Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2013/2251_11IT.html
Cite as: [2013] NIIT 02251_11IT, [2013] NIIT 2251_11IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 2251/11

CLAIMANT: Ann Porter

RESPONDENT: Amstecos Ltd, t/a Parkdean Nursing Home

DECISION ON REVIEW

It is the unanimous decision of the tribunal that the tribunal refuses the application for review of the respondent.

Constitution of Tribunal:

Chairman: Ms W A Crooke

Members: Mrs M E Torrans

Mrs C Lewis

Appearances:

The claimant was represented by Ms Suzanne Bradley, Barrister-at-Law, instructed by Worthingtons Solicitors.

The respondent was represented by Ms Lynn Sheridan of Peninsula Business Services Ltd.

THE NATURE OF THE APPLICATION

1. The application to the tribunal for review on behalf of the respondent was dated 14 November 2012, based on the interests of justice requiring a review and covered the following categories:-

(1) The injury to feelings award.

(2) The question of contributory fault.

2. The claimant’s response to the application was dated 8 January 2013.

THE INJURY TO FEELINGS ELEMENT

3. Basically, the contention on behalf of the respondent was that the tribunal was not entitled to award compensation including compensation for personal injuries and injury to feelings after the claimant’s dismissal. In paragraph 59 of the decision, the tribunal found that the claimant was “undoubtedly devastated by what happened in or around the conclusion of her employment with the respondent”. We do not consider that this finding is inconsistent with the evidence before us in the hearing of the claimant’s claim which was that she suffered treatment from the respondent during the period from 13 June 2011 up to and including notification of her dismissal to her by letter from the respondent dated 5 July 2011. The tribunal once again considers that the events which gave rise to the award for injury to feelings happened and were ongoing within the short timescale from and including 13 June 2011 to 5 July 2011.

INTEREST

4. Essentially, the respondent’s contention in this area of the application was that the tribunal was wrong in awarding interest on the injury to feelings claim. The basis for this contention was that there was no statutory right to do so within Article 70B and the following Articles of the Employment Rights (Northern Ireland) Order 1996. Whilst Ms Bradley on behalf of the claimant did not dispute that this was the case she pointed out that the statutory provisions had been amended by the decision of Mr Justice Underhill in the case of Shaw v Commissioner of Police of the Metropolis 2012 IRLR 291. In this case, Mr Justice Underhill set out guidance for the determination of compensation of damages in a “whistle blowing claim“.

“We should start with a preliminary point. In Virgo Fidelis Senior School v Boyle [2004] IRLR 268. This tribunal (Judge Ansell) presiding held that the approach to the award of compensation for unlawful detriment under Part 1VA of the 1996 Act should be the same as is applied in cases of unlawful discrimination, notwithstanding the difference in the relevant statutory provisions: see paragraphs 43 to 45 (PP.274-275). The subjecting of the claimant to the detriment is to be treated as a statutory tort, attracting an entitlement to compensation with so called “injury to feelings” and, in an appropriate case, aggravated damages. It was not contended before us that Virgo Fidelis was wrongly decided on this point, and we are content to follow it. We will henceforth for convenience use of term “discrimination” to cover cases both of discrimination stricto sensu and of detriment such as that with which we are concerned here”.

On the basis of this authority, Ms Bradley argued and we accept her argument that the tribunal applied the correct approach by awarding interest in the same way as it would do in a discrimination case.

CONTRIBUTORY FAULT

5. On behalf of the respondent it was argued that whether or not the respondent raised the argument of contributory fault, the tribunal should have done so of its own motion. Ms Sheridan went on to contend that the claimant’s act of taking the photograph of the patient could be considered as blameworthy conduct to bring the case within the terms of Nelson v BBC (No 2) [1990] ICR 10. Although it was not contended that the matter had been raised with the claimant to give her an opportunity to comment on the allegation of contributory fault, it did feature in Ms Sheridan’s submissions to the tribunal at the close of the case. The tribunal did have the opportunity to consider contributory fault, did not find this issue arose in its decision. We therefore reject this contention.

6. However, the tribunal found that the claimant made a protected disclosure which was the reason for her dismissal. On the basis of that finding Ms Bradley argued that if an employee is to be culpable, if he is automatically unfairly dismissed his conduct is given special statutory protection and so it cannot constitute blameworthy conduct to attract a finding of contributory fault. The tribunal was not presented with any reason on behalf of the respondent to upset its finding that the allegation of gross misconduct made by the respondent against the claimant was a manufactured allegation to offset her protected disclosure. We do consider that this matter has been fully ventilated before us, and we have not heard anything new to upset our findings on this point.

7. Finally, Ms Sheridan added to the application by saying that the illness of the claimant’s husband was a contributory factor in her mental condition and this should have been considered by the tribunal in deciding upon the award for injury to feelings.

Whilst the claimant’s husband’s illness was referred to a number of times during the hearing, if the respondent really considered that this was a factor that should have been considered by the tribunal, then the tribunal considers that the appropriate course of action would be for the respondent to have required Dr Sharkey to be called to give evidence about this matter. The tribunal would then have had the opportunity to hear his evidence under cross-examination in connection with this particular allegation that compensation for injury to feelings should have been apportioned between the respondent’s treatment of the claimant and the claimant’s feelings in connection with her husband’s illness. As this did not happen, the tribunal does not consider that such an apportionment should take place at this late stage without the benefit of hearing Dr Sharkey’s evidence on this matter. For all of the foregoing reasons we do not consider that the interests of justice require that the matter be reviewed. We refuse the application for review.

COSTS

8. There was an application for costs made on behalf of the claimant against the respondent on the ground that the application was misconceived. We are not able to agree. Many of the respondent’s contentions appear to be concerning alleged errors of law. As such Ms Bradley contended these were not matters for this tribunal. As Browne-Wilkinson J pointed out in Trimble v Supertravel Ltd [1982] IRLR 451 there is no basis for the view that only minor errors of law fall to be corrected on a review under the category of the interests of justice requiring a review. We refuse the application for costs.

Chairman:

Date and place of hearing: 10 January 2013, Belfast.

Date decision issued to parties:

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