Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 2422/12

 

 

CLAIMANT:                           William James Mackrel

 

RESPONDENT:                     Maine Tankers Ltd

 

 

 

 

DECISION

 

The unanimous decision of the tribunal is that, in regard to unfair dismissal and unlawful discrimination upon grounds of age, in respect of which claims a default judgement has been made against the respondent in favour of the claimant, the tribunal Orders the respondent to pay to the claimant in compensation the total sum of £68,632.49.                                                            

 

 

Constitution of Tribunal:

 

Chairman:                             Mr J V Leonard

 

Members:                             Mr P Archer

                                             Ms N Kearney

 

 

 

 

Appearances:

 

The claimant was represented by Mr B Cole, Solicitor, of Diamond Heron, Solicitors, who appeared on behalf of the claimant.

 

There was no appearance by or on behalf of the respondent.

 

 

REASONS

 

1.       This is a Remedies Hearing in the matter, a default judgment, in default of response, having been made by a Chairman of the Tribunal and dated 25 January 2013.  Accordingly the tribunal had to determine appropriate remedy in the matter. The claimant had made claims of unfair dismissal and of unlawful discrimination on grounds of age. Determinations were made in favour of the claimant by virtue of the said default judgment in regard to both of these respective claims.

 

 

 

 

 

 

 

THE TRIBUNAL’S FINDINGS OF FACT

 

2.       In consequence of the oral and documentary evidence adduced, the tribunal on the balance of probabilities determined the following facts material to the matter of remedy:-

 

          2.1     The claimant’s working career concerned trading in parts and spares in the fuel supplies business, throughout Ireland.  The claimant had commenced in this work as a self-employed person many years ago and he travelled in regard to these business activities throughout Northern Ireland and the Republic of Ireland and thereby he built up many commercial relationships and connections in the fuel supplies industry.  On 20 July 1998 the claimant commenced employment with Purfleet Commercials Limited (“Purfleet”). Purfleet was a company based in England, but which had decided to gain a commercial presence in Northern Ireland by employing the claimant, being aware of the claimant’s experience and commercial connections. The claimant’s post with Purfleet was a “van sales representative”.  It is understood that the claimant was the sole representative in Northern Ireland (and Ireland) for Purfleet.  The claimant appears to have had an entirely satisfactory working relationship with Purfleet and he found his work with Purfleet to be fulfilling and the working atmosphere congenial and rewarding.  The employment with Purfleet continued, without event, until the respondent company, Maine Tankers Limited, acquired the commercial operation of Purfleet in Northern Ireland.  This acquisition took place with effect from 20 January 2009; the claimant’s employment as a van sales representative transferred on that date from Purfleet to the respondent, Maine Tankers Ltd.

 

          2.2     Mr Stanley Gilmore and his son, Mr Matthew Gilmore, were the proprietors of the respondent company. The respondent’s manager was a Mr Terry Johnston. Mr Johnston proved to be, as far as the claimant was concerned, rather difficult to work with, being excessively critical in nature and of an abrasive character, in the claimant’s perception.  The claimant gave evidence to the tribunal that he was warned by a fellow employee (now deceased) to be careful in any dealings he had with Mr Johnston.  The claimant also gave evidence to the tribunal, which the tribunal accepted as being a truthful account of the claimant’s subjective impression, that the claimant had had earlier dealings with Mr Stanley Gilmore and Mr Matthew Gilmore and he had considerable misgivings and worries about the respondent, under this proprietorship, taking over the business previously carried on by Purfleet.

 

          2.3     The claimant was unable to provide the precise date that this specific incident occurred, but some time after the takeover of the employment by the respondent had taken place, Mr Johnston had a conversation with the claimant and Mr Johnston told him that he (Mr Johnston) considered that the claimant was too old to be driving a van.  The claimant was greatly concerned at this expression of opinion by Mr Johnston. He felt that he was being “edged out” of the business. His clear impression was that this attitude shown towards him was based upon a perception of the claimant’s age and upon the associated perception that the claimant was too old to be carrying out this job function which he had conducted over a considerable period of time.

