In this article we review the recent decision of the Guernsey Employment & Discrimination Tribunal in Fox v Blanchelande College (ED030/11) and consider how that decision interrelates with the Code of Practice on Handling Redundancy.
The facts briefly were as follows. Mr Fox taught mathematics at Blanchelande College. Following a decision to suspend the school’s sixth form for a minimum of two years due to funding difficulties, a redundancy exercise was implemented. In making the selection for redundancy, the College gave preference to retaining a fixed term contractor over Mr Fox. After selecting Mr Fox for redundancy in April 2011, it subsequently transpired that the College was underresourced with mathematics teachers for the coming academic year and advertised a post for a full time or part time teacher for September 2011. Mr Fox was dismissed on redundancy grounds in August 2011.
In Fox, the Tribunal had to consider three main questions. Was Mr Fox’s dismissal genuinely by reason of redundancy? Did Blanchelande College follow a fair procedure before dismissing Mr Fox on redundancy grounds? And was Mr Fox discriminated against on the grounds of his sex?
Dealing first with the issue of sex discrimination. The undisputed evidence before the Tribunal was that the teacher who had been retained in preference to Mr Fox was offered an on-going position on the basis that the College “needed strong female role models in the mathematics department”. This was found to have amounted to sex discrimination.
Turning to the redundancy issues, as HR practitioners will know, in order to achieve a fair dismissal by reason of redundancy an employer needs to show that (i) there was a genuine redundancy situation and (ii) a fair procedure was followed prior to taking the decision to dismiss.
In relation to the genuineness of the redundancy, the Tribunal found that the proposed reduction in teaching periods, taken in conjunction with Mr Fox’s offer to reduce his own teaching periods, still gave Blanchelande College enough headroom to appoint a new full time Head of Mathematics and call upon existing permanent staff including Mr Fox. As such, there was no genuine redundancy situation.
In terms of the redundancy procedure, the Tribunal made close reference to the Code of Practice on Handling Redundancy issued by the Commerce and Employment Department. In carrying out its redundancy process, Blanchelande College was found to have fallen short of the recommendations set out in the Code in a number of respects, even though the Principal had referred to it as his “bible”.
In finding that the College’s redundancy procedure was unfair, the Tribunal highlighted the following matters:
- the selection pool was incorrectly identified. The Tribunal considered the appropriate pool to be teachers within the College who could teach mathematics, reducing the pool to “at least 6 staff” from the 21 or 22 teachers originally identified;
- the Tribunal was concerned by the conflicting evidence given by Mr Fox and the Principal relating to the actual reduction in teaching periods, which was regarded as fundamental to determining the College’s on-going resourcing needs. It appeared to the Tribunal, on balance, that the Principal “had not fully grasped the situation”. The Tribunal’s comment was that “If an organisation cannot clearly state their allocation of work to their employees prior to restructuring, which involves the job security of its employees, this is of some concern and goes to the credibility of the evidence”;
- the selection criteria adopted by the College and communicated to Mr Fox were subsequently added to without Mr Fox being made aware of which additional criteria would apply;
- the primary criterion for selection was “relevant skills, qualifications and experience relevant to the role(s) applied for, including reference to performance management records”. As the College was not undertaking staff appraisals at the time and therefore there were no performance management records to rely on, this detracted from the reliability of this criterion;
- there was no scoring mechanism applied to the selection criteria;
- the College had issued a Staff Consultation Form to Mr Fox and other teachers which Mr Fox returned, expressing a preference for “twenty periods a week and not Friday”. The Tribunal criticised the College for taking Mr Fox’s expressed preference as a fixed position and failing to discuss possible alternatives with him;
- the Principal mistakenly believed Mr Fox to be working on a temporary basis (as a supply teacher) rather than under a permanent contract, a matter which the Tribunal felt could have been established quite easily by reference to the relevant documentation;
- the attempts by the College to consult were found to have been “very poor” and seemingly not entered into “ in a genuine spirit of enquiry”;
- no verifiable records were kept of management or consultation meetings, and no file notes were put on employee files;
- the College failed to discharge its responsibility to avoid a redundancy situation when it became aware (after giving Mr Fox notice of dismissal but before his employment terminated) that it would actually be understaffed for the next academic year.
Taking into account the comments of the Tribunal in Fox and the requirements of the Code, any employer considering making compulsory redundancies would be well advised to take the following measures:
- establish a formal procedure for dealing with redundancy;
- consider measures which may avoid or minimise compulsory redundancies, such as job share, short time working, reducing the employment of temporary employees or offering voluntary redundancy;
- identify the “selection pool” for redundancy, which will involve a careful consideration of the kind of work which is ceasing or diminishing and which employees actually do that work;
- establish fair selection criteria against which to select employees for redundancy, which should be consistently applied and be capable, as far as possible, of objective verification; be careful to ensure that records are available to carry out this verification exercise;
- consult with employees about redundancy as soon as practicable and certainly in advance of issuing any dismissal notices to enable suggestions and alternative options to be explored;
- during consultation, give employees adequate information and time to comment and make representations on the process before taking a final decision; the consultation process should be genuine, the Tribunal will be quick to recognise a window-dressing exercise;
- consider alternative work, including at another location or in a related company, even where alternative work is of lower status or at a lower pay scale; if alternative vacancies are likely to arise in the near future, these should also be explored;
- it is vital to keep notes of any meetings and discussions held during the consultation process; a complete paper trail will be very helpful if a redundancy is contested – but only where the documents show that a fair procedure has been followed.
It will always be possible to pick holes in a redundancy procedure. However, by examining your on-going resourcing needs carefully, giving proper consideration to the selection pool and criteria, and by adopting a fair, open and transparent approach to consultation, you can go a long way to heading off an unfair dismissal claim at the pass.