Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    2718/11

CLAIMANT:            Liam McMahon

RESPONDENT:      Eugene Kearney, t/a Eugene Kearney and Son Building Contractors

DECISION

 

(i)       The claim form in so far as it relates to a complaint of unlawful age discrimination is amended at paragraph 7.2 by the substitution of 16 September 2011 for 1 July 2011.  The effect of this amendment is that the age discrimination complaint is in time.

 

(ii)      The decision of the tribunal is that the claimant was not unlawfully discriminated against by the respondent contrary to the Employment Equality (Age) Regulations (Northern Ireland) 2006 and his claim in this regard (to include his harassment claim) is dismissed.

 

(iii)      The decision of the tribunal in so far as it relates to unfair dismissal is that the claimant was unfairly constructively dismissed and the claimant is awarded compensation in the sum of £11,155.00.

Constitution of Tribunal:

Chairman:              Mrs A Wilson

Members:              Mr H McConnell

                              Mr J Welsh

Appearances:

The claimant was represented by Mr James Anderson, Barrister-at-Law, instructed by Gilmore Solicitors.

Mr Liam McMahon appeared for the respondent.

THE EVIDENCE

1.       The tribunal considered the claim form, the response and documents, including original diaries handed in and referred to by the parties during the hearing.  The tribunal considered the sworn testimony of the claimant.  The tribunal also considered the sworn testimony of Mr Eugene Kearney, Mr Seamus McPeake and the affirmed testimony of Mr Lyndon Dwart for the respondent.

 

 

THE ISSUES

 

2.       The issues for the tribunal to determine are as follows:-

 

          (i)       Should the claim form be amended at paragraph 7.2 by the substitution of 16 September 2011 for 1 July 2011, the effect of which will be to bring the claim as it relates to age discrimination in time?

 

          (ii)      If the claim form is not amended, should the time within which the claim in so far as it relates to age discrimination be extended on the grounds that it is just and equitable to do so?

 

          (iii)      If the claim as it relates to age discrimination is in time, was the claimant  less favorably treated and/or discriminated against and/or dismissed on the grounds of his age contrary to the Employment Equality (Age) Regulations (Northern Ireland) 2006 ["the 2006 Regulations"]?

 

          (iv)      If the claim as it relates to age discrimination is in time was the claimant subjected to harassment on the grounds of his age contrary to the 2006 regulations?

 

          (v)      If the claimant was unlawfully discriminated against by the respondent contrary to the 2006 regulations what compensation should be awarded to him?

 

          (vi)      Did the claimant suffer a fundamental breach of his employment contract as alleged in the claim form such as to justify his resignation in accordance with  Article 127 of the Employment Rights (Northern Ireland) Order 1996 [the 1996 Order]?

 

          (vii)     If the claimant was dismissed in accordance with Article 127 of the 1996 Order what compensation (if any) should be awarded to him?

 

 

BACKGROUND

 

3.       Mr Eugene Kearney owns and operates the respondent construction business currently employing 10 employees.  He employed up to 14 employees in recent years but like so many in the construction industry has been adversely affected by the global recession.

 

4.       The claimant was employed by the respondent from 1 March 1986 until 19 October 2011.  He was the first person to be employed by the respondent and for many years enjoyed a good working relationship with Mr Kearney.

 

5.       The claimant was initially employed as a joiner and after a number of years was promoted to the position of site foreman.  His role as site foreman involved organizing materials, marking out buildings on green field sites, organizing men and materials on site and liaising with site architects with whom he consistently enjoyed a good working relationship.

 

6.       In his capacity as site foreman, the claimant had the use of a company van to take employees and materials on site and the use of a company mobile phone.  The tribunal is satisfied that use of a vehicle was essential for the duties required of a foreman.

 

7.       It is the claimant's case that he had exclusive use of the company van and that he took responsibility for arranging the service of the van on Saturday mornings so as  to ensure in so far as was possible that the van was always available for work.

 

8.       It is Mr Kearney’s case that the claimant had use of the company van but not the exclusive use.  Mr Kearney asserts that from time to time during the course of his employment the van was used by others and that he (Mr Kearney) arranged the servicing of the van.

 

9.       The tribunal finds the claimant to be straightforward in his testimony and a consistent witness.  The tribunal finds Mr Kearney evasive in response to some questioning and hesitant on other issues.  Having evaluated the testimony of both witnesses the tribunal prefers the evidence of the claimant.

 

10.     In determining the issue regarding the van the tribunal considered the evidence of the claimant, the evidence of Mr Kearney and the evidence given by Mr Seamus McPeake.

 

11.     Mr Seamus McPeake is a site foreman employed by the respondent and it is his evidence that as site foreman he had a company van for use in connection with that position which Mr Kearney sometimes "but not very often" uses.  The tribunal regard this as effectively amounting to exclusive use of the company van.

 

12.     Taking all of the above factors into account the tribunal find that on the balance of probabilities every foreman employed by the respondent had use of a company van effectively on an exclusive basis and that the claimant similarly had the exclusive use of his company van.

 

13.     In or about Christmas 2010 the claimant noticed a change in the attitude of Mr Kearney and felt a deterioration in their working relationship.  By way of example Mr Kearney raised concerns regarding a number of work related issues with the claimant, details of which are recorded in a transcript of diaries furnished to the tribunal by way of discovery.  The original diaries were produced to the tribunal and would indicate that Mr Kearney had concerns about the claimant's performance as early as 2009.  However the claimant had no sense of any concern on the part of Mr Kearney until Christmas 2010 and no performance issues were raised at any time with the claimant.  Furthermore and significantly no reprimand or disciplinary action whatsoever was ever initiated or taken.

 

14.     The genuineness of the original diaries produced to the tribunal was questioned by the claimant’s representative.  Mr Anderson put it to Mr Kearney that the diaries were not completed contemporaneously but were manufactured for the purposes of the tribunal proceedings.  This was denied by Mr Kearney.

 

15.     The tribunal examined the diaries relating to 2009, 2010 and 2011 and carefully considered Mr Kearney’s testimony.  The 2009 diary was produced on the second day of the hearing at the request of the Tribunal.  No diaries were produced on discovery although they clearly relate "to matters in question in this action".  Limited transcripts were produced on discovery but when compared to the original entries did not accurately reflect the diary entries.  All three diaries purported to be work diaries kept on a daily basis by Mr Kearney.  His evidence is that he carried them at all times with him in his work van, that entries were made sometimes in the van and sometimes in the office and it is his evidence that he recorded work related incidents and "events likely to cause problems in the future".

 

16.     There were numerous incidents and impressions noted in the diaries relating to the claimant and limited entries relating to any other employee.  The tribunal finds this surprising in circumstances where the respondent had 10 to 14 employees.  Most notably the diaries were in pristine condition.  The spines were clean and firm and had an appearance inconsistent with daily use and certainly inconsistent with being carried in a works van.  Entries were consistently neat and ordered and there were none of the thumb marks which one would expect to find in diaries used as described by Mr Kearney over periods of 12 months.  The diary entries record a series of incidents involving the claimant and Mr Kearney’s impression of the claimant and his motives.  The tribunal finds it surprising that Mr Kearney would be so meticulous in recording issues relative to the claimant’s work and not raise these as performance issues with him.  Furthermore there are some notable incidents which are not recorded.  By way of example there is no entry recording the fact (which emerges later), which is not disputed, that on the 29 June 2011, the claimant was asked to "go back on tools", ie, revert to the position of joiner.

 

17.     The tribunal considered in particular the 2009 diary which was produced on the second day of the hearing at the request of the tribunal.  The tribunal considered whether it was feasible that this diary could have been produced at short notice if it were not genuine.  This diary was as pristine as the others diaries produced and recorded entries consistent with those recorded in the other diaries.

 

18.     There was one entry from the 2009 diary recorded in the transcript produced on discovery and so the tribunal is satisfied that Mr Kearney had some advance notice that this diary might be required in connection with the proceedings.

 

19.     Taking all the above factors into account and having evaluated the testimony of Mr Kearney, the tribunal find on the balance of probabilities that the diaries produced were completed for the purposes of the hearing.  The tribunal does not find the diary entries to be consistent with contemporaneous records.  Some notable incidents and events were not recorded (see paragraph 15 above) and there are limited entries related to any other employee.  The diaries are in pristine condition bearing none of the hallmarks of everyday use.

 

20.     In or about February 2011 the claimant was working on a project in Bushmills which ran into some problems relative to materials and manpower on site.  The claimant raised these issues with Mr Kearney and was dissatisfied with his response.  Ultimately these problems contributed to a delay in completing the project for which the claimant was held responsible.  However despite this and the numerous diary entries critical of the claimant over a period of years, the tribunal finds it significant that no attempt was made by Mr Kearney to properly address any issues of concern or to reprimand the claimant.

 

21.     Mr Kearney gave evidence to the effect that he could get no one to work with the claimant.  However evidence as to why this was the case was not presented.  There is no evidence that this was ever raised this with the claimant.  It is Mr Kearney’s case that in relation to issues of concern generally he spoke to the claimant and talked things through.  However the tribunal finds this to be inconsistent with the detail of the diary entries and the extent of his recorded concerns and particularly so in circumstances where the business was under some pressure financially.

 

22.     About this time (early 2011), the respondent was experiencing a downturn in work due to the recession.  The recession was impacting on the construction industry as a whole.  As a result of this downturn in trade the claimant was informed by Mr Kearney on 29 June 2011 that he would have "to go back on the tools”.  The effect of this was that the claimant reverted to the role of joiner whilst also carrying out some foreman duties.  This had happened previously for limited periods of time between jobs but involved no reduction in pay, working hours or use of the company van.  Initially the reversion to "tools" on this occasion involved no reduction in pay and the claimant was content to accept the role change on that basis.  He did not regard the change as a breach of contract because he understood from Mr Kearney that if a position as a site foreman became available he would be given that position consistent with past practice.

 

23.     Throughout early 2011 the claimant was aware of a noticeable change in the attitude of Mr Kearney towards him.  A number of issues of conflict arose regarding, for example, materials on site which resulted in delays in getting jobs completed on time.  This adversely impacted on the claimant and led him to believe that Mr Kearney was seeking to "push him out", ie, behave so as to force his resignation.  It is the claimant’s case that he experienced this happening in the past with other (now ex) employees.

 

24.     At this time the claimant believed that the relationship between himself and Mr Kearney had broken down and in the context of a decline in business, he enquired as to the possibility of redundancy.  Mr Kearney responded to the effect that he would not pay redundancy money.

 

25.     In June or July 2011 a job began in Carrickfergus and the claimant expected to be appointed site foreman (see paragraph 22).  He was not so appointed and it is his case that the position was given to a younger man, Mr Patrick McPeake.  It is Mr Kearney’s case that no site foreman was appointed to Carrickfergus due to the financial downturn and that he carried out the duties of foreman himself.

 

26.     It is not denied that Mr Patrick McPeake worked on the Carrickfergus site and it is Mr Kearney’s evidence that Mr McPeake was given a mobile phone and a van to look after the job.  The tribunal have found the use of a van and a phone to be consistent with the role of foreman (see paragraph 6).

 

27.     Mr Patrick McPeake is one of several members of the extended McPeake family employed by the respondent.  The tribunal heard evidence from another family member, Mr Seamus McPeake and from Mr Lyndon Dwart who is also employed by the respondent.  Neither the evidence of Seamus McPeake, nor that of Lyndon Dwart, added any significant value to the case.  However had Mr Patrick McPeake (whose role as site foreman was known to be in contention) been called, then surely he could have clarified the extent of his role on the Carrickfergus job.  The tribunal regards it as significant that he was not called in circumstances where other employees whose roles were not central to the issues in question were.

 

28.     Taking all these factors into account the tribunal finds on the balance of probabilities that Mr McPeake was appointed site foreman on the Carrickfergus site in preference to the claimant.

 

29.     In July 2011, prior to the holiday fortnight, Mr Kearney rang the claimant and informed him that his van was needed for his (Mr Kearney's) son who had crashed his own car.  Mr Kearney's evidence is that he was not happy with the claimant's attitude during this call.  The claimant understood following the telephone conversation that the van would be returned after the holidays.  The van was not returned after the holidays and the claimant was required to make his own way to work or to travel with colleagues from that point onwards.

 

30.     In August 2011 the claimant was required to work in Ballymoney and he was driven to that job by another employee.  He was then required to go to a job in Lisburn by means of a lift from Portglenone.

 

31.     The claimant received his wages on Friday, 16 September 2011.  He had worked 3 days that week and was paid a daily rate of £65.00 instead of the £90.00 daily rate he was contractually entitled to.  The claimant believed this to be a pay cut which was not discussed or agreed and he regarded it as a fundamental breach of his contract of employment.

 

32.     When the claimant became aware of the reduction in pay he immediately sought to contact Mr Kearney by phone but his calls were not answered.  He resorted to use of a colleagues phone which Mr Kearney answered immediately.  Upon being asked about the reduction in pay Mr Kearney denied that there was a reduction.  He explained that he had written the cheque late at night and had not been aware of the figure he had put on the cheque.  The claimant called to see Mr Kearney that evening and was given a cheque to cover the shortfall in pay.  He was however informed that his money was going to be cut from that date onwards.

 

33.     Mr Kearney denies reducing the claimant's pay.  It is his case that an error was made and that the amount paid reflected the correct amount for a 3 day week based on a contractual daily entitlement of £90.00.  The tribunal do not accept this to be the case.  If correct Mr McMahon would have received £270.00 rather than the £195.00 that he actually received.

 

34.     The tribunal is satisfied that following the approach to him by the claimant, Mr Kearney made up the shortfall in wages but advised the claimant that his wages were being cut.  The claimant did not agree to any wage reduction.

 

35.     Following this exchange the claimant suffered a decline in his health and was absent from work suffering from a stress related illness for a period.  Whilst on sick leave his work mobile phone was disconnected.  Mr Kearney denies disconnecting the phone.  It is his case that sim cards were ordered for all employees’ phones and this accounted for the phone being disconnected.  In any event no contact was made with the claimant to inform him of the change in sim card or to explain that his phone would be disconnected or to make arrangement to have it reconnected.

 

36.     Following the pay reduction, the claimant instructed his Solicitor who wrote to Mr Kearney on 26 September asking him to confirm the following:-

 

                    “1.      Do you have a position for our client as site foreman?

 

                    2.       Are you prepared to reinstate him with a works van or equivalent compensation?

 

                    3.       Are you prepared to confirm our client's employment the same wage and on the same terms and conditions?  And whether the works van would be reinstated or equivalent compensation and that his employment would continue at the contractual rate of pay.”

 

37.     Mr Kearney replied by letter dated 1 October 2011 but he did not address the issues raised.  The claimant's solicitor in turn responded by letter dated 19 October in the following terms:-

 

                    "Our client considers your actions to be a breach of his contract of employment, which you have failed to take any action to remedy.  As a consequence of these fundamental breaches, Mr. McMahon has no other option but to repudiate his contract of employment".

 

 

ISSUE (I)

 

38.     The first issue to be determined by the tribunal is whether the claim form should be amended at paragraph 7.2 by the substitution of 16 September 2011 for 1 July 2011, the effect of which will be to bring the claim as it relates to age discrimination in time?

 

39.     In the context of the complaint in so far as it relates to discrimination, paragraph 7.2 of the claim form asked for "a date on which the matter about which you are complaining about happened".  In response the claimant answered 1 July 2011.  It is the claimant's case that this date was inserted in error.

 

40.     At paragraph 7.4 sub paragraph 15 the claimant gives details of his claim in the following terms "I also believe I may have been discriminated against on the grounds of my age, as other employees, who are younger than I am, did not have their wages reduced and, indeed, a younger employee was taken on and given the job of site foreman.  I am satisfied that I was the more experienced person and therefore I am of the view that I have been less favorably treated on the grounds of my age".

 

41.     It is clear from the wording as recited above that the claimant complains of direct age discrimination on two grounds, one of which being that his pay was reduced whereas the pay of younger men was not.  The claimant's pay was reduced with effect from 16 September 2011 which is the date that the claimant seeks to be inserted at paragraph 7.2.

 

42.     In considering whether to amend the claim, the tribunal considered the case of Selkent Bus Company Ltd  v  Moore [1996] IRLR 661.

 

43.     The tribunal is satisfied that the amendment sought is of a minor nature notwithstanding the fact that the effect of allowing the amendment will bring a claim otherwise out of time within time.  The amendment relates to the correction of an error.  It does not seek to alter the nature or the substance of the claim.  It does not add a new head of claim, nor does it add detail to the existing claim which could take the respondent by surprise.

 

44.     The tribunal considered the issue of hardship to the parties should the amendment be allowed.

 

45.     The tribunal is satisfied that the claimant would be prejudiced if the amendment is refused in that his claim which is otherwise well described at paragraph 7.4 of the claim form would on the face of it be out of time and unless time is extended on just and equitable grounds he would be prevented from pursuing this head of claim.

 

46.     The tribunal is not satisfied that the respondent would be prejudiced by allowing the amendment.  Mr Kearney has been aware since receipt of the claim form that the complaint of age discrimination relates in part to  the reduction in pay.  He is aware that the pay reduction complained of occurred on 16 September 2011.  Consequently he has been aware of the case against him since receipt of the claim form and is not prejudiced in his defence of that complaint.

 

47.     The tribunal allows the claim to be amended and as a consequence does not need to consider whether to extend the time within which to lodge proceedings.  The issue at paragraph 2(ii) falls.

 

 

ISSUES (III), (IV) AND (V)

 

48.     (iii)      Was the claimant less favourably treated and/or discriminated against and/or dismissed on the grounds of his age contrary to the Employment Equality (Age) Regulations (Northern Ireland) 2006 ["the 2006 Regulations"]?

 

          (iv)      Was the claimant subjected to harassment on the grounds of his age contrary to the 2006 regulations?

 

 

THE LAW

 

Discrimination on grounds of age

 

49.     The claimant claims that he was directly discriminated on the grounds of his age contrary to regulation 3 of the Employment Equality (Age) Regulations (Northern Ireland) 2006.  In so far as is relevant to these proceedings regulation 3 provides:-

 

                    “(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 ………

 

                    (2)      A comparison of B’s case with that of another person under paragraph (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”

 

50.     Age discrimination involves two elements, both of which must be satisfied:-

 

          (1)      The claimant must have been treated less favourably than the alleged perpetrator treated, or would have treated, an appropriate statutory comparator.  (That is “the less favourable treatment” element).

 

          (2)      That treatment must have occurred because of the claimant’s age.  (That is the “reason why” element).

 

51.     In considering this provision it is necessary also to consider the provisions of regulation 42 which makes provision for the application of the burden of proof.

 

                    “Burden of proof: industrial tribunals

 

                    42.—  (1)      This regulation applies to any complaint presented under regulation 41 to an industrial tribunal.

 

                              (2)      Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this regulation, conclude in the absence of an adequate explanation that the respondent—

 

                                        (a)      has committed against the complainant an act to which regulation 41 (jurisdiction of industrial tribunals) applies; ….

 

                                                  the tribunal shall uphold the complaint unless the respondent proves that he did not commit the act complained of……….”

 

52.     In applying the burden of proof the tribunal had regard to the applicable case law and in particular has relied on the guidance by Lord Justice Peter Gibson in Igen Ltd and others  v  Wong (2005) IRLR 258 which clearly sets out the process by which the tribunal approaches the application of the burden of proof.  This involves a two stage process.  For the purposes of this case the claimant must prove facts from which the tribunal could conclude there had been unlawful discrimination and if, or when, this is done, the burden of proof shifts from the claimant to the respondent.  The respondent must then show that he did not commit the unlawful discrimination and that the treatment of the claimant by him was not related to his age.

 

53.     The tribunal considered the Court of Appeal’s guidance for the operation of this process and in particular the fact that it is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of discrimination.  Few employers would be prepared to admit such discrimination, even to themselves.

 

54.     The tribunal carefully considered the facts of this case as proven and is conscious of limited references to age throughout the evidence.  The tribunal remained mindful that the claimant's case is that his earnings were reduced whereas other employees who were younger did not have their wages reduced.  He also alleges that a younger employee with less experience was taken on and given the job of site foreman.

 

55.     The tribunal is satisfied that the claimant did not get the foreman job in Carrickfergus as he expected.  That job went to a younger man, Mr Patrick McPeake.  The tribunal were presented with no evidence upon which to effectively compare the experience of the claimant with that of Mr McPeake and so are unable to make any finding as to who was the more experienced.

 

56.     The tribunal is satisfied that the claimant’s earnings were reduced and it is his evidence he was alone is suffering this reduction.  In alleging that this amounted to age discrimination the tribunal finds it somewhat surprising that no evidence was adduced as to the age profile of the workforce.  The tribunal recognises that this information was not readily available to the claimant.  However it could have been sought by way of interlocutory order and was not.

 

57.     Beyond the difference in age between Mr McPeake and the claimant and the fact that the claimant was alone in suffering a reduction in pay, the tribunal has no evidence upon which to base a conclusion (in the absence of a reasonable explanation) that the respondent discriminated against the claimant on the grounds of age.

 

58.     The tribunal heard evidence from the claimant to the effect that "he had seen it happen before", ie, that workers were pushed out of work when Mr Kearney wanted to get rid of them.  However no attempt was made to link such treatment to age.  The claimant seeks to compare his treatment to these others but does not in that context link his or their treatment to considerations of age.

 

59.     In all of these circumstances the tribunal is not satisfied that there are proven facts which could in the absence of a reasonable explanation lead to a finding of discrimination.  Consequently the burden of proof does not shift to the respondent and the claim in so far as it relates to age discrimination is dismissed.  The issue at paragraph 2(v) falls.

 

 

ISSUE (VI)

 

60.     Did the claimant suffer a fundamental breach of his employment contract as alleged in the claim form such as to justify his resignation in accordance with Article 127 of the Employment Rights (Northern Ireland) Order 1996 [the 1996 Order]?

 

 

THE LAW

 

61.     Article 127 of the Employment Rights (Northern Ireland) Order 1996 provides the circumstances in which an employee is regarded to have been dismissed including at Article 127(1) (c):-

 

                    “The employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”

 

62.     Dismissal in these circumstances has become known as constructive dismissal and it is established law that the employer’s conduct for the purposes of Article 127(1) (c) may comprise a single incident or a series of incidents going to the root of the contract which provided the final straw for the employee resulting in his resignation.

 

63.     The tribunal finds that the reduction in wages and the conversation during which Mr Kearney told the claimant that "that is how it will be from now on", meaning that wages would be reduced going forward, was the event which prompted the claimant to resign.  The tribunal is satisfied that a unilateral change to contract terms such as to reduce pay is a fundamental breach of contract.

 

64.     The tribunal considered the leading case on constructive dismissal  –  Western Excavating (EEC) Ltd  v  Sharp [1978] IRLR 27 and the commentary in Harvey on Industrial Relations and Employment Law.  It is well established that in order for an employee to be able successfully to claim that he has been constructively dismissed, four conditions must be met:-

 

          (i)       There must be a breach of contract by the employer.

 

          (ii)      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.

 

          (iii)      The employee must leave in response to the breach and not for some other unconnected reason.

 

          (iv)      The employee must not 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.

 

65.     The tribunal is satisfied that by reducing the claimant's wages without consultation or consent the respondent was in breach of a fundamental term of the claimant’s employment contract.  The tribunal is satisfied that this in itself was sufficient to justify the claimant's resignation.  When taken against the background of a deteriorating relationship, loss of the company van and unexplained loss of the expected foreman position and the impact of those events on the claimant’s health, the tribunal is satisfied that the trust and confidence between the parties had irretrievably broken down entitling the claimant to resign.

 

66.     The claimant responded in a timely manner to the breach by contacting his solicitor to seek clarification regarding his job and his wages.  Such clarification was not forthcoming and the claimant resigned on receiving an equivocal reply from the respondent.

 

67.     The tribunal is conscious that the respondent was at all material times working under some pressure in running his business in times of financial hardship.  The tribunal is indeed satisfied of the likelihood of some fault on both sides contributing to the deteriorating relationship.  However the respondent did not seek to address any alleged shortcomings on the part of the claimant.  Instead he demoted the claimant in circumstances where he failed to reinstate him to the foreman position in Carrickfergus, he withdrew his company van and reduced his wages.  Whereas the claimant accepted the demotion and arguably accepted the loss of the van in that he continued to work thereafter, the tribunal is satisfied that he regarded the wage reduction as a fundamental breach of contract and resigned in response.

 

68.     The claimant found alternative work shortly after his resignation.  However the tribunal has no evidence upon which to base a finding that he resigned so as to avail of that work rather than genuinely in response to a breach by the respondent of the employment contract.

 

69.     In all of the above circumstances the tribunal finds that the claimant was constructively dismissed and awards compensation as follows.

 

 

ISSUE (VII)

 

70.     If the claimant was dismissed in accordance with Article 127 of the 1996 Order what compensation (if any) should be awarded to him?

 

71.     The claimant is entitled to a basic award in accordance with Article 153 of the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order ").

 

72.     Article 153 provides:-

 

                    “Basic award

 

                    153.—          (1)      Subject to the provisions of this Article, Articles 154 to 156 and Articles 160 and 161, the amount of the basic award shall be calculated by—

                                        (a)      determining the period, ending with the effective date of termination, during which the employee has been continuously employed,

 

                                        (b)      reckoning backwards from the end of that period the number of years of employment falling within that period, and

 

                                        (c)      allowing the appropriate amount for each of those years of employment.

 

                              (2)      In paragraph (1)(c) “the appropriate amount” means—

 

                                        (a)      one and a half weeks' pay for a year of employment in which the employee was not below the age of forty-one,

 

                                        (b)      one week's pay for a year of employment (not within sub-paragraph (a)) in which he was not below the age of twenty-two, and

 

                                        (c)      half a week's pay for a year of employment not within sub-paragraph (a) or (b).”

 

73.     For the purposes of Article 153, the claimant was earning in excess of £400.00 gross pay weekly, he had in excess of 20 years employment and was age 45 at the time of dismissal.  The statutory maximum earnings for calculation purposes is £400.00.

 

74.     In accordance with Article 153 the claimant is entitled to one and a half weeks salary (gross and subject to the statutory maximum) for 4 years.  This amounts to £2,400.00.  He is entitled to 16 years at one week’s salary which amounts to £6,400.00.  This amounts to a total basic award of £8,800.00.

 

75.     The claimant is entitled to a compensatory award in accordance with the provision of Article 157 of the 1996 Order which provides for the purposes of this case as follows:-

 

          157.—          (1)      Subject to the provisions of this Article and Articles 158, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.  

 

                    (2)      The loss referred to in paragraph (1) shall be taken to include—

 

                              (a)      any expenses reasonably incurred by the complainant in consequence of the dismissal, and

 

                              (b)      subject to paragraph (3), loss of any benefit which he might reasonably be expected to have had but for the dismissal.

 

76.     The claimant was unemployed for a period of two full weeks.  He is entitled to two weeks net pay in respect of loss of earnings.  His net pay was £415.00 and so he is entitled to £830.00 under this head of claim.

 

77.     The claimant currently earns £35.00 less per week than previously and is awarded £35.00  x  35 (weeks from date of termination to date of the hearing)  =  £1,225.00.

 

78.     The claimant is awarded £300.00 in respect of loss of his statutory rights.

 

79.     The total compensatory award amounts to  =  £2,355.00.

 

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

 

 

 

 

 

 

 

Chairman:

 

 

Date and place of hearing:       25 and 26 June 2012, Belfast.

 

Date decision recorded in register and issued to parties: