In our last Employment Bulletin which focused on the theme of redundancy, we looked at the Guernsey Code of Practice regarding Handling Redundancy (the "Guernsey Code"). In our current bulletin, Mourant Ozannes considered the topic of sex discrimination in the workplace. The recent case of Mr Brian Fox v Blanchelande College provides a helpful case study considering both of these issues. Mourant Ozannes advised Mr Fox and the National Union of Teachers in the stages leading up to the Tribunal hearing and Rachel Guthrie reports on the decision of the Guernsey Employment Tribunal handed down on 17 May 2012.

Facts

Mr Fox had been a mathematics teacher at Blanchelande College (the "College") since January 2007.

Due to funding difficulties, in October 2010, a decision was taken by the College to suspend its sixth form. One of the consequences of this decision was a reduction in the number of weekly mathematics teaching periods from 76 to 68.

In January 2011, staff were formally advised of the decision to suspend the sixth form and documentation provided at the time stated redundancies would be a last resort when all other measures had failed.

In 2010/2011, the Mathematics Department comprised: the Head of the Mathematics Department; Mr Brian Fox, who taught 30 periods per week (out of a possible 45); and Ms A, a teacher who had been recruited on a two term contract with effect from January 2011 to teach 10 periods per week. The existing Head of Music was also able to teach mathematics but did not teach periods in 2010/2011. 

On 4 February 2012, Mr Fox received a letter informing him that his role was at risk of redundancy. He was advised that Focus HR would run drop-in centres and he completed a consultation form indicating his preferences.

The letter also explained that staff in the selection pool would be assessed against the following criteria in priority order:

"Essential Criteria

  1. Relevant skills, qualifications and experience relevant to the role(s) applied for, including reference to performance management records; and
  2. Ability to offer Extra-Curricular activities either/or during the lunch break or after school.

Highly Desirable Criteria

  • Ability to act as a Form Tutor, being in School for all class registrations at the start of the morning and afternoon sessions;
  • Ability to teach more than one subject to GCSE level; and
  • To ensure the best resourcing of the School."

On 15 March 2012, Mr Fox met with the Principal and Principal Designate to discuss timetabling options for him and other staff in the department. A further short meeting took place on 6 April 2012. Mr Fox put forward a possible solution and indicated his willingness to reduce his teaching to 15 or 20 periods per week.

On 8 April 2012, Mr Fox was informed that his role was redundant, although he was given no information as to the rationale for his selection and how he had been assessed against any verifiable or objective criteria. Mr Fox was given a right of appeal but chose not to do so due to his absence from the Island at that time and because he was unclear on what grounds he could validly appeal given the lack of reasons provided for his dismissal.

The proposed new structure of the Mathematics Department involved the appointment of a new Head of Mathematics with the remaining lessons being divided between the former Head of the Mathematics Department, Ms A and the Head of Music (to ensure he had a full teaching timetable).

Relevant to the redundancy claim and fundamental to the discrimination claim, Ms A was informed that she had been chosen in preference to Mr Fox due to positive feedback from students, recent A-level teaching experience, and because it was good to have female role models in male oriented subjects like mathematics.

Mr Fox applied to the Employment and Discrimination Tribunal claiming unfair dismissal pursuant to the Employment Protection (Guernsey) Law, 1998, as amended, sex discrimination pursuant to the Sex Discrimination (Employment) (Guernsey) Ordinance, 2005, as amended, and failure to provide written or true reasons for his dismissal.

Decision

The Tribunal concluded that the College did have a firm financial rationale for having to reduce staffing levels. Nevertheless, the Tribunal found that, on the balance of probabilities, the dismissal was unfair and was for an unquantifiable reason other than redundancy.

Considering the management of the redundancy process, the Tribunal first considered whether measures had been taken to avoid redundancies. The College claimed many measures were taken and, whilst the Tribunal noted some measures, it doubted the veracity of this claim given that the written evidence stated the College had taken the measure of retiring employees when this had not in fact happened.

The Tribunal next turned to the basic principles of fairness which should be considered in situations of redundancy as set out in the UK judgement of Polkey v A E. Dayton Services [1988] AC 344, HL, and in the Guernsey Code. In particular, the duties imposed on employers to:

  1. consult with the employees;
  2. warn of redundancy;
  3. establish fair criteria for the selection of employees; and
  4. explore alternatives to redundancy.

The Tribunal stated that a pre-requisite to these principles was identifying a correct pool for selection. The Tribunal found the College was wrong to define the pool as including 21 or 22 of the College's teachers and that, in reality, the pool should only have comprised of those who taught mathematics.

In respect of consultation, the Tribunal concluded that the attempt by the College to consult was administratively very poor and seemingly not undertaken in a genuine spirit of enquiry. Contrary to the Guernsey Code, no notes were taken of meetings. Whilst Mr Fox did not avail himself of the services of Focus HR during the consultation period, the Tribunal found that Mr Fox had not acted unreasonably given that he considered that Focus HR could offer little to him at his stage of career (being near retirement), and that he had (perhaps unwisely) concluded that his job was not at great risk. The Tribunal found Mr Fox's timetabling solution proposal could have worked, but that no matter what he proposed he was unlikely to gain agreement from the College who was not open to genuine consultation. Whilst Mr Fox could have appealed in absentia, it was not unreasonable to assert that he did not know the grounds on which he was dismissed and therefore what to appeal.

In respect of selection criteria, the Tribunal found the duty to provide objective, fair and verifiable criteria prior to dismissal was not discharged. The Tribunal noted there were no performance management records, thus detracting from the reliability of the first criterion. No attempt was made by the College to score any of the criteria. The Tribunal was presented with a tabulated list of criteria and was given the impression that this was relied upon at the time of dismissal. However, it subsequently became apparent during the hearing that the table had been produced specifically for the Tribunal and amended since originally being provided to Mr Fox's advisers.

The Tribunal also found that several criteria were taken into account which were not listed in the selection criteria, and of which Mr Fox was entirely unaware. In particular, the Tribunal found that preference was to be given to full time staff rather than part time staff (which the Tribunal noted as an aside could constitute indirect discrimination); that the Principal Designate considered Mr Fox's employment as temporary because he had initially been employed on a supply basis; that reliance was placed on the opinions of the Head of Teaching and Learning; and that the College was looking for someone with recent A-Level mathematics experience who could guide students in their choices, albeit that the A-Level would not be taught at the school.

Prior to end of Mr Fox's employment, the College advertised for a full or part time mathematics teacher. The College did not consider offering the position to Mr Fox and the Tribunal found that the College therefore failed in their responsibility to avoid Mr Fox's redundancy and to treat it as an action of last resort.

The Tribunal noted generally that it was troubled by the veracity of the evidence produced by the College and considered that it detracted from the credibility of the College's submissions.

In relation to the allegation of sex discrimination, on the basis of the witness evidence, the Tribunal concluded that an act of direct discrimination had occurred during the hiring/retention process of Ms A in preference to Mr Fox in May 2011. There could be no justification for this other than a Genuine Occupational Qualification which was not found to be present.

Finally, the Tribunal found that the College had not failed to provide written reasons because Mr Fox did not make a specific request under section 2 of the Employment Protection (Guernsey) Law, 1998, as amended for written reasons to be provided.

Comment

This case spells out the importance of a detailed and rigorous redundancy procedure to ensure fair dismissals. It is not sufficient to produce paperwork; employers must engage fully with employees in a genuine and transparent consultation process. In respect of sex discrimination, even where there may be no malicious intent, it is important always to ensure that the selection criteria are neutral as to gender, save for the very narrow exception of a genuine occupational requirement