Industrial Tribunals Northern Ireland Decisions

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Cite as: [2012] NIIT 1594_11IT, [2012] NIIT 01594_11IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1594/11

CLAIMANT: Adrian Hines

RESPONDENT: Brinks Ireland Ltd

DECISION

The decision of the tribunal is that the claimant was unfairly dismissed. He is entitled to compensation in the sum of £51,281.52 together with costs in the sum of £4,000.00 plus VAT and outlay. This award is subject to the attached recoupment notice.

Constitution of Tribunal:

Chairman: Mrs A Wilson

Members: Mr J Hughes

Mrs P Weir

Appearances:

The claimant was represented by Ms Mary Gavin, Solicitor of Francis Hanna and Company, Solicitors.

The respondent was represented by Mr Tom Grady of Peninsula Business Services Limited.

THE LEGAL ISSUES

1. (i) What was the reason for the claimant's dismissal?

(ii) Was the reason for dismissal one of the reasons set out in Article 130 of the Employment Rights (Northern Ireland) Order 1996 (the 1996 Order)?

(iii) Was dismissal fair within the meaning of Article 130 of the 1996 Order?

(iv) Was dismissal automatically unfair within the meaning of Article 130A of the 1996 Order?

(v) If dismissal was unfair what compensation (if any) is due to the Claimant?

(vi) What uplift (if any) should be made to any compensation awarded if it is found that proper procedures were not followed or were followed but not completed?

(vii) What costs (if any) should be awarded against the respondent?

THE HEARING

2. On behalf of the respondent the tribunal considered witness statements prepared, adopted and sworn by John Campbell, General Manager of Brinks (Ireland) Ltd and Mark Jordan, Human Resources Director of Brinks (Ireland) Ltd together with their sworn testimony under cross examination.

3. On behalf of the claimant the tribunal considered witness statements prepared, adopted and sworn by the claimant and by his former colleague Edward Bell together with the claimant's sworn testimony under cross examination.

4. The tribunal considered extracts from a bundle of documents prepared and agreed by the parties to include a schedule of loss. The tribunal also considered the submissions of Ms Gavin and Mr Grady and the case law and legislation referred to.

FINDINGS OF RELEVANT FACT

5. The respondent is part of Brinks Incorporated which operates in over 50 countries on 6 continents around the globe employing over 49,000 employees. The company has over 150 years trading experience. It has had a presence in Ireland (North and South) for nearly 40 years. It employs 50 members of staff in Belfast and approximately 500 people throughout Ireland.

6. The claimant was employed by the respondent in the Belfast area from 19 November 2000 until his employment was terminated on 15 April 2011. He was initially employed as cash in transit driver and on 4 November 2005 he became a First Line Maintenance Engineer (FLM Engineer). His work involved the replenishment of cash in ATM machines and he worked mainly in connection with a contract that the respondent had with Bank of Ireland.

7. In January 2011 the respondent became aware that it had lost the Bank of Ireland contract. It was unclear at that time as to whether TUPE applied to the lost contract or whether the loss would result in a redundancy situation. In either event the respondent believed that the employment contracts of three FLM Engineers including the claimant would be affected.

8. Apart from limited correspondence the tribunal has been presented with no evidence as to what (if anything) transpired between January 2011 and March 2011. On 11 March 2011 Mr John Campbell held meetings with the three FLM Engineers whose employment was to be effected and informed them of the loss of the Bank of Ireland contract to Risk Management Solutions (Global) LLP (RMS) and the consequent risk of redundancy. Mr Campbell indicated that there would be one FLM position available going forward and this position would be filled following a selection process with set criteria.

9. At the meeting on 11 March the claimant enquired as to whether TUPE applied to the loss of the Bank of Ireland contract and Mr Campbell informed him that enquiries were being made in that regard.

10. On 14 March 2011 the claimant was informed by letter from Mr Jordan that TUPE applied. Mr Jordan wrote in the following terms:-

"We now believe that this is clearly a TUPE matter and have written formally to advise Bank Machine (a subsidiary of RMS) of this.

Please note that if you choose not to transfer to the new contractor under the Transfer of Undertakings legislation you will not be entitled to claim any redundancy entitlement from Brinks. The reason for this is we now know TUPE applies, and your role is not redundant as it will transfer to the new contractor.

We still require one FLM engineer as part of the ongoing Northern Ireland operations and so advise you that if you are interested in this position, to please apply in writing to Mr John Campbell by close of play on Friday the 18th March. The interviews if required will be scheduled for Wednesday the 23rd March in the morning"

11. The claimant and one other employee competed for the available post and the claimant was unsuccessful.

12. It seems clear that from the outset, the claimant had concerns regarding the applicability of TUPE. From 14 March 2011 onwards he was one of a number of employees who raised queries with the respondent as to whether TUPE did in fact apply and by letter dated 4 April 2011 he sought reasons from Mr Campbell as to why he (Mr Campbell) believed that TUPE applied. No reasons were given in reply save that legal advice was taken and relied upon. At a meeting on 31 March 2011 attended by the claimant, Mr Campbell, Mr Jordan and other employees further queries were raised as to the applicability of TUPE and the meeting was informed by one of the effected employees of advice having been received from the Labour Relations Agency to the effect that TUPE did not apply.

13. At a meeting on 14 April 2012 attended by the claimant and Mr Campbell, the claimant was informed that the "company is clear on it's position, in view of advice given that TUPE applies" and "...... All I can reiterate is that the company are clear that TUPE applies in their view".

14. The respondent steadfastly maintained the view that TUPE applied and was at this time in regular and ongoing contact with RMS who remained firmly of the contrary view. By letter dated 12 April 2011 RMS (Ms Jean Hilliard) advised the respondent (Mark Jordan) of their reasons for believing that TUPE did not apply and of the fact that no other supplier was "even considering TUPE as being applicable". Significantly Ms Hilliard concluded her letter in the following terms:-

"I once again wish to affirm that it is inappropriate for your employees to be contacting RMS directly, not least our managing director, and again request your employees to deal directly with you on this issue. I further request you do not instruct your employees to report to RMS on Friday 15th April 2011.”

15. Notwithstanding this advice the claimant's contract of employment with the respondent was terminated on 15 April 2011 and contrary to the express indication given by RMS, he (the claimant) was advised to report to RMS on 18 April. The claimant was given no indication of the position being adopted by RMS and was surprised, embarrassed and humiliated when told by RMS on the morning of the 18 April 2011 to leave their premises.

16. There followed much correspondence and contact between the parties and between the claimant and RMS. Mr Jordan attended a meeting with Ms Hilliard of RMS on 28 April 2011. At no point did either the respondent or RMS depart from their firmly held views regarding TUPE. However on the expressed understanding that TUPE did not apply RMS gave an indication that it would offer the claimant (and his colleague) employment. This job offer did not materialise.

17. Following the termination of his employment the tribunal is entirely satisfied that the claimant actively sought work. He was registered with employment agencies and he secured employment in early November 2011 working on a part time basis and on a lower wage as a classroom assistant with autistic children. He continues to be employed in this capacity. Immediately following his dismissal he suffered greatly from depression which hindered his efforts to secure work as did the effects of the recession. The tribunal is satisfied on the balance of probabilities that his illness was caused by the manner in which he was treated by the respondent. However this has not been taken into account in determining liability or quantum.

18. The claimant lodged Industrial Tribunal proceedings on 8 July 2011 citing the respondent and RMS as co respondents.

19. The respondent entered a response denying liability on the basis that TUPE applied. This response gives no reasoning as to why it was being asserted that TUPE applied and consisted of little more than a chronology of correspondence, meetings and discussions between the parties. The tribunal find this surprising and particularly so given the size of the respondent company and the resources available to them.

20. RMS entered a response giving detailed reasoning as to why they believed that TUPE did not apply. They confirmed that on 31 March 2011 it was confirmed to the respondent that the deal between Bank of Ireland and RMS (Bank Machine) was not a transfer of a business but was rather an outright sale of ATM sites from one provider to another.

21. It is noteworthy that both RMS and the respondent were represented by Peninsula Business Services Ltd operating out of the same address in Manchester with the same contact details. The tribunal assumes that the representatives acted separately but also expects that as representatives from the same organisation, they had the same access to the same resources including up to date case law and analysis. It is therefore surprising that the respondent and RMS held such opposing views regarding TUPE. It is noteworthy that at no time did the respondent give any reasoning detailed or otherwise as to why they formed the view that TUPE applied.

22. The tribunal have carefully considered and evaluated the evidence of all witnesses. The tribunal find the claimant to be straightforward and honest in all aspects of his testimony and find both Mr Campbell and Mr Jordan to be evasive on material points of detail and superficial in relation to material facts. By way of example it is asserted that the respondent acted at all times following legal advice. This is presented as being crucial to decisions taken by the respondent. However beyond confirmation that legal advice was taken from an external organisation following every communication received, no details are given of any efforts to explore or challenge that legal advice or more significantly to take on board arguments to the contrary position. This is surprising in circumstances where employees (including the claimant), the LRA, the second-named respondent and others (see paragraph 12) were firmly of a contrary view and the second-named respondent and the LRA supported their views giving reasons. Additionally both respondents were represented by personnel from the same organisation. The claimant at the meeting on 31 March specifically asked if another meeting could be held with legal representation and this was refused. He asked Mr Jordan to point to the part of TUPE being relied upon and he (Mr Jordan) replied "the whole Act". In these circumstances it is not possible for the tribunal to satisfy itself on the balance of probabilities that the position adopted by the respondent at the time of dismissal was based upon a genuinely held and reasonable belief.

APPLICATION OF THE RELEVANT LAW

23. The right not to be unfairly dismissed is set out in the Employment Rights (Northern Ireland) Order 1996 as amended (the 1996 Order) and the tribunal considered the relevant provisions. The tribunal considered relevant case law including Wilson v The Post Office [2000] IRLR 834, Abernethy v Mott, Hay and Anderson [1974] ICR 323, Ely v YKK fasteners UK Ltd 1994 ICR 164, Devis v Atkins 1977 ICR 662, Hannan v TNT-IDEC UK Ltd [1986] IRLR 165, Metrobus v Cook [2007] UKEAT 0490-06-0901, Mitchells of Lancaster Brewers Ltd v Tattersall 2012 UKEAT 0605/2011, Harvey on Industrial Relations and Employment Law and extracts from the IDS brief furnished by Ms Gavin:-

24. As a first step the tribunal must decide the reason for dismissal and in accordance with Article 130 of the 1996 Order it is for the respondent to show both the reason for the dismissal and that it is a reason falling within Article 130(2) or in the alternative some other substantial reason of a kind such as to justify the dismissal. In considering the reason the tribunal considered the following extract from Wilson v The Post Office:-

“15. In looking at the proper interpretation of an approach to section 98, it is important to bear in mind what was said in this court by Cairns LJ in Abernethy v Mott, Hay and Anderson [1974] ICR 323:

16. A reason for the dismissal of an employee is a set of facts known to the employer, or it may be beliefs held by him, which cause him to dismiss the employee".

25. At the date of dismissal the respondent cited TUPE as the reason why the claimant’s employment contract with them was being terminated. It was their case that there was no dismissal and that the contract was passing seamlessly to RMS under TUPE. This reflected their belief at that time and remained their position until a Case Management Discussion (CMD) on 13 June 2012 when it was conceded by the respondent that TUPE did not apply at which point RMS were dismissed from the proceedings.

26. Since that date (13 June 2012) at the latest, the respondent's case has changed and it is now their position that the claimant was dismissed by reason of redundancy. This is despite the fact that at the date of dismissal the claimant was informed by letter (dated 15 April 2011) that his employment was transferring under TUPE to RMS. He had previously been informed by letter dated 14 March 2011 that he would not be entitled to "claim any redundancy entitlement from Brinks" and the respondent was consistent and adamant at all material times that TUPE applied.

27. In all the circumstances of this case the tribunal concludes that the claimant was dismissed in the mistaken belief that TUPE applied. This is not a potentially fair reason with the meaning of Article 130 of the 1996 Order. It does not amount to a potentially fair reason within the meaning of Article 130(2) and it does not amount to some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held within the meaning of Article 130 (1)(b). The respondent cannot be entitled to rely on its mistake or that of its legal advisors to fairly dismiss an employee. This is essentially a matter between the respondent and its advisors and is not sufficient to deprive the claimant of his right not to be unfairly dismissed.

28. In reliance on Article 130 of the 1996 Order, the tribunal finds that the claimant was unfairly dismissed.

29. No procedures whatsoever were followed in connection with the dismissal of the claimant and as a consequence the tribunal is satisfied that as an alternative to unfair dismissal in accordance with Article 130 of the 1996 Order, the claimant was automatically unfairly dismissed in accordance with Article 130A of the 1996 Order. The respondent has adduced no evidence to persuade the tribunal that the claimant would have been dismissed even if applicable procedures were followed and it is not for the tribunal to speculate in this regard. The onus lies firmly and plainly on the respondent.

The Redundancy Argument

30. Notwithstanding the above findings the tribunal proceeded to consider the respondent’s argument that the claimant was dismissed by reason of redundancy.

31. The respondent’s position in relation to redundancy is now as entrenched as was their previous position regarding TUPE (notwithstanding the surprising fact that no efforts have been made to amend their response). Mr Grady categorically accepted before the tribunal that the claimant is entitled to redundancy pay and notice pay. In these circumstances the tribunal finds it astonishing that no effort had been made to discharge this admitted liability. This is all the more astonishing given the change of tack on the part of the respondent regarding their defence, the size of the respondent organisation which has been emphasized by Mr Campbell in his witness statement and the likely resources available to it. These factors have led the tribunal to query the respondent’s bona fides.

32. Additionally the tribunal find that on the balance of probabilities that it (the respondent) must have been aware of the claimant's strained financial circumstances and was certainly aware on 13 June 2012 of the detrimental impact those circumstances were having on his health. This factor (knowledge of the claimant’s strained financial circumstances) although noted by the tribunal in considering the bona fides of the respondent has not been taken into account in assessing liability or quantum.

The Law relative to Dismissal by reason of Redundancy.

33 In accordance with Article 130 (2)(c) of the 1996 Order, redundancy is a potentially fair reason for dismissal and the tribunal accepts that the loss of the Bank of Ireland contract gave rise to a genuine redundancy situation.

34. The tribunal considered the redundancy procedures adopted by the respondent. In doing so the tribunal considered the Northern Ireland Court of Appeal decision in Robinson v Carrickfergus Borough Council [1983] IRLR 122 which approved the approach of the EAT in the case of Williams v Compair Maxim [1982] UKEAT 372 and established the following principles to be applied in a fair redundancy process:-

(i) there should be fair warning and consultation;

(ii) there should be fair selection which involves identifying the correct pool of employees and applying objective transparent selection criteria to that pool;

(iii) suitable alternative employment should be actively considered and, if available, offered by the employer.

35. The claimant was warned by Mr Campbell at a meeting on 11 March 2011 that redundancy was a possibility following the loss of the Bank of Ireland contract. Mr Campbell also advised that he (Mr Campbell) would provide formal written warning of potential redundancy which he did by letter dated that same day. In that letter the claimant was asked to put forward "alternative proposals and suggestions …which you feel are relevant with the aim of avoiding redundancy". However by letter dated 14 March 2011, Mr Jordan wrote to the claimant indicating that TUPE applied and "you will not be entitled to claim any redundancy from Brinks". From this date forward, the respondent maintained the position that there was not a redundancy situation rather a TUPE transfer. In these circumstances the tribunal is not satisfied that there was fair warning or any meaningful consultation.

36. The respondent seeks to persuade the tribunal that the interviews (see paragraphs 6 and 7) held for the position of FLM engineer were held for the purposes of fairly selecting candidates for redundancy. The tribunal does not accept this to be the case and the efforts of the respondent to advance this as a proposition does them little credit. The invitation to express interest in the remaining post was contained in a letter which expressly stated that "your role is not redundant". It is disappointing that an organisation the size of the respondents would seek to rely on such a theory having insisted at all material times that there was no redundancy situation. The tribunal is not satisfied that if redundancy were to be accepted as the reason for dismissal that there was fair selection for redundancy.

37. There is no evidence before the tribunal that suitable alternative employment was considered or offered to the claimant. In an organisation the size of the respondent's it is entirely possible that suitable alternative employment could have been identified had consideration been given to such employment.

38. In all of these circumstances the tribunal is satisfied that even if it were to accept the respondent’s case that the claimant was in reality dismissed by reason of redundancy, then that dismissal was unfair in that no procedures were followed.

COMPENSATION

39. The claimant is entitled to compensation in accordance with Articles 152 to 158A of the 1996 Order. The tribunal is satisfied that the claimant made all reasonable efforts to mitigate his loss by seeking alternative employment (see paragraph 17).

40. The claimant has prepared a schedule of loss. The tribunal accepts that the schedule as prepared accurately reflects the claimant's entitlement to a basic award in the amount of £5,000.00 and a compensatory award as calculated in the amount of £24,697.88 together with an amount to reflect future loss. In current recessionary times the tribunal consider an award to reflect nine months future loss is reasonable and this is calculated at £163.05 per week (as in the attached schedule of loss) as £163.05 x 4 weeks x 9 months amounting to = £5,869.80 making a total compensatory award of £30,567.68. The tribunal considers in all the circumstances of this case that an award of future loss for a period of 2 years as claimed would be excessive.

41. The tribunal awards the sum of £430.00 in respect of compensation for loss of statutory rights.

42. The claimant claims an uplift of his compensatory award in accordance with the Employment Rights (Northern Ireland) Order (Dispute Resolution) Regulations (Northern Ireland) 2004. In circumstances where the tribunal has found that the dismissal was unfair and no procedures were followed the tribunal awards the maximum uplift of 50%.

43. The tribunal has considered whether there are exceptional circumstances which would make an increase in the circumstances of this case unjust or inequitable. The tribunal is satisfied that there are not.

44. Uplift is calculated as follows £30,567.68 x 50% = £15,283.84

45. The tribunal calculates the total amount awarded as follows:-

Basic Award = £5,000.00

Compensatory award (to include uplift) = £45,851.52

Loss of Statutory Rights = £430.00

Total Award = £51,281.52

46. This is a relevant decision for the purposes of recoupment of benefit (job seekers allowance) received by the claimant in accordance with the Employment Protection (Recruitment of Job Seekers Allowance and Income Support) Regulations (Northern Ireland) 1996 (the 1996 Regulations).

47. The 1996 Regulations require the tribunal to set out:-

(a) the monetary award;

(b) the amount of the prescribed element, if any;

(d) the amount if any by which the monetary award exceeds the prescribed element.

48. For the purposes of this case, the monetary award is £51,281.52.

49. The prescribed element is that amount of the monetary award which represents compensation for loss of earnings. In this case the prescribed element is £19,197.88.

50. The prescribed element is attributable to the period from 5 September 2011 to 25 October 2011.

51. The amount by which the monetary award exceeds the prescribed element is £51,281.52 less £19,197.88 = £32,083.64.

52. The attached Recoupment Notice forms part of the decision of the tribunal.

COSTS APPLICATION

53. The claimant claims costs in accordance with Rules 38, 39, 40 and 47 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (the Rules). In considering the application the tribunal considered Harvey on Industrial Relations and Employment Law at section Z from paragraph 1026 onwards, the case law referred to therein, the case of E T Marler Ltd v Robertson [1974] ICR 72 at 76, NIRC).

54. In considering whether to award costs the tribunal is asked to consider whether the respondent has in defending the proceedings acted unreasonably or has been misconceived.

55. The respondent accepts in it's response that the claimant was dismissed and was or plainly should have been aware that the onus was on them to show the reason for dismissal. The reason given in the response is that the claimant's contract transferred under TUPE. This was the reason advanced by the respondent at that time and maintained up until the Case Management Discussion (CMD) on 13 June 2012 when it was accepted by the respondent that TUPE did not apply by reason of the decision in Hunter v McCarrick UKEAT/0617/10. The decision in this case was handed down on the 13 December 2011 and was relied upon at the CMD by RMS who were at all times represented by personnel from the same organisation as the respondent’s representative. After that date (13 June 2012) the respondent sought to plead redundancy as the reason for dismissal. However notwithstanding this significant change in the respondent’s position no application was made to amend the response entered in the case or to pay redundancy entitlement or notice pay.

56. As a first step the tribunal has applied its mind as to whether the view taken and maintained by the respondent up until 13 June 2012 that TUPE applied was sufficient to reasonably justify a defence of these proceedings and was properly conceived and secondly whether their defence of the proceedings thereafter was reasonable and properly conceived. Thereafter the tribunal must decide whether to exercise it's discretion to award costs.

57. The tribunal has no hesitation in exercising its discretion and awarding costs from 13 June 2012 onwards on the grounds that after this date the respondent was misconceived in defending the proceedings. In making this finding and in the exercise of its discretion, the tribunal have considered Mr Campbell's evidence that the respondent is part of a global organisation operating in over 50 countries on 6 continents employing over 49,000 employees, that it has 150 years of trading experience and a presence in Ireland for nearly 40 years employing 50 members of staff in Belfast and 500 throughout Ireland. It has a Human Resources Department and access to external legal advisors. Mr Jordan has considerable experience in employment law matters and in TUPE. In all these circumstances the tribunal is satisfied that it plainly should have recognised when abandoning the TUPE defence and advancing the redundancy argument, that proper redundancy procedures were not followed so as to make a finding of unfair dismissal inevitable. The tribunal is satisfied that from 13 June onwards the proceedings had no reasonable prospect of success and the respondent should have realised and accepted this to be the case.

58. In considering whether the respondent behaved unreasonably or with misconception in defending the proceedings from the outset the tribunal considered the factors outlined above and the costs warning letters of 29 May 2012 and 20 September 2012. The Tribunal considered the case of Beynon v Scadden [1999] IRLR 700, EAT. In this context the tribunal also considered the weight of evidence presented to the effect that employees including the claimant believed that TUPE did not apply, RMS (with legal representation from the same organisation as the respondent) believed TUPE did not apply and provided reasons for their belief, the LRA advised that TUPE did not apply giving reasons and motivated by concern regarding the applicability of TUPE the claimant asked for a meeting with legal representation to explore the TUPE question and was refused. In these circumstances the tribunal would have expected the respondent to have defended their belief in TUPE by arguments of substance in their response and in their evidence to the tribunal in relation to the costs application. The tribunal considered the following extract from Beynon v Scadden of assistance:-

''A party who, despite having had an apparently conclusive opposition to his case made plain to him, persists with the case down to the hearing in the “Micawberish” hope that something might turn up and yet who does not even take such steps open to him to see whether anything is likely to turn up, runs a risk, when nothing does turn up, that he will be regarded as having been at least unreasonable in the conduct of his litigation.''

59. In considering the costs application, the tribunal has been presented with no argument or evidence in defence of the respondent‘s belief that TUPE applied other than the stated and restated position that they relied upon legal advice. There is no justifiable reason as to why the claimant should be prejudiced financially by mistaken legal advice in circumstances where the respondent has failed to satisfy the tribunal that their reliance upon that advice was reasonable. No points of substance regarding the applicability of TUPE were expressed in any correspondence between the parties and no arguments of substance ventilated at any meeting. The respondent failed to persuade the tribunal that they were open to or were prepared at any point prior to the CMD to reconsider their position regarding TUPE. When Mr Jordan was asked at a meeting on 31 March for written confirmation as to what part of TUPE applied he answered "the whole Act". The tribunal in all the circumstances of this case considers this a flippant response and one which is demonstrative of the respondent's unwillingness to meaningfully consider or engage on any level with arguments from numerous informed parties regarding the applicability of TUPE. Furthermore the tribunal finds that it points to some ignorance on the part of the respondent regarding TUPE in that the law relevant to TUPE is of course enshrined in regulations rather than in an Act of Primary Legislation.

60. In all the circumstances of this case the tribunal find that the respondent's defence of these proceedings was from the outset misconceived and unreasonable and awards costs (to include VAT) to the claimant. Ms Gavin has applied for costs in the amount of £4,000.00 plus VAT and outlay. The tribunal is accordance with paragraph 41(2) of the rules has discretion to consider the respondent’s ability to pay costs. The tribunal considered this provision and in all the circumstances of this case including the fact that the respondent is part of a global organization with a significant presence in Northern Ireland decided not to exercise it’s discretion in this regard. The tribunal awards costs in the sum of £4,000 plus VAT and disbursements.

61. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 24 to 26 September 2012, Belfast.

Date decision recorded in register and issued to parties:

Case Ref No: 1594/11

CLAIMANT: Adrian Hines

RESPONDENT: Brinks (Ireland) Limited

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	£51,281.52
(b) Prescribed element	£19,197.88
(c) Period to which (b) relates:	05/09/2011 to 25/10/2011
(d) Excess of (a) over (b)	£32,083.64

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, 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 of 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 of 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.