Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 248/16

 

 

 

CLAIMANT: Tony Brown

 

 

RESPONDENT: Express Distribution Services Ltd

 

 

 

DECISION

The unanimous decision of the tribunal is that the claimant was automatically unfairly dismissed. The respondent is ordered to pay to the claimant the sum of £740.00 as set out at paragraph 22 of this decision.

 

 

Constitution of Tribunal:

 

Employment Judge: Employment Judge McCaffrey

Members: Mr B Hanna

Mr C McIlwaine

 

Appearances:

The claimant was represented by Ms K Foy from the Independent Advice Centre, Portadown.

The respondent was represented by Mr David Neill, Managing Director.

 

1. The issue in this case was whether the claimant was unfairly dismissed. If the tribunal made a finding of unfair dismissal, the next issue then was whether the claimant had contributed to his dismissal in such a way that the award should be reduced for contributory fault?

 

 

THE FACTS

 

2. We heard oral evidence from Mr Neill and from the claimant Mr Brown. On the basis of their evidence and correspondence produced, we make the following relevant findings of fact.

 

3. The claimant worked for the respondent company as a lorry driver from the 28 April 2013 until 9 December 2015 when he was dismissed. The respondent conceded that the claimant had been dismissed by his son Jonathan who was the Operations Manager. As no statutory disciplinary or dismissal procedures had been followed in relation to the dismissal, it was conceded that it was an automatically unfair dismissal. Mr Neill said that in eighteen years in business, this was the first time he had dismissed an employee.

 

4. The claimant was aged 54 at the date of dismissal. His earnings were £400.00 per week gross, his take-home pay was £350.00 net, together with allowances for overnight stays and food when travelling away from home.

 

5. It was also conceded by the claimant that he had had a number of accidents when working for the respondent. There were in total eight accidents where the claimant had been involved between May 2013 and 9 December 2015 when he was dismissed. The most serious incident was in February 2015 when the claimant had lost control of his vehicle which had overturned, apparently on black ice. There was an insurance claim worth approximately £100,000.00 which had to be settled. This was the most serious accident but there were other insurance claims outstanding at the date when the claimant was dismissed. The two most recent incidents had taken place at Randalstown in November 2015 and at a nursing home in Navan, County Meath in December 2015. These claims were not notified to the insurers but were settled by the respondent direct at a cost of £600.00 and €900 respectively.

 

6. The respondent's evidence was that on 9 December 2015 they received a phone call from a member of staff at the Millbury Nursing Home in Navan, County Meath complaining about damage caused to a wall at their premises. CCTV footage showed that the claimant had driven his lorry around the nursing home and had collided with a wall. Staff at the nursing home were concerned that if one of the residents had been out walking about they could have been seriously hurt. This incident was not reported by the claimant to his employer although damage had been caused to the side of the trailer. When he got back to the depot he reported to the mechanic that he had caught the side of the trailer on a tree on a narrow road hence the damage. The claimant's evidence was that he did not know how the vehicle had been damaged as he had not been aware of having hit the wall.

 

7. Mr Neill's evidence was that when was advised of the collision in County Meath he was concerned. He considered that he had given the claimant a number of opportunities and had spoken to him previously about the number of accidents he had had, warning him that the insurers were questioning the number of accidents where the claimant was involved and asking why he was still employed by the respondent. Mr Neill admitted that he had not given the claimant any formal disciplinary warnings and there had been no disciplinary procedure followed. His instruction to his son on 9 December 2015 was that when the claimant returned to the office he should be dismissed and this was what occurred.

 

8. The claimant started a new job on 14 December 2015, a little less than a week after he was dismissed. In that job he also earns £400.00 per week gross, £350.00 per week net. He noted however that as he was not doing runs to England or overseas he did not generally receive any additional allowances.

 

THE RELEVANT LAW

9. Unfair Dismissal

 

It is well established that the claimant has the right not to be unfairly dismissed as set out in Articles 130 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 a 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 ..."

 

10. 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."

 

11. 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.

 

12. Article 17(3) of the Employment (Northern Ireland) Order 2003 makes provision for the uplift of awards in a case 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%.

 

 

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".

 

13. In relation to reductions to the basic award, Article 156(1) provides that where the tribunal finds that the complainant has unreasonably refused an offer by the employer which (if accepted) would have the effect of reinstating the complainant in his employment in all respects as if he had not been dismissed, the tribunal shall reduce or further reduce the amount of the basic award to such extent as it considers it just and equitable having regard to that finding.

 

14. Article 156(2) provides that where the tribunal considers that any conduct of the claimant before the dismissal (or, where the dismissal was with notice before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to an extent, the tribunal shall reduce or further reduce that amount accordingly. Similar provisions relating to the reduction of the compensation award for contributory fault are to be found in Article 157(6). The amount of any reduction for contributory fault is a matter for the industrial tribunal hearing the case.

 

15. The tribunal must also consider whether it is appropriate to consider any reduction in the award on the basis of that, if the statutory dismissal procedures had been followed, the claimant would in any event have been dismissed under the ruling of the House of Lords in Polkey.

 

16. In principle therefore this is a case where the minimum basic award of four weeks' pay should be made to the claimant. In considering an award of compensation however we are obliged to consider the ruling of the House of Lords in Polkey v AE Dayton Services Ltd [1987] IRLR 503 where their Lordships said as follows:-

 

"In judging whether what the employer did was reasonable, it is right to consider what a reasonable employer would have had in mind at the time he decided to dismiss as a consequence of not consulting or not warning as provided for in the Code of Practice. If the employer could reasonably have concluded in the light of the circumstances known to him at the time of dismissal that consultation or warning would be utterly useless, he might well act reasonably even if he had not served the provisions of the Code. Failure to observe the requirement of the code relating to consultation or warning will not necessarily render a dismissal unfair. Whether in any particular case it did so is a matter for the industrial tribunal to consider in the light of the circumstances known to the employer at the time he dismissed the employee".

 

17. We also of course take account of the fact that since the date of the Polkey decision, the statutory disciplinary and dismissal procedures have been introduced. We are however also aware of the decision of the Employment Appeal in England in Goodin v Toshiba Tec Relation Information Systems SA [U&KEAT/0271/08/JOJ. In that case the claimant had been made redundant following a consultancy exercise. The industrial tribunal hearing his case at first instance were satisfied that the respondents had shown that, had a fair procedure been followed, they would still have dismissed the claimant. They further went on to find that there was a breach of the statutory dismissal procedures in that there had been no step one letter and a failure at step two, in that the claimant had not been given the precise scores awarded to him or his ranking in the list of engineers. The tribunal therefore went on to say in its decision that they were going to reduce any compensation by 100% under the principles in Polkey. The Employment Appeal Tribunal found that the tribunal was entitled to reduce compensation by 100% in an automatic unfair dismissal case where the breaches of procedure would have made no difference to a decision to dismiss. They noted that the level of compensation and Polkey issues were very much a matter of discretion for the industrial jury to fix.

 

 

REASONS AND DECISION

 

18. We note that in this case the claimant had worked for the respondent for two years and during that time he had a total of eight accidents where he had caused damage either to the company's property or to someone else's. We also note that this had involved approximately six insurance claims, one of which was for a total of £100,000.00.

 

19. We also note that although he had not formally been disciplined in relation to these matters he had been spoken to by the Managing Director, Mr Neill, and we accept Mr Neill's concern that he was worried that the claimant had had so many accidents. He said he considered it was only a matter of time before there was a more serious accident where someone was hurt or indeed killed as a result of the claimant's driving. We can appreciate that this was a genuine concern. We can also appreciate that the accidents which the claimant had had, caused considerable expense to the respondent not least because it opted to settle a number of the claims direct rather than referring them to the insurance company. We were not told what the excess on the respondent's insurance policy was but undoubtedly the respondent would have been out expense in relation to all the claims.

 

20. While therefore we accept Mr Neill's frank admission that the Statutory Disciplinary and Dismissal Procedures had not been followed and that the claimant's dismissal was therefore automatically unfair, it is our view that the claimant made a substantial contribution towards his dismissal and we consider that any award in his favour should be reduced by 60%. While drivers may have an accident (which may or may not be their fault), eight accidents in just over two years seems to us to be excessive.

 

21. In relation to the automatic unfair dismissal, as we have set out above the Industrial Tribunal will normally be obliged under Article 154(1A) of the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order") to increase the basic award to the amount of four weeks' pay. However the Industrial Tribunal is not required by paragraph 1A to increase the amount of the award if it considers that the increase would result in injustice to the employer. In this case, given that the respondent had shown the claimant considerable leeway in not disciplining him following the other accidents (although he had spoken to him in fairly strong terms), we consider that it would result in injustice to the employer to increase the award. While we want to stress that the statutory disciplinary and dismissal procedures are there for an important purpose, and should not be ignored by employers, we are conscious that in cases such as this, it is highly likely that the claimant would have been dismissed in any event even if the correct dismissal procedures had been followed under the guidance in Polkey. We do not therefore consider it appropriate to uplift the basic award to four weeks' pay.

 

 

 

 

22. We order the respondent to pay the claimant the following amounts:

 

Basic Award

 

The claimant had been employed for two complete years by the respondent and was aged 51 at the date of dismissal. His gross pay was £400.00 per week. The basic award is calculated therefore as follows:-

 

£400.00 x 2 x 1.5 = £1,200.00

 

Compensatory award

 

The claimant found new employment within one week of his dismissal and was earning the same as working for the respondent. The compensatory award therefore is as follows:-

 

One week's pay (net) £ 350.00

 

Loss of statutory rights £ 300.00

Total award £1,850.00

 

Deduction for Contributory Fault

 

Less 60% £1,110.00

 

Net award £ 740.00

 

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: 27 May 2016, Belfast.

 

 

Date decision recorded in register and issued to parties: