Industrial Tribunals Northern Ireland Decisions

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Cite as: [2010] NIIT 7060_9IT, [2010] NIIT 7060_09IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 7060/09

CLAIMANT: William Samuel Cole

RESPONDENT: La Rousse Foods Northern Ireland Ltd

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed. Compensation of £36,820.15, calculated as set out in this decision is awarded to the claimant.

Constitution of Tribunal:

Chairman: Mr N Kelly

Members: Mr P Killen

Mr J Magennis

Appearances:

The claimant was represented by Mr Richard Smyth, Barrister-at-Law, instructed by Mr Oliver Roche and Company Solicitors.

The respondent was represented by Mr Tom Sheridan of Peninsula Business Services.

THE ISSUE

1. The issue for determination by the tribunal was whether the claimant had been unfairly dismissed by the respondent on 30 June 2009 in a redundancy selection exercise. A claim for breach of contract was not pursued at the hearing.

2. There were two respondents; La Rousse Foods Northern Ireland Ltd and Mr Clifford Webb. Mr Webb was not the claimant’s employer and the claim of unfair dismissal against him is therefore dismissed and the title of the action amended accordingly. The remaining respondent is based in Northern Ireland and is a wholly owed subsidiary of La Rousse Foods Ltd which is based in Dublin. Both companies are wholesalers to restaurants and catering organisations. There were three directors who are relevant to this decision. Mr Marc Amand was the owner of both companies. Mr Clifford Webb was the director responsible for Northern Ireland. Mr Stuart Campbell was the General Manager of La Rousse Foods Ltd.

3. The claimant was employed by the respondent as one of five sales representatives. He covered Northern Ireland and parts of Donegal. He was based in Northern Ireland and was paid a monthly salary and commission.

4. In late 2008, the volume of sales reduced significantly. Since the respondent imported most of it’s goods from the rest of Europe, currency fluctuations between sterling and the euro added to the respondent’s difficulties. The three directors decided to reduce the number of sales representatives from five to three.

5. On 2 January 2009, the respondent wrote to each of the five sales representatives advising them that the economic downturn and currency fluctuations had already resulted in the closure of the Lisburn sales office and the loss of administrative posts. The letter advised each of the sales representatives that sales areas were going to be rationalised and individual consultation meetings were to be set up with the sales representatives to discuss ways of reducing overheads. Those individual consultation meetings were held in the week commencing 5 January 2009.

6. On 19 January 2009, the respondent wrote to the sales representatives advising them that the proposals which had been received for reducing overheads were not sufficient to deal with the problem and that the respondent proposed to implement redundancies reducing the sales force from five to three. The letter also suggested further meetings to discuss proposed redundancy selection criteria which were described in the letter as:

Quality of Work

Initiative

Flexibility

Qualifications/IT skills

Length of Service

7. Mr Webb proceeded to meet with three of the sales representatives individually and met the claimant and another sales representative, Tracy Kernaghan in a joint meeting on 23 January 2009.

8. One of the five sales representatives, Mary Nagy, decided at that point to take voluntary redundancy and the consultation process with the other sales representatives was interrupted while that voluntary redundancy was processed and finalised.

9. On 29 April 2009, the respondent wrote to the remaining four sales representatives, including the claimant, advising that the respondent now needed to make one sales representative redundant subject to the availability of any suitable alternative work. The respondent arranged a further consultation meeting with each of the four sales representatives to discuss any proposals which they wanted to make before consultation was concluded.

10. Mr Webb met with the claimant on 26 May 2009. The claimant suggested that the respondent should investigate possible financial support from DETI. Mr Webb did so and confirmed that the respondent did not qualify for any financial support under any DETI scheme.

11. On 4 June 2009, Mr Webb advised the claimant that the respondent would now be proceeding with the redundancy criteria outlined in his letter of the 19 January.

12. For the purposes of this decision, the two relevant criteria are the second and third criteria applied by the respondent. The second criterion was the percentage change in sales credited to each sales representative which was identified by comparing the sales credited to each sales representative during the periods from December 2007 to May 2008 and from December 2008 to May 2009. The third criterion was the percentage change in profit margins on sales credited to each sales representative over those two periods.

