Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Ritchie v Weir Decorators Ltd [2010] NIIT 00521_10IT (04 March 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/00521_10IT.html
Cite as: [2010] NIIT 00521_10IT, [2010] NIIT 521_10IT
[New search] [Printable RTF version] [Help]
THE INDUSTRIAL TRIBUNALS
CASE REFS: 521/10
1304/10
CLAIMANT: William Thomas Ritchie
RESPONDENT: Weir Decorators Ltd
DECISION
The unanimous decision of the tribunal is that:-
1(a) The claimant was unfairly dismissed and the respondent is ordered to pay the claimant the sum of £6,352.75.
(b) On foot of the default judgment on liability entered in the Register and issued to the parties on 2 July 2010, the respondent is ordered to pay to the claimant, by way of remedy, the following sums in respect of the following claims:-
(i) holiday pay £ 190.00;
(ii) notice pay £ 570.00; and
(iii) failure to provide
written reasons for
dismissal £ 380.00
Total £1,140.00
(c) The tribunal, makes a declaration that the respondent failed to give the claimant an itemised pay statement, and orders the respondent to pay the sum of £210.00 in respect of unnotified deductions.
Total compensation ordered to be paid by the respondent to the claimant is £7,702.75 (£6,352.75 + £1,140.00 +£210.00).
2. The respondent is further ordered to pay to the claimant the sum of £2,112.00, inclusive of any value added tax properly payable by the respondent to the claimant by way of costs; and which said sum includes the sum of £1,112.00, inclusive of any value added tax payable previously ordered to be paid, as set out in Paragraph 1.9 of this decision, by the respondent to the claimant.
Constitution of Tribunal:
Chairman: Mr N Drennan QC
Members: Mrs M Torrans
Mr P Laughlin
Appearances:
The claimant was represented by Mr M Canavan, Solicitor, of McGuinness & Canavan, Solicitors.
The respondent was represented by Mr R Smyth, Barrister-at-Law, instructed by Oliver Roche & Company, Solicitors.
Reasons
1.1 At the outset, it is necessary to consider in some detail the history of these claims and the events that occurred during the course of the hearing of these claims.
1.2 The claimant presented a claim on 10 March 2010, which was subsequently given the Case Reference No: 521/10. The claim contained three complaints, namely:-
(i) unfair dismissal;
(ii) failure to receive an itemised pay statement; and
(iii) unauthorised deductions from wages.
The parties were notified by letters dated 19 March 2010 that the claimant’s complaints of unfair dismissal and right to receive an itemised pay statement were accepted by the tribunal but that his complaint in respect of unauthorised deductions from wages was rejected. On 29 March 2010, the respondent lodged a response to the said claims, which was accepted by the tribunal, in which liability was denied by the respondent.
1.3 On 13 May 2010, the claimant presented a further claim, which was subsequently given the Case Reference No: 1304/10. That claim contained six complaints, namely:-
(i) holiday pay;
(ii) notice pay;
(iii) unlawful deductions from wages;
(iv) written contract of employment;
(v) written reasons for dismissal; and
(vi) failure to receive a itemised pay statement.
The claims were accepted by the tribunal but the respondent failed to lodge a response to the said claims in accordance with the relevant time-limits set out in the Rules of Procedure.
1.4 In a default judgment entered in the Register and issued to the parties on 2 July 2010, in Case Reference No: 1304/10, the President of the Industrial Tribunals and Fair Employment Tribunal decided the following complaints were well-founded, namely those complaints in respect of:-
(i) holiday pay;
(ii) notice pay;
(iii) unlawful deductions from wages;
(iv) written reasons for dismissal.
The President was not satisfied there was sufficient information to determine remedy in respect of these complaints and she therefore ordered that the issue of remedy, for each such claim, would be determined at the same hearing as the substantive hearing which required to be arranged in respect of the claimant’s claim (Case Reference No: 521/10) and to which the respondent had lodged a response, as set out above.
1.5 However, the President decided it was not appropriate to make a default judgment in respect of the remaining claims in Case Reference No: 1304/10, for the following reasons:-
(i) The complaint in respect of itemised pay statement appeared to be a duplication of the complaint already made in respect of itemised pay statement in the first claim (Case Reference No: 521/10).
(ii) The complaint in respect of a written contract of employment the President raised an issue as to whether or not the tribunal had jurisdiction to determine that claim.
The President therefore directed these two complaints would be considered and determined, both in respect of liability and remedy, at the same hearing as the substantive hearing to be arranged, as set out above, in respect of the claimant’s claim (Case Reference No: 521/10).
1.6 In light of and subject to the foregoing, a Consolidation Order, in relation to the claims made by the claimant (Case Reference Nos: 521/10 and 1304/10), was made by the tribunal on 22 July 2010.
1.7 The hearing to consider and determine the claimant’s claims, in the circumstances referred to above, was arranged to take place on 29 October 2010. The claimant gave evidence and his brother, Karl Ritchie, and the claimant’s mother-in-law, Mrs Kathleen Hunter, also gave evidence on behalf of the claimant. Each were cross-examined by Mr Smyth on behalf of the respondent. Mr Weir, the owner of the respondent company, was present throughout the first day of the hearing which took place on 29 October 2010. At the conclusion of that day’s hearing, it was apparent that a further day’s hearing would be required to be arranged, as Mr Smyth informed the tribunal he would intend to call Mr Weir and possibly other witnesses in relation to financial records/matters on behalf of the respondent. Indeed, at all times, Mr Smyth had cross-examined the claimant and his witnesses on the basis that he would be calling at least Mr Weir as a witness on behalf of the respondent.
1.8 In addition, at the conclusion of the hearing on 29 October 2010, the tribunal, on the application of the claimant’s representative, made an order, by consent, for discovery and inspection of certain financial documentation relating to the claimant and his employment with the respondent, which it had emerged during the course of the claimant’s cross-examination by Mr Smyth had not been previously discovered by the respondent to the claimant, when the respondent had replied to the claimant’s Notice for Discovery and Inspection dated in or about May 2010. At the resumption of the hearing on 17 November 2010, as set out in the Record of Proceedings of the hearing dated 18 November 2010, the tribunal was informed by the claimant’s representative that had there been a failure by the respondent to fully comply with the terms of the tribunal’s Order for Discovery and Inspection; but, in addition, the respondent had also served on the claimant’s representative on 16 November 2010, copies of further discoverable documents, which had also not been previously discovered to the claimant. The claimant’s representative also informed the tribunal that serious issues had arisen in relation to these additional copy documents, discovered by the respondent on 16 November 2010. These issues required him to inspect the originals of the said documents, in order to allow him to make further enquiries before he could cross-examine any witness for the respondent and, in particular, Mr Weir. In particular, he raised concerns, subject to the making of further enquiries and inspection of the original documents, in relation to whether the claimant’s signature on certain copy documents was the actual signature of the claimant. A further difficulty emerged when it became apparent that the original documents, copies of which had now been provided by way of discovery, as set out above, had not been brought to the hearing by the respondent or the representative of his accountants firm, who was also present at the hearing.
Mr Smyth, frankly acknowledged that there had been failures in relation to the compliance with the earlier Order for Discovery and Inspection; but was unable to give a satisfactory explanation to the tribunal why the documents discovered on 16 November 2010 had not been previously discovered by the respondent. He frankly accepted that these documents should have been discovered to the claimant at an earlier date and not on the second day of the hearing. He also accepted that Mr Canavan had to be given an opportunity to make his further enquiries and to inspect the originals of the said discovered documents insofar as this was possible. In the circumstances, Mr Smyth agreed to Mr Canavan’s application for an adjournment of the hearing.
It was agreed, the hearing would resume on 18 – 20 January 2011. Mr Weir was present throughout the discussions which lead to the agreement in relation to the above dates. In addition, the tribunal made a further Order for Discovery and Inspection, as set out in the Record of Proceedings dated 18 November 2010, which was to be complied with by the respondent by 1 December 2010.
1.9 By reason of the said adjournment, as set out in the Record of Proceedings, dated 18 November 2010, the tribunal made an Order for Costs against the respondent, as set out in the Record of Proceedings dated 18 November 2010. Due to a typographical error in the Record of Proceedings, it was stated that the Order for Costs was in the sum of £1,102, inclusive of any Value Added Tax properly payable by the respondent to the claimant in respect of the claimant’s costs. On the resumption of the hearing on 18 January 2011, it was agreed by the representatives that the Order for Costs should have stated £1,112 and not £1,102.
1.10 At the resumption of the hearing on 18 January 2011, Mr Canavan sought leave to recall the claimant to give further evidence in relation to further matters which had arisen, arising out of the further discovery, which had been provided to the claimant by the respondent, as referred to above. In addition, Mr Canavan indicated that, following receipt of these further copy documents on foot of the tribunal’s Orders, he also wished to make an application to admit, without formal proof, a report he had received from a forensic handwriting examiner, giving his opinion in relation to the authenticity of the claimant’s alleged signature on certain copy documents received from the respondent by way of discovery.
1.11 Mr Smyth indicated that he had no instructions in relation to these applications, as he had been informed by his instructing solicitors office, immediately prior to the commencement of the hearing on 18 January 2011, Mr Weir had contacted the office of his solicitor that morning, stating he did not think he required to be at the hearing and further, in any event, he was not coming to the tribunal. Mr Smyth, frankly and fairly accepted that Mr Weir, having been present at the hearing on 17 November 2010, where the dates for the resumed hearing had been agreed was fully aware of the said dates for the resumed hearing. He further agreed that the Record of Proceedings had clearly set out the dates for the resumed hearing. He further confirmed that, at all material times, he had been expecting Mr Weir to attend the resumed hearing and indeed he had been expecting, following correspondence with his instructing solicitor, to consult with Mr Weir, no later than during the hour immediately prior to the commencement of the resumed hearing. He could give no explanation, save as set out above, for Mr Weir’s non-attendance at the tribunal for the resumed hearing.
1.12 The tribunal gave Mr Smyth time to obtain further instructions from his instructing solicitors, who were also not present at the hearing, before the tribunal proceeded to consider and determine not only the applications which Mr Canavan wished to make; but any application Mr Smyth might wish to make, in light of the circumstances, that had now arisen and/or in relation to the future conduct of the hearing by the tribunal.
1.13 Having obtained instructions, from his instructing solicitor, Mr Smyth informed the tribunal that he and his instructing solicitor remained on record for the respondent; but, in the circumstances, he was not in a position to call any evidence and would not be doing so; and further he had no application to make to the tribunal for an adjournment or otherwise. He acknowledged that, in the absence of any such application, the matter would have to proceed and take its course. In relation to Mr Canavan’s application to recall the claimant, Mr Smyth accepted that, in the circumstances, there was nothing he could usefully submit to the tribunal. The tribunal therefore, in the interests of justice, agreed to the claimant’s recall to give further relevant evidence, in light of the further copy documents obtained on discovery from the respondent, following his earlier evidence. In relation to the report from the handwriting examiner, Mr Smyth acknowledged that, at the hearing on 17 November 2010, Mr Canavan had, following receipt of the further copy discoverable documents, indicated such a report might be necessary, particularly in relation to the claimant’s alleged signature on a P46 copy document, which had been provided by the respondent on discovery. On obtaining the report dated 7 January 2011, a copy had been provided to the respondent’s solicitors by the claimant’s solicitor on or about 14 January 2011, in the absence of receipt from the respondent of the original of the P46 document, which Mr Canavan now assumed was probably still in the possession of the relevant tax authorities. Mr Canavan pointed out that the examiner was based in Great Britain and he had decided, in the circumstances, and having regard to the terms of the overriding objective, not to require the examiner to attend to prove his report. However, given the circumstances in which the copy documents had been provided by way of discovery, he asked that the report be admitted in evidence, without formal proof. He fully acknowledged that, if the tribunal granted his application, the weight which would be attached to the report and its contents, in the absence of the examiner to prove the report and/or to be available for cross-examination, would be a matter for the tribunal. Mr Smyth submitted that, if the tribunal granted Mr Canavan’s application, the weight which should be attached to the report, which both parties acknowledged was an opinion on the part of the examiner, should be very little.
In the circumstances, the tribunal decided to admit the report without formal proof; but, when doing so, emphasised that the weight which would be attached to the report, in the circumstances, would be a matter for the tribunal to consider in due course and at the conclusion of the evidence.
1.14 The respondent, in the circumstances, as set out above, did not call any evidence. Save insofar as the claimant and/or any of his witnesses made any admissions on foot of any cross-examination by Mr Smyth, the tribunal had no regard and/or did not take into account of any of the matters which had been put to the claimant and/or his witnesses, and denied by them, during the course of the cross-examination by Mr Smyth. In this context, the tribunal accepted, subject to liability, the evidence of the claimant in relation to any remedy to which he was entitled and did not have regard to the copy financial records produced by the respondent on foot of discovery, and in relation to which the claimant’s representative had no opportunity to cross-examine the respondent and/or any witnesses on its behalf,
2.1 Having considered the evidence of the claimant and his witnesses, the tribunal, insofar as relevant and necessary for the determination of the claimant’s claims, made the following findings of fact, as set out in the following sub-paragraphs.
2.2 The claimant who was born on 24 December 1986, was continuously employed by the respondent from 1 January 2007 until on or about 19 January 2010 as a painter/decorator. There was no break in his employment during the said period and, further for the avoidance of any doubt, the tribunal was not satisfied, on the evidence of the claimant, that the signature ‘Willie Ritchie’ on the copy P46 HMRC document, produced on discovery by the respondent and dated 2 July 2007 and which purported to show the claimant only commenced employment with the respondent on that date, was the signature of the claimant or signed by him on that date. Although the claimant is known, including by the respondent, as ‘Willie Ritchie’, the tribunal accepts, on his evidence, that he would normally sign all such documents ‘William Ritchie’. In the circumstances, it was therefore not necessary for the tribunal to have to consider further the opinion of the claimant’s handwriting examiner in his report, which is referred to above.
2.3 It was not disputed by Mr Smyth that the respondent at no time had provided to the claimant an itemised pay statement nor had the respondent provided to the claimant, at any time, a written statement of employment particulars. It was further agreed, following discussion by the representatives, that the claimant was owed, by the respondent, £190.00 in respect of holiday pay, pursuant to the Working Time Regulations (Northern Ireland) 1998.
2.4 From in or about August 2008, until the termination of the claimant’s employment on or about 19 January 2010 the claimant, on his evidence, was paid by the respondent £190.00 net per week, which the tribunal is satisfied is the equivalent of £225.00 gross per week. The respondent failed to provide the claimant with any itemised pay statement during the course of his employment and, in particular, showing the deductions made by him of £35.00 per week (£225.00 - £190.00) during the course of his employment.
2.5 The claimant on Sunday 17 January 2010 was involved in a car crash when he was a passenger in a motor car driven by Gary Weir, the nephew of Robert Weir. As a result of personal injuries sustained in the accident the claimant was in hospital for a short period. He had been due to be at work with the respondent on 18 January 2010. He contacted Mr Weir on 18 January 2010 on his return from hospital to inform him of the accident and that he would not be able to return to work for a period due to the injury to his scaphoid bone. At first, Mr Weir was sympathetic. But his attitude changed after Mr Weir asked the claimant whether he was going to take a civil personal injury claim against his nephew. When the claimant confirmed he was, Mr Weir became very angry and abusive and, in particular, told the claimant he would never work for the respondent again. On 19 January 2010 he was sent a P45 by the respondent, which was slipped under the door of the claimant’s house which, inter alia, confirmed that the respondent also considered the claimant’s contract of employment had been terminated by him. The tribunal has no reason to believe, on the evidence of the claimant, that but for the said termination of his employment he would not have remained in employment with the respondent. The claimant was not given any notice pay on the termination of his employment.
2.6 The tribunal is satisfied that, following the termination of his employment, the claimant continued to look for alternative employment and mitigated his loss by taking on temporary employment with his brother, Karl Ritchie, supervising a painting contract his brother had obtained from 15 March 2010 until 9 April 2010, in which he earned £300.00. The claimant then obtained full-time permanent employment, as a painter and decorator, with Noel Campbell on 28 June 2010. In the tribunal’s opinion the claimant’s financial loss, given the amount of his earnings with Mr Campbell, ended on that date. It does not accept that any financial loss suffered by the claimant between 8 December 2010 and 17 December 2010, when he was temporarily laid off by Mr Campbell, due to the downturn in work in Mr Campbell’s business, is a loss properly attributable to the respondent.
2.7 Following the termination of his employment the claimant was in receipt of Employment Support Allowance from on or about 19 January 2010 until 15 March 2010, in the sum of £414.83. Such benefit did not require to be the subject of recoupment as the Employment Protection (Recoupment of Jobseekers’ Allowance and Income Support) Regulations (Northern Ireland) 1996, as amended by the Social Security (Miscellaneous Amendment No 6) Regulations (Northern Ireland) 2010 (‘the Recoupment Regulations’), which requires such benefit to be the subject-matter of the Recoupment Regulations, did not come into force until 1 November 2010. In the absence of recoupment, the said benefit was therefore required to be taken into account by the tribunal when assessing the claimant’s compensation.
The claimant did not receive any other benefit, the subject-matter of the Recoupment Regulations, and the Recoupment Regulations therefore do not apply to the decision in this matter.
The claimant was also in receipt of Housing Benefit; but the tribunal was satisfied, in the assessment of any remedy to which the claimant was entitled in his matter, it was not necessary for the tribunal to take into account any housing benefit paid to the claimant (see further Savage v Saxena [1998] ICR 357).
3.1 The claimant claims that he was unfairly dismissed.
Under Article 130 of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) it is provided:-
“(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –
(a) the reason (if more than one, the principle reason) for the dismissal, and
(b) that it is either a reason falling within Paragraph (2) of some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2) The reason falls within this paragraph if it –
(a) relates to the capability of or qualifications of the employee for performing work of a 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 that of his employer) of a duty or restriction imposed by or under a statutory provision.
(3) …
(4) Where the employer has fulfilled the requirements of Paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reasons 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.”
3.2 In addition to the provisions of the 1996 Order, referred to in the previous sub-paragraph, it was also necessary for the tribunal to have regard to the further statutory provisions, as set out below.
3.3 Substantial changes to the law of unfair dismissal were introduced following the commencement, in April 2005, of the Employment (Northern Ireland) Order 2003 (‘the 2003 Order’); and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (‘the 2004 Regulations’). The 2003 Order and the 2004 Regulations introduced, inter alia, statutory procedures to be complied with when dealing with matters of discipline and/or dismissal.
3.4 Under the statutory procedures, introduced under the said legislation, employers, subject to certain exemptions which were not applicable in this case, are required to follow a specific procedure when subjecting employees to disciplinary action or dismissal. There are two alternatives, namely a ‘standard’ dismissal and disciplinary procedure (‘DDP’) or a ‘modified’ DDP. There was no dispute that the latter procedure was not applicable in this matter.
Under the standard DDP it is provided at Paragraphs 1 – 3 of Schedule 1 of the 2003 Order as follows:-
“ Step 1 : Statement of grounds for action and invitation to meeting
1(1) The employer must set out in writing the employee’s alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.
1(2) The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.
Step 2 : Meeting
2(1) The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.
2(2) Meeting must not take place unless –
(a) the employer has informed the employee what the basis was for including in the statement under Paragraph 1(1) the ground or grounds given in it, and
(b) the employee has had a reasonable opportunity to consider his response to that information.
2(3) The employee must take all reasonable steps to attend the meeting.
2(4) After the meeting, the employer must inform the employee of his decision and notify him of the right of appeal against the decision if he is not satisfied with it.
Step 3 : Appeal
… .”
3.5 Arising from the introduction of the said statutory procedures, there also required to be further amendment made to the 1996 Order, including, in particular, the introduction of Article 130A of the 1996 Order, which provides:-
“(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if –
(a) one of the procedures set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (dismissal and disciplinary procedures) applies in relation to the dismissal,
(b) the procedure has not been completed, and
(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.
(2) Subject to Paragraph (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.
… .”
3.6 Thus, if an employer fails to comply with the applicable DDP when dismissing an employee, the dismissal will be automatically unfair (Article 130A of the 1996 Order).
3.7 Failure to comply with the relevant statutory procedures in relation to the applicable DDP has an impact on compensation in relation to a claim of unfair dismissal, resulting in an adjustment upwards (in the case of default by the employer) or an adjustment downwards (in the case of default by the employee). Under Article 17(2) and 17(3) of the 2003 Order, the adjustment must be at least 10% and, if the tribunal considers it just and equitable, up to 50%. However, under Article 17(4) of the 2003 Order, a tribunal can apply no adjustment (or an adjustment of less than 10%) if there are exceptional circumstances making a 10% adjustment unjust or inequitable. Any potential uplift or reduction is limited to the compensatory award only; and there is no provision in an unfair dismissal claim to uplift the compensatory award beyond the statutory maximum (Article 158A of the 1996 Order).
3.8 Although the decisions of the Employment Appeal Tribunal are not binding on this tribunal; however, the tribunal in the absence of any relevant decisions in the Court of Appeal in Northern Ireland in relation to the said statutory procedures, has found the decisions of the Employment Appeal Tribunal, in relation to such matters persuasive and appropriate to follow – in particular, in circumstances where the decisions of the Employment Appeal Tribunal relate to provisions, which were then applicable in Great Britain, and which were in similar terms to the relevant statutory provisions in Northern Ireland, to which reference has been made above.
The Employment Appeal Tribunal has been reluctant to set down principles that fetter the discretion of a tribunal in relation to this issue of the uplift and reduction of the compensatory award in relation to a finding of automatic unfair dismissal (see Cex v Lewis [UKEAT/0031/07]).
In Metrobus Ltd v Cooke [UKEAT/0490/06] the EAT did not interfere with an uplift of 40% where the employer had ‘blatantly’ failed to comply with the obligation to send a Step 1 letter and acknowledged that the uplift provisions were more ‘penal than compensatory than nature’. In Davies v Farnborough College of Technology [2008] IRLR 4, Burton J suggested a maximum uplift could apply where there had been ‘a complete and deliberate breach of any procedures’.
Ultimately, in summary, the extent of any uplift would appear to be a matter within the discretion of a tribunal, having regard to all material circumstances, which are ‘unlimited’. Further, the statutory provisions do not require the tribunal to start at an uplift of 50% and work downwards in accordance with evidence of mitigation provided by the respondent (see Butler v GR Carr (Essex) Ltd (UKEAT/0128/07]). However, in the case of Aptuit (Edinburgh) v Kennedy [UKEATS/0057/06], the Employment Appeal Tribunal (in Scotland) held that when exercising its discretion to uplift an award, the only circumstances which the tribunal may take into account are those surrounding the failure to complete the statutory procedure. In the case of McKindless Group v McLaughlin [2008] IRLR 678, the Employment Appeal Tribunal (in Scotland) has again confirmed that, in exercising the discretion the tribunal must do so by reference to some particular facts and circumstances surrounding the failure to complete the statutory procedure which can properly be regarded as making it just and equitable that the employer should be penalised further. Somewhat controversially, the EAT held that an uplift should not follow if the employer does not explain the reasons for the failure to comply, on the grounds that the statutory provisions do not oblige the employer to explain the failure.
In the case of Virgin Media Ltd v Seddington & Another [UKEAT/0539/08], Underhill J applied the McKindless Group case and confirmed that a (if not the) primary factor requiring to be taken into account in exercising the discretion in relation to whether an uplift was applicable related to how culpable the failure to employ the statutory procedures was. Underhill J accepted that, in some circumstances, a failure to employ the statutory procedures might speak for itself. In addition, he said that the issue of uplift should not be approached too mechanistically, as had occurred in the particular facts of that case.
Following the introduction of the new statutory procedures, Article 130A(1) and (3), as set out above, provided a dismissal was automatically unfair if the new procedures were not followed. Article 130A(2) made further changes to the law in relation to unfair dismissal and, in particular, provided in certain circumstances, for partial reversal of the principles set out in the well-known House of Lords decision in the case of Polkey v AE Dayton Services Ltd [1988] ICR 344 (‘Polkey’). However, Article 130A(2) does not apply to a case where there has been a dismissal in breach of the statutory dismissal procedures, whereby the dismissal is automatically unfair under Article 130A(1). Article 130A(2) of the 1996 Order is only of application where the statutory DDP has been complied with but there is a breach of procedures other than the statutory procedures. In light of the decision of the tribunal, as set out below, it was not necessary for the tribunal to further consider the provisions of Article 130A(2) of the 1996 Order.
4.1 The tribunal was satisfied, on the facts as found by it, as set out above, that the respondent had failed to follow the statutory dismissal procedure by dismissing the claimant without attempting in any way to comply with Step 1 of the DDP. In these circumstances, the dismissal was automatically unfair pursuant to Article 130A(1) of the 1996 Order. If it had been necessary for the tribunal to do so, the tribunal would also have found (see further Metrobus Ltd v Cooke [UKEAT/0490/06] the claimant had been unfairly dismissed (ordinary), pursuant to Article 130 of the 1996 Order. Having found the dismissal was automatically unfair following the termination of his employment in the manner and circumstances, as set out above, and that, but for the said termination, the claimant would have continued to be employed by the respondent, the tribunal, in the absence of any relevant evidence from the respondent, was not in a position to consider further the application of the principles set out in the Polkey decision; and the tribunal did not do so.
The respondent failed to establish, and the onus was on the respondent, the reason for the dismissal and that it was a reason falling within Paragraph 130(2) of the 1996 Order or was some other substantial reason of a kind such as to justify the dismissal of the claimant in the position he held with the respondent. To dismiss the claimant because he had told the respondent he intended to bring a civil claim again Mr Weir’s nephew, arising out of a car accident in which the nephew was driving and the claimant was a passenger, was not a reason falling within Article 130(1) of the 1996 Order.
4.2 The tribunal, given the automatic unfair dismissal of the claimant by the respondent by reason of the failure to comply with the statutory dismissal procedure, therefore had to consider the impact on the compensation to be awarded to the claimant and, in particular, the adjustment to be made by the tribunal to the compensatory award payable to the claimant on foot of the unfair dismissal. Applying the guidance set out in the authorities referred to in Paragraph 3.8 of this decision above, the tribunal came to the conclusion that the compensation should be uplifted by 50%. In doing so, the tribunal took into account that there had been a complete failure by the respondent to follow the statutory procedure. The respondent had not attempted in any way to take the first step under the said statutory dismissal procedure. As set out above, the respondent failed to give any evidence to the tribunal in relation to his failure to follow the statutory procedure. In the circumstances, the tribunal concluded that the respondent had blatantly failed to comply with the relevant obligations to send the Step 1 letter, and that it was therefore just and equitable to impose the maximum uplift under the 1996 Order. The respondent had every opportunity, if he had wished to do so, to give evidence to the tribunal to give an explanation for his said failure to comply with the statutory procedures.
4.3 The claimant, not having been provided with a statement of employment particulars and the tribunal having found he was unfairly dismissed, was also entitled to an award of compensation pursuant to Article 27 of the 2003 Order. Such an award is two weeks pay or may be increased to four weeks pay, if the tribunal considers it just and equitable. The tribunal has no doubt that if a statement of employment particulars had been provided to the claimant during the course of his employment many of the issues in this case, and, in particular, any issue in relation to the amount of the claimant’s earnings during the course of his employment could have been avoided. The tribunal concluded that, in the circumstances, it was just and equitable to make an award of four weeks pay.
5.1 The tribunal then assessed the compensation which the claimant was entitled, in light of the claimant’s schedule of loss, as presented in evidence to the tribunal by the claimant.
5.2 In relation to the claimant’s claim of unfair dismissal the tribunal assessed compensation to the claimant as follows:-
(a) Basic Award
2 x £225.00 £ 450.00
(b) Compensatory Award
(i) Loss of earning at £190.00 per week from
9 February 2010 to 28 June 2010
20 weeks x £190.00 £3,800.00
Less
(i) ESA Benefit payments £414.83
(ii) Employment with
Karl Ritchie £300.00 -£ 714.83
£3,085.17
(ii) Loss of statutory rights £ 250.00
(iii) Four weeks pay for failure to
provide statement of employment
particulars (4 x £225.00) £ 900.00
£4,235.17
Add
50% Uplift £2,117.58
Total £6,352.75
Total compensation for unfair dismissal £6,352.75
5.3 The tribunal further made a declaration pursuant to Article 44(3) of the 1996 Order that the respondent failed to give the claimant an itemised pay statement pursuant to Article 40 of the 1996 Order; and pursuant to Article 44(3) of the 1996 Order orders the respondent to pay to the claimant the unnotified deductions of £35.00 (£225 - £190) for the period of six weeks during the period of 13 weeks preceding the date of the application to the tribunal - £210.00 (£6 x £35.00).
5.4 On foot of the default judgment entered in the Register and issued on 2 July 2010 to the parties the tribunal found the claimant was entitled to the following remedy, in relation to each claim the subject of the default judgment:-
(i) Holiday pay £ 190.00
(ii) Notice pay (3 x £190.00) £ 570.00
(iii) Failure to provide written reason
for dismissal (2 x £190.00) £ 380.00
Total £1,140.00
Although the default judgment found the claim of unauthorised deduction of wages was well-founded, the tribunal was not satisfied the claimant was entitled to any remedy, in relation to the said claim, as at all material times the claimant was paid £190.00 net per week.
Total compensation therefore payable by the respondent to the claimant as set out above - £7,702.75.
5.5 The Recoupment Regulations do not apply to this decision.
5.6 This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
6.1 At the conclusion of the hearing the claimant’s representative made an application for costs on the grounds that the respondent had conducted the proceedings unreasonably pursuant to Rule 40 of the Industrial Tribunals Rules of Procedure 2005. In essence, Mr Canavan said that this matter could have been concluded on the first day of the hearing. He accepted that he had already obtained, as set out in Paragraph 1.9 of this decision, an Order for Costs for the costs incurred on the second day of hearing in the sum of £1,112.00. In essence, he submitted that the respondent’s representative had cross-examined the claimant on the basis Mr Weir would attend the hearing and give evidence; but Mr Weir did not attend the tribunal on the third day of the hearing or give any evidence and for which absence he provided no reason to the tribunal or his representative. The third day of hearing had been arranged for the respondent to call any evidence which it did not do, and was consequently a ‘wasted day of hearing’.
He reminded the tribunal that Mr Weir had been present throughout the first and second day’s hearing and as a result of his earlier failure to properly provide discovery, the respondent had already been the subject of an Order for Costs.
Mr Canavan sought the sum of £1,000.00 costs (exclusive of any VAT properly payable) including travel expenses for the additional costs incurred by the claimant for the unnecessary third day of hearing. Mr Smyth did not consent to the making of any order but made no relevant submissions. Given that the tribunal did not require to consider the report obtained from the forensic examiner the tribunal did not consider the cost of the report should also be the subject of any claim for costs by the claimant on foot of this application for costs.
6.2 Under Rule 35 of the Rules of Procedure the tribunal, firstly, has to consider whether the respondent has conduced itself unreasonably. The tribunal then has to consider, secondly and separately, whether to exercise its discretion to make an Order for Costs (see further Criddle v Epcot Ltd [UKEAT/0275/05]. The tribunal had no doubt that the respondent by his action in failing to attend and give evidence, without explanation, has conducted the proceedings unreasonably.
In considering whether to exercise its discretion to make any Order for Costs, the tribunal was mindful that to order costs in tribunal cases is an exceptional course of action (see further Lodwick v London Borough of Southwark [2004] IRLR 554). However it also took into account the dicta of the Court of Appeal in Peifer v Castlederg High School and Western Education & Library Board & Another [2008] NICA 49, approved in Rogan v South Eastern Health & Social Care Trust [2009] NICA 47, where the court emphasised that parties are bound to conduct themselves in a way which furthers the terms of the overriding objective and should strive to avoid, inter alia, time-wasting, unnecessary cross-examination and further encouraged tribunals, where appropriate, to make use of their increased costs powers. In light of the foregoing, but in particular the failure of the respondent, without explanation, to attend and present the defence of his claim, with the result there was an additional wasted day of hearing, that an Order for Costs for that day’s hearing was appropriate. The tribunal was satisfied that the costs of £1,000.00 inclusive of any Value Added Tax properly payable by the respondent, was an appropriate sum for the costs of the additional wasted day of hearing.
6.3 The tribunal therefore decided to order the respondent to pay the sum of £1,000.00, inclusive of any Value Added Tax properly payable by the respondent, to the claimant in respect of the claimant’s costs of the additional day’s hearing. The tribunal having previously ordered the respondent to pay the sum of £1,112.00 by way of costs, as set out in Paragraph 1.9 of this decision the tribunal, for the avoidance of any doubt, ordered the respondent to pay the total sum of £2,112.00 by way of costs, inclusive of any Value Added Tax properly payable by the respondent to the claimant.
Chairman:
Date and place of hearing: 29 October 2010;
17 November 2010; and
18 January 2011, Belfast
Date decision recorded in register and issued to parties: