Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Muckle v Neil Wallace [2010] NIIT 121_10IT (17 June 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/121_10IT.html
Cite as: [2010] NIIT 121_10IT
[New search] [Printable RTF version] [Help]
THE INDUSTRIAL TRIBUNALS
CASE REF: 121/10
CLAIMANT: David Muckle
RESPONDENT: Neil Wallace
DECISION
The unanimous decision of the tribunal is that the respondent is to pay to the claimant compensation of £23,484.29.
Constitution of Tribunal:
Chairman: Mrs M Watson
Members: Mrs M Galloway
Mr W Irwin
Appearances:
The claimant was represented by Mr G Grainger, Barrister-at-Law instructed by the Equality Commission.
The respondent was not entitled to take part in these proceedings because he had not submitted any response to the claim.
1. Issues for determination
The claimant had lodged a claim form on 30 December 2009. No response was presented by the respondent within the statutory time limits and a Default Judgement was made under Rule 8 of the Industrial Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 on 15 March 2010 upholding the claimant’s complaints of Age Discrimination, Right to Paid Annual Leave, Failure to pay a Redundancy Payment, Breach of Contract (Notice Pay and Holiday Pay) and Unfair Dismissal. The issue for this tribunal hearing was to determine the total compensation payable by the respondent to the claimant as compensation on foot of that Default Judgement.
2. Facts
The claimant is aged 68 years. He was employed by the respondent as a Digger Driver since about 1991, initially on a self employed basis, but from 6 April 1997, as an employee.
At the beginning of October 2009, the claimant was told by the respondent that there was no work for him. On 12 October 2009, the respondent called to the claimant’s home and gave him a P45 dated 2 October 2009. The claimant was informed that there would be no further work for him.
Prior to his dismissal, the claimant was paid £202.20 per week gross, £175 net. He was also in receipt of state pension of £115.99 per week. He had annual holiday entitlement of 20 days between 1 April and 31 March. In the leave year beginning April 2009, he had taken 10 days leaving 1.66 days owing at 2 October 2009.
The claimant did not receive any redundancy payment, holiday pay or notice pay when he left. Nor was he invited to any meeting to discuss the termination of his employment or informed of his right of appeal against the decision to terminate his employment.
At the date of termination of the claimant’s employment, he was the respondent’s longest serving employee. He was also the only member of the workforce who held a HGV Licence, which he renewed each year, and therefore the only employee qualified to drive heavy plant on low loaders. He is aware that other younger employees were retained and are carrying out his former duties, albeit none hold the relevant licence.
On several occasions the claimant had discussed his continuing employment with the respondent. The claimant had informed the respondent that he needed to continue in employment until his 70th birthday as he had an endowment mortgage until that time and he was aware that there would be a shortfall in his endowment policy on maturity.
The claimant satisfied the tribunal that he had made efforts to secure alternative employment since his dismissal but has been unable to find any work due to the downturn in available work in the construction industry.
3. Relevant Legal Provisions
The Employment Rights (Northern Ireland) Order 1996 (as amended), [ERO], provides at Article 197 that an employee who has been made redundant (as defined in Article 174), is entitled to receive a Redundancy Payment calculated by reference to the employee’s age and length of service.
Article 118 of the ERO provides that an employee is entitled to receive a week’s pay for each full year of employment up to a maximum of 12 years.
Under the terms of the employment contract, an employee is entitled to receive payment in respect of any holiday entitlement not taken at the date of termination.
An employee who is unfairly dismissed is entitled to be paid a Basic Award and a Compensatory Award. The Basic Award is not payable where the claimant will receive a redundancy payment. [Article 156(3) ERO] The Compensatory Award is “such amount as the tribunal considers just and equitable … having regard to the loss sustained by the claimant in consequence of the dismissal…”
The respondent did not follow the statutory Dispute Resolution Procedures set out in the Employment (Northern Ireland) Order 2003. Article 17(3) of the 2003 Order provides that a tribunal, in assessing the compensation payable where the employer has failed to follow the procedures, shall increase the award by 10% to 50%, “if it considers it just and equitable in all the circumstances to do so”. The claimant was not invited to attend a meeting with his employer to discuss the proposed dismissal and was not informed of his right of appeal. The failure to comply with the statutory requirements is wholly attributable to the employer.
The respondent has been held to have unlawfully discriminated against the claimant on grounds of age by treating him less favourably than those younger employees who were retained even though the claimant was better qualified and more experienced than they were. This unlawful discrimination caused injury to the claimant’s feelings.
The claimant has also lost the statutory protection afforded by the period of continuous employment that has been lost by the dismissal.
4. Tribunal’s Determination
Applying the above statutory provisions to the facts found, the tribunal determines the compensation payable by the respondent to the claimant is as follows:
A. Redundancy Payment / Basic Award £202.20 x 1.5 x 12 = £3,639.60
B. Notice Pay = £175 x 12 = £2,100.00
C. Holiday Pay
Accrued leave
11.6 days less 10 taken = 1.6 days @ £175 ÷ 5 = £56.00
Total = £5,795.60
D. Compensatory Award
Loss of wages from date of termination to date of hearing
= 34 weeks @ £175 = £5,950.00
Income from retirement pension
2 October 2009 until 9 April 2010 = 27 weeks @ £115.99 = £3,131.73
+ 10 April 2010 until 27 May 2010 = 7 weeks @ £118.39 = £828.73
Total pension = £3,960.46
Total income if continued employment (wages + pension) = £9,910.46 (a)
Claimant’s actual income from 2 October 2009 to 27 May 2010
Total income from Pension Credit £1,350.43
Income from state pension £3,960.46
Total £5,310.89 (b)
Claimant’s total loss of income = (a) – (b) £4,599.57
Total loss = £5795.60 + £4599.57 = £10,395.17
Future Loss
The claimant’s weekly pension is £118.39 per week which £56.61 per week less than his net pay. He had intended to continue working until his 70th birthday. His future loss is
87 weeks @ £56.61 = £4,925.07
Loss of statutory rights
The tribunal assessed this award at £250.00 £250.00
Injury to feelings
The tribunal has assessed this award at £4,000.00 £4,000.00
Total of above awards £19,570.24
Increase under Article 17 of the 2003 Order is 20% £3,914.05
TOTAL AWARD £23,484.29
5. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 27 May 2010, Belfast.
Date decision recorded in register and issued to parties: