THE INDUSTRIAL TRIBUNALS

CASE REF:  401/07

CLAIMANT:			Janice Maskell

RESPONDENT:		Bristol Myers Squibb Pharmaceuticals Ltd

DECISION ON REMEDY

The decision of the tribunal is that the respondents do pay the claimant £18,231.67 compensation.

Constitution of Tribunal:

Chairman:		Ms P Sheils

Panel Members:	Mr R Hanna
			Mr J Smyth

Appearances:

The claimant appeared and represented herself.

The respondent was represented by Mr H Coll, Solicitor, instructed by Elliott Duffy Garrett Solicitors.

The Hearing

 1.	Further to the substantive decision in this case recorded, registered and issued to the parties on 30 May 2008 the purpose of this hearing was to hear from the parties in respect of any remedy to which the claimant may be entitled and to hear from them on the issue of contributory fault.

Submissions

 2.	The Tribunal received written and heard oral submissions from both parties in this case. The Tribunal wishes to record its gratitude for the preparation that each party put into these submissions.

The Law

 3.	The Tribunal considered the legislation and case law in relation to compensation generally and in relation to the reduction of any remedial award, either basic or compensatory. The Tribunal considered the Employment Rights (Northern Ireland)

Order 1996 and noted that Article 152 of the Employment Rights (Northern Ireland) Order 1996 provides that compensation awarded by a tribunal consists of a basic award and a compensatory award. 

 4.	The Tribunal noted that the decision whether to reduce either award is within a tribunal’s discretion, that is, whether the tribunal thinks it would be just and equitable to reduce either award.  The Tribunal was mindful of its obligation to approach the exercise of this judicial discretion within the guidelines as set out in the case of Selkent Bus Company v Moore.

 5.	The Tribunal considered the texts of Harvey, Tolley and Selwyn, the relevant case law, and noted in particular the cases of Devis and Sons Ltd v Atkins, Earl v Slates & Wheeler (Airlyne) Ltd 1973, Lock v Connell Estate Agents (1994).

Basic Award

 6.	Article 153 of the 1996 Order sets out the formula by which such basic award is to be calculated.

 7.	Article 156(2) of the 1996 Order goes on to provide that a tribunal may, in certain circumstances, reduce a basic award to any extent, in the light of any conduct of a claimant before the dismissal where it would be just and equitable to do so. 

 8.	The formula by which this award is calculated is set out at Article 153(2) of the Order and as applied to the claimant is:-

	£330 nett weekly pay (statutory limit) x 1.5 weeks (Aged 47 at EDT, [date of Birth 12/03/1959]) x 3 years employment = £1,485.

Compensatory Award

 9.	Article 157(1) of the 1996 Order provides that the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer". 

10.	Article 157(6) of the 1996 Order goes on to provide that, where the tribunal finds that a  dismissal was to any extent caused or contributed to by any action of the claimant, it shall reduce the amount of the compensatory award by such proportion as it considers to be just and equitable having regard to that finding.

Duty to Mitigate Loss

11.	The claimant claimed jobseekers’ allowance from January 2007 until June 2007. The Tribunal heard evidence from the claimant as to the efforts she had made to obtain alternative employment. The claimant stated that there were no suitable opportunities available to her in the weeks immediately after her dismissal (from January 2007) in the highly specialised field in which she had worked in the pharmaceutical industry. The claimant also indicated that her colleagues who had been dismissed at the same time as she had experienced the same difficulty.

12.	The claimant also stated that she felt that she would have been unable to apply for any such vacancies on the basis that she had “a record” in that she had been unfairly dismissed and that in the industry concerned news of her dismissal would have travelled.

13.	In the absence of employment opportunities the claimant decided to be proactive and to re-train in the field of stress management. Accordingly she embarked on a course that gave her a diploma in stress management. This course cost the claimant the sum of £1,175 and the claimant started her own business in this field in June 2007. 

14.	The claimant stated that the business made no significant monies during that summer and that the total monies earned by the business was £329.

15.	Some of this money was earned by the claimant on a contract from the University of Ulster during the course of which the claimant was advised that there was an up-coming vacancy in the University as a part time lecturer (fixed term contract) in this field. At this point the claimant decided that she would concentrate her efforts on preparing for the interview for this post. The claimant spent most of the autumn months on this task as the area of lecturing was a new departure for her and she felt she needed this level of preparation. 

16.	In the event the claimant was successful in getting this job and she remains in post. The claimant stated that she was hopeful that the contract would continue and that it might even become full time. The claimant’s salary from this post was £6,998 earned between December 2007 and May 2008.

17.	The respondents’ representative submitted that the claimant had not made a sufficient effort to mitigate her loss by not applying for posts similar to the post she had left and by immediately making a life choice to change her career path. He submitted that it was this choice and not circumstance which led to the claimant deciding to re-train, to earn less money than she could have done and ultimately to accept a job with considerably less money than she had previously earned.

18.	The Tribunal accepted the claimant’s evidence that there were no immediate vacancies open to the claimant in the specialised area in which she worked and also accepted that it would have been difficult for the claimant to look for or obtain work in the immediate aftermath of her having been dismissed. However the Tribunal also concluded that the claimant did make a life choice not to consider other posts in sales and to change her career path entirely. The Tribunal decided that there was a balance to be struck between the respondents’ responsibility for removing the claimant from what had been a very successful and lucrative position and leaving her to the vagaries of the job market (and with respect to the claimant, at a later life stage) and the claimant’s own decision to pursue an altogether different career. 

19.	Accordingly the Tribunal decided to award the claimant such loss as it considered reasonable in these circumstances being the difference between the claimant’s former salary and her total new earnings for a period of time of 52 weeks rather than the total number of 75 weeks between the date of the dismissal and the date of the decision.  

Total Loss Sustained

20.	Period from date of dismissal 21/12/06 (notice paid) until date of decision 30 May 2008:-

=  75 weeks as reduced  =  52 weeks

Net Income per week £590 x 52					=	£30,680.00

Car Allowance							=	  £2,850.00

Health Insurance Cover							     £400.00

Pension Loss								     £690.12

Total loss of earnings							£34,620.12

Re-Training Course								  £1,175.00

Loss of Statutory Rights 							     £500.00

Total										£36,295.12

Income during the period

Training Work Income:							     £329.00

Lecturer Income:								  £6,998.00

Tax Rebate:									  £1,057.00

Total Deductions								  £8,384.00

Total Actual Loss over 52 weeks					£27,911.12

Reduction of Awards For Contributory Fault

The Basic Award

21.	The Tribunal decided not to reduce the basic award in this case.  In reaching this conclusion the tribunal noted the case of Devis v Atkins and in particular noted that the tribunal’s power to reduce a basic award had been inserted into legislation to ensure that “wholly undeserving employees who had cheated on their employers” would not benefit from a basic award where previously they could have done so.  The Tribunal concluded that the instant case did not come into this category where the claimant could not be thus described.

Compensatory Award

22.	The Tribunal concluded that the compensatory award in this case should be reduced by 40%.  In reaching this conclusion the Tribunal took into account the fact as found at paragraph 100 of the decision that the respondent company had a reasonable belief that the claimant had committed acts of Gross Misconduct – namely the breaches of company guidelines DIR01 and SOP – and on the basis of this fact the Tribunal concluded that Ms. Maskell had contributed in part to her dismissal. 

23.	However the Tribunal also took into account that this contribution did not make the claimant “as much at fault for her dismissal” as submitted by the respondent’s representative, Mr Coll.  The Tribunal found that the dismissal was based not only on this fact, ie, the commission of the gross misconduct – but also on the respondent company’s failure to take proper account of the claimant’s record and that there had been no subsequent loss of trust and confidence by the respondent company in the claimant.

24.	The Tribunal also had regard to the fact that at paragraphs 36 and 42 that the claimant told her manager a lie when she denied the slides had ever been shown.  However the Tribunal decided not to increase the level of the claimant’s contributory fault on this basis.  In reaching this conclusion, the Tribunal took account of the fact that subsequent to this lie the claimant’s manager did not increase his level of supervision of the claimant and that there had been no consequent loss of trust and confidence in the claimant.

Total Loss--£27,911.12 reduced by 40% = £16,746.67 + £1,485 = £18,231.67                                           

25.       Recoupment of benefit received by the claimant

The Employment Protection (Recruitment of Jobseekers Allowance and Income Support) Regulations (Northern Ireland) 1996 apply in this case.  Rule of these Regulations require the Tribunal to set out

(a)	the monetary award;
(b)	the amount of the prescribed daily element, if any;
(c)	the dates of the period to which the prescribed element is attributable ; and
(d)	the amount if any by which the monetary award exceeds the prescribed element.

Rule 4 (Paragraph 2 of these Regulations also state where the Industrial tribunal at arriving at a monetary award makes a reduction on account of the employee’s contributory fault or on account of any limit imposed by or under the 1992 Act or the 1996 Act, a proportionate reduction shall be made in arriving at the amount of the prescribed element.

The prescribed element is that amount of the monetary award which represents a raise of pay, or compensation for loss of earnings, up to the date of the Tribunal hearing.  In this case that period runs from the date of the dismissal, the 21 December 2006 until the date of the hearing on 6 February 2008.  This is a period of 58 weeks.  However in applying Rule 4 (Paragraph 2) and taking into account the reduction in time made by the Tribunal in relation to the claimant’s failure to mitigate her loss.  The Tribunal found that prescribed period in this case should be 52 weeks.  In applying this same Rule the Tribunal reduced the prescribed element in this case by the same proportion by which the monitory award had been reduced, 40%.  The claimant had received Jobseekers allowance in total during the prescribed period of £929 which reduced by 40% amounted to £557.40.

Accordingly the amount by which the monetary award exceeds the prescribed element in this case is £17,674.27.

26. The attached Recoupment Notice forms part of the decision of the tribunal.

This is a relevant decision for the purposes of the Industrial Tribunals (Interest) (Northern Ireland) Order 1990.

Chairman:

Date and place of hearing:	25 June 2008, at Belfast.

Date decision recorded in register and issued to parties:

Case Ref No: 401/07	

CLAIMANT:		Janice Maskell

RESPONDENT:	Bristrol Myers Squibb Pharmaceuticals Limited
	
ANNEX TO THE DECISION OF THE TRIBUNAL

STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME SUPPORT

1.	The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.

	£	
(a)  Monetary award	18,231.67	
(b)  Prescribed element	557.40	
(c)  Period to which (b) relates:	21 December 2006 –
6 February 2008, reduced to 52 weeks	
(d)  Excess of (a) over (b)	17,674.27	

	The claimant may not be entitled to the whole monetary award.  Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department of Social Development has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department.  The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.

2.	The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing.  When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.

3.	The claimant will receive a copy of the recoupment notice and should inform the Department of Social Development in writing within 21 days if the amount claimed is disputed.  The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the claimant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the claimant and regardless of any dispute between the claimant and the Department.