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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> O'Driscoll v KPL Contracts Limited M & P Bradley Limited BSG Civil Engineering [2014] NIIT 166_13IT (27 January 2014)
URL: http://www.bailii.org/nie/cases/NIIT/2014/166_13IT.html
Cite as: [2014] NIIT 166_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 166/13IT
CLAIMANT: Austin O’Driscoll
RESPONDENTS: (1) KPL Contracts Limited
(2) M & P Bradley Limited
(3) BSG Civil Engineering
DECISION
The unanimous decision of the tribunal is:-
1. The claimant was unfairly dismissed by the first respondent.
2. The claimant is awarded a total of £54,987.79 in respect of the unfair dismissal, as set out in paragraph 62 of this decision.
3. The claims against the second and third respondent are dismissed.
Constitution of Tribunal:
Chairman: Mr H Travers
Members: Mrs T Kelly
Mr W Irwin
Appearances:
The claimant was represented by Ms M Gavin, Solicitor, of Francis Hanna & Co.
The first respondent was represented by Mr G Ridgeway, Consultant, instructed by Employment Law Advisory Services.
The second respondent was represented by Mr P Ferrity, Barrister, instructed by Elliott Duffy Garrett.
REASONS
Issues
1. The claim form raises complaints in respect of unfair dismissal and holiday pay. At the outset of the hearing the claimant withdrew the claim for holiday pay. The complaint of unfair dismissal therefore is the only claim that the tribunal must determine.
2. All parties are agreed that the claimant was unfairly dismissed by either the first or the second respondent. No order is sought against the third respondent. The tribunal must determine two issues:-
(a) Whether the claimant’s contract of employment had been transferred from the first respondent to the second respondent pursuant to The Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006.
The parties agree that the key question for the tribunal in determining this issue is whether or not the claimant had been permanently assigned by the second respondent to a street lighting contract which was the subject of a service provision change.
(b) The quantum of the claimant’s award for unfair dismissal.
Facts
3. In making the following findings of fact, the tribunal has considered all the information available to it including the parties’ submissions on the documentary and oral evidence presented.
Sources of evidence
4. The tribunal was referred by the parties to various documents in a trial bundle which comprised 315 pages. Each party called witnesses at the hearing as set out below.
The claimant – Himself and Mr Peter Dobbs (a former colleague).
The first respondent – Mr Neil McDowell (the south east area manager and the claimant’s line manager), Mr Ken Pearson (the first respondent’s human resources manager).
The second respondent – Mr Seamus Mulholland (contracts manager)
The claimant’s employment
5. The claimant was born on 24 July 1976 and he has worked in the construction industry for many years. Prior to the termination of his employment with the first respondent the longest period of time that the claimant had been out of work since he left college was a six week period immediately following his relocation to Northern Ireland about 8 years ago.
6. The claimant soon found employment working for a construction company on what has been described in the hearing as the ‘BT contract’. Broadly speaking, the BT contract involves ground-works for the installation and maintenance of cabling infrastructure for telecommunications companies.
7. The claimant’s employment with his initial employer in Northern Ireland came to an end when they lost the BT contract to the first respondent. Following a short period of time with another employer, the claimant commenced employment with the first respondent on 1 October 2010 as a foreman/gangman/labourer on the BT contract. His previous experience of the BT contract was a factor in him being offered the job by the first respondent.
8. The claimant’s employment on the BT contract meant that he was in charge of a two man gang. The claimant and his labourer were in charge of all aspects of setting up a site. This included setting up a risk assessment, walkways, signage, and carrying out the work itself.
9.
The claimant injured his back at
the end of June 2011. This resulted in a period of sick leave. Unfortunately
the claimant suffered a further back problem in January 2012 as a result of
which he was signed off as sick from 4 January 2012 until
5 March 2012.
10. The outcome of a risk assessment carried out before the claimant returned to work in March 2012 was that he was placed on light duties as part of a three man team. The flexibility offered by working in a three man rather than a two man team was intended to avoid the need for the claimant to do heavy lifting which might aggravate his back condition.
11. The move to lighter duties was always intended to be a temporary measure until the claimant could resume his normal duties. This is reflected in the notes of a welfare meeting which took place on 18 June 2012. Present at that meeting were the claimant, a human resources officer, and the health and safety manager. The notes of the meeting record that the claimant was told that his case would be reviewed weekly with his line manager. The notes record: “Informed Austin that we will be reviewing this case weekly with Neil McDowell. We operationally cannot have him on light duties forever. We will be writing to his GP and reviewing his progress weekly. Three weeks now til [sic] the holidays. After the holidays we will review where we are at”.
12. The minutes of the welfare meeting on 18 June 2012 also record the claimant’s frustration that he is working in a series of different gangs, complaining that, “Neil [McDowell, the claimant’s line manager] moves me about every day. Last week I was with five different gangs”. The claimant also made clear his desire to resume duties as a foreman. He said that he had spoken to Mr McDowell about getting his own gang back together but Mr McDowell had explained that this was not possible due to staffing constraints.
13. Ms Barr [sometimes referred to in the documents as Ms McCollum], who was the human resources officer who attended the welfare meeting on 18 June 2012, sent a follow up email on 21 June 2012 to the claimant’s line manager and to the health and safety manager. This email included the following sentence: “As far as HR is aware Austin remains on lighter duties in a three man gang until we receive information from his GP that stipulates otherwise”.
14. With the agreement and authority of the claimant, the first respondent wrote to the claimant’s GP on 11 June 2012 with a series of questions concerning the claimant’s health and fitness to work. The GP replied by letter dated 17 July 2012. The reply included the following:-
“1) Mr O’Driscoll suffers from mechanical back pain. This is not a serious condition but can be recurrent.
2) Currently lighter duties are reasonable…
4) Mr O’Driscoll is not currently receiving any treatment for his back condition…
6) No [In response to the question, ‘Should we be aware of any other issues that may affect Austin’s ability to do his job?’].
7) It is impossible to predict recurrence of the pain but lifting very heavy objects especially with a twisting motion can aggravate problems.
8) Following physiotherapy and rest and light duties it is reasonable to think he has recovered from his injury and should be able to lift heavy objects provided the correct equipment and training is in place…
10) He appears recovered but I am not qualified as an Occupational Health Doctor.
11) There is no disability.”
Permanent or temporary assignment to street lighting contract
15. The claimant had originally been taken on by the first respondent to work on the BT contract and it is not in dispute that he was assigned to the BT contract team from the date of his employment until 11 August 2012. On that date the first respondent alleges that the claimant was transferred permanently to the street lighting contract. This is strongly disputed by the claimant who states that any assignment to the street lighting team was only a temporary measure in order to allow the claimant to work on light duties within a three man gang.
16. Whether the claimant was permanently or temporarily assigned to the street lighting contract is an issue which is at the heart of this case. The first respondent was unsuccessful in securing the renewal of some of its street lighting contracts. The successful tender in respect of those contracts was put in by the second respondent. This gave rise to a service provision change within the terms of The Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006. Consequent upon that service provision change, the contracts of employment of those employees who were assigned to the street lighting contract transferred to the second respondent. The first and second respondent are at issue in respect of whether or not the claimant’s contract of employment transferred across to the second respondent. The claimant is caught in the middle of that dispute.
17. From the outset of his employment, while the claimant’s principal focus of activity was the BT contract, he would be required from time to time to work on the street lighting contract. Nonetheless no party suggests that he was assigned to it prior to 11 August 2012 despite his occasionally working on it.
18. The first respondent’s grounds of resistance at paragraph 10 state that at a welfare meeting with Mr McDowell on 14 June 2012, “It was also confirmed by the Claimant that he would become part of a permanent 3 man team on the ‘Street Lighting Contract’. The Respondent confirmed that it would try and accommodate this as much as possible, and a germinant agreement could be reached in due course.”
19. In evidence Mr McDowell did not go as far as the suggestion in the grounds of resistance that on 14 June the claimant confirmed that he would become part of a permanent 3 man team on the street lighting contract. On the contrary, Mr McDowell indicated that the discussion was about Mr O’Driscoll’s ability to do his assigned work that day, work which involved pulling a heavy cable. Mr McDowell stated that what the claimant said was that he couldn’t pull heavy cable and he wanted to be on another three man team that day.
20. The first respondent produced a diary entry for 14 June 2012 which under the heading ‘Neil McDowell’ states: “Austin O’Driscoll refused to go to work pulling cable this morning – He said he needed to be in 3 man. Back still bad – Not fit for it. Neil in turn reorganised gangs to accommodate this – Took a man from P Walsh. Pat Walsh not happy that he lost a man and believes he is carrying Austin – Neil wanted this recorded”.
21. The tribunal finds that on 14 June 2012 there was no question of the claimant either seeking to be placed permanently on a street lighting gang, or understanding that he was to be placed permanently on a street lighting gang. What he was seeking was more straightforward and immediate, namely relief from a particular task that day which was causing him discomfort as a result of his back injury.
22.
The first respondent’s grounds of
resistance state at paragraph 12 that, “On
11 August 2012 the Claimant moved permanently to the ‘Street Lighting’
contract. The Respondent accommodated the Claimant’s request for light duties
and to be part of a permanent 3 man team on this contract.” The claimant
disputes that he ever requested to be part of a permanent 3 man team on the
street lighting contract whether on 11 August or at all.
23.
Mr McDowell’s evidence was more
nuanced than paragraph 12 of the grounds of resistance. Significantly, Mr
McDowell did not suggest that the claimant had requested to work on the street
lighting contract specifically. Mr McDowell stated that the claimant had been
‘bombarding’ him with requests to get onto a permanent gang, however he said
that it was his own decision that the permanent gang into which the claimant
was placed was assigned to the street lighting contract.
Mr McDowell said that on 11 August 2012 he told the claimant that, ‘he was in
that team to stay’.
24.
Apparently no record was sent to
the human resources department to confirm
Mr McDowell’s understanding that the claimant was now assigned to the street
lighting team. It is clear from the diary entry dated 14 June 2012 referred to
above, that on 14th June when Mr McDowell felt that there was a significant
occurrence concerning the claimant’s employment he made a point of it being
recorded. The tribunal has not been referred to any similar record in respect
of a conversation with the claimant on 11 August 2012. No documentary record,
whether contemporaneous or otherwise, has been adduced to support the
suggestion that on 11 August 2012 the claimant was assigned permanently to the
street lighting contract.
25. The claimant denies that he bombarded Mr McDowell with requests to get on to a permanent gang. He said that at no point did he ask to be moved to the street lighting contract and that he did not want to move to it. It is clear from the earlier welfare meeting on 18 June 2012 that the claimant was fed up with working in a different team, with a different set of colleagues each day. There is however a wide gap between asking for some consistency in his gang assignment while temporarily on light duties and requesting that he be reassigned to the street lighting contract permanently. It is clear from the notes of the welfare meeting that, at the same time as he was complaining about working with a different team every day, the claimant retained his aspiration to resume his own gang which would have been a two man team.
26. The tribunal is not satisfied on the balance of probabilities that the claimant was permanently assigned to the street lighting contract on 11 August. His assignment to a gang working on the street lighting contract was a temporary measure to permit him to engage in light duties. Had he been fully fit at that time he would have continued to work in his own gang on the BT contract as before.
27. The second respondent in its replies to the claimant’s Notice for Additional Information states that the Award Decision Notification letters in respect of the street lighting contract tender process were issued on 30 August 2012.
28. On 12 September 2012, the human resources officer Ms Barr sent a short email to Mr McDowell, the area manager. She asked, “Is Austin still in a three man team?”. She received a one word response, “Yes”. The tribunal finds that it is not without significance that Ms Barr made no reference to Austin working on the street lighting contract. As in her email dated 21 June 2012 which is referred to at paragraph 13 above, the focus was on whether he was part of a three man team.
29.
Ken Pearson, the Human Resources
Director of the first respondent wrote to the claimant by letter dated 27
September 2012. He informed him that there had been a reduction in the level of
business and that, “The Client has budgetary restrictions which in turn has
reduced the volume of work allocated to KPL Contracts”. The claimant was told
that consequently he was to be subject to a temporary lay off.
Mr Pearson wrote to the claimant in similar terms on 11 October 2012 to inform
him that the period of lay off was to continue.
30. Both the letter of 27 September 2012 and the letter of 11 October 2012 referred to ‘The Client’. In neither letter did Mr Pearson allude to the street lighting contract.
31.
On 24 October 2012 a meeting was
held at the first respondent’s premises to which the claimant and workers
assigned to the street lighting contract were invited. The meeting was
addressed by Mr Pearson (the Human Resources manager), and
Mr McDowell (the south east area manager responsible for overseeing the
contracts). The stated purpose of the meeting was to inform the staff about the
pending service provision change and the measures which were to be taken to
ensure that the transfer to the second respondent occurred smoothly, and also
for the employees to elect a representative. Mr Peter Dobbs was elected as the
employee representative.
32.
At the hearing the tribunal was
referred to a typewritten document marked ‘TUPE MEETING’ which purports to be a
minute of the meeting of 24 October 2012. The document is 2½ pages long. The
spacing between the paragraphs and the lines is generous. The first two pages
of the document are taken up almost entirely with setting out attendances and
the pre-prepared information which Mr Pearson wished to convey to the meeting.
The exceptions to this are a number of short references to a Mr Tony Rainey and
Mr Peter Dobbs repeatedly bringing up what are referred to as ‘past issues’
relating to terms and conditions. Mr Pearson minutes, “I said I would listen to
their views but that it was outside the scope of this meeting (therefore no
notes were taken of these views)”. Mr Pearson minutes that
Mr Rainey and Mr Dobbs also sought to bring up matters which were subject to an
ongoing grievance procedure and therefore he could not comment on them.
33. On the final half page of the minute of the meeting Mr Pearson records: “We went on to talk about the representative and their questions. I appreciate that you will have a number of questions which I will do my best to answer. However questions about your own individual terms or circumstances etc may have to be put through your ‘representative’ to allow time for an adequate response. Therefore, I will arrange time for meetings with the two ‘representatives’. The same day there was a similar meeting with another group of employees who had also elected an employee representative, hence the reference to two representatives.
34.
Following on from the reference
to arranging meetings with the employee representatives, the last line of the
minute of the meeting records, “We will communicate with your Representatives
with regard to the measures we get from
M & P Bradley Ltd”.
35. The message that there would be a meeting with the employee representatives was reinforced in a letter dated 24 October 2012 from Mr Pearson which was sent to the claimant as a follow up to the Tupe meeting. It stated in the final paragraph: “I appreciate that you will have a number of questions to put to me which I would like to have the opportunity to give an adequate response. I will therefore be holding a meeting with your employee representatives. Any issues you would like raised at this meeting please convey to them.”
36. In fact no meeting took place between Mr Dobbs and Mr Pearson. This is surprising in light of the emphasis which Mr Pearson placed on such a meeting in both his address to the Tupe meeting and his letter to the claimant. Mr Dobbs told the tribunal that he phoned up on a number of occasions to speak to Mr Pearson who told him that it was nothing to do with the first respondent, it was a matter for the second respondent. In contrast, Mr Pearson told the tribunal that he had had no approach from Mr Dobbs after the meeting and no record of any messages from him.
37. Mr Pearson did not offer any explanation as to why he had not been pro-active in seeking out Mr Dobbs after the Tupe meeting on 24 October 2012. In the Tupe meeting and again in his follow up letter to the claimant, Mr Pearson offered an unambiguous statement of his intention to communicate with and/or meet with the employee representatives. Against this background it is surprising that Mr Pearson does not appear to have made any effort to make good on his clear statements of intent by actively pursuing a meeting with Mr Dobbs who was the claimant’s employee representative.
38.
Insofar as there is a conflict on
the issue between the evidence of Mr Dobbs and that of Mr Pearson, the tribunal
prefers the evidence of Mr Dobbs. At the Tupe meeting, even before Mr Dobbs was
elected as the employee representative,
Mr Pearson repeatedly had to ask him to refrain from raising matters which
Mr Pearson said were not a matter for the Tupe meeting. Against this background
of Mr Dobbs’ dogged pursuit of matters at the Tupe meeting, whether relevant to
that meeting or not, it would be surprising if he had not made any effort to
contact Mr Pearson once he was endowed with the additional authority of
employee representative.
39. A further factual issue arises in respect of the Tupe meeting on 24 October 2012. Mr Dobbs gave evidence to the effect that the claimant had raised the issue as to why he was at the meeting and being considered with the rest of this group. The claimant said that he could not be 100% certain that his concerns had been raised at the meeting. Mr Pearson’s typed minutes of the meeting do not record such a comment being made. His original handwritten notes were destroyed by him and are not available. The typed minutes consist almost in their entirety of a record of Mr Pearson’s words to the meeting. There is little by way of a detailed record of comments from any of the employees. The tribunal on the balance of probabilities accepts the positive recollection of Mr Dobbs and finds that the claimant did briefly raise the issue as to why he was at the meeting.
40.
The claimant received two letters
from Mr Pearson dated 24 October 2012. The first has been referred to at
paragraph 25 above. The second letter informed the claimant that following the
temporary lay off his start date back to work was
26 October 2012. The letter went on to inform the claimant that since he would
be transferring to another company he need not attend work on 26 October.
41. The date for the service provision change was set for 1 November 2012. As part of the process the first respondent sent to the second respondent a document containing a list of those employees who were said to be subject to the change. The claimant’s name appeared on the list. Under the heading, ‘Any personal conditions’, was written, ‘Light duties – Personal injury claim’.
42. Mr McDowell effectively accepted in evidence that but for the need to provide the claimant with light duties the claimant would have continued to work on the BT contract. Nothing in the evidence suggests otherwise. It is clear from the notes of the welfare meeting on 18 June 2012 that those light duties were intended to be temporary. The reference to ‘Light duties’ next to the claimant’s name in the list of employees to be transferred is evidence that immediately prior to 1 November 2012 the duties being carried out by claimant were being carried out on a temporary basis.
43. On 1 November 2012 the second respondent’s contract manager, Seamus Mulholland, held what was described as a Tupe employee interview. At that meeting the claimant told him that the breakdown of his work was 75% BT work, and 25% street lighting. Mr Mulholland’s note of that meeting also contains the following: “Only st lighting when light duties required due to bad back”.
44.
Following his meeting with the
claimant, Mr Mulholland wrote to Mr Pearson on
5 November 2012 to inform him that the second respondent was satisfied that the
claimant was not assigned to the street lighting contract and so was not
eligible to transfer to the employment of the second respondent. Mr Mulholland
gave the following reason for this conclusion: ‘Austin O’Driscoll: In the last
24 months approximately 75% of time spent servicing BT contracts. 25% of time
spent servicing Street Lighting contract’.
45. By letter dated 6 November 2012, Mr Pearson replied that the first respondent was satisfied that the claimant was eligible for transfer. He gave the following reason: ‘Austin O’Driscoll: During the past 6 months Austin worked mainly on Street Lighting in the Eastern Division’.
In fact this was misleading and not true. Timesheets reveal that the claimant
was consistently working mainly on the street lighting contract only in the
period from
17 August 2012 until the temporary lay off on 27 September 2012.
46. Mr Mulholland by letter dated 7 November responded to Mr Pearson in a constructive manner requesting, among other things, daily worksheets and whereabouts reports for the last 24 months of the claimant’s employment with the first respondent.
47. Under cover of a response dated 12 November 2012 Mr Pearson purported to send timesheets for the six months prior to the date of the service provision change. In fact he sent only seven weeks of time sheets which covered the period from August 2012 onwards. In his reply dated 15 November 2012 Mr Mulholland highlighted this and requested by return, ‘the remainder of Mr O’Driscoll’s time sheets for a period of at least six months but preferably 24 months’.
48.
Mr Pearson’s response to the
request was short. He replied by letter dated
19 November 2012 that: “We have sought legal advice throughout this process and
are confident that we have provided all relevant documentation under our
obligations as part of the TUPE transfer”. The tribunal finds that this was a
deeply unhelpful and obstructive response to what was, in all the
circumstances, a reasonable and constructive request which was intended to
assist the second respondent in meeting its legal obligations, if any, to the
claimant.
Mr Pearson closed his letter by seeking to place with the second respondent
legal responsibility for the claimant’s contract of employment: “If you have
chosen not to accept [the claimant], we anticipate that you will have to make
[him] redundant or you may be subject to legal challenges from [the claimant]”.
49. In fact the unhelpful approach of the first respondent to the disclosure of timesheets continued following the commencement of the tribunal proceedings.
The first respondent failed to comply with an order for discovery consequently the timesheets ultimately were only made available following an unless order made by the President of the Industrial Tribunals on 7 November 2013. The explanation offered to the President for the non-disclosure was that there were difficulties in locating them due to the first respondent’s system of archiving.
Problems with archiving however do not explain the failure to provide to the second respondent a complete set of timesheets in November 2012 so that a proper assessment could be made of the accuracy of what Mr Mulholland had been told by the claimant concerning his assignment to work on the street lighting contract.
50. No oral or documentary evidence was presented as to the process by which the first respondent’s list of employees allegedly eligible for transfer was drawn up. Surprisingly Mr Pearson, the first respondent’s human resources manager, was unable to assist. This is despite the fact that subsequently he engaged in correspondence with the second respondent asserting that the employees identified on the list were eligible for transfer.
The tribunal did not hear from any witness who acknowledged involvement in the process of identifying the employees who were eligible for transfer. Evidentially speaking, the process remains opaque to the tribunal.
51. In all the circumstances, the tribunal is not satisfied that the claimant’s assignment to the street lighting contract was anything other than temporary.
52. Following the dispute between the first and second respondents as to his eligibility for transfer, the claimant was left high and dry. He had neither a job, nor an employer who was prepared to accept responsibility for his dismissal. Since November 2012 the claimant has made extensive and appropriate efforts to find a job but without success.
53. The tribunal rejects the submission made on behalf of the first respondent that even if the claimant had not been dismissed on 1 November 2013, he would nonetheless have been dismissed on the grounds of capability due to his back problem. There is no evidential foundation for this submission. Indeed, the submission appears to contradict the GP report commissioned by the first respondent and referred to at paragraph 14 above.
Law
54. The Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006 [‘the Regulations’], provide at regulation 4(1):
‘…a service provision change shall not operate so as to terminate the contract of employment of any person employed by the transferor and assigned to the organised grouping of resources or employees that is subject to the service provision change, which would otherwise be terminated by the transfer, but any such contract shall have effect after the transfer as if originally made between the person so employed and the transferee.’
‘Pursuant to regulation 2(1), any reference in regulation 4(1) to an employee assigned to an organised grouping of employees means an employee, ‘assigned other than on a temporary basis’.’
55.
In closing submissions Mr
Ridgeway for the first respondent referred the tribunal to three decisions of
the Employment Appeal Tribunal: Securiplan v Bademosi (EAT/1128/02/ILB); MRS
Environmental Services Ltd v Dyke (EAT/93/96);
Eddie Stobart v Moreman [2012] IRLR 356.
56. The tribunal has considered each of these decisions. In this case it is conceded that the claimant was assigned to the BT contract at least until 11 August 2012. The issue is whether or not the assignment to the street lighting contract was temporary or permanent. This is essentially a matter of fact for the tribunal. Judge McMullen QC stated at paragraph 13 of Securiplan that: ‘The judgement as to what is temporary and what is permanent is a matter for the Employment Tribunal’.
57. Part XI of The Employment Rights (Northern Ireland) Order 1996 sets out the basis of the right not to be unfairly dismissed and the remedies for breach of that right. It is for the claimant to establish on the balance of probabilities that he has been dismissed. Articles 130 and 130(A) of The Employment Rights (Northern Ireland) Order 1996 apply to this case. Where an employer has failed to comply with the requirements of the statutory dismissal and disciplinary procedures set out in Part 1 Schedule 1 to the Employment (Northern Ireland) Order 2003, the dismissal is automatically unfair. Article 17 of the 2003 Order provides that where that occurs the tribunal must increase the compensatory element of any award by 10 – 50% unless there are exceptional circumstances which would make an increase of that amount unjust or inequitable.
Conclusion
58. On the basis of the findings of fact set out above, the tribunal is clear that the claimant’s assignment to the street lighting contract was temporary not permanent. Therefore the claimant did not fall within the group of employees who were eligible to be transferred under the regulations.
59. The first respondent abandoned the claimant after 1 November 2012 and by its conduct the first respondent effectively dismissed the claimant. No statutory dismissal procedure was followed consequently the dismissal was automatically unfair.
60. The tribunal is satisfied that the claimant has taken all appropriate measures to find employment to date. It is clear that the employment market is extremely difficult for a person with his skillset and characteristics. The claimant told the tribunal of the enormous competition he faces in respect of every job he applies for. The claimant’s history of consistent employment since he left college evidences his genuine desire to find work, as does the diary which he produced which details his consistent efforts to find employment. In all the circumstances the tribunal assesses future loss of earnings at 52 weeks.
61. The first respondent not only disregarded its obligations under its contract of employment with the claimant but it also was obstructive in its approach to providing information to the second respondent which might have enabled the issue to be clarified in November 2012 without the claimant losing his job. In all the circumstances of the case the tribunal finds that it is just and equitable to award a 50% uplift in the compensatory award.
62. The tribunal makes an award as follows:-
The claimant was aged 36 at the date of his dismissal and he had completed 2 full years of employment. His rate of pay at the date of dismissal was £429.52 gross per week, £340.50 net per week.
Basic award
2 weeks x £429.52 = £859.04
Compensatory award
Loss of earnings to the date of hearing 01/11/12 – 13/11/13 (53 weeks)
Future loss of earnings 52 weeks
Total 105 x £340.50 = £35,752.50 past and future loss of earnings
50% uplift = £17,876.25
Total = £53,628.75
Loss of statutory rights
£500
Tax and grossing up
Insofar as the claimant has received JobSeekers Allowance, it shall be subject to a recoupment notice. The amount by which: (a) the basic award, (b) the award for past and future loss of earnings, and (c) the award for loss of statutory rights, exceeds the maximum allowable tax-free compensatory award = (£37,111.54 - £30,000) = £7,111.54 which is less than the annual tax-free personal allowance. Consequently no order for grossing up the award is made.
Total award
Basic award - £859.04
Past and future loss of earnings - £35,752.50
50% uplift on loss of earnings award - £17,876.25
Loss of statutory rights - £500
TOTAL AWARD - £54,987.79
Recoupment
63. The parties are referred to the recoupment notice attached to this decision which requires the respondent to withhold part of the award pending the recoupment of Social Security Benefit.
In accordance with the Employment Protection (Recoupment of Jobseekers Allowance and Income Support) Regulations (Northern Ireland) 1996:-
(i) the monetary award in full is £54,987.79
(ii) the prescribed element is £ 18,046.50
(iii) the relevant dates are 1 November 2012 and 13 November 2013
(iv) the amount by which the monetary award exceeds the prescribed element is £36,941.29
Interest
64. This decision is a relevant decision under the Industrial Tribunal (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 13, 14, 15 November 2013, Belfast.
Date decision recorded in register and issued to parties: