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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Maxwell v Patrick Durkan t/a Allclear En... [2011] NIIT 02835_10IT (21 April 2011)
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2835/10
CLAIMANT: David Maxwell
RESPONDENT: Patrick Durkan t/a AllClear Environmental
DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed and compensation of £7,830.91 calculated as set out in this decision is awarded to the claimant. A Recoupment Notice is attached to this decision.
Constitution of Tribunal:
Vice President: Mr N Kelly
Members: Mr J Hampton
Mr R Hanna
Appearances:
The claimant was represented by Mr C Fagan, Barrister-at-Law, instructed by Luke Curran & Company, Solicitors.
The respondent was represented by Mr E McArdle, Barrister-at-Law, instructed by Rosemary Connolly, Solicitors.
Issue
1. The claim lodged in the tribunal on 6 December 2010 claimed unfair dismissal, detriment as a result of jury service, a statutory redundancy payment, unauthorised deduction from wages and breach of contract.
2. Mr Fagan opened the hearing for the claimant by indicating that he had an application to make, which he was making with regret and with reluctance. He stated that the claimant had originally sought and had been given legal advice in relation to his claim by Rosemary Connolly, Solicitors, the firm of solicitors currently acting for the respondent. He stated that this raised a significant conflict of interest on the part of the respondent’s solicitors.
3. It appears to be common case that the claimant did seek legal advice from Rosemary Connolly, Solicitors. He ‘called in off the street’, without an appointment, and was given that advice by a Ms Jennings, a solicitor employed by that firm. Ms Jennings, at that stage, would not have been aware that the respondent was an established client of that firm. In the course of that oral advice, the solicitor drafted a letter of appeal for the claimant against the decision to dismiss him from employment, and gave that draft to the claimant in manuscript. The claimant then typed up that manuscript draft and sent it to the respondent as a letter of appeal against his dismissal on 11 October 2010.
4. The claimant later lodged the tribunal claim, as described above, on 6 December 2010. The respondent entered a response to the tribunal claim, which had been drafted by Rosemary Connolly, Solicitors. That response took the point that the claimant had not complied with the requirements of the statutory grievance procedure in respect of all the matters to which that procedure applied; ie all the claims other than the claim of unfair dismissal. The response specifically pointed out that the letter of appeal had not raised these matters.
5. Mr Fagan, on behalf of the claimant, argued that it was wrong that the respondent’s solicitors should seek to gain an advantage for their client from alleged deficiencies in a document which they had drafted for the claimant.
6. Mr McArdle, on behalf of the respondent, argued that the claimant had been advised, very shortly after the initial advice, that Rosemary Connolly Solicitors could no longer act on his behalf since Mr Durkan was an established client. This was not accepted on behalf of the claimant.
7. Mr McArdle also argued that the claimant’s failure to raise matters other than dismissal in the internal letter of appeal was only part of the problem. Firstly, the claimant could and should have raised these matters separately as a statutory grievance rather than as part of the letter of appeal within the respondent’s internal disciplinary process. Secondly, the claimant’s new solicitor could and should have raised these matters before lodging the tribunal claim. Mr McArdle argued that, the point now being taken by Mr Fagan, was a tactic to distract the tribunal’s attention from the claimant’s failure to follow the statutory grievance procedure and that it did not, in any event, raise an issue for the tribunal.
8. The tribunal ruled that the claimant’s apparent non-compliance with the statutory grievance procedure was a matter which went to the jurisdiction of the tribunal. Under the 2003 Order, the tribunal could only consider specified reasons for non-compliance with the statutory grievance procedure. On the facts, as agreed between the parties in respect of the involvement of Rosemary Connolly Solicitors in advising the claimant at an initial stage, it was clear that this case did not come within those specified reasons. Therefore, if the claimant had not complied with the statutory grievance procedure in respect of any part of the claim, other than unfair dismissal, the tribunal had no jurisdiction to deal with that part of the claim. Any issue that might separately arise between Rosemary Connolly Solicitors and the claimant in respect of the initial advice which he had received was not a matter for this tribunal. This tribunal is a statutory tribunal and its jurisdiction is limited to the matters properly before it under the relevant legislation.
9. Following that ruling, Mr Fagan conceded, as he had to concede, that the claimant had not complied with the statutory grievance procedure in respect of those matters to which it was relevant and that only the unfair dismissal claim could proceed to hearing before the tribunal.
10. Therefore, the only issue properly before the tribunal was to determine whether or not the claimant had been unfairly dismissed by the respondent for the purposes of the Employment Rights (Northern Ireland) Order 1996.
Relevant findings of fact
11. The claimant is a HGV Driver with eight years’ experience of driving HGV vehicles. All this driving experience was with the respondent, although the claimant had possessed a HVG licence for some years previously.
12. The respondent is the owner of a waste collection and recycling business based in Newry. He employs about 40 staff including approximately 12 drivers. The vehicles used by the respondent are skip lorries and compacting bin lorries. In the current economic downturn, the respondent had suffered a loss of business but, at the relevant time, there had been no redundancies. Staff, including the claimant, were, from time to time, placed on short-time working and this could, on occasion, happen with little or no notice.
13. On 30 September 2010, the claimant was tasked to drive a compacting bin lorry to Dungannon to collect waste from various customers in that area. He was accompanied by a helper, Mr Adrian Dickson. That helper was supposed to help with the loading and unloading of the vehicle. He was not a qualified driver and he had no responsibility for any driving decisions.
14. The dismissal of the claimant followed an incident in which the vehicle driven by the claimant became stuck against the wall of a shop in a narrow entry in Dungannon town centre. There was a dispute between the parties as to the precise route which had been followed by the claimant through Dungannon to reach this point. However, it does not appear to the tribunal to be important or relevant to determine, as a question of fact, which route had been followed by the claimant in the period running up to the relevant incident.
15. The vehicle driven by the claimant was a 4-axle compacting bin lorry which weighed approximately 20 tonnes unladen and could weigh up to 42 tonnes when fully laden. The claimant stated, in evidence before the tribunal, that, when he was driving this vehicle he had not been aware of the exact dimensions of the vehicle. However, he stated he had recently checked the dimensions on the internet and had found that the width of the cab, with the door mirrors partly retracted, was only six feet. The respondent, on the other hand, gave precise evidence that the width of the cab with the mirrors partly retracted was eight feet two inches. The tribunal prefers the evidence of the respondent on this point, which was not challenged when he was giving evidence-in-chief. There was no corroborative evidence produced by the claimant to support his statement about the dimensions of the cab and that he had found this information on the internet. Furthermore, having examined the relevant photographs, it seems inherently unlikely that the claimant, when negotiating the narrow entry, was driving a vehicle of only six feet in width.
16. The claimant entered Union Place and drove up that road towards the junction with Irish Street. It is common case between the parties and, in any event, evident from the photographs shown to the tribunal, that there was a ‘kink’ approximately one-third along the length of Union Place and that, further along Union Place, as it approached the junction with Irish Street, the road narrowed significantly.
17. It was also common case between the parties and, in any event, evident from the photographs shown to the tribunal, that a Roads Service warning sign was displayed, just before the road started to narrow, which, firstly, had the recognised road narrowing sign on the top of the signpost. This part of the sign was facing directly towards any driver approaching that entry and its meaning was perfectly clear. A trained and qualified HGV driver should not have missed or misunderstood the significance of that sign. Below that sign, on the same post, there was a further sign which stated that the usable width of the road was eight feet and that it was not suitable for goods vehicles. That part of the sign was slightly twisted round and may not have been clearly visible to a driver until that driver was approaching that sign. However, the fact that a building on the left of Union Place jutted out into the road and that the road significantly narrowed at that point would have been clearly visible to any driver from at least halfway down Union Place.
18. The claimant stated, during his disciplinary and appeal hearings, that he had not seen any signs. In contrast, in evidence before the tribunal, he stated that he had seen the signs but only at the point where he had approached the signpost.
19. The claimant briefly stopped the vehicle at the approach to the narrow part of the road, at the end of Union Place, to retract the driver’s side wing mirror and to ask his helper to retract the wing mirror on the passenger side. This was some three feet from the point where he got stuck. The claimant stated that the wing mirror on the passenger’s side did not retract, and that it appeared to have been fixed solidly to the door. The claimant then proceeded to drive forward, placing the driver’s side wheels of the vehicle on the right hand pavement which was approximately two feet wide. The pavement rose and then fell as it approached the junction with Irish Street. As the driver’s side wheels of the vehicle dipped when the pavement fell, the top of the vehicle tilted to the right and became wedged against the building at the corner of Union Place and Irish Street.
20. This building was a music shop which was open for business at the time. Irish Street is a busy pedestrian and vehicular route in Dungannon town centre.
21. The claimant telephoned the respondent’s office and was told not to try to move the vehicle further and to wait for assistance. Mr Peter Crossey, the General Manager of the respondent’s organisation, then spoke to the respondent. The respondent told Mr Crossey to get more information from the claimant. Mr Crossey also advised the respondent that the shop owner had been in touch and that he was very angry. The respondent telephoned the shop owner who wanted to know what he was going to do to deal with the matter. The shopkeeper told the respondent that some of the concrete had been dislodged from the wall and that until the lorry had been removed, no final assessment of the damage could be made. The respondent advised the shopkeeper that no attempt should be made to move the vehicle at that time.
22. The respondent sent his maintenance manager, Mr Paul Daly, and a mechanic immediately to Dungannon to assess the situation. Mr Daly brought heavy lifting equipment and heavy planks to enable the vehicle to be moved.
23. The tribunal was shown photographs taken by Mr Daly. These photographs were not in dispute. They clearly show the driver’s side of the vehicle wedged against the wall of the music shop at the junction of Union Place and Irish Street. It is apparent that the driver’s side wheels were on the pavement and that the vehicle had tilted as the footpath dipped towards the junction with Irish Street. The photographs also clearly show the Roads Service sign at the approach to the narrow part of Union Place and that sign was as described earlier in this decision.
24. Mr Daly and the mechanic managed to move the vehicle. The claimant, together with Mr Dickson, continued with their collections. Later that day the claimant and Mr Dickson returned to the company yard in Newry.
25. As the claimant was preparing to go home later in the afternoon of the same day, Mr Crossey handed him a letter which invited him to a disciplinary meeting on the following day.
26. That letter made it plain that this would be a disciplinary meeting and that the claimant was at risk of dismissal. It also contained sufficient details to enable the claimant to know precisely the charge that he was facing and to enable him to prepare any defence. The letter also stated that the claimant could, if he wished, apply for the date of the meeting to be changed. He did not do so.
27. The disciplinary meeting held on 1 October 2010 was conducted by Mr Crossey. The claimant was present and he did not take the opportunity to be represented. The format of the meeting followed questions which had been prepared in advance by Mr Crossey and they were:-
(i) Why were you in that street?
(ii) How did you end up missing the correct street on your route?
(iii) Did you observe a sign; NO HGV?
(iv) Did you drive on the footpath?
(v) Did you realise the street was too narrow?
(vi) Why did you not stop to seek advice?
(vii) Did your helper direct you at any point?
(viii) Did your helper tell you that you were driving on the wrong route?
(ix) Any other information?
28. The claimant stated that he did not know how to get to his next collection point and when the sat nav, which was being held by Mr Dickson told him to turn he turned right but the machine had said turn left. He stated:-
“I didn’t see any sign.”
In response to the fifth question he stated:-
“I knew it was narrow but I knew that the lorry would be able to fit through when we retracted the mirrors. Unfortunately the nearside mirror would not retract.”
29. Mr Crossey wrote to the claimant on 6 October 2010 and stated:-
“In light of the seriousness of your negligence while driving a heavy goods vehicle, we have decided to dismiss you with immediate effect from your employment with this company. This is because we consider your actions fall within the context of wilful neglect in the discharge of your duties which is deemed to be gross misconduct.
You have the right to appeal this decision and if you wish to do so, you should advise us of your intention to do so in writing within the next five days.”
30. The claimant wrote to Mr Crossey on 11 October 2010 in the terms which had been drafted for him by Rosemary Connolly, Solicitors. He stated:-
“I hereby inform you that I am appealing the decision to dismiss me, and also appealing the finding and the sanction imposed. I believe that the statutory dismissal procedures have not been followed and I have been unfairly dismissed. I was advised by you that the meeting on 1 October 2010 was an investigation meeting and not a disciplinary hearing. You advised that Pat Durkan would look at the evidence and make a decision. That is why I did not avail of my right to be accompanied. Please forward a copy of all the investigation evidence. Please confirm who made the decision to dismiss me. Please confirm who the appeal authority will be.”
31. The appeal hearing was conducted by Mr Patrick Durkan, the respondent, on 28 October 2010. The claimant was present together with Mr Paul Watson, who was appearing as his friend and Mrs Foley took the minutes.
32. At the appeal hearing, the claimant disagreed that there had been gross misconduct. He argued that the damage was not structural but was only minor and superficial. It had been caused because the mirror (the passenger side mirror) did not retract and that had caused him to go further to the other side of the road. He did not intend to cause the damage and it was not wilful. He stated that he had continued down Union Place because he had already committed himself. He felt that the gap was wide enough once the mirror was retracted. He did not respond to a question ‘but not when not retracted?’.
When he was asked whether he had realised at any point that he was getting into difficulty, he stated:-
“I only realised I was getting into a narrow spot but didn’t realise I was getting into difficulty.”
He said there were ‘no indications it was going to narrow’. He stated that as he went round the kink or corner in Union Place cars were parked on the right hand side. He estimated the width of the lorry at 2.5 metres and stated ‘at the time I was driving I didn’t see any signs’.
33. He was asked by the respondent:-
“Are you aware there is a sign at the entrance indicating the width?”
He replied:-
“No. Nobody said anything.”
He was asked by the respondent:-
“Did you see the sign saying not suitable for HGVs?”
He replied:-
“No. I didn’t see any sign.”
The respondent asked the claimant:-
“Would you ever in driving a HGV, take consideration of ground and how it would affect the vehicle?”
The respondent gave evidence and the tribunal accepts that at this point he was referring to the rise and then the dip in the right hand footpath over which the claimant had placed the driver’s side wheels of the HGV vehicle.
The claimant replied:-
“I’ve never driven over uneven ground.”
The respondent asked the claimant:-
“Do you think there was any reason for what happened?”
The claimant replied:-
“Probably the weight and suspension upfront completely different to the back.”
34. The claimant stated that he only realised there was an issue when the lorry touched the building and he felt the shockwave through the lorry. He did not think it would have been possible to reverse back and down Union Place rather than attempting to continue until he got stuck.
35. The claimant argued that his conduct would warrant something like a warning. He argued that this was only a minor accident and summary dismissal for gross misconduct was ‘over the top’.
36. The respondent wrote to the claimant on 5 November 2010 dismissing the appeal. He stated:-
“In reviewing all the facts, it is my opinion that this was a serious incident. There was structural damage caused to the side of the building and it could have been much worse, putting those inside the shop at risk. We have a duty of care on us to ensure that those we place in charge of large heavy vehicles are competent and capable of driving those vehicles in built-up areas. In doing so, drivers must be fully alert to any hazards, dangers, road signs and ensure that they do not put themselves, or others or buildings at risk. On this occasion you had every opportunity to show that you were a competent driver but you showed incompetence and a serious lack of judgment and awareness while in charge of a heavy goods vehicle. The result was serious damage and a cost in sending people from Newry to Dungannon with heavy lifting equipment to free the vehicle.
David, I didn’t take this decision lightly, having taken your time in employment with the company into consideration. However, ultimately I agree with Peter Crossey that he made the right decision and I uphold the decision of dismissal due to gross misconduct.”
37. The claimant, in evidence to the tribunal, insisted that cars were parked on both sides of Union Place after the kink in the road but before the final stretch, as Union Place joined Irish Street. He stated that for that reason he could not have conducted a reversing manoeuvre even with the assistance of the helper, Mr Dickson. He did not state, at either the disciplinary hearing or the appeal hearing, that cars had been parked on both sides of the road and that therefore he could not have reversed back the same way as he had driven into Union Place.
Relevant law
38. The proper approach for an industrial tribunal to take when considering the fairness of a misconduct dismissal is well settled and was recently considered by the Court of Appeal in Rogan v South Eastern Health & Social Care Trust [2009] NICA 47.
39. Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides:-
“130-(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 (or if more than one the principal reason) for the dismissal and
(b) that is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2) a reason falls within this paragraph if it –
(b) relates to the conduct of the employee,
(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 reason shown by the employer) –
(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and
(b) shall be determined in accordance with equity and the substantial merits of the case.”
40. The Court of Appeal in Rogan approved the earlier decision of Court in Dobbin v Citybus Ltd [2008] NICA 42 where the Court held:-
“(49) The correct approach to [equivalent GB legislation] was settled in two principal cases – British Home Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR 17 and explained and refined principally in the judgements of Mummery LJ in two further cases Foley v Post Office and HSBC Bank Plc (formerly Midland Bank) –v- Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury v Hitt [2003] ICR111.
(50) In Iceland Frozen Foods, Browne-Wilkinson J offered the following guidance:-
“Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by [equivalent GB legislation] is as follows:-
(1) the starting point should always be the words of [equivalent GB legislation] themselves;
(2) in applying the section an industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;
(3) in judging the reasonableness of the employer’s conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;
(4) in many, though not all, cases where there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another;
(5) the function of an industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair; if the dismissal falls outside the band it is unfair.”
(51) To that may be added the remarks of Arnold J in British Home Stores where in the context of a misconduct case he stated –
“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, it must be established by the employer the fact of that belief, that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further. It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being “sure”, as it is now said more normally in a criminal context, or, to use the more old fashioned term such as to put the matter beyond reasonable doubt. The test, and the test all the way through is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion.”
Decision
41. The tribunal is satisfied that the reason for the dismissal was conduct, a potentially fair reason under the 1996 Order.
42. The case law set out above makes it clear that an industrial tribunal has a limited jurisdiction when dealing with unfair dismissal. It cannot substitute its own view for that of an employer. However, that does not mean that an industrial tribunal cannot determine that a dismissal is unfair if it is conceivable that an employer might possibly have dismissed the claimant in those circumstances. If that were the case there would be little point in having an unfair dismissal jurisdiction. The statutory test is whether, in the circumstances, the employer acted reasonably or unreasonably in dismissing the claimant. The test is ‘reasonableness’ and that can, in most cases, be judged by the reasonable responses test.
43. HGV drivers, particularly multi-drop or multi-delivery drivers, will make mistakes and have accidents. Gate posts, walls, and other vehicles will be scraped. That is a fact of life and was recognised by the respondent in the present case. He had set up a system where his drivers paid for any damage they caused. The damage to the wall of the music shop was restricted to dislodged rendering and the cost of the repair was £360.00. The claimant paid for that repair.
44. It is therefore clear that not every damage accident caused by a HGV driver or every error of judgment by a HGV driver merits dismissal – judged against the standard of reasonableness.
45. The respondent made it plain that the decision to dismiss the claimant was based only on the incident at the junction of Union Place and Irish Street on 30 September 2010 and on no other incident.
46. The claimant had eight years service. He was not driving his usual vehicle although he had driven this vehicle before. He did not know the area.
47. This was one incident, causing relatively minor structural damage. While the respondent concluded, and it could not have been in dispute, that it was caused by a clear error of judgment on the part of the claimant the tribunal concludes that this incident on its own, was not the sort of incident in respect of which it would have been reasonable to dismiss the claimant summarily or on notice, in all the circumstances of the case. The dismissal was outside the band of reasonable responses, or to use the claimant’s words ‘over the top’.
48. The tribunal considers that the claimant had contributed significantly to his own dismissal and that both the basic and compensatory award should be reduced by 60%. He had either failed to see, or to properly take into account, the traffic signs and had made a significant error in judgment by attempting to drive forward onto Irish Street.
49. The tribunal is satisfied that the respondent fulfilled the requirements of the three-step Dismissal and Disciplinary Procedure.
50. The claimant was aged 55 years at the date of dismissal and had eight completed years service. His gross pay was £361.25. His basic award is therefore:-
12 x £361.25 = £4,335.00
Less 60% contributory conduct = £1,734.00
Article 156(2) of the 1996 Order
51. The tribunal concludes that the claimant should be able to obtain equivalent employment within a further six months from the date of the tribunal hearing. The tribunal accepts that he has made reasonable efforts to mitigate his loss up to the date of hearing.
Date of dismissal to date of hearing
7 October 2011 to 5 April 2011
26 weeks x £286.39 net weekly pay = £ 7,446.14
5 April 2010 to 4 October 2011
26 weeks x £286.39 net weekly pay = £ 7,446.14
£14,892.28
Loss of statutory rights = £ 350.00
£15,242.28
Less 60% contributory conduct £ 6,096.91
Article 157(6) of the 1996 Order
52. The total of the basic and compensatory award is therefore £7,830.91.
53. Your attention is drawn to the Recoupment Notice which forms part of the decision of the tribunal.
54. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Vice President:
Date and place of hearing: 5 April 2011, Belfast
Date decision recorded in register and issued to parties:
Case Ref No: 2835/10
CLAIMANT: David Maxwell
RESPONDENT(S): Patrick Durkan t/a AllClear Environmental
ANNEX TO THE DECISION OF THE TRIBUNAL
STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME –RELATED EMPLOYMENT AND SUPPORT 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; The Social Security (Miscellaneous Amendments No.6) (Northern Ireland) 2010.
|
|
£ |
|
(a) Monetary award |
7,830.91 |
|
(b) Prescribed element |
2,978.45 |
|
(c) Period to which (b) relates: |
07/10/10 to 05/04/11 |
|
(d) Excess of (a) over (b) |
4,852.46 |
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, 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, 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 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 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.