Title: FAIR EMPLOYMENT TRIBUNAL
Author: irtusetup

THE INDUSTRIAL TRIBUNALS 

CASE REF:	1186/08 &1650/08

CLAIMANT:	Rachel Scilley	

RESPONDENT:	The Extern Organisation Limited		

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent and the tribunal orders that she be reinstated.

Constitution of Tribunal:

Chairman			Mr Cross																

Panel Members:		Mr MacLaughlin
				Mr McKeown	

Appearances:

The claimant was represented by Mr M. Canavan of McGuinness and Canavan Solicitors.

The respondent was represented by Mr C Hamill Barrister-at-Law instructed by Worthingtons Solicitors. 

At the outset it was agreed that the two cases should be consolidated and heard together.

Findings of Fact

1.	The claimant, who was born on 26 August 1974, commenced employment with the respondent in September 2002, as a project worker. 

2.	In February 2005 the claimant responded to a job advertisement in the press. This was seeking Regional Social Work Degree Trainees. This advertisement set out details of the traineeship, which is hereinafter called “the Scheme”. The successful applicants to the Scheme would be employed in “a Health or Social Services Trust or by a Voluntary Social Care Sector Organisation in Northern Ireland on a fixed term contract until they complete their degree in social work (up to a maximum of five years).” The advertisement, after explaining that the applicants would spend the first year working for the employers and applying for entry onto a University course in social work, went on to state, “they will be seconded on full salary to complete the degree in social work, returning to their employing organisations during holiday periods.”

3.	The advertisement then stated that “on successful completion of the degree in social work, they will be guaranteed the offer of a permanent post in the social care sector in Northern Ireland. In addition they must agree to work in Northern Ireland as a social worker in the Northern Ireland Personal Social Services in either the statutory or voluntary sector for minimum of two years following graduation.”

4.	The claimant, having applied for a place on the Scheme was told that she was successful. The organiser of the Scheme for the Department of Health and Personal Social Services (hereinafter “the Department”), for the voluntary sector, was Bryson House. At first the claimant was placed with a charity in Coleraine, however the claimant told Bryson House that she had child care duties and would prefer a placement in her home city of Derry. Bryson House then suggested that Extern would be prepared to be the employing party in the Scheme for her. Because the claimant was already working for Extern, she had to resign from her current job as a project worker and become employed under a new contract under the Scheme. This was a fixed term contract which was expressed as commencing on 1 January 2006 and ending on 31 December 2006. The contract stated that the appointment was “subject to your acceptance of Circular HSS (SSI) Training 4/2005 (copy attached)”.

5.	This circular was the document that set out the terms of the Scheme, which the claimant had applied for. This document set out the duties and responsibilities of the parties making use of the Scheme. The employer was stated as being responsible for, amongst other things, “employing Trainees on fixed term contracts which meet the requirements of the Scheme, including the requirement to achieve the social work qualification normally within five years of appointment”.

6.	The circular went on to require the employer to enter into a binding agreement with the trainee/employee to take up paid employment in social work in Northern Ireland within 6 months of achieving the degree. The employer must then ensure “that trainees will then work for a minimum of 2 years in the personal social services in Northern Ireland. The wording of any such agreement must, to the satisfaction of the employer’s legal advisors and Human Resources sections, ensure that any Trainee’s failure to work for the minimum period will require them to repay ALL the funding paid to them over the period of their Traineeship taking into account the personal circumstances in individual cases. It will be the responsibility of employers to recoup funding and to keep the Department informed throughout.”  

7.	The circular requires the trainee to undertake certain responsibilities which include securing a place in an approved social work course, attending the course and within five years attaining an honours degree in social work. The circular then requires the trainee to enter “into a binding agreement attesting that on achievement of the degree, paid employment as a social worker in Northern Ireland will be sought and secured within 6 months.” There is then an obligation on the trainee to continue to work in Northern Ireland as a social worker for 2 years and if this is not adhered to the trainee must repay all funding that he or she has received.

8.	The claimant having entered into the contract of employment with the respondent secured a place at University of Ulster on an approved social work course and attended and completed the course by the summer of 2008. She worked for the respondent during the university vacations.

9.	The claimant assumed that on completion of the university course she would complete her traineeship with the respondent. The one year fixed term contract, which ran from 1 January 2006, had been signed by the respondent on 20 September 2006. No further contract was signed between the parties and the claimant continued to be paid under the said fixed term contract through to 2008. After she was awarded her degree the claimant telephoned to Mr Traynor of the respondent, as he was the person who had been dealing with the students in the respondent organisation. She asked him, what was her position with the respondent?  Mr Traynor informed her that the respondent had no further obligation toward her and that her employment would be terminated. He explained that the respondent’s HR department would be in touch with her concerning the ending of her employment. 

10.	On 18 June 2008, Mr Traynor sent an email to various people in positions in the respondent organisation, informing them that the claimant would be “finishing as a trainee this month. She undertook the contract with the understanding there would be no guarantee of a job at the end and she resigned her post in Extern before accepting the trainee post.” Mr Traynor went on to ask his correspondents if there were any other posts in the respondent organisation that could be offered to the claimant, as the respondent would be dismissing her. He ended this email by stating “these do not have to be social work posts. She may choose to leave the organisation to seek a social work post because she needs to complete an assessed year in a social work job.”

11.	On 26 June the respondent’s HR Manager Lynne Stevenson sent an email to a colleague, Brian Murray, in which she stated that “the claimant was employed on a fixed term contract by the respondent and that there was never an indication that she would be given permanent employment at the end of the contract.” The email goes on to state, that the claimant does need to secure a social work position within 6 months as otherwise she will have to repay her funding and that it will be the duty of the respondent to recoup the money.

12.	The email continues, “Rachel is not entitled to a social work post with Extern or to permanent employment of any kind without going through our normal selection procedures. I know that Trusts have different arrangements where they do employ trainees who complete their course as Social Workers but they are massive organisations with hundreds of designated social work posts and turnover of same and we do not.”

13.	On 30 June 2008 Lynne Stevenson wrote to the claimant to state that her employment was to end on 4 July 2008. The letter went on to set out details of payments due to the claimant and her calculation of redundancy payment. The claimant stated to the tribunal that the letter arrived with her about 10 days after it was dated and this caused her some distress as she was left in a situation of not knowing what her position was. At this point the claimant took legal advice.

The Law

14.	The tribunal had first to decide on the contractual position of the parties. Was the situation that that was argued by the respondent, namely that the respondent had to provide the claimant with employment for the fixed period during which she attended the approved course and then graduated? Or was it as the claimant argued, that period, together with a further period of two years employment, to enable her to achieve the full qualification of a Social Worker and avoid having to repay the fees to the funders? That argument is complicated by the provision in the Department’s circular which states, that that period of two years does not have to be served with the respondent but could be served at another approved employer and by the job advertisement which guaranteed the offer of a permanent post in the Social Care Sector in Northern Ireland.

15.	The tribunal reminded itself that in deciding whether a binding contract had been formed, it must be satisfied that there was an intention by the parties to create binding legal relations between themselves and that there must be consideration moving from each party to the other. Furthermore the terms of the contract must be clear as uncertainty in the terms could render the contract void.

16.	The respondent admitted that it had not complied with the terms of Article 130A of The Employment Rights (Northern Ireland) Order 1996, (“the 1996 Order”). This states that a dismissal is to be regarded as unfair, if  one of the procedures set out in Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003 (“the 2003 Order”), has not been complied with and the non compliance is wholly or mainly attributable to the failure of the respondent. The procedure referred to in Schedule 1 of the 2003 Order provides for the employer to give written information to the employee as to its reason for wishing to terminate the employment of the employee and to invite the employee to a meeting to discuss the matter. The meeting must take place before the action of dismissal is implemented and if the employee is still intent on dismissing the employee it must give the employee a right of appeal. 

17.	The respondent admitted to the tribunal that it had taken none of these steps. It therefore follows that the dismissal is automatically unfair, unless the respondent can satisfy this tribunal that Sub-article 130(A)(2) of the 1996 Order applies to the situation. 

18.	This states, that  “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”

19.	Article 130(4)(a) of the 2003 Order is the Sub-article which states; that where an employer shows to a tribunal that a dismissal is one that falls within one of the groups of potentially fair reasons, then the tribunal will decide the fairness or unfairness of the dismissal by deciding, “on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee”.

20.	This tribunal must decide whether the claimant would have been dismissed in any event, despite the total failure of the respondent to follow any of its own contractual procedures or the statutory procedures. We are assisted by the Judgment of Mr Justice Elias the President of the Employment Appeal Tribunal in England in the case of Kelly- Madden v Manor Surgery, [2007] IRLR 17 EAT. In his judgment at paragraph 46, he states “that even if the employer can show that he would have dismissed [the employee] even if proper procedures had been applied this does not mean that the dismissal will always be fair. It may still be unfair because in substance the employer was not justified in dismissing the employee.” 
      
Decision

21.	The tribunal hold that there was a binding contract between the claimant and the respondent, which is not void for uncertainty. The employment contract clearly incorporated the terms of the Department’s Circular HSS (SSI) Training 4/2005. The duties and responsibilities of both parties are clearly defined in that document. The respondent’s argument, that the two years post degree work in the personal social services field in Northern Ireland, does not of necessity require the respondent to itself provide that work, does not, in the opinion of the tribunal render the terms of the contract uncertain. The tribunal holds that it means that the respondent had a choice of either providing that employment itself, or if for some reason it was decided to place the claimant at another establishment then that was allowed under the terms of the circular and thus the contract. However the primary responsibility to provide the two years employment lay with the respondent. The job advertisement must be read in conjunction with the job description and the Circular above referred to. The advertisement stated that there was a guarantee of a job at the end of the degree course. This, the tribunal hold, means, at the very least, the claimant was entitled to her two years supervised work, in order to gain the full qualification. It was this inducement that lead her to give up her permanent post with the respondent to take up the offer of the Scheme.

22.	The tribunal is supported in its view on this matter by the claimant’s argument that she resigned from a permanent contract of employment with the respondent to take up this new contract, which she read as giving her employment rights and protection for the full training period, including the final two years of traineeship, or supervised working, without which she could not achieve the full qualification and indeed she would be faced with the prospect of having to repay a large sum of money. The tribunal holds that it believes that this argument correctly represents what occurred and that the documentation forming the contract between the parties does comprise a legally binding contract of employment which was breached by the respondent.

23.	The correspondence between the respondent’s officers, referred to above, which took place at the time that the claimant acquired her degree, shows that the respondent’s officers had not understood the Scheme, or the part to be played in it by the respondent. The respondent did not offer an approved post as a restricted social worker within the Scheme to the claimant. Furthermore, it made no effort to secure such a post for her, with a different organisation, as was its duty under the Scheme. This was clearly set out in the advertisement and in the information pack given to the students / applicants in the Scheme and indeed under the heading “Employer’s Responsibilities” in the Scheme itself. The tribunal hold that the claimant was justified in assuming that a result of all these promises would be, that when she took up the post under the Scheme, that the respondent would employ her through to full qualification, or alternatively place her for her last two years.  

24.	The respondent admits that it unfairly dismissed the claimant in that it did not abide by any of the procedures described above. The tribunal hold that the dismissal was unfair and that that dismissal is not rendered fair under the provisions of Article 130 A (2) of the 1996 Order. The tribunal considers that it is likely that if the respondent had gone through the proper procedures before dismissing the claimant it would have realised that it was contractually bound to complete its responsibilities under the circular and contract of employment. Even if the tribunal is wrong in this, it holds that the dismissal was “unfair because in substance the employer was not justified in dismissing the employee”, to use the words of Mr Justice Elias in the Kelly-Madden case referred to above.

25.	The tribunal having found that the claimant was unfairly dismissed then turned to the remedy. The tribunal hold that this is a case which justifies the remedy of reinstatement. Certain matters have to be considered by the tribunal under Article 150 of 1996 Order before it makes such an Order.

26.	Firstly, does the claimant want to be reinstated? In this case the claimant told the tribunal that she did seek this remedy.
 
27.	Secondly would it be practicable for the respondent to comply with an order for reinstatement? The tribunal hold that this would be practicable. The respondent knew, when it entered into the Department’s Scheme in the Circular, that it had a duty, to either offer the extra two years supervised employment, or find some other employer for the claimant, which would provide the two years. If the respondent failed to do either of these things, then it had to recover the training fees from its own employee and reimburse them to the Department. There is no reason that the tribunal can see, as to why this arrangement should not be carried out now. If it is not practicable for the respondent itself to provide the two year employment, then it can organise some other approved party to provide it. This is what the respondent promised to do in its contract with the claimant. 

28.	Thirdly the tribunal has to be satisfied that the claimant did not cause or contribute to some extent to her dismissal. There was no evidence that the claimant was in any way responsible for her dismissal. She appears to have been a good employee and to have got on well with her colleagues at the respondent.

29.	The tribunal accordingly orders that the respondent reinstate the claimant under the provisions of Article 148 of the 1996 Order. The order for reinstatement shall be complied with by 1 June 2009. Since the date of her dismissal the claimant was able to obtain temporary employment from the end of her notice period until the date of this hearing and continuing. The salary that she is currently recieving, exceeds the salary from her employment with the respondent. Consequently the claimant has suffered no financial loss as of the time of the hearing. The claimant may return to the tribunal to seek financial compensation, should her temporary contract come to an end before her date of reinstatement with the respondent.

30.	Under the provisions of Article 146(5) of the 1996 Order the tribunal is empowered to award four weeks pay to the claimant, if she is unfairly dismissed. The tribunal does however have the power under Article 146(6) of the 1996 Order, to decline to make such an order, if, “it considers that such an award would result in injustice to the employer.” This tribunal is of the opinion that the officers who dealt with the claimant did not understand the contractual situation that pertained and had they understood the respondent’s duties under the contract and the Scheme, they might well have made appropriate arrangements for the claimant to complete her training, as the Scheme required. For this reason the tribunal holds that it would be unjust to penalise the respondent in this way.

                                                              

Chairman:

Date and place of hearing:	18 February 2009, Londonderry and
					25 February 2009, Belfast

Date decision recorded in register and issued to parties:

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