Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 6476/09

 

 

 

CLAIMANT: Brendan McDonald

 

 

RESPONDENT: Nortel Networks UK Ltd (In Administration)

 

 

DECISION ON A REVIEW

 

The original decision ("the Decision") is varied by substituting the sum of £22,801 as the amount of compensation awarded in respect of the claimant's unfair dismissal.

 

 

Constitution of Tribunal:

 

Employment Judge (sitting alone): Employment Judge Buggy

 

 

Appearances:

 

The claimant was not present or represented.

 

The respondent was not represented.

 

 

REASONS

 

1. The Decision in this case was signed by me in mid-April 2015 but, unfortunately, was not issued to the parties until 6 May 2015.

 

2. During the course of the hearing which culminated in the Decision, the following propositions were put forward, on behalf of the claimant, and without opposition from the respondent:

 

(1) The Decision was unfair because of a failure on the part of the respondent to carry out the statutory dismissal procedure which is envisaged in Article 15 of the Employment (Northern Ireland) Order 2003 ("the 2003 Order").

 

(2) Because of the failure to comply with the statutory dismissal procedure, the amount of the compensatory award element of the claimant's unfair dismissal compensation should be increased, pursuant to Article 17 of the 2003 Order.

 

3. I accepted both of those submissions.

 

4. Paragraphs (1) and (3) of Article 17 of the 2003 Order provide as follows:

 

"(1)  This Article applies to proceedings before an industrial tribunal relating to a claim under any of the jurisdictions listed in Schedule 2 by an employee.

 

...

 

(3)  If, in the case of proceedings to which this Article applies, it appears to the industrial tribunal that—

 

(a) the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies,

 

(b) the statutory procedure was not completed before the proceedings were begun, and

 

(c) the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer to comply with a requirement of the procedure,

 

it shall, subject to paragraph (4), increase any award which it makes to the employee by 10 per cent and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50 per cent".

 

Unfair dismissal is one of the jurisdictions listed in Schedule 2 of the 2003 Order.

 

5. Unfortunately, when I signed the Decision in mid-April 2015, I was unaware of the provisions of sub-paragraph (b) of paragraph (1) of regulation 4 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004. The effect of paragraph 4(1) is that the obligation to comply with the statutory dismissal procedure does not apply in relation to the dismissal of an employee where:

 

"the dismissal is one of a number of dismissals in respect of which the duty in Article 216 of [the Employment Rights (Northern Ireland) Order 1996 (duty of employer to consult representatives when proposing to dismiss as redundant a certain number of employees) applies ...".

 

6. This claimant's dismissal is one of a number of dismissals in respect of which the duty in Article 216 of the 1996 Order applied. (Indeed, he was within the scope of a protective award which was made under Article 217 of the 1996 Order).

 

7. Now that the relevant provision of the 2004 Regulations (as quoted above) has come to my attention, it is clear to me that each of the submissions referred to at paragraph 2 above was incorrect.

 

8. At paragraph 9 of the Decision, I concluded that the dismissal was unfair because of the failure of the respondent to comply with the statutory dismissal procedure. In light of the relevant provision of the 2004 Regulations (as already quoted above) that conclusion is now unsustainable. However, that does not affect the legal validity of my determination, in the Decision, that the dismissal was unfair: The Decision incorporated paragraph 56 of my earlier decision in Murdock v Nortel Networks UK Ltd (in administration). During the course of that paragraph, I had stated that:

 

"... it is clear that this dismissal was also unfair because there was no individual consultation with the claimant in relation to his selection for redundancy ...".

 

9. In light of the existence of the relevant provision of the 2004 Regulations, it is however necessary to modify the amount of the compensatory award which was made in the Decision.

 

10. At paragraphs 24 and 25 of the Decision, I uplifted the amount of the compensatory award by £11,401. Now that it is obvious that the statutory dismissal procedure did not apply, that uplift has to be undone.

 

11. Once that uplift is undone, the compensatory award is reduced to £22,801.

 

12. Because, after the undoing of the uplift, the compensation award is an amount less than £30,000. Therefore it need not be, and cannot be, grossed up. (See paragraphs 27 - 31 of the Decision.)

 

13. Accordingly, the revised amount of the compensatory award is £22,801.

 

14. I refer to the "Summary and overall conclusions", as set out in the Decision at paragraphs 33 - 36. For ease of reference, I now repeat that summary, as revised in light of this review:

 

(1) In respect of the applicable period, I have assessed the claimant's loss as amounting to £22,801 including the sum of £350 in respect of loss of statutory rights. (See paragraph 20 of the Decision.)

 

(2) That figure of £22,801 is not subject to any Polkey reduction.

 

(3) That figure is not subject to any increase pursuant to Article 17 of Employment (Northern Ireland) Order 2003. (See paragraphs 9 and 10 above.)

 

(4) That figure of £22,801 has not been grossed up. (See paragraph 12 above.)

 

15. As a result of the reduction in the amount of the compensatory award, there must be a consequential reduction in the amount of the "prescribed element" for Recoupment Regulations purposes. The new prescribed element is £22,451.

 

16. For the sake of completeness, in the following paragraphs, I set out the process which has culminated in the review hearing of this case.

 

17. Paragraph (5) of rule 34 of the Industrial Tribunals Rules of Procedure ("the Rules'" provides as follows:

 

"A tribunal or chairman may on its or his own initiative review a decision made by it or him ...".

 

18. Paragraph (2) of rule 36 of the Rules is to the following effect: If a decision is being reviewed on the initiative of an employment judge, notice must be sent to each of the parties, explaining in summary the grounds upon which it is proposed to review the decision, and giving them an opportunity to provide reasons why there should be no review.

 

19. That was done in this case. The parties were told that I was considering a review of the Decision, in light of the relevant provisions of the 2004 Regulations (which have already been referred to above).

 

20. The notice, in relation to the contemplated review, was issued to the parties on 13 May 2015.

 

21. During the course of that notice, it was explained to the parties that the relevant provision of the 2004 Regulations had only come to my attention in mid-April 2015, when I was drafting a decision in an unrelated (non-Nortel) case.

 

22. Neither party made any representations in response to the notice which was sent to them.

 

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

 

 

 

 

 

 

 

Employment Judge

 

 

Date and place of hearing: 9 July 2015, Belfast

 

 

Date decision recorded in register and issued to parties: