Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

CASE REF: 241/03

242/03

CLAIMANTS: Julie Hanna

Amy Eastwood

RESPONDENT: Redbull Company Limited

DECISION

The unanimous decision of the tribunal is that the respondent unfairly dismissed both claimants and the tribunal orders the respondent to pay the first named claimant, Julie Hanna, the sum of £3,776.18 and the second named claimant, Amy Eastwood, the sum of £6,505.22.

Appearances:

The claimants were represented by Mr McEvoy Barrister-at-Law, instructed by Savage & Co., Solicitors.

The respondent was represented by Mr Brian McKee Barrister-at-Law, instructed by Laytons Solicitors.

TYPE OF COMPLAINT

The claimants both made their originating applications to the tribunal on 30 January 2003 and both claimed that they had been unfairly dismissed or in the alternative unfairly selected for redundancy or further in the alternative that their contracts of employment had been breached. The respondent contended that both these claimants had been dismissed for redundancy or some other substantial reason.

ANALYSIS OF EVIDENCE

In general, although the tribunal were unanimous in being unable to regard Amy Eastwood as an entirely satisfactory witness, nonetheless at all important points in the case her evidence corroborated the evidence of Julie Hanna whom the tribunal did regard as a satisfactory witness. Therefore, the tribunal preferred the evidence of the claimants to the evidence given by the respondent witnesses, as the evidence of those witnesses was internally inconsistent. On the one hand they appeared to be trying to achieve a fair redundancy process, but on the other hand they did not take the steps which are part and parcel of a fair redundancy process and those are to consider and offer retraining or re-deployment within the company.

FINDINGS OF FACT

1. The respondent decided to re-organise its business to conform with practice in other jurisdictions.
2. The samplers (of which the claimants were two) were told they were being made redundant at the end of a meeting on 31 October 2002. They had to re-apply for new jobs as "energisers" with no guarantee of success.
3. There was 85% of similarity between the two jobs (on the admission of the respondent).
4. This was not a true redundancy. The requirements for this sort of work to be done had not ceased/diminished but had been subsumed into a slightly enlarged job description.
5. There was no offer of the "energiser" terms and conditions, without formally applying for that job.
6. The reason for the dismissal was some other substantial reason i.e., the re-organisation of the respondent and the claimants not applying for the new jobs.

THE APPLICABLE LAW

The applicable law is found in Article 130 and 174 of the Employment Rights (Northern Ireland) Order 1996 and Article 130 states:-

(1) In determining for the purposes of this part whether the dismissal of an employee is fair or unfair, it is for the employer to show –

(a) the reason (or, if more than one, the principle reason) for the dismissal, and,

(b) that it is a reason following within paragraph 2 (or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this paragraph if it –

(c) is that the employee was redundant.

The definition of redundancy is found in Article 174 which says:-

(1) For the purposes of this Order an employee who is dismissed shall be taken to be

dismissed by reason of redundancy if the dismissal is wholly or mainly attributable –

(a) the fact that his employer has ceased or intends to cease –

(i) to carry on the business for the purposes of which the employee was employed by him, or

(ii) to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business –

(i) for employees to carry out work of a particular kind, or

(ii) for employees to carry out of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.

CONCLUSIONS

It is the unanimous conclusion of the tribunal that these claimants were not redundant because as the job of sampler was subsumed wholly into the job of energiser, it could not be argued that the requirements of the business for employees to carry out work of a particular kind (i.e. sampling) had vanished. The tribunal concludes that the role of "sampling" was translated straight into the role of "energiser". The tribunal finds that the respondent dismissed these claimants for some other substantial reason and that was the re-organisation of their business, coupled with the failure of these claimants to apply for the new jobs.

Article 130 requires the tribunal to consider where it finds that a dismissal was for some other substantial reason, that the reason was of a kind such as to justify the dismissal of the employees holding the position which the two claimants in this case held. The tribunal finds that the respondent acted unreasonably in treating this as a sufficient reason for the dismissal of the two claimants in this case. The respondent held a meeting on 30 October 2002 at which the proposed changes were unveiled and the samplers asked to consider them. The samplers held a further meeting with the respondent on 31 October at which some of their queries were resolved and they were prepared to accept the new role, but before it was even offered to them the respondent informed them that they were made redundant. The tribunal considers that if the respondent really wished to act reasonably, it would have given consideration to the alternative of re-training and re-deployment, and there was no evidence that this had ever been considered. The tribunal has difficulty in understanding why the claimants and the other samplers could not simply have been re-trained as energisers as on the respondent's own case only 15% of the job would be new. On Mr McGreevy's own evidence there was no part of the energiser job that could not have been done by the samplers if they had been re-trained. On this ground, the tribunal is unable to accept that the respondent acted reasonably in treating the re-organisation and its consequences as a sufficient reason for dismissing the samplers and in particular these claimants.

ASSESSMENT OF COMPENSATION

Julie Hanna

At the time of termination of employment this claimant was earning net £228.92 per week and her gross weekly wage was in excess of the then applicable statutory maximum of £250.00 per week. She had three full years of service which entitled her to a multiplier of one per year therefore her basic award in this case is £750.00.

As this figure forms part of an ex gratia payment of £3,173.06 made by the respondent upon termination of her employment the tribunal considers that it is not just and equitable to award the same amount again and accordingly the basic award in this case is nothing.

COMPENSATORY AWARD

The claimant spent some time in trying to set up a Nail Technicians Business. She expended £949.73 in so doing and her income received was £505.80 leaving a net deficiency of £443.93.

She quickly realised that this business was not going to be a success and signed on with a recruitment agency. For the period from 26 May 2003 until 30 November 2003 she earned £171.53 per week leaving a net deficiency per week of £57.39.

After 30 November 2003 she consistently earned net at a higher rate than she had previously earned with the respondent and the tribunal does not consider it just and equitable to award any further compensation as a result. This claimant subsequently had a period of maternity leave and sought a part time job with another employer. The tribunal does not consider that these facts are in any way referable to the respondent. Accordingly, the immediate loss is calculated as follows:-

For the period 1 February 2003 – 26 May 2003 being 18 weeks –

18 weeks @ £228.92 = £4,120.56

For the period 27 May 2003 – 30 November 2003 being 25 weeks –

25 weeks @ the net deficiency of £57.39 = £1,434.75

Summary of immediate loss –

£4,120.56

£1,434.75

£ 443.93

TOTAL £5,999.24

Loss of statutory rights 200.00

Sub Total of immediate loss - £6,199.24

The tribunal considers it just and equitable to use the balance of the ex gratia payment to reduce the compensation payable –

£6,199.24

Less £2,423.06

Balance immediate loss - £3,776.18

The attention of the parties is directed to the recoupment notice which accompanies this decision.

Recoupment

The prescribed element period is being eleven weeks @ £228.92 = £2,518.12

(10 March 2003-26 May 2003)

The excess which is to be payable immediately is - £1,258.06

Amy Eastwood

Basic Award

This claimant had one year of employment at which she was over 22 years of age and two years at which she was under 22 years of age. Hence the multiplier is 2 and the appropriate statutory maximum at the time was £250.00. This makes the basic award £500.00.

The basic award of £500.00 is extinguished by the ex gratia payment made to the claimant.

COMPENSATORY AWARD

Immediate Loss

The claimant earned £135.00 per week for month of January 2003 in a clothes shop in Bangor.

7. 1 February 2003 – 1 March 2003 – given that the reason given by the claimant for leaving her job with the clothes shop in Bangor is so spurious, the considerable view of the tribunal is that it is just and equitable to treat the claimant as if she had been in receipt of £135.00 per week for the month of February. Accordingly, for those four weeks the tribunal only allows the deficit of £93.92.

£93.92 x 4 = £375.68

Net loss for February 2003 - £375.68

8. During the period from 1 March 2003 – 6 May 2003 the claimant worked on a casual basis in the family firm. During that period she received two payments together totally £699.92. The tribunal has averaged that out per week as a payment of net £77.77 making a differential per week of £151.15 therefore for this period of nine weeks the loss is £1,360.35.

£151.15 x 9 = £1,360.35

9. For the period from 6 May 2003 – end of August 2003 the claimant did not work anywhere and did not make an application. She said the reason for this was that she was still trying to come to terms with what had happened. The tribunal does not accept this as a valid explanation for failure to mitigate loss and for this period of sixteen weeks the tribunal does not allow the claimant any loss because it does not consider that it would be just and equitable so to do.

There was some suggestion from the claimant that she was trying to start her own business, but the tribunal saw absolutely no objective evidence to support this contention and discounts it for compensation purposes.

10. Through the intervention of a friend, the claimant obtained a job as a teaching assistant in Dundonald High School for the period from 1 September 2003 to the end of February 2005. During this period the claimant was still less well paid than she would have been in her job with the respondent and the tribunal is allowing the figure of £70.47 per week as a differential between what she did earn and what she would have earned for the period of 77 weeks making a figure of loss for this period of £5,426.19.

£70.47 x 77 weeks = £5,426.19.

11. Finally, for immediate loss purposes the claimant obtained a job as personal assistant to a friend in the motor cycling world. For the period from 1 March 2005 - 22 September 2005 the differential between what she would have earned and what she does earn is £58.92 making a total of £1,767.60.

£58.92 x 30 = £1,767.60.

The sub total of net losses from 1 February 2003 – 22 September 2005 is £8,929.82. From this the tribunal deducts the £540.00 earned when the claimant was on garden leave together with the excess of the severance pay a total of deductions of £2,624.60 making a total net loss of £6,305.22.

The tribunal has awarded £200.00 in respect of loss of statutory rights but declines to award anything for future loss because given the claimant's failure to mitigate her loss overall, the tribunal does not consider it just and equitable to make any award. Therefore, the total compensation payable is £6,505.22.

Summary (1 – 5) £ 375.68

£1,360.35

£5,426.19

£1,767.60

£8,929.82

Less £ 540.00 (earned on garden leave)

£8,389.82

Less £2,084.60 (excess of severance pay)

£6,305.22

Plus loss of

statutory rights £ 200.00

£6,505.22

========

As this claimant has not claimed benefit, no question of recoupment arises.

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

Chairman:

Date and place of hearing: 10-11 May 2004, 27 October 2004,

16-18 August 2005, Belfast.

Date decision recorded in register and issued to parties: