FAIR EMPLOYMENT TRIBUNAL
CASE REFS: 12/16 FET
CLAIMANT: Brian Wright
RESPONDENT: Schivo NI Ltd (In Liquidation)
It is ordered that the respondent shall pay to the claimant:
(1) the sum of £16,624 as compensation pursuant to Article 157 of the Employment Rights (Northern Ireland) Order 1996; and
(2) the sum of £8,800 as compensation (in respect of injury to feelings) pursuant to regulation 43 of the Employment Equality (Age) Regulations (Northern Ireland) 2006.
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"), was well-founded.
(2) We decided that the claimant's "automatic" unfair dismissal claim, brought pursuant to Article 136 of ERO, was well-founded.
(3) We decided that the claimant's discriminatory dismissal claim, brought pursuant to regulation 7 of the Employment Equality (Age) Regulations (Northern Ireland) 2006 ("the Age Regulations"), the particular form of discrimination being indirect age discrimination, was well-founded.
(4) 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 for an unfair dismissal compensatory award. He also makes a claim for injury to feelings pursuant to the indirect age discrimination liability determination.
5. We have determined that the claimant's dismissal was an unfair dismissal within the meaning of the unfair dismissal legislation, and that it was also a discriminatory dismissal (the precise form of discrimination being indirect age discrimination).
6. Accordingly, the claimant is entitled to recover compensation in respect of:
(1) certain types of financial loss, to a certain extent (pursuant to the unfair dismissals legislation or pursuant to the Age Regulations) and
(2) compensation for relevant injury to feelings pursuant to the Age Regulations).
7. We will deal with the financial loss claim first.
The financial loss claim
8. In relation to this claimant's claims for dismissal-related financial loss, there were two options. An award of compensation in respect of such loss could be made pursuant to the Age Regulations or, alternatively, it could be made pursuant to the unfair dismissals legislation. We have noted that, according to the claimant's schedule of loss, he has requested an award in respect of financial loss pursuant to the unfair dismissal legislation (as distinct from making a financial loss claim pursuant to the Age Regulations). We had a discretion as to the legislation pursuant to which we would make an award in respect of financial loss. In light of the claimant's preferred option, we have decided to make the financial loss award pursuant to the unfair dismissal legislation.
9. In these proceedings, the claimant makes a financial loss 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?
10. In resolving those issues, we have applied the legal principles which were set out at paragraphs 28 - 56 of the Decision in Murdock v Nortel Networks UK Ltd (In Administration) (CRN 6614/09, decision issued on 23 October 2014).
11. 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.
12. While the claimant was employed by the respondent, he was receiving net weekly pay of £357.50. From 7 November 2015 until 4 September 2016, he was out 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).
13. In respect of the period from 7 November 2015 until 4 September 2016, we calculate the claimant's loss as amounting to £14,196.
14. Throughout the period from 5 September 2016 to 31 January 2017, the claimant was in "new" (post-dismissal) employment. In respect of that period, he received net wages of £287.25 per week, which is £70.25 less than the net weekly amounts which he would have received, in respect of that period, if he had continued to be employed by the respondent throughout that period. Accordingly, in respect of the period from 5 September 2016 to 31 January 2017, we assessed the claimant's loss as amounting to £2,077.29.
15. As was stated at paragraph 35 of Murdock, it is clear law that, in relation to any failure to mitigate, the onus of proof rests upon the respondent. In the circumstances of this case, that onus has not been discharged.
16. We are satisfied that the losses referred to at paragraphs 13 and 14 above are losses which were sustained in consequence of the dismissal; we are also satisfied that each such loss is a loss "attributable to" action taken by the employer.
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 in November 2015, he would have been, or he might have been, fairly dismissed:
(1) at that time, or
(2) at some time thereafter during the period ending on 31 March 2017.
18. The sum of the amounts specified at paragraphs 11, 13 and 14 above is £16,623. Accordingly, that is the amount of the claimant's unfair dismissal compensatory award.
Recoupment of benefits from awards
19. The Recoupment Regulations apply in respect of the unfair dismissal compensatory award. Attention is drawn to the notice below, which forms part of this Decision. The prescribed element is £16,273. The prescribed period is the period from 13 November 2015 until 31 January 2017. The amount by which the monetary award exceeds the prescribed element is £350.
Compensation for injury to feelings
20. A dismissal is an "act" within the meaning of Article 160 of the ERO. The effect of Article 160 can be summarised as follows: If compensation falls to be awarded in respect of any "act" both under:
(a) the unfair dismissal legislation and
(b) the Age Regulations,
an industrial tribunal cannot award compensation under any one of those enactments:
"... in respect of any loss or other matter which is or has been taken into account under any other of them by the tribunal ... in awarding compensation ... in respect of that act".
21. As we made clear in our liability decision, the dismissal was the only act in respect of which compensation was claimed in this case.
22. Compensation for injury to feelings is available under the Age Regulations, but is not available under the unfair dismissals legislation. Accordingly, compensation for injury to feelings, in respect of the relevant dismissal, is not a matter which is or has been taken into account in the assessment of compensation, in this case, under the unfair dismissals legislation. Accordingly the Article 160 prohibition on "double" compensation does not preclude this Tribunal from making an award to the claimant, under the Age Regulations, of compensation in respect of any injury to feelings which he has sustained because of the dismissal.
23. Paragraph (1) of regulation 43 of those regulations, which applies whenever a complaint of age discrimination by an employee is found to be well-founded, provides that an industrial tribunal is empowered to make an order requiring the respondent to pay to the complainant compensation of an amount corresponding to any damages which it could have been ordered by a County Court to pay (to the complainant) if the complaint had fallen to be dealt with under regulation 44.
24. Paragraph (3) of regulation 44 of the Age Regulations declares that damages awarded by the County Court, pursuant to that regulation, in respect of an unlawful act to which that regulation applies, may include compensation for injury to feelings, whether or not those damages include compensation under any other head.
25. In relation to a well-founded complaint of indirect age discrimination, the effect of paragraph (2) of regulation 43 is as follows. If the respondent proves that the provision, criterion or practice was not applied with the intention of treating the claimant less favourably on the ground of age, there are restrictions on the circumstances in which an industrial tribunal can award compensation in respect of the relevant act.
26. The relevant restrictions do not apply in the circumstances of this case, because the respondent has not proven that the provision, criterion or practice was not applied with the intention of treating the claimant unfavourably on grounds of age.
27. In circumstances in which that restriction applies, a tribunal has power to make an award of compensation only if: (1) it considers that it is just and equitable to do so, and (2) the compensation award is being made alongside a declaration of rights and/or a recommendation.
28. If the relevant restriction had applied in the circumstances of this case, we would have considered that it was just and equitable to make an award of compensation in respect of the relevant indirect discrimination.
29. We have had regard to the claimant's assertions, in a sworn witness statement, in relation to the injury to his feelings which was sustained as a result of the dismissal. In particular, we are satisfied that that aspect of his testimony is accurate.
30. In deciding on the appropriate amount of the injury to feelings award in this case, we have paid careful attention to the "Presidential Guidance" on employment tribunal awards for injury to feelings which was jointly issued, on 5 September 2017, by the President of Employment Tribunals (England and Wales) and by the President of Employment Tribunals (Scotland). Below, we refer to that guidance as "the Guidance".
31. The Guidance accurately describes the current state of the law in England and Wales in respect of the quantification of the injury to feelings element of awards made in respect of age discrimination (and in respect of other types of discrimination).
32. In our view, the relevant legal principles in Northern Ireland are identical to those which are described, in the Guidance, as being applicable in England and Wales.
33. Paragraph 10 of the Guidance says that, as a general rule, in respect of claims presented on or after 11 September 2017, the "Vento" bands (as defined in the Guidance) are to be as follows:
(1) a lower band of £800 to £8,400 (less serious cases);
(2) a middle band of £8,400 to £25,200 (cases that do not merit an award in the upper band); and
(3) an upper band of £25,200, to £42,000 (the most serious cases), and
(4) exceptional cases are capable of exceeding £42,000.
34. The proceedings in this case were not brought on or after 11 September 2017. They were brought in January 2016, which was approximately 21 months earlier.
35. Against that background, and for those reasons, we have decided that there should be an injury to feelings award which contains a principal element of £7,500.
36. Alongside that principal amount, there is an interest element. (See paragraphs 37 and 38 below).
37. We have noted the provisions of the Industrial Tribunals (Interest on Awards in Age Discrimination Cases) Regulations (Northern Ireland) 2006 [2006 SRNI 262].
38. Applying the rules which are contained within those Regulations, the position is as follows:
(1) We are not of the opinion that, in relation to the relevant injury to feelings element, there are circumstances which have the effect that serious injustice would be caused to the respondent by awarding interest in respect of the entire Age Regulations remedies award, or in respect of the entire period.
(2) In respect of the injury to feelings award, interest at 8% per annum, on the principal element of £7,500, has been accrued from the date of injury (which was the date of dismissal) to date of calculation.
(3) That interest, in the aggregate, amounts to 17.33%.
39. Accordingly, our award in respect of injury to feelings is £8,800 (consisting of a principal element of £7,500 and an interest element of £1,300).
Interest on Fair Employment Tribunal awards
40. This is a relevant decision for the purposes of the Fair Employment Tribunal (Interest) Order (Northern Ireland) 1992.
Comparison with the Remedies Decision in the Browne case
41. We refer to the remedies decision which we issued in the case of Browne v Schivo NI Ltd (In Liquidation) (CRN10/16FET, 268/16. The Reasons in this case are very similar to the Reasons in Browne, with the exceptions of paragraphs 12, 13, 14 and 18 of this Decision.
Date and place of hearing: 5 and 6 June 2017, Belfast
Date decision recorded in register and issued to parties