 

          2.4     On account of this conduct by Mr Johnston and the general demeanour shown towards him of management, the claimant became more and more concerned about his position within the respondent company and the function of van sales representative, conducted solely by him. This continued worry and concern, the claimant stated to the tribunal, took a significant toll upon his general well-being and health. The tribunal accepted that this was the case, as far as the claimant’s subjective impression was concerned, but the tribunal was provided with no timeframe for any of this to assist in relevant determinations.  On 28 June 2012, the claimant suffered a significant health issue. He was immediately admitted to hospital where he was detained for a period of one week.  After medical investigation and tests, the claimant was discharged from hospital on 9 July 2012. He remained absent from work, certified as unfit, for a period of time thereafter.  The claimant’s daughter resides in Canada. The claimant and his wife had planned to visit Canada in August 2012.  The claimant remained off work, certified as unfit, and he was awaiting medical certification that he was fit to travel to Canada in July 2012. He kept his employer, the respondent, fully informed of the situation at the time. The claimant obtained approval from the respondent to visit Canada on foot of these pre-agreed arrangements. The claimant then obtained medical certification that he was fit to travel to Canada and he did so.

 

          2.5     When the claimant had asked the respondent for consent that he be permitted to visit Canada whilst on sick leave, the indication given to him by the respondent was that there was “nothing for him to do work wise”. The indication provided to him at the time was that the respondent did not seem to have any issue with the claimant visiting Canada whilst he was on sick leave. He was and he remained on statutory sick pay throughout this absence period from work, as there was no contractual sick pay arrangement.

 

          2.6     The claimant was due to return to work, by prior agreed arrangement, on Monday, 3 September 2012, following his return from Canada.  He made arrangements to meet with Matthew Gilmore on Friday, 31 August 2012. In the course of the arranged meeting Matthew Gilmore said to the claimant, “What are you going to do?”, thereby implying, as far as the claimant was concerned, that there was no work for him to do. Nonetheless, it was agreed that the claimant would return to the workplace on the following Monday, 3 September 2012.  Matthew Gilmore then sent a text message to the claimant on Sunday, 2 September 2012, stating that he wished to have a chat with the claimant.

 

          2.7     The claimant duly attended work on Monday, 3 September 2012 as agreed and Matthew Gilmore spoke to him and stated that he would have to speak further to his father, Stanley Gilmore.  The claimant was thereafter kept waiting for approximately three hours in the yard of the business premises without any work being provided to him or any communication. Both father and son walked past him on a number of occasions without speaking to him.  Stanley Gilmore eventually spoke with him and said to him, “You have been off work a long time, you can’t just expect to walk back in here”. The claimant replied that he had been off work sick but that he was now in and fit to work.  The claimant then asked about the van which he had used for his work, having noted that the van had been stripped of equipment and parts.  The claimant then asked about the possibility of using a small van as an alternative. In response, the claimant was told that this was not now an option.  Matthew Gilmore then asked the claimant to surrender his work phone and then the claimant was told by Matthew Gilmore to go home and that Matthew Gilmore would be in touch with him further, later. The claimant then left the business premises.

 

          2.8     There was no further contact made thereafter by or on behalf of the respondent save that the claimant returned briefly to the premises two days later to collect an old motor vehicle that he had stored there. In reply to a comment made by the claimant that it was by that stage Wednesday and the claimant wished to know what was happening, Matthew Gilmore stated to the claimant, “I could just tell you to f off”. The claimant then left the premises. Being very concerned at the situation, the claimant then approached the Labour Relations Agency.  Mr Jim McCracken from the Labour Relations Agency assisted the claimant in writing a letter, dated 6 September 2012, to the respondent, which the claimant duly did. That letter amongst other matters sought clarification concerning the claimant’s employment status.  There was no response to that letter. The claimant then wrote a reminder letter to the respondent dated 18 September 2012, again without any response. Mr McCracken then contacted the respondent on 12 October 2012 by telephone and Matthew Gilmore told Mr McCracken that the claimant had been “sacked”, which information was then communicated to the claimant by Mr McCracken. The claimant’s clear impression throughout all of these dealings was that the attitude shown to him by both Mr Gilmore Senior and Mr Gilmore Junior and also by Terry Johnston was on account of his age.  He felt that a younger person would not have been treated in the same manner as he had been treated and he felt that the respondent wished to get rid of him on account of his age.

 

          2.9     Because of the difficulties encountered at work at the time, the claimant states that he attended his doctor and that he received a certificate of unfitness for work, the reason for absence being stated by the doctor as “stress at work”. The tribunal did not have sight of that medical certificate. The claimant states that he received further certification of unfitness after this.  Regrettably much of this medical certification was not made available to the tribunal.  The three medical certificates (“Med 3 certificates”) that were indeed seen by the tribunal described the reasons, respectively, in the certificate dated 5 October 2012 as “work related stress” (certified for 4 weeks), in that dated 16 October 2012 (seemingly that being a duplicate certificate) “GI bleed” (a reference to the medical condition, in respect of which the claimant had originally become unfit for work in June 2012) (certified for 4 weeks from 3 August 2012), and in that dated 14 November 2012, “work related stress”, (certified for 2 weeks).  The tribunal, regrettably, was not provided with any evidence of General Practitioner’s notes and records, nor was there any medical report available to assist the tribunal either from the General Practitioner or indeed from any other medical practitioner.  However, the claimant’s own oral evidence was that he was still certified as being unfit to work at the date of the tribunal. The tribunal accepted this oral evidence as being truthful and accurate.  Notwithstanding the somewhat regrettable absence of proper medical evidence to inform the tribunal’s decision-making (and the tribunal did not quite understand why it had not been provided by the claimant's representative with such potentially material evidence), the claimant did give cogent and impressive evidence to the tribunal regarding the upset and anxiety caused by the manner of his treatment by the respondent.  The difficulty, nonetheless, faced by the tribunal in hearing this oral evidence is that, in the absence of specific and detailed expert medical evidence, it is somewhat difficult for the tribunal to endeavour to distinguish the claimant’s quite understandable anxiety and worry, very clearly expressed, arising from the specific (physical) medical condition which had indeed it seems caused the claimant first to go off work in late June (in respect of which there was no specific evidence whatsoever available) in contrast to any other evidence of anxiety and work-related stress that might have stemmed from the claimant’s treatment by the respondent and any unlawfully discriminatory conduct.  The state of the evidence was unhelpful; it did nothing to assist the claimant's case and nothing to aid the tribunal’s understanding of the nature and cause of any illness or illnesses suffered by the claimant and any specific connection or interrelationship between any diagnosed illness and work-related issues.  The tribunal will comment further upon that difficulty below.

 

          2.10    At the time of the termination of the contract of employment, 12 October 2012, the claimant had been employed continuously for 14 years. His gross pay was £491.60 per week and £376.00 nett per week.  The claimant was aged 66 years.

 

 

THE APPLICABLE LAW

 

3.       The Employment Equality (Age) Regulations (Northern Ireland) 2006 (“the Regulations”) are applicable.  The provisions of the Regulations material to this matter follow below.

 

                    Regulations 3 and 6, of the Regulations provide as follows:-

 

                  “Discrimination on grounds of age

 

              3.—(1) For the purposes of these Regulations, a person (“A”) discriminates against another person (“B”) if —

 

(a)    on the grounds of B’s age, A treats B less favourably than he treats or would treat other persons, or

 

                  (b)    A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same age group as B, but—

 

(i)       which puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons, and

 

(ii)      which puts B at that disadvantage,

 

                  and A cannot show the treatment or, as the case may be, provision, criterion or practice to be a proportionate means of achieving a legitimate aim.

 

(2) A comparison of B’s case with that of another person under paragraph (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

 

 

 

(3) In this regulation—

 

(a)   “age group” means a group of persons defined by reference to age, whether by reference to a particular age or a range of ages; and

 

(b)   the reference in paragraph (1)(a) to B’s age, includes B’s apparent age.

                 

 

              Harassment on grounds of age

 

6.—(1) For the purposes of these Regulations, a person (“A”) subjects another person (“B”) to harassment where, on grounds of age, A engages in unwanted conduct which has the purpose or effect of—

 

(a)    violating B’s dignity; or

 

(b)    creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

 

(2) Conduct shall be regarded as having the effect specified in paragraph (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of B, it should reasonably be considered as having that effect.”

 

 

As this is a matter where there has been no response, in the light of the default judgment made in default of response by a Chairman of the Tribunal and dated 25 January 2013, it is not necessary for the tribunal to consider issues of burden of proof and liability (see Igen and Others v Wong [2006] IRLR 258, McDonagh and Others v Hamilton Thom Trading as The Royal Hotel, Dungannon [2007] NICA and other cases). The only matter that falls for consideration, accordingly, is one of assessment of proper remedy.

 

 

              The Employment (Northern Ireland) Order 2003 ("the 2003 Order") amended the 2006 Order and included provisions, respectively, under Article 17(1) to (4), in relation to non-completion of statutory procedure: adjustment of awards by industrial tribunals and under Article 23, in relation to procedural fairness in unfair dismissal. The Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 also apply. Notwithstanding subsequent changes to the statutory provisions, the dismissal and disciplinary proceedings remain unchanged.   Part 1 of Schedule 1 provides for standard and modified dismissal and disciplinary procedures.  Article 17 (3) of the 2003 Order provides for an adjustment of compensation as follows:- “ If, ..... it appears to the industrial tribunal that— the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies, the statutory procedure was not completed before the proceedings were begun, and the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer to comply with a requirement of the procedure, it shall…. increase any award which it makes to the employee by 10 per cent and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50 per cent”. The jurisdictions to which that adjustment applies are set forth in Schedule 2 to the 2003 Order.

          It is not necessary to recite the law in regard to unfair dismissal.

              

THE TRIBUNAL’S DETERMINATION UPON THE MATTER OF REMEDY

 

4.               The tribunal in this matter notes that the claimant commenced in the business of van sales of parts and spares as a self-employed person.  He then became employed by the company, Purfleet Commercials Ltd, and he enjoyed it seems many years of congenial employment, experiencing as the tribunal understands it relatively good autonomy in this job; he seems to have become well-known and well-regarded in the business throughout Northern Ireland and the Republic of Ireland.  The claimant seems to have had some misgivings about the business of Purfleet Commercials Ltd being taken over by Maine Tankers Ltd on account of his prior knowledge of Messrs Gilmore, Senior and Junior.  However, he had no control over that matter. The business was duly taken over and his employment then transferred to Maine Tankers Ltd in January 2009.  He experienced difficulties with the respondent’s Manager, Terry Johnston.  On one occasion, Terry Johnston made a very clear and express reference to the claimant’s age which the claimant construed as an endeavour to discourage the claimant from continuing in this employment.  In the absence of any response from the respondent, the tribunal is deprived of any explanation for the respondent’s conduct towards the claimant.  However, the tribunal does take the claimant’s case at face value. There is a default judgement in the matter. The claimant's age certainly played a part and it was a factor in the treatment of the claimant by the respondent.  This of course is relevant to the matter of remedy, in the light of the default judgement upon any liability issues.

 

5.               The claimant’s case in regard to the matter of remedy, regrettably, has been in no way assisted by the failure on the part of the claimant's representative to adduce cogent and comprehensive medical evidence.  Such evidence might have related to the medical reasons for the claimant’s absence from work initially, in late June 2012, and might have commented upon whether this was entirely or to any degree at all caused by the situation of stress and difficulty which the claimant states he experienced at work.  There is however no technical evidence that there was any link between the two, whatever might have been the claimant's subjective impression as voiced to the tribunal.  The claimant’s own evidence was that he had a significant medical condition which caused him to go off work at the end of June 2012. He appears to have attributed that to stress.  Thankfully, after medical tests, this condition proved not to be as serious as he had first thought.  It would of course be an entirely speculative exercise on the part of the tribunal, in the absence of any expert evidence, to attempt to assess what effect, if any, work related stress and anxiety might have caused or contributed to that specific condition. However, the tribunal certainly accepts that the claimant was concerned at the work situation and felt at the time that he was being “edged out” of this employment on account of his age. 

 

6.               There is no evidence that the claimant was still unfit to return to work upon his return from Canada and upon the agreed return to work date, this being 3 September 2012.  However, when the claimant endeavoured to return to work on the date agreed he was treated in an entirely discourteous and unacceptable manner by both Stanley Gilmore and Matthew Gilmore.  He was eventually sent home from work that day and he was told that the employer would contact him further.  However (leaving aside the brief exchange on the following Wednesday when the claimant called to collect his motor vehicle) the respondent failed to do so and indeed failed to reply to his letters. Matthew Gilmore only notified the Labour Relations Agency on 12 October 2012 that the contract had been terminated and that the claimant had been “sacked”.  The employment was accordingly terminated without notice and without wages in lieu of notice. The claimant was receiving statutory sick pay at that time, which he had been in receipt of since he first went off on sick leave at the end of June 2012.

 

7.               The tribunal has noted the evidence available from the three medical certificates provided. These certificates are the only evidence of a medical nature in the case. The certificates do provide some evidence, at least as far as two of these are concerned. These two certificates constitute some rather sparse evidence that the claimant's absence, at least for part of the time, was due to “work-related stress”.  The tribunal must accept that evidence at face value, in the absence of anything further and nothing to controvert that.  The tribunal has no doubt, from the claimant’s oral testimony, that the claimant suffered a degree of injury to feelings. The tribunal has heard and has carefully noted the claimant’s oral evidence in that regard, the evident upset and hurt arising from that evidence being fully accepted as being accurate and truthful and given without obvious embellishment. 

 

8.               After the dismissal, the claimant took the course of not endeavouring to secure employment. Instead the claimant set his sights upon making plans, having purchased a van, to endeavour to re-enter the world of
self-employment in his chosen business.  He felt that he had maintained sufficient contacts and connections stemming from his long history of employment in the industry, to place him in a position to endeavour to regain some business. His evidence was that he was intending to attend a trade show some two or three days after the conclusion of the tribunal hearing.  He stated that he hoped this might launch him again into business, although it is to be noted that there was no certainty of potential for success nor of any earnings which might have resulted from his venture into self-employment in the future.

 

9.      The tribunal considered the matter and determined that it would be just and equitable to award financial compensation and that no other element of potential remedy available was applicable in the circumstances of the case. There is no evidence that there was any manner of a genuine redundancy situation, in the absence of anything from the respondent.  Therefore it must be assumed that the claimant would have continued in employment with the respondent, had he not been dismissed in this manner, for a period of time thereafter. What is clear is that the claimant’s loss of earnings from 3 September 2012 up to 12 October 2012, a period of six weeks, was covered by statutory sick pay.  Nonetheless, had it not been for the manner of treatment of the claimant by the respondent, the tribunal accepts that the claimant would otherwise have been quite fit to return to work on 3 September 2012.  He would have continued in normal employment with the respondent and he would not have been in receipt of statutory sick pay up to the date of dismissal.

 

10.     The aim of any remedy is to put the claimant in the position he would have been in had the act of discrimination not occurred (see Ministry of Defence v Cannock [1994] IRLR 509 EAT) and compensation is to compensate for the loss suffered thereby. Loss of earnings might be limited if there existed evidence that the claimant might have been dismissed for lawful reasons in any event (see O’Donoghue v Redcar & Cleveland Borough Council [2001] IRLR 615). However, there was no clear evidence of that being the case in this matter (but see further below). The loss sustained must be causally connected to the act or acts of discrimination. In determining losses flowing from a discriminatory dismissal the tribunal has to determine what might have happened if the claimant had not been dismissed in the discriminatory manner that has occurred in this case (see Abbey National Plc v Chagger [2010] ICR 397). The claimant must not however be compensated for the same loss twice. A basic award for unfair dismissal does not overlap with compensation for discrimination, but rather is a separate award. The same applies to pay in lieu of notice. No award in the tribunal’s determination applies for loss of statutory rights under these circumstances. In this case where the claimant has succeeded in both unfair dismissal and age discrimination claims, the award is properly to be made under the discrimination legislation so that the claimant is compensated in full for his loss (see D'Souza v London Borough of Lambeth [1997] IRLR 677 EAT). All of these foregoing principles are reflected in the computation of loss set forth below.

 

11.     The claimant’s loss throughout the period from 3 September 2012 up to 12 October 2012 would have been the difference between his normal nett pay and the statutory sick pay actually received.  In respect of the period beyond 12 October 2012, the claimant would be entitled to compensation throughout the period of assessed loss. The tribunal's determination is that this period would extend up to the date of tribunal hearing, 16 April 2012. Further to that, the tribunal assesses the period of future loss at a period of one year thereafter.   This determination of such a period of future loss is for the reason that the tribunal believes that it is proper to make the reasonable assumption that the employment would have continued for a further period of one year before it might have otherwise been fairly and properly brought to an end by the employer. Whilst, as mentioned above, there is no clear and compelling evidence that there was any manner of a genuine redundancy situation existing at the time of the dismissal, in the absence of anything from the respondent, nonetheless the evidence generally appears to suggest that the respondent was endeavouring to change the basis upon which it conducted that specific aspect of the business which concerned the claimant. However, there is no means of knowing with any degree of certainty what would have been the outcome of any fair and proper dealings with the claimant and concerning his post of employment. As a consequence, the tribunal, of necessity, must make that assessment, and not without some difficulty, upon the basis of any information available to the tribunal and the tribunal thus assesses the applicable period as being one year.

 

12.     This is a case where the dismissal was summary and without notice and an award is due under that heading. The termination of employment was conducted in an arbitrary, high-handed and arguably an oppressive manner, by the employer. Under the Industrial Tribunals (Interest on Awards in Age Discrimination Cases) Regulations (Northern Ireland) 2006, a tribunal may include interest on the award made. The rate is currently 8%. The interest set out below is calculated accordingly. The statutory uplift for non-compliance with applicable procedures of the 2003 Order is also applied in the computation of loss set out below, under the provisions mentioned above and for the reasons stated.

 

13.           In regard to the matter of injury to feelings, the tribunal has noted the submission made by the claimant’s representative that there ought properly to be such an award.  The tribunal's determination is that this is a suitable case for an award for injury to feelings.  Having heard the claimant’s evidence (and having noted the somewhat sparse documentary evidence of a medical nature) and having assessed the case by applying the material considerations, the tribunal's determination is that it is appropriate to award compensation for injury to feelings in this case, taking account of the “mid-band” range of Vento (see Chief Constable of West Yorkshire Police v Vento (No.2) [2003] IRLR 102 CA as adjusted in the case of Da' Bell v NSPCC [2009] UKEAT 0227_09_2809).  The “mid-band” of Vento, as adjusted, currently stands in the range of £6,000 to £18,000. The tribunal determines that the appropriate award figure, upon the facts, is £10,000.00, which figure is included in the computation of award set forth below. There is no evidence to support any additional award for personal injury (psychiatric damage) nor does the tribunal make any award for aggravated damages.

 

14.           In regard to the matter of interest upon the award for injury to feelings, that is properly to be computed from the date of unlawful discrimination to the calculation date. In the absence of any more precise evidence to assist the tribunal (for regrettably the tribunal was not provided with any evidence of the precise date or dates that any specific discriminatory incident or conduct occurred), the tribunal cannot engage in pure speculation and thus cannot conclude that the appropriate date for commencement of interest for injury to feelings precedes the date upon which the claimant first went off sick, that date being 28 June 2012. The remainder of the compensation (aside from that for injury to feelings) attracts interest from the mid-point date between the date the discrimination began (again assessed, for the reason stated above, as 28 June 2012) and the date of calculation.

 

15.     Concerning the matter of appropriate statutory uplift under Article 17 (3) of the 2003 Order, taking account of the applicable principles in that respect and taking heed of determined cases providing guidance to this tribunal (see in that regard Cex v Lewis [UKEAT 0013/07, Metrobus v Cooke [UKEAT 0490/06], Butler v GR Carr (Essex) Ltd [UKEAT 0128/07], Aptuit (Edinburgh) v Kennedy [UKEATS 0057/06], and McKindless Group v McLaughlin [UKEATS0010/08]), the tribunal determines that this is a matter where a decision was taken to dismiss the claimant entirely in disregard to these essential statutory procedures.  In the absence of the respondent, the tribunal is unable to explore why that is the case more fully. In the EAT case of Brown v Baxter (t/a Careham Hall) UKEAT/0354/09/SM the Employment Appeal Tribunal held that in a case where there has been a complete failure to comply with the statutory dismissal procedures the level of uplift should be generally between 30 and 50 per cent. The tribunal determines, in the absence of any further evidence as to why the procedures were not complied with and generally under such circumstances, that the statutory uplift which ought to be applied is 30%. Accordingly a figure of 30% uplift is applied to the computation of the award that is set out below.

 

16.   The tribunal is obliged to consider the matter of income tax upon the award and “grossing up” (see British Transport Commission v Gourley [1956] AC 185 and Shove v Downs Surgical Plc [1984] IRLR 17). Injury to feelings awards (upon best interpretation of present authority) do not attract income tax in the specific circumstances of this case and so may be left out of the reckoning. The remainder of the compensatory award (including interest and after statutory uplift) set forth below amounts (without grossing up) to £43,792.08. The first £30,000 is, upon the facts of this matter, exempt from tax in accordance with Ch.3 Pt.6 of the Income Tax (Earnings and Pensions) Act 2003. The excess over £30,000, being the sum of £13,792.08 (without grossing up), is taxable. The tribunal’s determination is that this ought properly to be grossed up to take account of taxation; this grossing up is accordingly mentioned below. Without any evidence being adduced as to the claimant’s personal tax position in the relevant tax year (2012 - 2013) the tribunal, in the absence of anything further, takes note of the personal allowance for that tax year being £10,500.00  (for those aged between 65-70, as was the claimant). The lower tax rate applicable is 20% for amounts under £34,370.00. The excess amount, taxable at 20% for grossing up purposes, is therefore £13,792.08, less personal allowance of £10,500 = £3,292.08, to be grossed up.

 

17.     The tribunal computes loss accordingly as indicated below:-

 

	(a) Basic Award:    £430.00 (maximum amount) x 21	=	£9,030.00
	(b) Pay in lieu of notice £376.00 x 12	=	£4,512.00
	(c) Compensation for loss of employment from 3 September 2012 to 12 October 2012, (six weeks £376.00  x  6)   (d) Less statutory sick pay received (six weeks £81.60 x 6)  (£489.60)	=       =	£2,256.00         £(489.60)
	(e) Compensation for loss of earnings to date of tribunal (12 October 2012 to 16 April 2013:         26 weeks x £376.00)	=	£9,776.00
	(f) Future loss:   52 weeks  x  £376.00	=	£19,552.00
	(g) Injury to feelings:	=	£10,000.00
	(h) Interest at 8% per annum from 28 June 2012 to 16 April 2013 (292 days) on injury to feelings award of £10,000	=	£639.99
	(i) Interest at 8% per annum from 21 November 2012 (mid-point date) to 16 April 2013 (146 days) on items (c), (less (d)) and (e) above totalling £11,542.40	=	£369.36
	(i) Statutory uplift under Article 17 (3) of the 2003 Order at 30% on items (c), (less (d)), (e), (f) and (g) above totalling £41,094.40	=	£12,328.32
	Balance	=	£67,974.07

 

                  

                   Add additional sum for grossing up

                   (20% on £3,292.08 of the award)                                             =         £658.42

 

           

           TOTAL AWARD = £68,632.49

 

 

18.        The Employment Protection (Recoupment of Job Seeker’s and Income Support) Regulations (Northern Ireland) 1996 do not apply in this matter.

 

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

 

 

 

 

 

 

Chairman:

 

 

Date and place of hearing: 16 April 2013, Belfast

 

 

Date decision recorded in register and issued to parties: