THE INDUSTRIAL TRIBUNALS

CASE REF:	2009/10

CLAIMANT:			Mark Burns

RESPONDENT:		Eamon Hughes t/a Engineering and Construction Products

DECISION 
The decision of the tribunal is that claimant was unfairly dismissed and is entitled to the sum of £24,774.50 in compensation.  The claimant is further entitled to the sum of £112.00 in respect of holiday pay.  

Constitution of Tribunal:
Chairman:			Mrs Ó Murray
Members:			Mrs T Kelly
				Mrs V Walker

Appearances:
The claimant appeared in person accompanied by his wife.

The respondent did not appear and was not represented but made written representations.

The Claim

1.	The claimant’s claim was for unfair dismissal and unpaid holiday pay.  The respondent counterclaimed for alleged overpayment of wages.

The Issues

2.	The issues for the tribunal were as follows:

	(1)	Was the claimant dismissed for one of the potentially fair reasons under the  legislation or was it for some other reason?

(2)	Was the dismissal fair in all the circumstances?

(3)	Were the statutory dismissal procedures followed and if not should a percentage uplift be made to the compensatory award?

(4)	Was any sum for holiday pay outstanding on termination of employment?

Sources of Evidence

3.	The tribunal had it before the claim and response forms and a statutory declaration sworn by the respondent on 28 February 2011 with documents accompanying it.  The claimant gave oral evidence and produced documentation in support of his evidence.

The Law

4.	Unfair Dismissal

4.1	The law on unfair dismissal is set out in the Employment Rights (Northern Ireland) Order 1996, as amended, (referred to below as “ERO”).  The right not to be unfairly dismissed is set out at Article 126 of the ERO and at Article 130 are listed the potentially fair reasons for dismissal, two of which are redundancy and capability.  It is for the employer to show that the dismissal was for one of the potentially fair reasons and it is for the tribunal to determine whether the dismissal was fair in all circumstances.

4.2	Redundancy is defined at Article 174 of ERO.  Redundancy is a potentially fair reason for dismissal and it is for the tribunal to consider whether the respondent acted reasonably or unreasonably in treating redundancy as a reason for the dismissal of the claimant.

4.3	The statutory disciplinary and dismissal procedures are set out in the Employment (Northern Ireland) Order 2003 and in the Employment (NI) Order 2003 (Dispute Resolution) Regulations (NI) 2004.    Under Article 130A of ERO an employee is regarded as automatically unfairly dismissed if the statutory dismissal and disciplinary procedures, outlined below, have not been followed due to the employer’s failure.

4.4	Under the Employment (Northern Ireland) Order 2003, and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004, an employer must follow a minimum procedure when disciplining or dismissing an employee.  The employer must write to the employee setting out the matters which might lead it to dismiss the employee and must arrange a meeting with the employee.  The employer must write to the employee to set out the reasons for dismissal and must advise the employee of his right to appeal.  If the right to appeal is exercised there must be a meeting and the outcome of that appeal must be communicated to the employee.  If the employer fails to follow the statutory procedure, the tribunal must make a finding of unfair dismissal and award a minimum of four weeks’ pay if the basic award transpires to be lower than that figure.  The tribunal must also increase any award which it makes to the employee by 10%, and if it considers it just and equitable in the circumstances, by a larger percentage up to a maximum of 50%.  The percentage increase must be made unless there are exceptional circumstances which would make the increase of 10% minimum unjust or inequitable (Article 17).

4.5	The decision of the Northern Ireland Court of Appeal in Robinson v Carrickfergus Borough Council [1983] IRLR 122 approved the approach of the EAT in the case of Williams v Compair Maxim [1982] EAT  and established the following principles to be applied in a fair redundancy process:

(1)	there should be fair warning and consultation;

(2)	there should be fair selection which involves identifying the correct pool of employees and applying objective, transparent selection criteria to that pool;

(3)	suitable alternative employment should be actively considered and offered by the employer;

(4)	fair consultation involves providing adequate information and time for the employee to respond to a proposed redundancy so the employee is in a position to suggest alternatives.

Findings of Fact and Conclusions

5.	The tribunal had regard to all the evidence before it both oral and documentary and reached the following conclusions on a balance of probabilities.

6.	The claimant worked as a draughtsman for the respondent from 11 January 2008 until 26 May 2010 when he was summarily dismissed.  At the time of his dismissal the claimant was aged 46.  

7.	On Wednesday 26 May 2010, the proprietor of the business, Eamon Hughes, called the claimant to his office and informed him that he was being sacked with immediate effect.  When the claimant protested Mr Hughes indicated that the claimant’s work was “not up to scratch”.

8.	As the claimant was summarily dismissed, the effective date of termination therefore was 26 May 2010.  At that date the claimant’s gross and net earnings were £519.00 per week and £395.39 per week respectively.

9.	The claimant had previously been employed has a draughtsman by Mr Hughes some years before and that job ceased when the business closed.  Indeed at that time the claimant was the Drawing Officer Manager.  The claimant was re-employed by Mr Hughes as a draughtsman and, in the absence of any contrary evidence from the respondent, we accept the claimant’s evidence that there had never been any problem raised with him about his work or his capability before the day he was sacked.

10.	A few months before the claimant’s termination, the respondent recruited another draughtsman of similar experience.  We accept that the reason for dismissal was redundancy and not capability.  Had proper procedures been followed, that individual should have been in the pool for consideration for redundancy with the claimant.

11.	The statutory dismissal procedure (SDP) was not adhered to in relation to the claimant’s termination of his contract.  No redundancy procedures were followed in relation to the claimant.  It appears that Mr Hughes simply decided to make the claimant redundant without following any procedures and without considering him in a pool with others who might have been made redundant before him.

12.	We therefore find the dismissal unfair on ordinary principles as the claimant was unfairly selected for redundancy and redundancy procedures were not followed.  The dismissal was automatically unfair for failure to follow the SDP.

13.	We do not accept the respondent’s assertion that the reason for the dismissal was to do with the claimant’s ability to do his job.  We accept the claimant’s evidence that there were no difficulties with his work before the date he was dismissed. 

14.	We have looked carefully through the records produced by both sides in relation to the outstanding sums due on termination.  We are satisfied that the respondent paid two weeks’ pay in lieu of notice.  We are further satisfied that the respondent paid the claimant two and a half days’ holiday pay and that the respondent paid £1,140.00 being three weeks’ pay in respect of statutory redundancy. 

15.	The claimant received Jobseeker’s Allowance from 31 May 2010 until 30 August 2010 when he obtained a job.  Since that date he has earned £181.00 net per week.  Jobseeker’s Allowance was paid for 13 weeks at a rate of £65.00 per week.

16.	We therefore calculate compensation as follows.

	Holiday Pay

17.	The respondent’s holiday year ran from 1 January to 31 December.  Under his contract the claimant was entitled to 30 holidays in the year to include eight statutory days and 22 other days.  At the date of termination the claimant had taken four statutory days and four other days’ holidays. The claimant disregarded the statutory holidays when calculating what he believed was due to him.  We do not accept that this is the correct way to approach the calculation as, at the date of termination, the claimant was only five months into the holiday year yet he had taken half of his statutory holiday entitlement.  We have therefore calculated the outstanding holiday entitlement be using the 30 days’ entitlement as a whole as follows.

		 5 
	12 x 30 days 			= 12.5 days accrued
	The claimant took         	 -   8    days
	Balance:		                4.5 days
	Respondent paid                  -  2.5 days
	Claimant’s entitlement  =	     2    days

	Daily net earnings: 

£395.00 net per week x 52 ÷ 365 = £56.00 per day (rounded down).

	Holiday pay entitlement = 2 x £56.00 = £112.00

	Basic Award

18.	2 years x 1½ weeks x £380.00 = £1140.00

As the basic award amounts to less than four weeks’ pay, the minimum statutory award is applicable for failure to follow the statutory dismissal procedure.  The basic award is therefore is as follows:

4 x £380.00 = 		£1,520.00
Less redundancy paid:	£1,140.00

Balance Basic Award:        £   380.00
				 _______

Compensatory Award

19.	The effective date of termination 26 May 2010.

Loss of earnings 31 May 2010 to 30 August 2010:

13 weeks x £395.00 = £5,135.00.

Net weekly earnings in new job:  £181.00.

Diminution in earnings 30 August 2010 to 1 March 2011:

£214.00 per week x 26 weeks = £5,564.00.

Future Loss of Earnings

20.	The claimant’s earnings are much reduced in his current job.  To his credit the claimant has retrained and obtained a licence entitling him to drive coaches and buses.  The claimant has been unsuccessful in his attempts to obtain work as a draughtsman but is hopeful of obtaining work at a coach driver in the near future.  Taking account of the current economic climate and the prospects for the claimant obtaining work at a similar remuneration to the work he had with the respondent, we have decided to award a further six months’ loss of wage from the date of hearing calculated as follows:

£214.00 net per week x 26 weeks = £5,564.00.

Counterclaim

21.	The counterclaim was for the sum of £825.73 being an alleged overpayment of salary for hours when the claimant was alleged not to have been working.  The claimant emphatically denied that he was paid for hours he did not work.  The respondent did not appear to give evidence and we therefore had no evidence to support the respondent’s allegation that such a sum was due to him.  We therefore dismiss the counterclaim.

Uplift on Award

22.	We are entitled under the legislation to award between 10% and 50% uplift on the compensatory award for failure to follow the SDP.  The respondent gave no reason for failing to follow the procedure despite the response form and the lengthy documentation sent to the tribunal.  In exercising our discretion on the percentage uplift, we have followed the guidance outlined by the EAT President, Mr Justice Underhill, in the case of Lawless v Print Plus UKEAT 0333/09.  That case provides that, in a case where no procedure was followed at all, the tribunal’s starting point should be 50% and the tribunal should then look at any mitigating factors provided by the respondent.

23.	One potential mitigating factor is that the respondent appears to have been in financial difficulties at the time of the failure to follow the SDP. The respondent gave no other mitigating factors in either the response form or the written representations provided for the hearing.

24.	We find that the aggravating factors in this case outweigh any potential mitigation.  Those aggravating factors are as follows:

(1)	No notice was given to the claimant of the decision to dismiss; it was presented as a fait accompli.

(2)	The claimant had to ask for a reason for his dismissal and the reason then given was not redundancy but, rather, the respondent alleged that the claimant could not do his job.

(3)	If a procedure had been followed, that claimant would have had a chance to defend himself against that accusation.

(4)	There was another employee who would have been in the redundancy pool if a procedure had been followed.

25.	For the reasons outlined above we find that an uplift of 50% is warranted and we therefore award an uplift of 50% on the compensatory award.

Summary

26.	The claimant is entitled to compensation as follows.

(1)	Holiday pay					-	£    112.00

(2)	Basic award					-	£     380.00

(3)	Compensatory award				-	£16,263.00
Total 						-	£16,755.00

(4)	Uplift on compensatory award at 50% = 		£   8,131.50
Total compensation					£24,886.50

27.	The monetary award (that is the full amount awarded for unfair dismissal disregarding recoupment) is: £24,774.50.

28.	The amount of the prescribed element (in relation to compensatory award for loss of wages from dismissal to conclusion of the hearing) is: £10,699.00.

29.	The dates to which the prescribed element is attributable, that is, the date of the dismissal and the date the tribunal concluded are as follows:  date of dismissal 
26 May 2010; date tribunal concluded 1 March 2011.

30.	The amount by which the monetary award exceeds the prescribed element is £14,075.50.

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

Chairman:

Date and place of hearing:  1 March 2011 at Belfast

Date decision recorded in register and issued to parties: