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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Totten v Office Monkey Northern Ireland... Office Monkey Northern Ireland... [2012] NIIT 00284_12IT (17 July 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/284_12IT.html
Cite as: [2012] NIIT 00284_12IT, [2012] NIIT 284_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REFS: 284/12
486/12
CLAIMANT: Stephen Totten
RESPONDENT: Office Monkey Northern Ireland Ltd
DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed but no compensation is awarded.
The title of the proceedings is amended to reflect the correct title of the respondent.
Constitution of Tribunal:
Chairman: Ms J Knight
Members: Mr B Gunn
Mr P Killen
Appearances:
The claimant appeared in person and represented himself.
The respondent was represented by Mr Barry Carson, Director.
ISSUES
1. The tribunal had to determine:
(a) Whether the respondent had failed to comply with the Statutory Dismissal and Disciplinary procedures thus rendering the dismissal automatically unfair.
(b) Whether the claimant was unfairly dismissed contrary to the provisions of the Employment Rights (Northern Ireland) Order 1996 in selecting him for redundancy.
(c) Whether the respondent had failed to consult the claimant before making him redundant.
EVIDENCE
2. The tribunal heard the evidence of Mr Barry Carson, a director in the respondent company, and the claimant, Mr Stephen Totten. The tribunal also considered documentation to which it was referred during the course of the hearing.
FINDINGS OF FACT
3. The tribunal found the following relevant findings of fact to be proven on a balance of probabilities:-
(1) The respondent is a small family run company which operates a printer and copier sales, servicing and repair business, supplying office equipment and offering IT support to other businesses. Mr Carson and his son and daughter are employed by the respondent and were responsible for sales. In addition the respondent employed the claimant, Mr Stephen Totten, Mr Dean Barnett, a printer technician and Mr Brian McArdle, a service engineer and a part time bookkeeper.
(2) The claimant, Mr Stephen Totten, was continuously employed by the respondent company and its predecessors as a Printer Cartridge Technician/Driver from 17 March 2003 until his employment was terminated with effect from 13 March 2012. He was 55 years old at the effective date of termination of employment (the “ETD”) with gross weekly earnings of £275 and net weekly earnings of £232.42. He had 8 full years’ service working back from the EDT. The claimant was provided with written terms and conditions of employment at the commencement of his employment with the respondent’s predecessors. These remained in force until the ETD.
(3) The claimant’s main duties including remanufacturing toner cartridges, making deliveries to businesses and receiving deliveries. The claimant had occasionally changed printer cartridges and rollers and cleaning printers when making deliveries to customers’ premises.
(4) In the 18 month period prior to January 2012, sales were down by 70% in the toner cartridge remanufacturing side of the business due to competition from other suppliers, including over the internet. The respondent company was in financial trouble. A decision was made to cease the manufacturer of toner cartridges. As this was the claimant’s main area of work, it was decided to make him redundant. The claimant was informed of this decision by Mr Carson at a meeting on 17 January 2012. The claimant was given 8 weeks notice of his redundancy, which was worked by him. The tribunal did not accept the claimant’s evidence that this came as a complete shock to him as he would have been aware of the reduced number of orders for toner cartridges over the preceding months. There was however no formal consultation with the claimant or any other employee, prior to the decision to make him redundant.
(5) Mr Carson wrote to the claimant on 19 January 2012, confirming that he was being made redundant and that he was entitled to a redundancy payment of £3,300 based on gross weekly wage, age and length of service. The claimant was also advised that the respondent was seeking financial help from the Department of Employment and Learning to pay his redundancy payment. The claimant was advised of his statutory right to appeal the decision to dismiss him.
(6) The claimant sent a letter to the respondent on 19 January 2012, which crossed with the respondent’s letter to him, advising that he wished to appeal against his dismissal. He asserted that there had been a failure to consult with him and he sought to challenge the selection process. He also sought confirmation that he had continuous employment with the respondent company from March 2003.
(7) The respondent did not respond to the claimant’s request for an appeal and the claimant did not raise this with the respondent again during the 8 week notice period.
(8) Mr Carson frankly admitted at the hearing before the Industrial Tribunal that there had been a failure by the respondent to comply with the Statutory Disciplinary and Dismissal procedures and that there was no consultation with the claimant before the decision was made to terminate his employment due to redundancy. The respondent company does not have Redundancy Selection Policy or Procedure. The respondent did not seek any advice about the correct procedures to be followed when contemplating dismissing an employee for redundancy prior to making the claimant redundant.
(9) The claimant accepted that there was a downturn of business in his area of work and that the reason for his dismissal was redundancy. He further accepted that there were no other vacancies within the respondent company which could have been offered to him. The claimant’s case to the tribunal was that his dismissal was unfair because the respondent did not consult with him or comply with the statutory procedures. He argued that the respondent could have avoided making him redundant by offering him either of the posts held by Mr McArdle and Mr Barnett, both of whom had lesser service than him. Mr Barnett had been employed for 6 years as a Printer Technician, carrying out repairs to and servicing printers. He had an IT background. Mr McArdle was employed as a Service Engineer from May 2010, providing IT backup and services to the respondent’s customers. Mr McArdle had received “on the job” training from Mr Barnett in carrying out repairs to printers. The claimant accepted at the hearing that he would not have been able immediately to do the jobs of either Mr McArdle or Mr Barnett and that he would have required training in carrying out repairs to printers and servicing IT systems. He queried why he had not also previously been given on the job training by Mr Barnett to repair printers.
(10) Mr Carson contended on behalf of the respondent company that even if the respondent had properly followed the statutory dismissal procedures and had there been a proper redundancy consultation, the claimant would still have been dismissed in any event. Consideration was given as to whether the claimant could be offered another role within the company. However given the financial position of the Company and the immediate need for the roles of Service Engineer and Printer Technician to be carried out, it was not a feasible option to provide the claimant with training over a number of months necessary to equip him to carry out these positions. The respondent has ceased entirely to remanufacture cartridges and the claimant has not been replaced. Mr Carson and other employees carry out deliveries which were previously made by the claimant and a key has been provided to the delivery man making deliveries to the respondent in the mornings.
(11) After the termination of his employment, the claimant was paid a redundancy payment of £3300 through the Department on behalf of the respondent. This sum is being repaid by the respondent to the Department. He claimed Jobseekers’ Allowance until he obtained temporary employment through an employment agency from 30 May 2012, for 4 weeks, working 45 hours per week at £8 per hour for Belfast City Council.
THE LAW
4. Article 130 of the Employment Rights Northern Ireland Order 1996 provides:-
“(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 reasons (or, if more than one, the principal reason) for the dismissal, and
(b) that it 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 –
…
(c) is that the employee was redundant
…
(4) Where the employee 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.”
Article 130A inserted into the 1996 Order by Article 23(2) of the Employment (Northern Ireland) Order 2003 (the 2003 Order), provides that:-
“(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if:-
(a) one of the procedures set out in Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003 (dismissal and disciplinary procedures) applies in relation to the dismissal,
(b) the procedure has not been completed, and
(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.
(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 purpose of Article 130(4)(a) 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”.
CONCLUSIONS
5. The tribunal is satisfied that the respondent has shown that the reason for the claimant’s dismissal was redundancy which is potentially a fair reason. However the statutory dispute resolution procedures prescribed by the 2003 Order and set out in Schedule 1, part 1 of the 2003 Order apply in this case. As the respondent company admits that it failed to comply with statutory procedures, the dismissal is automatically unfair. Therefore the tribunal is required to determine the appropriate remedy in the circumstances. The claimant does not seek reinstatement or re-engagement therefore the tribunal must consider the appropriate measure of compensation, if any, due to the claimant.
6. The claimant is entitled to a basic award calculated in accordance with Article 153 of the 1996 Order. This amounts to £3,300.00 calculated on the claimant’s length of service, age and gross weekly pay. However Article 156(4) of the 1996 Order provides that:-
“The amount of the basic award shall be reduced or further reduced by the amount of –
…
(b) any payment made by the employer to the employee on the ground that the dismissal was by reason of redundancy (whether in pursuance of Part XII or otherwise)”
As the claimant in this case has been paid a redundancy payment in the sum of £3,300.00 the tribunal is required to reduce the basic award to nil.
7. The tribunal then went on to consider whether it should make a compensatory award. Article 157 of the 1996 Order provides that:-
“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 insofar as that loss is attributable to action taken by the employer”.
In the present case the dismissal was automatically unfair because the respondent failed to comply with the statutory dismissal procedures. The tribunal is mindful that the purpose of the compensatory award is not to punish the respondent but to compensate the claimant for the loss that flowed from the dismissal. Further, in assessing the correct measure of compensation, the tribunal must first take a view as to what would have happened but for the unfair dismissal and would the dismissal have occurred when it did or at all had the respondent complied with the statutory procedures and consulted with the claimant.
8. The tribunal, having found the dismissal to be automatically unfair, applied the principles enunciated in the case of Polkey –v- A E Dayton Services Ltd [l987] IRLR 503. The chances of whether or not the employee would have been retained had the correct procedural safeguards been followed must be taken into account when calculating the compensation to be paid to the employee. Therefore if the prospects that the employee would have kept his job had proper procedures been followed were small there would be a significant reduction in compensation. In Polkey, Lord Bridge stated:
“If it is held that taking the appropriate steps which the employer failed to take before dismissing the employee would not have affected the outcome, this will often lead to the result that the employee, though unfairly dismissed, will recover no compensation or, in the case of redundancy, no compensation in excess of his redundancy payment.
….if the likely effect of the situation as Browne-Wilkinson J puts it in Sillifants case, at p.96:
“there is no need for an ‘all or nothing decision.’ If the (employment) tribunal thinks there is a doubt whether or not the employee would have been dismissed, this element can be reflected by reducing the normal amount of compensation by a percentage representing the chance that the employee would still have lost his employment.””
9. Where the employee would have been dismissed had fair procedures been employed, then whatever the reason for dismissal, it will be open to the tribunal to say that it is just and equitable for no compensatory award to be made even if the employee has in no sense been at fault. The tribunal, in this case, after careful consideration of the facts, concluded that that even had the respondent complied with the statutory procedures and consulted with the claimant, the claimant would still have been made redundant when he was, in any event. In reaching this conclusion the tribunal took into account that there were no vacancies within the respondent company which could have been offered to the claimant and that the claimant was not equipped to carry out the roles of either service engineer or printer technician without appropriate training for these posts. The tribunal accepted that retraining of the claimant was not a feasible option in all the circumstances, including that the respondent is a small family company in continuing financial difficulty. The tribunal considered that an appeal against dismissal had it taken place, would have been completed within the eight week notice period. The tribunal does not consider that the claimant’s grounds for appeal, in that he sought to challenge his selection for redundancy, would have been upheld. For these reasons the tribunal does not consider that it is just and equitable to make a compensatory award.
10. The claimant has no freestanding right to an award for compensation for failure to consult in these circumstances.
Chairman:
Date and place of hearing: 7 June 2012, Belfast.
Date decision recorded in register and issued to parties: