Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1491/17

 

 

 

CLAIMANT: Stephen Ferguson

 

 

RESPONDENT: James Lavery, t/a First Choice Upholstery

 

 

 

DECISION

The unanimous decision of the tribunal is that the claimant was automatically unfairly dismissed by the respondent. The respondent shall pay the claimant £1,652.20 compensation.

 

 

Constitution of Tribunal:

 

Employment Judge: Employment Judge Bell

 

Members: Mr I Acheson

Mr R McKnight

 

 

Appearances:

 

The claimant was self-represented.

 

The respondent was self-represented.

 

1.             The claimant complained in his claim that he was unfairly dismissed for gross misconduct after informing the respondent that he would not return to work from holiday on the date expected, without notice and without written notice of dismissal.

 

2.             The respondent in his response resisted the claimant's claims and asserted that he had fairly dismissed the claimant for gross misconduct, by way of a deliberate defiance of his authority in taking unauthorised leave and refusal to follow reasonable instructions set against a background of other issues and a total breakdown in trust.

 

 

 

ISSUES

 

3.             The following issues were before the tribunal for determination:-

 

(1)           Was the dismissal automatically unfair for failure to follow the statutory disciplinary and dismissal procedures? If so,

 

(2)           Would the claimant still have been dismissed had the respondent complied with the statutory procedure?

 

(3)           Did the claimant by his conduct contribute to his dismissal such that a percentage reduction of any compensation should be applied?

 

EVIDENCE

 

4.             The tribunal considered the claim, response, agreed bundle of documentation including witness statements from the respondent, Martin Garland (the respondent's employee) and Helen Lavery (the respondent's wife) on behalf of the respondent and witness statements of the claimant and Cathy Kelly-Ferguson (the claimant's wife) on behalf of the claimant, together with their oral testimony.

 

FINDINGS OF FACT RELEVANT TO LIABIITY

 

5.             The claimant commenced employment with the respondent as an upholsterer on 1 February 2003. The claimant was one of approximately five employees in the respondent's upholstery business. No written statement of particulars of employment terms was provided to the claimant at any time following commencement of his employment. Employment terms were orally agreed and no written employment policies or procedures were provided to the claimant. The respondent closed for fixed holiday periods each year but also endeavoured to accommodate staff members' requests for time off beyond set holiday times subject to being given sufficient notice to allow him to plan ahead for work bookings, to allow completion for deadlines. Work undertaken by the respondent includes commercial contract work for pubs and clubs with penalties imposed for missing deadlines.

 

6.             On 30 May 2016 Mrs Kelly Ferguson booked a holiday to Euro Disney for four nights, leaving on 15 January 2017, for herself, the claimant and their two children. Mrs Kelly Ferguson did not tell the claimant at the time about the holiday she had booked as it was intended to be a surprise Christmas present. Mrs Kelly Ferguson lived separately from the claimant.

 

7.             In November 2016 Mrs Kelly  Ferguson informed the claimant that she had booked a holiday in order that he could book time off work but mistakenly told him that they would be going on holiday on Saturday 14 January 2017 for three days and that he would need only two days off from work. Accordingly the claimant approached the respondent and obtained prior approval for two days' holiday leave to be taken on Monday 16 January 2017 and Tuesday 17 January 2017. The respondent thereafter planned work bookings around the claimant's arranged holiday leave.

 

8.             On Friday 13 January 2017 after other employees had left the workplace, Martin Garland approached and put to the respondent his intention to leave his job by reason of the claimant's prior behaviour towards Mr Garland which he alleged included treatment which he perceived as motivated by his religious background. Mr Garland however agreed with the respondent to remain in his employment based on the respondent's assurance that he would look into the matter swiftly and do everything possible to resolve the issue.

 

9.             On Friday 13 January 2017 Mrs Kelly Ferguson informed the claimant that they were leaving on holiday on Sunday 15 January 2017 rather than Saturday 14 January 2017. Accordingly the claimant sent a text message to the respondent on Saturday 14 January 2017 stating ' Sorry she's f....d the flights up. We're not flying home til late Wednesday night'. The respondent replied, ' that was not the arrangement. You'll have to work Saturday and Sunday next week or look for another job. You should have phoned me and not texted. I tried to call you but you wouldn't answer'. The claimant phoned the respondent back and agreed to work the next weekend. It was in dispute whether the claimant shortly thereafter telephoned the respondent again and withdrew his agreement to work the following weekend. We on balance find more credible and probable the respondent's evidence that the claimant did in fact subsequently withdraw his agreement stating childcare reasons because his wife had to work.

 

10.          On Wednesday 18 January 2017 the claimant sent a text message to the respondent stating, ' we're staying an extra day got it half price so took it. Sorry my boys' happiness means more to me than anything. If you want me to look for another job so be it! Can't phone because phone's not letting me. Let me know cause I'm not coming in on Friday to be talked down to. Can't be listening to it anymore'. The respondent replied ' classing that as unauthorised leave which is gross misconduct. You can expect a written notice saying that your contract of employment is terminated. You'll get your P45 posted'. The claimant replied, 'that's wild take it Darren wrote that!! Did you know your so called new upholsterer went for two interviews over Christmas'.

 

11.          On Friday 20 January 2017 at 16.01 the respondent sent a text message to the claimant, 'your P45 and any money you're owed will be ready for the early part of next week which you can collect when the key and the alarm fob is returned or if you want you can give the key and fob to Michael and I can post the stuff to you'. The claimant replied, ' Ok will gave [sic] to Michael', the respondent asked for an address which the claimant confirmed.

 

12.          On 10 February 2017 the claimant sent a letter to the respondent referring to the respondent's text message in which he had stated that he would send out the claimant's written notice, which the claimant still had not received and requested as soon as possible stating the reasons for his dismissal so he could appeal it. No response was forthcoming.

 

13.          The claimant presented his claim for unfair dismissal to the Office of the Industrial Tribunals on 13 March 2017.

 

THE LAW RELEVANT TO LIABILITY

 

14.          Under Article 126 of the Employment Rights (Northern Ireland) Order 1996 ('ERO') an employee has the right not to be unfairly dismissed by his employer.

 

15.          The Employment (Northern Ireland) Order 2003 ('2003 Order') at Schedule 1 sets out the statutory dismissal and disciplinary procedures to be followed as a bare minimum where applicable, by an employer contemplating a dismissal. The standard procedure consists of three steps. At Step 1 an employer must set out in writing the employee's alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee and send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter. Step 2 requires a meeting and Step 1 is the provision of an appeal. A modified two step procedure applies where the employer was entitled, in the circumstances, to dismiss the employee by reason of his conduct without notice or any payment in lieu of notice. The modified procedure also requires at Step 1 a statement of grounds for action and at Step 2 the provision of an appeal.

 

16.          A dismissal may be regarded as automatically unfair under Article 130A(1) ERO where one of the statutory dismissal and disciplinary procedures applies in relation to the dismissal procedure, it has not been completed, and, the non-completion of the procedure is wholly or mainly attributable to a failure by an employer to comply with its requirement, otherwise Article 130 ERO sets out how the question of whether a dismissal is fair or unfair is to be determined.

 

APPLYING THE LAW TO FACTS FOUND RELEVANT TO LIABILITY

 

17.          The tribunal is satisfied that the standard procedure of the statutory dismissal and disciplinary procedures was applicable to the claimant's dismissal but finds that Steps 1, 2 and 3 were not complied with at the failure of the respondent. The tribunal does not consider that the modified procedure was applicable in the circumstances but even if it were finds that Steps 1 and 2 were not complied with at the failure of the respondent.

 

18.          The tribunal in the circumstances finds that the claimant's dismissal was automatically unfair under Article 130A(1) ERO, the non-completion of the dismissal and disciplinary procedures being wholly attributable to the failure by the respondent to comply with its requirements.

 

THE LAW RELEVANT TO REMEDY

 

19.          Where a tribunal finds the grounds of complaint of unfair dismissal are well- founded the Orders it may make are set out at Article 146 ERO and include reinstatement, re-engagement and otherwise compensation. How compensation is to be calculated is set out in Articles 152 to 161 ERO. The starting point for the calculation of the compensatory award is Article 157 (1) ERO:

 

'(1) Subject to the provisions of this Article and Articles 158, 160 and 161, 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 complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer'.

 

20.          The compensatory award should not be increased out of sympathy for the claimant or to express disapproval of the respondent. The claimant has a duty to mitigate his loss and the onus is on the respondent to show the claimant as unreasonable in the steps taken or not taken to do so. The compensatory and basic awards may be reduced (Articles 156(2) and 157(6) ERO) where the claimant was guilty of blameworthy conduct (i.e. perverse, foolish, 'bloody-minded' or unreasonable in the circumstances) that contributed to the employer's decision to dismiss and the tribunal considers it just and equitable to reduce the award by a percentage to reflect the extent of the contributory fault.

 

21.          The case of Polkey v Dayton Services LTD 1987 3 All ER 974 HL makes it clear that, if a dismissal is procedurally defective, then that dismissal is unfair but the tribunal has a discretion to reduce any compensatory award by any percentage up to 100% if following the procedures correctly would have made no difference to the outcome.

 

22.          Under Article 154(1) ERO where an employee is regarded as unfairly dismissed there is provision at Article 17 of the Employment (Northern Ireland) Order 2003 for an uplift to be applied to awards in proceedings before an Industrial Tribunal relating to a claim under any of the jurisdictions listed in Schedule 2 (which includes unfair dismissal under Article 145 ERO) by an employee where it appears to the Industrial Tribunal that a claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies, the statutory procedure was not completed before the proceedings were begun, and 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, in which case it shall (save where there are circumstances which would make an award or increase of that percentage unjust or inequitable) increase any award which it makes to the employee by 10% 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%.

 

23.          Article 33 ERO provides that where an employee begins employment with an employer, the employer shall give to the employee a written statement of particulars of employment as provided therein. Under Article 27 of the Employment (Northern Ireland) Order 2003, in proceedings before an Industrial Tribunal in respect of specified jurisdictions, which include unfair dismissal, if the tribunal makes an award to the employee in respect of the claim, and when the proceedings were begun the employer was in breach of his duty to the employee under Article 33 ERO, the tribunal shall increase the award by the minimum amount equal to two weeks' pay to be paid by the employer to the employee and may, if it considers it just and equitable in all the circumstances, award the higher amount equal to four week's pay instead. The tribunal's duty does not apply if there are exceptional circumstances which would make an award or increase unjust or inequitable.

 

FACTS FOUND AND CONCLUSIONS RELEVANT TO REMEDY ONLY

 

24.          The claimant sought compensation only.

 

25.          The effective date of termination (EDT) was 18 January 2017 at which time the claimant was 48 years old and had thirteen full years of continuous employment.

 

26.          The claimant's gross weekly pay was £330.00, being £285.00 net.

 

27.          The respondent was unaware of the statutory minimum disciplinary and dismissal procedures at the time of dismissing the claimant.

 

28.          The claimant on 18 January 2017 did not seek to explain to the respondent that he had made a further mistake, this time regarding his return flights, but sent a message by text stating ' we're staying an extra day got it half price so took it. Sorry my boys' happiness means more to me than anything. If you want me to look for another job so be it! Can't phone because phone's not letting me. Let me know cause I'm not coming in on Friday to be talked down to. Can't be listening to it anymore'.

 

29.          Mr Garland on his own evidence was open to resolution of the issues he had raised with the respondent and was prepared to continue to work with the claimant.

 

30.          The respondent considered that problems he had experienced with the claimant in relation to the use of his mobile phone at work, time management and attitude were small issues which he had been prepared to put up with over the years and that the claimant would but still have had a job if he had not behaved in the way he did.

 

31.          The claimant is in receipt of Job Seeker's allowance. The claimant has been unsuccessful in securing alternative employment which he attributed to his honesty in completing job applications and lack of a reference from his last employment arising from the circumstances of his dismissal. Whilst the respondent took issue with the immediate and future loss sought by the claimant and raised a failure to mitigate, no evidence in support of the claimant having acted unreasonably in failing to seek alternative work was presented.

 

32.          At no time did the respondent give the claimant a written statement of employment particulars and as such when these proceedings were begun the respondent was in breach of his duty to the claimant under Article 33 ERO.

 

33.          There is no evidence of circumstances before the tribunal which would make an increase under Article 17 of the 2003 Order unjust or inequitable; or such that it would be just and equitable to increase an award under Article 17 by more than 10%; or such that it would be just and equitable to make an increase of an award under Article 27 of the 2003 Order to the higher amount.

 

34.          Taking into account the above, the tribunal on balance consider it more likely than not that the claimant's employment with the respondent would have continued had the respondent complied with the statutory dismissal procedure. The tribunal consider it probable that matters would ultimately have been resolved had the claimant been invited to a meeting to discuss them. The tribunal consider a 20% 'Polkey reduction' of the compensatory award just and equitable to reflect the likelihood that following correct procedures would have made no difference to the outcome.

 

35.          The tribunal consider that the way in which the claimant approached the respondent over his need for additional leave was inflammatory, the claimant expressed no contrition for the late notice given by him to the respondent, presenting on 18 January 2017 his unavailability as arising from a deliberate decision made by him to book another night away on holiday rather than as being as a consequence of a mistake and furthermore the claimant made the suggestion to the respondent that he would look for another job. We consider that the claimant's behaviour in the circumstances was certainly foolish and unreasonable if not indeed 'bloody-minded' and was blameworthy conduct which heavily contributed to the respondent's decision to dismiss. We consider that the claimant would not have been dismissed had he not sent the text message to the respondent in the terms that he did and instead explained the further mistake made regarding return flights and sought approval for an additional day of leave. In the circumstances we consider it just and equitable to make a 90% reduction of the basic and compensatory awards to reflect the contribution of the claimant's conduct to his dismissal.

 

36.          The claimant estimated that it would take him six months to obtain a new job. We consider that the claimant on making reasonable efforts to mitigate his loss is likely as the mid-point of probabilities to be able to secure other work at a similar rate of pay within one month from the date of hearing albeit perhaps within a different sector.

 

REMEDY

 

37.          Taking into account the above, the tribunal awards the following:

 

(1)           Basic Award - under Article 153 ERO :-

 

8 years x 1½ x £330.00 = £3,960.00

 

5 years x 1 x £330.00 = £1,650.00

£5,610.00

 

Less 90 % reduction for conduct Article 156(2) ERO - £ 5,049.00

£ 561.00

 

(2)           Compensatory award - under Article 157 ERO:-

 

(i)         Loss of earnings EDT to date of hearing:

 

36 weeks @ £285.00 £10,260.00

 

(ii)        Future loss, 4 weeks @ £285.00 £ 1,140.00

(iii)       Loss of statutory rights, say £ 250.00

£11,650.00

 

Less 20% Polkey reduction - £ 2,330.00

£ 9,320.00

 

Add 10% uplift Article 17, 2003 Order £ 932.00

£10,252.00

 

Add Article 27 increase, 2003 Order, 2 weeks @ £330 £ 660.00

£10,912.00

 

Less 90% reduction for conduct Article 157(6) ERO - £ 9,820.80

 

Total compensatory award £ 1,091.20

 

 

 

Total Compensation £ 1,652.20

 

Recoupment

 

38.          The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations (Northern Ireland) 1996; The Social Security (Miscellaneous Amendments No.6) (Northern Ireland) 2010 and your attention is drawn to the attached notice:-

 

(a)   Monetary award £ 1,652.20

(b)   Prescribed element £ 902.88

(c)   Period to which (b) relates 18 January 2017 - 26 September 2017

(d)   Excess of (a) over (b) £ 749.32

 

CONCLUSION

 

39.          The tribunal finds that the claimant was automatically unfairly dismissed by the respondent under Article 130A(1) ERO. The respondent shall pay the claimant £1,652.20 compensation.

 

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

 

 

 

Employment Judge:

 

 

Date and place of hearing: 26 September 2017, Belfast.

 

 

Date decision recorded in register and issued to parties: