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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McGuigan v FGS McClure Watters [2010] NIIT 6272_09IT (05 July 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/6272_09IT.html
Cite as: [2010] NIIT 6272_09IT, [2010] NIIT 6272_9IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 6272/09
CLAIMANT: Emma McGuigan
RESPONDENT: FGS McClure Watters
DECISION
The unanimous decision of the tribunal is that the claimant was not discriminated against on grounds of sex or sexual orientation. The claimant was unfairly dismissed and the tribunal orders the respondent to pay the claimant the sum of £24,634.89.
Constitution of Tribunal:
Chairman: Mr P Kinney
Members: Dr C Ackah
Mr P McKenna
Appearances:
The claimant was represented by Mr M McEvoy, Barrister-at-Law, instructed by Carson McDowell, Solicitors.
The respondent was represented by Mr Randal, of Peninsula Business Services Limited.
Issues
1. The issues to be determined by the tribunal are as follows:-
(1) Did the respondent unlawfully discriminate against the claimant on the grounds of her gender contrary to Article 6(2) of the Sex Discrimination (Northern Ireland) Order 1976.
(2) Did the respondent unlawfully discriminate against the claimant on the ground of her sexual orientation contrary to Regulation 3 of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006.
(3) Did the respondent subject the claimant to unlawful sexual harassment contrary to Article 6A of the Sex Discrimination (Northern Ireland) Order 1976.
(4) Did the respondent subject the claimant to unlawful harassment on the grounds of sexual orientation contrary to Regulation 3 of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006.
(5) Was the claimant unfairly dismissed by the respondent.
2. At the outset, Mr Randal conceded that the respondent did not follow any redundancy process or statutory dismissal process. It was conceded that there was an automatically unfair dismissal of the claimant by the respondent. However, Mr Randal stated that the respondent would argue that there would have been a dismissal in any event had a fair procedure been followed.
Findings of fact
3. The claimant commenced work with FGS in November 2003 as a manager. FGS merged with McClure Watters in 2006 and became FGS McClure Watters.
4. Eric Munro was a partner in FGS in 2001. He employed the claimant for FGS in 2003. He had previously worked with the claimant in another company and when he heard that she had been made redundant he employed the claimant to be the project manager on two PPP projects, South Eastern Regional College (‘SERC’) and Belfast Metropolitan College (‘BMC’). The claimant reported directly to Mr Munro.
5. The claimant spent most of her time on the two projects. The claimant formed the view that some of the issues on the projects, such as certain delays, were caused by the inefficiency of Mr Munro. She felt that he did not submit requests for fees or the essential supporting documentation for those fees to the client in a timely manner. The claimant felt that the business was going to lose further fee-earning contract management work because of the way the projects were handled by Mr Munro.
6. The SERC project reached financial close in April 2008. The contractual work of the respondent was complete but further fees were outstanding and work was required to support the fees, including a breakdown of the increased figures.
7. In mid-2008 the respondent was requested to put forward a business case on the BMC project on the projected fees. This was completed in September/October 2008. In December 2008, Mr Munro advised his team that there was a substantial reduction in fees proposed by the client. The claimant asserted that Mr Munro took decisions on reducing the fee and apportioning it with sub-contractors without reviewing the financial position of the respondent, thus placing the respondent in a precarious financial position. The claimant decided to highlight her concerns to Niall Rice, the other partner in the PPP team.
8. On 12 December 2008 the claimant sent an e-mail to Mr Munro, copied to Mr Rice, setting out her concerns. In this e-mail she stated:-
“I cannot support the acceptance of the fee-split between the three parties which would leave FGS bearing the vast majority of the ‘pain’.”
9. This e-mail was followed by a meeting later that day between Mr Rice, Mr Munro, the claimant and Ciaran Fitzpatrick, another manager in the Department. At this meeting the claimant again asserted that she could not support Mr Munro. During this meeting Mr Munro raised his voice to the claimant. He did not raise his voice to Mr Fitzpatrick. The reason he raised his voice was to make himself heard as the claimant was interrupting him. The claimant repeated the phrase ‘I cannot support you’ during the meeting. Mr Munro, as part of the grievance process, subsequently sent an e-mail to David Gray, the staff partner on 19 January 2009 which included in reference to this point:-
“I nearly hit the roof at the ‘I cannot support’ comment on 4th line of her e-mail of 12th December but in view of the situation bit my tongue.”
10. The claimant did not raise any complaint or allegation about the conduct of this meeting when she wrote to the respondent on 16 January 2009. However, she did raise an allegation of inappropriate behaviour by Mr Munro relating to events on 15 January 2009.
11. On Monday 12 January 2009 the claimant was called into a meeting with Mr Munro and Mr David Gray, the staff partner. At this meeting the claimant was told that she was being made redundant and she was handed a pre-prepared letter. This letter stated:-
“Further to your meeting today with David Gray and Eric Munro, I confirm that your position has been selected for redundancy on the Last in First Out (LIFO) basis in that you were the last to be employed as a manager within the PPP projects group at Belfast.”
12. The letter also stated that there were no suitable alternative roles to which the claimant could be deployed. The letter was signed by David Gray. The tribunal did not hear any evidence from Mr Gray. However, Mr Munro told us that LIFO was not the correct reason for the redundancy.
13. The claimant wrote to the respondent on 16 January 2009 appealing her dismissal. She set out in her letter that no redundancy procedure had been followed. She stated:-
“Furthermore, I wish to record that the termination of my employment has come against a background where I expressed concern both verbally and in writing about the manner in which Mr Munro conducted the fee negotiation in connection with the South Eastern Regional College and the Belfast Metropolitan College PPP projects. In particular, I highlighted the risks to FGS McClure Watters in accepting the proposed fee-split. I also warned about the risk to FGS from A & L Goodbody and KPMG concerning the fees due to them.”
14. The claimant also stated that in view of the lack of procedure she considered that her treatment was on the grounds of gender and sexual orientation. The claimant then referred to the incident on 15 January 2009 where she said:-
“On Thursday 15th January I was clearing out my desk when Mr Munro approached me in the office floor and started to question what I was doing. Shortly thereafter, Mr Munro called me into his office and made a specific allegation that I had voluntarily contacted FGS clients which was untrue.”
The claimant raised a grievance saying that Mr Munro’s behaviour was threatening and intimidating.
15. The claimant’s appeal was heard on 4 February 2009. She highlighted the deficiencies in the respondent’s decision to dismiss her, including:-
· No notice of the meeting on 12 January 2009.
· No previous mention of possible redundancies.
· No advice of a right to be accompanied, no consultation.
· A breach of the respondent’s own procedures as set out in the Company Handbook.
· No information on the assessment of the appropriate pool.
· No information on the selection criteria.
· She alleged that the decision to dismiss had already been taken. The claimant also pointed out that the purported reason for her selection, LIFO, was wrong.
16. By letter of 20 February 2009 the respondent informed the claimant that her appeal was unsuccessful. It stated:-
“We accept that we did not follow exact procedure and advise that, although we consider there to have been good business and HR reasons why we did not follow procedure, even in light of what you have raised, the outcome would be no different.”
17. The letter neither gave reasons nor any satisfactory answer to the points that the claimant had raised. It went onto say:-
“We believe that we have a genuine redundancy situation and made our selection based on the fact that at Manager grade within your team you had the shortest service.”
Redundancy situation
18. At the board meeting of partners in July 2008, the half-yearly results produced were very poor. In November 2008 it was reported to the partners that the PPP Department would be considerably down on forecast activity. At the partners meeting on 11 December 2008 it was agreed that Ian Duffy and David Gray (both partners in the respondent business) would agree a final list of redundancies and provide it to Greg Sparks (another partner) by Monday 15 December 2008.
19. None of this information was available to the staff, including the claimant. Mr Munro told the tribunal that he made his decision on the names for redundancies from his department in October 2008. It was a financially driven situation. The partners had discussed the difficulties but were concerned that if announcements of redundancies were made it could lead to widespread panic. The partners made a deliberate decision after discussion not to follow the respondent’s redundancy policy.
20. Mr Munro based his decision to choose the claimant for redundancy on a matrix he created. This concentrated on the fee to be generated by each employee. It took into account only the fees that clients were contractually bound to pay. It did not take into account any other potential fee-earning work that could be carried out by employees. The respondent did not have individual billing targets for staff. The team had targets.
21. The decision to make the claimant redundant was not made on the basis of LIFO as the claimant had been told on 12 January 2009. However, Mr Munro was at the meeting on 12 January 2009 and did not correct the error.
22. On 12 December 2008 the respondent placed an advertisement for public sector consultancy positions. The closing date for applications was 9 January 2009. Mr Munro considered that the claimant did not have the skills and abilities for the post which were described as:-
“Due to significant growth in the Consulting Division, a number of exciting opportunities now exist. These range from consultant through to senior managers level … .”
23. The claimant was not advised of the posts or that she could apply for them. The respondent took the view on 12 January 2009 that there was no opportunity for alternative employment with respondent.
24. The respondent’s policy on redundancies states that a ban on permanent recruitment would be used to reduce the head count in advance of considering redundancy.
Discrimination
25. The claimant relied on a number of incidences of alleged discrimination.
26. In 2005 the claimant attended a dinner dance, also attended by Mr Munro and his wife. During the function, the claimant had a conversation with Mr Munro’s wife, in which Mrs Munro made reference to the claimant’s sexual orientation. This made the claimant feel uncomfortable. Mr Munro was not part of that conversation nor did it relate to the respondent or its business.
27. In a date unspecified in 2006, another director made homophobic remarks which upset the claimant. She reported the matter to a partner but did not make a formal complaint. There was no evidence that the director was reprimanded but also no evidence that such behaviour was ever repeated by him.
28. The claimant gave evidence that on a date, again unspecified, in 2007, Mr Munro made a comment regarding his new convertible car, to the effect that he and a male colleague must have looked like ‘two poofs going away for a dirty weekend’. Mr Munro denied making such a comment. The claimant was unable to be precise about when this alleged comment took place even to the month. In her witness statement she said the comment occurred during the afternoon. In cross-examination she said that it was made in late evening. There was no complaint or record of that alleged incident. In these circumstances the tribunal does not consider that the existence of this comment is proved.
29. In March 2008, Mr Munro made a presentation to the staff on staff grades. Mr Munro then migrated a male member of staff from Senior Consultant (a position which only this person held) to Assistant Manager (an existing staff grade). All employees were told that the next level of promotion from manager grade was to director.
30. In November 2007 the claimant perceived that she was replaced as second point of contact on the BMC project by a male colleague. Kevin Dougan was appointed by Mr Munro to deal with a junior member of a client’s project team on the design development process aspect of the project. The claimant remained closely involved in the process, in contact with other parties and attending relevant meetings. The claimant was also very involved in this period in the preparation for the financial close of the SERC project. The claimant perceived that the appointment of Mr Dougan to the design development process was pushing her into a back seat.
31. At a meeting with clients on 10 December 2008 the claimant gave evidence that she told the clients that she and Mr Munro had to leave to participate in a conference call. The claimant said that Mr Munro then commented that if anyone saw them sitting in the car it would not be because they were having a ‘steamy affair’. Mr Munro denied any such exchange took place. There was no corroboration of the events, no complaint made and the claimant did not challenge Mr Munro at any time about making such a statement. On the basis of the evidence heard, the tribunal is not satisfied that these comments were made by Mr Munro.
32. After the claimant was dismissed there followed the dismantling of the PPP team. At the beginning of May 2009, Mr Munro left the Belfast Office to be based in Scotland and to seek work in the Great Britain market. Further redundancies occurred throughout the respondent’s business and these continued throughout 2009 up to and including November 2009.
The law
Redundancy
33. Redundancy is a potentially fair reason for dismissal under Article 130 of the Employment Rights (Northern Ireland) Order 1996 (‘ERO’). It is for the respondent to show the reason for the dismissal. Redundancy is defined in Article 174 of ERO and includes the situation where the dismissal is wholly or mainly attributable to the fact that the requirements of the business for employees to carry out work of a particular kind have ceased or diminished or are expected to cease or diminish.
34. By Article 130(4) of ERO the tribunal should consider whether in the circumstances (including the size and the administrative resources of the respondent) the respondent acted reasonably or unreasonably in treating redundancy as a sufficient reason for dismissing the claimant.
35. Williams v Compair Maxim Ltd [1982] IRLR 83 provides guidance on the standards to expect in determining whether a dismissal for redundancy is fair. This includes:-
(a) The employer providing as much warning as possible of impending redundancies.
(b) Consultation by the employer with the employee.
(c) Establishing objective criteria for selection such as attendance records, length of service, efficiency at the job or experience.
(d) The employer should seek to see whether instead of dismissing an employee they could offer alternative employment.
36. The tribunal should not substitute its own view for that of the employer.
37. The statutory dismissal and disciplinary procedure (DDP) is set out in Schedule 1 of the Employment (Northern Ireland) Order 2003. In this case the respondent accepts that it failed to comply with the DDP. Article 130A(2) of ERO provides that if the employer does not comply with the DDP the dismissal will be automatically unfair. By Article 154(1)(a) the claimant is entitled to a minimum basic award of four weeks unless the tribunal considers such an increase would result in injustice to the employer.
38. If the DDP is not followed by the employer, Article 17 of the Employment (Northern Ireland) Order 2003 provides that any compensatory award made to the claimant will be increased by 10 to 50 per cent. In Cex Ltd v Mark Lewis [2007] UKEAT/0013/07/1008 it was stated that the discretion of a tribunal to adjust the compensatory award is a broad discretion.
39. Article 130A of ERO also provides that failure to follow a procedure shall not be regarded by itself as making the employer’s action unreasonable if it shows that it would have decided to dismiss the employee if it had followed the procedure.
Discrimination
40. A person discriminates against another if on grounds of that person’s gender or sexual orientation he treats that other less favourably than he treats or would treat other persons. The claimant must show that she has been treated less favourably than the person or person with whom she compares herself. The comparator, actual or hypothetical, should share the characteristics of the claimant which are relevant to the case. The claimant must also establish if any less favourable treatment was by reason of the proscribed ground. Unreasonable treatment does not of itself give rise to an inference of unlawful discrimination. The Court of Appeal provided guidance on how to apply the burden of proof in discrimination cases in Igen v Wong [2005] EWCA Civ 142. The claimant must show facts from which the tribunal could, in the absence of an adequate explanation, conclude that the respondent had committed an unlawful act of discrimination. Once the tribunal so concludes, the burden then shifts to the respondent to prove that it did not commit an unlawful act of discrimination.
41. The Court of Appeal in the case of Madarassy v Nomura International PLC [2007] IRLR 246 said:-
“The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that on the balance of probabilities the respondent had committed an unlawful act of discrimination. ‘Could conclude’ in Section 63A(2) must mean that ‘a reasonable tribunal could properly conclude’ from all the evidence before it.”
42. In Laing v Manchester City Council [2006] IRLR 748, Mr Justice Elias said:-
“The focus of the tribunal’s analysis must at all times be the question whether or not they can properly and fairly infer race discrimination. If they are satisfied that the reason given by the employer is a genuine one it does not disclose either conscious or unconscious racial discrimination and that is the end of the matter. It is not improper for a tribunal to say in effect ‘there is a nice question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race’.”
43. In the recent decision of the Northern Ireland Court of Appeal in the case of Nelson v Newry & Mourne District Council [2009] NICA 24, Lord Justice Girvan referred to Madarassy and said:-
“This approach makes clear that the complainant’s allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination. The whole context of the surrounding evidence must be considered in deciding whether the tribunal could properly conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination.
In Curley v Chief Constable of the Police Service of Northern Ireland [2009] NICA 8, Lord Justice Coghlin emphasised the need for a tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination. The need for the tribunal to retain such a focus is particularly important when applying the provisions of Article 63A. The tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination.”
44. A claim for discrimination on grounds of sex or sex orientation must be presented within three months of the act complained of. However, there can be situations where claimants will say that they have been subjected to ongoing or continuing discrimination over a substantial period. In these situations the earlier manifestation of the continuing act will be in time, providing that the last manifestation is in time. In Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96, the Court of Appeal gave guidance for determining whether there is an act extending over a period, as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed. The Court of Appeal held that the focus on determining there was an act extending over a period should be on the substance of the complaints that the employer was responsible for an ongoing situation or a continuing state of affairs.
45. The definition of ‘harassment’ covers a situation where a person engages in unwanted conduct which has the purpose or effect of violating another person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that other person. In addition, it will cover unwanted conduct which has any of these effects provided that it can reasonably be considered as having the effect in question.
The tribunal’s conclusions
46. The respondent has conceded that the redundancy procedure in this case was not followed and that the statutory dismissal procedure was not followed. The respondent accepts that there is, in these circumstances, an automatic unfair dismissal. The respondent argues, however, that the claimant should not receive any compensation as she would have been dismissed in any event had a fair procedure been followed.
47. The tribunal has carefully considered the facts found and we took into account, in particular, the following:-
(a) The respondent took a deliberate decision not to comply with its redundancy policy. It was not a mere oversight.
(b) There were no consultations, no warnings of the risk of redundancies, no search for voluntary redundancies, no suggestions invited from the workforce. Again the respondent made a conscious deliberate decision not to take these steps.
(c) The criteria for dismissal were not discussed with staff nor would it appear that the same criteria were used by all the partners. Mr Munro created a matrix for his own use in deciding which name should go forward for redundancy from his section of business.
(d) There was no clear evidence on how the claimant and how Mr Cherry were finally chosen for redundancy. Mr Munro said he made his decision on who to nominate for redundancy in October 2008. However, at the partners meeting on 11 December 2008, two other partners, Ian Duffy and David Gray, were required to agree a final list of redundancies and provide it to Greg Sparks by 15 December 2008. The tribunal heard no evidence from any of these partners and the precise process by which the claimant’s name went forward is unclear. Also unclear is whether any other names were on such a list or how they were then treated.
(e) The claimant was told the reason for her redundancy was ‘last in first out’. However, Mr Munro was present at the meeting on 12 January 2008 when the claimant was dismissed, knew this reason was wrong and did nothing to correct the error.
(f) The claimant, despite not being advised of a right of appeal, did in fact appeal. The appeal letter endorsed the decision to dismiss and whilst acknowledging that ‘we did not follow exact procedure’ provided a further flawed reason for the decision which was at odds with the reason provided by Mr Munro in evidence.
(g) The claimant was not informed of the possibility of alternative employment being advertised just before she was dismissed.
48. We conclude from these, that because of the deliberate failure of the respondent to follow its own policy, including the appeal process, and the substantial inconsistencies in the information provided to us by the respondent, we are not satisfied that the dismissal would have followed in any event if a fair redundancy procedure had been adopted.
49. We have also considered carefully the facts found on the evidence before us of discrimination and harassment on the grounds of sex and sexual orientation. We have determined that we are not satisfied that two of the events alleged by the claimant happened as described by her. We do not consider that there are facts from which we could conclude, in the absence of explanation, that discrimination on the unlawful grounds has occurred.
50. The tribunal did not consider that the acts complained of constituted an act extending over a period of time. Insofar as we found any of the acts happened as alleged, they were discrete events. We did not in any event consider that the alleged remarks of Mrs Munro at the dinner dance in 2005 should be attributed to the respondent, or that the respondent had any control or authority over Mrs Munro.
51. The height of the claimant’s claim relating to the alleged homophobic remarks in 2006 is that they happened, she spoke to a partner, and there were no further such incidents. We did not consider the appointment of another manager as a point of contact on the design development process of the BMC project as a matter on which we could conclude that an act of discrimination had occurred.
52. In relation to the events from December 2008 to early 2009 the tribunal has similarly concluded that we should not transfer the burden of proof. On the facts as found, the relationship between the claimant and Mr Munro deteriorated mainly over disagreements between them on the handling of the BMC and SERC projects, culminating in the e-mail from the claimant of 12 December 2008 and the meeting which followed. We do not consider that the claimant’s gender or sexual orientation played any part in the decision to dismiss her. In reaching this conclusion we were mindful of the guidance given in the line of authorities from Madarassy through to Nelson. The tribunal considered the context of the surrounding evidence. In this regard the tribunal had the advantage of seeing and hearing both the claimant and Mr Munro in giving their evidence. The tribunal is not satisfied that the treatment of the claimant was tainted by sex discrimination. For these reasons the claims of discrimination are dismissed. Similarly, the tribunal does not consider that the claimant suffered harassment on the grounds of her sex or sexual orientation.
53. Remedy
Basic Award
The claimant has already been paid a redundancy payment which equates to the basic award for unfair dismissal. This exceeds the minimum basic award for automatically unfair dismissal and no further basic award is due.
Compensatory Award
The claimant’s net weekly wage is agreed at £701.25. It is agreed the claimant was paid notice pay, so her loss arises from 16 April 2009. The respondent made further redundancies in the business throughout 2009 and up November 2009. The PPP team, that the claimant was part of, was disbanded in and around May 2009.
The claimant had sought employment. However, for many of the posts she gave evidence about she did not satisfy the essential criteria and a number of those identified by her in evidence she had not in fact applied for. The claimant had also applied for another post prior to her dismissal.
The tribunal has determined that it is unlikely that the claimant would have survived the last round of redundancies and could have taken a broader view in relation to seeking new posts. The claimant’s loss therefore is determined for the period from 16 April 2009 to 30 November 2009.
35 weeks x £701.25 £24,543.75
From this should be deducted the ex-gratia redundancy payment of £ 4,697.40
From this should also be deducted the monies received by the
claimant during the same period. From the evidence and
information available to the tribunal we estimate this figure £ 2,500.00
Leaving a sum due of £17,346.35
The tribunal also awards the sum of £350 for loss of statutory rights.
The tribunal must also consider what uplift to apply to the compensatory award. In reaching its conclusion the tribunal took into account the following matters:-
(a) The size of the respondent’s business – some 300 employees and 30 partners.
(b) The respondent had a dedicated HR Resource.
(c) The respondent had a redundancy policy.
(d) The respondent deliberately decided not to follow its policy. The matter was expressly considered at a partners meeting and it was decided to, in effect, conceal the redundancies.
(e) The respondent gave a wrong reason for the redundancy on 12 January 2009 and again on appeal.
(f) Mr Munro was present at the meeting of 12 January 2009 and even though the reasons given for the claimant’s dismissal was wrong, he did nothing about it and no accurate reason was given to the claimant for the respondent’s decision to dismiss.
In these circumstances it cannot be said that the respondent acted out of ignorance or a lack of knowledge or resources. In our view, the uplift should be towards the upper end of the band and we consider the appropriate uplift in this case to be 40%.
The total compensation due to the claimant is therefore £17,346.35 plus 40% uplift making a total of £24,284.89 together with the loss of statutory rights of £350 making a total figure of £24,634.89.
54. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Recoupment
55. The Recoupment Regulations apply. Attention is drawn to the notice below, which forms part of this Decision.
Chairman:
Date and place of hearing: 12 – 15 April 2010, Belfast
Date decision recorded in register and issued to parties:
Case Ref No: 6272/09
CLAIMANT: Emma McGuigan
RESPONDENT: FGS McClure Watters
ANNEX TO THE DECISION OF THE TRIBUNAL
STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME 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 |
24,634.89 |
|
(b) Prescribed element |
17,346.35 |
|
(c) Period to which (b) relates: |
16 April 2009 – 30 November 2009 |
|
(d) Excess of (a) over (b) |
7,288.54 |
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 Social Development 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 Social Development 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.