13. The claimant received 17 points in total over the seven criteria. Mr Connor Ludlow received 19 points, Ms Tracy Kernaghan 19 points, and Mr Robert Downes 23 points. The claimant therefore received the lowest score and was selected for redundancy.

14. On 8 June 2009, Mr Webb wrote to the claimant advising him of his selection for redundancy and also advising him that there appeared to be no suitable alternative work available within the respondent’s organisation. Mr Webb asked for any further suggestions that the claimant wanted to make and arranged a meeting to discuss the claimant’s position on 11 June in Lisburn.

15. The claimant attended that meeting accompanied by his wife. He made several detailed comments on the selection criteria and on his various scores under each of those criteria. The claimant wrote to Mr Webb on 13 June 2009 repeating those criticisms.

16. On 17 June 2009, Mr Webb wrote to the claimant responding to those criticisms. In response to one of the criticisms made by the claimant he changed the assessment period for the second and third criteria (volume of sales and profit margins) to a comparison between the period from 1 November 2007 to 31 May 2008 and the period from 1 November 2008 to 31 May 2009. Mr Webb also increased the claimant’s score on “flexibility” from two points to three points. No other changes were made in the claimant’s scoring and the claimant’s score remained the lowest. His redundancy selection was confirmed and he was advised of his right to appeal.

17. On 22 June 2009 the claimant wrote to the respondent setting out his grounds of appeal. For the purposes of this decision, only one ground is relevant. He stated:

“There are discrepancies in the sales figures used in the assessment compared to the quarterly figures previously supplied by Clifford (Webb). Those discrepancies adversely affect both the sales percentage change and by consequence the margin percentage change that I achieved. This would obviously have a detrimental affect on the scores I was awarded in those categories. I will provide evidence of such discrepancies at the meeting.”

18. Stuart Campbell and Marc Amand heard the appeal on 7 July 2009. The claimant made several detailed criticisms of the selection process but only one is relevant to the purposes of this decision. He pointed out that a substantial account i.e. Lynas Foods Ltd was credited to him in the period from 1 November 2007 to 31 May 2008 and not credited to him for the period from 1 November 2008 to 31 May 2009. That distorted the “before and after” picture and made it look as if his sales and profit margins had decreased substantially more than they had in fact decreased.

19. The claimant followed this up with an email on 8 July 2009 in which he stated that the “main thrust” of his appeal was that the figures used in the calculation of his sales performance were incorrect and that when the error was corrected he would no longer be in fourth place.

20. On 17 July 2009, the respondent wrote to the claimant stating that:

“The method of calculation for the sales statistics used in the original assessment was correct and as such the initial classification stands.”

21. The redundancy selection was confirmed.

THE LAW

22. Article 130(4) of the Employment Rights (Northern Ireland) Order 1996 provides that where the employer has shown the reason, or the principal reason for the dismissal, and that is a potentially fair reason (such as redundancy), the determination of whether the dismissal is fair or unfair;

(a) depends on whether in the circumstances – 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.”

23. In Williams and Others v Compair Maxam Ltd [1982] ICR 156 the EAT stated:

“For the purposes of the present case there are only two relevant principles of law arising from the sub section. First that it is not the function of the industrial tribunal to decide whether they would have thought it fair to act in some other way; the question is whether the dismissal lay within the range of conduct which a reasonable employer could have adopted. The second point of law, particularly relevant in the field of dismissal for redundancy, is that the tribunal must be satisfied that it was reasonable to dismiss each of the applicants, on the ground of redundancy. It is not enough to show simply that it was reasonable to dismiss an employee; it must be shown that the employer acted reasonably in treating redundancy as “a sufficient reason for dismissing the employee”, i.e. the employee complaining of dismissal. Therefore if the circumstances of the employer make it inevitable that some employee must be dismissed, it is still necessary to consider the means whereby the applicant was selected to be the employee to be dismissed and the reasonableness of the steps taken by the employer to choose the applicant rather than some other employee, for dismissal.

In law, therefore, the question we have to decide is whether a reasonable tribunal could reach the conclusion that the dismissal of the applicants in this case lay within the range of conduct which a reasonable employer could have adopted.”

24. In British Aerospace PLC v Green and Others [1995] ICR 1006 the Court of Appeal stated:

“The use of a marking system of the kind which was adopted in the case has become a well recognised aid to any fair process of redundancy selection. By itself, of course, it does not render any selection automatically fair; every system has to be examined for its own inherent fairness, judging the criteria employed and the methods of marking in conjunction with any factors relevant to its fair application, including the degree of consultation which accompanied it. One thing, however, is clear: if such a system is to function effectively, its workings are not to be scrutinised officiously. The whole tenor of the authorities to which I have already referred is to show, in both England and Scotland, the courts and tribunals (with substantial contribution from the lay membership of the latter) moving towards a clear recognition that if a graded assessment system is to achieve its purpose it must not be subjected to an over minute analysis.”

25. The above case law was cited with approval by the Court of Appeal for Northern Ireland in the case of McCormick v Short Brothers plc (16 April 2010).

26. In the case of Northgate HR Limited v Mercy [2008] IRLR 222, the Court of Appeal approved a decision of the EAT which reversed the employment tribunal decision. The court expressly approved the approach of the EAT where it had stated;

“The problem – was that the ET expressed itself in a way in which it appeared that they were looking for a glaring inconsistency as evidence of bad faith which itself would indicate unfairness. The passage in which they say so, at the end of paragraph 15, when allied to the passage in paragraph 4 – suggests that the ET was saying that the only circumstance in which unfairness could arise, where there was a glaring inconsistency in the operation of a selection criterion, was where there was bad faith. In our judgement that goes too far in restricting the circumstances in which an ET could, consistent with its obligation not to take a fine tooth comb to the decisions of the respondents or to remark the assessments, nonetheless intervene. The lawful basis for intervention would be where glaring inconsistency, whether as a result of bad faith or simple incompetence, evidenced a decision which was outside the band of reasonableness. The position, therefore, is that we are left with the impression that the ET applied an unusually restrictive test when considering the impact of what it concluded was a glaring inconsistency upon the fairness or otherwise of the dismissal. In those circumstances we are persuaded that the ET in its decision erred in law and, accordingly, the appeal must succeed.”

DECISION

27. The tribunal is conscious, having examined the case Iaw referred to above, that the operation of redundancy scoring systems, which are used by employers to determine who is selected for redundancy, should not be subject to over minute analysis. The tribunal’s jurisdiction under the 1996 Order is to determine whether, in all the circumstances of the case, the decision to select an employee for redundancy was a decision which a reasonable employer could have reached. It is not the tribunal’s job to put itself in the role of that employer and to effectively re-run or re-mark the selection process.

28. Nevertheless, the tribunal is also conscious that if the evidence before it discloses a glaring inconsistency, within the scoring, whether or not accompanied by bad faith, that inconsistency can demonstrate unfairness.

29. In the course of the evidence and the argument, the case for the claimant reduced to one single point: the point that he had described as representing “the main thrust” of his internal appeal, in his email of 8 July 2009.

30. The claimant had initially received one out of a possible four marks in respect of each of the second and third criteria when the period from December 2008 to May 2009 was compared to the period from December 2007 to May 2008. The claimant’s sales figures were calculated, for the purposes of that comparison, to have reduced by 29.47% and his profit margin to have reduced by 37.96%. That, combined with his other scores, meant that he received the lowest overall score and was selected for redundancy. When Mr Webb reassessed the figures with reference to a slightly different period, the claimant’s sales were calculated as having reduced by 30.22% and his profit margin by 38.44%. This placed him, in respect of those two criteria, in third place and he therefore received two points in respect of each of those criteria. Combined with his other scores,that still left him in the lowest overall place and confirmed his selection for redundancy.

31. The claimant’s argument was a simple one which cried out for a clear and coherent response. The Lynas Foods account was not properly his account in the first place. It had been set up and run by Mr Webb and had been credited to the claimant solely for administrative purposes. The claimant had only ever, on one occasion only, spent a few minutes working on that account. Mr Webb and Mr Campbell, in evidence, accepted this was the case. It was their evidence, and the claimant’s evidence, that he had had no effective involvement in this account at any stage and it is also clear that the respondent knew at the time that this was the case. As the claimant pointed out in the course of his internal appeal, the figures for the Lynas Foods account should never have been included in his calculation. The error might have been of little practical effect if the figures for that account had been included on both sides of the “before and after” comparison relating to sales figures and profit margins. However the claimant’s sales representative code was removed from this account at some point shortly after May 2008. This resulted in a serious misrepresentation of the correct position in relation to sales figures and profit margins. The reduction in both was shown as much greater than it should have been. The total sales figure that Mr Webb had accepted for the purposes of his calculation in relation to the 2007/2008 period was £213,626.00. It should in fact have been £188,643.00. The figures for the 2008/2009 period remained unchanged. His reduction in sales should therefore have been calculated as only 19.13%. He should therefore have been placed in second place in relation to that criterion and should have received three points in the scoring system. His profit margin should properly have been calculated at £77,645.00 and again that would have put him in second place in respect of that criterion with, again, a score of three points on the third criterion. That scoring could have meant that he would not have been the one sales representative selected for redundancy.

32. The respondent had intended to call only one witness; i.e. Mr Webb. He had been present at the appeal hearing but had not been part of the appeal panel. When the documents which the claimant had produced to the appeal panel were shown to Mr Webb in cross examination, he stated that this was the first time that he had seen them. He has described them as a “cut and paste job”. He was in any event unable, before the tribunal, to deal with the issue which had originally been raised by the claimant at the appeal hearing and which the claimant obviously wished to pursue at the tribunal hearing. Mr Sheridan, on behalf of the respondent, applied for an adjournment to allow the respondent to call evidence in respect of the appeal hearing. Mr Sheridan explained that he had received the papers late in the day and that there had been a change in representative. This hearing had been set down for one day and the tribunal rose to consider whether or not to grant the adjournment. The respondent had had clear notice of the argument which would be raised by the claimant and, in any event, should have been in a position to explain the decision it had taken at the appeal stage. However, given the doubts raised by Mr Webb about the accuracy of the documentation shown to him in cross examination and given that the tribunal had not at that stage, heard from the claimant, the tribunal decided to grant the adjournment to enable justice to be done to both parties. The tribunal however awarded costs against the respondent for the wasted day.

33. The hearing reconvened three days later and Mr Campbell gave evidence in relation to the appeal hearing. He accepted that the claimant had raised the issue of the Lynas Foods Account during that hearing and had subsequently raised it by email. He stated that he had checked this point and was satisfied that the initial decision reached by Mr Webb was correct. He embarked on a long explanation of how he had removed “central billing accounts” from the records of each of the four sales representatives to ensure fairness. The relevance of this argument was never made clear. Mr Campbell accepted that Lynas Foods was not a “central billing account”. When pressed on several occasions by the tribunal to explain whether he had, in response to the claimant’s argument in relation to the Lynas Foods account, and to ensure fairness between all four sales representatives, removed any “nominal accounts” (i.e. any accounts which were credited to one of the four sales representatives purely for administrative purposes), he did not give any satisfactory answer and repeatedly referred to the removal of “central billing accounts”. That type of account was, as the name suggests, an account where orders might be delivered to several addresses but where invoices were sent to one billing address. Given that he accepted that Lynas Foods was not a central billing account, his responses were simply evasive. After several attempts had been made to get him to address the question of whether he had, in response to the claimant’s query about the Lynas Foods account, removed nominal accounts from all the sales representatives’ records for the purposes of scoring he finally said that he had in fact done so. However he could not name any of the accounts that had been so removed from the records of the other sales representatives and no records of any such exercise had been disclosed to the claimant or to the claimant’s solicitor. The claimant’s evidence on this point was, in contrast, clear. He stated that he knew of no other accounts which were nominal accounts which had been credited to any of the other three sales representatives.

34 The respondent was clearly aware of the basis of the claimant’s internal appeal and therefore of the argument that the claimant was likely to run at the tribunal hearing. If, as Mr Campbell suggested late in his evidence, the respondent had accepted that the Lynas Foods account should have been removed from both sides of the equation in relation to the claimant and if similar accounts existed and had in fact been removed for the purposes of fairness from the records of the other sales representatives, the tribunal would have expected to have heard a coherent account of that exercise. The tribunal would also have expected to see a clear explanation of that exercise in the internal appeal decision and subsequently in the documentation disclosed on discovery. That was not the case.

35. The tribunal therefore concludes, on the balance of probabilities, that the respondent did not conduct any such exercise and that it did not consider seriously, or at all, the point made by the claimant in the internal appeal procedure.

36. Mr Campbell stated in evidence that he relied simply on the following two lines in the internal appeal decision;

“The method of calculation for the sales statistics used in the original assessment was correct and as such the initial classification stands.”

He did not seek to rely on the rest of the letter or on the removal of “central billing” customers.

37. The respondent has to establish the reason for the dismissal. Having heard the evidence of the claimant and of the respondent and having examined the documentation in relation to the reduction in sales volumes and in relation the currency fluctuations, the tribunal accepts that the respondent has met its burden of proof in this regard and that the reason for the dismissal was redundancy, a potentially fair reason for the purposes of the 1996 Order.

38. The next question is whether or not the dismissal was fair for the purposes of the 1996 Order. On this issue, the burden of proof is neutral.

39. The point made by the claimant during his internal appeal against his redundancy selection and before the tribunal was clear and convincing. It was obviously unfair, when calculating and comparing the reduction in sales and profit margins for each of the four candidates for redundancy, to include an account, for which the claimant had not been responsible in any event, in relation to the earlier period and not to include it in relation to the later period. This made the reduction in his sales figures much greater than it should have been. The tribunal accepts the claimant’s evidence, in absence of any contrary evidence, that this also resulted in a substantial drop in his profit margin figures.

40. The tribunal concludes that the respondent did not properly consider the point made by the claimant in the internal appeal procedure. There is no point in having an internal appeal procedure if, when a claimant establishes a prima facie case of a glaring disparity in his scoring process, nothing is done to either rebut that prima facie case or to correct the disparity. It is not enough for an employer in those circumstances to simply state, without more, that the original calculation was correct.

41. The tribunal is satisfied, on the evidence of the claimant and in the absence of any contrary evidence from the respondent, that the claimant should have been scored second rather than fourth overall and that he should not have been selected for redundancy. The tribunal concludes that the claimant was unfairly dismissed.

COMPENSATION

42. The claimant took out a private insurance policy against redundancy and, as a result, has been entitled to a payment of £600 net per month for a maximum of 12 months, subject to the claimant establishing to the satisfaction of the insurance company that he has made significant efforts to obtain alternative employment. There is therefore a total benefit to the claimant, on the assumption that his insurance company remains satisfied that he is actively seeking further employment, of £7,200.00. The tribunal is satisfied that the claimant has made substantial efforts to obtain further employment and that the claimant will continue to do so. It is therefore satisfied, on the balance of probabilities that the claimant will receive the full benefit under the insurance policy of £7,200.00.

43. The issue therefore arises as to whether or not this amount should be deducted from the compensatory award. Mr Sheridan, on behalf of the respondent, argues that it should be so deducted and Mr Smyth, unsurprisingly, argues that it should not be deducted.

44. Mr Smyth referred the tribunal to the case of Knapton and others the ECC Clothing Limited [2006] IRLR 756. That case concerned whether or not employees should be given credit for early pension payments and is not directly analogous to the present case. Mr Sheridan argued that the compensatory award should reflect actual loss and that, if no actual loss occurred, or if the actual loss has been reduced, the compensatory award should reflect that fact.

45. As a matter of general principle, the compensatory award should reflect the actual loss suffered by the claimant. The claimant, insofar as is possible, should be put in the position that he would have occupied if he had not been unfairly dismissed. There are however exceptions to that general principle. One such exception is known as “the insurance exception”. In Gaca v Pirelli General plc and others [2004] 3 ALL ER 343, the Court of Appeal stated at paragraph 41 that;

“Mr Foy QC submits that the payments should not be deducted because they fall within the insurance exception. The existence of the insurance exception is not in doubt. It was first formally recognised in Bradburn v Great Western Railway Company (1874) LR 10 EX CH. In that case, the plaintiff had received a sum of money from a private insurer to compensate him for loss of income as a result of an accident caused by the negligence of the defendant. It was held that he was entitled to full damages as well as the payment from the insurer. Pigott B said at Page 197, “I think that there would be no justice or principle in setting off an amount which the plaintiff has entitled himself to under a contract of insurance, such as any prudent man would make on the principle of, as the expression is, “laying by for a rainy day.” He pays the premiums upon a contract which, if he meets with an accident, entitles him to receive a sum of money and I think that it ought not, upon any principle of justice, to be deducted from the amount of the damages proved to have been sustained by him through the negligence of the defendant.””

46. The Court of Appeal went on to quote from the House of Lords decision in Parry v Cleaver [1969] 1 ALL ER 555;

“As regards moneys coming to the plaintiff under a contract of insurance, I think that the real and substantial reason for disregarding them is that the plaintiff has bought them and that it would be unjust and unreasonable to hold that the money which he prudently spent on premiums and the benefit from it should enure to the benefit of the tort feasor”

47. The tribunal therefore concludes that the benefit which the claimant has received and is continuing to receive on foot of his private redundancy insurance policy should be excluded from the calculation of the compensatory award and that the respondent should not receive any benefit in that respect.

48. Another issue which arises in relation to the calculation of compensation in this case is the appropriate amount to be awarded in respect of the loss of the use of a company vehicle. The claimant’s evidence was that he was allowed private use of the company car but that when he was going on a long journey he provided the fuel himself. No evidence was given of the value or type of the vehicle provided or of the amount of any private fuel for short journeys which was provided by the respondent. The tribunal is therefore in a position where it has evidence that the claimant has lost a benefit in the form of a provision of a vehicle for private use but has no evidence at all in relation to the provision of fuel costs. The tribunal is prepared to conclude, on the balance of probabilities that the vehicle provided for both business and private use was the basic type of vehicle normally provided for sales representatives and therefore that the standing charges per year as calculated in accordance with the AA schedule, most recently published in 2008 would amount to £3,076.00. That equates to a monthly loss of £256.33 and that amount is therefore to be taken into account in assessing the compensatory award over the appropriate period.

49. Mr Smyth, on behalf of the claimant, argued that the claimant should be entitled to a compensatory award calculated by reference to his losses over a further 12 month period from the date of the hearing. Mr Sheridan argued that, if such an award were to be made, it should be calculated by reference to a 12 month period to include the period before the date of the hearing.

50. This is always a difficult decision to make. The tribunal was particularly impressed by the conscientious efforts made by the claimant to secure further employment and, on the evidence available and applying its collective knowledge of the current economic situation, the tribunal has reached the conclusion that, on the balance of probabilities, the claimant could obtain equivalent employment within, approximately, the next nine months. That would equate to a total period, including the 41 weeks before the tribunal hearing of 80 weeks.

51. The calculation payable is therefore calculated as follows;

BASIC AWARD

One year x 1.5 x £380.00 = £570.00

Less redundancy payment of £1153.85 = - £583.85.

COMPENSATORY AWARD

Net weekly pay in employment £325.05

Net weekly commission £83.33

Net weekly car benefit £59.17

Net weekly loss £467.55

80 weeks x 467.55 £37,404.00

Total compensation £36,820.15

52. The claimant received JobSeekers Allowance of £1,671.81 in the period between his dismissal on 30 June 2009 and the date of the tribunal.

53. The Recoupment Regulations apply. Attention is drawn to the notice below, which forms part of this decision. For the purposes of that notice, the monetary award is £36,820.15, the prescribed element is £21,039.75, the relevant period is 30 June 2009 to 14 May 2010 and the monetary award exceeds the prescribed element by £15,780.40.

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

Chairman:

Date and place of hearing: 11 & 14 May 2010, Strabane

Date decision recorded in register and issued to parties:

Case Ref No: 7060/09

CLAIMANT:

RESPONDENT:

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	£36,820.15
(b) Prescribed element	£21,039.75
(c) Period to which (b) relates:	30 June 2009 - 14 May 2010
(d) Excess of (a) over (b)	£15,780.40

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.