Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:     6451/09

 

 

 

CLAIMANT:                      Patricia Blair

 

 

RESPONDENT:                Nortel Networks UK Ltd (in administration)

                                       

 

 

DECISION

 

The claimant’s unfair dismissal claim is well-founded.  It is ordered that the respondent shall pay to the claimant the sum of £18,169, in respect of that dismissal.

 

 

Constitution of Tribunal:

 

Employment Judge (sitting alone):      Employment Judge Buggy

 

 

Appearances:

 

The claimant was represented by Mr Andrew Stephens until 17 March 2015.  (At a Case Management Discussion which was held in June 2015, she was represented by her husband, Mr Clifford Blair).

 

The respondent was not represented.

 

 

REASONS

 

1.               For the general context to this case, see paragraphs 1-15 of the decision of an industrial tribunal in Mathews and Others v Nortel Networks UK Ltd (in administration) and Others [2014] NIIT 06598 009IT.  What follows is by way of summary of that context. 

 

2.               The respondent, Nortel Networks UK Ltd (which is referred to below simply as “Nortel”) entered into administration by order of the English High Court on
14 January 2009.  That administration is still continuing. 

 

3.               Nortel is part of the wider Nortel Group (referred to below simply as “the Group”).  That group is headed by the Nortel Networks Corporation (the ultimate holding company in the Group).  On 14 January 2009, the Corporation (together with some of its Canadian subsidiaries) sought protection under Canadian bankruptcy law in order to facilitate a reorganisation of the Group for the benefit of its creditors.  On the same day, Nortel Networks Inc (a private company, incorporated in the United States, which was the primary US operating company of the Group) and associated companies filed voluntary petitions in the Delaware Bankruptcy Court, seeking the protection of Chapter 11 of the United States Bankruptcy Code. 

 

4.               In January 2009, the Group was a global supplier of networking solutions, its business being based upon: (1) the development, licensing and maintenance of intellectual property; (2) the marketing of telecommunications, computer networks and software products; and (3) services based on that intellectual property. 

 

5.               In January 2009, the Group operated on a highly integrated basis, across multiple jurisdictions; that was the reason why there were co-ordinated insolvency filings.  The order of the English Court extended not only to Nortel, but also to 18 associated companies operating in separate European jurisdictions (all of whom had their Centre of Main Interest within the jurisdiction of the courts of England and Wales). 

 

6.               According to the Nortel administrators, the position was as follows.  At the outset, the object of the administration was to rescue the business of Nortel as a going concern.  This required participation in a series of co-ordinated asset sales involving a reorganisation of various individual global business lines of the Group.  This of itself involved the maintenance of the various businesses pending sale and the provision of transitional services following any sale. 

 

7.               On 30 March 2009, the joint administrators of Nortel gave notice terminating the employment of 89 people employed at Nortel’s premises in Monkstown, Newtownabbey, ostensibly by reason of redundancy.  In June of that year, another substantial group (amounting to approximately 20 staff), also employed at Monkstown, were also made “redundant”.  In March and June of 2009, many of the Nortel employees based in England and Wales were also made redundant. 

 

8.               All of the employees who were made redundant by Nortel in Northern Ireland in 2009 have benefited from protective awards which were made by an industrial tribunal in January 2011.  Many of those employees applied to the Department for Employment and Learning (“the Department”) for payments, in the Department’s capacity as the statutory guarantor in respect of certain employment debts.  Pursuant to those applications, most of those employees have received payments from the Department in respect of holiday pay, notice pay and redundancy pay, and also in respect of a protective award. 

 

9.               Unfair dismissal compensation is, however, outside the scope of the statutory guarantee.

 

The age discrimination claim and the breach of contract claim

 

10.           The claimant also made an age discrimination claim.  However, during the course of this hearing, that age discrimination claim was withdrawn. 

 

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

 

12.           This Decision is concerned only with this claimant’s claim of unfair dismissal, which was brought pursuant to Article 145 of the Employment Rights (Northern Ireland) Order 1996 (“ERO”). 

 

The history of this unfair dismissal claim

 

13.           Originally, the administrators were refusing to grant permission in respect of the pursuit of any employees’ claims.  Unite the Union took proceedings in the English High Court challenging that refusal.  (The judgment in that litigation is Unite the Union v Nortel Networks UK Ltd (in administration) [2010] IRLR 1042).  While that litigation was still pending, the administrators granted consent for the pursuit of Article 217 complaints, and for the pursuit of equivalent complaints in Great Britain.  (Article 217 complaints are complaints brought under Article 217 of ERO, in respect of an alleged breach of the requirements of Article 216 and/or of Article 216A of the 1996 Order). 

 

14.           In January 2012, the administrators announced that permission was now being granted to the Northern Ireland employees (and also to the GB employees) to pursue any pending employment tribunals complaints that they wished to pursue.   

 

15.           This hearing, in respect of this claimant’s unfair dismissal claim, was held long after that “general” grant of permission.  Why the delay?  For two main reasons. 

 

16.           First, all the Northern Ireland claimants initially agreed that no useful purpose would be served by holding unfair dismissal claims hearings until it became clear whether there would be a dividend to unsecured creditors and, if so, the extent of that dividend.  (Unfair dismissal awards are unsecured claims in the context of an administration).  The appropriateness of that first reason for delay has diminished over the years, mainly because of the following factors:

 

(1)      According to the administrators, even after all the time which has elapsed since March 2009, they are still unable to give any useful indication as to the amount of any likely dividend payable to unsecured creditors, and are still unable to indicate a likely timescale within which any useful guidance as to the likely amount of any dividend might become available. 

 

(2)      All of the claimants who are currently represented by Mr Stephens (including this claimant) now want an industrial tribunal to arrive at conclusions in relation to their respective unfair dismissal claims. 

 

17.           Secondly, all parties (including all the claimants now represented by Mr Stephens) were agreed that the unfair dismissal claims should not be the subject of hearings until there has been a final resolution of questions as to whether or not various TUPE transferees should be joined as respondents to the unfair dismissal claims of various relevant claimants.  Those issues were resolved in the late Spring of 2014.

 

 

This claim

 

18.     This claimant was one of the Northern Ireland employees of Nortel who were dismissed, ostensibly on the ground of redundancy, in March 2009.

 

Liability 

 

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

 

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

 

21.     It is clear that the respondent dismissed this claimant without carrying out any individual consultation, in circumstances in which no relevant collective consultation had taken place.  Accordingly, on that ground alone, the dismissal is unfair. 

 

General compensation issues

 

22.     The claimant received a payment in respect of redundancy from the Department.  Accordingly, as Mr Stephens realistically recognised, this claimant is not entitled to the basic award element of unfair dismissal compensation.  (See Article 156(4) of ERO). 

 

23.     Therefore, in this case, I must focus on calculating the amount of any compensatory award due to the claimant in respect of his unfair dismissal.   

 

24.     In the circumstances of this case, any compensatory award has to be assessed pursuant to Article 157 of ERO. 

 

25.     Article 157(1) provides that, subject to certain provisions which are not relevant in the present context, the amount of the compensatory award:

 

                    “... shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the [claimant] in consequence of the dismissal in so far as that loss is attributable to action taken by the employer”.

 

26.     In assessing the amount of any unfair dismissal compensation which is due to this claimant, the following are important issues:

 

(1)           Is the claimant entitled to any compensation in respect of past loss and, if so, how should past loss be quantified?

 

(2)           In assessing the extent of past loss, what are the practical implications, if any, of rules relating to mitigation and causation?

 

(3)           Is the claimant entitled to any compensation in respect of “future loss”?

 

(4)           Should the claimant’s compensation be reduced pursuant to the Polkey principle?

 

(5)           Should the amount of compensation be increased pursuant to Article 17 of the Employment (Northern Ireland) Order 2003 (“the 2003 Order”)?

 

          All of those issues are addressed below.  In addition, later during the course of this Decision, under the heading “The unfitness issues”, I address some additional issues, which have arisen because of the particular context of this case.

 

The course of these unfair dismissal proceedings

 

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

 

28.     The evidence in this case mainly consisted of the oral testimony of the claimant.  During the course of that testimony, she referred to a written schedule of loss (“the Schedule”), which sets out the compensation claimed by her.  The amounts set out in the Schedule were subject to some amplification and/or modification during the course of the main hearing and during the course of a Case Management Discussion which took place in June 2015.  The Schedule, as so modified, has provided a useful basis for assessing compensation in this case. 

 

29.     In representing this claimant, Mr Stephens had the benefit of advice and guidance from Mr Frances Bondoumbou.  I also received written submissions (“Submissions”), which Mr Bondoumbou drafted.  I have taken those Submissions into account in deciding this case.

 

30.     In 2012, various unfair dismissal claims, brought by ex-employees of Nortel who were made redundant in Great Britain in 2009, were heard by an employment judge sitting at Reading.  Those claims were the subject of a written judgment (“the Reading judgment”) by Employment Judge Gumbiti-Zimuto; that judgment was issued on 26 April 2012. 

 

31.     During the course of this hearing, my attention was drawn to the Reading judgment. 

In arriving at my conclusions in this case, I have had regard to the statements of applicable legal principles in the Reading judgment.

 

Past loss

 

32.     Pursuant to Article 157(1), the claimant is clearly entitled to recover in respect of any loss sustained by her up to the date of the hearing, provided that any such loss has been sustained in consequence of the dismissal, and is attributable to the dismissal.

 

33.     Article 157(4) provides that, in ascertaining the loss referred to in paragraph (1) of that Article, the tribunal is to apply the same rule:

 

                    “... concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of Northern Ireland”.

 

          It is clear law that, in relation to any failure to mitigate, the onus of proof rests upon the respondent.  

 

34.     However, that is not the end of the matter.  Even if a failure to mitigate has not been proven, I still have to be satisfied, on the balance of probabilities, that the loss complained of is loss which was sustained in consequence of the dismissal, and that it is a loss “attributable to” action taken by the employer.  (See Article 157(1), already referred to above). 

 

35.     In the English Court of Appeal, in Dench v Flynn and Partners [1998] IRLR 653, Sir Christopher Staughton made the following relevant observations:

 

                    “What has to be assessed in terms of [the GB equivalent of Article 157(1) of ERO] is such amount as the tribunal considers just and equitable in all the circumstances, having regard to the loss sustained by the complainant in consequence of the dismissal, in so far as that loss is attributable to action taken by the employer ...

 

                    That is the ordinary common sense test of the common law.  Was the loss in question caused by the unfair dismissal or by some other cause?  The tribunal must ask itself and answer that question and then ask what amount it is just and equitable for the employee to recover”.

 

36.     In Whelan v Richardson [1998] IRLR 114, the point was made that, in the context of a claim for an unfair dismissal compensatory award, the assessment of loss has to be judged on the basis of the facts as they appear at the date of the assessment hearing (the date on which the tribunal or employment judge carries out the assessment in respect of the loss which is claimed). 

 

37.     In most unfair dismissal cases, the remedies hearing takes place within about six months of the date of the dismissal.  So this is a very unusual case, because the amount of the compensatory award in this case is being assessed more than six years after the date of the dismissal.  However, in my view, in assessing loss in this case, I am carrying out precisely the same task as I would have had to carry out if the compensatory award in this case was being assessed in September 2009.

 

38.     If I had been assessing compensation in this case in 2009, I would have had to arrive at a view as to what I thought was likely to happen, in relation to the claimant’s income, during the period beginning in October 2009.  Because of the lengthy delay in assessing the claimant’s compensatory award claim, I now have the advantage of knowing precisely what did happen from October 2009 onwards.

 

39.     Accordingly, I know much more now than I would have known if I had been assessing the amount of compensation in this case in September 2009; and I am obliged to take account of that knowledge.  (See paragraph 37 above).

 

40.     In Whelan v Richardson, Judge Peter Clark set out the following principles:

 

                    “...  

 

                    (2)      Where the applicant has been unemployed between dismissal and the assessment date then, subject to his duty to mitigate and the operation of the recoupment rules, he will recover his net loss of earnings based on the pre-dismissal rate.  Further, the industrial tribunal will consider how long the loss is likely to continue so as to assess future loss. 

(3)       The same principle applies where the applicant has secured permanent alternative employment at a lower level of earnings than he received before his unfair dismissal.  He will be compensated on the basis of full loss until the date on which he obtained the new employment and thereafter for partial loss, being the difference between the pre-dismissal earnings and those in the new employment.  All figures will be based on net earnings.

 

                      ...”

 

41.     The claimant has already received a sum in respect of loss sustained as a result of the breach of the respondent’s obligation to provide due notice in respect of her dismissal.  (The Department has already provided the claimant with a sum in respect of that loss).  The claimant was entitled to 12 weeks notice.  Accordingly, in this unfair dismissal case, as Mr Stephens realistically recognised, the period in respect of which loss can be recovered began only on 23 June 2009, when
12 weeks had elapsed since the date of the dismissal.  Accordingly, the latter date, 23 June 2009, was the beginning of the period in respect of which compensation is claimed in these proceedings. 

 

42.     At the time of the claimant’s dismissal, she was earning £239 net per week.  From April 2009 until January 2011, the claimant was unfit to carry out any work whatsoever, for medical reasons.  During that period she obtained ESA.  (According to Mr Stephens and, subsequently, according to Mr Blair, this was contribution-based ESA and I have assumed that that contention is correct).  In respect of the period from April 2009 until 5 April 2010, the claimant received net weekly ESA of £82.68.  In respect of the period beginning in April 2010 and ending on 5 April 2011, the claimant received net weekly ESA of £83.40.  In respect of the period beginning in April 2011 and ending on 12 September 2011 (which was the last day in respect of which the claimant received ESA), she received weekly ESA of £94.23.  From 10 January 2011 until September 2011, the claimant was medically fit only to carry out some limited work.  During that period, she continued to receive ESA.  In September 2011, the claimant ceased to be unfit for work.  Throughout the period since 10 January 2011, the claimant has been employed on a part-time basis by a primary school, and is currently earning approximately £100 net per week in that job. 

 

43.     In these proceedings, the claimant claims in respect of the entire period from
23 June 2009 until the date of the main hearing of this unfair dismissal claim
(29 September 2014).  Accordingly, the claimant’s claim in respect of past loss is in respect of a period beginning in June 2009 and ending more than five years later, in September 2014.  In these proceedings, the claimant also makes a claim in respect of future loss.   

 

44.     At paragraph 33 above, I have already noted that, in relation to any alleged failure to mitigate loss, the onus of proof rests upon the respondent.  In the circumstances of this case, in relation to the entire period in respect of which past loss is claimed, that onus of proof has not been discharged.    

 

45.     However, as I have also already noted (at paragraph 34 above), even if a failure to mitigate has not been proven, I still have to be satisfied, on the balance of probabilities, in relation to any particular period in respect of which loss is claimed, that the relevant loss was sustained in consequence of the dismissal and that it was a loss “attributable to” action taken by the employer.  I have decided not to make an award to the claimant in respect of the loss claimed in relation to the entire period from 31 March 2012 onwards.  I am not satisfied that the loss sustained by the claimant from that date onwards was caused by the unfair dismissal, as distinct from being caused by something else.  In arriving at that conclusion, I have noted that, in a situation in which a claimant is working for a relatively short number of hours, on a weekly basis, for several years, the further one gets from the date of the original dismissal, the less likely it is that the under-employment can appropriately be attributed to the original dismissal. 

 

46.     I now quantify the claimant’s recoverable losses, in respect of the periods 23 June 2009 until 31 March 2010, 1 April 2010 until 31 March 2011 and 1 April 2011 until 31 March 2012:

 

(1)      In respect of the period from 23 June 2009 until 31 March 2010, the claimant is entitled to recover loss based on the amount which she would have received from the respondent if she had still been employed by the respondent, less the amount of contributory ESA which was received by her.  The claimant’s net loss in respect of that period is £6,253. 

 

          (2)      In respect of the period beginning on 1 April 2010 and ending on 31 March 2011, the claimant is entitled to the sum equivalent to the amount of net pay which she would have received from the respondent if she had continued to be employed by the respondent during that period, less the aggregate of any contributory ESA received by her during the same period and the amount of wages received by her from the school (see paragraph 42 above) during the same period.  Her net loss in relation to the year 2010-2011 was £7,191. 

 

          (3)      In respect of the year beginning on 1 April 2011 and ending on 31 March 2012, the claimant is entitled to the net amount of wages which she would have received in respect of that period from the respondent, if she had continued to be employed by the respondent, less the aggregate of the amount of ESA received by her in respect of that period, and the amount of wages received by her from the school in respect of that period.  On the foregoing basis, the claimant’s net loss in respect of the period 1 April 2011-31 March 2012 was £4,375. 

 

47.     The aggregate of £6,253, £7,191 and £4,375 is £17,819.  To that sum, I add £350, as compensation for loss of statutory rights.  Accordingly, £18,169 is the overall amount of the compensatory award. 

 

Polkey?

 

48.     Should the amount specified in the last preceding paragraph be reduced, as a result of the application of the Polkey principle?  I have decided that there will be no “Polkey” deduction, against the following background and for the following reasons.

 

49.     At paragraph 44 of its judgment in Software 2000 Ltd v Andrews [2007] IRLR 568, the Employment Appeal Tribunal described and, in effect, endorsed the following judicial guidance (as set out in earlier judgments) in respect of what it described as “the Polkey approach”:

 

                    “... [T]he Polkey approach – assessing what would have happened had the dismissal been fair – was wholly consistent with the principle of assessing of loss flowing from the dismissal on a just and equitable basis, which is the principle underlying [the GB equivalent of Article 157].  These should be approached as “a matter for the common sense, practical experience and sense of justice of the employment tribunal sitting as an industrial jury” ... [T]he Employment Tribunal’s task was “to construct, from evidence not speculation, a framework which is a working hypothesis about what would have occurred had the [employer] behaved differently and fairly”.

 

50.     As Underhill P pointed out at paragraph 18 of the Employment Appeal Tribunal judgment in Compass Group PLC v Ayodele [2011] IRLR 802:

 

                    “The real question here is about how a Polkey point ought to be raised.  The primary burden is no doubt on the employee to prove his loss.  In the ordinary case, however, that burden is discharged simply by showing that he has been (unfairly) dismissed, since that prima facie establishes that he has lost the earnings that he would have received had the employment continued: the loss is in principle indefinite, at least up until the natural terminus of retirement – though of course in practice it will usually be limited by reference to the time it has taken, or should have taken, for him to find a new job at the same rate of pay.  If the employer wishes to rely on the fact, or the chance, that the earnings would have been lost at some earlier date for some particular reason ... it is for [the employer] to raise that contention and to support it with any evidence that may be necessary (though often the relevant evidence will overlap with what is in any event before the tribunal for other purposes) ...”.

 

51.     In Pinewood Repro Ltd (t/a Country Print) v Page [2011] ICR 508, it had been contended on behalf of the employer that, because a third of relevant staff were being made redundant, the claimant had had a one-in-three chance of being made redundant, and that that percentage chance should therefore have been taken into account, in reducing the claimant’s compensatory award, on the basis of the Polkey principle.

 

52.     That contention was the subject of robust arguments, on behalf of the claimant, in terms which were mentioned at paragraph 42 of the EAT judgment:

 

                    “42.  Finally, in relation to the Polkey issue, the guidelines in [Software] make it clear that it is for the employer to adduce relevant evidence on which he wishes to rely to show that the employee would or might have ceased to be employed in any event.  The tribunal in this case had found that there was no cogent evidence to enable them to attempt to reconstruct “what might have been”: see Software paragraph 54(3).  Simply because there were three possible candidates with close marking did not mean that there was a one in three chance that the claimant would be dismissed ...”.

 

          At paragraph 47 of its judgment, the EAT, in essence, endorsed those arguments:

 

          “47.  Accordingly, we cannot find fault with the tribunal’s determination [on a scoring issue] nor do we find fault on the Polkey issue.  At the end of the day, the tribunal determined that there was no cogent evidence from the employer as to whether he would have been dismissed in any event, leaving only the evidence from the claimant which suggested that he would not have been dismissed in the redundancy selection exercise and that actually that possibility was clearly accepted by the tribunal.  We, therefore, agree that there was no cogent evidence which would have allowed the Tribunal to speculate with the degree of certainty suggested in the Software case ...  In our view, the “one in three argument” is completely fallacious – it is not evidence based”.

 

53.     For reasons which are explained below, the statutory dismissal procedure was not applicable in the circumstances of this case.  However, it is clear that this dismissal was unfair because, although there was no collective consultation in relation to the group of dismissals which included this dismissal, there was no individual consultation with the claimant in relation to his selection for redundancy. 

 

54.     In this case, I have assumed (in favour of Nortel) that it is contending that the compensatory award should be reduced in line with the Polkey principle.            However, I have received no evidence which provides a proper foundation for any reduction of the amount of the compensatory award, on account of any possibility that, even if the claimant had not been unfairly dismissed, (when she was in fact unfairly dismissed) she would have been, or might have been, fairly dismissed:

 

(a)            at that time or

 

(b)            at some date thereafter.

 

55.     The fact that substantial numbers of the staff of the respondent at Monkstown were made redundant in 2009 is a fact which does not in itself provide any adequate evidential basis for concluding that the claimant’s compensatory award should be reduced to reflect some percentage chance that he could or would have been fairly dismissed, by reason of redundancy, either at the time when she was actually dismissed, or at some later date.  (I simply do not know whether Nortel’s choice of redundancy pools was fair, whether the relevant redundancy process was in many respects carried out fairly, or whether it was carried out through an entirely unfair process). 

 

56.     My understanding is that Nortel no longer operates in Northern Ireland.  My understanding is that most, if not all, of the “remaining” Nortel staff, who were still employed in Northern Ireland after June 2009, were ultimately transferred, through TUPE transfers, to the employments of various transferees.  However, I have no evidence as to whether this claimant would have been assigned to any such transferred entity, or as to the specific transferred entity to which she would have been assigned (if she had not been dismissed in March 2009).  Furthermore, I have no evidence on the question of whether all of the transferred employees, in all of the transferred entities, were ultimately dismissed by way of redundancy. 

 

57.     In this case, there was insufficient evidence before me for the purpose of allowing me to construct, from evidence not speculation, a framework which would provide a working hypothesis about what would have occurred had Nortel behaved differently and fairly.  (See paragraph 49 above).  I fully understand that there may be sound economic reasons for the decision of the administrators not to become involved in this unfair dismissal hearing.  However, in the absence of that participation, I am constrained to conclude that I have no adequate evidence that the claimant would have been dismissed by Nortel in any event, even if a fair selection procedure had been followed; or that she would subsequently have been fairly dismissed, by reason of redundancy, by a TUPE transferee; or indeed even that she would have been assigned (after March 2009) to any particular entity which was subsequently the subject of a TUPE transfer.  In this connection, I note that it has been contended on behalf of the claimant that the March 2009 and June 2009 dismissals were not really by reason of redundancy, but were instead prompted by a desire on the part of the administrators to reduce the workforce so as to make the various sub-businesses more attractive to potential purchasers.  (In the absence of evidence in these proceedings on behalf of Nortel, I am in no position to decide the latter issue either way).  I have been left with no adequate evidential basis for arriving at the “framework” which would provide an appropriate “working hypothesis” about what would have happened to the claimant’s employment, in March 2009 or at some subsequent date, if this dismissal process had been conducted fairly.  (Again, see paragraph 49 above). 

 

58.     Having said all that, I consider that the compensation in this case might well have been substantially reduced if adequate evidence on the Polkey issue had been presented to me.  

 

An Article 17 uplift?

 

59.     Article 17 of the Employment (Northern Ireland) Order 2003 (“the 2003 Order”) applies to unfair dismissal claims. 

 

60.     Paragraph (3) of Article 17 is in the following terms:

 

                    “(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”.

 

61.     The effect of regulation 4(1)(b) of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 is that the statutory dismissal procedure does not apply in relation to the dismissal of an employee if the relevant dismissal is one of a number of dismissals in respect of which the duty in Article 216 of ERO (the duty of an employer to consult representatives when proposing to dismiss as redundant a certain number of employees) applies.

 

62.     It is clear that the Article 216 duty applied in the context of this claimant’s dismissal, not least because a protective award, pursuant to Article 217 of ERO, has already been made in respect of him.  Accordingly, it is clear to me that Article 17 of the 2003 Order does not apply in the circumstances of this case.

 

63.     Unfortunately, regulation 4(1)(b) had not come to my attention when I issued Decisions in a number of previous Nortel unfair dismissal cases.

 

The unfitness issues

 

64.     I am satisfied that, from the beginning of the applicable period until January 2011, the claimant was unfit for work as an employee, because of anxiety and depression. 

 

65.     The claimant’s sworn oral testimony included evidence in relation to the relevant medical unfitness.  I regard that testimony as truthful testimony.  In Wylie v RFD Ltd [2009] NIIT 9466 03IT (Decision issued on 9 April 2009), an industrial tribunal, of which I was Chairman, dealt with the legal principles applicable in the context of claims for unfair dismissal compensation by a person who, at material post-dismissal times, was medically unfit for work.  In the present case, I drew the Wylie Decision to the attention of Mr Stephens and I invited him to provide medical evidence, in light of the general thrust of the principles set out in Wylie.

 

66.     In response to that invitation, Mr Stephens provided evidence consisting of the following: (1) a letter dated 18 September 2014 from the claimant’s GP, Dr Kane, (2) a copy of a Social Security Agency “Work Focused Health Related Assessment” dated 20 August 2009, (3) a copy of a letter written by Ms Roslyn McLoughlin, Condition Management Programme Team Leader, dated 8 February 2011 and (4) a copy of a decision dated 9 February 2011 in respect of an ESA Social Security Tribunal Appeal.  On the basis of all of that evidence, and on the basis of the claimant’s oral testimony, I am satisfied as to the following.  First, I am satisfied that the claimant was medically unfit for work throughout the applicable period until January 2011.  Secondly, I am sure that the unfair dismissal was the main cause of that unfitness.  (I note that the claimant had suffered from a previous bout of depression in 2005, that she had been off work for about six months then, and that she had had no subsequent lengthy periods of mental-health related absence, prior to the date of her dismissal.

 

67.     In arriving at those conclusions, I noted that the claimant’s contemporaneous account of the reasons for her illness emphasised that the redundancy had had a key effect upon her emotional health.  In arriving at the conclusions set out in the last preceding paragraph, I have paid particular attention to Dr Kane’s letter of September 2014.

 

68.     In the context of the claimant’s medical unfitness, the main compensation matters which have to be addressed are the following:

 

          (1)      the causation issue,

 

          (2)      the remoteness/foreseeability issue,

 

          (3)      the “concurrent causes” issue and

 

          (4)      the “discount issue: should the amount recoverable in respect of the relevant loss be discounted to reflect any possibility that the claimant would have become medically unfit even if she had not been unfairly dismissed?

 

69.     I think it will be convenient if I address the last of those issues first.  I have no adequate evidence upon which I could arrive at conclusions on the following questions: (1) would the claimant have become medically unfit for work even if she had not been unfairly dismissed?  (2) If so, when?  (3) What percentage chance is there that the claimant would have become unfit for work, even in the absence of an unfair dismissal, at some particular time?

 

70.     In that connection, I have resisted any temptation to act as though I were an amateur psychiatrist.  I have no expertise which would allow me, in the absence of relevant expert evidence, to arrive at supportable conclusions in respect of the questions mentioned in the last preceding paragraph above; I have received no expert evidence which is relevant in the context of those particular issues.  Furthermore, I note that the claimant had had no lengthy depression-related absences from her employment with the respondent during the last couple of years immediately prior to the date of her unfair dismissal.

 

71.     Against that background, and for those reasons, I have decided not to discount the amount recoverable, in respect of the claimant’s losses during the period of unfitness, to reflect any of the possibilities contemplated at paragraph 69 above.

 

72.     I next wish to consider the causation issue.  The legal principles generally applicable in the context of causation have already been set out at paragraphs 34      and 35 above.  Paragraphs 20-23 of the Wylie Decision contain a statement of the legal principles relevant to causation which are particularly applicable in cases in which a claimant makes a claim for unfair dismissal compensation in respect of a period of medical unfitness, that unfitness allegedly being caused by the dismissal.  In the circumstances of this case, I endorse and apply the statement of the law which was set out at paragraphs 20-23 of Wylie.  In Dignity Funerals v Bruce [2005] IRLR 189, it was decided, in the context of that case, that the causation requirement of unfair dismissal compensation loss was satisfied if the relevant loss was caused by the dismissal “to any material extent”.

 

73.     In this case, I am satisfied that the claimant’s loss of income throughout the period of medical unfitness was caused, to a substantial extent, by the unfair dismissal.  Therefore, in this case, in respect of the period of unfitness, the causation requirement is met.

 

74.     The next paragraph 68 issue (the next of the issues which were set out at paragraph 68 above) is the remoteness, or foreseeability, issue.

 

75.     At paragraph 28 of Wylie, the tribunal made the following observations:

 

                    “28.  Under common law, foreseeability need only be of the kind of damage ... The claimant’s claim in connection with somatisation disorder [a mental illness] is still only, and can only be, a claim for financial loss ... Therefore, in any event, if ... the recovery of compensation for unfair dismissal is subject to a test of foreseeability, that test will always be met, because financial loss is always a foreseeable consequence of unfair dismissal”.

 

          In light of observations which were made in some cases which have come to my attention in the course of preparing the Decision in the present case, I am not sure that I would now be willing to reiterate the view which is set out in paragraph 28 of Wylie, as quoted above.

 

76.     However, I am satisfied that foreseeability is not a necessary ingredient in the context of the recoverability of damages in respect of unfair dismissal.  In this context, I endorse and apply the statement of law set out by the tribunal in Wylie, at paragraphs 24-27 of the Decision.

 

77.     The third of the paragraph 68 issues is the “concurrent causes” issue.

 

78.     In that context, I endorse and apply the statement of the law which was set out at paragraphs 30-43 of the Wylie Decision.

 

79.     In light of the claimant’s pre-dismissal medical history (as outlined at paragraph          66 above), I am satisfied that the unfair dismissal was not the sole cause of the relevant post-dismissal illnesses of the claimant.  Nevertheless, for the reasons specified at paragraphs 30-43 of Wylie, I am satisfied that the claimant is entitled to recover in full in respect of the financial loss sustained throughout her period of post-dismissal medical unfitness.

 

80.     In this connection, I note that, in Seafield Holdings Ltd v Drewett [2006] ICR 1413, the context was that the employee had had a long-standing underlying medical condition, which had been caused by matrimonial and domestic difficulties.  It was accepted that this condition had been exacerbated by the bad treatment which constituted the basis for the claimant’s successful constructive dismissal claim.  In deciding how much unfair dismissal compensation was due to the claimant, the tribunal had applied a “but for” test, both in respect of the claimant’s past losses and in respect of  her future losses.  (In other words, the tribunal had held, on the balance of probabilities, that had it not been for her employer’s treatment of her, the claimant would have been able to work; and, as a consequence, the tribunal ordered the employer to pay in respect of both her past and future losses in full).  Although the employment tribunal’s determination in relation to future losses was quashed by the Employment Appeal Tribunal, the EAT did endorse the tribunal’s approach to the quantification of the past losses.

 

Summary and overall conclusions

 

81.     I have assessed the claimant’s past losses as amounting to £17,819.  To that sum, I have added the sum of £350 in respect of loss of statutory rights.  (See paragraph 47 above).  The aggregate of £17,819 and £350 is £18,169.

 

82.     No compensation has been awarded in respect of future loss. 

 

83.     The figure of £18,169 is not subject to any “Polkey” reduction.  (See paragraph 48 above).

 

84.     That figure of £18,169 is not subject to any increase pursuant to Article 17 of the 2003 Order.  (See paragraph 62 above). 

 

85.     Accordingly, the claimant is entitled to a compensatory award of £18,169.                    

 

Recoupment of benefit from awards

 

86.     The Recoupment Regulations apply.  Attention is drawn to the notice below, which forms part of this Decision.  The prescribed element is £17,819.  The prescribed period is the period from 23 June 2009 until 31 March 2012.  The amount by which the monetary award exceeds the prescribed element is £350. 

 

Interest on industrial tribunal awards

 

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

 

 

 

 

Employment Judge:       

 

 

Date and place of hearing:  29 September 2014, Belfast.            

 

 

Date decision recorded in register and issued to parties: