Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 1200/06

CLAIMANT: Karen Paton

RESPONDENT: PINC Retail Ltd

DECISION ON A REMEDY HEARING

The unanimous decision of the tribunal is to award the claimant the sum of £10,611.31.

Constitution of Tribunal:

Chairman: Ms J Knight

Members: Mr W Irwin

Mr J Patterson

Appearances:

The claimant was represented by Mr N McCarron of Gerard P Henvey, Solicitors.

The respondent did not appear and was not represented.

1. The issue to be determined by the tribunal was the appropriate remedy for the claimant given the finding of the tribunal that she was unfairly dismissed and was unlawfully discriminated against by the respondent contrary to the provisions of the Disability Discrimination Act 1995.
2. The tribunal decided to proceed with the remedy hearing in the absence of the respondent as there was no explanation for its non appearance and no request for a postponement of the hearing. The tribunal was satisfied that the notice of hearing was properly served on the respondent, which had not been returned to the Office of the Tribunals by Royal Mail. The tribunal considered a Schedule of Loss prepared by the claimant's solicitor, various wage slips, a letter from the Department of Social Security and other vouching documentation. The tribunal heard further oral evidence from the claimant.

FINDINGS OF FACT

3. The tribunal made the following findings of relevant fact;-

(1) The effective date of dismissal is 26 June 2006. From that date the claimant has been employed by several employers. From 31 July 2006 until 28 August 2006 the claimant was employed by ICICI One Source and had nett earnings of £841.81, representing weekly nett pay of £233.86.

(2) From 18 August 2006 until 9 October 2006 the claimant was employed at Rensburg Sheppard on a temporary contract and had total net earnings of £892.47, representing a net weekly pay of £127.50.

(3) Between 6 November 2006 and 8 February 2007 the claimant was employed on a temporary contract by Kone Northern Ireland Ltd and had total net earnings of £3,409.05, with a net weekly pay of £266.32. In the intervening periods, the claimant was unemployed but had registered with an employment agency which found her these temporary contracts. She did not claim any social security benefits believing she was not entitled to receive the same because her husband is in paid employment.

(4) On 7 July 2007 the claimant secured a permanent part-time position with NCP Services as a Customer Liaison Officer. The claimant was paid £9 per hour for 20 hours per week and had a net weekly wage in this employment of £163.41. Unfortunately she was made redundant from this position with effect from 31 January 2008.

(5) She remained unemployed until 3 March 2008 when she commenced employment with NSPCC in a permanent job-share post for which she received £8.34 per hour for a 17½ hour week. However, the claimant may work additional hours to provide cover when her job-share partner is on leave. The claimant told the tribunal that she would consider working on a full-time basis should a full-time position become available within the NSPCC. She indicated to the tribunal that she could work on a full-time basis if she wanted to but she would like to stay in her employment with the NSPCC. She is therefore not actively seeking full time employment.

(6) The tribunal determined that by July 2007 the claimant decided to accept part-time work on a permanent basis as evidenced by her acceptance of the position with NCP Services, which only terminated when the claimant was made redundant and her subsequent acceptance of the job share post with NSPCC. The tribunal took into account during both of these employments the claimant's net earnings are in excess of the net pay with the respondent. The tribunal therefore determined that the claimant ceased to sustain loss of earnings from 7 July 2007.

(7) During the claimant's employment with the respondent the claimant worked for 37½ hours per week at a rate of £5.50 per hour giving a gross weekly figure of £206.25 and nett earnings of £160.88 per week. The claimant had not retained any payslips from her employment with the respondent however the gross figure was confirmed by the respondent's letter of appointment by the claimant's letter of appointment by the respondent and the tribunal decided, without objection from the claimant's representative to calculate the nett figure by deducting the sum of £45.35 which is 22% (the basic rate of income tax at the effective date of dismissal).

(8) The claimant is not seeking either reinstatement or re-engagement by the respondent and therefore the tribunal determined that compensation was the appropriate remedy.

(10) Accordingly, compensation is calculated in accordance with Article 152(1) of the Employment Rights (Northern Ireland) Order 1996 as amended. Article 154(1A) provides that "where an employee is regarded as unfairly dismissed by virtue of Article 130A(1), whether or not this dismissal is unfair or regarded as unfair for any other reason),

(b) an award of compensation was to be made under Article 146(4); and

(c) the amount of the award under Article 152(1A) before any reduction under Article 156(3A) or (4) is less than the amount of four weeks pay, the Industrial Tribunal, shall subject to paragraph 1B, increase the award under Article 152(1A) to the amount of four weeks pay."

(11) Further, Article 17 of the Employment (Northern Ireland) Order 2003 provides for a 10% increase of compensation awarded where the failure to complete the statutory procedure is wholly or mainly attributed to the employer provided that the increase should not cause injustice to the respondent. As the respondent did not attend at the hearing the tribunal did not have before it any evidence of injustice and decided to award the statutory increase of compensation to the claimant.

(12) Following the claimant's dismissal by the respondent the tribunal accepted that the claimant lost confidence in her ability to perform at job interviews and generally lost herself confidence and felt nervous and depressed as a consequence of the treatment of her by the respondent. The medical report from her GP confirms that she was anxious and depressed in the period after her dismissal. The tribunal considers that the appropriate figure for injury to feeling suffered by the claimant for unlawful disability discrimination falls within the lower band of Vento and awards £3,000.00 under this head.

(13) The tribunal therefore calculates compensation as follows:-

Basic Award

£206.25 (weekly gross pay) x 4 weeks x 1 (age multiplier) - £825.00

Compensatory Award

(a) Loss of earnings:

period between 26 June 2006 -7 July 2007

= 53 weeks and 4 days

The claimant sustained no loss of earnings for 16 weeks 2 days during this period in her employment with ICICI and Kone Ltd.

18 August 2006-9 October 2006

7 weeks x difference in earnings (£33) = £233.66

30 weeks and 2 days remaining during which the claimant received no earnings

X £160.88 = £4,890.75

Total net loss of earnings = £5,124.40

Plus

(b) Loss of Statutory Rights = £250.00

Total compensatory award = £5,374.40

Basic award plus compensatory award £6,199.40

(c) Article 17 Uplift = £619.94

Injury to Feeling

Lower band of Vento = £3,000.00

Interest

Pursuant to Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996.

On £3,000 x 8%

from 26.6.06 to 29.6.07 (midpoint) = £241.97

On £6,819.00 x 8%

From 26.6.06 = 29.6.07(midpoint) = £550.00

= £791.97

Total Award = £10,611.31

(14) The recoupment provisions do not apply.

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

Chairman:

Date and place of hearing: 2 July 2008, Belfast

Date decision recorded in register and issued to parties: