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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Stevenson v GWM Developments Limited [2010] NIIT 6656_09IT (02 June 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/6656_09IT.html
Cite as: [2010] NIIT 6656_9IT, [2010] NIIT 6656_09IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 6656/09
CLAIMANT: Joanne Stevenson
RESPONDENT: GWM Developments Limited
DECISION
The unanimous decision of the Tribunal is that the respondent unfairly dismissed the claimant and the respondent is ordered to pay the claimant £54,508.95 compensation in this regard and that the respondent unlawfully discriminated against the claimant on the ground of her sex and that the respondent is ordered to pay the claimant £7,000.00 compensation for injury to feelings in this regard.
Constitution of Tribunal:
Chairman: Ms P Sheils
Members: Mr I O’Hea
Mr J Patterson
Appearances:
The claimant appeared and represented herself.
The respondent did not appear and was not represented.
THE CLAIM AND THE RESPONSE
1. The claimant lodged a claim form on 23 July 2009 claiming that she had been discriminated against on the grounds of her sex, that she had been unfairly
dismissed and that she was owed outstanding unpaid holiday pay, pay in lieu of notice and unpaid wages.
2. A response was presented on 23 September 2009 by Dundas and Wilson CS LLP on behalf of the respondent accepting that the respondent had dismissed the claimant on 24 April by reason of redundancy and denying that the respondent had discriminated against the claimant on the grounds of her sex or that the claimant’s dismissal was procedurally or substantially unfair.
3. The response also denied that the claimant was due any unpaid wages, unpaid holiday pay or notice pay. The response also indicated that the respondent is in administrative receivership and has no available funds for legal fees and that the respondent was not in a position to actively defend the claim.
SOURCES OF EVIDENCE
Witnesses
4. The Tribunal heard from the claimant.
Documents
5. The Tribunal considered the claim form, the response, all documentation on the Office file and supplementary documents furnished to it by the claimant on the morning of the hearing.
THE ISSUES
6. The Tribunal identified the following issues in this case:-
(1) Unfair dismissal – had the claimant been unfairly dismissed by virtue
of the respondent’s failure to comply with the Statutory Dismissal
Procedures;
(2) Had the claimant been unfairly selected for redundancy by virtue of the respondent’s failure to comply with any redundancy procedures;
(3) Had the claimant been unfairly selected for redundancy.
Sex Discrimination
7. Had the claimant been treated less favourably on the grounds of her sex in relation to the selection of her for redundancy either in relation to the retention of Mr Jim Orchin who was not selected for redundancy or on the basis that she was pregnant at the time of the selections for redundancy.
Holiday Pay
8. That the holiday pay paid to the claimant from the National Insurance Fund was incorrect and less than her entitlement.
Redundancy Pay
9. This had been paid to the claimant and was not disputed.
Outstanding Wages
10. Whether there was outstanding wages unpaid in relation to the difference in pay between the amount last received by the claimant from the respondent and her usual monthly salary.
Notice Pay
11. Whether the claimant had been paid any or any sufficient notice pay.
THE HEARING
12. The Tribunal had first to consider whether it could hear this case in the absence of the respondent. In this regard the Tribunal directed its attention to Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 where at rule 27 paragraph (5) it states:
“…if a party fails to attend or to be represented (for the purpose of conducting the party’s case at the hearing under rule 26) at the time and place fixed for such hearing, the tribunal may dismiss or dispose of the proceedings in the absence of that party or may adjourn the hearing to a later date”.
13. The Tribunal went on to have regard to rule 27 paragraph (6) which provides that:
“..if a tribunal wishes to dismiss or dispose of the proceedings in the circumstances described in paragraph (5), it shall first consider any information in its possession which has been made available to it by the parties”.
14. The Tribunal noted that in the response presented by the respondents that “the respondent is not in a position to actively defend the claim”. The Tribunal also noted that by letter dated 14 October 2009 and in reply to an invitation to attend a case management discussion, the respondent’s solicitor, Mr Gordon Barr, indicated that the respondent company was in administrative receivership and had insufficient available funds to instruct an active defence of this claim.
15. The letter went on to add “Accordingly, we write to advise that the respondent will be unrepresented at the aforementioned Case Management Discussion. However, we would be grateful if you would continue to communicate with us and provide us with an update in terms of the outcome of this Case Management Discussion”.
16. The Tribunal further noted that by letter dated 11 January 2010 the respondent’s solicitors were sent a copy of the Record of Proceedings for the Case Management Discussion held on 5 January 2010 and that the respondent was forwarded copies of all correspondence on the file thereafter.
17. There was no indication on the file from the respondent’s solicitor that the respondent would either attend or be represented at this hearing and everything to suggest that they would not. Accordingly the Tribunal decided to dispose of the proceedings in the absence of the respondent.
FINDINGS OF FACT
18. The Tribunal found the following facts proven on a balance of probabilities;
19. The claimant was employed by the respondent company since April 1992. The respondent company was a property development company whose directors were John Walsh and David Meddings.
20. Although her claim form indicated that the claimant had been employed as a Finance Assistant, the claimant stated that her duties included Office Manager with day to day responsibility for the running of the Company. The claimant stated that she took decisions in relation to supplies, issued invoices, conducted banking transactions and was a Credit Controller.
21. The claimant went on to state that she carried out work in relation to one of the properties owned by the Company, apartments built adjacent to the Hilton Hotel at Templepatrick, which included her ordering supplies for the furnishing of apartments and ensuring that the apartments were fit for rental.
22. The Company employed three employees additional to the claimant; Mr Colm McKenna, whose work was unrelated to the claimant’s, and Mr Jim Orchin. Mr Orchin was appointed approximately six to eight years ago but at least some time after the Templepatrick apartments were completed in 2003.
23. The claimant stated that she had trained Mr Orchin in respect of the work that was required in relation to the maintenance and ongoing furnishings of the apartments at Templepatrick and that he had to refer to her for any decisions in relation to this. The claimant stated that she was the one that Mr Orchin referred to for his day to day instructions even though she accepted that she was not his boss.
24. The claimant accepted that Mr Orchin, whose job title was Marketing Officer, worked on the marketing aspect of the Company’s properties. This required Mr Orchin to travel to various countries and regions to properties owned by the respondent company including properties in France and Scotland. However, the claimant went on to state that she had been involved with these properties abroad before Mr Orchin had been employed and had flown over to do the marketing in relation to them.
25. The claimant stated that on 7 April 2009 Mr John Hanson and Ms Jenny Calder from KPMG arrived at the respondent company office and advised her amongst other employees that the respondent company was in administrative receivership. Thereafter the claimant stated that she had dealings with Mr Gary Boreland of KPMG who was in the office from time to time from in or about 9 April through to the termination of the claimant’s employment on 24 April 2009.
26. The Tribunal had sight of a letter sent to the claimant dated 15 April 2009, signed by John Hanson, Joint Administrative Receiver. This letter indicated to the claimant that her contract of employment with the respondent company had not been terminated and that she was still employed by the Company (in administrative receivership).
27. The claimant was also advised in this letter that her employment was continuing in order to assist the Joint Administrative Receiver to trade the respondent company until a full assessment of the viability of the trade has been completed.
28. On 24 April 2009 the claimant was asked to attend a meeting with Mr Gary Boreland. Mr Colm McKenna was also invited to attend this meeting which was held in a side office in the respondent company premises. At this meeting Mr Boreland advised the claimant and Mr McKenna that their employment was being terminated. Mr Boreland gave the claimant and Mr McKenna a “yellow form” which the claimant was told she should complete in order to claim redundancy.
29. At that point the claimant made an inquiry about Mr Orchin as she was concerned for him as one of the employees. The claimant was advised by Mr Boreland that Mr Orchin was being kept on until the end of the summer. The claimant stated that she had no further discussion with Mr Boreland at that point in relation to the retention of Mr Orchin. The claimant denied the respondent’s contention in their response that she advised the respondent or KMPG that “Mr Orchin should be retained to assist the respondent to continue to trade”.
30. The claimant stated that the same day locksmiths were brought into the respondent premises and the locks in the office were changed.
31. On 29 April 2009 the claimant received a letter dated 24 April 2009, the same date on which the claimant had met Mr Boreland and had been dismissed. This letter was from Mr Hanson and advised her that “the Company is no longer in a position to make payments to you for services rendered under your contract of employment. Your employment by the Company is therefore terminated with immediate effect as of the date of this letter. Your P45 will be forwarded ……..”
32. This letter went on to advise the claimant that she could claim up to certain limits from the Department of Employment and Learning for arrears for gross salary and approved holiday pay and for pay in lieu of notice and the letter enclosed the necessary form RP1 that was to be returned to Mr Hanson for submission to the Department.
33. The claimant was given no prior warning of the meeting of 24 April 2009 when she was dismissed. The claimant was given no advice that any redundancies were likely nor that she might be made redundant or that redundancies were being contemplated.
34. The claimant denied that she had ever suggested that Mr Orchin would be the best person to assist the respondent to continue to trade. The claimant stated that there was no discussion with her at the time of her dismissal about the respondent’s reasons for retaining Mr Orchin. Although the claimant accepted the respondent’s view that Mr Orchin carried out a different role which was in relation to marketing she stated that she had previously done that work before Mr Orchin’s appointment; she denied that Mr Orchin would have been the person best placed to assist the respondent trade the business.
35. In this regard the claimant stated that on numerous occasions post her dismissal the Company contacted her by phone to ask her details about the Company and on at least two occasions she met with members of KPMG including John Hanson in July 2009 and Jenny Porter in October 2009 to discuss the Company’s business and give them information in relation to it.
36. The Tribunal accepted that the claimant did not suggest that Mr Orchin would be the person best placed to assist the respondent to continue to trade. In reaching this conclusion the Tribunal assessed a number of factors. These included the demeanour and presentation of the claimant herself. The Tribunal noted that the claimant gave her evidence in a straightforward and truthful manner, that she had prepared for the hearing by properly identifying and bringing the documents on which she sought to rely.
37. The Tribunal took account of the fact that the respondent did not seek to challenge the claimant’s account of events beyond the presentation of the response and when the claimant was asked to comment on the respondent’s case as set out in the response and correspondence the Tribunal was satisfied with her account of events.
38. Further the Tribunal took into account the likelihood of whether an employee like the claimant, who had carried out a pivotal role in the company for 17 years and whose enthusiasm for and loyalty to her work in those years had been demonstrable, would have suggested that a colleague, whom she had trained and who had only half as much service with the company as herself, would have been best placed to assist the respondent continue to trade, and concluded that such a likelihood was very remote.
39. At the time of her dismissal in April 2009 the claimant was pregnant. The claimant disputed the respondent’s contention that they were unaware that the claimant was pregnant at the time it took the decision to dismiss her.
40. The claimant stated that she had discussed her pregnancy with Mr Boreland and with both Jenny Porter and Jenny Phillips of KPMG during the discussions they had with her prior to her dismissal. In this regard the claimant stated that she had discussed with them the fact of her previous loyalty to the Company wherein the claimant had returned to work in November 2007 within a week of the birth of that baby.
41. The claimant also stated that she had told KPMG personnel that her loyalty to the Company had included her return to work the day after she had broken her leg in August 2007 during that pregnancy. The claimant stated that she had attended hospital the same evening, had her leg put in plaster and had returned to work on crutches the next day.
42. The claimant made it clear to them that her approach to her work would be no different during or after her current pregnancy.
43. The Tribunal accepted that the claimant had discussed with KPMG personnel her loyalty to the respondent during her previous pregnancies and the fact that she was pregnant again at the time of their discussions with her.
44. The claimant stated that she did not receive any pay in lieu of notice. The claimant confirmed that her contractual period of notice was four weeks. The claimant also stated that her last salary, paid into her bank, was £1,110.40. This was paid into her account on 1 May 2009. This was in relation to work paid up to the date of her dismissal on 24 April 2009, the last Friday in April, which was the usual day on which the claimant received her salary. The claimant stated that her usual monthly salary was £1,300.00 and she stated that therefore the sum of £189.60 was outstanding. In this regard the claimant also stated that she had been charged £6.00 by her bank for the lodgement of her money into her account and the claimant stated that she was claiming this sum as well. The claimant received £64.03 per week Job Seekers’ Allowance between 7 October 2000 and
6 April 2010. The claimant did not receive income support.
Redundancy Pay
45. The claimant stated at hearing that she had now received a redundancy payment of £5,425.00 from the Department for Employment and Learning and the Tribunal noted that the claimant was not claiming any additional sums in relation to redundancy.
Holiday Pay
46. The claimant stated that in 2007 and with the permission of Mr Walsh, one of the directors, she carried over four weeks holiday pay (20 days). The claimant stated that payment in lieu of these holidays was to have been made to her during the course of 2008 but that this did not happen. Therefore at the start of 2008 the claimant’s holiday entitlement was 49 days. During 2008 the claimant took fifteen days holiday which left her with thirty four days holiday pay outstanding. The claimant did not accept the Department’s calculation of 25.6 days holiday pay in respect of which they paid her £1,792.00. Instead the claimant stated that she ought to have received 30 days at £2,105.35 and that she was now claiming the difference between those two figures which is the sum of £313.35.
THE LAW
47. The Tribunal also took into account the relevant case law relating to sex discrimination and unfair dismissal.
The Legislation
Sex Discrimination
48. The relevant law in this case is contained in the Sex Discrimination Northern Ireland Order 1976, the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (Northern Ireland) 2001 and relevant case law.
Article 3 of the Sex Discrimination Northern Ireland Order 1976 as amended by the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (Northern Ireland) 2001 provide that in any circumstances relevant for the purposes of the provision, a person discriminates against a women if –
(a) he applies to her a provision, criterion or practice which he applies or would apply equally to a man but
(i) which is such that it would be to the detriment of a considerably larger proportion of women than men;
(ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied;
(iii) which is to her detriment.
Article 8 (ii) of the Order provides;
(ii) It is unlawful for a person, in the case of a women employed by him at an establishment in Northern Ireland to discriminate against her –
(a) In the way he affords her access to the opportunities for promotion transfer or training or to any other benefits, facilities or services by refusing or deliberately omitting to afford her access to them; or
(b) By dismissing her, or subjecting her to any other detriment.
The Burden of Proof
49. The Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (Northern Ireland) 2001 inserts a new Article 63A into the Sex Discrimination Northern Ireland Order 1976:
Article 63A provides Burden of Proof: Industrial Tribunals
This Article applies to any complaint presented under Article 63 to an Industrial Tribunal:
(i) Where, on the hearing of the complaint, the complainant proves facts from which the Tribunal could, apart from this article, conclude in the absence of an adequate explanation that the respondent – (a) has committed an act of discrimination against a complainant which is unlawful by virtue of part 3 or (b) is by virtue of Article 42 or 43 to be treated as committing such an act of discrimination against the complainant;
(ii) The tribunal shall uphold the complainant unless the respondent proves that he did not commit or as the case may be is not to be treated as having committed that act.
Case Law
50. The Tribunal has relied on the guidance by Lord Justice Peter Gibson in Igen Ltd and others v Wong (2005) IRLR 258 which clearly sets out the process by which the Tribunal approaches this reversal of proof. This is a two stage process where the claimant must prove facts from which the Tribunal could conclude there had been unlawful discrimination and if, or when, this is done, the burden of proof shifts from the claimant onto the respondent. They must then show that they did not commit the unlawful discrimination and that the treatment by them of the claimant was not related to her sex.
51. In particular the Tribunal considered the Court of Appeal’s guidance for the operation of this process and has set it out fully to show the steps this Tribunal took in applying the law to the facts found in this case:-
· Pursuant to s 63A of the SDA, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Pt II or which by virtue of s 41 or s 42 of the SDA is to be treated as having been committed against the claimant. These are referred to below as 'such facts'.
· If the claimant does not prove such facts he or she will fail.
·
It is
important to bear in mind in deciding whether the claimant has proved such
facts that it is unusual to find direct evidence of sex discrimination. Few
employers would be prepared to admit such discrimination, even to themselves.
In some cases the discrimination will not be an intention but merely based on
the assumption that 'he or she would not have fitted in'.
· In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.
· It is important to note the word 'could' in s 63A(2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.
· In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts.
· These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s 74(2)(b) of the SDA from an evasive or equivocal reply to a questionnaire or any other questions that fall within s 74(2) of the SDA.
·
Likewise, the
tribunal must decide whether any provision of any relevant code of practice is relevant
and if so, take it into account in determining, such facts pursuant to s
56A(10) of the SDA. This means that inferences may also be drawn from any
failure to comply with any relevant code of practice.
· Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent.
· It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.
· To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since 'no discrimination whatsoever' is compatible with the Burden of Proof Directive.
·
That requires
a tribunal to assess not merely whether the respondent has proved an
explanation for the facts from which such inferences can be drawn, but further
that it is adequate to discharge the burden of proof on the balance of
probabilities that sex was not a ground for the treatment in question.
· Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.
Unfair Dismissal
52. Article 126 of the Employment Rights (Northern Ireland) Order 1996 provides an employee with the right not to be unfairly
dismissed by his employer. Article 130 of the same order indicates that any
dismissal of an employee is fair if the employer shows that the reason for the
dismissal is a reason following within Article 130.
Article 130(2) states that a reason falls within this
paragraph if it –
(a) relates to the capability or qualifications of the employee 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 the duty or restriction imposed by or under a statutory provision.
Article 130(4) states where the employer has fulfilled the requirements at paragraph 1, the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –
(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee and;
(b) shall be determined in accordance with equity and the substantial merits of the case.
THE TRIBUNAL’S CONCLUSIONS
53. In light of the law and the guidance the Tribunal concluded that in view of the fact that the claimant had proved facts from which the Tribunal could draw an inference of discrimination and the Tribunal was satisfied that the respondent had not discharged its obligation to prove that the reason for their treatment of the claimant was not discriminatory, the claimant had successfully established her claim of sex discrimination on both bases.
54. The Tribunal accepted the claimant’s contention that she had not advised the respondent company or KMPG that Mr Orchin would be the best employee to retain to assist the respondent continue to trade or that Mr Orchin was best placed to provide information in relation to the business’ historic trading position running costs, etc. The Tribunal concluded that the claimant was at least as well placed to provide information in relation to the business’ historic trading position, running costs etc not only from her description of her day to day work for the Company but also on the fact that the respondent had contacted the claimant on several occasions after her dismissal for such information.
55. The Tribunal also concluded that the claimant had been discriminated against on the grounds of her sex in relation to the fact that she was pregnant at the time when the respondent had considered employees for redundancy. In reaching this conclusion the Tribunal accepted that the respondent was aware that the claimant was pregnant at the relevant time when it took the decision to dismiss her and the Tribunal did not accept the respondent’s denial in its response to this effect. The Tribunal reached this conclusion on the basis of the Tribunal’s conclusion that the respondent had offered no satisfactory alternative explanation for making the claimant redundant.
Unfair Dismissal
56.
The Tribunal noted that the
respondent had failed to comply with the Statutory Dismissal Procedures in that
it did not send the claimant a letter inviting her to a meeting at which her
dismissal would be discussed, holding that meeting, and facilitating an
appeal. The Tribunal concluded in this regard that the claimant was entitled
to a finding of automatic unfair dismissal on this basis.
57. The Tribunal also found that the respondent had not adhered to any procedures in relation to redundancy. There was no evidence provided to the Tribunal of any process or procedures that had been carried out by the respondent in relation to consultation, selection for redundancy or canvassing suitable alternative employment for the claimant. Accordingly, the Tribunal decided that the claimant had been unfairly dismissed on this basis.
58. The Tribunal also concluded the claimant had been unfairly selected for redundancy. The Tribunal reached this conclusion on the basis that it accepted the claimant’s statement that there had been no discussion between herself and Gary Boreland of KPMG in relation to the suggestion allegedly made by the claimant that Mr Orchin would be the better person to retain.
59. Additionally the Tribunal concluded that although Mr Orchin’s role was different to the claimant’s this was not, of itself, sufficient evidence to suggest that the claimant might not have been able to fulfil the duties of that role had she been retained.
Holiday Pay and Outstanding Unpaid Wages and Notice Pay
60. The Tribunal accepted the claimant’s evidence
and calculations in relation to these.
Compensation
61. The Tribunal awarded
compensation on the following basis:-
(1) Unfair dismissal
Basic Award
Four times gross weekly wages = 4 times x £384.46, subject to the Statutory Cap
= 4 times x £350.00 = £1,400.00
Compensatory Award
Actual Loss and Future Loss
Actual Loss
Actual Loss is the number of weeks from dismissal to hearing x net weekly pay =
45 x £300.00 = £13,500.00.
Future Loss
The Tribunal took into account the current economic difficulties in the job market and considered that a years future loss would be reasonable. The Tribunal also took into account that the claimant had sought to mitigate her loss. In reaching this conclusion the Tribunal took account of the fact that the claimant signed on for Job Seeker’s Allowance in October 2009 and started applying for work in December 2009 and January 2010. In January 2010 the claimant signed on with the recruitment agency, Target Employment Agency, and since then has applied for a number of jobs for example with the Civil Service, Whiteabbey Hospital and CCEA. In relation to these last three the closing date was late February 2010 and the claimant had not received any word of either interview or rejection.
Therefore,
the Tribunal allowed a future loss in the sum of £300.00 x 52 weeks = £15,600.00.
Loss of Statutory Rights = £
500.00
Total Compensatory Award is £
29,600.00
Outstanding
Holiday Pay £
313.35
Notice Pay = £300.00 x 4 = £
1,200.00
Outstanding Wages £ 189.60
Bank
Charge
£ 6.00
Uplift under 2003 Order
The Tribunal concluded that the uplift in respect of the employer’s failure to
carry out the Statutory Dismissal Procedure should be the maximum of 50%. In
reaching this decision the Tribunal took account of the fact that the
respondent would have been aware of the possibility of redundancy and would
have had time to take the relevant appropriate action for example to consult
with the employees, to devise a selection procedure and develop a procedure for
giving effect to the redundancies.
Accordingly, the Tribunal awards the claimant compensatory award of £29,600, uplifted by 50% = £29,600 + £14,800 = £44,400
Total Award = £54,508.95
Injury to feelings
The Tribunal considered the relevant case law in relation to injury to feelings and in particular the guidelines set out in the cases of Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102 and Da’Bell v National Society for the Prevention of Cruelty to Children.
The claimant stated that when she was dismissed by the respondent she felt like she had been “brushed off”, walked on and that her previous loyalty, especially her efforts to ensure that her pregnancies had minimum adverse impact on her work, had been ignored and disregarded. The claimant said that she had always believed herself to have been well-respected by the respondent but that her dismissal by the respondent made her feel embarrassed and degraded.
The Tribunal considered that the award for injury to feelings in this case fell within the “middle band” of injury to feelings; although the dismissal of the claimant occurred in the circumstances where the respondent was in administrative receivership where dismissals/redundancies were inevitable nevertheless the respondent here made a choice to retain a male employee who had less service and who had even been trained by the claimant and that choice led the claimant to be dismissed.
Further this choice was made in spite of the claimant’s previous longer and broader service and at a time when the claimant was pregnant. This was particularly injurious to the claimant who had striven to ensure that her previous pregnancies did not damage the respondent’s business and whose efforts in this regard were so badly unrewarded.
Accordingly the Tribunal awarded the claimant £7,000 injury to feelings.
Recoupment
62. This is a relevant decision for the purposes of recoupment of benefit received by the claimant.
The Employment Protection (Recruitment of Job Seekers Allowance and Income Support) Regulations (Northern Ireland) 1996 apply in this case. These Regulations require the Tribunal to 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.
63. Rule 4 Paragraph 2 of these Regulations states where the Industrial Tribunal in arriving at a monetary award makes a reduction on account of the employee’s contributory fault or on account of any limit imposed by or under the 1992 Act or the 1996 Act, a proportionate reduction shall be made in arriving at the amount of the prescribed element.
64. The prescribed element is that amount of the monetary award which represents a raise of pay or compensation for loss of earnings, up to the date of the Tribunal hearing. In this case that period runs from the date of the dismissal, which was the 29 April 2009 until the date of the hearing, 4 March 2010, a period of 47 complete weeks = £15,013.35 less deductions of £1600.75= £13,412.60.
Accordingly the amount by which the monetary award exceeds the prescribed element in this case is £54,508.95 less £13,412.60 = £41,096.35
65. The attached Recoupment Notice forms part of the decision of the Tribunal.
66. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 4 March 2010, Belfast
Date decision recorded in register and issued to parties:
Case Ref No: 6656/09
CLAIMANT: Joanne Stevenson
RESPONDENT: GWM Developments Limited
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 |
54,508.95 |
|
(b) Prescribed element |
13,412.60 |
|
(c) Period to which (b) relates: |
29 April 2009 – 4 March 2010 |
|
(d) Excess of (a) over (b) |
41,096.35 |
The applicant 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 applicant 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 applicant 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 applicant.
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 applicant 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 applicant, 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 applicant and regardless of any dispute between the applicant and the Department.