THE INDUSTRIAL TRIBUNALS 

CASE REF:	1138/12

CLAIMANT:	Pawel Laczek

RESPONDENT:	Glas-Seal (NI) Limited			

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed and is entitled to compensation of £2960.00.

Constitution of Tribunal:		

Chairman:			Mr S M P Cross	

Members:			Mr J Kinnear
				Mr P Laughlin	

The claimant was represented by Mr O’Brien, Barrister-at-Law, instructed by Messrs Donard King and Company Solicitors.  

The respondent was represented by Mr Geurin, Solicitor of Messrs Campbell Fitzpatrick Solicitors.

Findings of Fact

1. 	The claimant, who was born on 11 August 1983, was employed by the respondent from 18 February 2008.  The respondent company manufactures glass for the building trade and like many businesses in recent years, has suffered a downturn in work due to the recession in the building trade.  At its height the respondent employed about 90 people but due to recession has had to reduce these numbers over the last few years.  Reductions in the workforce were made in 2009 and again in 2010.  The tribunal was given compelling evidence that showed the financial effect of the recession on the respondent’s business.

2.  	In February 2012, a decision was made to further reduce the workforce and employees and staff were briefed by the managing director, on possible redundancies.  A memo was issued requesting volunteers for redundancy.  No such volunteers were forthcoming.  Consequently, the redundancy process proceeded.  At a meeting with the trade union Unite, the union indicated that the selection criteria that had been used in previous redundancies were not acceptable.  The union’s difficulty was with one of the criteria for scoring, to find candidates for redundancy.  The criteria objected to, as being too subjective, was scoring on the basis of skill in a particular job.  Consequently, the basis for selection for redundancy was decided on three headings.  These were; conduct, being the disciplinary record of each employee.  Timekeeping and absences from work, called attendances, were the other 2 criteria.  Each of the employees in the various departments was assessed against the other employees in the same department.  This department by department method was used, to prevent any department having to suffer more redundancies than it could handle, to keep it operative and properly manned.

3.  	So far as the claimant was concerned, his conduct record was perfect and so he received 100%.  The difficulty from his point of view concerned the other two criteria namely timekeeping and attendance records.

4. 	Under the time keeping criteria the claimant had one incident on his record.  On a particular occasion, the claimant had sought permission from his line manager to accompany his wife for a medical examination.  Permission had been granted for this and the claimant had taken one hour to attend the doctor and consequently arrived at his work one hour late.  Because of this the claimant was docked 13 points.  This was the penalty in the criteria for any employee being late on between one and four occasions.  The Statement of Employment Particulars which was issued to each employee and signed for, contained a reference to lateness as follows:-

“Should you report to work more than 60 minutes late and have not made prior arrangements with management you may not be allowed to start work, and may be sent home and it will be recorded as one day’s absence.”

5.  	The attendance record criteria gave 100 points for an employee with no sickness and a reduction of 25 points for between one and three sickness absences.  The claimant had been absent on one such occasion with genuine sickness.  Yet he was subject to the same number of points being deducted as if he had taken up to 3 days absence, which, as they were self certified days, could not really be checked for genuineness.

6. 	The respondent explained to the tribunal that these criteria applied to all the employees and that the criteria had been agreed with the Union.  Furthermore, in the case of the sickness criteria, the company could not look behind the self certified medical certificates, or indeed certificates signed by a doctor.  These certificates had to be taken at face value.  The respondent agreed, that it did appear hard, that an employee, with one lateness, could suffer the same penalty as an employee who had arrived late on up to 4 occasions.  However, this was one of the criteria that was agreed with the union and it applied to all the employees.  The claimant agreed that the score given to him was correct according to the criteria employed.

7.  	The tribunal heard details of the meetings and warnings of pending redundancy.  There appears to be no dispute concerning these facts and indeed, the process was from this aspect was fair and proper.  The dispute centres on the way that the criteria were interpreted and applied by the respondent, resulting in the redundancy of the claimant.

The Law

8.  	The claimant claims that he was unfairly dismissed.  Under the provisions of Article 126 of The Employment Rights (Northern Ireland) Order 1996 (the 1996 Order), “an employee has a right not to be unfairly dismissed by his employer.” Article 130 of the 1996 Order states that it is for the employer to show that the reason for the dismissal is either a reason relating to the employee’s capability to do the job in question, his conduct, or because of a redundancy situation, or some other substantial reason, as to justify the dismissal of an employee, holding a position of the type held by the employee in question.  In this case the reason for the dismissal is redundancy.  Under Article 174 of the 1996 Order, redundancy is defined.  One situation, that is so defined as a redundancy situation, is one where work of a particular kind ceases or diminishes or is expected to cease or diminish.  In this case the respondent has argued that a redundancy situation existed and the claimant was made redundant.  A redundancy payment was made to the claimant.

9.	Having decided that a redundancy situation exists the tribunal, must satisfy itself that the person selected for redundancy, the claimant, has been fairly selected.  There was no evidence in this case that the procedure and information given to the claimant was not correct and fair.  The whole dispute centres on the criteria for the selection and its impact on the claimant.

10. 	The tribunal reminded itself of the strict rules laid down in a number of cases, which preclude the tribunal from substituting its own decision, as to whom it would have made redundant, because of the tribunal’s disapproval of the method of selection adopted by the respondent in any given case.  The function of the tribunal is to consider the method of selection and provided that it is a fair method and would be a method that would be adopted by a reasonable employer, then the people declared redundant under this method have been fairly selected for redundancy.  It is only if there is anything unfair in the system of selection that is adopted, that the tribunal will be allowed to state that the system is unfair.  Furthermore, it is necessary for the tribunal to be satisfied that the person so selected, would not have been selected if the unfair system had not been used, before the tribunal can interfere with the selection process.  This is set out in the decision of the English Employment Appeals Tribunal in the case of Paine and Moore v Grundy (Teddington) Limited [1981] IRLR 267.

	Harvey at Paragraph 1689 states as follows:-

	“Again although it might be justified to consider attendance records as the basis for selecting redundant employees, the employer will not be acting reasonably if he fails to look at the reasons why the employees selected were absent.  This was the view of the EAT in Paine and Moore v Grundy (Teddington) Ltd, reversing a tribunal on this point.”

Decision of the tribunal

11. 	The tribunal is satisfied that a genuine redundancy situation pertained at the time in the respondent company and that it was necessary for the respondent to shed workers as a result of the down turn in the building trade.  The tribunal can appreciate the requirement to keep a number of employees in each department to insure that the skills mix would be maintained in the business.  The procedural requirements concerning the proposed redundancy exercise were carried out and the discussions with the Trade Union were concluded, with the change in the selection process, which has been referred to above.  The problem which has been highlighted by this case was the scoring method adopted by the respondent and approved of by the union and its effect on this claimant.  If it had only been a problem of the scoring system then the tribunal might have held, that although it was unfair, it had been agreed and the tribunal would be exceeding its remit in going behind it.  However there is in this case the added fact, concerning this claimant, that he had requested permission for an hour off, on the morning that he had to go to the appointment with his wife.  He had been granted that permission.  How, in the view of the tribunal, can that occasion be registered as a lateness, in the same way as a person sleeping in and arriving an hour late with no previous permission? The claimant would have been better off if he had taken a full day’s absence, which would have given him 2 days absence, still within the 3 days bracket and would have kept his lateness criteria at nil. 

12. 	The tribunal hold that it was unfair, that the claimant was penalised for the said lateness, which gave him a total score which resulted in his dismissal for redundancy.  If the claimant is given a full score for timekeeping, he would have been credited with a total score of 225 points (not 212 which is what he did score).  This score of 225 is the same as 5 other employees in the department.  This would have had the result of there being only one employee scoring 212 points.  As 2 people were to be made redundant from the department the respondent would have had to devise a system of finding one other to go from the group scoring 225 points.  This could have been done by checking how many incidents of lateness and non- attendances each employee had, or on a last in first out basis.  In any event the claimant would have had a reasonable chance of not being the person made redundant.

13. 	The tribunal find that the failure of the respondent to look at the reasons for the claimants lateness, on the one occasion when he had asked for and been given consent to be late, was unreasonable and unfair and, following the decision of Paine and Moore v Grundy (Teddington) Limited, the tribunal hold that the claimant is entitled to compensation as set out below.

14. 	The claimant was able to find a new job on 7 May 2012, at a net wage of £210.00 per week.

Calculation of compensation

The claimant received a redundancy payment from the respondent, consequently there is no basic award.

Compensatory award

Loss of wages from dismissal 20 March 2012, to date of this hearing at a net wage of £250.00 per week.

30 weeks @ £250.00 per week					£7500.00

Less 4 weeks pay in lieu of notice					£1000.00 
at £2500.00 per week                                                  				

Less 23 weeks @ £210.00 per week                            		£4830.00
     
                                                                                                            £1670.00
	
Future loss 26 weeks @£40.00 per week			£1040.00
being the difference between the 2 pay rates                          

Loss of statutory rights                                                               £250.00

                                                                                      Total:            £2960.00

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

Chairman:

Date and place of hearing:      16 October 2012, Belfast.

Date decision recorded in register and issued to parties: