Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2013/329_13IT.html
Cite as: [2013] NIIT 329_13IT, [2013] NIIT 00329_13IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 329/13

CLAIMANT: Michaela Carr

RESPONDENT: Lush Retail Ltd

DECISION

The decision of the tribunal is that the claimant was unfairly dismissed. In addition, the respondent failed to follow the proper statutory disciplinary and dismissal procedures and accordingly I order that the compensatory award shall be uplifted by 30%. I order the respondent to pay the claimant the sum of £6,519.64 as set out at paragraph 16 below.

Constitution of Tribunal:

Chairman (sitting alone): Ms E McCaffrey

Appearances:

The claimant appeared in person.

The respondent did not enter a response and was debarred from being represented at these proceedings.

ISSUES

1. The claimant worked for the Newry branch of the respondent firm at Quays Shopping Centre from 26 August 2010 until she received a letter of dismissal on 17 November 2012. Although she had initially been contracted to work on a part-time basis for eight hours a week, she in fact generally worked considerably more than this. She was then studying as a full-time student and worked for the respondent in the evenings, at weekends and during her college vacations. She was paid £6.33 per hour.

2. After graduation in the summer of 2012, she had been asked by her manager Anne-Marie McArdle if she could work additional hours. The claimant had an excellent sales record with the respondent and she was happy to take on additional hours. This meant that she worked full-time through July, August, September and October while seeking other full-time employment. She was not able to produce payslips but produced bank statements showing that her take home pay for August was £897.72, for September was £855.94, her pay for October was £804.66 and her pay for November was £466.22. This final amount of pay included notice pay, based on her basic hours per week.

3. In early November 2012 the claimant was successful in obtaining employment as a Classroom Assistant for special needs children at St Patrick’s Grammar School in Newry. She was offered the post on 9 November and was required to start work almost immediately. She went to the respondent’s premises the same day to speak to her manager and explain the situation to her as she knew that the rota for shifts had been made up for the next two weeks. The claimant’s new post was a temporary one, and she therefore wanted to explain to the manager that she was keen to keep up the permanent job she had with the respondent as well, although she would not be available for as many hours as previously.

4. In the event, Anne-Marie McArdle, the manager, was not available that day and the claimant spoke to the Assistant Manager, Louise, who said that she would be able to get others to cover the claimant’s shifts for the next two weeks and the claimant could work on the weekend shift she was due to work. The claimant was clear that she had indicated to Louise that she wished to continue working for the respondent. On Sunday, 11 November, when the claimant was at work for Christmas training, Anne-Marie McArdle called her to one side and said to her that she would speak to payroll about the claimant’s hours. The same day however Miss McArdle sent the claimant home early because she was wearing dark navy blue trousers as opposed to black trousers, which was the usual uniform.

5. The following week the claimant received a telephone call from Louise regarding her being rota’ed to work the following Sunday (18^th). The claimant indicated that from her manner, Louise made it clear that she did not really want the claimant to come into work and said that she did not have to come in if she did not want to. When the claimant telephoned head office about this matter to seek advice, the person she spoke to indicated that she should speak to her manager and explain the situation. The claimant however did not have the opportunity to do this. On 17 November she received a dismissal letter dated 14 November from Ms McArdle. The letter said that the claimant had now “changed availability” due to her securing a full-time role with another company. Ms McArdle indicated that she was unable to fulfil the claimant’s contracted hours on her new requested hours of Thursdays and Friday evenings and weekends only. The letter concluded that Ms McArdle would arrange for the claimant to be paid a month’s notice but would not require her to come to work. She would also be paid outstanding holidays due. The claimant noted however that on the Facebook page for the respondent’s Newry store, they advertised for staff coming up to Christmas on a number of occasions and advertised again in March 2013, April and May 2013. The claimant had had an excellent work record with the respondent and achieved high sales figures.

6. The Newry store was open Monday to Thursday from 9.00 am to 6.00 pm and until 9.00 pm on Thursdays and Fridays. The store was open from 8.30 am to 6.30 pm on Saturdays and 12.00 noon to 6.00 pm on Sundays. The respondent did not make any attempt to meet the claimant to have any discussions with her or to negotiate any change to her shift pattern of eight hours per week.

7. The claimant’s evidence was that while working for Lush she normally worked the full Christmas and Easter vacations and during the summer holidays. She also indicated that she had made it clear to the employer that her job as a Classroom Assistant would involve term time working, so that she would be free over the Christmas holidays. Her initial classroom assistant’s post was temporary and ran to January 2013. At that stage the claimant re-applied and was appointed to the post until June 2013. At the date of the tribunal, however, her job as a temporary Classroom Assistant had ended, and she was seeking other employment. She was also however studying full-time for a PGCE and therefore was not in receipt of any benefits.

8. On the basis of the evidence given, I find that the claimant was unfairly dismissed from her employment, contrary to Article 129 and following of the Employment Rights (NI) Order 1996. I also find that the dismissal was automatically unfair, contrary to Article 130A of the 1996 Order as the respondent completely failed to follow the statutory disciplinary and dismissal procedures.

9. To reach a decision about the correct amount for the basic award, I note that from August to November 2012 the claimant was paid on average £800.00 per month (net). Taking the 15 weeks from 1 August until the claimant finished employment, I have calculated her net average pay to be £202.96 per week. On this basis and on the basis that tax and national insurance were payable, the claimant’s gross pay would have been approximately £222.00 per week (from information obtained on the internet).

10. The claimant was aged 21 at the date of dismissal. She had two years’ service, both under the age of 22 years, her basic award therefore is as follows:-

£222 x 1 = £222

11. The claimant understands that she was paid a month’s notice pay on the basis of her contracted hours of eight hours per week. Her pay for an eight hour shift at £6.33 per hour was £50.64 and she therefore received £202.56 (gross) by way of notice pay. Tax and National Insurance was however deducted from this.

12. I calculate the compensatory award as follows. Because the claimant did not have payslips available, I am not clear what her gross and net pay would have been. However, as she had other work, I assume that she would have been liable for basic rate tax and national insurance.

The claimant advised that she worked the Christmas holidays and Easter holidays while she was at University, on an average of 30 to 40 hours per week. She said that the Christmas break was usually four weeks and the Easter break two weeks. However, if she was working at a school, the Christmas holidays were probably only two weeks rather than four. I have calculated the compensatory award on the basis that she would have worked two weeks at Christmas and two weeks at Easter for an average of 30 hours per week. Accordingly, this element of the compensatory award totals 30 x 4 x £6.33 gross = £759.60 gross, approximately £700 net.

13. Assuming that the claimant worked eight hours per week for the other weeks from November 2012 up to the end of June 2013 when the school holidays started, I calculated that this would be:-

28 weeks @ £50.64 per week = £1,417.92 gross, less 25% tax and national insurance say, £1,063.44.

14. Assuming that the claimant had been able to continue working for the respondent over the summer period as she had previously, she could have worked July, August and most of September, before resuming at University. Based on her pay for 2012, her loss is therefore as follows:-

July:	£653.49
August:	£897.72
September:	£855.94
Total:	£2,407.15	net

15. I calculate the claimant’s future loss at 26 weeks as follows:-

26 x £50.64 = £1,316.64 gross

Less 25% for tax and

national insurance = £ 329.16

£ 987.48

16. The respondent failed completely to follow the statutory disciplinary and dismissal procedure by which the claimant should be invited to a meeting, given an opportunity to discuss any perceived wrongdoings at the meeting and then given an opportunity to appeal the outcome. Accordingly I believe that it would be just and equitable in all the circumstances to award an uplift of 30% on the compensatory award. I calculate the amounts due to the claimant therefore as follows:-

Basic award = £ 222.00

Compensatory Award : (as set out above) = £5,217.67

Less Notice Pay = £ 202.56

Sub-total = £5,015.11

Uplift of 30% on the Compensatory Award = £1,504.53

Total = £6,519.64

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

Chairman:

Date and place of hearing: 17 September 2013, Belfast

Date decision recorded in register and issued to parties:

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