (see Bascetta  v  Santander) unless, for example, he had shown there was some evidence to suggest a claim of manipulation/mal intent; of which, as set out previously, there was none.  In particular, there was no evidence of manipulation/mal intent or targeting by the relevant managers, Mr Maginnis/Mr McFarland, in any action taken by them during the said redundancy process.  Indeed, where appropriate, the claimant was given the benefit of the doubt and scored accordingly.  Where it was necessary for the relevant managers to exercise some subjective judgment, within the terms of the criteria and the marking system adopted, again the tribunal is satisfied that they both did so properly, based on their own knowledge, especially Mr McFarland, of the actual work carried out by each member of the team; but also did so in the context of what the statistical evidence/record obtained by them showed.

5.4	The tribunal considered carefully and in detail the criteria and marking scheme adopted and applied by the respondent in this redundancy process, which, of course, arose in the context of the difficult financial situation the respondent found itself, which was not in issue between the parties.  As found by the tribunal, there was no criticism to be made of the actions taken by the managers, after the tribunal examined in some detail the actions carried out by them during the course of the process.  Consultation, as set out in the legal authorities, is a crucial factor in any redundancy process.  In the tribunal’s view, the consultation, which took place in this particular matter, was genuine; and, indeed, it was apparent from the changes to the criteria following the meeting with Mr McFarland, that what was said at that meeting was listened to and appropriately acted upon.  Indeed, if the criteria had not been changed to reflect, for example, the difference between commercial/education work, as acknowledged by the claimant, the process might have been found to be flawed and/or unfair.  The claimant was given every opportunity to take part in the meeting and in the formal consultations to challenge any of the actions of the respondent, including the marks awarded to him; but he failed to do so.  His failure was largely unexplained.  The tribunal accepts that, at the commencement of the process, he had just returned from a long period of sick leave and may have been initially shocked, as were the other members of the team, that such a process was going to have to begin.  However, the tribunal has little doubt he would have been aware that the respondent was under financial pressure and that such a redundancy exercise might, at some time, have to take place.  He was at the meeting with Mr McFarland.  That meeting involved his supervisor but also the other members of the team with whom he had worked for many years and with whom the tribunal understands he had a good working relationship.  He was not in a hostile environment, amongst strangers, which might have explained his reluctance to play any part in the process.  However, the tribunal notes that other members of the team had no difficulty in speaking up and engaging in all aspects of the process.  Even, in the subsequent consultation meetings, essentially the claimant remained silent and played no part.  The McFarland meeting and the consultation meetings took place after he had returned to work and therefore there was no good reasons why the claimant could not play a full part.  There was no evidence the scoring carried out by the managers was not properly carried out in the circumstances.

5.5	Properly, the respondent did review whether there was any suitable alternative employment for the claimant.  The reality was that there was none and this was not challenged by the claimant.  

5.6	The tribunal therefore concluded the actions taken by the respondent in this redundancy process fell within the band of reasonable responses and therefore the claimant was not unfairly dismissed when he was dismissed by reason of redundancy.

Employment Judge

Date and place of hearing:	2 – 5 November 2015, Belfast

Date decision recorded in register and issued to parties: