Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:   1337/13

CLAIMANT:              Nigel Hugh Simpson

 

 

RESPONDENT:      David Patton and Sons (NI) Ltd (In Administration) 

 

DECISION (Protective Award)

The unanimous decision of the tribunal is as follows:

 

(A)       The claimant’s protective award complaint is well-founded.

(B)       We have decided to make a protective award in respect of the claimant.

(C)       It is ordered that the respondent shall pay remuneration for the protected period.

(D)       The protected period began on 9 November 2012 and lasted for 90 days.

(E)       In these proceedings, the claimant also makes claims in respect of alleged underpayments of remuneraration. This is a decision only in relation to his Article 217 complaint.

The attention of the parties is drawn to the Recoupment Statement at the end of this Decision.

The address of the respondent is C/O Keenan Corporate Finance Ltd, Arthur House, Arthur Street, Belfast, BT1 4GB.

 

Constitution of Tribunal:

Employment Judge Buggy

Ms L Gilmartin

Mr J Hughes

 

Appearances:

The claimant was self-represented.

 

The respondent was not represented.

 

 

REASONS

 

1.            This claimant was dismissed by the respondent on the ground of redundancy on
9 November 2012.  In these proceedings, he makes a complaint, under Article 217 of the Employment Rights (Northern Ireland) Order 1996, against the respondent.

 

2.            Our reasons for upholding this claimant’s complaint will be provided to the parties to these particular proceedings at a later date.

 

3.            In the meantime, the attention of the claimant and the respondent is drawn to the Main Decision in Dempsey and Others v Pattons (NI) Ltd (In Administration) (Case ref no. 947/13). The latter Decision has also been issued today. The latter Decision incorporates very extensive “Reasons”.

 

4.            When written reasons are in due course issued in the present case, those reasons are likely to extensively refer to the Reasons given today in the Main Dempsey Decision.

 

Recoupment Statement

 

[1]        In the context of this Notice:

 

(a)       “the relevant benefits” are jobseeker’s allowance, income support and income-related employment and support allowance; and

 

(b)       any reference to “the Regulations” is a reference to the Employment Protection (Recoupment of allowance and Income Support) Regulations (Northern Ireland) 1996 (as amended).

 

[2]        Until a protective award is actually made, an employee who is out of work may legitimately claim relevant benefits because, at that time, he or she is not (yet) entitled to a protective award under an award of an industrial tribunal.  However, if and when the tribunal makes a protective award, the Department for Social Development (“the Department”) can claim back from the employee the amount of any relevant benefit already paid to him or her; and it can do so by requiring the employer to pay that amount to the Department out of any money which would otherwise be due to be paid, to that employee, under the protective award, for the same period. 

 

[3]        When an industrial tribunal makes a protective award, the employer must send to the Department (within 10 days) full details of any employee involved (name, address, insurance number and the date, or proposed date, of termination of employment).  That is a requirement of regulation 6 of the Regulations.

 

[4]        The employer must not pay anything at all (under the protective award) to any such employee unless and until the Department has served on the employer a recoupment notice, or unless or until the Department has told the employer that it is not going to serve any such notice.

 

[5]        When the employer receives a recoupment notice, the employer must pay the amount of that recoupment notice to the Department; and must then pay the balance (the remainder of the money due under the protective award) to the employee. 

 

[6]        Any such notice will tell the employer how much the Department is claiming from the protective award.  The notice will claim, by way of total or partial recoupment of relevant benefits, the “appropriate amount”, which will be computed under paragraph (3) of regulation 8 of the Regulations.

 

[7]        In the present context, “the appropriate amount” is the lesser of the following two sums:

 

            (a)     the amount (less any tax or social security contributions which fall to be deducted from it by  the employer) accrued due to the employee in respect of so much of the protected period as falls before the date on which the Department receives from the employer the information required under regulation 6 of the  Regulations, or

 

            (b)     the amount paid by way of, or paid on account of, relevant benefits to the employee for any period which coincides with any part of the protected period falling before the date described in sub-paragraph (a) above.

 

[8]        The Department must serve a recoupment notice on the employer, or notify the employer that it does not intend to serve such a notice, within “the period applicable” or as soon as practicable thereafter.  (The period applicable is the period ending 21 days after the Department has received from the employer the information required under regulation 6).

 

[9]        A recoupment notice served on an employer has the following legal effects.  First, it operates as an instruction to the employer to pay (by way of deduction out of the sum due under the award) the recoupable amount to the Department; and it is the legal duty of the employer to comply with the notice.  Secondly, the employer’s duty to comply with the notice does not affect the employer’s obligation to pay any balance (any amount which may be due to the claimant, under the protective award, after the employer has complied with its duties to account to the Department pursuant to the recoupment notice).

 

[10]     Paragraph (9) of regulation 8 of the 1996 Regulations explicitly provides that the duty imposed on the employer by service of the recoupment notice will not be discharged if the employer pays the recoupable amount to the employee, during the “postponement period” (see regulation 7 of the Regulations) or thereafter, if a recoupment notice is served on the employer during that postponement period. 

 

[11]     Paragraph (10) of regulation 8 of the 1996 Regulations provides that payment by the employer to the Department under Regulation 8 is to be a complete discharge, in favour of the employer as against the employee, in respect of any sum so paid, but “without prejudice to any rights of the employee under regulation 10 [of the  Regulations]”.

 

[12]     Paragraph (11) of regulation 8 provides that the recoupable amount is to be recoverable by the Department from the employer as a debt. 

 

 

Employment Judge:

 

 

Date and place of hearing:          15 November 2013, Belfast         

 

 

Date decision recorded in register and issued to parties: