FAIR EMPLOYMENT TRIBUNAL
CASE REFS: 9/16 FET
CLAIMANT: Shaun Lynch
RESPONDENT: Schivo NI Ltd (In Liquidation)
It is ordered that the respondent shall pay to the claimant the sum of £11,095 as compensation in respect of unfair dismissal.
Constitution of Tribunal:
Employment Judge: Employment Judge Buggy
Members: Mr C McIlwaine
Mrs F Cummins
The claimant was represented by Mr M Potter, Barrister-at-Law.
The respondent was not represented.
1. The claimant was employed by the respondent for several years until 6 November 2015. With effect from the latter date, he was dismissed.
2. In a Decision which was issued on 25 October 2017, this Tribunal made the following decisions in relation to liability in this case:
(1) We decided that the claimant's "ordinary" unfair dismissal claim, brought pursuant to Article 130 of the Employment Rights (Northern Ireland) 1996 ("ERO"), is well-founded.
(2) We decided that the claimant's "automatic" unfair dismissal claim, brought pursuant to Article 136 of ERO, is well-founded.
(3) All the claimant's other claims were dismissed.
3. This is our Remedies Decision, which has been made pursuant to that liability Decision.
4. In these proceedings, the claimant makes a claim only in respect of the compensatory award element of unfair dismissal compensation, and only in respect of the period from the date of dismissal until 31 March 2017. In that context, we addressed the following issues:
(1) How should past loss be quantified?
(2) In assessing the extent of past loss, what are the practical implications, if any, of rules relating to mitigation and causation?
(3) Should the claimant's compensation be reduced pursuant to the Polkey principle?
5. In resolving those issues, we have applied the legal principles which were set out at paragraphs 29 - 56 of the Decision in Murdock v Nortel Networks UK Ltd (In Administration) (CRN 6614/09), decision issued on 23 October 2014.
6. The claimant has made a claim of £350 in respect of loss of statutory rights. We consider it appropriate to award that amount in respect of that loss.
7. While the claimant was employed by the respondent, he was receiving net weekly earnings of £396.
8. Throughout the period from 6 November 2015 until 3 October 2016, the claimant was out of work.
9. From 6 November 2015 until 30 May 2016, the claimant was out of work, but was medically capable of work. In respect of that period, he received Jobseeker's Allowance. It is not appropriate to deduct the amount of the Jobseeker's Allowance from an unfair dismissal compensatory award. (However, the Recoupment Regulations apply in that context: see below.)
10. In respect of the period from 6 November 2015 until 30 May 2016, we calculate the claimant's loss as amounting to £9,753.40.
11. Throughout the period from 31 May 2016 to 2 October 2016, the claimant was in receipt of Employment Support Allowance.
12. As was stated at paragraph 35 of Murdock, it is clear law that, in relation to any alleged failure to mitigate, the onus of proof rests upon the respondent. In the circumstances of this case, that onus has not been discharged. However, as is made clear at paragraphs 36 and 37 of Murdock, even if a failure to mitigate has now been proven, this Tribunal still has to be satisfied, on the balance of probabilities, that the loss complained of is loss which was sustained in consequence of the dismissal and that it is a loss "attributable to" action taken by the employer.
13. In the circumstances of this case, in relation to the period from 31 May 2016 until 2 October 2016, those latter matters have not been proven. In respect of that entire period, the claimant claimed and received Employment Support Allowance. In his situation, ESA was available only to those who, for health or disability reasons, are incapable of full-time work. Accordingly, it is clear that, throughout the period from 7 May 2016 until 3 October 2016, the claimant would not have been able to work for this respondent even if he had still then been in this respondent's employment. We have received no convincing evidence that the relevant dismissal was the cause, or one of the causes, of the relevant medical incapacity.
14. Accordingly, we make no award to the claimant in respect of loss during the period from 31 May 2016 until 2 October 2016.
15. From 3 October 2016 to 31 March 2017, the claimant was in "new" (post-dismissal) employment. In respect of that period, he received net wages of £357.45 per week, which is £38.55 less than the net weekly amount which he would have received, in respect of that period, if he had continued to be employed by the respondent throughout that period.
16. Accordingly, in respect of the period from 3 October 2016 until 31 March 2017, we assessed the claimant's loss as amounting to £991.12.
17. In the context of the Polkey issue, we draw attention to the principles which were set out at paragraphs 49 - 56 of the Murdock Decision. In this case, we have received no evidence which provides a proper foundation for any reduction of the amount of the compensatory award on account of any possibility that, even if the claimant had not been unfairly dismissed (at the time he was in fact unfairly dismissed) he would have been, or he might have been, fairly dismissed:
(1) at that time, or
(2) at some date thereafter.
18. The sum of the amounts specified at paragraphs 6, 10 and 16 above is £11,095. Accordingly, the amount of the claimant's compensatory award is £11,095.
Recoupment of benefit from awards
19. The Recoupment Regulations apply. Attention is drawn to the notice below, which forms part of this Decision. The prescribed element is £10,745. The prescribed periods are the period from 6 November 2015 until 30 May 2016 and the period from 3 October 2016 until 31 March 2017. The amount by which the monetary award exceeds the prescribed element is £350.
Interest on Fair Employment Tribunal awards
20. This is a relevant decision for the purposes of the Fair Employment Tribunal (Interest) Order (Northern Ireland) 1992.
Date and place of hearing: 5 and 6 June 2017, Belfast
Date decision recorded in register and issued to parties: