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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Higgins v Transition Training Ltd [2011] NIIT 00991_11IT (22 August 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/991_11IT.html
Cite as: [2011] NIIT 00991_11IT, [2011] NIIT 991_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 991/11
CLAIMANT: Francis Higgins
RESPONDENT: Transition Training Ltd
DECISION ON REMEDY
The unanimous decision of the tribunal is that the claimant was unfairly dismissed and is entitled to compensation from the respondent in the sum of £6,797.76. The claimant is also entitled to holiday pay in the sum of £205.66.
Constitution of Tribunal:
Chairman: Mr P Kinney
Members: Mr J Hughes
Ms E Gilmartin
Appearances:
The claimant was represented by Ms M Gavin, Solicitor, of Francis Hanna & Company, Solicitors.
The respondent did not appear and was not represented.
1. This hearing is a remedies hearing. A default judgment on liability was made on 17 June 2011.
2. The claimant commenced employment with the respondent on 9 September 2009. He was dismissed on 4 March 2011. His dismissal consisted of a short meeting with the managing director of the respondent, Sheena Clegg, who informed the claimant that he was to be made redundant, asked for his keys and laptop and required him to leave the premises that day. Although the claimant was told that the decision would be put in writing, he never received any further communication. He was not given an appeal. At the date of his dismissal he had accrued four and a half days of holidays. He was earning £269.23 gross per week and £228.51 net per week. He was in receipt of Jobseekers Allowance (income-based) from 28 March 2011 to 6 June 2011 and received the sum of £565.99. He commenced new employment on 20 June 2011, earning £221.97 net per week.
3. The claimant was unfairly dismissed. The dismissal was automatically unfair by virtue of the provisions of Article 130A of the Employment Rights (Northern Ireland) Order 1996. By Article 154 of the same Order, where the amount of any basic award is less than the amount of four weeks pay, the tribunal shall increase the award to the amount of four weeks pay. The basic award in this case is therefore £1,076.92.
4. The claimant’s loss to date of hearing is in the sum of £5,791.20 less the earnings made from his new employment of £1,775.76, making a sum of £4,015.44. Under Article 17 of the Employment (Northern Ireland) Order 2003 – where there is a non-completion of the statutory dismissal procedure and that failure to complete is wholly or mainly attributable to failure by the employer to comply with the procedure the tribunal may increase any award which it makes to the employee by 10% and may, if it considers it just and equitable in all the circumstances, increase it by a further amount not to exceed 50%. In assessing the appropriate level of uplift the tribunal has taken into account the fact that there were no steps taken of the statutory procedure, the relatively small size of the respondent’s undertaking (14 full-time employees and 8 part-time employees) and also the size of the compensatory award being made in this case. The tribunal considers that an award in excess of 10% uplift is appropriate as there has been a complete failure to comply with the statutory procedures. However, the tribunal is not satisfied that this is a case in which a maximum uplift ought to be awarded. In the case of Virgin Media Ltd v Seddington [2009] ALL ER (D) 23, Mr Justice Underhill said that a claimant who seeks an uplift in excess of 10% must place material before the tribunal in support of his case. The tribunal has limited facts as to the circumstances surrounding the claimant’s dismissal. However, it is clear that the dismissal was perfunctory and came as a shock to the claimant. Whilst the claimant was told that he would be written to, no such correspondence was forthcoming. The tribunal assess the appropriate level of uplift as 35%. The total compensatory award is therefore £5,420.84.
5. The claimant is also entitled to compensation for his loss of statutory rights. The tribunal took into account the claimant’s gross weekly wage and the length of his service with the respondent and assessed this figure in the sum of £300.00. The tribunal also awarded holiday pay based on the claimant’s net wage for the four and a half days of holidays due in the sum of £205.66. The claimant is entitled, therefore, in total to compensation from the respondent in the sum of £7,097.76.
6. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
7. Your attention is drawn to the notice below which forms part of the decision of the tribunal
Chairman:
Date and place of hearing: 16 August 2011, Belfast
Date decision recorded in register and issued to parties:
Case Ref No: 991/11
CLAIMANT: Francis Higgins
RESPONDENT: Transition training Ltd
ANNEX TO THE DECISION OF THE TRIBUNAL
STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME SUPPORT
1. The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996; The Social Security (Miscellaneous Amendments No 6) (Northern Ireland 2010.
|
|
£ |
|
(a) Monetary award |
7,097.76 |
|
(b) Prescribed element |
5,420.84 |
|
(c) Period to which (b) relates: |
4 March 2011 to 16 August 2011 |
|
(d) Excess of (a) over (b) |
1,676.92 |
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.