DECISION
Pursuant to Rule 10 of the Employment Tribunals (Constitution and Rules of
Procedure) Regulations 2004
IN THE CASE OF JENNY GUEST (Claimant) –V- DESTINY LTD (Respondent)
To:
(1) MISS KELLY TAYLOR (for the Claimant)
AND
(2) MRS MARIE WOOD (for the Respondent)
1 It is the unanimous decision of this Tribunal that the Claimant’s claims of unfair dismissal and sex discrimination are dismissed.
EXTENDED REASONS
Background
2 The Claimant, Jenny Guest, was employed by Osmond Central Limited from 1 January 2004. She transferred to the Respondent following the Respondent’s acquisition of Osmond Central Limited in 2007. The Claimant remained employed by the Respondent in the distribution team until her dismissal by reason of redundancy on 16 January 2009.
3 We heard evidence from the Claimant who was represented by Miss Taylor of BUMS and from the Respondent who was represented by Miss Marie Wood of Langleys.
4 The Respondent is a luxury homewares retailer who has suffered a decline in sales due to the economic climate. As a result the Company was forced to make redundancies across the company. It was stated in evidence that further redundancies have been made subsequent to the Claimant’s dismissal. This includes Danielle Harwood, the Claimant’s line manager, who has since found employment overseas and was therefore unable to give evidence today.
5 On 2 January 2009 HR Manager, Kate Hindmarch sent an announcement to all employees warning of the risk of possible redundancies. A meeting was held on 5 January 2009 between Kate Hindmarch and the Claimant’s manager Danielle Harwood to discuss possible redundancies. The distribution team was identified as being at risk and selection criteria was established. A letter was sent following that meeting inviting voluntary redundancies but we heard in evidence today that no volunteers came forward.
6 On 9 January the Claimant attended a meeting with Kate Hindmarch to discuss the possibility of redundancy and was invited to a further meeting on 12 January.
7 At the 12 January meeting the Claimant was informed that she had been provisionally selected for redundancy and subsequently received a letter inviting her to a further consultation meeting to be held on 16 January.
8 The Claimant was accompanied by her trade union representative, Miss Kelly Taylor, at this meeting. The Claimant had not informed the Respondent that she would be accompanied at this meeting but the Respondent allowed Miss Taylor to attend the meeting. This was a consultation meeting, for the avoidance of doubt, and not part of the statutory process. During the meeting Miss Taylor produced Osmond Central Limited’s Redundancy Policy and Procedure and asserted that the Respondent should have followed this procedure as it had transferred to the Respondent from the date that the Claimant’s employment transferred. Kate Hindmarch and Danielle Harwood denied any knowledge of this document and on review noticed that the procedure was non-contractual and therefore would not have transferred. Miss Taylor asserted that the procedure had transferred on the basis of previous custom and practice and that the Respondent’s failure to follow the procedure made the Claimant’s dismissal unfair.
9 The Respondent offered the Claimant alternative employment as a part time cleaner. The Respondent asserted that this was suitable because the Claimant had requested flexible working. The Claimant refused the position because it was unsuitable in terms of duties and salary.
10 We have heard from evidence that the Claimant was the only female member in the distribution team and that she believed she had been singled out on that basis. This was the basis of the Claimant’s sex discrimination claim. She also disputed the scoring she received believing that she was in fact one of the most competent members of the team with an impeccable attitude to work.
11 However, it is clear from the evidence that she had a poor performance record and had had numerous absences from work. The Claimant attributed her absences to post natal depression but the evidence put forward indicated that her absence was due to toothache, stomach ache and other mild ailments. Unfortunately the Respondent did not keep a record of formal appraisals but we heard evidence today to suggest that the Claimant’s performance was regularly appraised by Danielle Harwood on an informal basis to the extent that the Claimant was aware that her performance was below the expected standard. The evidence demonstrates that the Claimant was selected for redundancy because she received the lowest scores in the selection process based on objective selection criteria and not for the reasons asserted by the Claimant.
12 The Claimant was informed on 16 January that she had been selected for redundancy.
13 On 23 January Miss Taylor wrote to the Respondent on the Claimant’s behalf appealing the decision to dismiss and requesting that the appeal be dealt with in writing. The Respondent refused but agreed to conduct a standard appeal meeting and asked the Claimant to appeal by no later than 30 January.
14 The Claimant did not appeal against the decision to dismiss.
Law and Application of the Law
15 We have to decide the issue of unfair dismissal.
16 The Respondent with whom the burden of proof squarely sits is required to show that the dismissal was for a potentially fair reason and that it treated such reason as sufficient in all of the circumstances (taking into account, in particular, the size of and administrative resources of it) to dismiss. A Respondent is further required to comply with the statutory dismissal procedure failing which such dismissal is automatically unfair.
17 There are six potentially fair reasons for dismissal one of which is redundancy. We are satisfied that the Respondent relied on upon this potentially fair reason to dismiss.
18 The Respondent followed the required 3 step statutory dismissal procedure. The Claimant was invited to a step 1 meeting on 9 January. The step 2 meeting was held on 12 January and a further meeting was held on 16 January. The Claimant was notified of her right to be accompanied and notified of her right to appeal. The Respondent was reasonable in allowing Miss Taylor to attend the 16 January meeting despite the Claimant’s failure to notify the Respondent of her attendance.
19 The Claimant requested that the appeal be conducted in writing. This is not a requirement of the statutory dismissal procedure and the Respondent was not obliged to agree to such a demand. The Respondent indicated that it would have been prepared to make adjustments to their procedures only in exceptional circumstances but did not feel that this situation amounted to such circumstances.
20 We are satisfied that the Respondent has complied with the statutory dismissal procedure.
21 Finally, in respect of the statutory procedures, we note that the Claimant failed to appeal against the decision to dismiss and we have had no reasonable explanation from the Claimant as to why this was the case.
22 It is acknowledged that the Respondent did not follow Osmond Central Limited’s redundancy procedure. Neither Kate Hindmarch nor Danielle Harwood were familiar with this policy. The policy and procedure document clearly states that it does not form part of any employee’s contract of employment. Therefore it did not transfer in 2007 with the rest of the Claimant’s terms and conditions and the Respondent was not obliged to follow it.
23 The Respondent complied with its obligations to inform and consult, correctly identified the pool for selection and used objective selection criteria. The Respondent also offered the Claimant alternative employment which she refused.
24 We find that the Respondent acted reasonably in its process in dismissing the Claimant and accordingly the dismissal was fair. The Respondent gave the Claimant sufficient information about the redundancy and explained why and how she had been selected. The Claimant was given the opportunity to respond to the Respondent’s proposals to make her position redundant at several meetings and the Respondent also offered the Claimant alternative work (which the Claimant rejected) before a final decision was made to dismiss the Claimant by reason of redundancy.
25 In reaching our decision that the dismissal was fair we have taken into account the size and administrative resources of the Respondent. We also considered the current economic climate and the difficult trading conditions the Respondent found itself operating in. In order to survive the Respondent had to reduce its overheads and having already taken measures such as bringing its cleaning services back in-house it had no choice but to make redundancies. The Respondent applied objective selective criteria to score individuals so that they could retain the highest performing staff. We have heard today that a number of redundancies were made across the firm at this time and that the Claimant’s manager, Danielle Harwood, was made redundant shortly after. At the time of the Claimant’s dismissal the Respondent employed 26 members of staff and following the first round of redundancies this number reduced significantly. We find that the Respondent needed to retain a strong work force going forward to maximise opportunities, and, as the Claimant was the lowest scoring employee in distribution, the Respondent provisionally selected her role for redundancy.
26 Accordingly, we find that the Respondent dismissed the Claimant for a fair reason and acted reasonably in the circumstances.
27 We also have to decide the issue of sex discrimination.
28 The burden of proof sits with the Claimant who is required to prove on the balance of probabilities, facts from which it could be concluded that in the absence of an adequate explanation that an act of indirect discrimination has occurred. If the Claimant proves such facts then the burden of proof moves to the Respondent to prove on the balance of probabilities that it did not discriminate.
29 We are not satisfied that the Claimant has proved such facts and therefore her claim for sex discrimination fails.
Dated 26 March 2008
Employment Judge N Sheppard