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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Madine v Sharon Eadie, t/a Getaway Trav... Sharon Eadie, t/a Getaway Trav... [2014] NIIT 122_13IT (08 September 2014)
URL: http://www.bailii.org/nie/cases/NIIT/2014/122_13IT.html
Cite as: [2014] NIIT 122_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REFS: 122/13
656/13
CLAIMANT: Dawn Madine
RESPONDENT: Sharon Eadie, t/a Getaway Travel
DECISION ON A REVIEW
The unanimous decision of the Tribunal is that the review is allowed.
Constitution of Tribunal:
Employment Judge: Employment Judge Sheils
Members: Mr J Norney
Mrs D Adams
Appearances:
Mr M Mason appeared on behalf of the claimant.
Mr K Denvir, instructed by Campbell Stafford Solicitors, appeared on behalf of the respondents.
1. This review hearing was convened to consider the following:-
(1) the Tribunal had omitted to include the sums relating to her basic award and her notice pay, totalling £1,128.70;
(2) the Tribunal had omitted to consider what, if any, statutory uplift should be applied; and
(3) the Tribunal’s omission to include recoupment details.
2. The Tribunal added the additional sum of £1,128.70 to the claimant’s total overall loss making that sum now £37,748.79, inclusive of the award of £5,000 for injury to feelings.
3. In relation to the discretionary uplift, the Tribunal heard submissions from both representatives. For his part, Mr Mason submitted that the statutory uplift may only be dispensed with in exceptional circumstances. He submitted that the statutory uplift should be between 25% to 30% on the basis that neither Steps 1 and 2 of any dismissal procedure had been in place. Mr Mason submitted that the claimant’s position the belated offer of an appeal had not amounted to a right of appeal.
4. For his part, Mr Denvir submitted that this was an exceptional case where no uplift should be awarded. Mr Denvir submitted that the respondents’s was that they believed that they had offered an appeal and conducted an appeal until the latter issue had been decided by the Tribunal.
5. Mr Denvir also added that while he accepted that the respondents had not complied with Steps 1 and 2 of the dismissal procedure, there was the claimant who had not availed herself of her right of appeal. In this regard, Mr Denvir stated that both parties had been at fault in failing to comply with the statutory procedures.
Mr Denvir urged the Tribunal to consider that the statutory uplift as a penalty to employers for their failure to have a dismissal process in place. He submitted that the respondents had sought to rectify their mistakes by putting in train what they thought would amount to an appeal and that they had had to meet the costs of that endeavour. Mr Denvir submitted that in this regard, the respondents had already paid the penalty the uplift sought to impose.
6. The Tribunal concluded that the statutory uplift is intended to act as a penalty on employers who have no proper disciplinary procedures in place at the time of the dismissal. In exercising its discretion the Tribunal must consider the circumstances at the time of the claimant’s dismissal.
It was very clear that there were no dismissal procedures in place at the time of the claimant’s dismissal. However the Tribunal noted that the respondents ran a very small family firm where there was significant confusion over its day-to-day running, with some duties being carried out by Mrs Green and some by her mother, Mrs Eadie. It was Mrs Eadie who dismissed the claimant, without reference to her daughter, Mrs Green. The Tribunal noted Mrs Eadie’s full and frank evidence that she had dismissed the claimant without reference to the “legal stuff”. However the Tribunal also noted that it was common case between the parties that at this time Mrs Eadie had been very ill and was under a great deal of stress.
The Tribunal also took into consideration the fact that the respondents acted immediately to seek to remedy the situation. They offered the claimant a right of appeal, sought legal advices, and employed an independent consultant to carry out what they believed to be an appeal. While the Tribunal made findings about the failure of this endeavour as an appeal, the Tribunal acknowledged that it had been an attempt to bring proper process to the situation.
7. The Tribunal also took into account the respondents’ assertions at the hearing that it had set in motion their resolve to introduce all relevant employment policies and had accessed the Labour Relations Agency in its endeavours to do so.
In all these circumstances, the Tribunal decided not to impose any statutory uplift.
Recoupment
8. The Recoupment Regulations apply only to the award for unfair dismissal. At this hearing there was a discussion around what period of time amounts to the” prescribed period”. Mr Mason submitted that the prescribed period was the period of time from the date of the dismissal to the date of the hearing. Mr Denvir submitted that it should be the period of time from the date of the dismissal to the date of the issue of the decision.
Mr Mason also submitted that a portion of the claimant’s future loss ought properly be considered as actual loss, £4,139.98. This point was not disputed.
The Tribunal reviewed the following:-
The Employment Protection (Recoupment of Benefits) Regulations 1996
Harvey, and in particular paragraphs 2703 and 2704
Tolley’s Employment Handbook and Guidelines provided to the Tribunal.
On review of the law the Tribunal concluded that the prescribed period is from the date of the dismissal to the date of the decision of the Tribunal. The attached recoupment order is drafted in those terms.
The prescribed period in this case from 26 October 2012 to 7 July 2014. The relevant monetary award is £32,748.79. The prescribed amount of relevant loss, as awarded, is £25,078.03 and the dismissal award exceeds the prescribed amount by £7,670.76.
9. Your attention is drawn to the notice below which forms part of the decision of the tribunal.
10. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Employment Judge:
Date and place of hearing: 21 August 2014, Belfast.
Date decision recorded in register and issued to parties:
Case Ref Nos: 122/13
656/13
CLAIMANT: Dawn Madine
RESPONDENT: Sharon Eadie, t/a Getaway Travel
ANNEX TO THE DECISION OF THE TRIBUNAL
STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S 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.
|
|
£ |
|
(a) Monetary award |
32,748.79 |
|
(b) Prescribed element |
25,078.03 |
|
(c) Period to which (b) relates: |
26 October 2012 - 7 July 2014 |
|
(d) Excess of (a) over (b) |
£7,670.76 |
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 or 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 for 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 or 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 nine 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 for 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.