Judgment on Unfair Dismissal: Iceland v Jones and Samsung v Monte De Cruz Cases, Exercises of Law

Download Judgment on Unfair Dismissal: Iceland v Jones and Samsung v Monte De Cruz Cases and more Exercises Law in PDF only on Docsity! Case Number 2500324/17 1 EMPLOYMENT TRIBUNALS Claimant Respondent Mr J Angus Cleveland Potash Limited JUDGMENT OF THE EMPLOYMENT TRIBUNAL Heard at Middlesbrough On 24th & 25th July 2017 Before Employment Judge Garnon (sitting alone) Appearances For the Claimant: Mr S Healy of Counsel For the Respondent: Mr A Sugarman of Counsel JUDGMENT The claim of unfair dismissal is not well founded and is dismissed REASONS 1. The Issue This is a claim of unfair dismissal. It is admitted the principal reason for dismissal was redundancy. It affected many due to the reduction in potash mining. The only real issue is whether the dismissal of the claimant for that reason was fair within s 98(4) of the Employment Rights Act 1996 ( the Act ) 2 The Relevant Law 2.1. Section 98(4) of the Act says: “Where an employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) depends on whether in all 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 (b) shall be determined in accordance with equity and the substantial merits of the case.” 2.2. In Langston –v- Cranfield University the EAT said I must look at all ways in which a dismissal by reason of redundancy may be unfair (a) inadequate warning or consultation ( b) unfair selection and (c) insufficient effort to find alternatives. Mr Healy wisely does not pursue the last because there were no suitable alternative vacancies. Case Number 2500324/17 2 2.3. The main case on fair consultation is R-v- British Coal Corporation ex parte Price in which fair consultation was defined as (a) discussion while 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 of the response. 2.4. The main case on fair selection is British Aerospace –v- Green . Provided an employer sets up a selection method which can reasonably be described as fair and applies it without any overt sign of bias which would mar its fairness , it will have done what the law requires. 2.5. In all aspects substantive and procedural Iceland Frozen Foods v Jones (approved in HSBC v Madden and Sainsburys v Hitt) held I must not substitute my view for that of the employer unless its view falls outside the band of reasonable responses. 2.6. Selection criteria which are objective are preferable to those which are subjective, but in Samsung Electronics U K Ltd-v-Monte De Cruz EAT/0039/11/DM Underhill P. said “Subjectivity” is often used in this and similar contexts as a dirty word. But the fact is that not all aspects of the performance or value of an employee lend themselves to objective measurement, and there is no obligation on an employer always to use criteria which are capable of such measurement, .. Given the nature of the Claimant’s job, we see nothing objectionable in principle in his being assessed on “subjective” criteria. 3. Findings of Fact and Conculsions 3.1. I heard the evidence of Matthew Hart, an HR officer of the respondent, Mr Chris Wilson, the manager who did the individual consultations, Mr Nigel Todd who marked the vital part of the selection matrix in conjunction with his manager Mr Simon Hunter, and Mr Andrew Fulton who heard the claimant’s appeal against dismissal. I also heard the claimant and Mr Michael Barclay, a Unite shop steward. 3.2 The claimant was born on 27 July 1956. He was employed from 15 August 1988 until his dismissal on 29 November 2016. Having regard to his age and length of service he would probably be one of the most expensive people to make redundant. 3.3. Until 2008 he worked mainly underground. From 1988 to 2004 he had 11 accidents, none of which were taken into account in the marking of the safety criterion in the selection matrix. Between 2004 and 2008 he had five accidents in 50 months. The fourth was on 19 February 2007 which kept him off work sick until September 2008. He brought a claim for personal injury which a judge dismissed saying he was the “author of his own misfortune”. On 21 December 2008 he had another accident. He came back for a short time but was off from February 2009 to September 2010. Again he brought a claim for personal injury, but that claim was discontinued. 3.4. Following his fifth accident he had a residual injury so he was moved to the lamp room, possibly as a reasonable adjustment to begin with, but then he obtained a Case Number 2500324/17 5 “dangerous” for an employer to depart from agreed selection criteria, because it opens up the argument that they are targeting certain people until they get “the right result” . I am satisfied that was not in fact the case here. In good faith Mr Todd and Mr Hunter both believed the claimant was not suitable for underground work and as fully explained in their memo, page 98-99, saw the agreed criteria as not having addressed the issue which they only spotted when it came to be practically applied. The agreed criteria had simply not taken into account the possibility that in the two year period a particular person would have been out of any sort of hazardous environment. There was a similar occasion in a pervious redundancy exercise where a criterion imposed upon managers, read literally, produced such a distorted result. It was the subject of an earlier case tried by Employment Judge Johnson whose decision was the same as my own . 3.14. Even in commercial negotiations express terms may not always be clear and need to be supplemented by implied terms to make an agreement workable. Lord Hoffman’s said in Investors Compensation Scheme-v-West Bromwich Building Society : The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax. The "rule" that words should be given their "natural and ordinary meaning" reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had. Lord Diplock made this point more vigorously when he said in The Antaios Compania Neviera S.A. v. Salen Rederierna A.B. 19851 A.C. 191, 201: ". . . if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business commonsense, it must be made to yield to business commonsense." 3.15. Even more so is this the case in a non contractual statement of intent which is what this selection criterion matrix was. In effect the respondent had to find some reliable means of comparing employees on a like for like basis . They chose to look at the period 2004 to 2008 which was, punctuated by sickness absences in the claimant’s history, approximately two and a half years of actual attendance at work in a hazardous environment. There were 2 major accidents in the last two years he was underground. There were 5 in a period of 50 months during over 20 months of which he was off sick. The conclusion the claimant should be marked as a 4 on the basis of either period of assessment was well within the band of reasonable responses. Case Number 2500324/17 6 3.16. Mr Healy also made submissions about consultation. I find it was impeccable but Mr Healy says the claimant should have been given a chance to “discuss” the accidents if, as Mr Todd admitted, he looked at the accident investigation reports to help make his decision . In other words Mr Healy was asking for the claimant to be given a further opportunity to disagree he was in some way responsible for those accidents. I cannot accept that submission. By analogy with,Davies v Sandwell Metropolitan Borough Council a conduct case which held the merits of previous written warnings given in good faith should be not be revisited, it seems to me the conclusions of previous accident investigation reports, especially when a County Court Judge has agreed with one after a full trial , should not be revisited. 3.17. Taymech-v-Ryan and other cases all considered in Capita Hartshead-v-Byard UKEAT/0445/11 by Silber J. held in choosing pools for selection an employer has a broad measure of discretion and the important point is it must give some thought to the matter. It did, and the pool chosen was fair, indeed was almost self selecting. Had they put only lamp room men in a pool all of them would have been selected for redundancy. 3.18. My conclusion on the only real point, which was well argued by Mr Healy on behalf of the claimant, that whatever is agreed in collective consultation should be stuck to is that elevates the legitimate aims of transparency and predictability to a paramount and overriding consideration. I do not agree that is the law. To make what was written fair and workable , the respondent , in effect , read into “Safety record over the past 24 months (16 August 2014-15 August 2016)” additional words “ or, if the claimant was not in that period working in hazardous environments such other period of similar length during which he was” Where there are good reasons for departing from what has been written then in my view, as in this case, the decision to adopt a more reliable period of comparison is well within the band of reasonable responses. In those circumstances the complaint of unfair dismissal is not well-founded and is dismissed. ___________________________________ T M Garnon EMPLOYMENT JUDGE JUDGMENT SIGNED BY EMPLOYMENT JUDGE ON 4th AUGUST 2017 JUDGMENT SENT TO THE PARTIES ON 7 August 2017 P Trewick __________________________________ FOR THE TRIBUNAL