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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Lewis v McWhinneys Sausages Limited [2011] NIIT 01716_10IT (21 September September 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/01716_10IT.html
Cite as: [2011] NIIT 01716_10IT, [2011] NIIT 1716_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1716/10
CLAIMANT:
David Lewis
RESPONDENT: McWhinneys Sausages Limited
Certificate of Correction
In
the Decision on Remedy issued on 21 September 2011:
On Page 8, paragraph 21, under Recoupment of Benefits from Awards, the “Prescribed Element:” at paragraph 21 (b) should read “1,783.44” and the “Excess of (a) over (b):’ at paragraph 21(d) should read “1,350.93” and the Annex to the Decision of the Tribunal should be amended accordingly.
Chairman:
Date: / 7 October 2011
THE INDUSTRIAL TRIBUNALS
CASE REF: 1716/10
CLAIMANT: David Lewis
RESPONDENT: McWhinneys Sausages Ltd
DECISION ON REMEDY
The unanimous decision of the tribunal is that the claimant is entitled to compensation in the sum of £3,134.37 and the tribunal orders the respondent to pay to the claimant that sum.
Constitution of Tribunal:
Chairman: Mr J V Leonard
Members: Mr W Irwin
Mr J Welsh
Appearances:
The claimant appeared and was represented by Mr Andrew Meeks, as a friend.
The respondent was represented by Mr Philip Broom, Solicitor and Employment Consultant.
REASONS
1. By decision (“the decision”) promulgated on 7 March 2011, the tribunal found the claimant to have been unfairly dismissed by the respondent and the matter was accordingly listed for a hearing on remedy.
2. In the course of this hearing, Mr Meeks on behalf of the claimant has made clear that the claimant was seeking the remedy of reinstatement. After further discussions in the course of the hearing it became clear that the remedy of reinstatement was not practicable and accordingly the matter proceeds as a hearing on remedy with the remedy of compensation only being applicable under the circumstances of the matter.
3 The tribunal heard oral evidence from the claimant and documents were submitted in evidence. Upon conclusion of the hearing the tribunal received oral submissions from the respective representatives.
4. At the outset of the hearing an issue arose concerning information and documentation which Mr Broom contended had been requested by him in writing from the claimant’s representative, going towards the issue of remedy, but which had not been provided by the claimant’s representative in a timely manner, so Mr Broom contended. Mr Broom also referred to that concluding part of the decision where he argued that the tribunal had made it entirely clear what would be required of the claimant for this hearing upon remedy. For the claimant, Mr Meeks explained to the tribunal what steps he stated he had taken with the claimant to obtain information and documentation for this hearing and to endeavour to communicate that to Mr Broom a short time before the listed date. Notwithstanding some issues of dispute upon this, the respective representatives agreed that it was proper to proceed with the hearing and no adjournment was thus sought. The tribunal thus proceeded to hear oral evidence from the claimant in respect of the material issues and some documents were also introduced into evidence in the claimant’s case, without objection on the part of the respondent’s representative save as to relevance.
THE TRIBUNAL’S FINDINGS OF FACT
5. In consequence of the oral and documentary evidence adduced, the tribunal on the balance of probabilities determined the following material facts relevant to the issue of remedy:-
5.1 The effective date of termination of the contract of employment in this matter was 27 May 2010. Documentation from the Social Security Agency confirms that the claimant was in receipt of Employment and Support Allowance (income related) from 28 May 2010 to 1 December 2010. The claimant was certified unfit for work by his Doctor, so the tribunal understands, throughout this period from May to the start of December 2010 and Social Security Agency documentation confirmed he was paid a total of £2,108.08 in that period.
5.2 The claimant’s evidence to the tribunal, which was not controverted by any other evidence and which the tribunal accepted as being accurate, was that the claimant experienced matrimonial difficulties and he was separated from his spouse. He formed a new relationship and he moved to reside in Portstewart, County Londonderry. This move was, as the tribunal understands it, some time towards the end of the year 2010, possibly at the start of December 2010.
5.3 After 1 December 2010 there is no clear evidence that the claimant was unfit for work. Notwithstanding that, at this time the claimant does not appear to have applied for any state benefits. The claimant explained to the tribunal that at this point in time (the tribunal believes December 2010 to the end of January 2011) he was reliant upon monies loaned to him by his partner in the newly-formed relationship. There is also an issue raised in the claimant’s evidence concerning whether the claimant was endeavouring to come off the medication which the claimant had been prescribed for some time. However the tribunal found the claimant’s evidence in that regard to be vague and unspecific and there was no clear medical evidence to clarify the position. From all of the foregoing, the tribunal’s conclusion is that the claimant was fit to work commencing 1 December 2010, at which time the claimant ceased to be in receipt of Employment and Support Allowance and thereafter. It seems to the tribunal, for want of any evidence to the contrary, that there was no medical cause, physical or mental, preventing the claimant from working or endeavouring to engage in work from the start of December 2010 onwards.
5.4 Documentation from the Social Security Agency and the claimant’s evidence confirms that the claimant subsequently signed on for Jobseekers Allowance. He was in receipt of that benefit from 8 February 2011 at a weekly rate of £65.45 from that date until 11 April 2011 and thereafter at an increased rate of £67.50 from 12 April 2011 and onwards. The claimant’s evidence was that he was still in receipt of Jobseekers Allowance at the hearing date in respect of this matter.
5.5 There is no evidence that the claimant at any stage throughout any of the foregoing period, that is to say from 1 December 2010 onwards, when he appears to have become fit for work, made any applications for any employment. The claimant appears to have fulfilled the prescribed conditions for securing and being paid Jobseekers Allowance. However, he nonetheless was unable to demonstrate to the tribunal that he had made any applications for any posts of employment throughout this time. When questioned further upon this in the course of the hearing, the claimant indicated that he had no current applications for employment at the hearing date, nor did he anticipate that he would be in a position to make any applications in the foreseeable future. He stated that he had no other income save the Jobseekers Allowance referred to above. The claimant indicated that his prospects of securing any job were very limited. However, he had not made any applications.
5.6 The claimant introduced into evidence, without objection on the part of the respondent’s representative save as to relevance and materiality, a copy of a letter from a Dr Alison Logan dated 8 August 2011 which Mr Meeks stated had been obtained for the purposes of this hearing. It seems that Dr Logan was not the claimant’s personal General Practitioner but that Dr Logan had compiled the letter from the medical practise records. Mr Broom stated that he had not seen that letter until the date of this hearing, but did not object to the tribunal taking account of the letter, subject to any further submissions on his part. The letter states:-
“Mr Lewis attended the surgery on 18th January 2010 following an accident at work in which he said that he was crushed between a wall and a forklift vehicle. He was complaining of back pain and was prescribed co-codamol and ibuprofen for the pain. He was later seen again and was prescribed tramadol and referred to physiotherapy. Mr Lewis further attended the surgery in May 2010 complaining of stress at work. At this time he was prescribed Fluoxetine and Diazepam. He has since been seen on a number of occasions regarding ongoing stress and (sic) work and home as well as depression and his treatment is ongoing”.
5.7 At the date of dismissal the claimant’s gross weekly pay was £233.54 and his nett pay per week was £198.16. He had completed three full years of service and he was aged forty-four years. The tribunal did not need to determine any other material findings of fact in order to reach a conclusion in the matter.
THE APPLICABLE LAW
6. The Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) provides at Article 153 for a basic award which is dependant upon the length of continuous employment and the age of the employee and the rate of gross weekly pay. Article 156 of the 1996 Order provides that the basic award may be reduced on account of conduct of the employee where it would be just and equitable to do so. Article 157 of the 1996 Order provides for the compensatory award which shall be such amount as the tribunal considers just and equitable in all the circumstances, having regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer. Further, if the tribunal finds that the dismissal was to an extent caused or contributed to by any action of the complainant, the tribunal shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.
THE TRIBUNAL’S DETERMINATION
THE SUBMISSIONS
7. In this case, Mr Meeks on behalf of the claimant, did begin the hearing upon foot of the contention that the remedy of reinstatement was practicable. After some discussions between the parties and further enquiry by the tribunal, it became apparent that mutual trust and confidence in the matter had entirely broken down between the claimant and the respondent with the resultant suggestion that reinstatement or re-engagement was not in any manner a practicable proposition. The tribunal’s assessment of matters accordingly is that the claimant did realistically accept that to be the case. The tribunal’s determination of the matter therefore is that neither reinstatement nor re-engagement are practicable propositions. Thus the tribunal is concerned only with the matter of compensation, computed in accordance with the statutory provisions and the general law.
8. For the claimant, Mr Meeks has submitted that the claimant was very adversely affected by the dismissal and was thereby rendered incapable of work over a period of time. Since regaining comparative fitness to work, the reason for the claimant not making any applications for any posts of employment related to the particular employment situation in the locality where the claimant now resides. Mr Meeks contended that the job situation was extremely poor, with no jobs available. Mr Meeks in submissions contended that it is quite sufficient to demonstrate that the claimant has complied with the requirements for obtaining Jobseekers Allowance as being evidence of the claimant’s full and proper mitigation of loss. Mr Meeks also made further submissions regarding a claim for compensation for injury to feelings on the claimant's part, which will be referred to below.
9. For the respondent, Mr Broom, has submitted that there is no evidence adduced of the claimant’s unfitness for work going as far back as the time of the dismissal. Mr Broom has alluded to the final paragraph of the tribunal’s decision in the matter and to the fact that the tribunal therein had made it quite clear, in paragraph 22 of the decision promulgated on 7 March 2011, that the tribunal expected that in reaching its further determination the tribunal would have the benefit of full, proper and detailed evidence and argument regarding the cause of the claimant’s stated incapacity for work up to the date of hearing and any continued incapacity that might be claimed thereafter or, alternatively, any capacity to regain full remunerative employment and fully to mitigate any loss claimed. That indication on the tribunal’s part and the resultant expectation of proper evidence, Mr Broom submitted, had been entirely ignored by the claimant and his representative. There was a record of some medication being prescribed but no proof of incapacity for work and especially no proof that the claimant had made any effort whatsoever to endeavour to mitigate his loss. Mr Broom further submitted that the conduct of the claimant at the time of dismissal and the events preceding the dismissal ought to be properly taken into account by the tribunal. That ought to result in a substantial reduction of any compensation that might otherwise be available in the case. Mr Broom, further, submitted that injury to feelings was not compensatable and the claimant’s representative had misunderstood the case cited in argument by him in that regard.
THE DETERMINATION
10. Taking account of these submissions and of the evidence in the case and conclusions of fact arrived at by the tribunal, the tribunal notes that its task is to assess, insofar as the compensatory award is concerned, a causal connection between any continuing loss and the dismissal. The compensatory award is to be such amount as the tribunal considers just and equitable in all the circumstances, having regard to the loss sustained by the complainant in consequence of the dismissal, insofar as that loss is attributable to action taken by the employer; hence the need for the claimant to establish clear causal connections. Where an employee becomes unfit for work following his dismissal, that unfitness may well be in some circumstances considered to be an intervening act, after which the employee’s losses are no longer attributable to dismissal. In other situations, the circumstances will be different if the employee suffers ill health as a direct result of any unfair dismissal. In such cases, the tribunal carefully needs to consider any cause of any ill health based upon any available evidence and the issue of whether or not that is connected in whole or indeed in part with the dismissal.
11. In this matter, the tribunal had made it entirely clear to the parties in the concluding part of the decision what were the anticipated requirements for proving any such causal connection. However, the tribunal notes that no clear and cogent medical evidence has been produced in regard to that specific requirement. As regards evidence, the tribunal has the claimant’s testimony to the effect that he was suffering matrimonial difficulties which resulted in the breakup of his marriage and that he had felt depressed and anxious after the dismissal for a period of time. The tribunal also has the content of the letter from Doctor Logan as referred to above. As evidence, that is rather imprecise and does comparatively little to assist in establishing any causal connection both in regard to the apparent difficulties experienced by the claimant before, around the time, and after, the dismissal. The matter is further compounded by references or allusions in the letter to the injury of January 2010 and to matrimonial difficulties (the latter being gleaned from the reference to “..and home..”) and also the ambiguous reference, compounded with an apparent typographic error (“..and (sic) work….”), thereby indicating, as Mr Broom suggested in formulating his cross-examination questioning, that the claimant had indeed been working on an ongoing basis after the dismissal. The claimant denied that and the tribunal made no finding that that was the case. The tribunal was thus sympathetic to Mr Broom’s suggestion that the Doctor’s letter was of limited evidential value.
12. In regard to matter of cause and effect, the tribunal is in some additional difficulty for the reason that the claimant, it is quite clear and as his own evidence confirms, has made and has settled a claim against the respondent for personal injuries, which claim has included settlement of a claim for general damages, as the tribunal understands the claimant’s testimony. In the decision, the tribunal had recorded some earlier evidence concerning the medications stated to have been prescribed for the claimant prior to the dismissal. The tribunal notes that at the time of the disciplinary hearing the claimant in his earlier evidence contended that he was “floating” as a result of the amount of medication that was prescribed at that time. The dismissal therefore cannot be causally connected to that prescription and the medical reason underlying that. The somewhat arduous task presenting itself to this tribunal, in the absence of proper, cogent and clear medical evidence which the tribunal had anticipated might have been adduced, is to disengage that part of the claimant’s alleged ongoing condition, post-dismissal, from his alleged condition prior to the dismissal which latter, it seems, was attributable to and caused by the earlier personal injury alone and which has already been subject to compensation.
13. This is a matter in which it would be quite inappropriate for the tribunal to engage in mere speculation. Any evidence to assist in the determination is extremely limited. Noting that the claimant has, it appears, already been compensated for the personal injury and for the consequences flowing from that, the task of the tribunal is not to afford additional compensation for the same injury or cause of action, even if the tribunal had statutory or other power to do that, which of course it does not. Rather, the task of the tribunal is to afford compensation in justice and equity in respect of the unfair dismissal and any consequences flowing from that dismissal. Thus the tribunal has to have regard to the loss sustained by the claimant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer in the case. The burden of proof in such a matter lies firmly with the employee.
14. In this case, the tribunal has been referred to GAB Robins (UK) Ltd v Triggs [2008] EWCA Civ 17. That decision, in the tribunal’s view, is distinguishable and of little value to the tribunal as it relates to a constructive dismissal matter and to reduced earning capacity by reason of illness being a loss, “in consequence of dismissal”. In respect of the claimant's representative's submission in respect of compensation for injury to feelings, there is no basis for such a contention within the jurisdiction available to this tribunal and the case, indeed, cited by the representative in that regard, Dunnachie v Kingston-upon-Hull City Council [2004] UKHL 36 is generally regarded as authority to the contrary proposition.
15. The tribunal notes that when questioned by the tribunal as to whether he could apportion his alleged unfitness to work, post-dismissal, between the cause of the alleged injury to his back and the alleged anxiety and depression which the claimant contended stemmed from the dismissal, the claimant’s assessment was “50/50”. The claimant, on his own case, was therefore not seeking to attribute all of his stated incapacity for work to the dismissal but rather he was expressly conceding that the injury played some part.
16. The tribunal then turned to the issue of whether or not registering for benefits (in this case Jobseekers Allowance) constituted sufficient mitigation. As the tribunal sees the current state of the law, there is no authoritative or binding position requiring to be followed by the tribunal in this respect, but the tribunal is required to afford justice and equity in the matter. In this case, the tribunal is of the view that it is properly entitled to more evidence of proper and reasonable mitigation than simply the confirmation, which it has received in this case via the copy letter from the Social Security Agency, that the claimant registered for and received Jobseekers Allowance and that it is to be implied that he met the conditions applicable to that benefit.
17. The claimant has not produced evidence of a single application for any job from the time he ceased to be entitled to Employment and Support Allowance, that being 1 December 2010, up to the hearing date. That fact is significant and it demonstrates support for the respondent’s proposition that the claimant has not made any proper and reasonable endeavours to mitigate his loss. Looking at all of this, the tribunal determines that the claimant has manifestly failed to mitigate his loss over a period of time. There has been no clear and cogent evidence that the period of claimed unfitness to work, during which the claimant was in receipt of Employment and Support Allowance, can be attributed conclusively or indeed exclusively to the dismissal. The claimant was afforded a fair opportunity over a period of a number of months to prepare his evidence and to produce his proofs. The matter was specifically mentioned at the conclusion of the decision for the avoidance of any doubt. In the absence of unwarranted and improper speculation and in the absence of any persuasive evidence, the tribunal cannot determine that the period from dismissal date to 1 December 2010 can properly be the subject of compensation for loss attributable to the action of the employer.
18. The just and equitable determination of the matter is to examine the matter of loss covering the period of four months beginning 1 December 2010. However, properly deductible from any loss is to be the loss covering the period from 1 December 2010 up to the start of February 2011, at which latter time the claimant signed on for Jobseekers Allowance. From 1 December 2010 up to the start of February 2011 the tribunal sees no evidence of any attempt made by the claimant to mitigate loss. Thereafter, from the start of February 2011 the period of loss should continue until 1 April 2011 but no further than that. This is for the reason that the claimant has failed to mitigate his loss in the further period; to award any further compensation for loss would not be just nor would it be equitable. There is no basis to award any statutory uplift or reduction under the applicable statutory procedures of the Employment (Northern Ireland) Order 2003.
19. Examining the respondent’s argument that there should be a reduction in any award on account of the claimant’s conduct, the tribunal does not accede to this submission. In regard to this point the content of the decision refers to the facts and circumstances prevailing at the time of dismissal which have been taken into account by the tribunal in reaching this conclusion. Accordingly no deduction is made on that account.
20. The tribunal therefore computes the loss resulting from the unfair dismissal of the claimant by the respondent as follows:-
THE BASIC AWARD
The claimant was summarily dismissed. The appropriate statutory multiplier on foot of Article 153 of the 1996 Order, based on the claimant's age (44 years) and length of service (3 years) is 4.5. The figure for gross pay as at the date of termination was £233.54 per week.
The basic award is therefore 4.5 x £233.54 = £1,050.93
THE COMPENSATORY AWARD
The claimant was unemployed and in receipt of Employment Support Allowance and latterly Job Seekers Allowance for the period from dismissal up to the date of this hearing on remedy. The tribunal has determined that the appropriate period of loss that is properly to be compensated runs from the start of February 2011 to 1 April 2011, a period of nine weeks. The claimant is therefore entitled to compensation equivalent to nine weeks' nett pay in respect of that. The figure for nett pay as at the date of termination was £198.16 per week.
9 x £198.16 = £1,783.44
The tribunal awards the sum of £300.00 for loss of statutory rights.
The total of the compensatory award and the basic award is thus £3,134.37 and therefore the tribunal orders the respondent to pay to the claimant the sum of £3,134.37 in compensation for unfair dismissal, subject to the Recoupment provisions that follow.
RECOUPMENT OF BENEFIT FROM AWARDS
21. The applicant did receive Social Security Benefits to which the Employment Protection (Recoupment of Job Seekers and Income Support) Regulations (Northern Ireland) 1996 apply. The following recoupment of benefit is therefore applicable in this case:
(a) Monetary Award: £3,134.37
(b) Prescribed Element: £2,834.37
(c) Prescribed Period: 28 May 2010 to 25 August 2011
(d) Excess of (a) over (b): £300.00
22. This is a relevant decision for the purposes of the Industrial Tribunals (interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 25 August 2011, Belfast.
Date decision recorded in register and issued to parties: