Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  2553/15

 

 

 

CLAIMANT:                          Stephen Woods

 

 

RESPONDENT:                  Geoff Baird, t/a Craigmore

 

 

 

DECISION ON A REVIEW

The decision of the tribunal is set out in the body of the decision.

 

 

 

Constitution of Tribunal:

Employment Judge:          Employment Judge Greene       

Members:                             Ms M Mulligan

                                                Mr I Foster

 

Appearances:

The claimant appeared in person.

The respondent was represented by Mr Sean Doherty, of counsel, instructed by McCorkell Legal and Commercial Solicitors.

 

1.         On 11 October 2016 an Industrial Tribunal issued a decision, in which it found that the respondent had automatically unfairly dismissed the claimant and substantively unfairly dismissed the claimant.  The tribunal awarded the claimant compensation in the amount of £18,210.54.

 

2.         By letter of 26 October 2016 the respondent’s solicitor sought a review of the tribunal’s decision, in relation to remedy only, pursuant to Schedule 1 Rule 34(3)(e) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, that the interests of justice requires such a review. 

 

3.         The respondent’s solicitor, in the application for a review, referred to two aspects of the decision which was the basis of the respondent’s application for a review, which were:-

 

(1)          The failure of the tribunal to make any reference to the evidence of the claimant that he had obtained new employment;

 

(2)          The failure of the tribunal to reduce the basic award on the ground of the claimant’s contributory conduct. 

 

4.         In support of its application the respondent’s solicitor set out her note of evidence, given at the tribunal, to the effect that the claimant had obtained new employment, paid at a higher rate, and which was scheduled to commence on 6 April 2016.  She further submitted that, as the tribunal had made a reduction for contributory fault of 30% in the compensatory award it was obliged to make the same deduction in the basic award, which it had not done, pursuant to the decision of the Northern Ireland Court of Appeal in G McFall and Co Ltd v Curran [1980] NI81.

 

5.         The respondent had notified the claimant, by letter of 21 October 2016, that it was intending to seek a review of the decision.

 

6.         By letter of 27 October 2016 the claimant wrote to the tribunal to confirm that he had indeed begun work from the 6 April 2016, in a full-time job, earning £360.00 gross per week which is a higher rate of pay than that which he enjoyed with the respondent. 

 

7.         The review application came on for hearing on 1 December 2016. 

 

8.         At the review hearing Mr Doherty submitted that the tribunal had omitted to reduce the compensatory award to reflect the evidence given by the claimant that he had obtained further employment from 6 April 2016 at a higher rate of pay and thus his loss had stopped at that date.  He also submitted that, following the decision of the Northern Ireland Court of Appeal in G McFall v Curran that the tribunal was obliged to reduce the basic award by the same proportion, to reflect the contributory fault that the tribunal had found and applied to the compensatory award. 

 

9.         Mr Woods accepted that he had in fact begun a new job at a higher rate of pay from 6 April 2016.  However he felt that there should not have been any reduction for contributory fault because he had merely been doing what he had been shown to do and what was common practice within the respondent business and therefore his application was that the contributory fault element should be removed altogether.

 

10.      Mr Doherty accepted that the claimant had not made an application for review in accordance with the 2005 Rules of Procedure but he did not have any objection to the tribunal considering the claimant’s submission. 

 

11.      The tribunal had the benefit of checking its notes which confirmed, in general terms, the point made by the respondent in relation to the evidence given at first instance by the claimant and affirmed by the claimant in his letter of 27 October 2016.  The tribunal therefore accepted that it had omitted to reflect in its compensatory award the fact that the claimant had obtained alternative employment from 6 April 2016 at a higher rate of pay and that therefore his loss stopped on 5 April 2016. 

 

12.      Therefore the quantum of the compensation awarded by the tribunal is incorrect. 

 

13.      In relation to the claimant’s contention that there should be no deduction of 30% contributory fault at all, this was the same point, and for the same reasons, that the claimant had made at the original hearing and which the tribunal had addressed in its decision at Paragraph 6(23).  The claimant has not added any additional argument, piece of information or legal authorities at the review hearing that would cause the tribunal to change its conclusion, as set out in its original decision, and therefore it adheres to its decision that the contributory fault should be measured at 30%.

 

14.      The tribunal also had the benefit of the decision in John Davis v Palmer and Harvey McClure Ltd, case reference 2602/14, in the course of which Employment Judge Drennan QC set out the applicable law on contributory fault in Northern Ireland and in Britain and contrasted and compared them.  Employment Judge Drennan QC noted that the decision of the Court of Appeal in G McFall and Company Ltd v Curran remains the applicable law in Northern Ireland and that the position in Britain has largely arrived at the same conclusion although in the past there was a divergence between the two jurisdictions.  Employment Judge Drennan QC set out his analysis and conclusions between paragraphs 3.30 and 3.31 of his decision. 

 

15.      The tribunal, having had the benefit of that analysis of the authorities, agrees with that analysis and the conclusions set out by Employment Judge Drennan QC.  The tribunal therefore concludes that where a reduction for contributory fault is made, in relation to the compensatory award, then a similar reduction should be made in the basic award. 

 

16.      In the absence of any argument or legal authority to the contrary, the tribunal proceeds on the basis that even a reduction of 0%, in relation to the basic award, is a reduction and therefore is not consistent with the decision of the Northern Ireland Court of Appeal in G McFall and Company Ltd v Curran on contributory fault deduction.  Therefore the tribunal concludes that a reduction in the basic award to the claimant of 30% is also required as a matter of law.

 

17.      It appears that the application for review, on behalf of the respondent, is late by one day.  However in the circumstances of this claim and in light of the omissions made by the tribunal, the tribunal considers it just and equitable that time should be extended to enable the respondent’s review application to be made.

 

18.      The tribunal therefore accepts the respondent’s application for review, for the reasons submitted and varies its decision accordingly.

 

19.      In light of the above, the tribunal sets out the appropriate calculation of the compensation due to the claimant as follows:-

 

 

 

 

Basic award

 

(12 September 2012-9 October 2015)

 

2 x 1.5 x £490.00 =                                       £1,470.00

 

1 x 1 x £490.00 =                                          £   490.00

Total                                                                £1,960.00

 

Minus contributory fault of 30%                £   588.00

 

Balance                                                         £1,372.00                  £1,372.00

 

Compensatory Award

 

10 October 2015-5 April 2016

£263.34 x 25.29        =                                  £6,659.87

 

Plus 40% uplift         =                                  £2,663.95

 

Total                                                                £9,323.82

 

Minus 30% contributory fault                     £2,797.15

                                                                                    £6,526.67                  £6,526.67

                                                                                                 

                                                                                                                                                                                               

Loss of statutory rights                                                                    £   250.00

           

Total compensation                                                                         £8,148.67                             

The prescribed period is

10 October 2015-5 April 2016

 

The prescribed amount is £1,622.00

(£8,148.67-£6,526.67)

 

           

20.      The Employment Protection Recoupment of Jobseekers Allowance and Income Support Regulations 1996 as amended apply to the decision, your attention is drawn to the attached Recoupment Notice which forms part of this decision.

 

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

 

 

Employment Judge:

 

Date and place of hearing:     1 December 2016, Belfast.

 

Date decision recorded in register and issued to parties: