Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2007/918_06.html
Cite as: [2007] NIIT 918_06, [2007] NIIT 918_6

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THE INDUSTRIAL TRIBUNALS

CASE REF: 918/06

CLAIMANT: Amy Colby

RESPONDENT: Rentokil Initial UK Cleaning Ltd

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent and the tribunal Orders the respondent to pay to the claimant the sum of £4,749.27 compensation, subject to recoupment.

Constitution of Tribunal:

Chairman: Mr J V Leonard

Members: Mr F Dodds

Mr J Boyd

Appearances:

The claimant was represented by Mr M Canavan, Solicitor, of McGuinness & Canavan, Solicitors.

The respondent did not appear, nor was it represented.

Reasons

In this matter the claimant lodged with the Office of the Tribunals a claim form dated 25 July 2006, received by the Office of the Tribunals on 27 July 2006. In that claim form, the claimant claimed unfair dismissal. That was the sole complaint which the claimant wished to be determined in this matter. Accordingly, the tribunal had to determine the issue of whether or not the claimant was unfairly dismissed and, if the claimant was found to have been unfairly dismissed, the matter of appropriate remedy in the case.

The tribunal heard oral evidence from the claimant and examined documentary evidence submitted on behalf of the claimant.

THE TRIBUNAL'S FINDINGS OF FACT

On foot of the evidence adduced before it, on the balance of probabilities the tribunal found the following facts to be established:-

(a) The respondent company, amongst other things, provides contracted cleaning and janitorial services. One such contracted service provision is to the company Tesco at the Tesco Supermarket, Quayside, Londonderry.

(b) The claimant commenced employment with the respondent on 9 November 2005 as a Cleaner. The claimant's terms of employment provided that remuneration was £136.35 gross per week, £117.93 nett, in respect of a normal 27 hour working week. The claimant was entitled to 22 days' paid annual leave on foot of the contract terms.

(c) The terms of employment provided that the claimant was to give advance notice to her employer when she wished to take leave. She was required to give verbal notice to her line manager four weeks before the leave was required to be taken, followed by written notice on her part at least one week in advance of the leave date or dates required. The claimant's line manager was a Mr Patsy Bradley.

(d) Following correctly as she was required to do the procedures mentioned above, the claimant duly gave Mr Bradley four weeks' advance notice of leave which she proposed to take, commencing on Monday 3 July 2006 with the claimant being due to return to work on Monday 10 July 2006. This period of leave was agreed with Mr Bradley and the claimant duly went on leave.

(e) The claimant was unfortunate enough to experience a bereavement whilst on leave. The claimant's aunt died and the relative's funeral took place on 8 July 2006. The claimant had returned from the funeral service on the afternoon of 8 July 2006 when she received a telephone call from Mr Bradley taken on her mobile phone. Mr Bradley, in what appears to have been a rather aggressive and agitated manner as far as the claimant was concerned, demanded that the claimant come into work that day and begin work at 5.00 pm.

(f) The claimant endeavoured to explain to Mr Bradley that she had just attended the funeral of her aunt and, further, that she had already agreed leave and she was not due to return until Monday 10 July 2006. She declined Mr Bradley's request to attend work that day. Mr Bradley's response to this was to state to the claimant that if she did not come into work for 5.00 pm that day she would be sacked. The claimant was completely taken aback by Mr Bradley's attitude as she regarded it as being her entitlement to take the leave which had been agreed.

(g) On the following Monday, 10 July 2006, as the claimant regarded herself as having been dismissed in the course of the telephone conversation with Mr Bradley, the claimant telephoned Mr Mike King, Mr Bradley's line manager, who was based in Belfast. She informed Mr King that she had been sacked by Mr Bradley. Mr King stated to the claimant that he had no record of this but he would look into the matter and get back to her.

(h) The claimant telephoned Mr King the following day, only to be told by Mr King that he had not yet spoken with Mr Bradley but he promised to call the claimant on the following Friday, 14 July 2006. The claimant's recollection of precise dates at this point was a little uncertain but, to the best of the tribunal's understanding, on either Thursday 13 or Friday 14 July 2006 the claimant met with Mr King personally at the Waterside, Londonderry, Branch of Tesco. Mr King said that in his opinion the claimant had done nothing wrong and that she should have been back at work on the previous Monday. The claimant understood that Mr King would contact her further and she was expecting to be called back to work very shortly.

(i) The claimant again spoke with Mr King, so the tribunal believes, on Friday 14 July 2006 and Mr King recounted to the claimant that he had spoken with Mr Bradley and Mr Bradley had informed Mr King that the claimant, as Mr Bradley put it, "was unreliable and that she should not get her job back". From that the claimant understood that Mr King was endorsing Mr Bradley's decision and confirming that the dismissal stood and that Mr Bradley's decision to dismiss the claimant was not going to be reversed by Mr King. This therefore confirmed the dismissal as far as the claimant was concerned, which dismissal had of course occurred as a result of the telephone conversation with Mr Bradley on the afternoon of 8 July 2006.

(j) After this, the claimant signed on for Jobseekers Allowance and she received Jobseekers Allowance, income-based, from 27 July 2006 to 29 October 2006. The weekly rate of Jobseekers Allowance was £45.50. The claimant was then in receipt of a Training Allowance at a rate of £60.78 per week from 30 October 2006 up to the date of tribunal hearing and, in addition, 10p Jobseekers Allowance, income-based.

(k) The claimant had made a number of endeavours to secure alternative employment since the date of dismissal but without success by the time of the hearing date.

(l) The tribunal did not need to determine any other findings of fact for the purposes of its determination in this case.

THE APPLICABLE LAW

The Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order") provides at Article 126 that an employee has the right not to be unfairly dismissed by his employer. Article 130 of the 1996 Order provides for the test of fairness concerning the dismissal by an employer.

If a tribunal makes a finding of unfair dismissal, and an order for re-engagement or re-instatement is inapplicable, a tribunal may make an order for compensation including both a basic award, under Article 153 of the 1996 Order, and a compensatory award under Article 157 of the 1996 Order, the compensatory award being such amount as the tribunal considers just and equitable having regard to the loss sustained by the complainant in consequence of the dismissal, insofar as that loss is attributable to action taken by the employer.

The Employment (Northern Ireland) Order 2003 ("the 2003 Order") was made on 13 November 2003 and included amongst those provisions becoming operative from 3 April 2005 were the following Articles of the 2003 Order:-

Article 15(1), in relation to statutory dispute resolution procedures.

Article 17(1) to (5), in relation to non-completion of statutory procedure: adjustment of awards by industrial tribunals.

Article 23, in relation to procedural fairness in unfair dismissal, and other provisions to which the tribunal shall refer below.

It is useful to set out the detail of the foregoing provisions, as these appear in the statute. For ease of reference the tribunal's own emphasis is made in bold lettering of certain parts of these provisions, as follows:-

"15. —

(1) Schedule 1 (which sets out the statutory dispute resolution procedures) shall have effect."

"17. —

(1) This Article applies to proceedings before an industrial tribunal relating to a claim under any of the jurisdictions listed in Schedule 2 by an employee.

(2) -

(3) If, in the case of proceedings to which this Article applies, it appears to the industrial tribunal that—

(a) the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies,

(b) the statutory procedure was not completed before the proceedings were begun, and

(c) the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer to comply with a requirement of the procedure,

it shall, subject to paragraph (4), increase any award which it makes to the employee by 10 per cent and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50 per cent.

(4) The duty under paragraph (2) or (3) to make a reduction or increase of 10 per cent does not apply if there are exceptional circumstances which would make a reduction or increase of that percentage unjust or inequitable, in which case the tribunal may make no reduction or increase or a reduction or increase of such lesser percentage as it considers just and equitable in all the circumstances.

(5) -

23. —

(1) Part XI of the Employment Rights Order (unfair dismissal) shall be amended as follows.

(2) After Article 130 there shall be inserted—

"Procedural fairness

130A. —

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if—

(a) one of the procedures set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (dismissal and disciplinary procedures) applies in relation to the dismissal,

(b) the procedure has not been completed, and

(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.

(2) Subject to paragraph (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.

(3) For the purposes of this Article, any question as to the application of a procedure set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under Article 17 of that Order."

Schedule 1 to the 2003 Order sets out statutory dispute resolution procedures. Part 1 of Schedule 1 provides for standard and modified dismissal and disciplinary procedures. Such procedures involve an employer providing to an employee a statement in writing regarding conduct, characteristics or circumstances which lead him to contemplate dismissing or taking disciplinary action against an employee. That statement in writing must be sent to the employee, and the employee invited to attend a meeting. A meeting must follow at which the employee has been given a reasonable opportunity to consider his response and to attend, and an appeal must be afforded to the outcome of any decision on the employer's part.

The Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 ("the 2004 Regulations"), insofar as material, provide as follows:

Application of dismissal and disciplinary procedures
3. - (1) Subject to paragraph (2) and regulation 4, the standard dismissal and disciplinary procedure applies when an employer contemplates dismissing or taking relevant disciplinary action against an employee.

There are various provisions contained in the 2004 Regulations concerning the non-applicability of the statutory procedures or, alternatively, circumstances in which the procedures do not apply or are treated as being complied with. The tribunal does not intend to recite these provisions here as these are inapplicable on the facts.

The 2004 Regulations do provide as follows in respect of transitional provisions (again with the tribunal's emphasis):-

Transitional provisions
18. - (1) Subject to paragraph (2), these Regulations shall apply -

(a) in relation to dismissal and relevant disciplinary action, where the employer first contemplates dismissing or taking such action against the employee after these Regulations come into operation; ....

The 1996 Order further provides as follows:-

"Working time cases

132A.

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee—

(a) refused (or proposed to refuse) to comply with a requirement which the employer imposed (or proposed to impose) in contravention of the Working Time Regulations (Northern Ireland) 1998,

(b) refused (or proposed to refuse) to forgo a right conferred on him by those Regulations,

……..

Qualifying period of employment

140. —

(1) Article 126 does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than one year ending with the effective date of termination.

(2) -

(3) Paragraph (1) does not apply if … Article 132A applies

……….. "

Thus a dismissal under these (Article 132A working time) circumstances would be exempt from the normal service qualification of one year provided by Article 140(1).

Finally, the Working Time Regulations (Northern Ireland) 1998 ("the 1998 Regulations") provide at Regulation 13 as follows:-

"13.- (1) Subject to paragraphs (5) and (7), a worker is entitled in any leave year to a period of leave determined in accordance with paragraph (2).

(2) The period of leave to which a worker is entitled under paragraph (1) is- ..... (c) .... four weeks."

Regulation 15 of the 1998 Regulations provides for the giving of notice by the worker to the employer in regard to leave sought to be taken and for the employer giving notice of dates upon which leave may be or may not be taken, by a specified date. Once notice has been duly given and leave has been agreed between worker and employer it can only be varied by mutual agreement.

THE TRIBUNAL'S DETERMINATION

For the claimant, the claimant's representative has submitted that, notwithstanding that the claimant had been employed for a period of less than one year, the claimant had been dismissed for endeavouring to exercise a statutory right and the dismissal was directly connected with that endeavour to exercise a statutory right on the claimant's part. That statutory right was the right to take paid annual leave in accordance with the 1998 Regulations. As the dismissal was in connection with the exercise of the statutory right on the claimant's part, this fact brought the case within one of the statutory exceptions to the, 'one year rule', as it was called, and the claimant was thus entitled to have her unfair dismissal case heard by this tribunal which tribunal had appropriate jurisdiction in the matter. The claimant's representative accordingly submitted that the claimant had been unfairly dismissed both substantively and procedurally and that the tribunal ought to make an award of appropriate compensation for this unfair dismissal.

In this case, the tribunal notes that at the time of the contract being terminated, 8 July 2006, the claimant had been employed by the respondent for less than one year. Examining the circumstances surrounding the dismissal, clearly the claimant had followed the proper procedures by giving both due oral and written notice to the respondent of her intention to take leave. That period of leave had been agreed by the claimant's line manager, Mr Bradley. For whatever reason, Mr Bradley telephoned the claimant on the afternoon of 8 July 2006 on an occasion when the claimant must have been, as the tribunal understands it, quite distressed in that she had just returned home after attending the funeral service of a close relative. Mr Bradley demanded that the claimant must attend work that day by 5.00 pm. The claimant, quite understandably, endeavoured to explain to Mr Bradley the circumstances of her situation that day. She refused to attend employment notwithstanding Mr Bradley's demand. Mr Bradley then dismissed the claimant in the course of that telephone conversation in a way which the tribunal finds entirely high-handed and oppressive. This is all the more so considering the fact that the claimant had just attended a family funeral that day.

There is no doubt whatsoever that the dismissal was connected with the claimant's refusal, quite properly for that was at her own discretion, to attend work on a day which had been pre-arranged and agreed as a leave day.

Under the 1998 Regulations any worker is entitled to a period of annual leave which amounts to four weeks. That leave is taken by agreement in accordance with the procedures set out in the 1998 Regulations. In this case there had already been an agreement reached between Mr Bradley on behalf of the respondent and the claimant. Mr Bradley endeavoured to breach that agreement by demanding that the claimant must attend employment on 8 July 2006. The claimant refused to do so. Mr Bradley then took it upon himself in what was an entirely high-handed fashion to dismiss the claimant on account of her refusal to accept his unilateral attempt to amend the leave agreement.

These being the facts, the only conclusion the tribunal can draw from this is that the claimant was dismissed for the reason that she endeavoured to assert a statutory right that was available to her under the 1998 Regulations, that right being to avail of her statutory entitlement to take annual leave. That being so, the dismissal and the circumstances of the dismissal fall within the statutory exceptions to the normal qualifying period of one year which ordinarily must be attained by any employee who seeks to make a claim for unfair dismissal.

Under these particular circumstances, the dismissal of the claimant for seeking to exercise a statutory right is automatically unfair under Article 132A (1) of the 1996 Order. Even if that were not to be the case, the dismissal was arbitrary, high-handed, and oppressive and was quite unfair, procedurally. The claimant is therefore entitled to compensation for unfair dismissal.

This is a dismissal which occurred on 8 July 2006. By that time the relevant provisions of the Employment (Northern Ireland) Order 2003 had been operative since 3 April 2005, being a period of well in excess of one year. It was apparently on 8 July 2006 that the respondent first contemplated the dismissal of the claimant. The tribunal notes that there was no endeavour whatsoever on the respondent's part to engage in any of the statutory dismissal procedures that were applicable. For that reason, additionally, the dismissal is unfair on foot of Article 130A of the 1996 Order.

In that situation, a discretion is afforded to the tribunal under Article 17(3)(c) of the 2003 Order to increase the minimum mandatory enhancement of compensation for unfair dismissal (that being set at a figure of 10% - and clearly the exception provided by Article 17(4) does not apply) by an additional amount of up to 50% if a tribunal thinks that it is just and equitable to do so. As if the initial manner of the claimant's dismissal by Mr Bradley were not enough, Mr King's keeping the claimant, as it were, "hanging on" in a situation where she did not know and could not guess her eventual fate (but perhaps anticipated on account of Mr King's initial response that the respondent would indeed act fairly and properly), that then to be followed by Mr King's outright refusal to intervene in order to ensure fairness of approach and Mr King's endorsement of an entirely unfair dismissal, merely serves to compound the matter. Here the respondent has demonstrated as far a departure as it is possible to go from the concept of fair procedure enshrined in the statutory dismissal procedures that are contained in the 2003 Order and the 2004 Regulations.

In this case, the particularly oppressive circumstances surrounding the dismissal of the claimant suggests to the tribunal that there is no good reason that it should not exercise its discretion properly to increase the compensation by the maximum permissible figure of 50%. There would, in the opinion of this tribunal, be nothing inequitable or unjust in so doing, considering the circumstances of the dismissal. That fact is therefore reflected in the tribunal's calculation of compensation which follows below.

It is for the respondent to raise the issue to mitigation of loss. As far as the tribunal is concerned, it is of the opinion that the claimant made quite reasonable endeavours to mitigate her loss by endeavouring to obtain alternative employment, unfortunately without success by the hearing date.

The tribunal therefore finds that the respondent unfairly dismissed the claimant and the tribunal awards compensation in respect of this unfair dismissal as is set out below.

Basic award

The tribunal determines that no basic award is applicable.

Compensatory award

The claimant's net pay was £117.93 per week. The claimant was dismissed on 8 July 2006 and she remained unemployed and was in receipt of Jobseekers Allowance and a Training Allowance at the tribunal hearing date. It is therefore appropriate to award compensation for loss of earnings from date of dismissal up to the hearing date, 29 November 2006. Looking to the future, the tribunal feels that it is reasonable to award compensation for future loss for a further period to bring the total period of compensation to be awarded to the claimant to a figure of six months. Accordingly the tribunal awards compensation up to and including 6 January 2007 in respect of loss.

The compensatory award is therefore as follows:-

26 x £117.93 = £3,066.18

As this was a short-term employment, the tribunal's

award for loss of statutory rights is: £100.00

The enhancement applied to the foregoing is 50%: £1,583.09

Total: £4,749.27

RECOUPMENT OF BENEFIT FROM AWARD

The applicant did receive Social Security Benefits to which the Employment Protection (Recoupment of Job Seekers and Income Support) Regulations (Northern Ireland) 1996 apply. The following recoupment of benefit is therefore applicable in this case:

(a) Monetary Award: £4,749.27

(b) Prescribed Element: £4,749.27

(d) Excess of (a) over (b): £ nil

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

Your attention is drawn to the notice below which forms part of the decision of the tribunal.

Chairman:

Date and place of hearing: 29 November 2006, Londonderry

Date decision recorded in register and issued to parties: