Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    6593/09

 

 

 

CLAIMANT:                      Andrew Stephens

 

 

RESPONDENT:                Nortel Networks UK Ltd (in administration)

 

 

 

DECISION

 

The claimant’s unfair dismissal claim is well-founded.  It is ordered that the respondent shall pay to the claimant the sum of £7,347 in respect of that dismissal.

 

 

Constitution of Tribunal:

 

Employment Judge (sitting alone):      Employment Judge Buggy

 

 

Appearances:

 

The claimant was self-represented.

 

The respondent was not represented.

 

 

REASONS

 

1.       I refer to my decision in Murdock v Nortel Networks UK Ltd (in administration) (case reference no: 6614/09, decision issued on 23 October 2014).  Below, any reference to the “Murdock Decision” is a reference to that decision. 

 

2.       This Decision should be read in conjunction with the Murdock Decision.

 

3.       This Decision should be read as though the contents of paragraphs 1-9 inclusive of the Murdock Decision were set out immediately below.

 

The breach of contract claim

 

4.       This decision is concerned only with this claimant’s claim of unfair dismissal.  In these proceedings, this claimant also has a pending claim for breach of contract.  That is a claim relating to an alleged contractual entitlement to redundancy pay, over and above the statutory redundancy pay entitlement.  (That statutory entitlement has of course already been the subject of a successful application to the Department for Employment and Learning).  The claimant is not abandoning that contractual redundancy claim.  However, the claimant and the administrators are agreed that there is no need for an industrial tribunal adjudication in respect of that claim; instead, the claimant and the administrators expect that the matter can in due course be resolved, between them, during the course of the insolvency process. 

 

The history of this claim

 

5.       This Decision should be read as though paragraphs 13-17 of the Murdock Decision were set out immediately below.

 

This claim

 

6.       This claimant was one of the Northern Ireland employees of Nortel who were dismissed, ostensibly on the ground of redundancy, in March 2009.  The claimant says that he was unfairly dismissed.  This is my decision in respect of that unfair dismissal claim.

 

Liability

 

7.       By email dated 14 July 2014, Ms Amanda Rowe, on behalf of the administrators, confirmed that they do not contest claims made in respect of unfair dismissal, against the respondent, by any Northern Ireland claimants.

 

8.                 Because the respondent is not contesting the unfair dismissal claim, I have jurisdiction to hear that claim as an employment judge sitting alone.

 

9.       It is clear that the respondent did not comply with the statutory dismissal procedure.  Accordingly, on that ground alone, the dismissal is unfair.

 

Compensation issues

 

10.     I refer to paragraph 22 of Murdock, which sets out the compensation issues which had to be determined in that case.  All of the issues there specified also have to be addressed in the circumstances of this case, with the exception of the issues relating to future loss and “grossing up”.  

 

The course of the proceedings

 

11.     For costs reasons, the administrators have decided not to participate in these proceedings. 

 

12.               The evidence in this case mainly consisted of the oral testimony of the claimant.  During the course of that testimony, he referred to a written schedule of loss (“the Schedule”), which sets out the compensation claimed by him.  The amounts set out in the Schedule were subject to some amplification and modification during the course of the testimony.  The Schedule, as so modified, has provided a useful basis for assessing compensation in this case.

 

13.     Mr Stephens has had the benefit of advice and guidance from Mr Francis Bondoumbou.  I have also received written submissions (“Submissions”) which Mr Bondoumbou drafted.  I have taken those Submissions into account in deciding this case.

 

14.     At paragraph 26 of Murdock, I refer to the judgment of an employment judge in England, sitting at Reading, in respect of various unfair dismissal claims, which were heard in 2012, and which were brought by ex-employees of Nortel who had been made redundant in Great Britain in 2009.  In arriving at my conclusions in this case, I have had regard to the statement of applicable legal principles which was set out in the Reading judgment.

 

General

 

15.     This Decision should be read as though the contents of paragraphs 28-31 of Murdock were set out immediately below. 

 

Loss

 

16.     Pursuant to Article 157(1) of ERO, this claimant is clearly entitled to recover in respect of any loss sustained by him in the past, provided that any such loss has been sustained in consequence of the dismissal, and is attributable to the dismissal. 

 

17.     For reasons which are particular to the claimant’s own personal circumstances, he has not made any claim for future loss, and he has not claimed, in these unfair dismissal compensation proceedings, in respect of any loss sustained by him after the period ending on 5 January 2010.  The claimant was dismissed on 30 March 2009.  In assessing his loss, I have taken no account of any loss sustained by him during the 12 weeks beginning on the date of dismissal, because he has already received, from the Department for Employment and Learning, a sum in respect of notice pay, in relation to that period.  Accordingly, in the circumstances of this particular case, the relevant period is the period beginning upon the expiration of 12 weeks after the date of dismissal, and ending on 5 January 2010. 

 

18.     The claimant was on contribution-based Employment Support Allowance (ESA) throughout the relevant period.  Contribution-based ESA is not a recoupable benefit.  Accordingly, the amount of ESA received by the claimant during the relevant period must be deducted, in assessing the extent of the claimant’s recoverable loss in relation to unfair dismissal.  I am satisfied that, if the claimant had not been dismissed on 30 March 2009, he would have been entitled to receive sick pay from the respondent, which would have been as follows: 

 

(1)     During four weeks of the relevant period, he would have received his full net pay (£441.75). 

 

(2)     During the remaining 24 weeks of the relevant period, the claimant would have received half of his net weekly pay. 

 

Throughout the relevant period, the claimant would have received approximately £90 in ESA.  I am satisfied that, in respect of the relevant period, the claimant’s recoverable loss (when due allowance has been made for the ESA paid to him) was £4,548.  To that sum, I have added £350 in respect of loss of statutory rights.  Accordingly, subject to any application of the Polkey principle, the claimant’s loss, in total, amounted to £4,898.         

 

19.     I refer to paragraphs 35-37 of the Murdock Decision.  This Decision should be read as though those paragraphs were set out immediately below. 

 

20.     I deal with the possible application of the Polkey principle later in this decision.  Subject to the possible application of that principle, I was satisfied that the cause of this claimant’s claimed post-dismissal losses (as specified above) was the unfair dismissal and that the loss claimed for in respect of that dismissal is loss attributable to that dismissal.

 

21.     I refer to paragraphs 39-43 of the Murdock Decision.  This decision should be read as though those paragraphs were set out immediately below.  

 

Polkey?

 

22.     This Decision should be read as though paragraph 49-56 of Murdock were set out immediately below. 

 

23.     Because of the factual circumstances noted in those paragraphs of Murdock, and because of the legal principles set out in those paragraphs, I have concluded in this case that there should be no Polkey deduction from the claimant’s compensation. 

 

An Article 17 uplift?

 

24.     This Decision should be read as though the contents of paragraphs 57-66 of the Murdock Decision were set out immediately below. 

 

25.               Against the background set out at paragraphs 57-66 of the Murdock Decision, and having had regard in particular to the Wardle (2) judgment, I have decided that this claimant is entitled to an uplift of 50 per cent pursuant to Article 17 of the Employment (Northern Ireland) Order 2003.

 

26.     That uplift increases the amount of the compensatory award by £2,449.  (See paragraph 18 above). The aggregate of £4,898 and £2,449 is £7,347.

 

Summary and overall conclusions

 

27.     I have assessed the claimant’s recoverable loss as amounting to £4,898, including the sum of £350 in respect of loss of statutory rights.  (See paragraph 18 above).

 

28.     That figure of £4,898 is not subject to any “Polkey” reduction.

 

29.     That figure of £4,898 is however subject to a 50 per cent increase, pursuant to Article 17 of the Employment (Northern Ireland) Order 2003.  (See paragraph 25 above).

 

30.     Accordingly, this claimant is entitled to a compensatory award of £7,347 (which is the sum of £4,898, after being subjected to the 50 per cent uplift mentioned at paragraph 25 above).

 

Recoupment of benefit from awards

 

31.     In the circumstances of this case, the Recoupment Regulations do not apply. 

 

Interest on industrial tribunal awards

 

32.     This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

 

 

 

 

 

 

 

Employment Judge:      

 

 

Date and place of hearing:  7 August 2014, Belfast

 

 

Date decision recorded in register and issued to parties: