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 >> Doherty v The Collon Bar Ltd [2010] NIIT 01874_10IT (10 February 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/01874_10IT.html
Cite as: [2010] NIIT 1874_10IT, [2010] NIIT 01874_10IT
[New search] [Printable RTF version] [Help]
THE INDUSTRIAL TRIBUNALS
CASE REF: 1874/10
CLAIMANT: Patrick Martin Doherty
RESPONDENT: The Collon Bar Ltd
DECISION
The unanimous decision of the tribunal is that the claimant was automatically unfairly dismissed and that the claimant is awarded £2,735.00 in respect of that unfair dismissal and £564.64 in respect of holiday pay, making a total sum of £3,299.64. The attention of the parties is drawn to the recoupment notice attached to this decision.
Constitution of Tribunal:
Vice President: Mr N Kelly
Members: Mr J Smyth
Mr J McKeown
Appearances:
The claimant appeared in person and was not represented.
The respondent was represented by Miss S Digney, a director of the respondent company.
Facts
1. The respondent company used to run relatively small licensed premises which were demolished in 2004 as part of a road scheme. The respondent built new and enlarged premises which opened in November 2004. It decided, at that point, to recruit an additional bar manager. The claimant was appointed as that bar manager in October 2004.
2. At the relevant time the respondent employed four full-time staff; the original bar manager, Mr Blacklin, who had approximately 20 years service, the claimant, and two more junior bar staff who also performed waiting duties in the restaurant which formed part of the new premises. There were other part-time staff employed in the restaurant.
3. The respondent faced financial difficulties following the general downturn in the economy. This culminated with a meeting between Miss Digney and the company accountant on or about 29 May 2010 at which Miss Digney was advised that the bank had withdrawn certain facilities and that the full-time staff had to be reduced. The claimant was dismissed on that day by Miss Digney in the course of a telephone call.
4. Miss Digney had decided that Mr Blacklin had considerably more service and that the respondent could not afford to pay his statutory redundancy. The two more junior bar/waiting staff were cheaper to retain and the respondent needed their flexibility in relation to waiting duties in the restaurant. The claimant had previously been asked to assist in that regard and had refused. In evidence to the tribunal the claimant stated that he had refused to undertake waiting duties because he had not been trained. The tribunal is unclear as to the extent of any training which an experienced bar manager would, in reality, have required to wait on tables in a bar/restaurant and has concluded that the respondent was entitled to take the view that his refusal to undertake those duties was nothing to do with a need for training.
5. Miss Digney did not specifically offer the claimant downgrading to the more junior bar/waiting full-time posts or to part-time duties as an alternative to redundancy. The drop in earnings and in status would have been significant and the tribunal concludes that any such offer would have been refused by the claimant. It would have made no difference if any such offer had been made. The tribunal notes, in particular, that the claimant did not suggest that he would have been interested in any such alternative work at the time he was made redundant or in his tribunal claim form.
6. The respondent was not aware of and did not follow the statutory dismissal procedure required under the Employment (Northern Ireland) Order 2003. Some seven years after the introduction of those measure, it still seems that many small and medium sized employers are genuinely unaware of the statutory requirements in this regard. The dismissal was therefore automatically unfair. Given that the respondent’s failure to follow the procedure was genuinely due to ignorance of the statutory requirements, rather than to recklessness or to malice, the tribunal fixes the statutory uplift of the compensatory award at 25%.
7. The respondent did continue to pay the claimant’s net pay for six weeks following his dismissal and therefore the statutory minimum period of notice in the Employment Rights (Northern Ireland) Order 1996 was satisfied.
8. The claimant’s gross weekly pay was £300.00 and net weekly pay was £247.00. The claimant was entitled to 28 days paid holiday per year and the leave year ran from 1 January to 31 December. The claimant had not used any of the 2010 leave allowance.
9. The tribunal is satisfied that the dismissal was automatically unfair and that any compensatory award should be uplifted by 25%. However, the tribunal is also satisfied that the claimant would still have been selected for redundancy if the proper procedures had been followed. He was one of two managers and was the cheaper to make redundant. He had previously shown that he was not interested in waiting duties and it was highly improbable that such duties on a full-time or part-time basis, both at significantly lower earnings, would have been acceptable to him as alternatives to redundancy.
10. Where a dismissal is unfair, a tribunal, in assessing compensation has to determine for how long the claimant would have remained in employment. It has to assess the loss caused by the unfair dismissal – Software 2000 Ltd v Andrews [2007] IRLR 568 and Polkey v Dayton Services Ltd [1987] IRLR 503. The tribunal concludes that the proper consultation and statutory procedures would have extended the claimant’s employment by only four weeks and therefore the compensatory award is limited to that period – uplifted by 25%.
11. The basic award (which encompasses the statutory redundancy pay) is:-
5 x £300.00 £1,500.00
12. The compensatory award is:-
4 x £247.00 uplifted by 25% £1,235.00
13. The award in respect of holiday pay is:-
Accrued holiday entitlement –
149/365 x 28 11.43
Net daily rate £49.40
11.43 x £49.40 £ 564.64
14. Recoupment
|
|
£ |
|
(a) Monetary award |
3,299.64 |
|
(b) Prescribed element |
988.00 |
|
(c) Period to which (b) relates:
|
29 May 2010 – 26 June 2010 |
|
(d) Excess of (a) over (b) |
2,311.64 |
15. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Vice President:
Date and place of hearing: 28 January 2011, Limavady
Date decision recorded in register and issued to parties:
CASE REF: 1874/10
CLAIMANT:
Patrick Martin Doherty
RESPONDENT: The Collon Bar Ltd
ANNEX TO THE DECISION OF THE TRIBUNAL
STATEMENT RELATING TO THE RECOUPMENT
OF JOBSEEKER’S
ALLOWANCEIINCOME SUPPORT
1.
The
following particulars are given pursuant to the Employment Protection
(Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern
Ireland) 1996; The Social Security (Miscellaneous Amendments No 6)
(Northern Ireland) 2010.
£
(a)
Monetary award 3,299.64
(b) Prescribed element 988.00
(c) Period to which (b) relates: 29
May 2010—
26 June 2010
(d) Excess of (a) over (b) 2,311.64
The claimant may not be entitled to the whole monetary award. Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance or Income-related Employment and Support Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department for Social Development has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance or Income-related Employment and Support Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department. The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.
2. The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or nine days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing. When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.
3. The claimant will receive a copy of the recoupment notice and should inform the Department for Social Development in writing within 21 days if the amount claimed is disputed. The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the claimant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the claimant and regardless of any dispute between the claimant and the Department. .