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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Wilmot v David Alexander t/a Alexander ... [2014] NIIT 556_14IT (23 September 2014)
URL: http://www.bailii.org/nie/cases/NIIT/2014/556_14IT.html
Cite as: [2014] NIIT 556_14IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 556/14
CLAIMANT: Don Wilmot
RESPONDENT: David Alexander t/a Alexander Furniture
DECISION
The unanimous decision of the
tribunal is that the claimant was unfairly dismissed by the respondent. The
respondent is ordered to pay the claimant the sum of £19,316.70
by way of compensation.
Constitution of Tribunal:
Employment Judge: Employment Judge McCaffrey
Members: Mr A Crawford
Mr J A Kerr
Appearances:
The claimant was represented by Mr D Mitchell of the Legal Support Project.
The respondent appeared in person.
1. ISSUES
1.1 The issues the tribunal had to consider were as follows:-
(1) Was the claimant dismissed by the respondent or did he resign?
(2) If the claimant was dismissed, did the respondent follow the Statutory Disciplinary and Dismissal Procedures?
(3) If not, was the dismissal automatically unfair contrary to Article 130A(1) of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”)?
(4) If the dismissal was automatically unfair for failure to follow the Statutory Disciplinary and Dismissal Procedures, should the award be reduced under the rule in Polkey v A E Dayton Services Ltd.
(5) If it is found that the claimant was unfairly dismissed, did the claimant contribute in any way towards his dismissal?
2. PRELIMINARY
2.1 In a record of proceedings prior to this hearing, it was noted that the respondent had referred to CCTV footage and that he was advised to contact the tribunal staff in order to arrange for this to be viewed at the hearing if appropriate. The respondent had not done this. We made further enquiries with him as to the nature of the information on the recordings. He indicated that there were recordings of the claimant at various times in the workshop, but he could not say exactly when the recordings were made and he indicated however that there was no mechanism on the CCTV footage to show the date and time of the recordings made. In the course of the hearing, the respondent also asserted that he had viewed the claimant engaged in alleged misconduct while monitoring the workshop through the CCTV monitor, but had not recorded the alleged misconduct. In particular, there was no recording available for the last two days of the claimant’s employment, namely 16 and 17 January 2014. Mr Mitchell indicated that several requests had been made for the all CCTV footage but this had not been made available to the claimant. Eventually the claimant’s representative had agreed to accept the footage of the last day of the claimant’s employment and was then advised that this was not available. The recordings had therefore not been shared with the claimant before the hearing. In the light of this we did not consider it was appropriate to allow the CCTV footage to be adduced in evidence, given that there was a question mark over when it may have been recorded, its precise relevance to the issues before us, and it had not been discovered to the other side.
2.2 We noted that the respondent’s statement was not set out as statements to the Industrial Tribunal are usually set out. Indeed that there were matters covered in the additional information which he had lodged with the tribunal along with the ET3 which were not covered in his witness statement. The respondent indicated however that he wished the additional information to be taken into account as part of his witness statement, and the claimant’s representative had no objection to this.
3. FACTS
3.1 We heard evidence from the claimant and the respondent, and a number of documents were opened to us in the course of the hearing. On the basis of the evidence we have heard, we make the following findings of relevant facts.
3.2 This was a claim of unfair dismissal. The claimant was employed by the respondent at his workshop shop premises adjacent to the respondent’s shop. The claimant’s job was as a furniture restorer and finisher and his duties involved building up new furniture, finishing it, polishing it and also repairing and restoring antique furniture. The claimant also assisted in delivering furniture with the respondent to various customers.
3.3 The claimant’s employment started on 19 June 2006 and ended on 17 January 2014. The claimant had previously worked for the respondent for a period of time. He had left in late 2005 and came back after an absence of approximately six months in June 2006. There was no suggestion that his work had been unsatisfactory at that time.
3.4 The claimant agreed that he had been given written terms and conditions of employment for his first period of employment, when the respondent’s business was known as “Country Pine”. When the claimant resumed working for the respondent in June 2006, the firm was still known as “Country Pine”. The respondent asserted that he had given the claimant a new contract of employment shortly after he started work in 2006 and subsequently issued him with a fresh contract showing his employer as “Alexander Furniture” when the Country Pine showroom closed in 2009. The claimant was adamant that he had never received either of these subsequent contracts, and the respondent was unable to produce a signed copy of the most recent contract.
3.5 Initially, the claimant was one of three full-time furniture finishers. The other furniture finishers ultimately left the business and were not replaced. The staff in general had declined. Apart from the claimant and the respondent, there was only Christine Alexander (the respondent’s sister) who worked part-time in the business. The respondent’s wife occasionally helped out as well. This meant that after Alistair, one of the other furniture finishers, left in 2011, the claimant was generally working on his own in the workshop, which was separate from the respondent’s showroom premises and office.
3.6 The type of work carried on by the respondent’s business had changed over this period. Although the respondent refuted the claimant’s suggestion that sales had dropped, he agreed there was not as much antique restoration work to be done as in previous years. There was a trend towards painted furniture, which was assembled and painted in the workshop. New furniture sold in the respondent’s shop was also assembled in the workshop. The respondent was clear that, contrary to the claimant’s allegation, there was no fall in sales in the year before the claimant’s dismissal. We cannot make any finding as regards the drop in sales, as we did not see VAT returns for the previous year’s sales to compare with the year up to the claimant’s dismissal. It is clear however that work in the workshop had dropped off over a few years, leading to the reduction of the staff there from three to one, and that the respondent subsequently outsourced the work previously done by the claimant and thereby reduced costs.
3.7 In 2013, the respondent started to keep a “log” of various incidents where he asserted that the claimant’s work performance had been unsatisfactory. These related to the claimant arriving late at work (between a few minutes and up to half an hour late), unauthorised absences, not giving sufficient notice of time off which was required, and quality of work. The respondent alleged the claimant was taking too long to complete work. In one example the respondent put it to the claimant that he had taken 4 days to finish a five foot Georgian pine dresser in July 2013, which he said was excessive. The claimant agreed such a job would normally take 2 or 3 days but said it could take longer depending on the colour. The respondent’s argument was that because the claimant took longer than necessary (in his view) to do the job, he had to pay the claimant more in wages (about £200) for this job than it would have cost had he outsourced the work (which he later found would cost £80-£125). In July 2013, the claimant was given what was referred to as a “written warning”, regarding timekeeping and unauthorised absences. The claimant however was clear that he had not been invited to a disciplinary meeting in advance of this warning being issued, nor had he been given the right to be accompanied at any meeting or given any right of appeal. The “warning letter” was opened to us at tribunal. While it sets out issues regarding timekeeping and unauthorised absences, the letter does not refer to any sort of disciplinary procedure having been gone through nor does it indicate that the letter is actually a warning or the length of time for which the warning would remain in force.
3.8 There were a number of issues at dispute between the parties. Principally, the claimant indicated that he did not recall a number of the events which were on the log. He accepted that there were occasions when he was late for work but indicated that it had generally been quite a flexible place to work so he did not see this as a problem. The claimant also indicated that in September 2013 he had had car trouble after his car did not pass the MOT and he was late on a number of days. Towards the end of this week, the respondent handed him a written warning in relation to his lateness. The claimant also conceded that he had had a couple of unauthorised absences but said that other incidents the respondent put to him were “out and out lies”, although he did not say specifically which incidents he referred to.
3.9 It was the respondent’s case that he had issued a further written warning to the claimant in September 2013 following difficulties regarding his lateness. The claimant agreed that he had received a written warning in September, but this was not produced to us and so we are unable to say whether or not it was in fact a valid warning. Again, the statutory disciplinary procedures were not followed: the claimant was not invited to a disciplinary meeting or made aware of his alleged misconduct in writing in advance; there was no disciplinary meeting; the claimant was not advised of the right to be accompanied and he did not have the right to appeal against the decision.
3.10 There was also an incident when an electric sander which the claimant was using became jammed and he opened the casing to see if he could remove the fibres which had been caught in the sander. The respondent put it to the claimant that he should have reported the problem with the sander to the office straight away; the claimant took the view that he was simply trying to identify the problem to see if it could be sorted out by him without going to the office. The claimant was not disciplined in relation to this incident and we consider it irrelevant to the issues before us.
3.11 It was the claimant’s evidence that he had not smoked in the workshop when there were other colleagues working there, but had smoked outside during his breaks. He rolled his own cigarettes, and indicated that on one occasion the respondent had said to him, “You can smoke with one hand and paint with the other”. The claimant took this as permission to smoke in the workshop and when he was working there on his own, he agreed that he did smoke in the workshop. The respondent indicated that he had never given the claimant permission to smoke in the workshop and that indeed this was prohibited for a number of factors. Since the introduction of the smoking ban in public places, it is illegal to smoke in the workplace, and the claimant was familiar with the smoking ban. Secondly, the respondent had had a serious fire some years before, prior to the claimant coming to work for him. The respondent’s attitude since then, he said, was that there should be no smoking on the premises, because of the risk of fire. He also noted that in restoring antique furniture, the claimant could be working with flammable materials such as cellulose, white spirit and methylated spirit and he was concerned about the fire risk of cigarette butts being put into the same bin as rags used for working on furniture. The claimant’s answer to this was that he kept a glass of water in the workshop in which he dipped his cigarette butts to ensure they were extinguished.
3.12 Over the Christmas holidays in 2013, the respondent did a tidy out of the workshop where the claimant was normally the only worker. He discovered a substantial number of cigarette butts in the bin in the workshop and assumed from this that the claimant had been smoking in the workshop. The respondent was concerned and annoyed about this. On the claimant’s return to work on 2 January, the respondent spoke to him and made it clear to him that he must not smoke in the workshop premises. The claimant’s evidence was that he did not smoke in the workshop after this date, but that he believed that he had permission to smoke in the workshop prior to it.
3.13 The following day (3 January), the respondent said that he had spoken to the claimant again about his car being unreliable and pointed out to him again that it was the claimant’s responsibility to make sure that he was at work at the required time.
3.14 The following week on 10 January 2014, the claimant was given a written warning in relation to smoking in the workshop. This warning was produced to us and again there was no disciplinary procedure in advance of this warning being issued. The warning starts off:
“As you will be aware your timekeeping has been unsatisfactory and that you have been spoken to regarding this on a number of occasions and have received a written warning previously and this is the final one”.
3.15 Smoking is referred to in the letter, and the claimant was reminded that smoking is not permitted during working hours or within company property and that no smoking products should be stored in the company premises. There is no mention in the warning of him having been observed smoking following the discussion on 2 January. He was also reminded that it was not appropriate for him to have a mobile phone on the premises as it was not required as part of his working responsibilities. The respondent alleged that he had seen the claimant spending quite a lot of time on his mobile phone when he observed him on the CCTV monitors. He indicated that there was one occasion when he had observed the claimant spending 23 minutes on his mobile phone. He also indicated that this had not been recorded and that the monitor for the CCTV cameras was in a separate storeroom. The claimant agreed he used his mobile phone on occasions to take calls from his family or the respondent and that he may have looked at data on his phone occasionally during his breaks. The respondent was not watching the CCTV monitor on a regular basis as he spent most of his time in the office or the shop, or indeed the workshop along with the claimant making up furniture. We are unable to make a finding that the claimant was actually smoking in the workshop after 2 January as there was no recording made by the respondent, although he had the means to do it, nor are we able to make a clear finding in relation to the allegation of telephone misuse.
3.16 Again, the written warning which was given to the claimant on 10 January did not set out the duration of the written warning, nor specify any right of appeal. It was the claimant’s evidence that he had been given this warning, and that he had signed one copy of it and handed it back to the respondent, but that he had put a note on the bottom of it saying that he had not previously been warned in relation to mobile phone use or smoking. The claimant did not have a copy of this, and the respondent did not produce it to the tribunal. However, we accept that the claimant made the note as he asserted.
3.17 We were concerned that a number of documents were not produced to the tribunal. The warning in September 2013 was not produced; the respondent was unable to produce any dated copy of the current contract of employment, although he produced the written contract which he said had first been provided to the claimant in 2006 but only in the course of the hearing. The claimant denied he had ever received it. The respondent alleged that he had not been told at the Case Management Discussion to ensure that all documents he intended to rely on at the hearing had been shared with the claimant’s representative, which we do not accept. In spite of the fact that the respondent had some CCTV footage, he had failed to specify what dates it related to and it had not been inspected or viewed by the claimant’s representative before the hearing. In those circumstances, we did not consider it appropriate to view the CCTV footage.
3.18 On 16 January 2014, the respondent alleged that he had again observed the claimant smoking inside the workshop and using his mobile phone on the CCTV monitor. He had not recorded this but he then spoke to the claimant the next day, 17 January 2014. The respondent’s account of this was that he had spoken to the claimant with a view to giving him a final warning in relation to the matter and telling him that he had “one more chance” to ensure that he complied with instructions. The claimant’s account of this meeting was however that he was told that he was dismissed for failing to comply with the final written warning in relation to smoking issued on 10 January 2014. There does not appear to have been any discussion as to whether the claimant conceded he had actually been smoking inside, although his evidence was that he had not. The two accounts of this meeting are completely at odds with each other. The claimant asserted that the respondent said he had been monitoring the claimant’s work and that his employment was terminated. The respondent’s account was that when he told the claimant he was being given a further warning (again, without the disciplinary procedures being followed), the claimant’s answer was that he would be better off on benefits and that the respondent could “stuff his job”. The claimant’s account was that the respondent had sacked him on the spot, that the claimant had called the respondent, “a nasty little shit” and had then walked off.
3.19 The respondent indicated that he had drafted a warning for the claimant and that this written warning was to be given to him on 20 January. This warning was not however produced to us, even in its draft form, so we have no contemporaneous written record of that meeting of 17 January. On balance, we are of the view that the claimant was dismissed by the respondent on 17 January 2014. There are a number of reasons for this. The first is that the warning given on Friday, 10 January 2014, was expressed to be a final warning so on any further misconduct, dismissal could result. Secondly, it was clear that the respondent was very annoyed indeed at what he perceived as the claimant ignoring his instructions and the discussion on 17 January was somewhat heated. The respondent also asserted that the claimant had been committing a criminal offence in continuing to smoke in the workshop, which indeed would be the case under the Smoking (Northern Ireland) Order 2006. It is also strictly speaking a criminal offence for the employer in that situation to permit someone to continue to smoke in a public place (see Article 9 of the 2006 Order).
3.20 However, we are also of the view that the claimant was dismissed because of the events which followed the argument on 17 January. On Monday, 20 January 2014, the claimant did not come to work. The respondent made no attempt to contact him. In the past, if there had been an absence from work the claimant would have contacted the respondent to let him know that he was looking for time off or that he was late, even if it was after the event. In this case there was no such contact, which suggests the claimant had been dismissed. The respondent said that the claimant was usually paid by cheque and that cheque payments were processed on Mondays so that they could be lodged in the bank on Tuesday and therefore cleared to the claimant’s account by Friday, when his payment was due. The wages were administered by Christine, the respondent’s sister. The claimant had asked for an advance of £100 a few weeks before and was repaying this at the rate of £10 per week. The respondent indicated that he would not have agreed to give such an advance to the claimant if he had been intending to dismiss him. On 20 January 2014, the claimant was still entitled to a “lying week” and there was a balance of £70.00 still to be repaid on the advance. Christine processed the payment due to the claimant and deducted the full balance of the advance from it on 20 January when the cheque was written. The respondent said he told Christine that the cheque should be held to see if the claimant would return to work. The cheque was ultimately paid into the claimant’s bank account on 27 January 2014. When the respondent was asked why the cheque had been written on 20 January with the deduction of the full balance of the advance, he indicated that Christine had done that herself. This was at variance with what he had said earlier, when the claimant had indicated that he had contacted Christine by text to let her know that he would be late for work on one occasion, she had replied by text indicating that she would see him later, and the respondent’s reaction was that she had no authority in relation to issues regarding employees. It would seem very strange indeed that she would make a decision in relation to altering the payment of wages to the only other employee in the business without consulting the respondent. It is our belief that this payment was made on the respondent’s instructions, and that the deduction was also made on the respondent’s instructions. This behaviour confirms to us that the claimant was indeed dismissed on 17 January 2014.
3.21 Following this, the claimant sent a letter to the respondent seeking details of the reasons why he had been dismissed. The respondent wrote a letter to the claimant on 7 February 2014, which was opened to us in tribunal. That letter begins:-
“Dear Mr Wilmot
Re your request for P45 and written reasons for dismissal.
As you are well aware you were not dismissed, but left subsequent to a bad tempered outburst when being advised again that your recent performance and timekeeping was still well below an acceptable standard, but we were aware you were still ignoring company policy regarding the use of your mobile phone and that you were still smoking in the workshop (which is both illegal and dangerous).
If it had been the case that you were dismissed as you seem to be suggesting, the reasons would have been:-
(a) smoking in the workplace (gross misconduct/illegal action/ danger to our premises);
(b) persistent unacceptable timekeeping;
(c) persistent poor performance;
(d) refusal to comply it with company policy (mobile phone use).
As you are presumably aware, the balance owing to you (lying week etc,) less the outstanding balance of the advance received by yourself, has been lodged in your bank account and your lodgement book has been forwarded by post. If you consider we have made any miscalculation, please advise us by return.
I hope that this clarifies the position for you.
Yours sincerely
David Alexander Furniture”
3.22 This letter appears somewhat contradictory as it appears first of all to deny that the claimant was dismissed but then to go on to state reasons for dismissal.
3.23 Following the termination of the claimant’s employment he applied for a Jobseeker’s Allowance and was paid Jobseeker’s Allowance from 28 January 2014 until 23 July 2014 at the rate of £72.00 per week. The claimant also gave evidence that he had applied for another number of other posts including a job as a tyre fitter and various other jobs in the Ballymoney, Ballymena and Coleraine areas, so far without success. While employed by the respondent, the claimant’s salary was £245.00 per week gross, £220.88 per week net, and his age at the date of dismissal was 49.
4. RELEVANT LAW
4.1 The law in relation to unfair dismissal is to be found in Articles 126 and following of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”). Article 130 of the Order provides:-
“130(1) In determining for the purpose of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show -
(a) the reason (or, if more than one, the principal reason) for the dismissal, and
(b) that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify dismissal of an employee holding the position which the employee held.”
4.2 Article 130(2) sets out the grounds on which an individual can be fairly dismissed, i.e., capability or qualifications, conduct, redundancy, or breach of a statutory provision.
4.3 Article 130A relates to the procedural requirements in relation to dismissal. It provides as follows:-
“Article 130A (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if -
(a) one of the procedures set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (dismissal and disciplinary procedures) applies in relation to the dismissal,
(b) procedure has not been completed, and
(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.
(2) Subject to paragraph (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee had he followed the procedure...”
4.4 The procedures set out in Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003, insofar as they relate to unfair dismissal, comprise what has become known as the three step procedure. Step 1 of the procedure is notifying the employee of a potential disciplinary matter in writing; Step 2 is a disciplinary meeting at which the employee is entitled to put forward his account of events and to be accompanied; Step 3 is the appeal, after any finding against the employee.
4.5 In the event that an employer fails to follow the appropriate Statutory Dismissal Procedures, any award made by an Industrial Tribunal in favour of the employee shall be increased by 10% and the tribunal may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount to bring the increase up to a maximum of 50% (Article 17(3) of the Employment (Northern Ireland) Order 2003). The duty to make an increase of 10% does not apply if there are exceptional circumstances which would make an increase of that amount unjust or inequitable (Article 17(4)).
4.6 The Case Law makes it clear that Article 130A(2) comes into play only when the statutory dismissal and disciplinary procedures have been complied with. There is no escape for an employer where the Statutory Disciplinary and Dismissal Procedures have been breached and in such cases normal principles for Polkey deductions will apply. The decision in the House of Lords in Polkey v AE Dayton Services Ltd [1987] IRLR 503 HL provides that in essence an employer who has acted unreasonably and in breach of procedures cannot contend that, since the dismissal would have occurred anyway even if proper procedures had been followed, the dismissal should be judged fair. It is only in exceptional circumstances that an employer will be held to have acted reasonably in taking the view that the compliance with fair procedures would be utterly futile. Having found that a dismissal is unfair for procedural defects, in most cases the question of what would have happened had proper procedures been followed is relevant only to the assessment of compensation. The tribunal can reduce the employee’s compensation by a percentage representing the chance that he would still have lost his employment. However the responsibility is on the employer to satisfy the tribunal that it would have dismissed the employee even if it had complied with its procedure. Mere assertion is not sufficient, there must be a proper evidential basis for this finding.
4.7 The remedies to be granted in cases of unfair dismissal can range from reinstatement (where appropriate) to compensation. It is well established that the compensation consists of two elements, a basic award and the compensatory award (Chapter II of the 1996 Order).
4.8 The basic award may be reduced under Article 156(2) where the tribunal considers that any conduct of the complainant before dismissal (or where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of a basic award to any extent.
4.9 Similarly, the compensatory award payable under Article 157 may be reduced by such proportion as the tribunal considers it just and equitable, where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant (Article 156(6)).
5. REASONS AND DECISION
5.1 The nub of this case is to be found in the first three questions which we have posed at the start of this decision. That is, was the claimant dismissed by the respondent or did he resign? If the claimant was dismissed, did the respondent follow the Statutory Disciplinary and Dismissal Procedures? If he did not, was the dismissal automatically unfair contrary to Article 13A(1) of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”).
5.2 As we have set out at paragraphs 3.19 to 3.21, it is our view that the claimant was dismissed by the respondent for the reasons we have set out above. We set this out as a finding of fact in that section of the decision, because it is a matter of fact as to whether the claimant was dismissed or whether he resigned.
5.3 The second issue for consideration is whether the respondent followed the correct Statutory Disciplinary and Dismissal Procedures. The respondent gave evidence that he had sought information from the Labour Relations Agency and from Invest NI. It subsequently appeared from his evidence in cross-examination that he had looked at their websites. He had not however sought any direct advice or legal advice in relation to the procedures to be followed in relation to disciplining a member of staff. He seemed to think that issuing a warning was simply a matter of providing a written warning to the claimant, without going through any investigation or disciplinary procedure. As we have set out above, the Statutory Disciplinary and Dismissal Procedure set out in Schedule 1 to the Employment (Northern Ireland) Order 2003 indicates that there are three steps to be followed in relation to any disciplinary matter. The first involves inviting the employee to a meeting by letter. The letter should set out the alleged grounds for possible disciplinary action. The employee should then be invited to a meeting at which he is entitled to put his side of the story and at which he is entitled to be accompanied by a trade union representative or work colleague. Once the employer has decided on the outcome of the disciplinary hearing, this must be notified to the employee, who should then have the opportunity to appeal against a decision which is unfavourable to him or her. If these three stages are not followed, a dismissal will be automatically unfair under Article 130A(1) of the 1996 Order. This does not preclude an employer from having a more detailed or complex disciplinary policy or procedure and these are the procedures referred to in Article 130A(2) of the 1996 Order. Quite commonly, employers will set out in detail in their disciplinary procedure the types of misconduct which will be treated as minor, major or gross. They may also set out how the disciplinary procedure will escalate if there is a second or third act of misconduct. Often, if the misconduct is minor or serious (but not gross) there will be a first warning (whether verbal or written) followed by a second warning and perhaps even a final warning before dismissal. In each case, however, the provisions of Article 130(A)(2) require that the basic minimum steps of the procedure are complied with.
5.4 In this case, and on the employer’s own evidence, the claimant appears to have been issued with a number of warnings, but not given the proper opportunity to attend a disciplinary meeting, be accompanied by a colleague or a Trade Union representative and to appeal against the decision. The respondent did not produce any letters showing that the claimant had been invited to a disciplinary meeting, and the claimant was clear that he had not been asked to any meetings. The respondent indicated that he had invited the claimant to one meeting which he had refused. Either way, it is clear that the appropriate steps were not followed by the respondent. There were no meetings held, the claimant did not have the opportunity to be accompanied at the meetings and he did not have the opportunity to appeal. We therefore have no hesitation in holding that the claimant was dismissed and also that he was automatically unfairly dismissed contrary to Article 130A(1). We must then move on to consider whether it would be appropriate in this case to give an uplift on the award for unfair dismissal for failure to follow the proper procedures.
5.5 In Butler v G R Carr (Essex) Ltd UKEAT/0122/07 his Honour Judge McMillen QC indicated that the level of award in any given case was a matter of discretion. He said as follows:-
“It will be recalled that the regulations provide a discretion. This is the reason for the use of the word “may”. The range is actually between 0% and 50%, although anything less than 10% must be exceptional. On a scale of 0 to 50, the tribunal has placed this matter at 30, therefore well inside the top zone. The matters to be considered are unlimited. The tribunal must do what it considers just and equitable and what must be considered are “all the circumstances”.”
When the case of Abbey National Plc and Hopkins v Chagger EAT/06/06/07 was before the Employment Appeal Tribunal, Underhill P (as he then was) held that it was legitimate for a tribunal to take into account the overall size of an award when deciding the amount of an uplift; the size was capable of being an “exceptional” circumstance for the purposes of suggesting an uplift of below the standard minimum of 10%. The Court of Appeal in the same case has since endorsed the same approach.
5.6 We have considered the appropriate uplift in this case and we are of the view that the appropriate uplift would be 25%. We are aware that the employer failed to follow the steps properly. He did however make some effort to follow procedure albeit his attempts were cack-handed. We are also of the view that 25% is an appropriate level of award in this case, where the award for unfair dismissal is likely to be reasonably substantial.
5.7 We have also considered whether it is appropriate in this case to make a reduction to the award on the basis of the grounds set out by the House of Lords in the case of Polkey v A E Dayton Services Ltd [1987] IRLR 503 HL. In that case, the House of Lords indicated that if a dismissal is found to be unfair for procedural defects then the fact that the employer would have dismissed in any event even if he had complied with all the proper procedures would not generally render a dismissal fair. It could do so only in very exceptional circumstances where a reasonable employer could dispense with all sorts of procedural safeguards. However, if the employee might have been dismissed in any event this could be taken into account when deciding the question of remedy. We have considered the various incidents to which the respondent referred us. It is clear that there were incidents where the claimant was late for work and where he had more than one unauthorised absence in 2013. He was not however dismissed for this. It would appear that the first written warnings were issued in 2013 allegedly because of the claimant’s lateness for work and poor performance (although there was no written evidence adduced in relation to the September warning). However when the claimant was dismissed in January 2014 it seems clear that the reason for dismissal was the fact that, according to the respondent, the claimant had smoked in the workshop in January 2014 in spite of having been instructed not to. There was also an allegation made that he had been using his mobile phone at work when he should have been working. The claimant was adamant that he had not received any warnings in relation to smoking previously, and indeed in the documentation produced to us, there does not seem to have been any mention of smoking as potential misconduct until the letter of 10 January 2014.
5.8 Some of the evidence adduced by the respondent in relation to the claimant’s alleged misconduct has been unclear and imprecise. In spite of the respondent saying that he had viewed the claimant was smoking in the workshop through the CCTV footage, there was no corroborative evidence of this adduced. In particular, the respondent had not actually recorded footage of the claimant smoking in the workshop on 16/17 January, although he could easily have done so. As it is we are faced with a situation where the respondent gave the claimant a reasonable work instruction mainly not to smoke in the workshop in breach of the smoking ban legislation; the claimant indicated that he did not smoke in the workshop thereafter, but the respondent says that he saw him do this through the CCTV monitor. In the absence of any evidence to confirm this, we cannot make a finding that the claimant did smoke in the workshop in mid-January. Because of lack of evidence from the respondent, we are unable to find that, if proper procedures had been followed, the claimant would nevertheless have been dismissed and so we cannot make any reduction to the award on this basis. Similarly, in the absence of clear evidence of the claimant smoking in the workshop, we are not in a position to find that the claimant’s action contributed to his dismissal and therefore we do not propose to make any reduction to the award in favour of the claimant.
5.9 In relation to the claim for failure to produce written terms and conditions of employment, we find that the respondent did fail to provide the claimant with written terms and conditions of employment and we order the respondent to pay to the claimant 4 weeks’ wages in respect of this breach of legislation.
5.10 The claimant has also claimed 2 weeks’ pay for failure by the respondent to provide written reasons for dismissal. We do not consider it appropriate to make any award in this regard given that at that stage, the respondent was adamant that he had not dismissed the claimant. We also note that in fact, the respondent did provide reasons in his letter of 7 February 2014 to the claimant, although the letter denied the claimant was dismissed.
5.11 The claimant was entitled to the statutory holiday provision of 28 days per year from January to January. For the period worked in 2014, he had accrued 1.6 days’ leave, of which New Year’s Day had been taken as holiday. We calculate the compensation payable to the claimant as follows.
5.12 The claimant was dismissed on 17 January 2014 and had 7 complete years service at the date of dismissal. He was aged 49 at the date of dismissal. His pay while working for the respondent was £245.00 per week gross, £220.88 net. One day’s pay was £44.17 net.
5.13 (1) Basic Award
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7 Years x 1½ weeks x £245.00 = |
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£2,572.50 |
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(2) |
Compensatory Award |
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Loss of Earnings from 17 January 2014 to 21 August 2014 |
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31 Weeks @ £220.88 = |
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£6,847.28 |
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(3) |
Future Loss |
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From 22 August 2014 for 26 Weeks |
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£220.88 x 26 = |
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£5,742.88 |
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Sub Total: |
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£12,590.16 |
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(4) |
Uplift of 25% on Compensatory Award = |
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£3,147.54 |
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Total Compensatory Award |
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£15,737.70 |
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(5) |
4 Weeks Pay for Failure to Provide Written Particulars |
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£245.00 x 4 = |
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£980.00 |
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(6) |
Holiday Pay |
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Accrued Holiday Pay to 17 January 2014 |
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1.6 Days (less New Years Day) = 0.6 days = |
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£26.50 |
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Total: |
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£19,316.70 |
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5.14 The respondent is ordered to pay the claimant the sum of £19,316.70 by way of compensation.
5.15 This is a relevant decision in accordance with the Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations (Northern Ireland) 1996 as amended by the Social Security (Miscellaneous Amendment No 6) Regulations (Northern Ireland) 2010.
5.16 The protected period is from 17 January 2014 to 23 July 2014. The prescribed element of the award is £5,963.76 (27 weeks x £220.88 per week). The compensatory award exceeds the prescribed element by £9,773.94.
5.17 This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Employment Judge:
Date and place of hearing: 20 and 21 August 2014, Belfast.
Date decision recorded in register and issued to parties: