Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
The claimant was employed as a pastry chef of the respondent which trades as Le Mon Hotel and Country Club. She commenced that employment in April 2016. As a result of the Coronavirus Pandemic in 2020 it was found that there was a redundancy situation and that there had to be a business reorganisation. This was largely on the basis that the hotel was unable to open, with no reopening date in the near future.
It was found that there were four posts that were at risk of redundancy including the claimant’s position. The four positions outlined were all management positions within the organisation chart. However, some positions (such as Head Chef) were not taken into account or at risk even though they were on the same level.
The claimant was invited a consultation meeting about the possible redundancy situation. She criticised this on the basis that there were no alternatives put forward by the respondent. The claimant was subsequently dismissed on 8th July 2020 by reason of redundancy. The claimant was offered an appeal but did not take this up. Instead she wrote a letter on her final day of employment outlining that desserts were still being prepared in-house and that another employee had been offered the role of Pastry Chef on a reduced salary compared to the claimant’s salary. It was found that even though it did not ask for an appeal, any reasonable respondent would have regarded it as an appeal.
The Tribunal did accept that this was a genuine redundancy scenario caused by the pandemic. On the claim it related to the issue of whether the decision to choose the claimant was fair. The Tribunal found that the respondent did not genuinely apply its mind to the issue of who should be in the pool of consideration for redundancy. It seems that the Pastry Chef had been singled out even though there were other roles at the same level in the organisational chart which were not fully explored. It was further found that there was a failure to carry out a proper procedure due to the failure to invite the claimant to an appeal meeting when concerns had been raised. Accordingly, the decision to dismiss was regarded as unfair and the claimant succeeded.
Practical Lessons
There are a couple of interesting points from this case. The first is that the Tribunal is using a wide interpretation of the meaning of appeal. The claimant was invited to appeal, and this was not formally taken up, yet the Tribunal is stating that it should have been treated as an appeal. This may have to be borne in mind by employers in this position in the future. Additionally, there was no discussion as to whether there were alternatives to redundancy at the time such as the use of the Furlough Scheme. This aspect has been covered in some English decision but has not been explored in Northern Ireland.
NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/
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