Industrial Tribunals Northern Ireland Decisions

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Cite as: [2010] NIIT 00383_09IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 383/09

CLAIMANT: Roisin Kerrigan

RESPONDENT: The North-West Ireland Printing and

Publishing Company Limited

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent and the tribunal orders the respondent, subject to the recoupment provisions, to pay to the claimant the total sum of £12,867.90.

Constitution of Tribunal:

Chairman: Mr J V Leonard

Panel Members: Mr P Sidebottom

Mr R J Hanna

Appearances:

The claimant was represented by Mr M O’Brien, Barrister-at-Law, instructed by Patrick Fahy and Company, Solicitors.

The respondent was represented by Mr P Moore of Employment Law Consultancy.

Evidence

1. The tribunal heard oral evidence from the claimant and, on behalf of the respondent, evidence from Jennifer Harvey, Dominic McClements and Pauline Leary. There was also an agreed bundle of documents consisting of some 265 pages and additional documents were introduced into evidence by agreement throughout the course of the hearing. At the conclusion of the hearing the tribunal received oral submissions from the respective representatives.

The Issue

2. In her claim to the tribunal dated 20 January 2009, the claimant claimed unfair dismissal and provided some detail in respect of that claim in an Appendix thereto entitled “details of claim”. In a response to the claim dated 31 March 2009 the respondent confirmed that the respondent had employed the claimant and that the claimant had been dismissed consequent upon a disciplinary process, with an attendant appeal. It was contended that the claimant had been fairly dismissed for a fair reason following the application of an impartial and thorough investigation and disciplinary process. It was further contended that the respondent had acted reasonably in imposing a sanction proportionate to the claimant’s conduct and position within the respondent company; the claimant’s claim was denied in its entirety. Accordingly, the tribunal had to determine if the claimant’s complaint of unfair dismissal was successfully made out and, if that were to be the case, the matter of an appropriate remedy.

The Tribunal’s Findings of Fact

3. In consequence of the oral and documentary evidence adduced the tribunal, on the balance of probabilities, determined the following material facts:-

(a) The claimant commenced employment with the respondent company on 22 October 2003 in the capacity of Sales Representative. In May 2004 the claimant was promoted to the position of Sales Manager. The respondent company is a company which publishes regional newspapers in Northern Ireland and the Republic of Ireland and conducts its business from a number of premises located in Omagh, Strabane and Letterkenny. The claimant had a written statement of terms and conditions of employment which incorporated both a disciplinary code and also included and anti-harassment policy. At the material time (that is to say 2007/2008), the claimant had responsibility as Sales Manager for advertising sales for the respondent’s County Tyrone titles, including the Ulster Herald, the Strabane Chronicle and the Tyrone Herald. The respondent’s Financial Controller was Donal Breslin. Dominic Clements was the respondent’s General Manager, Pauline Leary was the respondent’s Editor and Jennifer Harvey was the respondent’s Human Resources Officer. Kim McLaren commenced employment with the respondent company in September 2005 as a Sales Representative and the claimant was her Line Manager at the

material time.

(b) In the early part of 2007 Kim McLaren commenced a personal relationship with Donal Breslin at a time when the claimant was absent from work on maternity leave, from which leave the claimant returned in April 2007. In May 2007 Donal Breslin was appointed as the claimant’s Line Manager. As the claimant occupied the position of line manager to Kim McLaren the claimant became concerned as to how the personal relationship between someone who managed her and someone managed by her might affect the overall working relationship. The claimant voiced her concerns to Jennifer Harvey in the latter’s capacity as Human Resources Officer and also to Dominic McClements as General Manager. In July 2007 the claimant had a meeting with Jennifer Harvey and Dominic McClements that was intended to address issues whereby the claimant felt that her position was being undermined. A further meeting ensued a few days after the first meeting in an endeavour to “clear the air” in respect of these issues, which latter meeting was attended by Donal Breslin, together with Dominic McClements and Jennifer Harvey and the claimant. The tribunal understands that the outcome of that meting was inconclusive.

(c) Events then moved on to 18 April 2008 when a number of members of staff of the respondent company attended a “team building” exercise at Lusty Beg Island in County Fermanagh, which exercise involved an overnight stay at that facility. Staff members attending the exercise were present in the bar at Lusty Beg that particular evening and alcohol was consumed. The evening seems to have passed off uneventfully except that, towards the end of the evening, the claimant became engaged in a conversation with Kim McLaren. The tribunal is uncertain as to precisely what words were spoken between the two but it appears that the claimant brought the conversation with Kim McLaren around to the topic of work sales figures and work performance. In her evidence to the tribunal, the claimant vehemently denied the suggestion that she had also alluded in the conversation to Kim McLaren’s personal relationship with Donal Breslin or that she had personally criticised Kim McLaren’s sales performance. Whatever words were spoken, Kim McLaren appears to have taken offence. Whilst the conversation does not appear to have become overly heated, it certainly developed into what could best be described as a rather intense exchange between the two. This fact was observed by some other staff members present, resulting in the other members of staff who were endeavouring also to engage in the conversation being told by Kim McLaren in no uncertain words that it was a private conversation. The conversation appears to have ended rather abruptly. Kim McLaren it seems became upset and walked off in the direction of the chalet which served as her overnight accommodation. She was shortly thereafter followed by the claimant to the chalet. The claimant entered the chalet and she endeavoured to extend an apology to Kim McLaren. A short time later Donal Breslin arrived at the chalet. After a period of time the claimant left the chalet and she then proceeded to her own chalet which she was sharing with a work colleague, Anne Mooney. Anne Mooney was asleep at this time and the claimant then left her chalet and made her way to another chalet where she met with other work colleagues. At this stage the claimant was visibly distressed. She spent some time speaking with the other colleagues before returning to her own chalet where, by this stage, Anne Mooney had awakened. The claimant explained to Anne Mooney that she had “had words”, as she put it, with Kim McLaren. Apparently Anne Mooney became rather cross with the claimant about this but then went back to sleep. At approximately 4.00 am the claimant endeavoured to send a text message to Kim McLaren apologising for what had occurred. Then she recalled that Kim McLaren’s mobile telephone was for some reason not operational and the claimant then sent a corresponding text message of apology to Donal Breslin.

(d) The following morning the claimant went to Kim McLaren’s chalet and she walked through the front door expecting, it seems, there to be a vestibule but then she had realised she had walked straight into the bedroom. She retreated immediately and she stood outside. Eventually Kim McLaren emerged from the chalet and she spoke with the claimant. The claimant again endeavoured to apologise to Kim McLaren. Sometime later that morning all of the employees

returned from Lusty Beg.

(e) The following Monday morning, 21 April 2008, the claimant endeavoured to contact Jennifer Harvey to discuss the matter, but without success. The afternoon of that Monday Kim McLaren had a meeting with Jennifer Harvey, indicating in seeking the meeting that she wanted to discuss a confidential matter. Kim McLaren stated that she did not want the matter taken any further but that she wanted to make Jennifer Harvey aware of it. Kim McLaren then proceeded to recount to Jennifer Harvey her version of events that evening at Lusty Beg which was that the claimant had consumed alcohol and that the claimant had proceeded to criticise Kim McLaren’s relationship with Donal Breslin. Kim McLaren also stated that the claimant had alleged that Kim McLaren had used her position of influence to get other staff to refer sales calls to her and that the claimant had criticised Kim McLaren’s selling ability. Kim McLaren recounted that at this point she had left the bar and had gone to her room. Shortly thereafter Donal Breslin had come along and also the claimant had arrived at the chalet. The claimant had refused to leave the chalet when asked to do so by her. However, Donal Breslin had then persuaded the claimant to leave. Kim McLaren continued that the following morning the claimant had come to her room and further discussions had ensued. However, Kim McLaren felt that the claimant’s apology was insincere. She made it clear to Jennifer Harvey that she did not wish to raise any formal complaint, but she indicated that she was not feeling very well (she alluded a medical complaint which apparently caused swelling of her shoulder and arm) and that she had an appointment with her doctor for the following morning. The next morning Kim McLaren went off on sick leave and she remained absent from work on grounds of illness for a number of weeks thereafter.

(f) The following day, Tuesday 22 April 2008, the claimant had a meeting with Jennifer Harvey at the latter’s request. The topic of the incident at Lusty Beg was raised by Jennifer Harvey and the claimant indicated that she had tried to get in touch with Jennifer Harvey the previous day but that the latter had been rather busy. The claimant indicated that she had tried to apologise to Kim McLaren but that she knew the matter would not go away. Jennifer Harvey indicated to the claimant that Kim McLaren had stated that she did not want to raise a formal grievance but that Kim McLaren was very hurt by the manner in which the claimant had spoken to her. The claimant indicated that she wished to apologise for her behaviour and was ashamed as to how she had behaved; she was willing to do anything which the respondent company wanted to rectify the situation. Jennifer Harvey suggested that a written undertaking would be drawn up which would be signed by the claimant. In doing so, Jennifer Harvey it appears did not expressly mention the terms of the disciplinary procedures attaching to the claimant's contract of employment with the respondent nor the respondent's anti-harassment policy which also formed part of the contractual arrangements. However, Jennifer Harvey’s written record of the meeting, as inspected by the tribunal, states as follows, “I said that by signing this undertaking she was accepting that she was out of order, that she had been warned about her behaviour and the record would go on her file”.

(g) On 24 April 2008 the claimant signed and dated a written undertaking prepared by Jennifer Harvey in the following terms:-

“I, Roisin Kerrigan, acknowledge that my behaviour on Friday 18 April was not acceptable and there must never be a repeat performance. I wish to retract all comments made to Kim McLaren as they were inappropriate and if Kim so wishes I will apologise to her again and re-affirm this to her. I was out of order and going forward I undertake to continue to work with Kim in a mannerly and professional manner. I also wish it to be noted that I have no question regarding Kim’s selling ability whatsoever and again I

will re-affirm this to her.”

(h) It appears that the claimant, not without some justification, felt this to be the end of the matter. Kim McLaren remained off work on account of illness and was eventually referred by the respondent for medical assessment. The tribunal was not appraised of the precise medical reason or reasons for Kim McLaren’s absence on grounds of illness nor of the respondent’s precise assessment of the reason or reasons for the underlying cause of that absence. Jennifer Harvey had a meeting with Kim McLaren on 4 July 2008. At that meeting, after some discussion about medical issues, Jennifer Harvey gave to Kim McLaren a copy of the claimant’s written undertaking. Kim McLaren expressed some scepticism about the matter. She then proceeded to make a number of allegations concerning the manner in which she stated that the claimant dealt with and treated other members of staff, which she alleged was in a partial or otherwise unsatisfactory fashion. Jennifer Harvey reminded Kim McLaren that the latter had stated when raising her initial complaint that she wanted it to be kept informal. However Jennifer Harvey then stated to Kim McLaren that Kim McLaren had a right to raise a formal complaint if she wished. However, Kim McLaren responded by indicating that she was in no fit state to take any steps

in that regard.

(i) On 7 July 2008 Jennifer Harvey had a meeting with the claimant. Jennifer Harvey indicated that she had met with Kim McLaren a few days before. When it was indicated by Jennifer Harvey to the claimant that Kim McLaren was quite unwell, the claimant expressed some surprise at the perceived suggestion that Kim McLaren appeared to be attributing all of her medical issues to the claimant. Various other matters were then touched upon in the conversation including a specific allegation made by Kim McLaren that the claimant had criticised a particular commercial matter dealt with by Kim McLaren as having been undersold in terms of value. The following day the claimant spoke with Jennifer Harvey and told Jennifer Harvey that she was sick with worry about the situation in relation to Kim McLaren. The claimant indicated that she had tried to tell Dominic McClements and Jennifer Harvey about the issues the previous year and that she could not believe that Donal Breslin would be impartial in this matter on account of his relationship with Kim McLaren. The line managerial situation was then further discussed between the two. It appears that the claimant had no immediate suggestions to make as to how things ought properly to be dealt with. The Lusty Beg incident was then further discussed. The claimant then indicated that she was feeling unwell and that she wished to go home. The claimant then left work that day and indeed was absent from work on grounds of illness for a period of time thereafter.

(j) By letter dated 15 July 2008, Kim McLaren wrote to the respondent making a complaint of being verbally attacked and bullied by the claimant on 18 April 2008 at Lusty Beg. Her allegation was that the alleged conduct on the claimant's part related to her personal relationship and to her alleged inability properly to do her job as a Sales Executive. She alleged that the claimant had stated that the claimant did not want Kim McLaren working for her and that Kim McLaren would not be for much longer if she (the claimant) could help it. The letter continued as follows:- “Subsequently I understand that she has been reprimanded, however I do not feel that any further attacks can be prevented and I am wary of returning to work for her as I fear she may attack me again. I am uncertain as to whether or not NWIIP have dealt with the problem sufficiently and how I would be protected in the future”. This letter was received by the respondent and was dealt with as constituting a written grievance complaint made against the claimant. An investigation was then initiated by the respondent which involved the interviewing of a number of witnesses. Meetings were held, attended by Jennifer Harvey and Pauline Leary, with a number of employees. These included the claimant, Jane Abernethy, Michele Stockton, Anne Mooney, Geraldine Wilson, Eileen McGee, Doreen Gallagher, Sonya Hamilton, Donal Breslin, Mark Hanna and Kim McLaren. Some of these latter persons were unable to provide much by means of evidence as to the facts of what had transpired at Lusty Beg nor indeed to provide any other information to set the issues in proper context. However, some persons provided certain specific information and that was recorded by the respondent.

(k) By letter dated 18 September 2008, Jennifer Harvey wrote to Kim McLaren confirming that the company had now completed the investigation into her grievance as set forth in her correspondence of 15 July 2008. Jennifer Harvey's letter indicated that following the investigation, the complaint was being upheld and that disciplinary action was to be taken against the claimant. The letter further mentioned that the allegations made by Kim McLaren that other members of staff felt intimidated and demeaned by the claimant had been investigated but there had been no corroboration by other members of staff in respect of these allegations.

(l) By letter of 18 September 2008, the claimant was requested by the respondent to attend a disciplinary hearing that was scheduled for 8 October 2008. The allegation as set forth in the letter was that the claimant had spoken inappropriately to Kim McLaren about her relationship with a senior member of staff within the company, had levelled unfounded criticisms at Kim McLaren in relation to her performance leaving her fearful of her position and had refused to leave her accommodation when asked to do so. It was stated that the company considered that to be a matter amounting to gross misconduct and a potential outcome might be the claimant’s dismissal without notice. With this letter were included copies of the written minutes from meetings and a copy of an extract from the respondent's disciplinary policy. The claimant was informed that she was entitled to be accompanied by a work colleague or Trade Union representative to the disciplinary hearing.

(m) The disciplinary hearing was re-scheduled and it eventually proceeded on 24 October 2008. The meeting was attended by the claimant, by her Trade Union Representative, Davy Edmont, by Pauline Leary and by Jennifer Harvey. At the commencement of the disciplinary hearing Pauline Leary outlined the allegations made against the claimant by Kim McLaren. As stated, these were that Kim McLaren had been attacked and bullied by the claimant, her Line Manager, at the training day at Lusty Beg. Pauline Leary then alluded to the evidence which had been gathered by means of interviews with the various employees. The claimant responded to the allegations by stating that she was not the sort of person to intimidate or to bully anyone. The meeting proceeded and the claimant was afforded an opportunity to rebut the suggestions of alleged bullying and intimidation that had been made against her. The claimant's representative, Davy Edmont, raised the matter of the situation having been dealt with informally and the claimant having signed a written agreement at the time. The representative suggested that the raising of the formal complaint after having earlier dealt with the matter in that fashion would be, as he put it, “double jeopardy” to the claimant. Pauline Leary in response suggested that Kim McLaren was entitled to raise a formal grievance; if she did so the respondent company had no option but to proceed along the formal route. The claimant's representative indicated that the two persons in question, the claimant and Kim McLaren, had different interpretations of what had transpired. The discussion then turned to the possibility of Kim McLaren (who was at the time still absent from work) returning to work with the claimant. After initially indicating that she did not want to comment on that possibility, the claimant then stated that it would not be easy but that she would do her job.

(n) After the conclusion of the disciplinary hearing, the respondent’s management suggested to the claimant a possible relocation to the respondent’s Strabane office. However, the claimant indicated that she did not accept that that was a reasonable option and she stated that she would not be moving to Strabane. There then followed meetings which were held on 6 November 2008 at which the claimant was again requested by Pauline Leary to consider the suggestion of a move to the Strabane office. Again, the claimant declined that suggestion. Thereafter there where further discussions. The offer that had been made to the claimant by the respondent was in respect of the post of Advertising Sales Executive in the respondent's Strabane office. Examining the content of these discussions, it seems that at one point the claimant did appear to be willing to relocate to the Strabane office with the proviso that she would retain her position as Advertising Manager and that her terms and conditions of service would otherwise remain unchanged. Pauline Leary however made it clear to the claimant that that was not an option as far as the respondent was concerned. The other alternative, as the respondent saw it, was termination of the respondent's contract of employment with the claimant. Pauline Leary then announced that the respondent had no alternative but to summarily dismiss the claimant and that there would be formal confirmation of that in writing; an appeal against the dismissal would be afforded.

(o) By letter of 7 November 2008 Dominic McClements wrote to Kim McLaren. His letter was in response to a letter to the respondent from Kim McLaren dated 24 October 2008. Dominic McClements confirmed that the disciplinary proceedings that had been taken by the respondent against the claimant were now finalised. He indicated in the letter that he could confirm to Kim McLaren that upon Kim McLaren’s return to work she would not be working with or for the claimant.

(p) By letter dated 10 November 2008, Pauline Leary wrote to the claimant formally confirming the outcome of the disciplinary hearing held on 6 November 2008. It was indicated in the letter that the respondent company considered the matter to amount to gross misconduct and the potential outcome was the dismissal of the claimant without notice. It was recorded that the claimant had been given every opportunity to explain and to account for actions and the claimant’s denial of verbally attacking and bullying Kim McLaren was recorded. Some of the evidence from the witness statements was also alluded to. There was a reference made in the letter to the investigation held in April 2008 and to the claimant’s stated concession at the time concerning her behaviour. The letter stated that, having established a belief as to the misconduct alleged, the company considered the matter to amount to gross misconduct. As an alternative to dismissal, the company had offered the claimant the opportunity to transfer to the Strabane office as a Sales Executive but that the claimant had advised the company on 6 November that she did not wish to accept this transfer. Therefore, the only appropriate sanction was to dismiss the claimant summarily. The claimant’s entitlement to appeal was confirmed.

(q) By letter dated 12 November 2009 the claimant wrote to Dominic McClements requesting an appeal. Some further communications proceeded concerning the date and location for the appeal meeting. The appeal meeting took place on 21 November 2008 at Omagh Enterprise Centre. Present at the meeting were Dominic McClements, Colm Martin as minute taker, the claimant and the claimant’s representative, Davy Edmont. At the outset of the meeting Dominic McClements invited the claimant to outline the basis for her appeal. He stated that the case had been initially dealt with on an informal basis by Jennifer Harvey in April 2008, resulting in a written undertaking being signed by the claimant. However, Dominic McClements then stated that before the company had an opportunity to inform Kim McLaren, who was then off on sick leave, Kim McLaren had lodged a formal grievance complaint which the company was statutorily obliged to proceed with. In respect of the allegations, the claimant confirmed to the appeal meeting that she had only talked (in Lusty Beg) to Kim McLaren in general terms about her work. She had not verbally attacked Kim McLaren. The claimant raised the issue of Kim McLaren’s credibility. The meeting then addressed the matter of the allegations and of the evidence available to the earlier disciplinary hearing. Dominic McClements alluded to the allegation that Kim McLaren’s absence from work was due to stress as a result of the alleged harassment visited upon her by the claimant. In response to that, the claimant stated that she had indeed spoken with Kim McLaren on the telephone a short time after the Lusty Beg matter and whilst Kim McLaren was off sick, Kim McLaren did not come across as stressed nor had she indicated that she could not work with the claimant as far as the claimant was concerned. The meeting then turned to the matter of the alternative position in the Strabane office. The claimant made it clear that she did not wish to consider what was in effect a demotion. The claimant also alluded to her position as being undermined by the relationship between Donal Breslin and Kim McLaren. The

appeal meeting then concluded.

(r) By letter dated 25 November 2008, Dominic McClements wrote to the claimant. The letter addressed a number of issues including the April 2008 investigation, the allegations of gross misconduct against the claimant, the line managerial structure issues and the appeal hearing outcome. In that latter regard, Dominic McClements confirmed his conclusion to the effect that the incident at Lusty Beg did amount to gross misconduct and that there was reasonable cause to believe that the claimant’s behaviour towards Kim McLaren was inappropriate and did amount to harassment of the individual concerned. The decision on appeal was to issue the claimant with a final written warning which would remain on the claimant's record for 12 months. However, Dominic McClements also stated that it would not be appropriate for the claimant to continue in her current position and that she was required therefore to relinquish her role as Advertising Sales Manager with the respondent and, as an alternative to dismissal, employment would be offered to the claimant as Senior Sales Executive for the Strabane Chronicle and Donegal News, with responsibility for Strabane, Finn Valley and Derry. For a period of six months the claimant's remuneration was to remain unchanged but after six months the remuneration would be scaled down to that of Senior Sales Executive level.

(s) There then followed a series of emails. By email dated 22 December 2008 the claimant indicated to Dominic McClements that she was not prepared to accept what she saw as the proposed demotion. In consequence, Dominic McClements confirmed that the respondent’s decision to terminate the claimant’s employment therefore stood and that concluded the matter.

(t) After termination of the employment the claimant signed on for Jobseekers’ Allowance and she was in receipt of that benefit for a brief period of time, during which time she made a considerable number of applications for employment. It was agreed between the parties and confirmed to the tribunal by the respective representatives that no issue arose regarding the claimant’s endeavours to mitigate her loss after dismissal. There was however an issue in contention in relation to alleged loss of bonus payment. Accordingly the loss figures which follow in this decision are those which are substantially agreed between the parties, save in regard to that one issue of bonus payment upon which the tribunal will make further comment below.

(u) There was some evidence adduced in the case concerning what was alleged to have been a difference in treatment between the treatment accorded to the claimant and that accorded to other employees. It was, for example, contended that a number of senior and other employees had had allegations made against them and that these persons were dealt with by the respondent's management in a much more lenient fashion than the respondent's management dealt with the claimant in this case. In view of the tribunal's determination concerning the matter of unfair dismissal, for the reasons indicated below, the tribunal does not need to determine any material findings of fact in respect of these specific contentions.

The Applicable Law

4. The Employment Rights (Northern Ireland) Order 1996 (hereinafter referred to as “the 1996 Order”) provides at Article 126 of the 1996 Order 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. It is for the employer under the provisions of Article 130 (1) (a) to show the reason (or, if more than one, the principal reason) for the dismissal, and under Article 130 (1) (b), that it is either a specified reason as set out in Article 130 (2) or some other substantial reason of a kind such as to justify the dismissal. The specified (potentially fair) reasons for dismissal that are set out in Article 130 (2) include, amongst others, the conduct of the employee. Turning to the general application of the statutory provisions in respect of unfair dismissal as set out above, in these matters of dismissal for alleged misconduct, the leading authority remains the case of Iceland Frozen Foods v Jones [1982] IRLR 439 in respect of which recent guidance has been given and approval confirmed by the Court of Appeal in Northern Ireland in the case of Rogan v South Eastern Health and Social Care Trust [2009] NICA 47, following similar guidance and approval having been given by the Northern Ireland Court of Appeal in Dobbin v Citybus Ltd [2008] NICA 42. The tribunal in the exercise of its function is therefore very clearly guided by Iceland. Therein the guidance (as given by Browne-Wilkinson J and bearing in mind that the statutory provisions referred to are the equivalent to Article 130 of the 1996 Order in Northern Ireland and that there is now “neutral” burden of proof) is stated as follows:-

‘(1) The starting point should always be the words of section 57(3) themselves;

(2) In applying the section an industrial tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;

(3) In judging the reasonableness of the employer's conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

(4) In many, though not all, cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;

(5) The function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.'

5. In misconduct cases the Court of Appeal in Northern Ireland in Rogan has also again recently endorsed again the approach in British Homes Stores v Burchell [1980] ICR 303. This approach involves the tribunal addressing three primary questions:

· The first question is – has it been established by the respondent, as employer, the fact of that belief in the misconduct alleged?

· The second question is – had the respondent, as employer, in its mind reasonable grounds upon which to sustain that belief?

· The third question is – had the respondent, as employer, at the relevant time or at least at the final stage at which it formed that belief on those grounds carried out as much investigation into the matter as was reasonable in all the circumstances of the case?

6. The Employment (Northern Ireland) Order 2003 ("the 2003 Order") at Part IV, Article 15, provides for the statutory procedures in relation to dispute resolution. Schedule 1, Part II, to the 2003 Order sets forth the statutory grievance procedures, including the standard and the modified procedures. Under these statutory procedures an employee is entitled to set out a grievance in writing and to send the statement or a copy of that to the employer. Thereafter, the employer must invite the employee to attend a meeting to discuss the grievance and must inform the employee of the decision and the employer's response to that grievance and of the right to appeal against the decision.

The Submissions of the Parties

7. Outlining, in brief, the submissions of the respective parties, for the respondent, Mr Moore has submitted that the case was relatively straightforward. There had been allegations of gross misconduct made, the matter was properly and fully investigated by the respondent company, a disciplinary hearing was properly and fairly called and the outcome of that was the decision to dismiss the claimant from employment as an alternative to the offer of a demotion and relocation of work. That decision fell within the band of reasonable responses of a reasonable employer and the investigation had been conducted in accordance with the principles enunciated in Burchell. For the claimant, the claimant’s representative has indicated that the true cause of dismissal had not been the claimant’s conduct but rather a conflict in the relationship between the claimant and Kim McLaren in the context of rather problematical line management issues. This submission was that any proper and fair investigation of what had transpired at Lusty Beg would have disclosed that there was not anything approaching gross misconduct and therefore there existed no proper cause for the claimant to be dismissed. The respondent, it was submitted, had manifestly failed to establish a proper reason for the dismissal, alleged misconduct on the part of the claimant. The submission on behalf of the claimant continued that, even if the tribunal were to accept that such misconduct had been established, the decision to dismiss did not fall within the band of reasonable responses of a reasonable employer. Accordingly, the decision was unfair and the claimant was unfairly dismissed.

The Tribunal’s Decision

8. The tribunal has noted the submissions made on behalf of the claimant and of the respondent in the matter. This is a case where the claimant has made a claim for unfair dismissal and where the respondent has contended that the claimant was properly and fairly dismissed for reasons of conduct following a thorough investigation and proper procedure. In this case the claimant was employed on the basis of settled and agreed terms and conditions which terms included a grievance and disciplinary procedure and also a separate policy in relation to harassment. As the allegations levelled against the claimant in the disciplinary process involve allegations of harassment and bullying, the settled and agreed terms and policies are

of some note.

9. It is for the respondent, as employer, to demonstrate the reason for the dismissal. In this case that reason was stated by the respondent to relate to conduct, that being alleged misconduct arising from events which took place on 18 April 2008 and the day thereafter when the claimant, as line manager to Kim McLaren, attended a ‘team building’ exercise at Lusty Beg. The respondent’s case is that the entire and only misconduct alleged against the claimant arises from the events at that particular time. The respondent contends that it was this alleged misconduct which constitutes the sole reason for dismissal. Of note, no other case is submitted on behalf of the respondent and, particularly, the respondent does not seek to make the case that the dismissal was for some other substantial reason, which alternative submission is permissible under the terms of Article 130 of the 1996 Order. It was only on the third day of the hearing that the tribunal first had sight of the respondent’s ‘anti-harassment policy’. This policy unquestionably formed part of the claimant’s agreed terms and conditions of employment with the respondent. The policy in question provides for a definition of harassment which latter is defined as including,

“….any verbal or physical abuse …… made by one or more persons in the workplace, which are any of the following:-

Unwanted, unreciprocated – cause humiliation, offence and/or distress – interfere with job performance or create an unpleasant working environment ……”

The policy further provides for the responsibilities respectively of employees and of the respondent company, and for an informal procedure for dealing with harassment which is stated to be appropriate when the employee simply wants the behaviour to stop. The policy also provides that if the harassment raises serious issues or a pattern emerges, the respondent company reserves the right formally to investigate the incidents and take appropriate action. By this means, it is provided under the policy provisions that the decision making and the pursuit of the appropriate course of action under the formal procedure rests with the respondent company and not, ultimately, with the complainant. Further to the foregoing, the policy also provides for a formal procedure (which notably does not have to be preceded by the informal procedure). Thus, it is provided that a complaint under the formal procedure must be made as soon as possible following the action of alleged harassment so that the matter can be dealt with swiftly and decisively. The policy then specifies an investigatory and reporting procedure, with decision making being taken at managerial level. Regarding timescale, the policy in question specifies that every effort will be made to have completed the procedure within 15 days of the complaint having been received. The stated outcomes of the policy can include redeployment

and the provision of equal opportunities awareness training.

10. No endeavour whatsoever appears to have been made at any stage by the respondent formally and expressly to invoke the foregoing policy and procedure, notwithstanding that it bears contractual force and notwithstanding that the said policy appears to have been applicable to the situation encountered in respect of the allegations of Kim McLaren that were made against the claimant. When questioned regarding that issue in the course of the tribunal hearing, no explanation was provided as to why the policy was not expressly invoked. The tribunal will return to

that matter below.

11. Any employee is entitled to raise, for good and proper cause, a grievance under the statutory grievance procedures (the 2003 Order), as mentioned above. The argument presented on behalf of the respondent is that, very shortly after the incidents occurred at Lusty Beg, upon receipt of the information from Kim McLaren as to what she alleged had transpired, the respondent (via Jennifer Harvey as Human Resources Manager), noting that Kim McLaren had expressly stated that she wished the matter to be dealt with informally, had met with the claimant and had explored the claimant’s version of what had transpired. In view of the initial stance taken by Kim McLaren, the respondent felt that it was appropriate to deal with the matter in a particular manner. This led to the claimant’s concession concerning her conduct and to the respondent’s management of the matter by the obtaining of the formal undertaking from the claimant. The procedure employed by the respondent at that time seeks in this hearing to be portrayed by the respondent as not constituting any part whatsoever of any disciplinary process. The tribunal however notes that, as this is described by the respondent itself (via Jennifer Harvey), the procedure has nonetheless some of the characteristics of either the anti-harassment policy (that is to say the informal stage of that policy) or possibly of the applicable procedure for minor misconduct that is contained within the respondent’s disciplinary rules and procedures. These latter, for example, provide for minor faults to be dealt with informally. The view taken of the procedure by the respondent company itself is perhaps well illustrated by Jennifer Harvey, in Jennifer Harvey’s record of a meeting with the claimant which took place on 2 April 2008 (therein referring to the written undertaking signed by the claimant at the time). That record states:-

“I said that I would draw up an undertaking which I would ask Roisin to sign acknowledging that there would never be a repeat performance. I said that by signing this undertaking she was accepting that she was out of order, that she had been warned about her behaviour and the record would go on her file. Roisin said that she had to accept that and she would sign the form”.

12. The tribunal notes that, very shortly after the Lusty Beg incident Kim McLaren went on sick leave. As the tribunal understands it, that absence commenced on Tuesday 22 April 2008. Kim McLaren remained on sick leave for a considerable period of time thereafter. Notwithstanding the claimant signing the written undertaking, the respondent omitted, for some reason which is not clear to the tribunal, expeditiously to deal with the matter and thus to inform Kim McLaren of what had transpired. The absence of Kim McLaren from work does not appear to have been a proper reason for her not being advised of the claimant’s attitude to the allegations and the written undertaking given by the claimant. Indeed, it seems that the first that Kim McLaren was informed of the written undertaking was in the course of a meeting which took place between Jennifer Harvey and Kim McLaren on 4 July 2008, on which occasion Jennifer Harvey gave to Kim McLaren a copy of her notes taken in the course of a meeting with the claimant and of the written undertaking. The delay in informing Kim McLaren of the outcome is all the more remarkable when one notes the timescale specified for implementation of the provisions of the anti-harassment policy, from commencement to conclusion (if the invoking of that policy were to have been deemed appropriate). Very clearly, that latter policy quite properly recognises the need expeditiously to deal with and to resolve workplace disputes in an appropriate manner. No explanation has been provided by the respondent in respect of this delay, save that it has been mentioned again in this context that Kim McLaren was

absent from work.

13. A further issue which is perhaps somewhat surprising in regard to the manner of presentation of the case by the respondent is that no endeavour has been made to appraise the tribunal as to the cause, the nature and the extent of Kim McLaren’s illness. Of course it must be said that that illness is only material to this case insofar as there appears to be some underlying suggestion that the nature and extent of this illness is linked in some way to the alleged conduct of the claimant at Lusty Beg. As the evidence goes, Kim McLaren appears to have been suffering from a pre-existing medical condition of a physical nature prior to the Lusty Beg incident. Kim McLaren then went on sick leave a very short time after the Lusty Beg incident for reasons (as far as the tribunal can assess the evidence) connected with that pre-existing illness. However, albeit in the absence of any further specific evidential material to assist, the tribunal notes that there is some suggestion that there might have been a transition from what was seemingly a purely physical illness towards a stress-related illness. The suggestion appears to be that this was in some way connected with the Lusty Beg events or perhaps might be connected with some type of overall difficulty which Kim McLaren might have had with the claimant’s line-management. However, it must be said that it is difficult for the tribunal to adjudicate upon the extent to which this issue might or might not have featured in the respondent’s thinking in the context of the disciplinary process for want of clear and cogent evidence being adduced. The best assessment that the tribunal can make is that this factor might have had some degree of effect or influence upon the respondent's decision-making. However, in the absence of specific medical information or evidence being adduced, the issue of whether or not the respondent was justified in taking a particular view concerning

cause and effect is very difficult for the tribunal to determine.

14. What is however very clear to the tribunal is that after a rather considerable period of time had elapsed since the date of the Lusty Beg incident, Kim McLaren subsequently wrote to the respondent by letter dated 15 July 2008. The respondent took Kim McLaren's letter to constitute a formal grievance complaint against the claimant. However, from a reading of the letter, the alternative interpretation of the text of the letter is that Kim McLaren was making a complaint against the respondent company. That complaint is that the respondent was not doing sufficient to prevent any further “attacks” (as it was put) on Kim McLaren by the claimant. It must be remembered, in examining this potential interpretation of the letter, that the written undertaking on the claimant’s part had been already shown to Kim McLaren by the date of the letter. It however appears that Kim McLaren took the view that something further was still required on the respondent’s part over and above the written undertaking.

15. In any event, the respondent regarded this letter of 15 July 2008 from Kim McLaren as constituting a grievance complaint. The respondent felt compelled to launch into an investigatory process as a result. A number of witnesses or potential witnesses to the events at Lusty Beg were interviewed by the respondent. Kim McLaren had also made allegations concerning unfair and inconsistent treatment on the claimant’s part alleged to have been visited upon other employees. These allegations were also investigated. What indeed emerged from these investigations and from the witness statements taken by the respondent was very little in terms of any evidence adding substantively to the case against the claimant that had already been present since April 2008. Some witnesses gave evidence that upon the return journey from Lusty Beg, notwithstanding having a sore shoulder, Kim McLaren “laughed and joked” (Geraldine Wilson), or described the incident as “a storm in a teacup” (Eileen Magee). However, some were unable to assist much with any evidential material (Doreen Gallagher or Sonya Hamilton, for example). It must be made abundantly clear, for the avoidance of any doubt, that the tribunal is not concerned in any manner with making its own assessment of the evidential material which was before the respondent at the time of the disciplinary process. The tribunal’s purpose in recording these observations is merely to record the important fact that the respondent's investigation does not appear to have materially added to the evidential sources which were already available to the respondent from the earlier dealings with the claimant in the informal stages of the process. Thus, in effect, there were no new nor any fresh allegations or material evidence emerging as a result of the investigatory process conducted in July 2008.

16. On the respondent’s understanding of what it was obliged to do on foot of the statutory grievance procedures, the respondent dealt with any material gained as the result of the July 2008 investigation by determining that there was a case to answer on the part of the claimant. Thus it was arranged for a disciplinary hearing to take place. First, the respondent wrote to Kim McLaren by letter of 18 September 2008 confirming that her complaint was being upheld and that disciplinary action would be taken against the claimant. It was also pointed out in that letter that Kim McLaren’s allegations of intimidation and inappropriate behaviour directed towards other staff on the part of the claimant were not collaborated by the evidence of other staff members.

17. The disciplinary hearing proceeded and in advance of the hearing the respondent assembled extracts from the evidence of the various witnesses to set out the case, evidentially, against the claimant. In the course of the hearing, the claimant’s representative raised the “double jeopardy” point, submitting that a disciplinary process had already taken place and that there had already been an outcome. It was argued that it was unfair to cause prejudice to the claimant by repeating the process again. The respondent’s stance, as stated by Pauline Leary, was that Kim McLaren had a right to raise a formal grievance and the respondent had no choice but to follow that route. The claimant was permitted in the course of the disciplinary hearing to make her case in response to the allegations via her representative and in doing so she raised, amongst other issues, difficulties in her working relationship with Donal Breslin (thereby alluding to the line managerial difficulties and structural issues which she had endeavoured to bring to the respondent’s attention in the middle of the previous year). The meeting concluded with the claimant stating clearly that, notwithstanding the difficulties, she would do her job. That meeting was followed by a request on the respondent’s part for the claimant to relocate to the Strabane office, with consequent demotion. When that suggestion was declined, the outcome was made known, in that, if the claimant was not prepared to relocate and to suffer

demotion, she was to be dismissed.

18. Looking at all of this, the tribunal harbours considerable concern at the view taken of the seriousness of the situation by the respondent company from the outset and how that view was enhanced and altered as time progressed. As no new information of any weight or materiality was gained by the respondent as a result of the July 2008 disciplinary investigation, the essential facts were already known to the respondent quite soon after occurrence of the events at Lusty Beg. A number of different approaches were available to the respondent arising from the terms of the contractual provisions. Very evidently, the respondent’s view of the matter was that the Lusty Beg episode was not of such a serious or grave nature as might have properly merited the invoking of the contractual disciplinary process for potentially significant or gross misconduct at that time. Thus, again very evidently, the respondent observed the facts of the matter as properly meriting the informal approach. Whether that informal approach might have been better classified under the disciplinary misconduct procedure or under the anti-harassment policy is not entirely clear, as the respondent indeed made no express classification at the time. Yet there was clearly a process engaged in at the time. The record of that process was to be recorded on the claimant's personal file with human resources. That clearly has the characteristics of a disciplinary approach. The appropriateness of the informal approach very evidently and notably coincided with the view of the matter taken by the allegedly injured party, Kim McLaren, at the time. It is certainly the case that if any more serious or significant view had been taken of the matter by the respondent at the time, the formal provisions either of the anti-harassment policy or of the disciplinary policy would have been invoked by the respondent; that was not done. The views of the allegedly injured party was only one factor for the respondent to consider.

19. In the context of the foregoing, the difficulty thereafter is that no information was subsequently imparted to the respondent of any materiality or substance, to properly cause the respondent to elevate the events at Lusty Beg to the level of potential gross misconduct. The only thing which had changed was that Kim McLaren had been off on long term absence from work. She had written to the respondent invoking, as the respondent interpreted it, a grievance complaint against the claimant. The proper interpretation of the letter is a significant issue but, leaving that aside for the moment, the respondent also appears to have had a further difficulty to be resolved. This difficultly was that both Kim McLaren (to whom the respondent had by that stage made this suggestion) and the claimant had refused to be relocated with a view to avoiding one coming into contact with the other in the working environment.

20. Examining the decision to dismiss, the tribunal reminds itself that it is not for the tribunal to substitute its own view for that of the respondent employer. The task of the tribunal is very clear; this is to determine whether or not the respondent’s decision to dismiss fell within or outside the band of reasonable responses of a reasonable employer. In determining whether there has been unfair dismissal in this case, the tribunal has examined carefully the initial stage of the process, immediately after the reporting of the Lusty Beg incident. The tribunal is concerned at the clear and evident disparity between the initial view taken by the respondent on the facts of the matter and the subsequent view. The initial view resulted in an informal approach which seemed to be appropriate for the respondent and which also was the desired approach of the allegedly injured party. However, subsequent to that no proper steps were taken to provide closure to the matter by communicating the outcome of the informal approach to Kim McLaren at the earliest possible time that could be done. This dilatory approach is clearly in breach of the respondent’s anti-harassment policy. That policy does relate to the situation prevailing at the time. The respondent’s management manifestly failed to address and to bring closure to the matter at the time. Thereafter, without any material enhancement of the evidence, which might properly have caused the seriousness of the situation to be reassessed, the matter was then elevated to the level where ultimately the respondent’s view was that gross misconduct had been committed and that dismissal for a first disciplinary offence was merited if the claimant did not accept both a relocation and a demotion.

21. Any employer is properly entitled to classify the nature and the seriousness of alleged misconduct by reference to a reasonable and fair assessment of the actual facts of the matter. However, the tribunal notes that the specific misconduct allegation that was put to the claimant by the respondent was that the claimant had spoken inappropriately to Kim McLaren about her relationship with a senior member of staff within the company and that the claimant had levelled unfounded criticism about Kim McLaren in relation to her work performance, leaving Kim McLaren fearful of her position and that the claimant had refused to leave Kim McLaren's accommodation (at Lusty Beg) when asked to do so. This alleged conduct has been variously described in these proceedings as constituting, “bullying”, “harassment” and “inappropriate conduct”. However, these allegations were present both at the very commencement and also at the very end of the entire process. Nothing substantially had changed looking at the inherent nature of the allegations.

22. There has been clear and very evident procedural unfairness arising on account of the respondent addressing the matter informally and thereby effectively inducing an employee to provide what constituted a fulsome apology in her reasonably-held belief that that would bring an end to the matter. The procedural unfairness then extends to the unexplained and lamentable failure to provide managerial closure to the matter. This procedural unfairness is then compounded by the employer launching into a full scale investigation (based upon a potential misinterpretation of a letter taken to constitute a grievance complaint against the employee and not against the respondent) which, notwithstanding that this investigation disclosed little more, thereafter resulted in the invoking of a full disciplinary process for alleged gross misconduct which ultimately led to the claimant’s dismissal. All of this is very clearly and very obviously procedurally unfair. Also unfair procedurally is the respondent's failure expressly and unambiguously in the initial stages of the process to invoke the contractual provisions, that is to say either the provisions of the disciplinary policy or of the anti-harassment policy, in order that the claimant might know and understand precisely where she stood in terms of these policies.

23. Procedural deficiencies may sometimes be corrected if there were to be an effective rehearing by way of appeal. In this case the appeal was conducted by Dominic McClements. From the outset, it is noted that there has clearly been a misunderstanding on the part of Dominic McClements. In the third paragraph of the minutes of the disciplinary appeal hearing, Dominic McClements has recorded that, after the written undertaking had been signed by the claimant but before the respondent had an opportunity to inform Kim McLaren (who was off on sick leave), Kim McLaren had lodged a formal grievance complaint. Dominic McClements has recorded that the company was statutorily obliged to proceed with this grievance complaint; the tribunal’s comments above as regards the matter of interpretation of the letter dated 15 July 2008 will be noted. Leaving that issue aside, Dominic McClements’ record is in any event not factually correct. Kim McLaren went off on sick leave on 22 April 2008. The claimant signed her written undertaking some two days afterwards, that is to say on 24 April 2008. For some reason the respondent delayed bringing closure to the matter by communicating that undertaking to Kim McLaren until 4 July 2008. That fact that Kim McLaren was quite aware of the existence of this written undertaking is clearly evident from her letter dated 15 July 2008. It is therefore not correct to assert that before the respondent had an opportunity to inform Kim McLaren of the undertaking the latter had lodged a formal grievance complaint.

24. During the disciplinary appeal, it appears that Dominic McClements was in possession of, and seems to have been alluding to, certain medical information concerning Kim McLaren and to some perceived linkage between Kim McLaren's medical condition and the Lusty Beg incident. This information does not appear to have been made available to the claimant. Dominic McClements in the written record of the meeting describes Kim McLaren as being, “off on stress related sick leave”. On the evidence presented in the case, the tribunal was unable to determine if the claimant was ever properly apprised of the cause, nature and extent of Kim McLaren’s medical condition nor in respect of the details of the respondent’s assessment of the cause. It has been noted above that the claimant in the course of a meeting with Jennifer Harvey had expressed surprise at the apparent suggestion that Kim McLaren appeared to be attributing her medical condition to consequences of the Lusty Beg incident. It would be procedurally unfair for factors which might have influenced the respondent’s view not to be fully disclosed to the employee and her representative and it seems, from the evidence available to the tribunal, that that was not done.

25. The tribunal is tasked with the determination of whether or not the respondent’s decision to dismiss the claimant fell within or outside the band of reasonable responses of a reasonable employer. Certainly, at the outset the respondent did not regard the matter as sufficiently serious to warrant the view to be taken that there was potential gross misconduct which might have resulted in the claimant's dismissal and thus a full disciplinary process was not invoked. An allegedly injured party might well consent to the employer choosing to follow an informal approach to the subject matter of any allegations. However, it is the employer’s task to manage and the decision in that regard must be the employer's alone; it cannot abdicate responsibility for disciplinary matters to the allegedly injured employee. Thereafter, for that allegedly injured party to revert many weeks later and to dictate that the informal approach endorsed by that party at the earlier stage is to be cast aside and to insist that the employer follows a fully formal approach under the disciplinary procedures, shall inevitably result in procedural unfairness; that is what has occurred in this case.

26. A matter cannot become more serious and significant, in the absence of clear and objective evidence supporting that view, merely because the allegedly injured party, in this case Kim McLaren, having put matters into abeyance for a period of time, then decides to make some manner of further complaint to the employer, even if that complaint were properly to be classified as constituting a grievance complaint against the claimant and not against the respondent. It is a breach of natural justice and it is procedurally unfair for an employer to address and to dispose of a matter at the employee’s express request, in one fashion and then, at the employee’s subsequent instigation, to embark upon on an entirely separate process and thus reclassify a matter as being much more serious, but without further evidence to justify that approach. Looking at all of this, the tribunal does not accept that the Lusty Beg incident, of itself, was of sufficiently serious a nature to have been the sole and only cause of the dismissal.

27. In this matter the respondent has chosen not to present its case in the alternative, perhaps by relying on there being some other substantial reason such as to justify the dismissal of the claimant. The respondent’s case is entirely confined to the alleged misconduct arising solely from the Lusty Beg incident. That being so, the tribunal does not regard the respondent’s decision to dismiss for the stated reason, that is to say the claimant’s misconduct in relation to the Lusty Beg incident, as falling within the band of reasonable responses of a reasonable employer. On the facts of the matter, the dismissal is properly to be regarded as being unfair both procedurally and also substantively. Accordingly the claimant was unfairly dismissed by the respondent. The appeal procedure as invoked in the matter did nothing to correct the procedural and the substantive unfairness of the original decision to dismiss.

28. Turning to the matter of remedy and to the other issues in the case, firstly, the tribunal notes that there was an application for costs made on the part of the claimant’s representative on account of the alleged delay in production of essential documents and the stated withholding of information. It is certainly the case that the anti-harassment policy was not produced until the third day of the tribunal hearing. However, in the tribunal’s determination, having considered in detail the claimant's representative's submission and all of the issues in the case, the matter does not properly merit an award of costs.

29. In respect of the issue of compensation for the unfair dismissal, the essential information is that the claimant was employed for five years by the respondent and was aged 33 at the effective date of termination of this employment. The claimant's gross wage per week was £477.81 and the nett wage was £364.40.

30. After the termination of employment, the claimant was in receipt of JobSeekers Allowance from 7 November 2008 until 6 January 2009. The claimant then obtained employment with “Red Dot Publications” from 7 January 2009 until 3 June 2009. The claimant then obtained employment with “Local Women” from 6 July 2009 until

10 August 2009. However, from 21 July 2009 until 10 August 2009 the claimant was in receipt of statutory sick pay. Then the claimant received Employment Support Allowance from 10 August 2009 until 5 October 2009. After this the claimant obtained employment with “River Media Newspapers” from 6 October 2009 onwards and she was engaged in that employment at the date of the tribunal hearing. In that latter employment the claimant received a wage that was in excess of the wage earned by her with the respondent. Therefore the tribunal determines that any loss on the claimant's part flowing from this unfair dismissal ceased by 6 October 2009. The tribunal is not satisfied that any failure to mitigate loss on the claimant’s part applies, on the facts of the case. The computation of loss and the tribunal’s award in respect of this loss is therefore set out below.

31. In addition to the foregoing, the claimant has claimed in these proceedings loss of bonus payment in the final year of her employment with the respondent. Examining the facts, there was a discretionary bonus payment arrangement which was connected entirely to the financial performance of the respondent company. From these facts, the tribunal does not determine that any compensation is due to the claimant in respect of this particular head of claim in regard to any alleged loss of a bonus payment.

32. The award as computed is therefore as follows:-

The Basic Award

33. In this case the claimant was employed by the respondent for a continuous period of five years and she was aged 33 years at the effective date of termination of employment. The basic award under these circumstances would ordinarily amount to five weeks pay. The gross pay per week, as agreed, amounts to £477.81. However, the statutory maximum applicable at the time of dismissal (“the relevant event date” being 6 November 2008 – see the Employment Rights (Increase in Limits) Order (Northern Ireland) 2008) in respect of the basic award was £330.00 per week. Taking account of that statutory maximum, the basic award in this case would thus be -

£330.00 x 5 = £1,650.00.

The Compensatory Award

34. Under Article 157 of the 1996 Order the compensatory award is 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. Thus the dismissal must be causally connected to the loss. In this case the end date for the loss flowing from the dismissal is 6 October 2009. As the effective date of dismissal was 6 November 2008, the applicable period for the loss amounts to 47 weeks. The claimant's nett pay upon which the computation of loss is based is agreed at a figure of £364.40 per week. The consequent compensatory award is as follows:-

£364.40 x 47 weeks = £17,126.80

Deductions from the compensatory award:-

(1) monies earned in employment with Red Dot Publications £4,893.92

(2) monies earned in employment with Local Women £686.00

(3) monies received for Statutory Sick Pay £94.98

(4) monies received for Employment Support Allowance £484.00

Total deductions:- £6,158.90

The nett compensatory award is thus £10,967.90

Compensation for Loss of Statutory Rights

35. The tribunal’s award for loss of statutory rights = £250.00.

The Total Award

36. The total of the basic award, the compensatory award and the award for loss of statutory rights is thus £12,867.90.

Recoupment of Benefit from Awards

37. The claimant did receive social security benefits to which the Employment Protection (Recoupment of Job Seeker’s and Income Support) Regulations (Northern Ireland) 1996 apply. The following recoupment of benefit is therefore applicable in this case:-

(a) Monetary Award: £12,867.90

(b) Prescribed Element: £10,967.90

(d) Excess of (a) over (b): £1,900.00

and the attached Recoupment Notice forms part of the decision. Your attention is drawn to the notice below which forms part of the decision of the tribunal.

Interest

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

Chairman:

Date and place of hearing: 17-19 February 2010 and 12 April 2010, Strabane.

Date decision recorded in register and issued to parties:

Case Ref No: 383/09

CLAIMANT: Roisin Kerrigan

RESPONDENT: The North-West Ireland Printing and
Publishing Company Limited

ANNEX TO THE DECISION OF THE TRIBUNAL

STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S
ALLOWANCEIINCOME SUPPORT

1. The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.

                                                                 £
(a) Monetary award                               12867.90
(b) Prescribed element                 10967.90                                                  (c) Period to which (b) relates:    07/11/08 - 06/01/09
(d) Excess of (a) over (b)             1900.00

The claimant may not be entitled to the whole monetary award. Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department of Health and Social Services has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department. The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.

2. The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing. When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.

3. The claimant will receive a copy of the recoupment notice and should inform the Department of Health and Social Services in writing within 21 days if the amount claimed is disputed. The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the claimant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the claimant and regardless of any dispute between the claimant and the Department.