Industrial Tribunals Northern Ireland Decisions

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1594/11

CLAIMANT: Adrian Hines

RESPONDENT: Brinks Ireland Ltd

DECISION

The decision of the tribunal is that the claimant was expressly, deliberately and unfairly dismissed on the 15 April 2011. The tribunal affirms the 50% uplift of the compensatory award in accordance with the Employment Rights (Northern Ireland) Order (Dispute Resolution) Regulations (Northern Ireland) 2004.

Constitution of Tribunal

Chairman: Mrs A Wilson

Panel Members: Mr J Hughes

Mrs P Weir

Appearances:

The claimant was represented by Mr Barry Mulqueen BL, instructed by Francis
Hanna and Company, Solicitors.

The respondent was represented by Ms Emma Dellow Perry BL, instructed by
Arthur Cox and Company.

1. This decision follows a hearing reconvened in accordance with a Court of Appeal Decision referring matters back to the tribunal for consideration. The issues to be determined are:

(i) What was the date of the claimants dismissal?

(ii) Was the claimant expressly and deliberately dismissed by the respondent or

was the employment contract repudiated by the employer in circumstances

amounting effectively to constructive dismissal?

(iii) If the claimant was constructively dismissed the award of compensation is to be reduced by the amount of £15,283.84 being the amount awarded in respect of an uplift of the compensatory award in accordance with the Employment Rights (Northern Ireland) Order (Dispute Resolution) Regulations (Northern Ireland ) 2004.

(iv) If the tribunal finds that the claimant was unfairly dismissed, the amount awarded in respect of the uplift must be revisited and full reasons given for any amount awarded in respect of uplift.

(v) The claimant applies for costs incurred in respect of a hearing convened for case management purposes. The tribunal has received written submissions relative to this application and a decision on this issue will issue separately.

The Hearing

2. On behalf of the respondent the tribunal considered the sworn testimony of John Campbell General Manager of Brinks (Ireland) Ltd and of Mark Jordan, Human Resources Director of Brinks (Ireland) Ltd.

3. On behalf of the claimant the tribunal considered the claimant’s own evidence.

4. The tribunal considered documents referred to it during the course of the hearing together with written submissions. The tribunal also relied upon unchallenged findings of fact recorded in its original decision dated the 30 November 2012.

Findings of relevant fact

5. During a meeting on the 31 March 2011 attended by Mr Jordan, Mr Campbell and the claimant, the claimant was informed by Mr Jordan that his last day as a Brinks employee would be Friday 15 April 2011 (page 75 of the bundle). He was also informed that on 15 April 2011 he would transfer under TUPE and that after 15 April all issues would be between himself and RMS (page 76 of the bundle).

6. In its response to proceedings at paragraph 9 the respondent indicated that Mr Jordan, in a letter dated 11 April 2011 to RMS, informed them that the claimant would report for work with them on 15 April. This was recorded in a letter signed by Mr Jordan and dated 11 April 2011 (page 91 of the bundle). Mr Jordan informed RMS that employees (to include the claimant) were informed to report for work after 15 April.

7. In a letter dated 11 April 2011 from Mr Jordan to Michael Mulholland of the GMB union, Mr Jordan advised Mr Mulholland that the claimants employment would transfer over to RMS on 15 April.

8. By letter dated 12Apr11 2011 Jean Hilliard of RMS notified Mr Jordan that RMS remained of the view that TUPE did not apply and specifically requested that Brink’s employees were not to be instructed to report to RMS on Friday 15 April.

9. During a meeting on 14 April 2011 (pages 100 to 104 of the bundle) attended by the claimant, Mr Campbell and Mr Mulholland, Mr Campbell stated that as far as the respondents were concerned the claimant “transfers to RMS from tomorrow” ie 15 April 2011.

10. The claimant reported for work as usual on 15 April 2011 and prior to leaving early at the invitation of the respondent surrendered (at the request of the respondent) his employee ID, the SIM card for his mobile phone and the keys to the company van. He was then escorted off the respondent’s premises.

11. The 15 April 2011 was a Friday and the claimant was not rostered to work over the weekend. However Mr Jordan was pressed under cross examination for evidence so as to inform a determination that the claimant remained an employee of Brinks until 18 April and no such evidence emerged. Rather the tribunal found Mr Jordan to be hostile, argumentative and evasive on this point.

12. The tribunal considered Mr Campbell’s evidence on this point but found no compelling evidence of employment continuing after 15 April.

13. Having considered the evidence, including the recited factors and in reliance particularly on the documentation furnished, the tribunal finds that the claimant was dismissed on 15 April 2011.

14. Having found that to be the case the tribunal proceeded to consider whether the claimant was expressly and deliberately dismissed or whether there was a repudiation of the employment contract by the respondent entitling the claimant to treat the contract as at an end.

15. At all material times the claimant queried the applicability of TUPE and it was his firmly held belief at all times that TUPE did not apply. His belief was an informed belief following personal research and contact with the LRA. He demonstrated a willingness to engage relative to the applicability of TUPE by repeatedly asking the respondent for reasons as to why they maintained TUPE to apply and asking for a meeting with legal representatives. The respondents did not engage with him on any meaningful level relative to the TUPE arguments. Any response from them was in general terms (paragraph 22 of the original decision refers).

16. The claimant was strengthened in his view that TUPE did not apply by the fact that he had no approach from RMS as he would have expected had they intended to accept him as an employee under TUPE. By way of example he was not contacted for the purposes of ID or a uniform. Notwithstanding this he attended the offices of RMS on 18 April. The tribunal having carefully considered and evaluated his evidence is satisfied that he attended in the very faint hope

that his contract of employment had transferred and not in any genuine expectation that it had.

17. The respondent argues that mistaken legal advice informed their view that TUPE applied. The tribunal considered the advice referred to in its generality by Mr Mulqueen and more specifically by both representatives.

18. The respondent was advised on 24 March 2011 to revert to the employees asking why they feel TUPE applies”. The tribunal has no evidence to suggest that this was done.

19. On 13 April 2011 the possibility of a transfer to Bank Machine as opposed to RMS was raised by the respondent’s legal advisors. There is no evidence that meaningful consideration was given to this as a possibility. Mr Jordan rejected it as a possibility for operational reasons and said “lets take this to tribunal”. Two days later the claimant was dismissed despite the clear lack of certainty raised by the respondent’s advisors.

20. On 13 April the respondent was advised that the position relative to TUPE was “shakey”. This was not taken on board by the respondent.

21. On 14 April 2011 Mr Jordan was advised to “update Adrian on what is happening, best that he hears it from us and not AMS”. The tribunal has no evidence that the claimant was updated in accordance with this advice. The claimant was not advised that RMS maintained the position that TUPE did not apply or of their correspondence dated 12 April indicating that employees should not be instructed to report to RMS on Friday 15 April 2011 (paragraph 15 of the original decision refers). Mr Jordan wrote to the claimant on 15 April advising him to report to RMS in express contravention of the instruction he had received from RMS.

22. On 14 April the respondent’s advisor Noeleen Farnan recognized and recorded that “as from tomorrow ie the 15 April the respondent had two employees with nowhere to go’ The tribunal has no evidence to suggest that this was taken on board by the respondent.

23. On 14 April Mr Jordan was advised by his advisors to hold off “the transfer” until the matter of TUPE was resolved. He was also advised to make staff aware of the situation. There is no evidence that staff were made aware of the situation in accordance with this advice and all decisions including the decision not to hold off any transfer was taken by the respondent for operational reasons.

24. The tribunal is satisfied on the evidence that on 15 April the respondent as a reasonable employer was, or certainly should have been, reasonably aware that the TUPE position was at best uncertain. Notwithstanding this a decision was taken to dismiss the claimant and to instruct him to attend at the offices of RMS

on the 18 April.

25. The respondent is a large employer. Mr Jordan heads up its human resources department. He acknowledges that TUPE situations can be and frequently are difficult. He knew that RMS were resolute in their case that TUPE did not apply. He was specifically and categorically instructed not to send employees to RMS. He was advised by his legal team to delay the transfer and that the position relative to TUPE was “shaky”. He was advised that Bank Machine were potentially a transferee in the event of TUPE. He ignored all advice relative to employment matters and was influenced at all material times by operational concerns.

26. The tribunal is satisfied on the evidence that the respondent intended to dismiss the claimant on 15 April 2011 and in so doing anticipated consequences but was prepared to and anticipated dealing with those at tribunal.

27. The tribunal proceeded to consider the uplift of the compensatory award.

28. The tribunal has no evidence to justify an uplift award of less than 10%.

29. The tribunal considered whether uplift beyond 10% is just and equitable in all the circumstances of this case and if so how much that award should be on just and equitable grounds.

30. The respondent did not carry out any of the three step statutory mandatory requirements in accordance with Schedule 1 of the Employment Rights (NI) Order 2003. This was entirely attributable to fault on the part of the respondent. No fault at all can be attributed to the claimant.

31. The respondent is a large employer (paragraph 5 of the original decision refers). It had over 150 years trading experience and it is reasonable to assume that it has over 150 years employment experience. It has a Human Resources Department headed by Mr Jordan who is experienced in such matters. It is Mr Jordan’s evidence that he has extensive experience of employment law and in particular of TUPE.

32. The tribunal relies on findings recorded above of advice from advisors not being followed relative to the possibly of TUPE not being applicable. Mr Jordan knew or plainly should have known that if TUPE did not apply then any dismissal of the claimant had to be fair both in terms of the reason for that dismissal and in the procedures to be followed. No procedures relative to dismissal were followed.

33. The position adopted by Mr Jordan seems in the opinion of the tribunal to have been informed almost exclusively by operational concerns and no meaningful consideration whatever was given to the claimant or his employment rights. By way of example the claimant was callously informed to report to RMS in the certain knowledge that RMS were not accepting of the TUPE argument and the

tribunal find that Mr Jordan must have known that the claimant would be sent away by RMS and that this would be a humiliating experience. However operationally it suited the respondent.

34. The respondent became aware that they lost the Bank of Ireland contract in January 2011. It had 3 months in which to get its house in order. It is the view of this tribunal that during that period there was no meaningful engagement with employees and the respondent was intransigent in its stance relative to TUPE notwithstanding advice raising uncertainties. The emphasis appears at all material times to be on operational concerns to the detriment of employee’s rights.

35. Mr Jordan as evidenced by correspondence furnished was content to let matters be determined at tribunal level rather than addressing required issues of employment law in the event of TUPE not applying. The tribunal finds his attitude to employment rights to be flippant in this regard.

36. In all the recited circumstances the tribunal finds that the failure to follow procedures was deliberate, inexcusable and callous in an organization the size of the respondents with a dedicated HR department.

37. The tribunal sanctions the uplift award of 50%.

Chairman:

Date and place of hearing: 22 and 23 August 2013, Belfast.

Date decision recorded in register and issued to parties:

SCANNED/CONVERTED COPY