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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McCracken v Jason O'Hara T/A Peace of Mind... Jason O'Hara T/A Peace of Mind... [2012] NIIT 00319_11IT (03 April 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/00319_11IT.html
Cite as: [2012] NIIT 319_11IT, [2012] NIIT 00319_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REFS: 319/11
320/11
CLAIMANTS: Andrea McCracken
Rosalind Smyth
RESPONDENT: Jason O’Hara T/A Peace of Mind Day Nursery
DECISION
The unanimous decision of the tribunal is that both claimants were unfairly dismissed by the respondent. Compensation is awarded of £9,806.08 to the first-named claimant and of £4,211.78 to the second-named claimant as set out in this decision. The attention of the parties is drawn to the Recoupment Notices which are attached to this decision.
Constitution of Tribunal:
Vice President: Mr N Kelly
Members: Mr J Kinnear
Mr E Miller
Appearances:
The first-named claimant was represented by Mr C O’Hagan, Barrister-at-Law, instructed by John P Hagan, Solicitors.
The second-named claimant was represented by Mr G Grainger, Barrister-at-Law, instructed by Richard Monteith, Solicitors.
The respondent was represented by Mrs J O’Hara.
The issues
1. The claimants had been employed as Nursery Assistants at the respondent’s day nursery and were summarily dismissed on 21 October 2010 following allegations which had been made against them.
2. The issues for the tribunal to determine were:-
(i) Had the claimants, or either of them, been automatically unfairly dismissed on 21 October 2010 for the purposes of Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) and the Employment (Northern Ireland) Order 2003 (‘the 2003 Order’), because the respondent had failed to comply with all or part of the statutory dismissal procedure?
(ii) If not, had the claimants, or either of them, been unfairly dismissed for the purposes of Article 130 of the 1996 Order (standard unfair dismissal)?
(iii) If the claimants, or either of them, had been unfairly dismissed, either automatically or otherwise, what was the appropriate remedy?
Relevant law
3. Article 130 of the 1996 Order 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 it 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 –
(a) relates to the capability or qualifications of the employee for performing work of the kind he was employed by the employer to do,
(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.”
4. Article 130(A) of the 1996 Order 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 1 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.”
5. Article 17 of the 2003 Order provides:-
“(3) If in the case of proceedings to which this Article applies it appears to the industrial tribunal that –
(a) the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies;
(b) the statutory procedure was not completed before the proceedings were begun; and
(c) The non-completion of the statutory procedures was wholly or mainly attributable to failure by the employer to comply with the requirements of the procedure, it shall, subject to Paragraph (4), increase any award which it makes to the employee by 10% and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase more than 50%.
(4) The duty under paragraph (2) and (3) to make a deduction or increase of 10% does not apply if there are exceptional circumstances which would make a reduction or increase of that percentage unjust or inequitable, in which case the tribunal may make no reduction or increase or a reduction or increase of such lesser percentage as it considers just and equitable in all the circumstances.”
The potential uplift applies to the compensatory award. If a dismissal is automatically unfair for non-compliance with the statutory procedure, there is a minimum basic award of four weeks unless that would result in injustice to the employer.
6. The standard dismissal procedure is set out in full in Schedule 1 to the 2003 Order and provides for a three-stage procedure. The first stage is a written statement of the circumstances which led the employer to contemplate dismissing the employee. That written statement must be sent to the employee together with an invitation to attend a meeting to discuss the matter. The second stage is the meeting after which the employer informs the employee of the decision and notifies the employee of his/her right to appeal against the decision. The third stage is the appeal and notification by the employer to the employee of the decision on appeal.
7. In Polkey v A D Dayton Services Ltd [1988] ICR 142, Lord Bridge stated:-
“In a case of redundancy, the employer will normally not act reasonably unless he warns and consults any employees affected or their representative, adopts a fair basis on which to select for redundancy and take such steps that as may be reasonable to avoid or minimise redundancy by redeployment within his own organisation. If an employer has failed to take the appropriate procedural steps in any particular case, the one question the industrial tribunal is not permitted to ask in applying the test of reasonableness posed by Section 57(3) is the hypothetical question whether it would have made any difference to the outcome if the appropriate procedural steps had been taken. On a true constriction of Section 57(3), this question is simply irrelevant. It is quite a different matter if the tribunal is able to conclude that the employer himself, at the time of dismissal, acted reasonably in taking the view that, in the exceptional circumstances of the particular case, the procedural steps normally appropriate would have been futile, could not have altered the decision to dismiss and therefore could be dispensed with.”
8. Even where there has been an automatically unfair dismissal for non-compliance with the statutory dismissal procedure, the tribunal can reduce the award on the basis of Polkey, ie on the basis that the dismissal would, or might, have occurred anyway. HHJ McMullan QC stated in Jurys Inn Group v Tatarova [UKEAT/0295/10]:-
“What is available in any event is a Polkey reduction. The tribunal seems to have concluded that it was not open to it to make a decision, reducing compensation on the Polkey principles, given a finding of automatically unfair dismissal. It is open to it and it should have done so.”
9. 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.
10. 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] ICR 111.
(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 there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, and 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.”
11. In Bowater v North West London Hospitals NHS Trust [2011] EWCA Civ 63, the Court of Appeal considered a decision of the Employment Appeal Tribunal which had set aside a decision of an employment tribunal. The employment tribunal had determined that a remark made by a nurse in an Accident & Emergency Department was not a sufficient basis for a fair dismissal. Lord Justice Longmore stated at Paragraph 18 of the decision that:-
“I agree with Stanley Burnton LJ that dismissal of the appellant for her lewd comment was outside the range of reasonable responses open to a reasonable employer in the circumstances of the case. The EAT decided that the ET had substituted its own judgment for that of the judgment to which the employer had come. But the employer cannot be the final arbiter of its own conduct in dismissing an employee. It is for the ET to make its judgment always bearing in mind that the test is whether dismissal is within the range of reasonable options open to a reasonable employer.”
He continued at Paragraph 19:-
“It is important that, in cases of this kind, the EAT pays proper respect to the decision of the ET. It is the ET to whom Parliament has entrusted the responsibility of making what are, no doubt, sometimes, difficult and borderline decisions in relation to the fairness of dismissal.”
12. In Fuller v London Borough at Brent [2011] EWCA Civ 267, the Court of Appeal again considered a decision of the Employment Appeal Tribunal which had set aside the decision of an employment tribunal on the basis that the employment tribunal had substituted its view for the decision of an objective reasonable employer. Lord Justice Mummery stated at Paragraph 7 of the decision that:-
“In brief the Council’s case on appeal is that the ET erred in law. It did not apply to the circumstances existing at the time of Mrs Fuller’s dismissal the objective standard encapsulated in the concept of the ‘range or band of reasonable responses’. That favourite form of words is not statutory or mandatory. Its appearance in most ET judgments in unfair dismissal is a reassurance of objectivity.”
At Paragraph 38 of the decision, he continued:-
“On a proper self-direction of law I accept that a reasonable ET could properly conclude that the council’s dismissal was outside the band or range of reasonable responses and that it was unfair. If, as I hold, the ET applied the objective test, it did not err in law and there was no ground on which the EAT was entitled to set it aside or to dismiss Mrs Fuller’s claim.”
13. In Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721, the Court of Appeal again considered a decision of an Employment Appeal Tribunal which set aside the decision of an employment tribunal on the ground that they had substituted their judgment of what was a fair dismissal for that of a reasonable employer. At Paragraph 13 of the judgment, Lord Justice Elias stated:-
“Section 98(4) focuses on the need for an employer to act reasonably in all the circumstances. In A v B [2003] IRLR 405, the EAT (Elias J presiding) held that the relevant circumstances include the gravity of the charge and their potential effect upon the employee. So it is particularly important that employers take seriously their responsibilities to conduct a fair investigation where, as on the facts of that case, the employee’s reputation or ability to work in his or her chosen field of employment is potentially apposite”
In A v B the EAT said this:-
“Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and not lawyers. Of course even in the most serious cases it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the enquiry should focus no less on any potential evidence that may exculpate or least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him.”
Relevant findings of fact
14. The two claimants had been employed as nursery assistants at a day nursery by the respondent. They had each accrued five complete years’ reckonable service at the time of their dismissals.
15. The nursery was owned by the respondent. Ms Ruth Beattie, who had the appropriate professional qualifications, was the ‘officer-in-charge’ for the purposes of the Social Services registration and was effectively the line manager of both the claimants. The respondent’s wife, Mrs Julia O’Hara, attended the nursery for part of each working day and assisted in the general management of the business.
16. A trainee nursery assistant was working in the nursery on a student placement organised by the local Further Education College. In or around the start of May 2010, the first-named claimant complained to Ms Beattie about the trainee’s work performance. As a result, Ms Beattie spoke to the trainee about her work. Although that trainee’s placement had been due to continue until June 2010, the trainee chose not to return to the nursery after that day to complete her placement.
17. The trainee, in a discussion with her college tutor, at a subsequent and unknown date, probably in late May 2010, alleged that the first and second-named claimants had been involved in two incidents, one where a child had allegedly been loosely tied to a chair and one where the same child had been cellotaped to a chair. The trainee had alleged to her course tutor that the first incident had occurred on 28 April 2010 and that the second incident had occurred on 5 May 2010.
18. The trainee had not complained about either alleged incident to anyone else at the times that they allegedly occurred. She had not approached Ms Beattie, Mrs O’Hara or Mr O’Hara to report the alleged incidents and had not raised the allegations at the relevant times with either her course tutor, her Further Education College, Social Services or the PSNI. The trainee raised the alleged incidents for the first time to her course tutor after the premature ending of her training placement and in circumstances where that placement had come to an end as a result of the complaint made about her by the first-named claimant.
19. It was common case that the second-named claimant had not been present at work in the nursery on 28 April 2010, the first of the two specific dates on which the trainee had alleged that both claimants had been present and when she had specifically alleged that the second-named claimant had failed to intervene when the child had allegedly been loosely tied to a chair.
20. The course tutor passed the trainee’s allegations to the local Social Services team which was responsible for the registration and checking of private nurseries.
21. On 12 May 2010, Mr Paul Corvan, the social worker, who generally dealt with the respondent’s nursery, advised Ms Ruth Beattie of the allegations. Ms Beattie then advised Mrs O’Hara, who then spoke to Mr Corvan by telephone. Mr Corvan gave her some details of the allegations.
22. Mrs O’Hara spoke to the mother of the relevant child and then spoke to both claimants. The claimants were advised that Social Services had passed the allegations to the PSNI for investigation.
23. On 14 May 2010, the claimants were suspended on full pay, pending the completion of the PSNI investigation.
24. On one evening, during their suspension, the claimants were invited into the nursery premises by Mrs O’Hara for a meeting with their colleagues so that they could explain the allegations and circumstances surrounding their suspension to their colleagues. Mrs O’Hara wanted to minimise the scope for unnecessary rumours.
25. For the next five months, the claimants remained on suspension on full pay. Mrs O’Hara had difficulty in getting details from either Social Services or PSNI on the ongoing progress of the investigation.
26. On 14 October 2010, Mrs O’Hara telephoned the PSNI officer who was in charge of investigating the allegations. In the course of that telephone call she was advised that the PPS had directed that there was insufficient evidence to justify a prosecution. Mrs O’Hara assumed, at that point, that that was the end of the matter and that the claimants could return to work.
27. To that end, Mrs O’Hara telephoned Mr Corvan and told him what the PSNI had told her. Mr Corvan advised Mrs O’Hara that a meeting had been arranged for the relevant Social Services team on 21 October 2010 in the Trust premises. He asked that Mrs O’Hara and Mrs Beattie attend that meeting.
28. When Mrs O’Hara and Mrs Beattie arrived at the Trust premises, the social workers had already met with the PSNI and had reached a decision on their preferred way forward. Mrs O’Hara and Mrs Beattie were taken into a room to be told of that decision.
29. The tribunal did not hear any evidence from the three social workers who had been present at that meeting or indeed from Mrs Beattie. The only oral evidence that the tribunal heard in relation to this meeting was the evidence of Mrs O’Hara.
30. Mrs O’Hara’s evidence was that she was told that the Early Years Team in the Trust would have ‘grave concerns’ if the two claimants returned to their employment in the nursery and that, if that happened, her nursery registration would be at risk. After that meeting, Mrs O’Hara’s view was that she had no choice but to dismiss both claimants.
31. Mrs O’Hara accepted that the social workers had, in the course of that meeting on the morning of 21 October 2010, advised her to take her own legal advice before taking any decision. She did not take any legal advice. She returned immediately to the nursery and contacted both claimants. She invited them to attend the nursery that same afternoon.
32. At that afternoon meeting on 21 October 2010, Mrs O’Hara informed the two claimants what had happened during the course of the morning meeting with the social workers. She explained that she felt that she had no choice but to dismiss both of them. She did so summarily; ie without notice.
33. Mrs O’Hara accepted before the tribunal that both at the time of the dismissals on 21 October 2010 and now, she did not believe that the allegations against the two claimants were true. Mrs O’Hara also accepted that she had not complied, in any respect, with the statutory dismissal procedure. There had been no written disciplinary charge, no disciplinary meeting and no appeal meeting. Furthermore, there had been no attempt to comply with the contractual disciplinary procedures. Mrs O’Hara also accepted that she had not conducted any investigation into the allegations against the two claimants. It appears that the only investigation was the investigation conducted by the PSNI which resulted in the PPS decision not to prosecute either claimant.
34. The claimants had no disciplinary record and there was no record of any complaint ever being made against them in the course of their employment.
Decision
35. The dismissals were automatically unfair for non-compliance with the statutory dismissal procedure set out in the 2003 Order.
36. In the alternative, the dismissals were also substantively unfair. There was no investigation of the allegations made against either claimant and there were no real opportunity afforded to the claimants to put forward their response to the allegations. Furthermore, Mrs O’Hara did not believe that the allegations were true. She appears to have simply panicked as a result of whatever she perceived to be the attitude of the social workers in the course of the morning meeting on 21 October 2010. The social workers did not give evidence to this tribunal and the tribunal does not know why they expressed concerns about the continuing employment of the two claimants or indeed how strongly such concerns had been expressed. However, it is clear that Mrs O’Hara had been advised in the course of the morning meeting, in clear terms, to take her own legal advice before reaching any decision on the way forward. She failed to do so. She proceeded, without any further consideration and without any further investigation, to summarily dismiss two employees, each with five years’ service and a good disciplinary record, that same afternoon.
37. The respondent felt that he had no choice but to dismiss and that the dismissal would have occurred in any event, even if the statutory procedure and/or the contractual procedure had been followed in relation to the allegations.
38. A reasonable employer would have conducted a thorough investigation, particularly where Mrs O’Hara disbelieved the allegations made against the two claimants, and particularly given the serious effect a dismissal would have on the claimants (see Roldan above). Given the curious coincidence in timing between the trainee’s departure following a complaint made in relation to her by the first-named claimant, the circumstances in which the allegations against the claimant were made only to that trainee’s tutor on her return to the college, and the fact that only one of the only two dates specified by the trainee was a date at which the second-named claimant had been at work, the tribunal cannot conclude that any such investigation and a proper disciplinary procedure would have, on the balance of probabilities or otherwise, have led to the dismissal of either or both claimants.
39. The respondent was represented by Mrs O’Hara who was also the respondent’s sole witness. The tribunal has listened carefully to her evidence and to her final submissions. It appears to the tribunal that she tried, in her view, to do her best by both claimants. It is clear that she kept them both on full pay for a period of some five months where many employers in such circumstances would not have done so. It is also clear that she facilitated a meeting between the two claimants and their colleagues in the nursery premises so that rumours which had begun to circulate within the nursery could be dispelled. She was, however, clearly out of her depth in relation to this difficult issue of personnel management and, as indicated above in this decision, she panicked following her meeting with the social workers on the morning of 21 October 2010. Thereafter, she acted without thought and without taking legal or other advice.
40. The tribunal has concluded that there was no malice on the part of Mrs O’Hara or the respondent in relation to these dismissals and that there had been no deliberate disregard of the claimant’s statutory rights. Given the lack of any such malice or deliberate disregard of statutory rights and given the fact that the claimants had been retained on full pay for a period of some five months with no indication from either Social Services or PSNI as to when the matter would be resolved, the tribunal has concluded that the appropriate statutory uplift in these circumstances would be 10%.
Remedy
Roisin Smyth
41. The basic award is:-
£180.00 x 7.5 = £1,350.00
42. The tribunal is satisfied that the second-named claimant, used all reasonable efforts to secure alternative employment after her dismissal and that she has mitigated her loss to the maximum extent possible. She obtained new employment on 25 January 2011. The earnings in that new employment matched the earnings in her employment with the respondent. Unfortunately her hours were reduced from 31 October 2011, some nine months after her dismissal and following that reduction her earnings in her new employment were some £36.83 per week lower than her earnings with the respondent. The tribunal has considered this matter carefully. However, it is satisfied that some nine months into her new employment, a reduction in hours, as part of the general economic recession, cannot fairly be said to have resulted from her dismissal by the respondent. Causation has been broken.
43. The tribunal therefore fixes her compensatory award, ie her net loss of earnings, as a loss of £160.83 for 14 weeks, ie £2,251.62, plus £350.00 for loss of statutory job protection. That compensatory award is subject to the 10% statutory uplift, ie £260.16.
44. The total is therefore :-
Basic award £1,350.00
Compensatory award £2,601.62
Uplift £ 260.16
Total £4,211.78
Recoupment
45. Please see attached Recoupment Notice.
Andrea McCracken
46. The basic award in the case of the first-named claimant is:-
£234.68 x 4 = £ 938.72
£234.69 x 1 x 1/2 = £ 117.35
Total basic award = £1,056.07
47. The tribunal is satisfied that this claimant has used all reasonable efforts to secure alternative employment and that she has mitigated her loss to the maximum extent possible. The claimant obtained alternative employment from 26 November 2010 to 3 January 2011 (a period of five weeks) with SSFA Ireland. This was temporary employment at £50.00 net per week. She then obtained employment with Haffe Nurseries from 8 April 2011 to 13 May 2011, again a period of five weeks, with net pay of £1,104.00. The claimant then secured more permanent employment with Centra on 30 August 2011 and that employment continues. The employment with Centra produces a net pay which is £2.56 lower per week than that from her employment with the respondent.
48. The tribunal considers that the delay in holding the tribunal hearing is not a matter which can be laid at the door of the respondent and that it would be unfair to the respondent to automatically assume that compensation should be awarded to the date of the hearing and beyond. Looking at matters in the round, the tribunal believes that awarding loss to the date of the tribunal will be sufficient in the circumstances of this case. The compensatory award for this claimant in respect of loss of wages is therefore £7,604.56. The claimant is also awarded £350.00 for loss of employment protection rights. The statutory uplift at 10% is £795.45. The total compensatory award is therefore £8,750.01.
49. Loss of wages calculation
Loss of wages from dismissal to date of hearing –
£203.08 x 72.2 £14,662.37
Less payment of £ 243.70
Less earnings - SFA Ireland £ 250.00
Haffe Nurseries £1,104.00
Centra £5,460.11 £ 6,814.00
Total Loss £ 7,604.56
50. The total compensation awarded to the first-named claimant is therefore:-
Basic award £1,056.07
Compensatory award £7,954.56
Uplift £ 795.45
Total £9,806.08
Recoupment
51 Please see attached Recoupment Notice.
52. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Vice President:
Date and place of hearing: 12 – 13 March 2012, Belfast
Date decision recorded in register and issued to parties:
Case Ref No: 319/11
CLAIMANT: Andrea McCracken
RESPONDENT: Jason O’Hara T/A Peace of Mind Nursery
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 |
9,806.08 |
|
(b) Prescribed element |
7,604.56 |
|
(c) Period to which (b) relates: |
21 October 2010 to 12 March 2012 |
|
(d) Excess of (a) over (b) |
2,201.52 |
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.
Case Ref No: 320/11
CLAIMANT: Rosalind Smyth
RESPONDENT: Jason O’Hara T/A Peace of Mind Nursery
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 |
4,211.78 |
|
(b) Prescribed element |
2,251.62 |
|
(c) Period to which (b) relates: |
21 October 2010 to 25 January 2011 |
|
(d) Excess of (a) over (b) |
1,960.16 |
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.