Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 950/14

 

CLAIMANT: Geraldine Christie

 

RESPONDENTS: 1. Glasswater Lodge Retirement Home Ltd

2. Leslie Reid

3. Sara Reid

 

REMEDIES DECISION

The unanimous decision of the tribunal is that:-

 

 

(1) The remaining claims of unfair dismissal and of failure to provide statutory particulars of employment are dismissed against the second and third-named respondents. The claims proceed against the first-named respondent only.

 

(2) The claimant is awarded two weeks' gross pay, subject to the statutory cap, in accordance with Article 27 of the Employment (Northern Ireland) Order 2003 (failure to provide a statement of employment particulars), amounting to £940.00. There are no exceptional circumstances particular to this issue which would justify a reduction of this award. It is not subject to any contributory or Polkey reduction.

 

(3) In relation to the finding of technical or automatic unfair dismissal, the claimant's basic award is reduced on the ground of contributory conduct by 75% and is calculated as follows:-

 

11 complete years x gross weekly pay (statutory cap)

£470 @ age 62 = £7,755.00

 

£7,755.00 reduced by 75% = £1,938.75

 

(4) The claimant is not entitled to any compensatory award. The issues of a statutory uplift, contributory conduct and of Polkey deductions and of the sequencing of those uplifts and deductions do not arise.




 

 

(5) The total award is:-

 

Basic award £1,938.75

Article 27 £ 940.00

Total £2,878.75

 

 

Constitution of Tribunal:

 

Vice President: Mr N Kelly

 

Members: Mr M Grant

Ms M Mulligan

 

 

Appearances:

 

The claimant was represented by Mr N Phillips, Barrister-at-Law, instructed by Thompsons NI, Solicitors.

 

The respondent was represented by Mr P Boomer.

 

Background

 

1. This was a remedies hearing following a substantive decision of the tribunal which found that there had been an automatic unfair dismissal on 4 April 2014, contrary to the Employment Rights (Northern Ireland) Order 1996 and also a failure to provide a statutory statement of employment particulars contrary to that Order. Other claims of unauthorised deductions/breach of contract, holiday pay and unlawful age discrimination/harassment were dismissed in that substantive decision and have not been appealed.

 

2. Therefore the only proper respondent to the two remaining matters is the claimant's actual employer, ie the first-named respondent. The outstanding claims against the second and third respondents are therefore dismissed. The tribunal has no jurisdiction to hear the outstanding claims against anyone other than the claimant's employer.

 

3. The substantive decision issued on 18 March 2015 should be read in conjunction with this decision. That substantive decision made several criticisms of the conduct of the claimant. She had been registered manager of a residential home which had been in serious difficulty for several years. Significant and longstanding concerns had been raised by the RQIA, the statutory inspection authority. These concerns had not been addressed effectively by the claimant in her capacity as registered manager. There had been several inspections, several recommendations, an ' urgent action' letter and a ' serious concerns' meeting which the claimant did not attend. The claimant's attitude to all of this was unfortunate and displayed elements of over-reaction and hypersensitivity. She consistently sought to blame the difficulties raised by the RQIA on others. That tendency continued during this remedies hearing.

 

4. The claimant walked out of a meeting on 25 February 2014 and resigned. She sought to retract that resignation the following day. That retraction was accepted but subsequently, on 4 April 2014, the respondent purported to not accept the retraction and to implement the resignation. The tribunal concluded she had been dismissed and that the respondent had failed to comply with the statutory dismissal procedures. The dismissal was therefore automatically unfair for the purposes of the 1996 Order. The tribunal also concluded that statutory particulars had not been provided to the claimant.

 

Hearing

 

5. The witness statement procedure was used. Each witness had exchanged their witness statement in advance. It represented their full evidence-in-chief. Each witness was called in turn and swore or affirmed to tell the truth. Each then adopted their previously exchanged witness statement as their evidence-in-chief. They then moved immediately to cross-examination and brief re-examination.

 

6. The second and third-named respondents gave evidence in this matter. On behalf of the claimant, the claimant and two of her daughters, Ms Geraldine Birt and Ms Amanda Kearney also gave evidence.

 

Relevant Law

 

Basic unfair dismissal

 

7. The Employment Rights (Northern Ireland) Order 1996 ('the 1996 Order') provides at Article 130:-

 

"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 (ii) 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 - 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.

 

...

 

(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 a sufficient reason for dismissing the employee; and

 

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

 

8. Article 130A of the 1996 Order, as amended by the 2003 Order, provides:-

 

"(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) [tribunal's emphasis], 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."

 

9. Article 130A(2) can only be regarded as a clear legislative provision intended to discourage claims of unfair dismissal by unmeritorious claimants simply on the basis of technical breaches in procedure. There was initial controversy within Great Britain as to whether or not that provision applied solely where the employer had failed to comply with general fairness in relation to procedure or whether it also applied where there had been a failure to follow the statutory three step procedure described above.

 

10. Where Article 130A(2) applies, it has the effect of overturning the House of Lords decision in Polkey v AE Dayton Services Ltd [1988] ICR 142 which itself had overturned the ruling in British Labour Pump Co Ltd v Byrne [1979] ICR 347. In those circumstances where that part of the Article applies, an employer can argue that, despite failure to follow a procedure, the dismissal was fair because he would have dismissed the employee even if the procedure had been followed.

 

11. In two 2006 decisions, the EAT considered the GB equivalent of this provision. In Mason v Governing Body of Ward End Primary School [2006] IRLR 432, concluded, inter alia, that the equivalent Great Britain provision did not apply to breaches of the statutory dismissal procedure and that it reversed Polkey to a limited extent only. In Alexander v Bridgen Enterprises Ltd [2006] IRLR 422, the Employment Appeal Tribunal concluded that the equivalent provision applied to a situation where there had been a breach of any procedure which the tribunal considered the employer ought to have complied with.

 

12. In the later decision of Kelly-Madden v Manor Surgery [2007] IRLR 17 the Employment Appeal Tribunal returned again to this issue and concluded that the Great Britain equivalent provision applied to any procedure which the tribunal felt that the employer ought to have followed and that it reversed Polkey to that significant extent. However, the Employment Appeal Tribunal made it plain that it did not apply to cases where there is a wholesale breach of procedures or where there was a breach of the statutory three step procedure. It stated:-

 

"As Section 98A(2) makes clear, it is not open to an employer who is in breach of the minimum statutory procedure to contend that, even if he had complied with them, the result would have been the same. This is of course an important limitation restricting the scope of the Polkey reversal because the effect is that fundamental procedural defects are likely to involve a breach of statutory procedures and cannot then be saved by the sub-section."

 

The position therefore is that in circumstances such as those in the present case, where the employer has not followed the minimum statutory procedure, the reversal of the Polkey doctrine does not take effect.

 

In such circumstances the employer cannot argue that the dismissal was fair : he cannot dispute liability. He can however deal with issue of remedy by:-

 

(1) relying on Polkey (which has not been reversed) and by arguing for a percentage reduction in compensation to reflect the chance of dismissal; and

 

(2) applying the principle of contributory fault arguing for a reduction in the basic and compensatory award by the percentage which is just and equitable.

 

A Polkey reduction and a contributory fault reduction can often reach the same result by a different route.

 

13. In the Kelly-Madden decision, the Employment Tribunal had also reached an alternative conclusion that any compensation payable should be reduced by 100% on the grounds of contributory misconduct. The Employment Appeal Tribunal concluded that a finding of a 100% contribution was not sustainable in view of the tribunal's criticism in that case of the employer's regulatory and administrative procedures and the tribunal's recognition that this failure on the part of the employers had contributed to a relevant lack of communication which was in part to blame for what had occurred.

 

14. A Polkey reduction or consideration of mitigation cannot apply to a basic award. The only relevant reduction of the basic award can be one for contributory conduct.

 

Contributory conduct

 

15. If the tribunal concludes that an employee was guilty of culpable or blameworthy conduct which contributed to his dismissal, see Nelson v BBC (No 2) [1979] IRLR 346, compensation in respect of both the basic and compensatory awards may be reduced by an appropriate percentage. In determining whether the conduct is blameworthy, the test is objective. It does not matter whether the employee knew the conduct was wrong - see Ladbroke Racing Ltd v Mason [1978] ICR 149.

 

If the employee is wholly to blame for the dismissal, compensation may be reduced by 100% - see Hollier v Plysu Ltd [1983] IRLR 260.

 

Compensatory Award

 

16. In Optimum Group Services PLC v Muir [2013] IRLR 339, the EAT confirmed that the compensatory award is solely to compensate for actual financial loss (if any exists) as a result of the dismissal:-

 

"The award under Section 123 is, accordingly, not only called a compensatory award but is plainly intended to be compensatory in nature. That is, it should not overcompensate the claimant. To do so could hardly be said to be just or equitable. Loss is the governing principle ... Considerations of justice and equity arise only when determining what, of the loss actually suffered, should be awarded in compensation. Such consideration may, for instance, operate so as to limit the award if the claimant suffers supervening incapacity which would, in any event, have prevented him from working ...

 

The task for the tribunal is to compensate in respect of loss, not to award a sum which exceeds the loss he actually suffered."

 

17. In Dignity Funerals Ltd v Bruce, the inner house of the Court of Session determined:-

 

"A compensatory award depends on proof of loss. Therefore any application of the just and equitable principle must be underpinned by findings of fact establishing that the loss was caused to a material extent by the dismissal. If the dismissal was not a cause of the applicant's loss of wages, no award is due. If it was the sole cause, the full award will normally be appropriate. Where dismissal is merely one of two or more concurrent causes of the employee's loss, or where the dismissal was a cause of his loss for only part of the period, a just and equitable award would in all likelihood be of less than the full amount of the wage loss.

 

Accordingly, where in the period after dismissal, the applicant suffers loss because he is prevented from working due to ill-health, the employment tribunal must decide whether the illness was caused to any material extent by the dismissal itself; whether, if so, it had continued to be so caused for all or part of the period up to the hearing; and, if it was so still caused at the date of the hearing, for how long it would continue to be so caused. It is essential that the tribunal should make clear-cut findings on these questions before any question of a compensatory award can arise."

Statutory uplift

 

18. Article 138A of the 1996 Order as amended by Article 17(3) of the 2003 Order, provides that where an employer has failed to follow the statutory procedure, the compensatory award for unfair dismissal shall be uplifted by a minimum 10% and may, where it is just and equitable to do so, be uplifted by up to 50%. The requirement of a minimum 10% uplift does not apply if there are exceptional circumstances which would make such an uplift unjust or inequitable. In those cases there can be a lesser uplift or no uplift at all.

 

Article 154 of the 1996 Order, as amended by the 2003 Order, provides that where the is an automatically unfair dismissal the employee shall be entitled to a minimum basic award of four weeks' gross pay except where the tribunal " considers that the increase would result in injustice to the employer".

 

Sequencing

 

19. The sequencing of deductions from, and additions to, the compensatory award in a case of this type is important because it obviously can have a significant impact on the result. The correct approach as discussed in Digital Equipment Company Ltd v Clements [1997] IRLR140 and Leonard & Others v Strathclyde Buses Ltd [1998] IRLR693 is as follows:-

 

(i) calculate the appropriate compensatory award (if any) in accordance with the provisions of the Order;

 

(ii) apply any percentage reduction under Polkey to reflect the possibility of the claimant having been dismissed in any event had the correct procedure been applied;

 

(iii) apply any statutory uplift where the employer has failed to comply with applicable procedure in accordance with the 2003 Order;

 

(iv) apply any percentage reduction for the employee's contributory fault; and

 

(v) if appropriate apply the statutory maximum.

 

Statement of Employment Particulars

 

20. Article 33(1) and 36(1) of the 1996 Order require an employer to provide an initial written statement of particulars covering specified matters and also a written statement of any subsequent changes to any of those particulars. Article 27 of the 2003 Order provides that the tribunal shall make a minimum award of either two weeks' gross pay (subject to statutory cap) or if, in all the circumstances it considers it just and equitable to do so, four weeks' gross pay. This provision does not apply if there are exceptional circumstances which would make this award unjust or inequitable. An award of this nature can only be made in conjunction with a finding in relation to certain specified matters which include a finding in relation to unfair dismissal or automatically unfair dismissal.

 

Relevant findings of fact

 

21. As indicated above, this remedies decision should be read together with the substantive decision and incorporates the findings of fact and the conclusions reached in that decision. There is no point in separately repeating those at this stage.

 

22. The claimant was dismissed on 4 April 2014 when the second-named respondent wrote to her refusing to accept the retraction of her resignation. Clearly the respondent had failed at that point to comply with the procedural requirements in relation to the dismissal procedure under the 2003 Order. That failure was not motivated by any malicious intent to refuse to comply with the provisions of the Order. Given the background to all of this, it would have been relatively easy, even though the claimant had been on sick leave at that time, for the first-named respondent to have instigated disciplinary proceedings leading promptly to a disciplinary penalty and, in all probability, to a dismissal. The tribunal concludes that there was genuine confusion at that stage in April 2014 resulting from the involvement of the RQIA, the complaints of a resident, the involvement of both the Trust and the PSNI and the decision on the part of the third-named respondent to take a more active role in the running of the residential home, together with the appointment of Ms Acheson as a consultant to assist in the resolution of the difficulties at that time. The claimant had walked out of the meeting on three occasions on 25 February 2014 and had clearly resigned. While she attempted to retract that resignation on the next day, the acceptance of that retraction was at best confused and was made solely by the third-named respondent in the conduct and operation of the grievance procedure.

 

23. The claimant was on sick leave at the time of the dismissal.

 

No medical witness was called by the claimant at the remedies hearing. At the substantive hearing, the claimant had called Dr William Jenkinson to give evidence on her behalf. He had provided a medical report which referred to the claimant's GP records. The report was based on an examination dated 19 November 2014, some five months after the date of the dismissal on 4 April 2014.

 

24. That report recorded that the claimant had had anxiety symptoms for some considerable time : going back as far as 2000. It also recorded a stroke in 2000 and a possible heart attack in August 2014. The report concluded that the ' dismissal' was not the cause of her condition but recorded that ' it does appear to have precipitated an exacerbation of this condition'.

 

25. On cross-examination, this report was considerably devalued. Firstly, it was plain that Dr Jenkinson largely based his report on what he had been told by the claimant. It was also clear that the claimant had left Dr Jenkinson with the impression that she had been threatened with dismissal on 25 February 2014. That was entirely incorrect. He believed that the dismissal had occurred at that point. He had been left with the impression that the reason for the dismissal was the complaint of abuse. That complaint post dated 25 February 2014. The claimant had not informed Dr Jenkinson that she had resigned during the meeting on 25 February 2014. She had not mentioned the RQIA or its criticism of her management of the residential home. Crucially, he stated, in cross-examination, " I accept I was not given the full picture" and that he did not know how severe the claimant's symptoms were before February 2014.

 

26. In any event, the report concluded, at that point, in November 2014, that the claimant was unfit for work and that she may never be fit for work. The long-term prognosis was very much in the balance.

 

27. It is also clear from the claimant's own evidence at the remedies hearing that the claimant had started to receive Disability Allowance from 14 November 2014. Of course, an award of DLA, is distinct from a period of sick leave, does not necessarily mean that the claimant was and remains unfit for work. However, it is for the claimant to establish loss. In the remedies hearing, the claimant stated in cross-examination that she had suffered from depression and a broken shoulder although it is unclear when the broken shoulder occurred. The claimant stated in her witness statement (undated) for the substantive hearing that she considered " that I am currently unfit for work'. So she was, on her own evidence, unfit for work when dismissed in April 2014, when medically examined on 19 November 2014 with no immediate prospect of a return to fitness and in October 2015 at the time of the remedies hearing.

 

28. In the absence of any evidence to the contrary, the tribunal concludes that, on the balance of probabilities, the claimant had been incapable of work throughout the period from 4 April 2014 (the date of dismissal) to the date of the remedies hearing. It just seems highly unlikely that the claimant would have recovered at some point but then very promptly deteriorated in November 2014 to the point where DLA was payable within a period of seven months and to the point where the claimant was unfit for work when completing her witness statement for the substantive hearing in January 2013. If that had happened, the tribunal would have expected clear medical evidence from the claimant to establish that fact. That was never the proposition put forward by or on behalf of the claimant.

 

29. The GP notes produced at the substantive hearing established a pattern of report to the GP of stress, low mood, cardiac investigations, raised blood pressure and anxiety up to the end of October 2014. The notes do not establish capacity to work.

 

30. The tribunal therefore concludes that the claimant has been incapable from the date of her dismissal of undertaking alternative employment. That is consistent with the claimant's failure to apply on anything approaching a sustained basis for such alternative employment. Her attempts to do so were sporadic at best and appear to have been no more than an attempt to create a paper trail for the basis of any compensation claim.

 

31. The tribunal concludes that at the time of the claimant's dismissal, there had been complaints from a resident alleging a degree of abuse from the claimant and from one other member of staff. It is clear that those complaints were referred by the respondent to both the Trust and to the PSNI. It is also clear that no criminal prosecution emerged. It would appear from the evidence that the PSNI, for whatever reason, failed to interview either the resident concerned, the third-named respondent or indeed Mrs Acheson who had interviewed that resident following the complaint. It is also clear that the PSNI had indicated to the respondent that the criminal investigation (such as it was) ' took priority'.

 

32. Against the background of a very confused situation involving repeated and serious interventions on behalf of the RQIA, complaints from the resident and the involvement of both the Trust and the PSNI, the tribunal concludes that the respondents did intend to institute disciplinary proceedings once the claimant returned from sick leave. It seems highly unlikely, given the background to all of this and given the recent involvement of the third-named respondent and Ms Acheson, that the claimant would have been absolved of all responsibility as registered manager and that she would not have faced disciplinary proceedings on her return from sick leave. Given the ' hands-off' approach adopted by the second-named respondent, an arrangement with which the claimant co-operated, she had been effectively in sole control of the administration and audit of medication. Disciplinary proceedings were inevitable.

 

33. Those disciplinary proceedings, even if they only related to the matters raised by the RQIA, were of such fundamental seriousness and were matters in respect of which no valid defence could reasonably have been advanced on behalf of the claimant, that there was a very high probability of dismissal.

 

34. The tribunal notes, in particular, that during the remedies hearing a proposition was put forward by the claimant, and indeed on her behalf by Ms Birt, that the second-named respondent had given the claimant permission not to attend the serious concerns meeting with the RQIA. That was not the case which had been put forward by or on behalf of the claimant at the substantive hearing of this matter. This was an issue which had involved long and heated cross-examination during the substantive hearing. The proposition had clearly been put forward on behalf of the respondents that it was a serious matter for the claimant, as registered manager, not to have attended the serious concerns meeting. If, as the claimant now alleges, she had the permission of one of the owners of the residential home, who had been giving evidence at that substantive hearing, not to have attended that meeting, that would have been made plain at that stage. According to the claimant, her only reason for not doing so at the substantive hearing was that she did not wish to call Ms Birt to give evidence because she had been ill at that time. It seems clear that Ms Birt had been ill at that time but there was absolutely nothing to have prevented the claimant stating clearly in the course of the substantive hearing and in her witness statement for the purposes of the substantive hearing that such a meeting had taken place and that she had been present during that meeting. She could simply have explained the reason for Ms Birt's absence and explained what she herself had observed and had heard. The tribunal concludes therefore that it is simply not the case that the second-named respondent had given the claimant permission not to attend that meeting. It is inconceivable that he would have done so. It is quite clear on the evidence of all the parties that the second-named respondent had had a very hands off approach to the management of that residential home and that he had left everything to the claimant. He would not have been in any position to have approached that serious concerns meeting properly without the claimant's active involvement as registered manager. He would not have given such permission, particularly in the offhand manner now suggested by the claimant.

 

35. The tribunal noted in its substantive decision the tendency on the part of the claimant to blame everyone else for the shortcomings in the administration and auditing of medication in the residential home. This was a relatively small residential home involving 31 residents. Even on the assumption that all 31 residents required medication, the administration of that medication and the recording of the administration of that medication and indeed the checking of that recording was not an overly complicated matter. Each medication had to be administered at the times and in the quantities prescribed and then recorded as such. It was a matter which could and should have been resolved without any involvement from the RQIA. The claimant as registered manager, particularly in a situation where the second-named respondent at that point left everything to her, had been completely responsible for this matter. She sought to blame the second and third-named respondents, her own staff and indeed anyone but herself. That tendency continued during the remedies hearing. The tribunal heard that it was now the fault of the pharmacist engaged at that time who had been ' too small' to deal with the business. That is quite simply incredible. The pharmacist would have prescribed medication in relation to whatever prescriptions were provided by doctors on behalf of their patients. The pharmacist was not responsible for the individual administration of those medicines or indeed for recording the individual administration of each dose of those medicines. To seek to blame that pharmacist simply continues this process whereby the claimant refuses to accept any real responsibility in this matter.

 

36. It is clear, against the background of the ongoing and serious concerns expressed by the RQIA, that the claimant told the second-named respondent that she would not attend any further meetings with the RQIA. That is entirely inconsistent with her new position that what she had said was that she wasn't going to attend any ' serious concern' meetings but for some reason would have been willing to attend other meetings. Since "serious concern" meetings were by definition the most serious type of meetings and ones in which her presence as registered manager would have been crucial, her new position makes no sense and is inconsistent with previous evidence. It is not accepted.

 

Decision

 

Compensatory Award

 

37. The tribunal does not believe that a compensatory award is due in this case because it is clear on the balance of probabilities that the claimant was ill and unfit for work throughout the entire period before and following her dismissal and that she remains unfit for work. The broken shoulder, whenever it occurred, cannot be as a result of the dismissal. The depression or anxiety suffered by the claimant is of long-standing and there is no credible evidence linking it to the dismissal. The claimant is currently unfit for work and on the available medical evidence is likely to remain unfit for work.

 

38. If there had been any financial loss which had been caused by the dismissal to any material extent, the tribunal would have concluded that the claimant had contributed significantly to her own dismissal. That dismissal on 4 April 2014 cannot be separated from the meeting on 25 February 2014 which itself was a meeting to discuss the claimant's failings as manager in dealing with the matters raised by the RQIA. The claimant had consistently and over a protracted period of time failed to address basic concerns expressed by the RQIA and those concerns were sufficiently serious to have put patients at risk. The claimant failed to attend a serious concerns meeting, refused to engage with the RQIA and refused or totally failed to deal with the relatively straightforward matters of medication administration and the recording and checking of that medication administration. The claimant's response to all of this had been that it was always someone else's fault and she always sought to downplay her role as registered manager of the residential home. At the meeting on 25 February 2014 the claimant reacted badly to the presence of Ms Acheson. The engagement of Ms Acheson as a consultant to assist the owners of the residential home to address the issues which had built up over a period of time and which now required urgent action had been entirely reasonable. The claimant's reaction was hostile and uncooperative. She left the meeting on three occasions; instead of engaging with Ms Acheson and the third-named respondent to seek a way forward. She gave a clear and unqualified resignation. She then left the meeting and there followed a heated discussion in the car park. Her evidence at the substantive hearing and at the remedy hearing was that the meeting was ' more like a disciplinary than a meeting'. It is entirely unclear how the claimant has reached this view. The situation had been serious. The residential home could have been subject to further sanction by the RQIA and may even have closed. The employer had taken the reasonable step of engaging a consultant. The third-named respondent had decided to increase her involvement in the running of the residential home. The claimant obviously resented the presence of a consultant and refused to answer reasonable questions. It is entirely unclear what sort of meeting the claimant expected to have in all these circumstances. Her reaction to the RQIA and her total failure to perform her duties properly led to that meeting and led to her resignation. That then led to the retraction and the eventual dismissal on 4 April 2014. That ' dismissal' arose from significant confusion between the second and third-named respondents that cannot be artificially separated from the background to all of this.

 

39. If there had been any financial loss the tribunal would have concluded that the appropriate contributory reduction would have been substantial. The tribunal would also have determined that a substantial Polkey reduction would have been appropriate. That would have been offset to some extent by a low statutory uplift, but, if there had been any actual financial loss, any compensatory award would have been very limited.

 

Basic Award

 

40. For the reasons outlined above, the tribunal concludes that the appropriate contributory reduction should be 75%.

 

The basic award is calculated as follows:-

 

11 complete years x gross weekly pay (statutory cap) -

 

£470.00 @ age 62 = £7,755.00

 

Reduction of 75% = £1,938.75

 

(The minimum award of four weeks gross pay is already exceeded and does not arise.)

 

Statutory particulars of employment

 

41. The tribunal awards two weeks' gross pay, subject to the statutory cap, amounting to £940.00. There are no grounds for a higher award. In reality, this had been the responsibility of the claimant as registered manager, but technically falls to the first-named respondent as the employer.

 

The total award

 

42. The total award if £2,878.75.

 

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

 

 

 

 

 

 

 

Vice President

 

 

Date and place of hearing: 28 October 2015, Belfast

 

 

Date decision recorded in register and issued to parties: