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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Smith v Queen's University Belfast Queen's University Belfast Queen's University Belfast [2012] NIIT 02740_11IT (28 September 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/2740_11IT.html
Cite as: [2012] NIIT 02740_11IT, [2012] NIIT 2740_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REFS: 2740/11
2741/11
2743/11
CLAIMANTS: 1. John Robert Smith
2. Alan Gordon
3. James Taylor
RESPONDENT: Queen’s University Belfast
DECISION
The unanimous decision of the tribunal is that the dismissal of the claimants was generally procedurally unfair but that the claimants contributed to their dismissals. This decision does not take account of any pension loss of the claimants as despite a reminder from the tribunal during the hearing that such a claim required quantifying, no evidence of loss was submitted. A further hearing will be required if the parties are not able to resolve this issue between themselves. The respondent is ordered to pay to:-
The first claimant the sum of: £6,383.09
The second claimant the sum of: £5,025.28
The third claimant the sum of: £5,626.70
Constitution of Tribunal:
Chairman: Ms W A Crooke
Members: Mr P Sidebottom
Mr J Patterson
Appearances:
Mr Smith appeared during the hearing in person and represented himself.
Mr Gordon and Mr Taylor were represented by Mr T Warnock, Barrister-at-Law, instructed both by Donnelly & Kinder and Worthingtons Solicitors.
The respondent was represented by Mr N Richards, Barrister-at-Law, instructed by Pinsent Masons LLP [formerly McGrigors LLP].
SOURCES OF EVIDENCE
1. Mr Smith gave evidence on his own behalf. Mr Gordon and Mr Taylor also gave evidence on their own behalf.
2. Mr Keith Halliday, Mr Dara Curley, Mr Peter Erwin, Mr Gary Jebb, Ms Margaret Leonard, Ms Frances Dalcz and Mr Raymond McEvoy gave evidence on behalf of the respondent.
THE CLAIM AND THE DEFENCE
3. All three claimants considered that they had been unfairly dismissed on account of redundancy. In other words their dismissals for misconduct had been dressed up to cover up that the respondent was operating some form of covert “redundancy-like” reduction in the workforce. The respondent disputed this arguing that the claimants were all fairly dismissed for misconduct.
THE RELEVANT LAW
4. The relevant law in relation to unfair dismissal is found in Article 130 of the Employment Rights (Northern Ireland) Order 1996 which states:-
“(1) In determining for the purposes of this part whether the dismissal of an employee is fair or unfair it is for the employer to show:-
(a) the reason (or, if more than one), the principal reason (for the dismissal); and
(b) that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2) A reason falls within this paragraph if it:-
(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do;
(b) relates to the conduct of the employee (…).
(4) Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer):-
(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking (the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee); and
(b) shall be determined in accordance with equity and the substantial merits of the case.”
5. The relevant law in relation to procedural fairness is found at Article 130A of the Employment Rights (Northern Ireland) Order 1996 which states:-
“(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if:-
(a) one of the procedures set out in Part One of Schedule One to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Offence Procedures) applies in relation to the dismissal;
(b) the procedure has not been completed; and
(c) the non completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.
(2) Subject to paragraph (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130A(4) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.”
Additionally the tribunal was referred to case law in the submissions of the parties and this included British Home Stores v Burchell [1978] IRLR 379, Iceland Frozen Foods v Jones [1983] ICR 17, Polkey v AE Dayton Services Ltd [1988] ICR 142 HL.
6. The Facts
(1) All three claimants worked as cleaners in Queen’s University Belfast. Mr Smith (hereinafter referred to as the first claimant) had 11 completed years of service. Mr Gordon (hereinafter referred to as the second claimant) had 10 completed years of service. Mr Taylor (hereinafter referred to as the third claimant) had seven completed years of service. All three claimants were deployed at various parts of the David Keir Building and all three worked from 7.00 am in the morning to 14.00 pm in the afternoon. They were entitled to one tea break at 9.00 am and during this tea break they had the right to use the dedicated staff computer.
(2) An e-mail was sent to Tara McCollum, who was the school manager, on 28 June 2011, complaining that four men in blue jumpers were congregating in a computer room which will be hereinafter referred to as LG310 and were creating noise and preventing the room being used. This room was a facility for students and it contained a significant number of computers. At this point in the University calendar it was mainly being used by post-graduate students who were finishing off their research papers and needed the use of the computers for that purpose.
(3) Ms Anne-Marie Mulholland was supervisor of the four cleaners and on 29 June 2011 together with Mr Keith Halliday, their line manager, she went to LG310. On arrival they found the door was locked and when they eventually got in found that four members of staff were huddled round one of the computers.
(4) It was the designated cleaning area of the first claimant and the other three people had no business to be in that room.
(5) Mr Halliday spoke to them strongly and ordered them back to work. The claimants and the fourth member of staff (who did not make a claim to the tribunal) interpreted this as a verbal warning. Mr Halliday in his evidence to the tribunal denied that such a warning was given especially as he considered it would be necessary to investigate what the four claimants were doing in this room. Consequently, he reported on the matter to Mr Peter Erwin, his line manager, who ordered Mr Dara Curley, the head of security, to carry out an investigation.
(6) Mr Curley met with Ms Frances Dalcz, who was the designated Human Resources Operative for the sector of which the Estates Department formed part. As a result, five charges were formulated and these were listed in a letter dated 4 July 2011 sent to all four members of staff.
(7) The allegations were as follows:-
(1) inappropriate use of information technology;
(2) absence from duty;
(3) inappropriate behaviour towards staff, students or public;
(4) denying students and staff access to computer facilities; and
(5) wasting university resources.
The disciplinary investigation was to be carried out on 7 July 2011 and the allegations were being treated by the respondent as “potential gross misconduct”.
(8) Only Mr Wesley Coulter (the member of staff who did not bring a claim to the Industrial Tribunal) actually attended the investigatory meeting. The three claimants refused to do so indicating that they wished to be accompanied at the meeting by an elected union representative. Mr Curley allowed the three claimants time to source their preferred form of union representation. In the letter of 4 July 2011, Mr Curley reserved the right to proceed with the investigation in the event of the claimants not attending at the specified time unless he was advised before the meeting of exceptional circumstances. The tribunal heard evidence from the claimants of the efforts they made to obtain representation by an elected trade union member. They did not recognise the various persons suggested to them as they considered that they did not fulfil their criterion of being “elected”. Mr Curley allowed them various extensions of time within which to source their preferred form of representation but eventually concluded his investigation in the absence of the three claimants. He delivered a report to Mr Peter Erwin recommending that the matter proceed to a disciplinary hearing.
(9) It was apparent from Mr Curley’s report that this was not an isolated incident and the four members of staff had been meeting in this room for recreational purposes for some time, between six weeks and two months, (depending upon the different versions given by the claimants and Mr Coulter).
(10) By a letter dated 22 July 2011 from Ms Frances Dalcz to each of the claimants they were invited to a disciplinary hearing on 10 August 2011 to consider the five allegations already notified to them by the letter of 4 July 2011 and in addition a new allegation, which was added by Ms Dalcz, of “failure to cooperate with disciplinary investigation”.
(11) The tribunal noted that Mr Curley did not inform the claimants that their failure to attend at the investigatory meeting would be treated by the respondent as a disciplinary offence. The claimants were also warned in this letter that the allegations were being treated as “potential gross misconduct, carrying a maximum penalty of dismissal”. The claimants were advised of their rights to be accompanied.
(12) By an e-mail dated 3 August 2011, Mr Martin Stroud of the union Unite informed Ms Frances Dalcz that he would be representing the three members - Mr Taylor, Mr Gordon and Mr Smith - at the disciplinary hearings.
(13) The disciplinary hearing made the following findings in relation to the allegations:-
(1) Inappropriate use of computers
The disciplinary panel determined that this allegation was proven as they drew no distinction between those who had actually accessed the computer (Mr Coulter and Mr Gordon) and those who “viewed” the screen and chatted about it (Mr Smith and Mr Taylor).
(2) Absence from duty
All four cleaners acknowledged that they had left their duties to chat, engage in banter, discuss football and use or view student computers in LG310. The only dispute was the frequency of meeting and the length of the period through which the meetings had been taking place. The panel accepted that this allegation was proved. The panel considered that the regularity and timescales for the absence from duty were grossly unacceptable given the generous paid breaks and the provision of a computer for the claimants in the cleaners’ tea room.
(3) Inappropriate behaviour towards staff, students or the public
All four cleaners disputed this although they accepted that there was a level of banter and joking with each other. The panel considered that some aspects of this allegation were proved namely that the cleaners’ chat was loud enough to distract legitimate users of LG310.
(4) Denying students and staff access to computer facilities
The four cleaners contended that there were six to seven computers in the room and there were normally only two students in the room. However, on 29 June 2011, Mr Halliday found all four cleaners locked in LG310 with the lights off, during working time, looking at or using two computers. The cleaners did not deny that they had been locked in the room on 29 June 2011 but gave no acknowledgement or explanation about why this was the case. The panel considered this allegation was proved in respect of denying access on one occasion.
(5) Wasting university resources
The panel deemed this allegation was not proved.
(6) Failure to cooperate with disciplinary investigations
The three claimants denied this allegation. There were two versions of the telephone call as a result of which Mr Curley decided to continue with the investigation without the three claimants attending. Mr Curley spoke to Mr Gordon on the telephone and was told that he refused to use any local representative, had not been able to contact the full-time official and in any event would not attend a disciplinary investigation or a hearing. The telephone was then passed to the other two claimants who were asked if their position was the same as that of Mr Gordon. They confirmed that it was. However, all three denied that they refused to attend the investigatory hearing. They said that they wanted to have the advice of a full-time official. The panel considered that the decision of the three claimants hampered the investigation and gave them the opportunity to view Mr Coulter’s statement and the investigation case before making their response, thus allowing them to “tailor” their evidence. The panel deemed that this allegation had been proven. The panel considered mitigation in respect of service records. It was noted that none of the three claimants had any current disciplinary warnings on file nor were there any spent warnings on file.
(7) The panel concluded that it was not possible to order a penalty short of dismissal. The considerations in reaching this decision were as follows:-
(1) But for the student complaint the absence from duty might have continued indefinitely.
(2) As cleaners work alone they have to be relied upon to be where they are supposed to be.
(3) It is not possible to remove cleaners by way of demotion.
(4) None of the claimants’ statements or demeanours gave any reassurance that similar conduct would not recur.
(8) By letter stated 16 August 2011, the claimants were informed that they had been summarily dismissed as the disciplinary panel came to the conclusion that all allegations were proven except the allegation “wasting university resources”. The claimants were advised of their right of appeal.
(9) Mr Taylor and Mr Gordon appealed their dismissals by letters dated 18 and 19 August 2011 respectively. By an e-mail, dated 23 August 2011, to Ms Frances Dalcz, Mr Martin Stroud confirmed that Unite wished to appeal the dismissals of all three claimants.
(10) By a letter dated 2 September 2011, Mr Ray McAvoy, Personnel Officer, informed the claimants that an appeal hearing was arranged for Tuesday, 20 September 2011. The appeal hearing took place on that date before Mr Gary Jebb, Director of Estates; Mrs Caroline Young, Director of Hospitality Services; and Mr Ray McAvoy, Personnel Officer. Interestingly, Mr Erwin, Mrs Elizabeth McLaughlin and Ms Frances Dalcz who constituted the disciplinary panel were in attendance at this hearing.
(11) In her evidence to the tribunal, Ms Frances Dalcz indicated that the appeal panel was incorrectly constituted in that under the applicable procedure a representative from a trade union not representing members in this case was to be included in the constitution of the panel.
(12) The appeal panel did not uphold the appeals of the three claimants.
CONCLUSIONS
Substantive Issues
7. In reaching a decision as to whether or not persons accused of misconduct have been fairly dismissed an Industrial Tribunal will look at the guidance set down in the case of British Home Stores Ltd v Burchell [1978]. In the circumstances of the case before it, the tribunal accepts that the respondent has proved that the reason the claimants were dismissed was for misconduct. The tribunal did not accept the allegation made in evidence by the first claimant and reiterated in his final submission to the tribunal by Mr Smith that the claimants had effectively been made redundant. The reason why the tribunal has found this is because of the cogent evidence put forward on behalf of the respondent which was to the effect that despite there being financial stringency, the university has still replaced these three claimants. In any circumstances, the tribunal does not consider that the claimants can argue that they were effectively made redundant and there was some form of conspiracy to dress this up as a misconduct dismissal to avoid having to pay redundancy payments.
8. The case of British Home Stores v Burchell advises that a tribunal in considering an employer’s conduct of a dismissal must look at three issues and these are as follows:-
(a) The employer must have a belief in the guilt of the employee.
(b) That belief must be reasonable.
(c) The belief must have been reached after as much investigation as was reasonable in all the circumstances of the case.
Given that Mr Halliday and Ms Mulholland found the four employees in a locked room involving themselves with a computer, when they had no business to be doing so, the tribunal considers that the respondent genuinely believed that there was something untoward going on and that it was reasonable for it to think so. The question of how much investigation as was reasonable in all the circumstances of the case has to be looked at in connection with the individual charges that were raised against the three claimants. The tribunal was uneasy about the fact that the charges had been formulated by Ms Frances Dalcz before the investigation actually happened. However, this will be referred to in the procedural fairness section of this decision. The tribunal noted that in connection with the first charge which was inappropriate use of information technology, in reaching a decision on this charge the respondent did not actually look at what its codes of practice on use of computers actually said. However, while much was said on behalf of the claimants concerning their alleged lack of knowledge about whether or not they could use the computers in LG310, it would have seemed a matter of common sense that this was a facility for students and as they had a dedicated computer in their tea room, it was not appropriate to use the computers in LG310 for recreational purposes. The tribunal has noted that Mr Smith and Mr Taylor considered that this charge should not have been levelled against them because they did not know how to use computers. However, as the evidence was that they viewed what was on the computer, the tribunal does not consider that it is appropriate to draw a distinction between a person who has hands-on operation of the computer and a person who views what the person who operates the computer chooses to put on the screen.
9. The central charge was one of absence from duty. All three claimants admitted that they were absent from duty. Mr Smith pointed out that he was actually in his place of work, although he had not continued to work once the other claimants and Mr Coulter arrived into LG310. The tribunal has noted that there was no suggestion that the work of the claimants was left undone. Simply, they had got through their work ahead of schedule and rather than reporting to their supervisor to see what else could be done, they chose to hide themselves away for recreational purposes in Room LG310. In connection with this charge and also in connection with the inappropriate behaviour charge which was admitted to a certain extent by the claimants, the tribunal does not consider that there was a failure to investigate these charges as all three claimants admitted that they had been absent from duty and had behaved inappropriately by engaging in boisterous behaviour in a room that was set aside for the use of students. Where there is an admission of misconduct, it is settled law that the level of investigation required is less than would be the case if there was a dispute.
10. It was plain from the evidence of Mr Halliday that on 29 June 2011 he was confronted by a locked door (from the inside) and a room in which there were no lights. There was some dispute in the evidence as to who was responsible for locking the door, but there was no dispute that the door itself was actually locked. Thus, the tribunal does not consider that there was inadequacy of investigation on this point.
11. As the charge of wasting university resources was found not proven at the disciplinary hearing, the tribunal does not propose to comment upon it.
12. The tribunal was concerned to note once again that Ms Frances Dalcz had intervened in the process to add a charge of failure to cooperate with an investigation which had not been previously notified to the claimants and indeed had not been notified as being a disciplinary offence. The tribunal does not consider that the continuation of the investigation without speaking to the three claimants was a matter of procedural unfairness in itself. The fact that the claimants were concerned to choose a certain type of representative was neither the fault of the respondent nor its responsibility. However, the tribunal was concerned that this alleged failure to cooperate was never notified as a potential disciplinary offence in advance to the three claimants to let them have a chance to review their position.
13. Taken “in the round” the tribunal considers that as much investigation as was reasonable in all the circumstances of the case was conducted by the respondent and that the conduct of the substantive aspect of the dismissal fell within the Burchell guidelines.
14. We now turn our attention to considering the issue of penalty. The question we have to consider is whether or not the penalty of dismissal fell within a band of reasonable responses open to an employer faced with the situation which faced the respondent in this case. The tribunal noted that there was some consideration at the disciplinary level of whether or not any other penalty could have been imposed. The question of demotion was considered and discarded as a penalty as there was no way that a cleaner could be demoted. The issue of giving a warning was also considered and discarded. This was because the panel considered that the respondent needed to be able to trust the claimants not to continue to carry out this sort of offence and that it could not do so. The failure to cooperate with the investigation and the claimants’ demeanours at the disciplinary hearing suggested that they would continue to be untrustworthy. The tribunal has noted that the emphasis on the failure to cooperate with the investigation was something specifically relied upon by the disciplinary hearing and will be considering this in the procedural unfairness section of this decision. The tribunal is unable to find in this case that it was unreasonable of the respondent to impose the penalty of dismissal on the three claimants. The tribunal considered that, given the nature of the misconduct and its extent, this was not an unreasonable sanction. If the extent of the misconduct had been purely what was discovered on 29 June 2011 and the regularity and extent of the absence from duty had not been featured in this matter, the tribunal’s decision might well have been different. It would have considered in line with the cases of Bowater v Northwest London Hospitals NHS Trust [2011] EWCA Civ 63 and Fuller v London Borough of Brent [2011] EWCA Civ 267 that there was reason to interfere with the imposition of the penalty of dismissal. Additionally for this reason the remedy of reinstatement/re-engagement is not appropriate. In any case the claimants’ places have been filled.
PROCEDURAL UNFAIRNESS
15. The tribunal did not consider that this was a case in which there was any statutory procedural unfairness. However, the tribunal considered that there had been a number of instances of general procedural unfairness which culminated in the improper constitution of the appeal panel. The tribunal was concerned at the involvement of Ms Frances Dalcz throughout the procedure. It seemed to the tribunal that she was the main “mover” in the process. She formulated the charges before the investigation took place and the tribunal had noted that these were specific charges rather than a generalised allegation of misconduct on 29 June 2011 which was to be investigated. This has been included as background, and was not by itself considered to be procedural unfairness.
16. The tribunal was concerned that the panel did not look at what the respondent’s Code of Practice actually said in relation to use of computers when reaching its decision that the claimants were guilty of this type of misconduct. When the tribunal queried this failure to look at the agreed policies and procedures allegedly contravened, it was told that the actual content was not relevant. The tribunal noted that this point was not picked up on appeal and no investigation of what the policy actually said was carried out by the respondent.
17. The tribunal was concerned that Ms Frances Dalcz had added an additional charge of failure to cooperate with an investigation without this being previously notified to the claimants as a potentially disciplinable offence. The tribunal had no difficulty whatsoever with the fact that the investigation was concluded without speaking to the claimants. This was a lack that was caused wholly by the claimants and the tribunal does not consider that it would be appropriate for there to be any objection taken on this ground. Given that the failure to comply with the investigation was something specifically relied upon in the disciplinary hearing in relation to the important question of whether or not a lesser penalty could be applied, the tribunal considered that it was wholly inappropriate for this charge to be added without the claimants first being notified that their continued failure to attend for an investigation (especially when there were a significant number of persons available to accompany them to the investigation) was concerned. The tribunal does accept that from time-to-time new sorts of behaviour can be categorised as misconduct even though they are not specified in any disciplinary procedure. However, given the emphasis that was placed upon this charge that entered the process at a very late stage, the tribunal does not consider that it was procedurally fair to include it.
18. However, it was the constitution of the appeal panel that gave the tribunal considerable cause for concern. When the constitution of the panel was queried by the tribunal, Ms Dalcz in her recall evidence, admitted that she had improperly constituted the panel by failing to include a representative of a trade union not acting for the claimants in the case. However, in accordance with Article 130A(2) she stated in her evidence that it would not have made any difference at all to the outcome. The tribunal was not able to agree with this view of the situation. As it has been settled law for a number of years that a fair appeal can correct any inadequacies at a lower level, the tribunal considered that it is fair and appropriate to require an appeal panel at the very least to be correctly constituted in accordance with the respondent’s own procedures. There may have been some confusion over which version of the procedure was to be used at that time, but that was a matter that could have been dealt with if proper consideration had been given to the constitution of the panel at that time. The tribunal considers that the omission of the trade union member of the panel meant that these claimants were effectively left without anyone to advance a contrary point-of-view in respect of their conduct. Ms Dalcz’s credibility on this issue was particularly in question. She was the person who arranged the panel. It could be argued that she would say this as a matter of course.
19. In respect of all the incidences of procedural unfairness identified by the tribunal, it considers that had the appropriate procedures which applied to the dismissal of these claimants been adopted, that there was a greater likelihood that they would have kept their jobs and the tribunal measures this as a 60% chance that they would have kept their jobs.
20. However, the tribunal also considered that the claimants bore some responsibility for the misconduct that led to them being dismissed. The claimants had completed their work ahead of schedule and rather than go to their supervisor Ms Mulholland voluntarily and ask her for additional work, they congregated in LG310 for recreational purposes. No one asked them to do this. The tribunal noted that there seemed to be some difficulty experienced by Ms Mulholland in managing these employees, as it seemed that prior to the events of the tribunal, she had endured some ongoing difficulty, over some time, in finding them at their appropriate work positions at any given time in the working day. The tribunal noted that there seemed to be a lack of active management of these employees. The tribunal considered that it should have been well-known to the respondent management that at the end of the academic term (June) with there being fewer undergraduates around the campus, it would have been easier for the employees to complete their work ahead of schedule. As such, it would have been prudent to actively seek out these employees (especially when there have been instances of them being unable to be found) to ask them to carry out additional work such as deep cleaning if any. Accordingly, the tribunal considers that as this did not happen, the claimants were left to their own devices and a practice grew up of them filling in their time by way of recreation and this could have been avoided. As such, the tribunal considers that the claimants were 40% responsible for their misconduct which led to their dismissal.
COMPUTATION OF COMPENSATION
21.
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First Claimant: John Robert Smith |
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Basic Award |
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Completed years of service at date of termination: |
11 Years |
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Age at termination: |
56 Years |
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Multiplier: |
1.5 |
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Gross weekly wage: |
£247.00 |
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Per Schedule of Loss calculation: |
£247.00 x 11 x 1.5 = £4,075.50 |
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Deduction of 40% for contribution pursuant to Article 156(2) of the Employment Rights (Northern Ireland) Order 1996: |
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£4,075.50 |
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£2,445.30 |
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Compensatory Award |
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Immediate Loss |
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Net weekly wage per Schedule of Loss: |
£246.24 |
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Termination Date: |
16 August 2011 |
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Date of Hearing: |
28 May 2012 |
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Last Date of Hearing: |
14 June 2012 |
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A total of 43 Weeks: |
£246.24 x 43 = £10,588.32 |
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Less Polkey deduction of 40% |
£10,588.32 ÷
40% = £4,235.33 |
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Less contribution of 40% for contributory fault: |
£6,352.99 ÷
40% = £2,541.20 |
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Loss of Statutory Rights |
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In view of the length of the claimant’s service this has been assessed at £350.00. This is subject to a Polkey deduction of 40%: |
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£350.00 |
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£210.00 |
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Deduction for contributory fault |
£210.00 ÷ 40% = £84.00 |
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£210.00 |
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£126.00 |
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Future Loss |
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The claimant submitted that he should be awarded future loss at his net weekly rate for a period of 52 weeks. |
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However, the claimant has been in receipt of Employment Support Allowance from 1 September 2011 to date because he is unable to work due to a condition which he admitted was ongoing prior to dismissal and not helped by his dismissal. |
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The latest information available to the tribunal is a letter dated 23 April 2012 from the Social Security Agency which stated that the claimant has appealed the decision that he does not have limited capability for work. From this letter we consider that the claimant remains unfit for work. In these circumstances we do not consider it would be just and equitable to make any award for future loss. |
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Summary of Compensation |
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Basic Award: |
£2,445.30 |
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Compensatory Award: |
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Immediate Loss: |
£3,811.79 |
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Loss of Statutory Rights: |
£126.00 |
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Total: |
£6,383.09 |
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This is a decision involving recoupment. Mr Smith was in receipt of ESA from 1 September 2011 to last date of hearing (14 June 2012). This is a period of 41 weeks and the attention of the parties is directed to the Recoupment Notice appended hereto.
22.
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Second Claimant: Alan Gordon |
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Basic Award |
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Completed years of service at date of termination: |
10 Years |
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Age: |
47 Years |
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5 Years at the multiplier of: |
1 |
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5 Years at the multiplier of: |
1.5 |
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Gross weekly wage (per Schedule of Loss under cover of Donnelly Kinder’s letter of 27 June 2012). The computation in the Schedule of Loss then used the figure of £246.53 without explanation. Assuming this is an error the calculation is as follows: |
£267.00
5 x 1.5 x £267.00
= £2,002.50 |
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£2,002.50 |
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|
£3,337.50 |
|
|
|
|
|
||
|
|
Deduction of 40% contribution for contributory fault: |
£3,337.50 ÷ 40% = £1,335.00 |
||
|
|
|
|
||
|
|
|
|
£3,337.50 |
|
|
|
|
|
£2,002.50 |
|
|
|
|
|
||
|
|
Compensatory Award |
|
||
|
|
|
|
||
|
|
Immediate Loss |
|
||
|
|
|
|
||
|
|
From 16 August 2011 to the last day of hearing 14 June 2012 - a period of 43 weeks. |
|
||
|
|
|
|
||
|
|
Average net weekly wage is: |
£210.53 |
||
|
|
|
|
||
|
|
|
£210.53 x 43 = £9,052.79 |
||
|
|
|
|
||
|
|
Less post dismissal receipt of £2,160.07 from Resource (which the tribunal has assumed to be 13 weeks at £166.15): |
|
9,052.79 |
|
|
|
|
6,892.72 |
|
|
|
|
|
|
||
|
|
Less Polkey deduction of 40% |
£6,892.72 ÷ 40% = £2,757.08 |
||
|
|
|
|
||
|
|
|
|
£6,892.72 |
|
|
|
|
|
£4,135.63 |
|
|
|
|
|
||
|
|
|
|
||
|
|
Less contributory fault deduction of 40%: |
£4,135.64 ÷
40% = £1,654.26 |
||
|
|
|
|
||
|
|
Loss of Statutory Rights |
|
||
|
|
|
|
||
|
|
Given the length of service this has been assessed at: |
£350.00 |
||
|
|
|
|
||
|
|
Less Polkey deduction of 40% |
£350.00 ÷
40% = £140.00 |
||
|
|
|
|
||
|
|
Less 40% deduction for contributory conduct: |
£210.00 ÷ 40% =
£84.00 |
||
|
|
|
|
||
|
|
|
|
||
|
|
Future Loss |
|
||
|
|
|
|
||
|
|
There was a conflict in the evidence of this claimant between his oral evidence given at hearing and what was in his Schedule of Loss. |
|
||
|
|
|
|
||
|
|
The Schedule of Loss stated that Mr Gordon received Job Seeker’s Allowance from 16 August 2011 to 14 June 2012. Yet in his oral evidence he stated that he was in receipt of this allowance from dismissal until October 2011. The basis of his remuneration with Resource was 22 hours per week at £6.08 per hour. On the basis that the claimant earned a total of £2,160.07 from Resource, he appears to have remained with them for 13 weeks so his weekly average pay is £166.15. |
|
||
|
|
|
|
||
|
|
He left this employment because he wanted extra hours. He considered his chance of getting these extra hours would be greater if he were unemployed, and that financially he would be better off on Job Seeker’s Allowance.
|
|
||
|
|
Mr Richards submitted this broke the claim of causation. This increases his claim for future loss for no reason that is in any way attributable to the respondent. The tribunal accepted this submission. |
|
||
|
|
|
|
||
|
|
Accordingly, the tribunal does not consider that it would be just and equitable in these circumstances to place the whole responsibility for future loss on the respondent, as leaving this job was this claimant’s choice, and nothing to do with the respondent. |
|
||
|
|
|
|
||
|
|
|
|
||
|
|
No information was provided on whether the amount earned through Resource was a net or gross figure, but as it was provided in the compensatory award section the tribunal considers it is more likely than not to be a net figure. This is supported by his pay slips. Therefore, the figure of £166.15 is to be deducted from £210.53 and the net weekly differential is £44.38. |
|
||
|
|
|
|
||
|
|
The period for which the element of future loss should be awarded has been left to the tribunal. Taking account of the current difficult employment situation the tribunal considers it appropriate to award this differential for a period of 26 weeks: |
|
||
|
|
|
|
||
|
|
Less Polkey deduction of 40%: |
£1,153.88 ÷
40% = £461.55 |
||
|
|
|
|
||
|
|
Less 40% deduction for contributory fault: |
£692.33 ÷
40% = £276.93 |
||
|
|
|
|
||
|
|
|
|
||
|
|
|
|
||
|
|
|
|
||
|
|
Summary of Compensation |
|
||
|
|
|
|
||
|
|
Basic Award: |
£2,002.50 |
||
|
|
|
|
||
|
|
Compensatory Award: |
|
||
|
|
|
|
||
|
|
Immediate Loss: |
£2,481.38 |
||
|
|
|
|
||
|
|
Loss of Statutory Rights: |
£126.00 |
||
|
|
|
|
||
|
|
Future Loss: |
£415.40 |
||
|
|
|
|
||
|
|
Total: |
£5,025.28 |
||
|
|
|
|
||
|
|
|
|
||
Recoupment
The period from dismissal to the end of the hearing is 43 weeks. Mr Gordon was in receipt of JSA from 16 August 2011 to 6 November 2011 - a period of 12 weeks and from 3 February 2012 to 14 June 2012 - 19 weeks.
The total period during which benefit was received was 31 weeks.
23.
|
|
Third Claimant: James Taylor |
|
||
|
|
|
|
||
|
|
Basic Award |
|
||
|
|
|
|
||
|
|
Completed years of service: |
7 Years |
||
|
|
|
|
||
|
|
Age at termination: |
56 Years |
||
|
|
|
|
||
|
|
Multiplier: |
1.5 |
||
|
|
|
|
||
|
|
Gross weekly wage: |
£243.03 |
||
|
|
|
|
||
|
|
Per Schedule of Loss calculation: |
£243.03 x 1.5 x 7 = £2,551.82 |
||
|
|
|
|
||
|
|
Less 40% deduction for contributory fault: |
£2,551.82 ÷ 40% = £1,020.73 |
||
|
|
|
|
||
|
|
|
|
£2,551.82 |
|
|
|
|
|
£1,531.09 |
|
|
|
|
|
||
|
|
Compensatory Award |
|
||
|
|
|
|
||
|
|
Immediate Loss |
|
||
|
|
|
|
||
|
|
From 16 August 2011 to the last day of hearing - 43 weeks. |
|
||
|
|
|
|
||
|
|
|
£214.09 (Net) x 43 weeks = £9,205.87 |
||
|
|
|
|
||
|
|
|
|
||
|
|
Less post dismissal receipt of £1,532.16 from Noonan Services (as per Schedule of Loss.) |
|
£9,205.87 |
|
|
|
|
|
£7,673.71 |
|
|
|
|
|
||
|
|
Less Polkey deduction of 40%: |
£7,673.71 ÷ 40% = £3,069.48 |
||
|
|
|
|
||
|
|
|
|
£7,673.71 |
|
|
|
|
|
£4,604.23 |
|
|
|
|
|
||
|
|
Less 40% deduction for contributory fault: |
£4,604.23 ÷ 40% = £1,841.69 |
||
|
|
|
|
||
|
|
|
|
£4,604.23 |
|
|
|
|
|
£2,762.54 |
|
|
|
|
|
||
|
|
Loss of Statutory Rights |
|
||
|
|
|
|
||
|
|
This has been assessed at £350.00. Less Polkey deduction: |
£350.00 ÷
40% = £140.00 |
||
|
|
|
|
||
|
|
Less deduction for contributory fault |
£210.00 ÷
40% = £84.00 |
||
|
|
|
|
||
|
|
|
|
||
|
|
Future Loss |
|
||
|
|
|
|
||
|
|
This claimant has an ongoing net weekly loss of £128.96 (being his Queen’s University net pay at dismissal less what he earns from Noonan) = |
|
|
|
|
|
|
|
£128.96 |
|
|
|
As stated earlier in the decision, in the light of the current employment situation the tribunal considers it appropriate to make an award for future loss for a period of 26 weeks: |
|
||
|
|
|
|
||
|
|
Less 40% deduction for contributory fault: |
£3,352.96 ÷ 40% = £1,341.18 |
||
|
|
|
|
||
|
|
|
|
£3,352.96 |
|
|
|
|
|
£2,011.78 |
|
|
|
|
|
||
|
|
Less 40% Polkey deduction: |
£2,011.78 ÷ 40% = £804.71 |
||
|
|
|
|
||
|
|
|
|
£2,011.78 |
|
|
|
|
|
£1,207.07 |
|
|
|
|
|
||
|
|
|
|
||
|
|
|
|
||
|
|
|
|
||
|
|
Summary of Compensation |
|
||
|
|
|
|
||
|
|
Basic Award: |
£1,531.09 |
||
|
|
|
|
||
|
|
Compensatory Award: |
|
||
|
|
|
|
||
|
|
Immediate Loss: |
£2,762.54 |
||
|
|
|
|
||
|
|
Loss of Statutory Rights: |
£126.00 |
||
|
|
|
|
||
|
|
Future Loss: |
£1,207.07 |
||
|
|
|
|
||
|
|
Total: |
£5,626.70 |
||
Recoupment
This claimant was in receipt of benefits (both ESA and JSA) from 17 August 2011 - 23 January 2012. This is a period of 22 weeks.
24. Accordingly the respondent is ordered to pay the following sums to the claimants as set out below:-
Mr Smith: £6,383.09
Mr Gordon: £5,025.28
Mr Taylor: £5,626.70
25. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 28-30 May, 7, 8 and 14 June 2012, Belfast.
Date decision recorded in register and issued to parties:
Case Ref No: 2740/11
CLAIMANT: John Robert Smith
RESPONDENT(S): Queens University Belfast
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 |
6,383.09 |
|
(b) Prescribed element |
3,634.50 |
|
(c) Period to which (b) relates: |
01/09/11 to 14/06/12 |
|
(d) Excess of (a) over (b) |
2,748.59 |
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.
Case Ref No: 2741/11
CLAIMANT: Alan Gordon
RESPONDENT(S): Queens University Belfast
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 |
5,025.28 |
|
(b) Prescribed element |
1,566.34 |
|
(c) Period to which (b) relates: |
16/08/11 to 06/11/11 and 03/02/12 to 14/06/12 |
|
(d) Excess of (a) over (b) |
3,458.94 |
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.
Case Ref No: 2743/11
CLAIMANT: James Taylor
RESPONDENT(S): Queens University Belfast
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 |
5,626.70 |
|
(b) Prescribed element |
1,695.59 |
|
(c) Period to which (b) relates: |
17/08/11 to 23/01/12 |
|
(d) Excess of (a) over (b) |
3,931.11 |
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.