Faulkner v Victim Support Northern Irelan. [2008] NIIT 879_06IT (12 February 2008)

THE INDUSTRIAL TRIBUNALS

CASE REFS:  879/06;
1033/06;
1363/06

CLAIMANTS:		Brenda Faulkner
Marilyn Giboney

RESPONDENT:		Victim Support Northern Ireland

DECISION ON REMEDY

The unanimous decision of the tribunal is that the tribunal, firstly, orders the respondent, subject to the recoupment provisions, to pay to the first-named claimant, Mrs Faulkner, the total sum of £16,103.05 and the tribunal, secondly, orders the respondent, subject to the recoupment provisions, to pay to the second-named claimant, Mrs Giboney, the total sum of £16,726.25.

Constitution of Tribunal:
Chairman:		Mr J V Leonard
Members:		Ms Macauley
			Mr Hall

Appearances:
The claimants were represented by Mr Bernard, Barrister-at-Law, instructed by Bogue & McNulty, Solicitors.
The respondent was represented by Mr Sheridan of Peninsula Business Services Limited.

 1.	By decision on liability promulgated on 20 November 2007, the tribunal’s determination in respect of the issue of unfair dismissal regarding each of the claimants was that both claimants had been unfairly dismissed by the respondent.  
 2.	At the request of the respective parties, the tribunal hearing reconvened to determine the matter of the respondent’s counterclaim against the second-named claimant, Mrs Giboney, and also the matter of remedy in respect of the findings of unfair dismissal in each case.
 3.	At the outset of the hearing, very helpfully, Mr Bernard on behalf of Mrs Giboney indicated that the matter of the alleged overpayment to Mrs Giboney which formed the substance of the respondent’s counterclaim against Mrs Giboney was conceded and that fact was reflected in a revised schedule of loss which was placed before the tribunal on behalf of each of the claimants by the representative for consideration by the tribunal.  Also, equally helpfully, the respondent’s representative indicated that the figures contained in each schedule of loss were agreed, for the most part. Accordingly the matters of contention were substantially narrowed in order for the tribunal to proceed with its determination.  
 4.	Specifically, there had been an issue earlier alluded to which was to be further explored by both parties upon the conclusion of the earlier hearing as to how the terms of particular compromise agreements in settlements of claims made by other branch managers of the respondent might affect the alleged financial loss sustained by each claimant as a result of her dismissal.  The specific sum which had been received by each of the other branch managers was made known to the tribunal and the respective representatives agreed that, in the case of each claimant, it was more probable than not that each claimant would have received a similar sum on foot of an equivalent compromise agreement had each claimant continued to be employed at the time when these compromise agreements had become effective.  Accordingly, it was not in contention that the sums in question could be taken account of by the tribunal in its determination of the issue of loss.  That fact is reflected in the tribunal’s determination as is set out below.
 5.	The tribunal did not hear any additional evidence but the claimants’ representative drew the tribunal’s attention to earlier submissions made and added that, in the case of Mrs Faulkner, she had taken all reasonable steps to mitigate her loss and there could be no possible issue in that regard.  Any loss claimed would be up to 26 March 2007 which was the date of dismissal of the other branch managers and no claim for loss would therefore be made beyond that date.
 6.	A similar position applied, it was submitted, in respect of Mrs Giboney where it was indicated that no loss would be claimed beyond 26 March 2007.  Furthermore, it was conceded that the additional payments received by Mrs Giboney from the respondent in respect of the months of April and May 2006 (which came to respectively, £409.13 and £1,524.22) would properly be deductible from the claim for loss as these represented an overpayment of wages to Mrs Giboney by the respondent.
 7.	The respondent’s representative then drew the tribunal’s attention to his previous submissions in respect of alleged contributory fault and failure to mitigate, especially as regards Mrs Giboney in the latter case.
 8.	The tribunal raised with the respective representatives the issue of the statutory uplift in compensation as there had been a finding of unfair dismissal grounded upon Article 130A of the Employment Rights (Northern Ireland) Order 1996.  For the claimants, Mr Bernard submitted that this was a case in which the tribunal’s discretion should be exercised to provide for the maximum enhancement of compensation by a figure of 50%.  That was for the reason that the respondent had acted in each case in a highhanded and arbitrary fashion, without any mitigating circumstances.
9.	For the respondent, Mr Sheridan submitted that the respondent had acted at all times in good faith and on foot of advice received and was of the genuine belief that the claimants were each engaged in unlawful unauthorised industrial action and thus that the respondent had an entitlement to dismiss each respondent.  Accordingly the tribunal ought not properly to accede to the claimants’ representative’s submission in respect of the issue of uplift. 
THE APPLICABLE LAW
10.	The Employment Rights (Northern Ireland) Order 1996 (hereinafter referred to as “the 1996 Order”) provides that if a tribunal makes a finding of unfair dismissal, and an order for re-engagement or re-instatement is inapplicable, a tribunal may make an order for compensation including both a basic award, under Article 153 of the 1996 Order, and a compensatory award under Article 157 of the 1996 Order, the compensatory award being such amount as the tribunal considers just and equitable having regard to the loss sustained by the complainant in consequence of the dismissal, insofar as that loss is attributable to action taken by the employer. 
The 1996 Order states at Article 152-
“152. — 
(1)	Where a tribunal makes an award of compensation for unfair dismissal under Article 146(4) or 151(3)(a) the award shall consist of— 
(a)	a basic award (calculated in accordance with Articles 153 to 156,160 and 161), and 
(b)	a compensatory award (calculated in accordance with Articles 157, 158, 160 and 161 and 162A (1), (3) and (4)). “
11.	The Employment (Northern Ireland) Order 2003 ("the 2003 Order") includes the following Articles:-
Article 15, in relation to statutory dispute resolution procedures.

Article 17, in relation to non-completion of statutory procedure: adjustment of awards by industrial tribunals.

Article 29, in relation to reduction or increase under Article 17 of the 2003 Order.

12.	The detail of the foregoing provisions, as these appear in the statute, with the tribunal's own emphasis for clarity in bold lettering of certain parts of these provisions, is as follows:-

“15. — 
(1)	Schedule 1 (which sets out the statutory dispute resolution procedures) shall have effect."

“Non-completion of statutory procedure: adjustment of awards by industrial tribunals
17.-(1)	This Article applies to proceedings before an industrial tribunal relating to a claim under any of the jurisdictions listed in Schedule 2 by an employee.
(2)	 -  
(3)	If, in the case of proceedings to which this Article applies, it appears to the industrial tribunal that - 
(a)	the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies,
(b)	the statutory procedure was not completed before the proceedings were begun, and
(c)	the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer to comply with a requirement of the procedure,
it shall, subject to paragraph (4), increase any award which it makes to the employee by 10 per cent and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50 per cent.
(4)	The duty under paragraph …. (3) to make a reduction or increase of 10 per cent does not apply if there are exceptional circumstances which would make a reduction or increase of that percentage unjust or inequitable, in which case the tribunal may make no reduction or increase or a reduction or increase of such lesser percentage as it considers just and equitable in all the circumstances.
(5)	  - “
“Unfair dismissal: adjustments under Articles 17, 27 and 29.  In the Employment Rights Order, after Article 158 there shall be inserted - 
"Adjustments under the Employment (Northern Ireland) Order 2003 158A.  Where an award of compensation for unfair dismissal falls to be - 
(a)	reduced or increased under Article 17 of the Employment (Northern Ireland) Order 2003 (non-completion of statutory procedures); or
(b)	 -
the adjustment shall be in the amount awarded under Article152(1)(b) and shall be applied immediately before any reduction under Article 157(6) or (7)."
13.	Part 1 of Schedule 1 of the 2003 Order provides for standard and modified dismissal and disciplinary procedures.  Such procedures involve an employer providing to an employee a statement in writing regarding conduct, characteristics or circumstances which lead him to contemplate dismissing or taking disciplinary action against an employee.  That statement in writing must be sent to the employee, and the employee invited to attend a meeting.  A meeting must follow at which the employee has been given a reasonable opportunity to consider his response and to attend, and an appeal must be afforded to the outcome of any decision on the employer’s part.  
14.	The Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (“the 2004 Regulations”), insofar as material, provide as follows:
Application of dismissal and disciplinary procedures

     3.-(1)	the standard dismissal and disciplinary procedure applies when an employer contemplates dismissing or taking relevant disciplinary action against an employee.

There are various provisions contained in the 2004 Regulations concerning the non-applicability of the statutory procedures or, alternatively, circumstances in which the procedures do not apply or are treated as being complied with.  The tribunal does not intend to recite these provisions here as these are not applicable in the circumstances of this matter. 

THE TRIBUNAL’S DETERMINATION
15.	Dealing firstly with the matter of the first claimant, Mrs Faulkner, the tribunal notes the submissions made.  The tribunal determines that Mrs Faulkner fully endeavoured to mitigate her loss and indeed the tribunal notes that the respondent’s representative presented no strong argument against that proposition.  It was agreed between the parties that Mrs Faulkner commenced employment on 10 March 2003 and was dismissed on 28 April 2006.  At that time Mrs Faulkner had three years’ continuous service.  Her date of birth was 29 April 1956 and the relevant multiplier for statutory purposes is 1½.  Her basic wage per week was £456.92 gross.  Her net earnings per week were £345.06.  Mrs Faulkner received Job Seeker’s Allowance from the time of dismissal up until 23 July 2006.  After that she received earnings from an employment agency from 23 July 2006 to 29 September 2006, the total sum of £2,000.88.  Thereafter, she received wages from employment from 9 October 2006 up to 26 March 2007 (the agreed final date for computation of loss in the matter) amounting to a total of £6,956.45.  Had she been employed by the respondent as at 26 March 2007 she would have received the sum of £3,200 on foot of the compromise agreement mentioned earlier.

16.	Accordingly, in Mrs Faulkner’s case the compensation awarded is follows:-
	Basic Award (statutory maximum £290)	£290 x 3 x 1.5	=	  £1,305.00
	Compensatory Award 			48 weeks x 345.06	=	£16,562.88
	Less Agency Work Received                                                             	(£2,000.88)
	Less Earnings from Employment                                                      (£6,956.45)
	Nett Loss of Earnings                                                                           £7,605.55
17.	Regarding the matter of the statutory uplift in compensation, the tribunal noted that the uplift does not apply to the basic award of compensation on account of the provisions of Article 29 of the 2003 Order.  Whilst Article 17 of the 2003 Order is perhaps a little unclear in that regard, the tribunal is quite certain that the effect of Article 29 of the 2003 Order is to confine the adjustment in the amount of compensation awarded under Article 152(1)(b) of the 1996 Order to the compensatory award.  Any doubt in that regard is dispelled by the decision of the Employment Appeals Tribunal in England in Alexander and another -v- Bridgen Enterprises Ltd [2006] IRLR 422  (the President of the EAT, Mr Justice Elias, at paragraph 20).  Furthermore, the tribunal is obliged under Article 17(3) to consider whether it would be just and equitable to provide for increased compensation beyond the figure of 10% and up to a maximum of 50%.  The tribunal thus considered the appropriate percentage uplift in the circumstances and also considered the issue of whether or not any such an uplift ought properly to apply to the entity of the compensatory award or to part only.  In respect of this latter issue, the tribunal kept to the fore the necessity that any uplift in compensation should be based on what is just and equitable in all of the circumstances of the case.  That being so, the tribunal’s determination was that it was just and equitable under all of the circumstances of the case to provide for an uplift figure of 45% in the case of Mrs Faulkner to that part of the compensatory award concerning loss of earnings and further, to apply an uplift figure of 10% to that part of the compensatory award which related to the (compromise agreement) figure of £3,200 which would more probably than not have been received by Mrs Faulkner had she remained in employment at 26 March 2007.  That is reflected therefore in the calculations which are set out below.  

18.	The enhanced compensatory award in Mrs Faulkner’s case is therefore as follows:-

Nett Loss of Earnings							  £7,605.55

Enhancement of Compensation (45%)					  £3,422.50

£11,028.05

Compensation for loss of compromise agreement sum		  £3,200.00

Enhancement  (10%)							     £320.00

£14,548.05

Compensation for loss of statutory rights					     £250.00

Basic Award                                                                               	  £1,305.00

	TOTAL COMPENSATION INCLUDING BASIC AWARD
	AND COMPENSATORY AWARD PLUS STATORY 
	ENHANCEMENT:								£16,103.05

19.	Turning then to the award in respect of Mrs Giboney, it was agreed that Mrs Giboney was employed by the respondent from 14 May 2001 up to 16 May 2006, when she was dismissed.  At that time Mrs Giboney had five years’ continuous service.  Her date of birth was 11 November 1955 and the relevant multiplier for statutory purposes is 1½.  Her basic wage per week was £456.92 gross and her net earnings per week were £381.21.  She had received overpayments of wages from the respondent for April and May 2006 of respectively £409.13 and £1,524.22. These sums were conceded by her representative as properly having to be deducted from the calculation of loss.  After dismissal Mrs Giboney had received wages from part-time employment with Northern Ireland Statistics and Research Agency (NISRA) throughout the period from October 2006 to up 26 March 2007 amounting to a total £1,368.37.  She had also claimed Job Seeker’s Allowance from the date of her dismissal until, so the tribunal understands, the commencement of her part-time employment with NISRA on or about 16 October 2006.

20.	The award is therefore as follows:-

Basic Award (statutory maximum £290)	£290 x 5 x 1.5	=	  £2,175.00

21.	The tribunal then considered Mrs Giboney’s claim for compensation covering a period of 45 weeks from 16 May 2006 to 26 March 2007.  The issue of Mrs Giboney’s alleged failure to mitigate her loss had been raised by the respondent’s representative in submissions.  Mrs Giboney had taken a job with NISRA, which was a part-time post, in October 2006 and she had remained in that part-time employment until after 26 March 2007, the end date which concerns this tribunal.  The employment evidence was problematical. The tribunal saw no clear evidence that Mrs Giboney had actively looked for full-time or well-remunerated employment throughout the period of time under scrutiny, possibly at a level of wage commensurate with the wage that she had earlier earned with the respondent.  Mrs Giboney had explained to the tribunal that she had hoped to be reinstated in her post with the respondent upon conclusion of her internal appeal.  Be that as it may, the internal appeal process had concluded in early February 2007.  There was nothing in the tribunal’s view, based upon the evidence, to have precluded Mrs Giboney from actively seeking full-time or better paid employment than that which had been secured by her with NISRA.  For whatever reason, Mrs Giboney did not seek out such employment at the time. Thus the tribunal’s determination is that Mrs Giboney had not made sufficient or reasonable efforts to secure proper remunerative employment if at all possible at a level of wage commensurate with her earnings with the respondent. The tribunal felt that an appropriate period during which Mrs Giboney might have endeavoured to and might have succeeded in finding such employment was a period of 26 weeks from the dismissal date. Loss therefore should in justice and equity be confined to that period.  The compensatory award is therefore as follows:-

	26 weeks   £381.21 =                                                          		     £9,911.46

	Less payments received from the respondent
for the months of April and May 2006                                (£409.13 and £1,524.22)

	Less wages received from NISRA (26 weeks’ loss period)                       (£790.61)

	Nett Loss of Earnings                                                                               £7,187.50

22.	Regarding the matter of the statutory uplift, as in the case of Mrs Faulkner, the tribunal considered whether it would be just and equitable to apply any uplift in compensation to both the component of the compensatory award relating to loss of earnings and also to that relating to the sum which would have been received by Mrs Giboney on foot of the compromise agreement.  Like Mrs Faulkner’s case, the tribunal felt that it would be just and equitable to apply a percentage of 10% to the figure of £3,200 but to apply a different percentage to the component of loss in respect of loss of earnings.  Here, the tribunal had regard to the claimants’ representative’s submissions concerning the issue of uplift and felt that, in all the circumstances of the case, it was appropriate to apply a figure of 50% to that part of the compensatory award relating to loss of earnings.  That is reflected in the figures set out below.

	Nett Loss of earnings                                                                            £7,187.50

	Enhancement of compensation (50%)                                                  £3,593.75

	Compensation for loss of compromise agreement sum                        £3,200.00

	Enhancement (10%)                                                                                £320.00

	                                                                                                            £14,301.25

	Compensation for loss of statutory rights                                                 £250.00

	Basic Award                                                                                          £2,175.00

TOTAL COMPENSATION INCLUDING BASIC AWARD AND
COMPENSATORY AWARD PLUS STATORY ENHANCEMENT:               £16,726.25

RECOUPMENT OF BENEFIT FROM AWARDS

23.	MRS FAULKNER

	The applicant did receive Social Security Benefits to which the Employment Protection (Recoupment of Job Seekers and Income Support) Regulations (Northern Ireland) 1996 apply.  The following recoupment of benefit is therefore applicable in this case:

	(a)	Monetary Award:					£16,103.05

	(b)	Prescribed Element:				£11,028.05

	(c)	Prescribed Period: 28 April 2006 to 23 July 2006

	(d)	Excess of (a) over (b):				  £5,075.00

	MRS GIBONEY

	The applicant did receive Social Security Benefits to which the Employment Protection (Recoupment of Job Seekers and Income Support) Regulations (Northern Ireland) 1996 apply.  The following recoupment of benefit is therefore applicable in this case:

	(a)	Monetary Award:					£16,726.25

	(b)	Prescribed Element:				£10,781.25

	(c)	Prescribed Period: 16 May 2006 to 16 October 2006

	(d)	Excess of (a) over (b):				  £5,945.00

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

Chairman:

Date and place of hearing:	19 December 2007, Belfast.

Date decision recorded in register and issued to parties: