Highlights this time around are two cases that deal with redundancy:

1. Redundancy – the extent of the Polkey defence
2. Redundancy – selection criteria and religious discrimination

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1. Emma McGuigan –v- FGSC McClure Waters (6272/09) decision issued 5th July 2010

Redundancy – the extent of the Polkey defence

This is a case of unfair dismissal and discrimination on the grounds of gender and sexual orientation. The Claimant was employed as a manager for the accountancy firm FCS McClure Waters and she was selected for redundancy without recourse to the Statutory Dismissal Procedures.

The Claimant was called to a meeting on Monday 12th January 2009 and told that her post was redundant and was handed a letter that stated, “Further to your meeting today... I confirm that your position has been selected for redundancy on the Last in First Out (LIFO) basis in that you were the last to be employed as a manager within the PPP projects group at Belfast.”

What is an important aspect of this case is that whilst the employer conceded that the dismissal was automatically unfair (due to its failure to follow the minimum statutory procedures) it sought to argue that the dismissal would have taken place in any event and therefore the Claimant was not entitled to any compensation. The tribunal did not accept this argument and based its decision on the following facts :

* The respondent took a deliberate decision not to comply with its redundancy policy. It was not a mere oversight.
* There were no consultations, no warnings of the risk of redundancies, no search for voluntary redundancies, no suggestions invited from the workforce. Again the respondent made a conscious deliberate decision not to take these steps.
* The criteria for dismissal were not discussed with staff nor would it appear that the same criteria were used by all the partners. Mr Munro created a matrix for his own use in deciding which name should go forward for redundancy from his section of business.
* There was no clear evidence on how the claimant was finally chosen for redundancy. Mr Munro said he made his decision on who to nominate for redundancy in October 2008. However, at the partners meeting on 11 December 2008, two other partners, Ian Duffy and David Gray, were required to agree a final list of redundancies and provide it to Greg Sparks by 15 December 2008. The tribunal heard no evidence from any of these partners and the precise process by which the claimant’s name went forward is unclear. Also unclear is whether any other names were on such a list or how they were then treated.
* The claimant was told the reason for her redundancy was ‘last in first out’. However, Mr Munro was present at the meeting on 12 January 2008 when the claimant was dismissed, knew this reason was wrong and did nothing to correct the error.
* The claimant, despite not being advised of a right of appeal, did in fact appeal. The appeal letter endorsed the decision to dismiss and whilst acknowledging that ‘we did not follow exact procedure’ provided a further flawed reason for the decision which was at odds with the reason provided by Mr Munro in evidence.
* The claimant was not informed of the possibility of alternative employment being advertised just before she was dismissed.

The Tribunal stated that “because of the deliberate failure of the Respondent to follow its own policy, including the appeal process, and the substantial inconsistencies in the information provided to us by the Respondent, we are not satisfied that the dismissal would have followed in any event if a fair redundancy procedure had been adopted.”

The complaints of discrimination were dismissed and the tribunal awarded £24,284.89. This included an uplift of 40% for failure to follow the statutory procedures as the tribunal believed it could not have acted out of ignorance or a lack of knowledge or resources.

It is clear that the argument that dismissal would have followed was not borne by the facts in this case and in the event that such a defence is to be relied on by an employer will require a careful consideration of the facts.

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2. Julie Brundell –v- Board of Governors, Ballykelly Primary School, Western Education and Library Board (161/09FET) decision issued 30th June 2010.

Redundancy – selection criteria and religious discrimination

This is another case relating to redundancy but looks at the selection criteria utilised by the Employer in its decision to select a teacher for redundancy.

Ms Brundell worked as a teacher in Ballykelly Primary School – a school that has always admitted pupils from both section of the community and has a mixed teaching staff, though it is not formally an integrated school. Her case to the tribunal was that she was subjected to unlawful discrimination on the grounds of her religious belief following a redundancy selection exercise in March 2009. After her internal appeal she was redeployed in the school’s nursery unit and she accepted this post under protest.

Ms Brundell was one of 3 Protestants selected for redundancy – no Roman Catholics were selected for redundancy at this time, including three Roman Catholic teachers with less service than the Claimant. It was the Claimant’s contention that the criterion “School ethos – i.e. staffing in line with the religious mix of the pupils – in this case staff who could deliver RE to Roman Catholic children a priority” was designed to keep the number of Catholic teachers in the school in line with the number of Catholic pupils.

The Claimant had an Honours degree in Education which included Studies in Religious Education and Modern Approaches in Religious Education, which in effect meant that she held the same qualifications as other teachers who it is accepted, were recorded as having the ability to deliver Roman Catholic RE.

The tribunal stated that, "A worrying feature of this case is that there is evidence before us which suggests that the respondents believed that they were entitled to discriminate and that the fair employment legislation did not apply to them."

The legislation in its original form contained a general exemption from its scope in relation to employment as a teacher in a school (see: Fair Employment and Treatment (Northern Ireland) Order 1998, Article 71). However, this was amended by Regulation 30 of the Fair Employment and Treatment (Amendment) Regulations (Northern Ireland) 2003 whereby the provision exempting the employment of a teacher in a school from the provisions of the 1998 Order were amended to apply the exception only to the recruitment of a person as a teacher. Therefore the 1998 Order prohibiting religious discrimination now applies in a redundancy situation.

The tribunal found that the case of direct and indirect sex discrimination was made out by the Claimant and that they were led in error by their perception that fair employment legislation did not apply to the process – as the Claimant was not ultimately made redundant and characterised this as a discrete act of discrimination she was awarded £7500 plus interest of £750.00 totalling £8250.00.