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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Best v Pretzels (NI) Ltd [2014] NIIT 424_14IT (23 July 2014)
URL: http://www.bailii.org/nie/cases/NIIT/2014/424_14IT.html
Cite as: [2014] NIIT 424_14IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 424/14
CLAIMANT: Victoria Hilary Best
RESPONDENT: Pretzels (NI) Ltd
DECISION
The unanimous decision of the tribunal is that the claimant’s unfair dismissal claim is well-founded and it is ordered that the respondent shall pay to the claimant the sum of £4,392 in respect of that unfair dismissal.
Constitution of Tribunal:
Employment Judge: Employment Judge Buggy
Members: Mr E Grant
Mr B Hanna
Appearances:
The claimant was represented by Mr Howard Best.
The respondent was not represented.
REASONS
1. The claimant was employed by the respondent company in a bakery known as “Auntie Anne’s” from 11 April 2011 until 25 February 2014. (She was dismissed on 24 January 2014, with effect from 25 February 2014).
2. The claimant provided oral testimony in this case. We were satisfied that the claimant was a truthful witness.
3. The respondent chose not to participate in the main hearing. We know of no good reason for that non-participation.
4. In these proceedings, the claimant makes a claim in respect of unfair dismissal.
5. We announced our decision at the end of the hearing. At the same time, we gave oral reasons for our decision. Accordingly, what follows is by way of summary only.
6. The respondent accepted that the dismissal was unfair, because it had failed to follow the statutory dismissal procedure which is envisaged by Article 130A of the Employment Rights (Northern Ireland) Order 1996 (“ERO”).
7. In deciding on this case, we have taken account of all the information which has been made available to the tribunal by the parties.
8. The unfair dismissal award which we have made consists of two constituent parts:
(1) a basic award and
(2) a compensatory award
The compensatory award incorporates a sum which has been awarded pursuant to Article 27 of the Employment (Northern Ireland) Order 2003 (“EO”).
9. The effect of paragraph (1A) of Article 154 of ERO is that an industrial tribunal must, as a general rule, make a basic award of at least four weeks’ pay, in respect of an unfair dismissal, if the dismissal was unfair because of a failure to follow the statutory dismissal procedure.
10. Paragraph (1B) of the same Article provides an exception to that rule, which is to the following effect. A tribunal is not required by paragraph (1A) to increase the amount of an award if it considers that the increase would result in injustice to the employer. In these proceedings, we are not satisfied that such an increase would cause injustice to the employer.
11. Accordingly, we have made a basic award of £928. (The claimant’s gross weekly wages were £232 per week).
12. We are satisfied that the loss sustained by the claimant, from 25 February 2014 until the date of the main hearing, is approximately £700. We are satisfied that the claimant’s future loss, sustained as a result of this dismissal, over the following six months, amounts/will amount to approximately £1,200. We have decided to make an award of £300 in respect of loss of statutory rights.
13. The sum of the amounts specified in the last preceding paragraph is £2,200.
14. The effect of Article 17 of EO, in the general context of this case, can be summarised as follows. The Article applies to unfair dismissal claims. If it appears to an industrial tribunal that the statutory dismissal procedure was not completed, and that the failure to complete it was mainly or wholly attributable to failure by the employer to comply with the requirements of that procedure, the tribunal comes under an obligation (subject to paragraph (4) of Article 17) to increase the compensatory element of any unfair dismissal award by 10%; and the tribunal has power, if it considers it just and equitable in all the circumstances to do so, to increase that compensatory award by a further amount, but not so as to make a total increase of more than 50%.
15. The duty described in the last preceding paragraph does not apply if there are exceptional circumstances which would make an increase of 10% unjust or inequitable, in which case the tribunal may make no increase, or may make an increase of such lesser percentage as it considers just and equitable in all the circumstances.
16. We know of no exceptional circumstances which would make an increase of 10% unjust or inequitable. We consider it to be just and equitable in all the circumstances to increase the compensatory award by £800 pursuant to Article 17 of EO. (That is an uplift of approximately 33%).
17. Accordingly, the compensatory award element of the claimant’s unfair dismissal compensation (before the addition of the amount specified at paragraph 22 below) amounts to £3,000.
18. The effect of Article 27 of EO, in the general context of this case, can be summarised as follows. The Article applies to unfair dismissal claims. If the tribunal makes a compensatory award to the claimant in respect of unfair dismissal, and when the proceedings were begun the employer was in breach of his duty to the employee, under Article 33(1) of ERO (to provide her with employment particulars), the tribunal must, subject to Paragraph (5) of Article 27, increase the award by the “minimum amount”; and the tribunal may, if it considers it just and equitable in all the circumstances to do so, increase the award by the “higher amount” instead. (The “minimum amount” is two weeks’ gross pay and the “higher amount” is four weeks’ gross pay.)
19. Paragraph (5) of Article 27 provides that the duty to increase the award by the “minimum amount” is a duty which does not apply “if there are exceptional circumstances which would make an award or increase unjust or inequitable”.
20. We are satisfied that there are no exceptional circumstances in this case which would make an Article 27 increase by the “minimum amount” either unjust or inequitable.
21. We are satisfied that the claimant did receive a written contract of employment (“a Contract”). However, we are also satisfied that, in some important respects, the Contract did not comply with the requirements of Article 33(1) of ERO. (There was no date of commencement of employment specified in the contract. The scale or rate of the claimant’s remuneration was not specified in the Contract. The date given in relation to notice of termination of employment, in the Contract, is not correct. No title was given, in the Contract, in respect of the claimant’s job. The claimant’s place of work was not specified in the Contract. No disciplinary procedure was included in the Contract).
22. In light of the shortcomings specified in the last preceding paragraph, and in light of the relatively small size of the business, we have decided that the compensatory element of the unfair dismissal award should include an additional two weeks’ gross pay (amounting to £464).
23. Accordingly, the compensatory award element of the unfair dismissal compensation amounts to £3,464. (See paragraph 17 above). The sum of £928 and £3,464 (see paragraph 11 above) is £4,392.
24. The respondent has not proven that the claimant was guilty of any contributory conduct, in the sense in which that term is usually used within the context of the assessment of unfair dismissal compensation claims.
25. We have no adequate evidence that there was a significant chance of the claimant being dismissed in any event, if a fair dismissal disciplinary process has been followed. Accordingly, no ‘Polkey’ reduction, in the amount of the compensatory award, is appropriate. We are satisfied that the claimant was not guilty of Gross Misconduct, or indeed of any significant misconduct.
26. The claimant was not in receipt of any benefit to which the Recoupment Regulations apply. Therefore, the Recoupment Regulations do not apply in the circumstances of this case.
27. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Employment Judge
Date and place of hearing: 3 June 2014, Belfast
Date decision recorded in register and issued to parties: