Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS  

 

CASE REF:    3021/11          

 

CLAIMANT:                 Karen McPolin

 

RESPONDENT:           Clanrye Electrical Supplies Ltd

 

 

 

DECISION

 

The unanimous decision of the tribunal is that the claimant was constructively dismissed from her employment by the respondent.  The respondent is to pay the claimant compensation of £14,735.65 as detailed below.

 

 

Constitution of Tribunal:

 

Chairman:                   Mrs M Watson

 

Members:                   Mr P Archer

                                   Mr A Huston

 

 

Appearances:

 

The claimant was represented by Mr T Warnock, Barrister-at-Law, instructed by The Elliott Trainor Partnership Solicitors.

 

The respondent was represented by Mr Stephen Sheppard, Managing Director.

 

 

ISSUES FOR DETERMINATION

 

1.       The claimant claimed that she had been constructively dismissed from her employment with the respondent.  The respondent denied that there had been any work related problems and claimed that the claimant had resigned from her position for no good reason.

 

2.       The name of the respondent company is Clanrye Electrical Supplies Ltd.  The title of the case is amended accordingly.

 

 

EVIDENTIAL MATTERS

 

3.       The tribunal heard oral evidence from the claimant and, on behalf of the respondent, from Mr Sheppard.

 

4.       The tribunal was provided with a bundle of over 340 documents.  This had been compiled by the claimant’s solicitor and contained material provided by the respondent on discovery.  Mr Sheppard presented further documentation to the tribunal and this was included.

 

5.       Both parties were invited to submit written submissions after the hearing.  Mr Warnock, on behalf of the claimant submitted 6 pages while Mr Sheppard submitted 46.

 

6.       The material submitted by Mr Sheppard consisted of additional documentation and further evidence in the form of statements written by Mr Sheppard.  There was one from an employee, Ronan Byrne, who had attended the hearing and one from Andrea O’Hare, another employee.  Patrick Ward, another Director of the respondent company, had prepared his own.

 

7.       There were also notes Mr Sheppard had prepared of conversations he had with his wife, Bronagh and son, Ryan.  The claimant had complained about her treatment by both of them, essentially that they treated her badly and the notes contained their denials.  With the exception of Ronan Byrne’s statement, little of these ‘submissions’ had been put to the claimant.  The tribunal did not place much weight on the other witness material but the panel read all of the documentation from the respondent and discussed it along with the rest of the evidence from the hearing at the panel meeting.

 

8.       The submissions also contained complaints about the hearing: the two days allocated were insufficient and the two current employees, Ronan Byrne and Gary Wilson who attended the hearing [described by Mr Sheppard as independent witnesses] had not been ‘permitted’ to give evidence.  Mr Sheppard did not acknowledge that when the case had been listed for a ‘fast track’ hearing, it had to be adjourned to allow the claimant’s representatives to read through and take instructions in relation to new documentation that Mr Sheppard had produced on the day.  Both he and Mr Warnock agreed that the hearing should be listed for two days.

 

9.       Nor did he refer to the fact that the tribunal had reluctantly agreed to arrange for the hearing to extend into the next day and that a panel member and Mr Warnock had rearranged appointments to facilitate this.  After Mr Sheppard had finished his evidence in chief at 3.50 pm, the tribunal asked Mr Warnock if he wished to begin his cross examination the next day.  Mr Sheppard informed the tribunal at that stage that neither he nor his witnesses would be available the next day.  As a result, the hearing had to be extended until 4.30 pm to allow Mr Warnock a short opportunity to cross examine the claimant.  The tribunal then asked the parties to submit written submissions for reference of the panel at its deliberations.

 

10.     It was not clear whether Mr Sheppard considered his criticisms to be a request for further hearing time.  For the avoidance of doubt, the tribunal had advised the parties that the Overriding Objective in the tribunal’s Constitution and Rules of Procedure requires tribunals to conduct hearings in a manner where the issues are dealt with fairly and proportionately in terms of complexity and cost and where the parties are focussed on the issues for determination.  The respondent was given a degree of flexibility as he was unrepresented but the claimant was and the tribunal had to take those costs and the costs to the tribunal into account.  The issue for this tribunal was constructive dismissal and not an audit of the respondent’s staff management.

 

11.     Before hearing any evidence, the panel had read the case papers.  The claim in the originating application had included breach of contract and unlawful deductions of wages.  Mr Warnock had withdrawn the breach of contract at the earlier hearing and informed this tribunal that the deduction of wages claim referred to the failure of the respondent to offer notice pay in redundancy discussions which took place while the claimant was on sick leave.

 

12.     The claimant’s last day at work was 30 June 2011 and her letter of resignation was submitted on 20 October 2011.  Given that the case was only listed for two days, the tribunal directed both parties to concentrate on this period in their evidence as this was most relevant to a claim of constructive dismissal.  In particular, the tribunal advised Mr Sheppard as an unrepresented litigant that, in order to succeed in such a claim, a claimant had to prove that (i) the employer had fundamentally breached the contract of employment, (ii) the employee must have left as a consequence of that breach, and (iii) there has to have been no significant delay between the breach and the employee’s departure.

 

13.     Mr Warnock’s examination in chief of the claimant however took the claimant from in or about October 2010 when she alleged that she had terminated an affair with Mr Sheppard which had been ongoing since August 2006.  She claimed that workplace problems which had previously been difficult had deteriorated from that time.  In particular, the claimant alleged that she was undermined by Mrs Sheppard and their son, Ryan who both worked in the company, neither of whom was aware of any affair.

 

14.     Mr Warnock informed the tribunal that it was necessary for him to present evidence of the workplace problems that the claimant alleged in order that the tribunal might understand the situation which the claimant alleged had led her taking extended sick leave from her employment.  However, as a consequence, Mr Sheppard went through every allegation made by the claimant relating to that time and put to her his version of those events and the evidence his two witnesses would give, for her response.

 

 

FINDINGS OF FACT

 

15.     The claimant began her employment with the respondent as a Sales Person on 23 October 2003.  On 6 July 2004, the claimant signed a document headed Statement of Main Terms and Conditions of Employment.  These terms were stated to have been revised in June 2003.  No separate contract of employment was provided.  Paragraph 12 provided details of the period of notice that she was entitled to receive from the company.  In respect of this case, the relevant element corresponds with the statutory provision in that after two years service, the entitlement was one week for each year worked.  This was not altered in any of the similar later versions of this documentation provided to the tribunal.

 

16.     The respondent company are manufacturers, importers and suppliers of lighting and electrical installation materials to wholesale and retail customers.  The claimant worked in a large area which contained a lighting showroom and a trade counter.  She was employed primarily for the showroom but also carried out tasks for the trade counter.

 

17.     At the beginning of her employment, Mr Eamon Ferris was employed as General Sales Manager and was referred to as line manager for sales staff in an early version of the Grievance Procedure.  Any decision made by him under these procedures was to be appealed to Mrs Bronagh Sheppard and then to Mr Stephen Sheppard.

 

18.     Mr Ferris left in or about June 2008 and Walter Green was appointed as Sales Manager.  Mr Green left in November 2009.  The claimant claimed that she was promoted to Showroom Manager in or about this time but the respondent denied that any such position existed in the company.  The claimant produced a copy of a company business card with that title shown but Mr Sheppard produced a copy of an email from the claimant ordering a change to her title on the business card.  He denied that the company had ever made any payment arising from this order.

 

19.     The tribunal cites this issue as an example of the nature and extent of the dispute in the evidence given in this case by both parties.  There was little if any common ground between them as to what the situation was during nearly eight years of the claimant’s employment.  The claimant said that Mr Sheppard was her line manager but Mr Sheppard said it was his wife, Bronagh.  The tribunal has considered all the material in this case and has determined that it is not necessary to examine in detail each and every assertion of the parties in relation to the minutiae of working life in the respondent company.

 

20.     The tribunal did not find that the evidence presented in relation to the period prior to 30 June 2011, was of material assistance to the tribunal in making its determination in respect of a claim of constructive dismissal.

 

21.     At or about mid morning of 30 June 2011, the claimant was on the phone with a customer.  She became aware that customers had come in to the shop.  The only employee serving at that time was Gary Wilson as the other two, Ronan Byrne and Gary Taylor had been sent by the claimant at the direction of Mrs Sheppard to clean another part of the premises.  As the claimant was going to attend to the new customers, the internal phone rang.  The claimant saw that the call was from Mr Sheppard.  She served the customers and returned his call.  Mr Sheppard had been watching the shop floor on the CCTV screen in his office upstairs and had called to ask why the other two employees had not been serving customers.  The claimant perceived this as an example of a difficulty she had previously brought to Mr Sheppard’s attention of her being given conflicting instructions from two bosses.

 

22.     The claimant and Mr Sheppard exchanged several heated email messages through the day.  The claimant said that she was very distressed and cried several times.  Mr Sheppard and his witnesses denied this.  A meeting was arranged for 5.00 pm to address the claimant’s ‘issues’.

 

23.     The meeting did not go well.  It was agreed that Mr Sheppard ended the meeting because the claimant was very distressed.  When the claimant was going downstairs, the other staff on the premises could hear shouting.  A short time later, the claimant went towards the door.  She called the staff to witness that she was being escorted from the premises.  Mr Sheppard denied this and accused the claimant of ‘shouldering’ him as he was beside her in the doorway.  It was clearly a most unfortunate event.

 

24.     Further emails were exchanged between the claimant and Mr Sheppard who said that if the claimant was aggrieved, she should put it in writing and he would look at it.  In response, the claimant referred to previous situations where she had been dissatisfied with Mr Sheppard’s handling of her complaints.  These related to her perception of being undermined.

 

25.     The claimant asked Mr Sheppard to stop sending her emails as she was finding his recent behaviour upsetting and intimidating.  He apologised for that but insisted that the day to day running of the business was his call.  The claimant was told to take the next day off and they could discuss with fresh heads the following week.  Mr Sheppard had also said the claimant would be paid for the day off.  This was to reassure the claimant who had raised concerns as she had previously had pay deducted by Mrs Sheppard for leaving early.

 

26.     The claimant attended her GP the following day and he certified that the claimant was suffering from anxiety and work related stress and would be unfit for work for six weeks.

 

27.     Mr Sheppard claimed that the claimant had spoken to a colleague and informed him that she intended to ‘milk’ her sick absence.  The claimant denied this.

 

28.     Mr Sheppard denied that the claimant had any problems at work that would cause her to be stressed.  He and his witnesses went into great detail in their statements of personal problems the claimant was having around this time.  They said that her family were not speaking to her and that she was accused of assault by her brother’s partner and that brother was threatening to come to her work and kill her.  In addition, she had been named in divorce proceedings brought by her partner’s estranged wife and this had caused a problem with her partner.  The claimant did not deny that there were personal problems in her life but did not accept the accuracy of the details given.  The tribunal find that at the material time, the claimant was, as certified by her doctor, unfit for work because of anxiety and stress and find that the respondent was aware of the degree of the stress she was under no matter from what source.  The tribunal also find that the respondent’s total denial of any work problems at that time is not credible in the light of the content of the emails being exchanged.  Just because Mr Sheppard did not share the claimant’s views with regard to her experiences at work did not mean that she was not telling the truth as she saw it.  The tribunal had noted that Mr Sheppard failed to notice that the claimant was very distressed and in tears on more than one occasion during her cross examination by his questions and assertions.

 

29.     Mr Sheppard emailed the claimant on 2 July 2011 and remarked that she had been ‘visibly stressed’ during their meeting.  However he also said that he was unaware of any incident at work the previous week which would have caused her to take time off work but stated that he knew she had ‘personal issues not connected with work’.  In response, the claimant emailed, “Please stop emailing me with this nonsense.”  Mr Sheppard’s reply was that the claimant was a valued member of staff and that he wanted her back as soon as possible but ‘as a senior member of staff’ he wanted her back happy and not distressed.

 

30.     On 10 August 2011, the respondent emailed the claimant in anticipation of her return to work to inform her of certain changes that had taken place and asking her to provide a certificate from her doctor that she was fit to return.

 

31.     The claimant submitted a sickness certificate for a further six weeks.  Mr Sheppard emailed on 13 August and acknowledged receipt.  He went on to say that the Directors had intended to meet with staff after her return to discuss a list of issues which included the overall wage bill.  No decision had been made but Mr Sheppard asked if the claimant would be interested in redundancy.  He asked her to let him know early the following week as the company ‘may be obliged to make the same enquiry from other staff.’

 

32.     The claimant replied on 15 August asking for time to consider the offer.  She also reminded him that she had still not received a copy of her contract which she had requested previously.

 

33.     Despite having told the claimant recently that the day to day running of the business was up to him, Mr Sheppard asked the claimant to check online the amount she would get if she chose to accept the redundancy offer.  He also told her that the same offer would be made to the rest of the staff at a meeting later that week.  However, the tribunal noted that while Mr Sheppard had previously mentioned this proposed meeting with staff, there was no evidence that any such meeting ever took place or that any offer of redundancy was made to any member of staff other than the claimant.

 

34.     This e-mail also told the claimant that she had never signed a contract of employment.  The document she had signed was probably a Statement of Terms and Conditions.  If she wanted a signed copy or the current terms applicable he would arrange this but none was sent to her.

 

35.     The claimant consulted the Labour Relations Agency (LRA) and informed the respondent on 17 August that she had been advised that her entitlement was to eight weeks pay for redundancy, eight weeks notice pay and 22 days holiday pay.  She also requested a reference.

 

36.     The respondent replied on 23 August that he had checked with the LRA.  His view was that the redundancy entitlement should be seven weeks pay but said he could stretch to eight.  He also queried the figure for holiday pay.  There were further exchanges between the parties and in response to a query from the claimant, the respondent emailed on 29 August 2011 as follows:-

 

                    “If someone accepts the offer we would like them to leave fairly immediately (within reason), however there would be no further payments in lieu of Notice.”

 

37.     The tribunal noted that every one of the template Terms and Conditions of Employment that the respondent says was supplied at least every other year to each employee stated at paragraph 12 that the period of notice that employees who had more than two tears service were entitled to receive on termination was one week for every year’s service.  This conforms with the relevant statutory provision in Article 118 of the Employment Rights (Northern Ireland) Order 1996.

 

38.     Mr Sheppard informed the tribunal that he owns or has interests in four companies.  The tribunal asked him why he refused to include any notice or pay in lieu of notice in the offer and he replied that he did not have to.  He also said that, in his view, this was the advice he was given by the LRA.

 

39.     The claimant consulted a solicitor who wrote on her behalf to the respondent on 7 September 2011 asking for a breakdown of his assessment of the claimant’s statutory entitlement on redundancy.  The respondent did not reply until 20 September 2011 to state that it was not possible to provide a breakdown “until someone volunteers and a date is agreed to cease employment. … If your client is interested please confirm soonest as redundancy is obviously quite costly and most definitely not our preferred option, hence we are still considering other rationalism measures to reduce the overall wage bill.”

 

40.     On 23 September 2011, the respondent emailed the claimant to note that she was now due to return to work but later that day, acknowledged receipt of a sickness certificate for a further six weeks.  The email stated:-

 

                    “As you have already been off work for 12 weeks we would like you to attend an appointment with the Company Doctor in Newry at 10.30 am on 29 September 2011 to assess your condition and likely return to work.”

 

41.     No name or address was given for this ‘Company Doctor’.  The claimant said she had never been aware there was one.

 

42.     At this time, there was further correspondence between the respondent and the claimant’s solicitor in which the respondent was advised that notice was a statutory requirement but the respondent on 28 September 2011 wrote, “We are unsure as to your query regards “Notice pay” but it was not our intention to offer payment in lieu of notice to any member of staff, Trusting same clarifies?”  Mr Sheppard indicated that he had not had a response from the claimant regarding the appointment that had been arranged with ‘our’ Doctor.

 

43.     The claimant’s solicitor sent an email next day to the respondent setting out her view of the minimum statutory requirements of a redundancy proposal.  She also asked for a copy of the respondent’s Disciplinary and Grievance Procedure and Sickness policy and stated that the claimant was unaware that any person was employed in the capacity of ‘Company Doctor’.  Details were requested of the identity of the physician and the location of the meeting place and noted that the proposed date was unachievable.  The e-mail concluded by expressing surprise that such a request had been made and querying the contractual basis for it.

 

44.     The reply dated 30 September 2011 stated that the company was,

 

                    “consulting, inviting proposals and willing to consider voluntary redundancy as an option but the company never offered any redundancy package as such to anyone and nor is the company presently seeking to make any member of staff redundant.

 

                    If…your client is interested in voluntary redundancy, the company would be amenable now…on the basis of notice (not notice pay)…If you still deem Notice Pay applicable please provide a copy of the legislation on which you rely for our consideration and we shall recheck and revert to you.”

 

45.     The email had a copy of the Disciplinary and Grievance Procedure “relevant to your client’s employment” and the Physician was noted as “Employ of: Clanrye Surgery, Newry Health Village facilities”.  With regard to the appointment for 29 September, the company considered this a reasonable request and noted the claimant’s failure to respond.  No acknowledgement was made that the solicitor had responded on the claimant’s behalf and pointed out that the claimant did not know the name or address of the doctor.

 

46.     In the hearing bundle, the respondent’s discoverable documentation included unsigned copies of the Statement of Terms and Conditions of Employment for 2003, 2005, 2007, 2009, 2010, and 2011.  The extract forwarded as an attachment to the above email appears to be from the final edition of the documentation.  Unlike the previous documentation, the final edition is not dated at the top right corner of each page, indeed it is not dated anywhere.  At page 5 of this document, [page 207 in the bundle] paragraph 5 is; Evidence of Incapacity (Revised June 2007) and it contains sections (a) to (e).  In the edition in the bundle dated on each page as December 2010, paragraph 5 is also headed Evidence of Incapacity (Revised April 2007) as it is in the editions dated December 2007 and July 2009.  The tribunal noted that the revision of June 2007 predated these editions but that revision only appears in the edition of the documentation from which the copy sent to the solicitor was extracted.

 

47.     The extract attached states at paragraph 5(d) that if absence extends beyond 30 days, the employee ‘must’ attend a meeting with the Directors either at work or if unable to travel, the employee ‘must’ facilitate the meeting at their home or lodgings.  Similarly, paragraph 5(c) states that employees whose absence extends beyond 30 days ‘must’ attend an appointment arranged by the company with a GP/Doctor/Consultant/Physician (if requested) for assessment.  Again, employees not able to travel ‘must’ facilitate the assessment at their home or lodgings.  Both paragraphs indicate that failure to comply shall be dealt with in accordance with Disciplinary and Dismissal procedure.

 

48.     The tribunal also noted that the edition of these Terms and Conditions of Employment signed by the claimant states at paragraph 16 that should there be any change in the terms, by negotiation or mutual consent, employees will be informed in writing by personal notification.  No such notification of any changes was contained in the bundle.

 

49.     The respondent wrote to the claimant on 3 October 2011 to issue a Disciplinary Warning (Final) because she had failed to attend the appointment arranged for her with the Company Doctor which was considered major misconduct.  She was also warned that a repeat of major misconduct within 12 months will result in dismissal.

 

50.     The claimant denied receiving a letter which was included in the respondent’s Discovery dated 6 October 2011 withdrawing the disciplinary sanction and asking the claimant to consent to the respondent arranging for a medical report.

 

51.     In a letter dated 20 October 2011, the claimant resigned from her employment with effect from 24 October 2011.

 

 

RELEVANT LEGAL PROVISIONS

 

RELEVANT LAW

 

52.     Where an employee terminates his/her contract of employment by reason of the employer’s conduct, this will constitute a dismissal under Article 127(1)(c) of The Employment Rights (Northern Ireland) Order 1996 (as amended).

 

53.     In the case of Western Excavating (ECC) Ltd  v  Sharp [1978] IRLR 27, Lord Denning MR, stated as follows:-

 

                    “An employee is entitled to treat himself as constructively dismissed if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract.  The employee in those circumstances is entitled to leave without notice or to give notice, but the conduct in either case must be sufficiently serious to enable him to leave at once.”

 

54.     It is clear from this statement that the conduct on which tribunals must focus is that of the employer.  It is not open to an employer to argue that the employee has failed to raise a grievance in respect of the conduct complained of (per Tolson  v  Governing Body of Mixenden Community School [2003] IRLR 842).

 

55.     In the case of Stanley Cole (Wainfleet) Ltd  v  Sheridan [2003] IRLR 52, The Employment Appeal Tribunal found that an unjustified imposition of a final written warning can amount to a repudiatory breach of contract by the employer so as to entitle the employee to resign and claim constructive dismissal.

 

56.     Employers are obliged to honour contractual terms regarding payment.  Any attempt by an employer to alter that fundamental contractual obligation will be a breach “going to the very root of the contract” and is necessarily a repudiation.  (See R F Hill Ltd  v  Mooney [1981] IRLR 258.

 

57.     At Section DI, paragraph 403 of Harvey on Industrial Relations and Employment Law, the conditions are set out that employees must meet to be able to make a claim of constructive dismissal.  These are:-

 

          (i)       The employer must have breached the employment contract.

 

          (ii)      The breach must be sufficiently serious to justify resignation or may be the ‘final straw’ in a cumulative series of incidents.

 

          (iii)      The employee must leave in response to the breach.

 

          (iv)      The employee must not delay too long after the breach or he may be deemed to have waived/accepted the breach.

 

58.     During the hearing, Mr Shepherd was provided with a copy of the Law at Work series of books written by the Labour Research Department which contain concise statements of current employment law.  The relevant section to which he was referred by the tribunal states three elements to such claims.  These are:-

 

          (a)      the employer must have fundamentally breached the contract;

 

          (b)      the employer must have left as a consequence of that breach; and

 

          (c)      there has to be no significant delay between the breach and the employee’s departure.

 

          The section also provided the details of a successful claim where there had been a delay due to the illness of an employee.

 

59.     In relation to the period of delay, at paragraphs 524 and 525 of Harvey (as above), it advises that there is no fixed time.  A “reasonable time” is to be allowed which will depend on the circumstances including the employee’s length of service.  In G W Stephenson and Son  v  Fish [1989] ICR 324, the Employment Appeal Tribunal held that three months was not excessive.  In addition, courts have taken into consideration the fact that employees are often reluctant to give up their jobs and being unemployed  -  especially given the present economic uncertainty.

 

 

DETERMINATION

 

60.     In her letter of resignation the claimant gave details of what, for her, were the main problems she had with the respondent during her employment.  The essential elements of these were;

 

·                 Difficult work situations where her decisions were not supported by management.

 

·                 Being humiliated and undermined in front of other staff.

 

·                 Wages were withheld.

 

·                 Asked to perform duties not within her job description.

 

·                 Different managers giving her different instructions.

 

·                 Complaints were ignored or dismissed as fanciful.

 

61.     Having read through all the material in this comprehensive bundle from both parties, the tribunal can understand what the claimant is referring to in relation to each item on this list.  The respondent however denied the substance of the complaint in its entirety, questioned her in respect of each of these matters and repeated that denial after every response she gave.  In addition, the respondent and his witnesses were adamant that the claimant’s stress resulted from personal rather than work problems.  Without a hearing lasting several weeks, it would be foolish for this tribunal to make a definitive finding as to who was right and who was wrong.  Experience also tells us that such situations are usually a mixture of both.  The tribunal determined that even though the claimant’s personal life had caused her to be stressed, the accounts of what took place on 30 June 2011, as evidenced by the content of the emails exchanged and the accounts of the other employees, clearly indicate that the claimant was also deeply distressed by the events of that day.  When added together, the tribunal determines that the certification by her GP was reasonable in all the circumstances and on the balance of probabilities was the reason for her absence.

 

62.     While her resignation letter and originating application did not include reference to the discussions of redundancy or the disciplinary sanction, and in particular, the stance taken by the respondent at this time, the tribunal is satisfied that these matters occurred during her employment and are properly before it for consideration.

 

63.     According to Mr Sheppard, he has several businesses.  As such, the tribunal was surprised by his approach to and knowledge of employment law and the duties and responsibilities of employers.  He also informed the tribunal that he had taken advice from the Labour Relations Agency but the tribunal saw little evidence of that in his correspondence with the claimant and her solicitor.  The tribunal determines that in his discussions with the claimant and with her solicitor, the respondent has demonstrated conduct which goes to the root of her contract of employment, particularly the terms and conditions of employment relevant to the notice she is entitled to be given on termination of her contract.  The respondent in his email of 29 August 2011 expected her to leave ‘immediately’ without any notice or notice pay in lieu.  He later told her solicitor the same thing and had the audacity to ask for the legislation she relied on so that he could check.  Even after withdrawing the offer, the respondent said he might agree but only if no notice payment was included.

 

64.     In respect of the Disciplinary sanction, again the tribunal determine that the respondent’s actions show a flagrant disregard of the statutory and contractual rights of an employee who is absent due to illness by seeking to have her medically examined without seeking consent and imposing a disciplinary sanction for no good reason.  In all the circumstances of this case, the tribunal unanimously find that the claimant was entitled to consider she was dismissed by reason of the respondent’s conduct.

 

 

COMPENSATION

 

65.     The claimant was aged over 21 years throughout her employment which was from October 2003 until October 2011, a period of eight years.

 

          Basic Award  =  £365.60  x  8  =  £2,924.80

 

66.     The claimant was unemployed for a period of 38 weeks from the date of termination to the date of hearing.  She made every effort to secure alternative employment and was offered employment on 23 May 2012, which commenced 1 June 2012.

 

          Compensatory Award  =  £295.15  x  39  =  £11, 510.85

 

          Loss of Statutory Rights  =  £300.00

 

          £2,924.80  +  £11,215.70  +  £300.00  -  Total Award  =  £14,735.65

 

Recoupment

 

67.     Your attention is drawn to the notice below which forms part of the decision of the tribunal.

 

          Prescribed period:     30 October 2011 to 1 June 2012

 

          Prescribed amount:   £3,224.80

 

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

 

 

 

Chairman:

 

Date and place of hearing:       22 and 23 May 2012, Belfast.

Date decision recorded in register and issued to parties:       

 

Case Ref No:    3021/11

 

CLAIMANT:                 Karen McPolin

 

RESPONDENT:           Clanrye Electrical Supplies Ltd

 

 

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.

 

 

          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.