THE INDUSTRIAL TRIBUNALS

CASE REF:	5802/09

CLAIMANT:			Stan Druse	

RESPONDENT:		Newry and Mourne District Citizens Advice Bureau

DECISION 
The tribunal finds that the claimant’s contract of employment was breached and that he suffered constructive dismissal and suffered an unlawful deduction from his wages.  The tribunal dismisses the claimant’s claims for right to receive particulars of his contract and a health and safety detriment.  The tribunal awards the claimant compensation of £43,332.64 made up as follows:-

£   2,814.50		for non receipt of contractual sick pay
£      472.14		for non payment of holiday pay
£40,046.00		for unfair constructive dismissal
£43,332.64

Constitution of Tribunal:
Chairman:		Mr B Greene
Members:		Mr J McAuley
			Mr D Walls

Appearances:
The claimant appeared in person.

The respondent was represented by Mr John Coyle, Barrister-at-Law, instructed by Worthingtons, Solicitors.

Sources of evidence

1.	The tribunal heard evidence from the claimant and on his behalf Rose Closkey, Edward McKeown, Mary Grew and Emmett Lynch.  For the respondent the tribunal heard from Paul Robert Henry, Wilgar Glendinning, Kieran Campbell, Anne Burns, Rosemarie McDonnell, Gerard Quinn and Aisling Ryan.  The tribunal also received 19 bundles of agreed documents amounting to some 295 pages and two written submissions amounting to 28 pages.  

The claim and defence 

2.	The claimant claimed unfair constructive dismissal, breach of contract, health and safety detriment, the right to receive particulars of contract and an unauthorised deduction from wages.  

The respondent disputes the claimant’s claims in their entirety.  

The issues

3.	The following issues arise:-

		(1)	whether the claimant’s contract of employment was breached;

		(2)	whether the claimant had been constructively dismissed;

		(3)	whether the claimant had suffered a health and safety detriment;

	(4)	whether the respondent had failed to provide the claimant with particulars of his contract of employment; and

		(5)	whether the claimant had suffered an unlawful deduction from wages.

Findings of fact

4.	In general the tribunal found the evidence on behalf of the claimant more persuasive.  The claimant and his witnesses gave their evidence in a positive fashion.  The evidence of behalf of the respondent frequently was, that the incident or events that were being discussed were not recalled or remembered.  There was a number of contradictions in the respondent’s witnesses’ evidence.  

In addition, in those items or issues or events where there was a degree of agreement the respondent’s witnesses’ evidence tended to support the account given by the claimant and in particular his written records of the events.  

(1)	The claimant was born on 30 July 1948.

(2)	He was employed by the respondent as a senior advisor/tribunal representative from 1 June 2007 until 26 April 2009, when he resigned.

(3)	The claimant earned per month £2,172.00 gross and £1,586.00 net.

	(4)	The claimant became temporary manager of the respondent arising from the then manager’s serious illness.  At the time of the appointment the claimant was given verbal assurance that the post would become permanent.

	(5)	The respondent is a limited company.  It is funded from public funds drawn from Newry and Mourne District Council and matching funding from the Department for Social Development.  It employs a manager, five full-time and two part-time staff.  It also has the assistance of volunteers.

	(6)	Following advice from the Citizen’s Advice Bureau Regional Office the respondent arranged a competition in 2008 to fill the post of manager.  The claimant applied and was unsuccessful.

	(7)	Rosemarie McDonnell was appointed manager.  She took up position on 1 October 2008.

	(8)	Apart from during one month when claimant was acting manager there was no management committee in place as all the members had resigned save one.

	(9)	From 1 October 2008 the claimant became senior advisor/tribunal representative.

(10)	The claimant signed a contract of employment on 6 August 2008.  Among the terms of the contract were that the claimant would not be required to work a probation period (clause 4) and if sick he would receive statutory sick pay (Clause 12).

(11)	The claimant was given a job description with the contract when he took up his new post on 1 October 2008.  Among its duties and responsibilities were that the claimant was to supervise the day to day running of the advice session at Newry and Mourne Citizen’s Advice Bureau and to deputise for the manager in her absence.  The tribunal accepts the claimant’s account on this matter as the respondent does not dispute he was given the job description.  It says it could not find a copy of it.  It made no effort to ascertain from the previous management committee if such had been given to the claimant, if it entertained any doubt as to the authenticity of the document  produced by the claimant.

(12)	On 2 October 2008 the claimant was off work sick.  He returned on 25 November 2008.

(13)	Within a day or two of returning the claimant had a formal return to work interview with the manager, at her request.  The main focus of the meeting was a new job description prepared by the respondent.  The meeting adjourned until after lunch to give the claimant a chance to consider the new job description.  The new job description purported to change the claimant’s duties and responsibilities.  It omitted responsibility for supervision of day to day running of the advice session or deputising for the manager.

(14)	The manager asked the claimant to sign the new job description as there was not any job description attached to his contract.  He refused to sign saying it was not his job description.  The manager said she had drawn it up and the management committee had approved it.  The claimant considered the new job description a demotion though he did not mention that to the manager.  She said she would have to take the matter to the management committee.  The claimant subsequently gave the manager a copy of his original job description.

	The respondent stated a deputy manager was not necessary and the chairman, Will Glendinning, would deputise for the manager in her absence.

(15)	The claimant’s computer was not working properly.  He mentioned it to the manager in December 2008 but nothing was done.  He obtained one from a former member of the management committee.

(16)	The claimant believed that another member of staff, Gerard Quinn, acted as deputy manager.  The claimant found this hurtful.  He raised this with the manager several times.

(17) 	The claimant was in hospital from 12 to 21 January 2009 and he received contractual sick pay for those days.  He returned to work on 22 January 2009. 

(18) 	On 2 February 2009 the claimant had an exchange with a colleague, Anne Burns.  Ms Burns remonstrated with the claimant for conducting an unscheduled interview with a client when the staff were tasked with carrying out arranged interviews and dealing with telephone queries.  The claimant believed that Ms Burns was criticising him and he regarded her remarks as unacceptable.

Ms Burns made a written report of the incident to the manager and the managing committee that the claimant had bullied her.  The claimant also provided a written report of the incident to the manager.  However he was not informed of any outcome.

(19)	The claimant raised the issue of his job description with the manager on 5 February 2009 as he had not received any feedback arising from his representations on 25 November 2008.  The manager retorted that the claimant had not pursued it.  The claimant left the manager in no doubt that he was pursuing it.

(20)	In early 2009 the respondent perceived its financial situation as perilous.  Newry and Mourne District Council had not confirmed further funding to the respondent.  Without that grant there was not any matching funding from the Department for Social Development.

(21) 	By reason of the absence of confirmed funding the respondent believed it would have to make all staff redundant.  It decided to give all staff notice of possible redundancy.  The chairman of the management committee, Will Glendinning  agreed to make the announcement to all staff of potential redundancies on 11 February 2009. 

(22) 	Mr Glendinning addressed the staff on 11 February 2009.  He advised them that as the respondent was effectively trading insolvently that notice of redundancy letters would be issued to all staff.  He further stated that if Newry and Mourne District Council provided funding the redundancy notices would be withdrawn. 

(23)	There followed a discussion among the staff after Mr Glendinning’s announcement and in the presence of the manager.  A member of staff, Kelly Murray, made a number of comments critical of the claimant for not having brought in more funding when he was acting manager and about the size of his salary.  She concluded by encouraging him to do everyone a favour and resign.  

The claimant did not participate in the discussion.  He made notes of the discussion.   Just before 5.00pm the manager invited the claimant to go home if he were not interested in what was being discussed.  At that stage the claimant left.

(24)	The claimant was off on sick leave from 12 February 2009 and never returned to work.  By letter of 15 February the claimant complained about the treatment he had received in the office on 11 February 2009 from the manager and the failure of Will Glendinning to make eye contact with him during his address to the staff.  

(25)	By letter of 18 February 2009 the manager wrote to the claimant advising him of the extension of his probation period to 26 April 2009.  She intimated to him that the management committee had agreed to this step and reminded him that she had previously raised the probation period with him at a supervision meeting on 14 January 2008.

	(26)	On 28 February 2009 the claimant received his salary.  In included a sick pay element which was statutory sick pay and not contractual  sick pay.  In a letter of 4 March 2009 the claimant queried the amount of his salary for February 2009.

(27) 	The manager replied by letter of 6 March 2009.  She explained that the claimant was only entitled to statutory sick pay which was the reason for the amount of his salary in February. 

She went on to state that he had been paid contractual sick pay for January 2009 by mistake.  In order to deal with the mistake the respondent had set the overpayment against seven days of the claimant’s unused annual leave.  She further stated that she had intended to inform the claimant of this on his return to work.  This was done without the claimant’s knowledge or consent. 

(28)	The claimant also received statutory sick pay for March and April 2009. 

(29)	Prior to 2008 all employees of the respondent enjoyed contractual sick pay.  The respondent brought in statutory sick pay for all new employees including the manager in 2008.    

(30) 	Although the contract signed by the claimant and Matt Devlin, the former chairman of the management committee, states that the claimant would receive statutory sick pay the claimant contended this was a mistake.  At Mr Devlin’s direction he had downloaded a pro forma contract prepared by Bates Wells & Braithwaite and used by citizen’s advice bureaux in Britain and Northern Ireland and both had signed it without realising that statutory sick pay was applicable and not contractual sick pay.

The mistake was discovered a short time afterwards and a new clause 12a was attached to the contract of employment indicating that the claimant would receive contractual sick pay.  The amendment to the document is not signed or dated nor is there any indication in clause 12 that it has been amended or superseded by clause 12a.

In support of his contention the claimant produced a signed statement dated 15 January 2010 from Matt Devlin and the then deputy chairman of the management committee, Catherine Donnelly, which stated that the claimant’s sickness benefit was not to change when he took up his new position on 1 October 2008.  Neither of the makers of the statement was called to give evidence.

The manager had a conversation with Matt Devlin in which he confirmed the claimant’s account.  He stated that there had been a mistake in the contracts of the claimant and two other employees by providing statutory sick pay instead of contractual sick pay.  He further indicated to her that he had directed the claimant to rectify it and get it signed. 

The manager discussed this with the management committee and, on its advice, with the Labour Relations Agency.  Following the latter discussion the respondent decided not to pay contractual sick pay to the claimant.

(31)	Following an application by the claimant Halifax opened an interest only mortgage account for £70,999.00.  Monthly repayments of £170.96 began on 13 April 2009.
  
(32)	The claimant received notice on 1 April 2009 of a grievance meeting arranged to deal with the claimant’s concerns, scheduled for the 2 April 2009.  The claimant complained about the inadequacy of the notice and the meeting was re-arranged for 21 April 2009.

(33)	Kieran Campbell, a member of the management committee, and the person scheduled to hear the claimant’s grievance confirmed to the claimant on 20 April 2009 that Mary Grew could accompany him to the meeting.  On the morning of 21 April 2009, Kieran Campbell informed the claimant that Mary Grew was not appropriate as his companion at the meeting as she was not a work colleague.  Mary Grew was a volunteer worker with the respondent.  The grievance meeting was rescheduled for 22 April 2009.  The meeting did not take place as the claimant was unable to get someone to accompany him by reason of the Easter holidays.  The respondent proposed a further meeting for 6 May 2009 to consider the claimant’s grievance.

(34)	The respondent invited the claimant, by letter of 16 April 2009, to a disciplinary meeting on 30 April 2009.  This was the first notification that the claimant received about a disciplinary issue.

The reason for the disciplinary meeting was because the claimant had sent letters to the Minister for Social Development and Newry & Mourne Councillors.  Neither copies of the letters nor their contents were revealed.  The letter went on to outline three alleged consequences of the letters which were that;-

“1.	The disclosure of internal employment issues to the funders of the Bureau with the result that funding of the Bureau has been jeopardised and consequently threatening the continued existence of the Bureau.

2.	Potentially bringing the Bureau into disrepute.

3.	 All of the above potentially undermine the trust and confidence that must exist between an employee and employer.”

The claimant was then warned that dismissal could result from his failure to provide a satisfactory explanation for the stated conduct.

(35)	The claimant resigned on 26 April 2009.  Since his previous letter to the management committee of 4 March 2009 in which he outlined his complaints, the respondent sent “exit” forms to two volunteers who had supported the claimant, Mary Grew and Ade Adeyanju.

(36)	He was diagnosed as suffering from work related stress on 27 April 2009.  He has not worked since and continues to be under the care of his GP and a consultant psychiatrist.  He says he is still unable to work by reason of these events in his employment.

	He produced a report from Dr Niall McCullough of 25 March 2010.  In the report Dr McCullough comments on the clamant having been referred to him by the claimant’s GP; having seen him on six occasions; and having produced a programme to help the claimant.  In his report he concludes:-

	“ …

	It is very clear that he has been significantly psychologically traumatised by his experiences with the management of the Citizens’ Advice Bureau.  This has had a very negative impact on his self-esteem and self confidence and led to the development of his dispute with Citizens Advice Bureau.”

Dr McCullough is quite hopeful of a full recovery and states there if his symptoms have not resolved within six months of dispute resolution to refer the claim back to him, if the GP wishes.

(37)	While the respondent agreed to the tribunal seeing the medical report it makes the following points:-

		(a)	The report is not an agreed report.
		
(b)	Dr Niall McCullough did not attend to give evidence and to be subject to cross-examination.
	
			(c) 	There is no report for the respondent in the claimant’s health.

(38)	The claimant hopes to go into business for himself within the next year.

(39)	The claimant also makes a number of other complaints about the treatment he received from the respondent and its staff.  These include:-

(a)	The failure of the staff to defer or refer to him on any issue relating to advice, work or bureau policy or administrative matters;

(b)	The failure to inform him about and invite him to the Christmas function;

(c)	Excluding him from having lunch with other staff members.

(d)	Excluding two voluntary workers with the respondent who were friendly with the claimant.

(e)	Issuing conflicting and ever changing instructions to the claimant.

(40)	The claimant was critical of the involvement and influence of Mr Derek Alcorn, chief executive of Citizen’s Advice Bureaux Northern Ireland, in the affairs and running of the respondent and his appointment as acting manager and as senior adviser/tribunal representative.  He believed Mr Alcorn bore him ill-will and was actively trying to remove the claimant from the respondent.  The claimant made a number of complaints about Mr Alcorn to the respondent and to the Minister for Social Development.

(41)	The respondent contends that the claimant was less than welcoming to the new manager when she arrived and that he maintained an antipathy towards her thereafter.

The law

5.	(1)	A breach contract arises when the respondent breaches any term of the claimant’s contract of employment whether that term is an express term or an implied term or arises by operation of law.

	(2)	To establish a constructive dismissal that is unfair the claimant must prove that:-

			(a)	there was a breach of his contract of employment; 

			(b)	the breach went to the core of the contract;

			(c)	the breach was the principle reason for his resignation;

			(d)	he did not delay in resigning after the breach had occurred; and

			(e)	in all the circumstances the respondent acted unreasonably.

(3)	The breach of contract can be the breach of an express term of the contract or breach of the implied term of trust and confidence or both.

(4)	A breach of the implied term of trust and confidence can be a single act of the employer or a course of conduct by the employer over a period of time.

(5)	Where a course of conduct is relied upon it is not necessary that any single act itself amounts to a breach of the implied term of trust and confidence but the course of conduct, cumulatively, must amount to the breach of the implied term.

(6)	An employee must not be subjected to any detriment by any act or deliberate failure to act by his employer done on the ground that;-

(a)	having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work the employer carried out (or proposed to carry out) any such activities; 

	(b)	being a representative of workers on matters of health and safety or a member of a safety committee in accordance with any arrangements established under a statutory provision or was so acknowledged by the employer, the employee performed (or proposed to perform) any functions such as a representative or a member of a committee; 

(c)	the employee took part, or proposed to take part, in consultation with the employer pursuant to the Health and Safety (Consultation with Employees) Regulations (Northern Ireland) 1996 or in an election of representatives of employees’ safety within the meaning of those Regulations; 

(d)	that there being no such representative or safety committee or where there was a representative or safety committee it was not reasonably practicable for the employee to raise the matters by those means that the employee brought to his employer’s attention by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health and safety;

(e)	in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert he left (or proposed to leave) or (while the danger persisted) refused to return to, his place of work or any dangerous part of his place of work; or 

(f)	in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.  (Article 68 the Employment Rights (Northern Ireland) Order 1996).

	(7)	An employer shall give to the employee a written statement of particulars of his employment (Article 33 the Employment Rights (Northern Ireland) Order 1996).  

	(8)	If there are any changes to the particulars of the employee’s contract of employment the employer shall provide to the employee a statement of those changes in writing (Article 36 the Employment Rights (Northern Ireland) Order 1996).

	(9)	An employer shall not make a deduction from wages of a worker employed by him unless the deduction is required or authorised by statute or a relevant provision of the worker’s contract or the worker has previously signified in writing his agreement of consent to the making of the deduction.  (Article 45 of the Employment Rights (Northern Ireland) Order 1996).	

	(10)	“Where the innocent party, being entitled to choose whether to treat the contract as continuing or to accept the repudiation and treat himself as discharged, elects to treat the contract as continuing, is usually said to have a “affirmed” the contract.  He will not be held to have elected to affirm the contract unless, first, he has knowledge of the facts giving rise to the breach, and, secondly he has knowledge of his legal right to choose between the alternatives open to him.  Affirmation may be expressed or implied.  It will be implied if, with knowledge of the breach and of his right to choose, he does some unequivocal act from which it may be inferred that he intends to go on with the contract regardless of the breach or from which it may be inferred that he will not exercise his right to treat the contract as repudiated.  Affirmation must be total: the innocent party cannot approbate and reprobate by affirming part of the contract and disaffirming the rest, for that would be to make a new contract.  Equally a party cannot affirm the contract for a limited period of time and then abrogate it on the expiry of that period of time.  Mere inactivity after breach does not of itself amount to affirmation, nor (it seems) does the commencement of an action claiming damages for breach.  The mere fact that the innocent party has called on the party in breach to change his mind, accept his obligations and perform the contract will not generally, of itself, amount to an affirmation;

		…

		But if the innocent party unreservedly continues to press for performance or accepts performance by the other party after becoming aware of the breach and of his right to elect, he will be held to have affirmed the contract (Chitty on Contracts 30th Edition Volume 1 24-003).  

(11)	“Where the employee is faced with giving up his job and being unemployed or waiving the breach, it is not surprising that the courts are sometimes reluctant to conclude that he has lost his right to treat himself as discharged by the employer merely by working at the job for a few months …..”  (Harvey on Industrial Relations and Employment Law D1[525], see also Paul Buckland v Bournemouth University Higher Education Corporation [ 2010] EWCA Civ 121)

	“… Furthermore he [the employee] may be able to rely upon a previous unaccepted repudiatory breach as an act in a series of acts which taken cumulatively have led to a breach of the implied term of trust and confidence.” (Harvey on Industrial Relation and Employment Law D1 [525]).

(12)	“ … even where there is a breach, the employee may choose to give the employer the opportunity to remedy it.  The employer will not be prejudiced if the delays resigning until the employer’s response is known ……” (Harvey on Industrial Relations Employment Law D1 [523])

(13)	“…. And if the employer specifically makes clear his objections whilst he continues working, he may remain for a longer period without disentitling himself from claiming for unfair dismissal.  A further consideration may be whether or not there is a continuing breach of contract for example each time that a relevant deduction has been made from the employee’s pay or salary ……..”.  It is respectfully contended that this analysis cannot be carried too 
far since the continued acceptance of the reduced pay over a sufficiently long period is likely to amount to a waiver of any such breach”.  (Harvey on Industrial Relations Employment Law D1 [528]).

Application of the law and findings of fact to the issues

6.	Health and Safety Detriment 

	(1)	There was not any evidence before tribunal that the claimant satisfied the requirements of Article 68 of the Employment Rights (Northern Ireland) Order 1996 which outlaws subjecting an employee to detriment on a health and safety grounds.  Accordingly that element of the claimant’s claim is dismissed.

	Right to Receive Particulars of Contract

	(2)	It is not clear what claim the claimant is making in relation to the particulars of contract as he clearly was provided with particulars of contract at some stage.  Accordingly that element of the claimant’s claim is also dismissed.  

	Breach of Contract

(3)	The tribunal is satisfied that the respondent breached this contract in a number of ways:-

(a)	The respondent failed to provide the claimant with itemised pay statement.  This obtained throughout the claimant’s employment.

(b)	The respondent unilaterally sought to impose a new job description on the claimant with significant changes to his original job description.  

(c)	The respondent sought to impose and extend a probation period on the claimant even though his contract of employment specifically excluded a probation period.

(d)	The respondent failed to pay to the claimant his entitlement to contractual sick pay and only pay him statutory sick pay for the period in January 2009 for seven days.

(e)	The respondent unilaterally deducted holiday leave entitlement against an erroneous statement that it had overpaid him by paying contractual sick pay instead of statutory sick pay.  The respondent did not have authority or agreement to do this, as no prior discussion had taken place with the claimant.

(f)	The respondent also breached the implied terms of trust and confidence in:-

(i)	how it applied the grievance procedure.  It did not afford the claimant adequate notice; only notice of one day for the first scheduled meeting; it told him he could be accompanied by Mary Grew and then changed that on the day of the hearing; and for the third scheduled meeting insufficient notice was given as it was over the Easter holidays.

	(ii)	how it applied the disciplinary process.  It initiated a disciplinary process and failed to provide the claimant with sufficient detail of his alleged breach, ie, copy of the offending letters or specifically what he said in the letters or specifically what he said in the letters that gave rise to the disciplinary charges

(4)	The tribunal is further satisfied that the breaches of contract (a) to (e) are breaches of actual terms.  They can also be viewed as part of the breach of the implied term of trust and confidence.

(5)	A number of the above breaches were ongoing and still live issues when the claimant resigned on 26 April 2009.   They were 6(3) (a), (b), (d), (e) and (f).  The issue about the imposition of a probation period was not proceeded with by the respondent when brought to its attention by the claimant sometime after 18 February 2009.  As the claim form was not presented until 15 May 20009 the matter, is within the time period for bringing a claim.

(6)	The claimant did not overtly affirm any of the above breaches.  Neither did he do any unequivocal act from which it may be inferred that he intends to go on with the contract regardless of the breaches nor from which it may be inferred that he will not exercise his right to treat the contract as repudiated.  All the above issues were still ongoing and live when he resigned and were sources of complaint and representations by the claimant at the date of his dismissal.

(7)	The claimant’s approach has been characterised by clearly pointing out to the respondent the above breaches, calling on the respondent to accept its obligations and perform the contract and giving the respondent time to remedy the breach.

Constructive dismissal 

(8)	The respondent breached the claimant’s contract of employment from November 2008 until he resigned by a number of different incidents, many of which are breaches of actual terms of the contract.  

Cumulatively they breach the implied term of trust and confidence.

(9)	The last straw for the claimant was the sending of departure forms to two volunteers who had been supportive to the claimant.

(10)	The breach of the contract went to the core of the contract.

(11)	The claimant left in response to the breach of his contract.

(12)	In the circumstances of this claim the tribunal does not consider that the claimant delayed too long before resigning.  These events all took place from 25 November 2009 until his resignation on 26 April 2009.  The claimant was off work from 12 February 2009.  Many of the elements of the breach were ongoing and subject to ongoing exchanges with the respondent.

(13)	The tribunal considers the respondent’s conduct to have been unreasonable.

(14)	The tribunal is satisfied that the claimant was unfairly constructively dismissed.

Remedy

(15)	The tribunal accepts the claimant continues to suffer from stress, depression and anxiety which are work related.  In the absence of any reason why the tribunal could not rely on Dr McCullough’s report it accepts it and its contents.

(16)	As a consequence the claimant was unable to seek other employment by reason of his work related illness and therefore his failure to mitigate his loss is due to the respondent’s breach of his contract and conduct towards him.

(17)	The tribunal allows a future loss for nine months.

(18)	The claimant is entitled to be paid contractual sick pay.  In so concluding the tribunal took into account the following matters:-

(a)	Historically the claimant was in receipt of contractual sick pay.

	(b)	His employment with the respondent was unbroken.

(c)	His argument that the provision in the contract at clause 12 is a mistake is supported by a statement from the former chairman and vice-chairman of the management committee.

(d)	The respondent made its own inquiries with the former chairman of the management committee who confirmed the claimant’s account.

(e)	The respondent has not explained why it refused to pay contractual sick pay apart from saying it took advice from the Labour Relations Agency.  The rationale for the respondent’s decision was not disclosed.

(f)	The claimant was off on sick leave in October and November 2008.  No complaint is made by him that he was not paid contractual sick pay nor no assertion is made by the respondent that he was paid statutory sick pay.  The tribunal can only assume he was paid contractual sick pay and yet the contractual provision, upon which the respondent relies on, in support of statutory sick pay, was also applicable then.

(19)	The claimant is entitled to be reimbursed for his contractual sick pay which the tribunal assesses as follows:- 

	Loss of contractual sick pay from 12 February to 26 April 2009

	2 months @ £1586 per month				£3,172.00

	Half pay for half a month					£   396.50
										£3,568.50

	Less SSP paid for 10 weeks @ £75.40 per week	 	£   754.00
	Net loss of contractual sick pay		=		£2,814.50

(20)	The setting off of holiday leave against an erroneous 
	statement that the claimant had been overpaid his sick
	pay for January 2009 is also recoverable

	7 days @ £366.00 per week (1.29 x 366)			 £  472.14

(21)	The claimant is also entitled to compensation for unfair constructive dismissal which the tribunal assesses as follows:-

		Basic award
	
		£350 x 3					=		£  1,050.00

	Compensatory award

	From 1 May 2009 – 13 August 2010
	£366 x 67					=		£24,522.00

	Future Loss

	14 August 2010 – 12 May 2011
	£1586 x 9					=		£14,274.00

	Loss of Statutory Rights			=		£     200.00
										£40,046.00

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

Chairman:

Date and place of hearing:	16 – 19 February 2010;
2, 4 and 10 June 2010; and
13 August 2010, Belfast

Date decision recorded in register and issued to parties: