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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Smyth v Neil Wallace [2012] NIIT 01825_11IT (21 May 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/1825_11IT.html
Cite as: [2012] NIIT 01825_11IT, [2012] NIIT 1825_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1825/11
CLAIMANT: Mark Edward Daniel Smyth
RESPONDENT: Neil Wallace
Certificate of Correction
1. Due to a typographical error on page 1 of the Decision, paragraph 4 should have been omitted; as the sum of £2,130.21 ordered to be paid by the Respondent was included in the sum of £2,534.86, set out in paragraph 3 of page 1 of the Decision.
2. The total sum ordered to be paid by the Respondent remains £12,475.18.
CHAIRMAN:_______________________________________________
Date: __________________________________________
THE INDUSTRIAL TRIBUNALS
CASE REF: 1825/11
CLAIMANT: Mark Edward Daniel Smyth
RESPONDENT: Neil Wallace
DECISION
The unanimous decision of the tribunal is that:-
(1) The claimant was unfairly dismissed and the respondent is ordered to pay the claimant in respect of the said unfair dismissal the sum of £1,120.16:-
Basic award £ 620.16
Compensatory award £ 500.00
(Loss of statutory rights)
Total £1,120.16
(2) The respondent failed to provide statement of employment particulars and/or changes thereto; and the respondent is ordered to pay to the claimant the sum of £620.16 (4 x £155.04).
(3) The tribunal having made a declaration that the respondent has made an unauthorised deduction of wages in the sum of £2,534.86 orders the respondent to pay to the claimant the sum of £2,534.86.
(4) The respondent failed to pay to the claimant the National Minimum Wage from 28 March 2010 to 11 May 2011 - £2,130.21 – and is ordered to pay to the claimant the sum of £2,130.21.
(5) The claimant was unlawfully discriminated against by the respondent on the grounds of age and the tribunal orders the respondent to pay by way of compensation in respect of the injury to his feelings the sum of £8,200.00.
The respondent is therefore ordered to pay to the claimant, in total, the sum of £12,475.18.
Constitution of Tribunal:
Chairman: Mr N Drennan QC
Members: Mr E Grant
Mr A Crawford
Appearances:
The claimant was represented by Ms L Askin, Barrister-at-Law, instructed by Ferguson & Company, Solicitors.
The respondent did not appear and was not represented.
Reasons
1.1 The claimant presented a claim form to the tribunal on 9 August 2011. The respondent presented a response to the tribunal on 14 September 2011, denying, inter alia, the claims made by the claimant. At a Case Management Discussion on 24 October 2011, as set out in the Record of Proceedings dated 25 October 2011, which hearing the respondent did not attend and was not represented, the President of the Tribunals, identified the issues to be determined by the tribunal, in relation to the claimant’s claims of:-
(i) unfair constructive dismissal;
(ii) failure to pay the National Minimum Wage;
(iii) age discrimination;
(iv) unlawful deduction of wages/breach of contract/holiday pay; and
(v) failure to give written statement of particulars of employment and/or particulars of change.
1.2 The claimant’s representative, at a hearing on 14 February 2012, confirmed that the claimant was only making a claim of direct age discrimination and not indirect age discrimination. Further, for the reasons set out in the Record of Proceedings of that hearing, dated 21 February 2012, the tribunal adjourned the hearing, in order to enable the claimant’s representative to serve on the respondent further documents relating to the claimant’s said claims, and also made an ‘‘Unless Order’’ to be complied with by the respondent. The respondent failed to comply with the said ‘Unless Order’, dated 21 February 2012; and, by a decision recorded in the Register and issued to the parties on 21 March 2012, the respondent’s response was struck-out for failure to comply with the said Order.
1.3 Following the said decision, the tribunal was informed by the Department for Employment & Learning (Redundancy Payments Branch) that, on 25 January 2012, the respondent had been adjudged bankrupt by the High Court of Justice in Northern Ireland, Chancellery Division (Bankruptcy).
1.4 The claimant, whom the tribunal found a very impressive witness, gave oral evidence to the tribunal and, at the conclusion of his evidence, his representative also made oral submissions to the tribunal. Insofar as relevant and material for the determination of the claimant’s claims, the tribunal made the following findings of fact, as set out in the following paragraphs of this decision.
2.1 The claimant was born on 28 March 1988 and was employed by the respondent from on or about 1 September 2004, until on or about 13 May 2011, when he was aged 23 years. The respondent was a building contractor and carried out building work for the respondent at various premises in or about North Down and the Ards Peninsula. Initially the claimant was employed as an apprentice bricklayer by the respondent; but after serving his time under PM, who was an experienced bricklayer working for the respondent at that time, the claimant, in or about September 2007, became the only bricklayer employed by the respondent. At that date, he was earning £250.00 net per week, as a bricklayer; albeit, on occasion, he did other building/labouring work for the respondent, as required.
2.2 Following a reduction in building work for the respondent in the period prior to 2010, the claimant by 28 March 2010, was employed on a three day week by the respondent at £108.00 net for the said three day week. He was not paid travel expenses, although he drove, in his own car, some of his fellow employees to and from work. In or about 2010/2011, the claimant discovered he was getting less earnings than other employees, who were working as unskilled labourers, and that some of these labourers were also getting travel expenses, albeit he was driving them in his car. Although the tribunal was satisfied, from evidence produced by the claimant, that he was receiving less pay than these unskilled labourers and also some of them were receiving travel expenses, the claimant was not in a position to give detailed evidence of the precise differences in the pay of these unskilled labourers in comparison to himself and/or the amount of the said travel expenses each unskilled labourer was receiving. In addition, the tribunal was satisfied, on the evidence of the claimant, that the claimant, from in or about 28 March 2010 until the termination of his employment, was receiving less than the relevant National Minimum Wage for the said period.
2.3 The claimant, at all times, when he worked for the respondent, was a good and conscientious worker who carried out properly all tasks entrusted to him by the respondent. However, in or about 2011, the claimant begun to become the subject of criticism from the respondent and some of the other unskilled labourers employed by the respondent in relation to his work, which criticism the tribunal was satisfied was unfair, wrong and totally undeserved. Indeed, the tribunal considers that the criticism of the claimant by the said labourers, who were all older than the claimant, was part of a campaign, instigated by the respondent, to force the claimant to resign and leave the respondent’s employment, without the necessity for the respondent to pay the claimant any redundancy and/or any other compensation.
2.4 On or about 25 February 2011, the claimant spoke to the respondent about the fact his pay was less than the National Minimum Wage and less than that of the other unskilled labourers; and also about the failure to pay him travel expenses when other employees were paid such expenses. In response, the respondent said the claimant was paid less than the other labourers, although, unlike them, he was a fully qualified, trained and experienced bricklayer, because he was the youngest and he needed, in the respondent’s view, less money. He also stated that he was ‘the boss’ and suggested to the claimant that he should leave and get other employment; but, at the same time, making it clear that there was no question of the respondent ever paying him redundancy or any other compensation if the claimant left the respondent’s employment, as suggested by the respondent.
2.5 The claimant again spoke to the respondent on or about 4 March 2011 to try to see if there could be resolution of the matters he had raised with the respondent. He asked the respondent if he would at least pay the same to him as he was paying to the other labourers together with travel expenses. The respondent again refused citing, inter alia, the claimant’s age. Despite the continued downturn in the respondent’s work, on 9 May 2011, the respondent, although he had employed the claimant as a bricklayer for some six years, again employed PM, as a bricklayer. He also said the claimant should act as PM’s hodsman. Although the claimant was fully trained and an experienced bricklayer and the tribunal was satisfied that there was no valid criticism of the claimant’s work, the respondent also refused to pay the claimant the same as PM. Indeed, the tribunal is satisfied that, by employing PM, as set out above, this was a further example of the respondent’s determination to force the claimant to leave the respondent’s employment.
2.6 In the absence of any resolution of the above matters, the claimant felt he could no longer continue to work with the respondent, in circumstances where the respondent was paying him less than employees, who were less qualified, because of his age, had failed to pay him travel expenses in circumstances where he was paying other employees travel expenses, had made unjustified criticisms of his work and had re-employed another bricklayer at a higher rate of pay than he was receiving. The tribunal was satisfied, by his said actions, the respondent had made the claimant’s position untenable so that he had no alternative but to leave the respondent’s employment. The claimant therefore left the respondent’s employment on or about 13 May 2011. At a meeting at the respondent’s home on 20 May 2011, when the claimant was asked to go to collect his P45, the claimant refused to sign a document at the request of the respondent that he had left the respondent’s employment of his own accord. The respondent then refused to give the claimant his P45 and also refused to pay the claimant the holiday pay to which the tribunal is satisfied he was due on the termination of his employment. Although the claimant had orally raised the above matters with the respondent, before the termination of his employment, he accepted, in evidence, that at no time had he raised a written grievance about these matters with the respondent, in terms which would have satisfied the statutory grievance procedures.
3.1 In order for an employee to be able to claim constructive dismissal, it has long been established that four conditions must be met:-
(1) There must be a breach of contract by the employer. This must be either an actual breach or an anticipatory breach.
(2) That breach must be sufficiently important to justify the employee resigning or else it must be the last in a series of incidents which justify his leaving.
(3) He must leave in response to the breach and not for some unconnected reason.
(4) He must delay too long in terminating the contract in response to the employer’s breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract.
3.2 The tribunal was satisfied the claimant was, at all material times, a good employee who carried out his work properly and consciously and that the criticisms of his work made by the respondent and/or his fellow employees, at the instigation of the respondent, were unwarranted and untrue and were made for the purpose of forcing the claimant to leave the respondent’s employment, without the necessity for the respondent to pay him any redundancy and/or any other compensation. The tribunal was further satisfied that the respondent, by his actions in paying the claimant less than other more qualified employees, because of his age and/or in failing to pay him the relevant National Minimum Wage and/or in failing to pay him expenses when other employees were paid such expenses, albeit, to his knowledge, they were using the claimant’s car for travel to and from work, by employing another bricklayer at a higher wage to do the same work which the claimant had been employed to do and by encouraging the claimant to resign in order to avoid paying him redundancy and/or any other compensation, the respondent, by his said actions, the respondent was in breach of the implied term of trust and confidence, under which an employer will not, without reasonable and proper cause, conduct himself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. The claimant, in the tribunal’s view, did so conduct himself and this constituted a fundamental breach of the claimant’s contract of employment and the claimant could not have been expected to remain in such employment in the above circumstances. Indeed, the tribunal noted that, before finally terminating his employment on 13 May 2011, the claimant had attempted to resolve the said matters with the respondent, but without any success. In the circumstances, the tribunal was satisfied that the claimant was unfairly constructively dismissed by the respondent.
3.3 Under Regulation 3 of the Employment Equality (Age) Regulations (Northern Ireland) 2006 (‘2006 Age Regulations’), it is provided:-
(1) For the purposes of these Regulations, a person (‘A’) discriminates against another person (‘B’) if –
(a) on the grounds of B’s age, A treats B less favourably than he treats or would treat other persons, … and A cannot show the treatment … to be a proportionate means of achieving a legitimate aim.
Under Regulation 7 of the 2006 Age Regulations, it is provided:-
…
(2) it is unlawful for an employer, in relation to a person whom he employs at an establishment in Northern Ireland, to discriminate against that person –
(a) in the terms of employment which he affords him;
(b) in the opportunities which he affords him for promotion, transfer, training, or receiving any other benefits;
(c) by refusing to afford him, or deliberately not affording him, any such opportunity; or
(d) by dismissing him, or subjecting him to any other detriment.
3.4 The tribunal is satisfied, by the respondent’s own admission to the claimant, that the respondent treated the claimant less favourably on the grounds of his age when he paid him less than the older less qualified. The respondent did not give evidence to justify his treatment and, in the circumstances, having regard to the burden of proof provisions contained in the 2006 Age Regulations, the tribunal was satisfied that the respondent unlawfully discriminated against the claimant on the grounds of his age.
3.5 The claimant was not provided, at any material time, with a statement of employment particulars and/or changes thereto, pursuant to Article 33 and/or 36 of the Employment Rights (Northern Ireland) Order 1996 and the tribunal having found the claimant was unfairly dismissed, was thereby also entitled to an award of compensation, pursuant to Article 27 of the Employment (Northern Ireland) Order 2003. Such an award is two weeks’ pay or may be increased to four weeks’ pay, if the tribunal considers it just and equitable. The tribunal has no doubt that, if a statement of employment particulars, and; in particular, of the changes thereto, had been provided to the claimant during the course of his employment many of the issues in this case could have been avoided. The tribunal therefore concluded that, in the circumstances, it was just and equitable to make an award of four weeks’ pay.
3.6 The tribunal were satisfied, the claimant, by reason of the way he was treated by the respondent, as set out above, felt upon the termination of his employment that he was worthless and he had thereby suffered a severe loss of confidence, he felt humiliated and hurt, had difficulty in sleeping and was also suffering considerable stress and upset for a short period following the termination of his employment, although not sufficient to have to seek medical treatment. To the claimant’s great credit, in light of the foregoing, following the termination of his employment, from on or about 20 July 2011, he obtained temporary work as a kitchen porter in a local restaurant until in or about September 2011. He then obtained permanent work as a skilled labourer in a local building firm, at a rate in excess of his earnings with the respondent at the date of the termination of his employment. As a consequence, the claimant makes no claim for any loss of earnings following the termination of his employment.
3.7 The tribunal is satisfied that, at the date of the termination of his employment, the claimant was earning £155.04 gross and £150.86 net for a three day week; after taking into account the relevant National Minimum Wage to which he was entitled, which, at the relevant date, was £6.08 per hour. The tribunal is further satisfied that on the termination of the claimant’s employment, he was entitled to holiday pay for 7.83 days which was not paid to him by the respondent, pursuant to his contract of employment.
4.1 The tribunal then assessed the compensation to which the claimant was entitled, in light of the claimant’s schedule of loss, as presented in evidence to the tribunal by the claimant.
4.2 The Employment Protection (Recoupment of Jobseekers Allowance and Income Support) Regulations (Northern Ireland) 1996, as amended, (‘the Recoupment Regulations’) do not apply to the decision in this matter.
4.3 In relation to the claimant’s claim of unfair dismissal, the tribunal assessed compensation to the claimant as follows:-
(i) Basic Award
2 x 1 x £155.04 £ 310.08
4 x ½ x £155.04 £ 310.08
Total £ 620.16
(ii) Compensatory Award
(a) Loss of statutory rights £ 500.00
Total Award £1,120.16
4.4 Failure to give statement of employment particulars
4 x £155.04 £ 620.16
4.5 Unauthorised deduction of wages
(a) The respondent failed to pay the claimant the National Minimum Wage at the relevant rate of £6.08, which was applicable for the whole of the said period. (See further Paragraph 32.12 of Tolley’s Employment Handbook 2011) from 28 March 2010 – 11 May 2011 – amounting to a total loss of £2,130.21 for the said period.
(b) Further, the respondent failed to pay the claimant holiday pay for 7.83 days, to which he was properly entitled at the termination of his employment, amounting to £404.65 (7.83 x 8.5 hours x £6.08).
(c) The tribunal therefore makes a declaration that the respondent made an unauthorised deduction in the sum of £2,534.86 (£2,130.21 plus £404.65) and orders the respondent to pay to the claimant the sum of £2,534.86.
4.6 The tribunal was satisfied that, as a result of the said unlawful discrimination on the grounds of age, the claimant had suffered considerable injury to his feelings (see further Paragraph 3.6 of this decision). The tribunal was satisfied that this injury to his feelings was at its height throughout the last few months of his employment with the respondent; but, in particular, during the period immediately following the termination of his employment until he was able to obtain permanent employment in or about September 2011. The tribunal also considered that the upset, distress and loss of confidence felt by the claimant was particularly severe due to his young age and the fact he was in his first employment. By using his young age, in order to force the claimant to leave his first employment the tribunal considered that the respondent had acted in a high-handed, insulting and oppressive manner and that any award for injury to feelings should therefore also include an award of aggravated damages (see further Armitage, Marsden and HM Prison Service v Johnson [1997] ICR 275). In doing so, the tribunal noted that the 2006 Age Regulations were introduced to not only protect older employees but also young employees, such as the claimant. Having regard to the various bands set out in the case of Chief Constable of West Yorkshire Police v Vento [2003] IRLR 102, as amended, in the case of Da’Bell v NSPCC [2010] IRLR 19, the tribunal came to the conclusion that the appropriate award for the said injury to the claimant’s feelings was £7,500.00, which included an award for aggravated damages of £2,500.00.
The tribunal further considered whether it was appropriate to award interest under the provisions of the Industrial Tribunals (Interest on Awards in Age Discrimination Cases) Regulations (Northern Ireland) 2006 (‘the 2006 Interest Regulations’) and concluded that it should include interest on the sum so awarded in relation to the injury to the claimant’s feelings.
For the purposes of the 2006 Interest Regulations:-
The date of the first act of discrimination – 25 February 2011 and the date of calculation is 25 April 2012.
The tribunal therefore awards compensation in respect of the claimant’s claim of age discrimination as follows:-
(a) Injury to the claimant’s feelings £7,500.00
(b) Interest at 8% per annum from
25 February 2011 – 25 April 20 £ 700.00
(c) Total award of compensation £8,200.00
Although the claimant satisfied the tribunal, as set out above, that the respondent had not paid him the same wages and/or travel expenses as other employees, on the grounds of his age, the claimant was not able to provide to the tribunal sufficient and/or specific detail of the monetary sums involved; and, in the circumstances, having regard to the awards made, as set out above, it declined to make any monetary award arising out of these matters, pursuant to the 2006 Age Regulations.
5.1 This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 14 February 2012; and
27 March 2012, Belfast
Date decision recorded in register and issued to parties: