Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REFS: 257/15

258/15

259/15

260/15

 

 

 

CLAIMANTS: 1. Lukasz Staszak

2. Marek Lukaszuk

3. Pawel Wyrwas

4. Grzegorz Masiukiewicz

 

 

RESPONDENT: Re-Gen Waste Ltd

 

 

 

DECISION

The unanimous decision of the tribunal is that

 

(1)           The claimants were unfairly dismissed by the respondent.

(2)           The respondent is ordered to pay the first-named claimant the sum of £13,769.45 as set out in the Schedule of this decision.

(3)           The respondent is ordered to pay the second-named claimant the sum of £8,021.26 as set out in the Schedule of this decision.

(4)           The respondent is ordered to pay the third-named claimant the sum of £3,363.76 as set out in the Schedule to this decision.

(5)           The respondent is ordered to pay the fourth-named claimant the sum of £14,384.83 as set out in the Schedule to this decision.

(6)           The claimant's claims of race discrimination have not been proven and are dismissed.

 

Constitution of Tribunal:

Employment Judge: Employment Judge McCaffrey

Members: Mr F Murtagh

Mr D I Atcheson

Appearances:

The claimant was represented by Mr M Corry of Trademark.

The respondent was represented by Mrs M Lavery of the respondent company.

The interpreter was Mr Sebastian Buda.

 

ISSUES

 

1. The claimants were employed as general operatives by the respondent at its plant in Newry, Co Down.

 

2. The issues for the tribunal to consider were as follows:

 

(1)           Were the claimants unfairly dismissed by the respondent following an unauthorised absence on 6 December 2014?

 

(2)           Did the respondents follow the Statutory Disciplinary and Dismissal Procedures set out in Schedule 1 to the Employment (Northern Ireland) Order 2003?

 

(3)           If not, was the claimants' dismissal automatically unfair?

 

(4)           If the dismissal was automatically unfair, should the award of compensation to the claimants be increased by an uplift of between 10% and 50% in accordance with Article 17(3) of the Employment (Northern Ireland) Order 2003 and if so, what award would be just and equitable in the circumstances?

 

(5)           If the dismissal was not automatically unfair, was it fair and reasonable in all the circumstances within the provisions of Article 130 and following of the Employment Rights (Northern Ireland) Order 1996?

 

(6)           Did the respondent discriminate against the claimants on grounds of their race in the manner in which the claimants were dismissed. Specifically, were they disadvantaged compared to a UK or Irish National in the process because of the language hurdles the claimants had to surmount?

 

EVIDENCE

 

3. We received witness statements and heard oral evidence from the claimants and from Mrs Martina Lavery on behalf of the respondent company. A number of documents were also opened to us in the course of the hearing. This was unfortunately, a case which suffered from lack of preparation on both sides and a number of issues had to be clarified by additional information being produced to the tribunal and additional oral evidence heard in the course of the hearing. On the basis of the evidence received, we make the following findings of relevant facts.

 

THE FACTS

 

4. Each of the claimants was employed by the respondent as a general operative at its plant in Newry, Co Down. Mr Lukaszuk was employed by the respondent from 4 December 2013 until 22 December 2014. Mr Masiukiewicz was employed by the respondent from 11 July 2007 until 22 December 2014. Mr Wyrwas was employed by the respondent from 25 August 2012 until 22 December 2014. Mr Staszak was employed by the respondent from 1 January 2009 until 22 December 2014. All of the claimants were in their twenties or early thirties when employed by the respondent and at the date of dismissal.

 

5. The claimants were employed under written contracts of employment which had been provided to them when they started work. Each of the claimants said that they had been handed the contract (which was in English) and told to sign it without any explanation of the contents of it. Mrs Lavery's evidence was that all employees were given an induction in Polish but she specifically put this to one of the claimants who flatly said that he had not received any induction. The claimants each said that effectively they were glad to have work and did not argue in any way about the contract. None of them had fluent English and all required the services of an interpreter at the hearing. They said that effectively they did not understand the terms of the contract which they were given.

 

6. The most relevant section of the contract for the purposes of this claim is Section 7 which deals with the hours of employment. These paragraphs read as follows:-

 

"7.1 The employee does not have any set or basic hours of work and the company enters into no obligation to provide the employee with a minimum number of hours of work. However the employee is obliged to keep themselves available to work for the company and agrees to attend work on any occasion the company requests their services.

 

7.2 The employee may from time to time be required to work outside the normal hours to meet the needs of the company.

 

7.3 The employee hereby agrees that Regulation 4 of the Working Time Regulations 1998 ("WTR") shall not apply to this agreement save that in accordance with Regulation 5 WTR the employee may withdraw his/her agreement to exclude Regulation 4 WTR by giving the company three months' written notice".

 

7. Regulation 4 of the Working Time Regulations relates to the requirement that an employee should not be required to work more than an average of 48 hours per week and Regulation 5 of the Working Time Regulations allows an employee to withdraw their agreement to "opt out" of the 48 hour restriction by giving the employer written notice under the contract which may require up to three months' notice.

 

8. Although claimants did not have fixed hours of work under their contract, they regularly worked five or six days per week. The claimants complained in their claim form that they were regularly asked to do additional shifts and pushed to do the hours of work demanded by the employer. They also asserted that they were clearly told that if they did not come to work they would not have a job.

 

9.             The claimants were notified in advance of which shifts they would be working, by being provided with a rota. The rota however was in the form that it simply told workers which shift they would be on (6.00 am to 5.00 pm or 6.00 pm to 5.00 am), on a particular week but not which days they would be working. The respondents' business often operated for 7 days per week. The claimants indicated that every few months they would be asked to sign a form to indicate how many days a week they wished to work and all of them signed the form to say 5 days. It was Mrs Lavery's evidence however that the rota was to cover the week and that the number of days operatives were expected to work depended on the volume of work going through the plant. If employees could be accommodated for their requested number of days, they would be; otherwise they were expected to work as required. She said that within the terms of the respondent's Waste Management Licence they could not retain waste for more than a certain period. None of this however was in her witness statement.

 

10.          The claimants indicated that on Thursday 4 December 2014 they were told that they would have to work the following Saturday night (6 December). The shift they were working was over a period of 11 hours, with breaks totalling one hour and a quarter, which meant they were paid for 9.75 hours. Working a sixth night having already worked Monday to Friday, meant that they would have Sunday free before starting the following week at 6.00 am on Monday morning. The claimants all indicated that they were tired from work and did not want to work on the Saturday night. They were told by their supervisor however that they must work or they would lose their job. On the Saturday evening (6 December) none of the claimants attended work. They each received a telephone call from their supervisor (also called Lukasz) early on Saturday evening advising them that if they did not come into work that they would be dismissed. Mr Staszak said that Lukasz had told him that if he came in to work late, he would work for free (without payment). This was not in his witness statement either, but Mrs Lavery did not challenge Mr Staszak on this point in cross-examination.

 

11.          The following Monday (8 December) the claimants reported for work but were sent home. Mrs Lavery's evidence was that she had spoken to each of them personally and given them a letter. The claimants all denied that they had received a letter from Mrs Lavery. Mr Lukaszuk and Mr Stazak clarified that they had spoken to his manager Lukasz who wanted to give them and their colleagues "some kind of letter" but they did not accept letters because they were in English and they did not understand them. Mr Staszak confirmed that he had received his letter in the post. The letters invited the claimants to a meeting on 11 December 2014. Although Mrs Lavery referred to the 11 December meetings as investigatory meetings in her witness statement, the content of the letters to the claimants was as follows:-

 

"Dear

 

I am writing to advise you that you are required to attend a disciplinary meeting on Thursday 11 December 2014 at _____ [time varies] which is to be held in Re-Gen Waste Offices.

 

At the meeting the question of disciplinary action against you in accordance with the organisation's disciplinary procedure will be considered with regard to:

 

unauthorised absence.

 

You have the right to be accompanied by a fellow employee or trade union official. It is your responsibility to make arrangements for this.

 

If you do not attend this meeting without good reason I will have to make a decision based on the evidence available to me, without any input from you. I will also regard your failure to attend to be a breach of a reasonable management instruction and may add this to the matters of concern under consideration. The outcome of this could be the termination of your employment with us. Therefore it is clearly in your interest to attend.

 

If you have any queries regarding the contents of this letter then please contact me.

 

Yours sincerely ..."

 

12.          Each of the letters which was produced to us was marked "received 8/12/14" in handwriting. Mr Staszak said that Lukasz had wanted them to sign for the letters, but the claimants had refused to do so. It was only when one of their number received his letter in the post, they then spoke to each other and subsequently to their manager that they realised that they needed to attend the meeting. The claimants were not entirely sure as to what the meeting was about although they realised it was to do with their non-attendance at work the previous Saturday. It was not clear to us, for example, whether the claimants understood their right to be accompanied by a union representative or work colleague at the meeting: none of them was actually accompanied.

13.          Each of the claimants was interviewed on 11 December by Mrs Lavery with another employee Maciej Lega present to assist with translation. Notes of that meeting were prepared in English but were not provided to the claimants until requested on discovery by their representative. The claimants were asked similar questions, largely around why they had not attend for work on the Saturday evening, who had suggested they should not come in, whether they had worked Saturdays and Sundays before and whether they regretted not coming in on the Saturday evening. Mrs Lavery finished on each occasion by telling them that she had other people to interview as part of her investigation into last Saturday night and that she would contact them when her investigations were complete.

 

14.          Following this the claimants remained suspended until invited to a disciplinary meeting on 22 December 2014 at Re-Gen's offices. The letter of invitation indicated that disciplinary action against them would be considered with regard to unauthorised absence and they were advised of their right to be accompanied. This letter did not indicate that they were at risk of being dismissed. It is also relevant to note that the disciplinary procedure which was opened to us in the course of the hearing categorised "persistent absenteeism and/or lateness" as minor misconduct, although it was also noted that this was an example and not an exhaustive list. The introduction to the disciplinary and dismissal procedure includes the following clauses.

 

At clause 4(g) and (h):-

"(g) you will not normally be dismissed for a first breach of discipline, except in the case of gross misconduct;

 

(h) you will only be disciplined after careful investigation of the facts and the opportunity to present your side of the case at a disciplinary hearing."

 

15.          The minutes of the meetings of 22 December 2014 are all virtually identical. These minutes appear to be minutes of individual meetings but in fact the claimants were all interviewed together. Mrs Lavery said this was at their request because they wanted to be together. Again Mr Lega was present to provide translation. The minutes show that the claimants were not given any opportunity to present their case at that meeting, but Mrs Lavery simply told each of them that she had taken the decision to end their employment. They were told that they had the right to appeal this decision and that they could do so in writing within seven days. She indicated that a letter confirming her decision to end their employment would be sent to them and would confirm details of how they could appeal the decision if they wished to do so. The claimants confirmed that Mr Lega had interpreted this for them. Each of the claimants was then sent a letter dated 23 December 2014 by post in which they were dismissed from their employment. The reason for dismissal was given as unauthorised absence from their shift on Saturday 6 December 2014. They were advised of the right to appeal and were told that to exercise their appeal they should write to Mr Noel McEvoy at the respondent company within seven days of receiving the disciplinary decision. The claimants confirmed that they had not received these letters until after the Christmas break. Christmas in December 2014 fell on a Thursday. There would have been no post until 27 December 2014 at the earliest.

 

16.          Each of the claimants then attempted to seek advice in relation to these issues. Each of them individually contacted the Citizens Advice Bureau in Newry and were given appointments to see Patrick Sloan in the second week in January. Each of them confirmed in their witness statement that they also approached the Polish Honorary Consul who is based in Newry to ask for help and they subsequently also received help from Kasia Garbal, support worker for migrant workers at the ICTU office. Mr Wyrwas, Mr Staszak and Mr Masiukiewicz sent letters of appeal to the respondent dated 12 January 2015 and Mr Lukaszuk sent his letter on 16 January 2015. Each of them had obtained receipts from the Post Office in relation to posting of their appeal and produced these to the tribunal. Their witness statements referred to sending the letters of appeal but not that they had obtained receipts. Mrs Lavery's witness statement said simply that no letter appealing her decision had been received by Mr McEvoy within seven days of the disciplinary decision. Because of this there had been a misunderstanding between the claimants' representative and Mrs Lavery. The claimants' representative, aware that the appeal letters had been lodged outside the seven day time limit, simply assumed that they had been ignored. Mrs Lavery's evidence was that the letters had not been received. However on examining the Post Office receipts, Mrs Lavery then made enquiries and confirmed to us that the letters of appeal had been signed for by a member of the respondent's staff named E Anderson. She also confirmed at tribunal that Ms Anderson was a member of the reception staff who was presently on maternity leave. She was unable to speak to Ms Anderson to clarify the position any further. It was however clear that the appeal letters had not been dealt with by Mr McEvoy and no appeals had been heard.

 

 

17.          The claim in relation to race discrimination which the claimants set out in their statements was that they believed the company acted unreasonably in dismissing them and that a local person would not have been disadvantaged in the process because of the language hurdles they had to surmount. The claimants did not enlarge on this particularly in their witness statements. Mrs Lavery's assertion to the tribunal was that training had been supplied for the claimants and other Polish staff in Polish. She also put it to the claimants that they had been provided with training and with induction in Polish. The claimants however were clear that while they had received some training in relation to their work in Polish they had not received any induction training. They also were adamant that when they were presented with their contracts of employment, they were effectively told to sign on the dotted line and not given any explanation of its contents. A couple of them indicated that they needed the work and signed whatever was put in front of them.

Mrs Lavery indicated that a record of delivery of training in relation to Polish language training was signed off as "delivered and understood" by each of the claimants. Each of the claimants however made the point that they did not understand the documentation they were given to sign.

 

18.          No evidence was presented to us to show that the claimants were paid while on suspension from 8 December 2014 until the date of their dismissal. In the response form, the respondent asserted that the claimants' weekly earnings were nil as they were on a zero hours contract. However Mrs Lavery produced no evidence to show that the claimants did not work every week. We therefore accept the evidence of the claimants on this point that each of the claimants earned on average £270 per week (net) when employed by the company. Mr Staszak was on Jobseekers Allowance until he found new work on 8 June 2015. In his new post he works 39.75 hours per week and has net pay of £230-£240 per week.

 

19.          Mr Wyrwas indicated that he had had difficulties with his spine for over a year and was presently unfit for work. Since leaving the respondent's employment he has been ill and is currently in receipt of Employment Support Allowance of £144 per fortnight.

 

20.          Mr Masiukiewicz started a new job on 8 June 2015. Prior to this he had been on Jobseekers Allowance and had received £930.86 in benefits over the entire period. He advised us that his earnings with his new employer were approximately £240 per week net for working 39.75 hours.

 

21.          Mr Lukaszuk advised that he had started a new job with effect from 8 February 2015 and was therefore on Jobseekers Allowance for just three weeks after losing his job although he was out of work for almost two months. In his evidence to the tribunal he confirmed that in his new job his net pay was £230-£240 per week net. He worked on average 43-45 hours per week but was paid overtime for any hours over 40 hours per week.

 

 

 

 

 

 

THE RELEVANT LAW

 

(1)           Unfair dismissal

 

22. The right not to be unfairly dismissed is set out in Articles 126 and following of the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order"). Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides as follows:

 

"130 (1) In determining for the purposes 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 the dismissal of an employee holding the position which the employee held;

 

(2) A reason falls within this paragraph if it -

 

(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

 

(b) relates to the conduct of the employee,

 

(c) is that the employee was redundant, or

 

(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or that of his employer) of a duty or restriction imposed by or under a statutory provision ...

 

(4) In any other case where the employer has fulfilled the requirements of paragraph (1) the determination of the question whether the dismissal is fair or unfair (having regard to the reasons shown by the employer) -

 

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as sufficient reason for dismissing the employee, and

 

(b) shall be determined in accordance with equity and the substantial merits of the case."

 

23. In relation to the issue of procedural fairness, the appropriate provisions are to be found in Article 130A which provides as follows:-

 

"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) the 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 if he had followed the procedure.

 

(3) For the purposes of this Article, any question as to the application of a procedure set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under Article 17 of that Order."

 

...

 

24. The leading authority on unfair dismissal in Northern Ireland is the case of Patrick Joseph Rogan  v South Eastern Health and Social Care Trust [2009] NICA 47. Like the present case, that case related to a case of alleged misconduct on the part of the claimant for which he was subsequently dismissed for gross misconduct.

 

25. The Court of Appeal considered the case law and in particular the previous decision of the Northern Ireland Court of Appeal in Dobbin  v CityBus Limited where they approved the decisions of the Court of Appeal of England and Wales in British Home Stores  v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd  v Jones [1980] ICR 17 as refined and explained in the judgments of Lord Justice Mummery in Foley  v Post Office and HSBC Bank plc (formerly Midland Bank plc)  v Madden [2000] ICR 1283 and Sainsbury's Supermarkets Ltd  v Hitt [2003] ICR 111.

 

26. The nub of the test which must be applied in unfair dismissal cases is stated by Arnold J in British Home Stores:-

 

"First of all there must be established by the employer the fact of that belief (ie the belief in the misconduct); that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds on which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those two matters, we think, who must not be examined further. It is not relevant, as we think that the tribunal would themselves have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only on the basis of being "sure" as it is now said more normally in a criminal context, or, to use the old fashioned term such as to put the matter "beyond reasonable doubt". The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, the conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion."

 

27. The Court in Rogan cited further with approval the opinion of Lord Carswell in Re D [2008] UKHL 33 where it is noted that the more serious the allegation, the greater the need for more cogent evidence to overcome the unlikelihood of what is alleged. While bearing in mind that the standard of proof required in a civil case was finite and unvarying, Lord Carswell indicated that there may be situations which make heightened examination necessary, for example, given the seriousness of the allegation to be proved or in some cases the consequences which could flow from acceptance of proof of the relevant fact (see paragraph 17 of the judgment). This approach has been endorsed recently by Lord Justice Elias in his detailed judgment in the case of Turner  v East Midland Trains Ltd [2012] EWCA Civ 1470. At the start of his judgment Lord Justice Elias restated the established principle, that an employment tribunal has to determine whether an employer has acted fairly within the meaning of the English equivalent of Article 130 of the Employment Rights (Northern Ireland) Order 1996 by applying what is colloquially known as the "band of reasonable responses" test. He repeated that it was not for the tribunal to substitute its own view for that of a reasonable employer. He made two important observations about the test. The first was that it must not be confused with the classic Wednesbury test whereby a court can interfere with a substantive decision of an administrator only if it is perverse. The second observation is that it is relevant to have regard to the nature and consequences of the allegations which are all part of the circumstances of the case. He referred to his judgment in A  v B [2003] IRLR 405 where he said,

 

"Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and not lawyers. Of course, even in the most serious of cases, it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the enquiries should focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him".

 

It was also noted in Sainsbury's Supermarkets Ltd  v Hitt [2003] IRLR 23 by the Court of Appeal in England and Wales that the "band of reasonable responses" test does not simply apply to whether the sanction of dismissal was permissible. It bears on all aspects of the dismissal process, including whether the pre-dismissal investigation was fair and appropriate.

 

28. In Bowater v North West London Hospitals NHS Trust [2011] EWCA Civ 63, the Court of Appeal considered a decision of the Employment Appeal Tribunal which had set aside a decision of an employment tribunal. The employment tribunal had determined that a remark made by a nurse in an Accident & Emergency Department was not a sufficient basis for a fair dismissal. Lord Justice Longmore stated at Paragraph 18 of the decision that:-

 

"I agree with Stanley Burnton LJ that dismissal of the appellant for her lewd comment was outside the range of reasonable responses open to a reasonable employer in the circumstances of the case. The EAT decided that the ET had substituted its own judgment for that of the judgment to which the employer had come. But the employer cannot be the final arbiter of its own conduct in dismissing an employee. It is for the ET to make its judgment always bearing in mind that the test is whether dismissal is within the range of reasonable options open to a reasonable employer."

 

He continued at Paragraph 19:-

 

"It is important that, in cases of this kind, the EAT pays proper respect to the decision of the ET. It is the ET to whom Parliament has entrusted the responsibility of making what are, no doubt, sometimes difficult and borderline decisions in relation to the fairness of dismissal."

 

29. In Fuller v London Borough of Brent [2011] EWCA Civ 267, the Court of Appeal again considered a decision of the Employment Appeal Tribunal which had set aside the decision of an employment tribunal on the basis that the employment tribunal had substituted its view for the decision of an objective reasonable employer. Lord Justice Mummery stated at Paragraph 7 of the decision that:-

 

"In brief the council's case on appeal is that the ET erred in law. It did not apply to the circumstances existing at the time of Mrs Fuller's dismissal the objective standard encapsulated in the concept of the 'range or band of reasonable responses'. That favourite form of words is not statutory or mandatory. Its appearance in most ET judgments on unfair dismissal is a reassurance of objectivity."

 

At Paragraph 38 of the decision, he continued:-

 

"On a proper self-direction of law I accept that a reasonable ET could properly conclude that the council's dismissal was outside the band or range of reasonable responses and that it was unfair. If, as I hold, the ET applied the objective test, it did not err in law and there was no ground on which the EAT was entitled to set it aside or to dismiss Mrs Fuller's claim."

 

30. The statutory disciplinary and dismissal procedures set out in Schedule 1 of the 2003 Order comprise three stages: a letter from the employer to the employee, setting out the alleged misconduct and inviting the employee to a disciplinary meeting at which he is entitled to be accompanied; the disciplinary meeting at which the employee is entitled to be heard and to reply to the allegations against him; a written decision to the employee and if appropriate, the right to appeal the decision.

 

31. Article 17(3) of the Employment (Northern Ireland) Order 2003 makes provision for the uplift of awards in cases to which the statutory procedures apply, but they have not been followed due to the failure of the employer. The tribunal should increase the award by 10% and may, in situations where it considers it just and equitable to do so, increase it by up to 50%.

 

32. The legislation in relation to awards for unfair dismissal is set out at Article 152 and following of the 1996 Order which sets out provision for the calculation of the basic award and compensatory award. Articles 154(1A) and (1B) provide that:-

 

"Where -

 

(a) an employee is regarded as unfairly dismissed by virtue of Article 130ZG or 130A(1) (whether or not his dismissal is unfair or regarded as unfair for any other reason);

 

(b) an award of compensation falls to be made under Article 146(4); and

 

(c) the amount of the award under Article 152(1)(a) [the basic award] ... is less than the amount of four weeks' pay,

 

the industrial tribunal shall, subject to paragraph (1B), increase the award under Article 152(1)(a) to the amount of four weeks' pay.

 

(1B) An industrial tribunal shall not be required by paragraph (1A) to increase the amount of an award if it considers that the increase would result in injustice to the employer".

 

33. On the guidance given by the Northern Ireland Court of Appeal in Brinks Ireland Ltd v Hines [2013] NICA 32, if a tribunal decides it is appropriate to award a statutory uplift under Article 17(3) of the 2003 Order, it should spell out clearly its reasons for so deciding and for its decision on which percentage uplift should be applied.

 

34. Mrs Lavery indicated that she was familiar with the Labour Relations Agency Code of Practice on Disciplinary and Grievance Procedures. In the Foreword to that Code of Practice the following paragraph is to be found:-

 

"Operation of Disciplinary and Grievance Procedures

 

To accommodate the handling of disciplinary and grievance procedures in the workplace employers should pay particular attention to those employees who have difficulty reading or whose first language is not English. To ensure that the disciplinary and grievance procedures are understood and operate effectively the use of translators or interpreters might be considered."

 

35. Paragraph 57 includes the following, under the heading "Rules":-

 

"Management should take all reasonable steps to ensure that every employee knows and understand the rules, including those employees whose first language is not English or who have trouble reading. This is often best covered as part of an induction process indicating the status of each rule".

 

36. In relation to compensation to be awarded to the claimants for unfair dismissal, the relevant provisions are Article 152 to 158 of the Employment Rights (Northern Ireland) Order 1996 (the 1996 order). Article 156(2), which relates to reductions of the basic award, indicates that where the tribunal considers any conduct of the complainant before the dismissal was such that it would be just and equitable to reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly. There is a parallel provision in Article 157(6) in relation to reductions of the compensatory award where the dismissal has been caused or contributed to by any action of the complainant.

 

(2) Reasons and Decision on Unfair Dismissal

 

37. In this case it is clear to us that the Statutory Dismissal and Disciplinary Procedures were not properly followed. The claimants were not afforded the right of an appeal meeting as required by the procedures. While Mrs Lavery's dismissal letter to each of the claimants dated 23 December gave them seven days in which to lodge an appeal, the evidence of the claimants (which we accept) was that they did not receive these letters until after the Christmas holidays. The very idea of sending a dismissal letter to someone on 23 December just before the Christmas holidays and which gives them seven days to appeal beggars belief. While the claimants had sufficient initiative to seek advice and to have appeal letters lodged, albeit outside the time limit, the employer must have been aware that it would be difficult for the claimants to seek advice in relation to an appeal between Christmas and 1 January. They then attempted to make appointments with the Citizens Advice Bureau to seek advice but were unable to get an appointment until the second week in January. At that stage they acted as promptly as they could in lodging their appeals and this was not disputed by the respondent in any way. Mrs Lavery indicated in her evidence to the tribunal that she had spoken to the Directors of the respondent company and they had indicated that if the appeal letters had been received late, they would have allowed the appeals to proceed even though it was outside the seven day limit. However this information only came through after we had to adjourn the hearing to try to clarify the issue of whether or not the appeal letters had been received by the respondent company, and after it was established that a member of the respondent's staff had indeed signed Post Office documentation to acknowledge receipt of them. What happened to the letters after they were received is an unsolved mystery. What is clear however is that the claimants were not afforded an appeal meeting as required under the Statutory Disciplinary and Dismissal Procedures. For this reason alone their dismissals are automatically unfair.

 

38. We consider it appropriate however to state our misgivings about some other aspects of the procedure. In the first place, the letters of 8 December to the claimants refer to an invitation to a disciplinary meeting. Mrs Lavery referred to this meeting in her statement as an investigatory meeting and the minutes of the meeting finish with her advising each of the claimants that she has "further investigations" to carry out. Categorising this meeting as a disciplinary meeting in our view is therefore misleading. If it was a disciplinary meeting, then the invitation to it did not clearly say whether the alleged misconduct was categorised as minor, major or gross and what the likely outcome would be if the misconduct was found to be proven. The way the letter was phrased (see para 11 above) makes it unclear whether the mention of dismissal as a penalty relates to the original charge of misconduct or failure to attend the meeting. Apart from Mrs Lavery asking the claimants at the 11 December meeting if they wished to say anything else, they were not given an opportunity to speak in their own defence. The minutes of the meeting do not record that the claimants were clearly offered the opportunity to be heard, nor was it made clear that this was going to be their only opportunity to defend themselves.

 

39. The claimants appear to have been suspended for approximately two weeks without pay which in our view is contrary to best practice. It is not clear in any event why one unauthorised absence of one shift should lead to suspension or would be treated as a dismissible offence. Mrs Lavery attempted to cross question the claimants in relation to an unofficial strike and referred to this in her witness statement but this was neither here nor there in terms of the claims before us and which we had to address. There was no clear evidence of a strike, whether official or otherwise.

 

40. When asked about the categorisation of a one-off absence as gross misconduct, Mrs Lavery pointed to the clause in the Disciplinary Procedure which simply indicated that it was for the employer to categorise misconduct. While we accept that this is the case, it is also important to show consistency of treatment. When asked, Mrs Lavery indicated that she was aware of some other employees who had been dismissed for two or three days' absenteeism without any contact, but could not point to anyone else who had been dismissed for a one-off absence as the claimants were.

 

41.          The meeting on 22 December 2014 was billed as a disciplinary meeting and therefore should have given the claimants the opportunity to present their case, but in fact Mrs Lavery simply advised them that they were being dismissed. Also, the letter of invitation was dated 19 December and was presumably sent the same day, a Friday. The disciplinary meetings were held on Monday 22 December which gave little time to arrange for accompaniment. The letter inviting them to the meeting gave no indication that their absence was being treated as gross misconduct and that therefore one of the outcomes could be dismissal.

 

42.          Mrs Lavery also advised that other individuals on the same shift who had been late to work that night had been given a final written warning, but not dismissed. Only the four claimants who did not actually come to work were dismissed.

 

43. The claimants make a specific point in relation to the process of unfair dismissal insofar as it related to their lack of language skills. They say their lack of English is another hurdle for them to surmount which would not have been an issue to local employees whose first language was English. We accept that the claimant's language skills in this case were poor and that they had difficulty in understanding exactly what was going on. This is most unfortunate and difficult to understand, given that all of them had been working for the respondent for over a year and indeed two of them had been working there for seven years. We also appreciate that the respondent had provided some training in Polish but we accept the claimant's evidence that the contents of their contracts of employment were not explained to them before they were asked to sign them. We are not clear either that the contents of the contract would have been clearly understood by them even if it had been available in translation. Paragraph 7 of the contract of employment (see paragraph 6 above) would not in our view be clearly understood by many people even if their first language was English. A reference to regulations in the Working Time Regulations, without an explanation of their content, is frankly meaningless to anyone other than a specialist employment lawyer.

 

44. In this case, where the company had already implemented some training in Polish, we consider it would have been important at least for the claimants to have been made aware of the contents of any correspondence sent for them in English so that they had the opportunity to prepare for the meeting and ensure a fair hearing. Mrs Lavery was aware that none of the claimants spoke good English as evidenced by her arranging for Mr Lega to attend meetings. She does not however appear to have considered at all whether they needed the letters translated. While the LRA Code of Practice refers to the use of translators or interpreters being considered by employers, we can see that a strict obligation to provide translations of documents may be seen as onerous for employers, depending on the size of the operation. In this case we believe that it would have been reasonable and relatively inexpensive for the employer to ask Mr Lega to bring the letters to the claimants and to interpret the letter for them when it was being given to them. We also believe it would have been reasonable to provide the claimants with sufficient time to arrange proper representation at the meetings. We accept that at least one of the claimants only received his letter by post less than two days before the meeting. The others indicated to us that they had not accepted the letters by hand because they did not understand them and were only made aware of the meeting through conversations with each other. Certainly the letters of 19 December sent to each of the claimants were sent on a Friday in advance of a meeting scheduled for Monday, which gave the claimants little or no opportunity to arrange for a union representative to attend with them if they wished to do so.

 

45. While we accept that the contents of paragraph 7 of the contracts of employment are strictly speaking within the letter of the law, we do not consider that they are within its spirit. For any employer in this day and age to provide a contract of employment which seeks to avoid the employer's responsibility to provide work, guarantees no minimum number of hours and yet does not allow an employee to refuse a shift but to be available at all times to undertake work seems to us to be oppressive. Comparisons with Victorian sweat shops are glib, but it seems to us that a zero hours contract which also opts out of the Working Time Regulations smacks of a bygone age rather than the twenty-first century, where employers are generally expected to show consideration for their employees' welfare. The claimants in this case asserted, and we accept, that they were under threat of dismissal if they refused to come to work. Mrs Lavery also indicated that she herself had a zero hours contract but she did not suggest that she was being asked to work in excess of 60 hours a week or to work an 11 hour shift.

 

46. Taking the disciplinary and dismissal process applied by the respondents in the round and applying the principles in Sainsburys v Hitt (see para 27 above), we are not satisfied that the decision to dismiss the claimants for a one-off unauthorised absence falls within the band of reasonable responses. Mrs Lavery was unable to show us that this was a policy applied by the respondent. She was also unable to show that the respondent (as opposed to a supervisor) had advised the claimants or indeed the workforce in general that a single unauthorised absence would be treated as gross misconduct and could therefore lead to dismissal. Indeed the disciplinary policy instead refers to persistent absenteeism or lateness as minor misconduct. The correspondence which was sent to the claimants in relation to the disciplinary hearing did not in our view make it clear that the alleged misconduct was being treated as gross misconduct and therefore could lead to dismissal. We have set out above our concerns about the overall process at paras 38-45 above. For all these reasons we consider that the decision to dismiss the claimants for unauthorised absence falls outside the band of reasonable responses. In so doing we are conscious of the need for us not to substitute our view for that of the employer. However in light of the decision which we have quoted above in Newbound v Thames Water Utilities Ltd, we consider that this is a case where we must decide that the employer has acted unreasonably in deciding to dismiss.

47. We are satisfied that the claimants were automatically unfairly dismissed by reason of the respondent's breach of the Statutory Disciplinary and Dismissal Procedure in failing to hold an appeal meeting. We are satisfied also that if this had not been the case that the dismissals were procedurally and substantively unfair for the reasons set out at paragraphs 38-45 above and we order the respondent to pay to the claimants the amounts set out in the Schedule to this decision. We also recommend that the respondent company in this situation should review their Disciplinary and Dismissal Procedures to ensure that they comply not only with the letter of the law but also best practice as set out in the LRA Code of Practice on Disciplinary and Grievance Procedures.

 

48. In considering the statutory uplift in this matter for failure to follow the Disciplinary and Dismissal Procedures, we are satisfied that the uplift in the case should be 35% of the award. In making this award we are aware of the guidance given in Slingsby v Griffith Smith Solicitors, where the EAT held that an award of 50% should be given only in "the worst case that would come before a tribunal". We are aware that in this case, Steps 1 and 2 of the procedure were followed, although we have reservations as to whether the claimants were really given a "reasonable opportunity" to consider their response to the Step 1 letter before the Step 2 meeting. We consider that the way in which the claimants were dealt with was high handed in the extreme. The letters they were offered on 8 December were apparently intended as Step 1 letters which are meant to provide the claimant with details of the alleged misconduct so that they can prepare for a disciplinary meeting. The fact that there was then some lack of clarity as to the nature of the meeting on 11 December was unhelpful. Furthermore the letter sent to the claimants on 19 December failed to categorise the alleged misconduct as minor, major or gross and did not make clear what the likely penalty would be if it was found to be established. The meeting on 22 December did not in our view provide the employee with a proper opportunity to be heard and to reply to the allegations against him which is required by the Statutory Disciplinary and Dismissal Procedures. Finally of course there was the total ineptitude surrounding the appeal in that the respondent clearly received the appeal letters from the claimants but failed to completely act on them. In all these circumstances we consider it appropriate to award an uplift of 35%.

 

 

(3) Race Discrimination - The Relevant Law

 

49. The legislation in relation to unlawful race discrimination in Northern Ireland is contained in the Race Relations (Northern Ireland) Order 1997 as amended. In particular Article 3 of the 1997 Order provides as follows:-

 

"3(1) A person discriminates against another in any circumstance relevant for the purposes of any provision of this Order if -

 

(a) on racial grounds he treats that other less favourably than he treats or would treat other persons; or

 

(b) he applies to that other or requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but -

 

(i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and

 

(ii) which he cannot show to be justifiable irrespective of the colour, race, nationality, ethnic or national origins of the person to whom it is applied; and

 

(iii) which is to the detriment of that other because he cannot comply with it.

 

(3) A comparison of the case of a person of a particular racial group with that of a person not of that group under paragraph (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."

 

50. In relation to discrimination in employment, Article 6 of the 1997 Order provides as follows:-

 

"6. (1) It is unlawful for a person, in relation to employment by him at an establishment in Northern Ireland, to discriminate against another -

 

(a) in the arrangements he makes for the purpose of determining who should be offered that employment ...

 

(2) It is unlawful for a person, in the case of a person employed by him at an establishment in Northern Ireland, to discriminate against that employee -

 

(a) In the terms of employment which he affords him; or

 

(b) in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or

 

(c) by dismissing him, or subjecting him to any other detriment."

 

51. It is relevant to note that the onus lies on the claimant in each case to prove facts which the tribunal could conclude in the absence of an adequate explanation that the respondent has committed the act of discrimination alleged.

 

52. The guidance set out in Igen Ltd v Wong and Others [2005] EWCA Civ 142 has been specifically approved and enlarged upon by the Court of Appeal in England and Wales in Madarassy v Nomura International Plc [2007] EWCA Civ 33 [2007] IRLR 246. In that case Lord Justice Mummery confirmed that the words "could conclude" in Article 52 of the 1997 Order must mean "a reasonable tribunal could properly conclude" from all the evidence before it that discrimination has occurred. Madarassy stressed that a difference in status and a difference of treatment were not sufficient to reverse the burden of proof automatically. In Laing v Manchester City Council [2006] IRLR 748 (a claim of race discrimination), Elias P sounded a note of caution against taking from Igen a mechanistic approach for proof of discrimination. He stated as follows:-

 

"What must be borne in mind by a tribunal faced with a race claim is that ultimately the issue is whether or not the employer has committed an act of race discrimination.

 

The shifting in the burden of proof simply recognises that there are problems of proof facing an employee which would be very difficult to overcome if the employee had at all stages to satisfy the tribunal on the balance of probabilities that certain treatment had been by reason or race (paragraph 71 of the judgment) ...

 

In most cases it will be sensible for a tribunal formally to analyse a case by reference to the two stages. But it is not obligatory on them formally to go through each step in each case. As I said in Network Rail Infrastructure v Griffith-Henry [2006] IRLR 865 ... it may be legitimate to infer that a black person may have been discriminated against on grounds of race if he is equally qualified for a post which is given to a white person and there are only two candidates, but not necessarily to do so if there are many candidates and a substantial number of other white persons are also rejected ..."

 

53. It has sometimes been suggested that it would be helpful to approach a situation where direct discrimination is said to exist by adopting a two stage test: first to ask whether there was less favourable treatment and secondly to ask whether it was on grounds of race (as in this case). In other words the tribunal should ask "the reason why" question after less favourable treatment has been proven to exist. If an actual comparator can be identified this will often be a sensible approach but it may not always be correct. As Lord Nicholls observed in Shamoon v The Chief Constable of the RUC [2003] UKHL 11, the question of less favourable treatment than an appropriate comparator and the question of whether that treatment was on the relevant prohibited ground may be so intertwined that one cannot be resolved without at the same time deciding the other. As Lord Justice Mummery observed in Aylott v Stockton and Tees Borough Council [2010] EWCA Civ 910, there is essentially a single question: did the claimant on the prescribed ground receive less favourable treatment than others? Lord Justice Mummery continued:-

 

"Once it is found that the reason for the treatment was a prescribed one there should be no difficulty in deciding whether the treatment on that ground was less favourable than the treatment that was or would have been afforded to others. If the evidence establishes that the reason for the treatment is the claimant's disability [in that case] then it would usually follow that the hypothetical comparator would not have been treated in the same way and there will be discrimination." (See para 41 of the judgment).

 

(4) Reasons and Decision on Race Discrimination

 

54. The claimants' claims of race discrimination have not, in our view been made out. Mr Corry asserted that he believed it was discriminatory for the claimants not to have had correspondence provided to them in their own language. We have addressed this above at paras 43 and 44 in the context of unfair dismissal. We do not consider that there is sufficient evidence before us to show that the claimants were less favourably treated than other operatives of different nationalities in the same or similar circumstances on grounds of their race (emphasis added).

 

55. In this case the claimants confirmed that there was no one of UK or Irish nationality working on the same production line as them or carrying out the same tasks. We are conscious that in order to find a comparator, whether actual or hypothetical, the comparator's circumstances must be taken to be the same or not materially different from those of the claimant. There is certainly no actual comparator to whom the claimants pointed us. In general terms, they said that it was only migrant workers who were asked to come in at weekends, but there was no clear evidence of this. Mrs Lavery pointed to other local workers who were in at weekends as well and the claimants agreed that some local workers were in. As regards this aspect of the case, we do not consider that we have sufficient evidence before us on which to ground a finding of race discrimination. The claimants have not in our view demonstrated that they have been less favourably treated than others of a different racial background on grounds of their race. We reach this conclusion with some reluctance: it is our view that the claimants have been poorly treated by the respondent, but we cannot say that the reason why they were treated in this way was on grounds of their race. Accordingly the claimant's claims of race discrimination will be dismissed.

 

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

 

 

 

Employment Judge:

 

Date and place of hearing: 12, 13, 14 October 2015, Belfast.

 

 

Date decision recorded in register and issued to parties:




SCHEDULE

 

Compensation payable to each of the claimants

 

First of all, we set out a number of the principles on which these payments are calculated. The basic award is calculated on the basis of one week's gross pay for each complete year of service. Where there has been a breach of the statutory disciplinary and dismissal procedures, the basic award shall be increased to four weeks' pay (if it would otherwise be less than four weeks) under Article 154(1A) of the 1996 Order. We were not given evidence in relation to the gross pay received by the claimants and no payslips were produced. We have used a calculator available on the internet which shows that where net pay is £270 per week, this equates to a gross annual salary of £16,000 approximately. On this basis the claimants' gross pay would have been £307.69 per week. We have used this figure in calculating their basic award.

 

We have also awarded the claimants two weeks' net pay in relation to arrears of pay as we understand that they were not paid during their period of suspension. They were also dismissed without notice and we consider that they were entitled to notice which again is calculated according to the statutory basis set out in Article 118 of the Employment Rights (Northern Ireland) Order 1996. Broadly speaking this equates to one week's notice for each year of service and where they were not permitted to work their notice, they are entitled to receive a week's pay in lieu of notice.

 

Under the heading of the compensatory award, the tribunal should award such amount as is just and equitable in all the circumstances. We have therefore made an award for loss of earnings from the date of dismissal (allowing for notice) until the date when the claimants found alternative work, together with an amount for ongoing loss. The tribunal hearing of this case was approximately ten months after the claimants were dismissed. In light of this we consider it appropriate to make an award for future loss of 26 weeks.

 

In the case of Mr Wyrwcz, he indicated to us that he had not been fit to work from the date he left respondent's employment and was currently receipt of Employment Support Allowance. In these circumstances we do not consider it appropriate to award him anything in relation to loss of earnings, as he was unable to work.

 

The awards made to Mr Lukaszuk, Mr Masiukiewicz and Mr Staszak are all subject to recoupment of Jobseekers Allowance. We have set out under the awards to each of the claimants the dates from which the benefits were paid and the relevant information as required by the Recoupment regulations.

 

 

 

 

 

 

 

 

 

 

 

 

 

Lukasz Staszak

 

Mr Staszak had five complete years service working for the employer.

 

He found a new job on 8 June 2015 and received Jobseekers Allowance from 26 January until 8 June 2015.

 

Basic Award

 

Gross Pay £307.69 x 5 years = £1,538.45

 

Compensatory Award

 

Notice Pay 5 weeks x £270 = £1,350.00

 

Arrears of Pay 2 weeks x £270 = £ 540.00

 

Loss of Statutory Rights = £ 500.00

 

The claimant found new work from 8 June 2015.

 

Allowing for his notice period he was out of work for 19 weeks.

 

£270 x 19 weeks = £5,130.00

 

Loss of Earnings

 

The claimant's salary in his new job is £235.00 per week,

an ongoing loss of £35.00 per week.

 

Loss

 

From 8 June 2015 to 15 October 2015 £35.00 x 18 = £ 630.00

Future Loss

 

£35.00 per week for 26 weeks 26 x £35.00 = £ 910.00

 

£270.00 - £235.00 = £35.00 less per week ______

 

Sub Total £ 9,060.00

 

Uplift 35% £ 3,171.00

________

TOTAL MONETARY AWARD £13,769.45

Recoupment

 

The full amount of the monetary award is £13,769.45

 

The prescribed element is £5,130.00

+ £ 630.00

_______ £ 5,760.00

The prescribed element is attributable to the period from 26 January 2015 until 8 June 2015.

 

The monetary award exceeds the prescribed element by £8,009.45

 




Grzegorz Masiukiewicz

 

Mr Masiukiewicz had worked for the respondent for seven complete years.

 

Basic Award

 

Gross Pay £307.69 x 7 years = £ 2,153.83

 

Compensatory Award

 

Arrears of Pay

 

8 December 2014 to 22 December 2014

 

£270.00 x 2 weeks = £ 540.00

 

 

Loss of Statutory Rights = £ 500.00

 

The claimant is entitled to payment in lieu of notice.

He should have received seven weeks' notice of

dismissal.

 

£270.00 x 7 = £ 1,890.00

 

Loss of Earnings

 

The claimant found new work on 8 June 2015 allowing

for notice. He was out of work for 17 weeks.

 

£270.00 x 17 = £4,590.00

 

Loss

 

From 8 June 2015 to 15 October 2015 £35.00 x 18

 

The claimant's salary in his new job is £235.00 per week.

 

£270.00 - £235.00 = £35.00 less per week

 

8 June 2015-15 October 2015 = 18 weeks

18 weeks x £35.00 per week = £ 630.00

Future Loss

 

£35.00 per week for 26 weeks

 

£35.00 x 26 = £ 910.00




Sub Total £9,060.00

 

Uplift 35% £3,171.00

________

 

TOTAL MONETARY AWARD £14,384.83

Recoupment

 

The claimant was in receipt of Jobseeker's Allowance from 15 January 2015 until 8 June 2015.

 

The full amount of the monetary award is £14,384.83

 

The prescribed element is: £ 4,590.00

+ £ 630.00

________

 

£5,220.00 £ 5,220.00

 

The prescribed element is attributable to the period from 26 January 2015 until 8 June 2015.

 

The monetary award exceeds the prescribed element by £ 9,164.83

 

 




Marek Lukaszuk

 

Mr Lukaszuk had one year's service.

 

Basic Award

 

Gross Pay £307.69 x 4 weeks = £1,230.76

 

Compensatory Award

 

Notice Pay

 

The claimant is entitled to one week's net pay in lieu of notice.

 

= £ 270.00

 

Arrears of Pay

 

8 December 2015 until 22 December 2015

 

£270.00 x 2 weeks = £ 540.00

 

Loss of Statutory Rights = £ 500.00

 

Loss of earnings

 

29 December 2014 to 8 February 2015 - 6 weeks

 

£270.00 x 6 = £1,620.00

 

Loss

 

From 8 February 2015 to 15 October 2015

 

£270.00 - £235.00 = £35.00 per week x 34 weeks = £1,190.00

Future Loss

 

£35.00 per week for 26 weeks 26 x £35.00 = £ 910.00

 

Sub Total £5,030.00

 

Uplift 35% £1,760.50

________

 

TOTAL MONETARY AWARD £8,021.26

Recoupment

 

The full amount of the monetary award is £8,021.26

 

The prescribed element is £1,620.00

+ £1,190.00

£2,810.00

The prescribed element is attributable to the period from 16 January 2015 until 8 February 2015.

 

The monetary award exceeds the prescribed element by £5,211.26




Pawel Wyrwas

 

Mr Wyrwas had two complete years' service and was aged 31 at the date of dismissal.

 

Basic Award

 

Gross Pay £307.69 x 4 years = £1,230.76

 

Compensatory Award

 

Notice Pay

 

The claimant was entitled to 2 weeks pay in lieu of notice.

 

2 weeks x £270.00 = £ 540.00

 

Arrears of Pay

 

8 December 2014 to 22 December 2014

 

£270.00 x 2 weeks = £ 540.00

Loss of Statutory Rights = £ 500.00

 

The claimant advised that he was sick and unable to work from the date of his dismissal until the tribunal and therefore we make no award for loss of earnings.

 

Sub Total £1,580.00 £1,580.00

 

Uplift 35% £ 553.00 £ 553.00

________

 

TOTAL MONETARY AWARD £3,363.76

Recoupment

 

As none of the awards made to the claimant are made in respect of loss of earnings, none of the award is subject to recoupment of benefits.