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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McBride v Gerard McLarnon T/A McLarnon F... [2010] NIIT 06170_09IT (11 February 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/06170_09IT.html
Cite as: [2010] NIIT 06170_09IT, [2010] NIIT 6170_9IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 06170/09
CLAIMANT: Michael Gerard McBride
RESPONDENT: Gerard McLarnon
T/A McLarnon Family Hotels & Inns
DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed and awards him £25,761.84. The tribunal also makes a declaration that the respondent failed to provide written particulars of employment in compliance with Article 33 of the Employment Rights (Northern Ireland) Order 1996.
Constitution of Tribunal:
Chairman: Mr I Wimpress
Panel Members: Ms J Townsley
Mr I Rosbotham
Appearances:
The claimant was unrepresented and appeared on his own behalf
The respondent did not appear
The Claim and the Response
1. The claimant brought proceedings against the respondent in respect of unfair dismissal, breach of contract, failure to provide written terms and conditions of employment and breach of the Working Time Regulations (Northern Ireland) 1998. The respondent did not file a response and did not appear at the hearing.
Sources of Evidence
2. The claimant provided the tribunal with a small bundle of relevant documents and gave oral evidence.
The Facts
3. The claimant’s date of birth is 14 March 1969. The claimant was employed by the respondent from 9 April 1996 to 22 March 2009. He was initially employed as duty manager and subsequently as an assistant manager in the Adair Arms Hotel. The claimant was not provided with written terms and conditions of employment neither when he took up his position or at any time thereafter despite repeated requests. The claimant’s gross average weekly pay was £456.86 and his net weekly pay was £350.00. The claimant worked for 55 hours per week on average. He frequently asked the proprietor, Mr McLarnon, for his hours to be reduced but to no avail. The claimant was one of two duty managers and his work pattern was based on a two roster system. This involved working early shifts, late shifts or split shifts. If the claimant was on a split shift on a Friday or a Saturday he would work from 7.00 am to 4.00 pm and then from 6.00 pm to the end of the working day which could be as late as 1.00 or 2.00 am the following morning. The claimant had two days off per week. The days off would vary but would rarely include weekends. While it is clear that the claimant worked long hours which would range from 55 to 60 hours per week there was no suggestion that he was deprived of rest breaks.
4. On Sunday 22 June 2008, there was a disagreement between Mr McLarnon and the claimant about the claimant’s starting time on the rota. According to the claimant Mr McLarnon became agitated and abusive and this became worse when the claimant once more attempted to raise the matter of his hours. Mr McLarnon told the claimant to go home several times. Mr McLarnon then told the claimant that he should not leave as he had not finished his shift and that he was sacked. At a subsequent meeting on 1 July 2008, the claimant’s dismissal was withdrawn by Mr McLarnon. At the same meeting the claimant again asked for a reduction in hours and a contract of employment. Mr McLarnon was again unreceptive to a reduction in hours and made it plain that the claimant would not be provided with a contract of employment.
5. On Sunday 22 March 2009, Mr McLarnon asked the claimant to attend a meeting in an upstairs room in the hotel. At the meeting Mr McLarnon criticised the claimant’s work and became increasingly abusive to the claimant. Mr McLarnon accused the claimant of not communicating with him and having no interest in or commitment to the job. Mr McLarnon became angry when the claimant attempted to disagree with him and would not allow the claimant an opportunity to respond. Mr McLarnon then told the claimant that he was fired. The claimant claimed that he received no notice or pay in lieu of notice. However, the claimant’s P45 gave a leaving date of 4 April 2009 and total gross pay of £24,063.52. It is clear therefore that the claimant received two weeks pay beyond the termination of his employment.
6. The claimant diligently sought new employment and ultimately secured the post of restaurant manager at the Bushtown House Country Hotel where he commenced employment on 21 September 2009. The claimant’s annual salary with that establishment is £19,000.00 (£365.38 gross per week, £289.28 net) which is to be reviewed on 21 March 2010. A pay increase is possible but the claimant’s pay may well remain as it stands.
7. The claimant gave evidence that he was in receipt of Jobseekers Allowance throughout his period of unemployment. Having regard to the claimant's P45 and the date on which he commenced employment at Bushtown House Country Hotel, it is clear that the claimant would not have received Jobseekers Allowance prior to 4 April 2009 or beyond the week commencing on 14 September 2009.
The law
8. The relevant statutory provisions are found in Articles 33, 118, 130, 130A and 158A of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”), Articles 17 and 27 of the Employment (Northern Ireland) Order 2003, the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004, the Industrial Tribunals Extension of Jurisdiction (Northern Ireland) Order 1994 and the Working Time (Northern Ireland) Regulations 1998.
9. Article 118 of the 1996 Order provides as follows:
“(1) The notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for one month or more—
(a) is not less than one week's notice if his period of continuous employment is less than two years,
(b) is not less than one week's notice for each year of continuous employment if his period of continuous employment is two years or more but less than twelve years, and
(c) is not less than twelve weeks' notice if his period of continuous employment is twelve years or more.
(2) The notice required to be given by an employee who has been continuously employed for one month or more to terminate his contract of employment is not less than one week.
(3) Any provision for shorter notice in any contract of employment with a person who has been continuously employed for one month or more has effect subject to paragraphs (1) and (2); but this Article does not prevent either party from waiving his right to notice on any occasion or from accepting a payment in lieu of notice.
(4) Any contract of employment of a person who has been continuously employed for three months or more which is a contract for a term certain of one month or less shall have effect as if it were for an indefinite period; and, accordingly, paragraphs (1) and (2) apply to the contract.
(5) This Article does not affect any right of either party to a contract of employment to treat the contract as terminable without notice by reason of the conduct of the other party.
10. Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides as follows –
130— (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –
(a) the reason (or, if more than one, the principal reason) for the dismissal, and
(b) that it is either a reason falling within Paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2) A reason falls within this paragraph if it –
(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b) relates to the conduct of the employee,
(c) is that the employee was redundant, or
(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under a statutory provision.
11. Article 130A of the same Order makes provision in relation to procedural
fairness as follows:
130A.—(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if—
(a) one of the procedures set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (dismissal and disciplinary procedures) applies in relation to the dismissal,
(b) the procedure has not been completed, and
(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.
(2) Subject to paragraph (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.
(3) For the purposes of this Article, any question as to the application of a procedure set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under Article 17 of that Order.
12. Article 33 of the 1996 Order provides that an employer shall provide an employee with a statement of employment particulars when he begins employment.
13. Article 17 of the Employment (Northern Ireland) Order 2003 makes provision for increasing awards for non compliance with the statutory procedures by employers as follows:-
17. - (1) This Article applies to proceedings before an industrial tribunal relating to a claim under any of the jurisdictions listed in Schedule 2 by an employee.
(3) If, in the case of proceedings to which this Article applies, it appears to the industrial tribunal that –
(a) the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies,
(b) the statutory procedure was not completed before the proceedings were begun, and
(c) the non-completion of the
statutory procedure was wholly or mainly attributable to failure by the employer to comply with a requirement of the procedure,
it shall, subject to paragraph (4), increase any award which it makes to the employee by 10 per cent and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50 per cent.
(4) The duty under paragraph (2) or (3) to make a reduction or increase of 10 per cent does not apply if there are exceptional circumstances which would make a reduction or increase of that percentage unjust or inequitable, in which case the tribunal may make no reduction or increase or a reduction or increase of such lesser percentage as it considers just and equitable in all the circumstances.
(5) Where an award falls to be adjusted under this Article and under Article 27, the adjustment under this Article shall be made before the adjustment under that Article.
14. Accordingly, if an employer wishes to dismiss an employee it must go through the statutory dismissal procedure. In a case of summary dismissal as occurred in the present case the modified procedure applies. The modified procedure requires that, having summarily dismissed the employee, the employer must write to the employee to set out the reasons for dismissal and must advise the employee of his right to appeal. If the right to appeal is exercised there must be a meeting and the outcome of that appeal must be communicated to the employee. If the failure to follow the statutory procedure is because the employer is at fault the tribunal must increase the compensatory award for unfair dismissal by 10% and may increase that award by a percentage up to 50%.
15. Article 27 of the Employment (Northern Ireland) Order 2003 makes provision for increasing an award in cases where the employer has failed to provide written particulars of employment by either a minimum amount of 2 weeks pay or a higher amount of 4 weeks pay if the tribunal considers it just and equitable in all the circumstances.
16. Article 158A of the 1996 Order provides as follows:
Where an award of compensation for unfair dismissal falls to be—
(a) reduced or increased under Article 17 of the Employment (Northern Ireland) Order 2003 (non-completion of statutory procedures); or
(b) increased under Article 27 of that Order (failure to give statement of employment particulars),
the adjustment shall be in the amount awarded under Article152(1)(b) and shall be applied immediately before any reduction under Article 157(6) or (7).
17. The Working Time (Northern Ireland) Regulations 1998 impose a limit of an average 48 hours a week on the hours a worker can be required to work. The Regulations also make provision for rest breaks and time off work.
Conclusions
18. The main thrust of the claimant’s case was that he was unfairly dismissed. The onus is on the respondent to prove that the dismissal was fair. The respondent has shown no reason for the dismissal and the tribunal therefore finds that the dismissal was unfair.
19. In addition, under Article 130A of the 1996 Order an employee is regarded as automatically unfairly dismissed if the statutory dismissal and disciplinary procedures have not been followed due to the employer’s failure. As it is clear that no procedures whatsoever were followed in this case the dismissal of the claimant was also automatically unfair.
20. The claimant also complained that he did not receive notice pay or pay in lieu of notice. In accordance with the claimant’s service he would have been entitled to twelve weeks notice. On the basis of the claimant’s P45 it is clear to us that the claimant did in fact receive two weeks pay after the termination of his employment. We are satisfied that in all probability the claimant’s final wages were forwarded to him without any mention of notice pay and that although not expressly stated by the respondent the claimant did receive one week’s notice pay. In these circumstances we are satisfied that the correct course is to reduce the award of notice pay by one week to eleven weeks.
21. The claimant’s complaint about working hours did not extend beyond being required to work over 48 hours per week on a regular basis and no monetary or other remedy is within the jurisdiction of this tribunal.
22. The other remaining head of complaint is the respondent’s failure to provide written particulars of employment and there is no evidence to rebut the claimant’s complaints in this regard. We are therefore satisfied that the claimant must succeed on this ground as well.
23. Our conclusions on the issues raised in these proceedings are therefore as follows:
(1) The claimant was unfairly dismissed.
(2) The claimant is clearly entitled to an award based on 13 years service.
(3) The claimant is entitled to 11 weeks notice pay.
(4) The claimant was summarily dismissed and the respondent made no attempt to comply with the modified statutory dismissal procedure. In all the circumstances we consider it just and equitable to uplift the award by twenty percent.
(5) Although the claimant regularly worked in excess of 55 hours per week in contravention of the Working Time (Northern Ireland) Regulations 1998 no remedy is available to him in this forum.
(6) The claimant is entitled to a declaration that the respondent failed to provide written particulars of employment in compliance with Article 33 of the 1996 Order. In accordance with Article 27 of the Employment (Northern Ireland) Order 2003, the tribunal considers it just and equitable to increase the claimant’s compensation by the higher amount specified in Article 27 having regard to the respondent’s persistent refusal to provide the required particulars.
AWARD
24. Basic Award
£350 x 1 x 13
(£456.86 gross weekly wage
reduced to statutory maximum) £4,550.00
Compensatory Award
£350 x 35 (net wage) £12,250.00
Less actual earnings (£289.28 x 8) £2,314.24
Sub-total £9,935.76
20% uplift of compensatory award for failure to follow
statutory procedures £1,987.15
Article 27 uplift - 4 weeks wages for failure to provide
written particulars of employment (£350 x 4) £1,400.00
Sub-total £13,322.91
Notice Pay (£350 x 11) £3,850.00
Future Loss
£350 x 52 £18,200.00
Less anticipated future earnings (£289.28 x 52) £15,042.56
Sub-total £3,157.44
20% uplift of future loss element compensatory
award for failure to follow statutory procedures £631.49
Sub-total £25,511.84
Loss of Statutory Rights £250.00
TOTAL AWARD £25,761.84
25. The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996 apply in this case. Rule 4(3) requires that the tribunal set out:-
(a) the monetary award;
(b) the amount of the prescribed element, if any;
(c) the dates of the period to which the prescribed element is attributable; and
(d) the amount if any by which the monetary award exceeds the prescribed element.
26. For the purposes of these proceedings the monetary award is £25,761.84. The prescribed element is the amount of compensation for loss of earnings from the claimant’s dismissal on 22 March 2009 up to the date of the hearing. The tribunal finds that the amount of the prescribed element is £9,935.76. The amount by which the monetary award exceeds the prescribed element in this case is £15,826.08.
27. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 25 November 2009, Belfast.
Date decision recorded in register and issued to parties: