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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Robinson v Portview Fit-Out Limited (Discrimination - Age Breach of Contract Unauthorised Deduction of Wages Unfair Dismissal Other) [2019] NIIT 05364_18IT (13 May 2019)
URL: http://www.bailii.org/nie/cases/NIIT/2019/05364_18IT.html
Cite as: [2019] NIIT 05364_18IT, [2019] NIIT 5364_18IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 5364/18
CLAIMANT: Kieran Robinson
RESPONDENT: Portview Fit-Out Limited
DECISION
The unanimous decision of the tribunal is that the respondent unfairly dismissed the claimant and it awards him compensation of £57,609.36.
CONSTITUTION OF TRIBUNAL
Employment Judge: Employment Judge Greene
Members: Mrs M O’Kane
Ms E McFarland
APPEARANCES:
The claimant was represented by Mr R Clements, solicitor, of Tully Clements Solicitors.
The respondent was represented by Ms A Beattie of Croner Group Ltd.
1. The tribunal heard evidence from the claimant and on behalf of the respondent from Simon Campbell, Karen Fullerton, Wilson Lamont and Paul Scullion. The tribunal also received five bundles of documents comprising 443 pages approximately, witness statements and a number of legal authorities.
THE CLAIM AND COUNTER CLAIM
2. The claimant claimed ordinary unfair dismissal, automatically unfair dismissal, breach of contract and age discrimination.
THE ISSUES
3. The agreed legal and factual issues are as follows:-
Unfair Dismissal
(1) Was the claimant dismissed for a fair reason, namely redundancy? In that, were the reasons for the dismissal wholly or mainly attributable to the circumstances outlined in Section 139(1)(a) and (b) of the Employment Rights (Northern Ireland) Order 1996?
(2) In the alternative, was the claimant dismissed for a fair reason, namely some other substantial reason, due to the restructure of the Department where the claimant was employed?
(3) Did the respondent follow a fair procedure within the meaning of Section 98(4) of the Employment Rights (Northern Ireland) Order 1996?
Namely;
(a) Was there a reasonable consultation process followed with the claimant?
(b) Was reasonable consideration given to alternatives to redundancy?
(c) Was there a reasonable appeal process in place for the claimant?
(4) If the tribunal finds that a fair procedure was not followed, would the claimant still have been dismissed or is there a percentage likelihood that the claimant would still have been dismissed if a fair procedure had been followed.
Direct Age Discrimination
(5) Was the respondent’s failure to appoint the claimant to the respondent’s Board of Directors in December 2015 less favourable treatment on the ground of age?
(6) The claimant’s date of birth is 19 November 1967. The claimant’s comparators are Wilson Lamont (dated of birth 4 March 1973); Melvin Hopps (date of birth 28 August 1981); and John McMann (date of birth 21 February 1982), who were all appointed to the respondent’s Board of Directors in December 2017
(7) Has the claimant submitted his discrimination claim outside the time limit to do so, in accordance with section 48 of the Employment Equality (Age) Regulations (Northern Ireland) 2006?
Breach of Contract
(8) Was the deduction for the sum of £6,273 from the claimant’s final salary on 22 December 2017 a breach of the Growth Securities Ownership Plan Agreement (GSOP) between the parties?
(9) Was the respondent’s grievance procedure contractual?
(10) If so, did the respondent breach their grievance procedure in the conduct of the claimant’s grievance submitted to the respondent in October 2017?
On the second day of the hearing the parties agreed that the grievance procedures were properly carried out and that the Tribunal need not concern itself with Issues (9) and (10).
In the course of the hearing the claimant did not pursue his breach of contract claim. Therefore the tribunal does not need to concern itself with Issue (8).
The pleading in the alternative by the respondent that the dismissal was for some other substantive reason was added at a Case Management Discussion on 18 September 2018.
FINDINGS OF FACT
4. (1) The claimant was born on 19 November 1967. He has had 34 years construction industry work experience. His positions of employment to date include as a systems manager; bricklayer; National Vocation Qualifications (NVQ) assessor and internal verifier; certified/approved lecturer for the Construction Industry Training Board; the Chartered Institute of Environmental Health and for further and higher education usually in construction related vocations. He also has a wealth of experience of management systems. He has achieved various qualifications and positions including a master’s degree in Occupational Safety and Health from Queens University Belfast; lead auditor for three management systems including health and safety, environmental and business continuity. He is also a certified internal auditor for information security management systems. He is a chartered fellow and past chair of the Institution of Occupational Safety and Health, Northern Ireland branch, of which he was chairman for five years, a fellow member of the International Institute of Risk and Safety Management and a fellow member of the Chartered Institute of Building. He also wrote the course Tutor Resources, Presentation and Questions Set for the Northern Ireland Instructions Skills Register one day health and safety course requested by the Construction Employers Federation, Belfast.
(2) Simon Campbell is the Managing Director of the respondent company. He has worked with the respondent company for 24 years. The respondent is owed by Portview Holdings and Simon Campbell is a shareholder in Portview Holdings Ltd.
(3) The respondent has been operating since 1975 and currently has 85 employees and a turnover of £48-49 million for the current year. The respondent is an Interior fit-out contractor for the world’s leading brands across the UK, the Republic of Ireland and France.
(4) Prior to December 2015 the directors of the respondent company were Simon Campbell, Sean McEvoy and Paul Scullion who were also owners of the company. On 17 December 2015 three new appointments were made to the Board of Directors of the respondent company. Those appointments were Wilson Lamont whose date of birth is 4 March 1973, John McMahon, whose date of birth is 21 February 1982 and Melvin Hopps whose date of birth is 28 August 1981.
(5) The annual accounts for the period 2015-2017 showed that the respondent company had increased its employees from 77 to 84 and its turnover from £41,114,106 to £43,096,587 and with a profit, after tax, from £1,770,282 to £2,103,619.
(6) The claimant began working with the respondent company on 3 January 2012 as a systems manager. During six years of employment approximately, his job roles included the day to day management of the following areas: health and safety; quality; environmental; business continuity and information security management systems. He was the lead in the Systems Department team where he worked with two other members of staff in auditing training, office maintenance and insurance pre-qualification questionnaires, (PQQs) submissions and tender responses along with maintaining numerous health and safety accreditations.
(7) On 17 December
2015 Simon Campbell announced, by email, the appointments to the Board of three
current employees, Wilson Lamont,
John McMahon and Melvin Hopps.
(8) The email of 17 December 2015 from Simon Campbell stated:-
“I am delighted to announce the appointment of Wilson Lamont, John McMahon and Melvin Hopps as Company Directors joining myself, Sean and Paul on the Board of Portview Fit-Out Limited. Each has demonstrated a drive and determination to succeed and excellence in their own areas and I believe that these wise heads on young shoulders will bring a new perspective and set of experiences to the Board and will enhance and challenge the existing team to make us better placed to navigate our way through the challenges we will undoubtedly face in the future. I hope you will join me in congratulating them on this step and wishing them all the best as they grow into this new role.”
(9) Simon Campbell, the author of the email, stated to the tribunal that his use of the phrase, “these wise heads on young shoulders” was used in the email to make it more interesting and did not have anything to do with age.
(10) The claimant was not afforded the opportunity or considered for appointment to the Board of Directors. Simon Campbell informed the tribunal that the three appointees to the Board had been appointed because of the financial gain they brought to the business; because they were people the business could not be without; and that the respondent wanted to provide an incentive to them to stay with the respondent. He further explained that the respondent feared that they might leave and he considered that they would be hard to replace. The respondent denies that age was a factor in their appointment.
(11) The claimant’s jobs and tasks were added to over the years so that by 2017 as Systems Manager he was in charge of three major areas of the business: health and safety, quality environmental business continuity and information security and pre-qualification questionnaires. Up until the end of 2017 there were three persons in the Systems Department, the claimant, Brian McMullan and Nicola Tomlinson.
(12) In 2017 the respondent alleges that there were a number of areas within the Systems Department in which there were problems. Brian McMullan and the claimant were struggling to get information and knowledge they needed from other departments within the respondent company to write their submissions for tenders and pre-qualification questionnaires; the temporary works construction requirement was not health and safety complaint in 2015 which necessitated a new internal system regarding temporary works and to train and implement the system; there was a need to improve the quality of work to compete with the competition by offering zero defects projects under the new idea proposed by the respondent called “Prozero” which had as its mantra, “get it right, first time, every time”. The respondent believed that it required to have the right resources within the Systems Department in order to deliver. The respondent believed that in 2017 other companies were producing better pre-qualification questionnaires. Mr Campbell wanted the respondent to grow and get better.
(13) Mr Campbell’s conclusion in 2017 was that adding more junior members to the Systems Department would not solve the challenge as the respondent needed greater knowledge and experience to support the company in the Systems Department. He came up with a proposal for a restructure of the Systems Department to meet the growing needs of the business. Mr Campbell’s proposed restructure was to include;-
(a) a solely dedicated health and safety manager role, to ensure that the company was fully compliant in all areas of health and safety and who would train and educate the company’s workforce;
(b) a quality, environmental, business continuity and information security (“QEBCIS”) manager, who would manage all the non-health and safety systems and maintain accreditation; and
(c) a pre-qualification manager who would have the knowledge in this area and the site construction experience and could ask the questions from the teams in the respondent company and quickly translate and submit answers.
(14) At a meeting of the Board of Directors on 13 October 2017 Mr Campbell proposed his restructure plan. The minutes of the meeting record the outcome of Mr Campbell’s proposal in the following terms:-
“10.40 am KR/Systems/Auditing & PQQ role discussed at considerable length.
The decision made there would be a restructuring and reorganisation in the Systems Department. 1 person will be sought for H&S, 1 will be sought for Systems, and 1 prequal manager will be sought. The potential implications of this restructuring were discussed and agreed – will depend on KRs appetite for the new roles. The potential for NT to potentially have a new role as a contracts admin, B Mc discussed as having not enough relevant experience or understanding of the current tasks within his role he has been tasked with resulting in incomplete information and hashed together information being put forward in our PQQ’s, the relevance of stricter PQQ’s, was also discussed and that requirement for someone to be able to take ownership & write these to a very high standard.”
Mr Campbell’s had not discussed his proposed restructure in any way with the claimant prior to proposing it at the meeting of the Board of Directors.
(15) On 23 October 2017 the claimant, Nicola Tomlinson (systems co-ordinator) and Brian McMullan (bid administrator) attended a meeting with Simon Campbell (Managing and Financing Director and joint owner) Karen Fullerton (HR Manager) was also present. Simon Campbell handed them and read through a one page consultation document about a restructure of the Systems Department and redundancies. This was the first time the claimant was made aware of any proposal for a restructure of the Systems Department.
(16) Though the document given by Mr Campbell to the claimant and others, and read through by him at the meeting on 23 October 2017, is entitled, “Consultation Document – Proposed Systems Department and Bid Administrator roles, Reorganisation Rationale – October 2017”, a decision had already been made by the Board to proceed with the restructuring of the department by dividing it into three different units. The only uncertain matter at this stage is where the three persons currently within the Systems Department would end up following the restructure. Indeed the latter aspect was made clear in the document where it stated:-
“As a result the regrettable implication is that in this new structure the current roles of Systems Manager, Systems Support and Bid Administrator maybe under the threat of redundancy”.
(17) In the course of the document Mr Campbell stated:-
“The company’s drive to implement its new Prozero initiative will require more input from the Systems Department and increase the workload currently carried out by the Systems Manager and Systems Support position. Whilst difficult to quantify, this can only stretch further an already busy team”.
The document further continued -
“Currently we do not have the experience, knowledge or time to properly answer and review the current PQQ requirements as a company. Following reviews by the Managing Director and the Estimating Director, the historical legacy information is seen to be no longer fit for purpose. Currently the resources are unavailable to support the Bid Administrator and Systems Manager from other members of staff who may have the information as they are under their own pressures and has frequently been discussed. Recently we are beginning to receive criticism from clients of the quality of our submissions, Wimbledon for example, impinging on our ability to qualify for tender lists. Whilst the current performance is a good improvement of what went before and the team are doing things to the best of their ability, there is a recognition at Board level that we have not invested in the capability of this role sufficiently to meet current demands up to this point, and there does not seem to be anyway to improve this with the status quo”.
(18) Whilst visiting a site in Dublin, on which the respondent was working on 24 October 2017 John McMahon (director and joint owner) told the claimant and Nicola Tomlinson that he had only been made aware of the restructure on the previous night (23 October 2017). Karen Fullerton (HR) disputes whether John McMahon knew of the restructure earlier.
(19) The claimant had his first consultation meeting on 20 November 2017 with Simon Campbell. The letter of invitation to the claimant to attend this meeting dated 24 October 2017 persisted in describing the restructuring of the Systems Department as a proposal despite the decision made by the Board of Directors on 13 October 2017. At the meeting present were the claimant, Simon Campbell and Karen Fullerton. Simon Campbell produced two job descriptions for the restructuring of the Systems Department in relation to a Health and Safety Manager and a QEBCIS Manager and he told the claimant that he did not think he was suitable for the third new post of a Pre-Qual Manager but he would send the job description to the claimant if the claimant were interested in it.
(20) At the meeting the claimant raised a grievance, seeking an explanation and evidence for the matters asserted in the consultation documentation. The claimant divided his grievance into 15 statements. He was seeking a response to each of the 15 statements.
(21) The minutes of the meeting on 21 November 2017 record that the claimant was informed that he was welcome to apply for any of the three new posts.
(22) The claimant sent an email of 21 November 2017 to Simon Campbell and Karen Fullerton entitled, Grievance raised during the “continuation of Yesterday’s Consultation Meeting” at 11.00 am.
(23) The body of the email indicated that the claimant wished to raise a grievance with the three owners of the company Simon Campbell, Sean McEvoy and Paul Scullion as he was not afforded the opportunity, and was discriminated against when three internal managers were promoted to the Board of Directors. The email quoted from the email issued to all staff on 17 December 2015 about which the claimant comments in his email, “includes a disturbing reference to Ageism including …”. The email then sets out the previous email from Simon Campbell in which he announced the appointment of Wilson Lamont and John McMahon and Melvin Hopps as Company Directors and as is set out above at paragraph 4(8).
(24) The respondent appointed Croner Group Ltd to investigate the grievance and they produced their findings on 7 December 2017. They did not uphold the claimant’s grievance.
(25) A second consultation meeting with the claimant was convened on 21 November 2017. At the end of the meeting the claimant issued a second grievance.
(26) A third consultation meeting took place on 24 November 2017 with the claimant, Simon Campbell and Karen Fullerton present. In the meeting the claimant made it clear to Simon Campbell that he would not be applying for the newly created posts as he believed it was unreasonable to strip away the duties he was carrying out in his existing post.
(27) On 29 November 2017 Simon Campbell instructed the claimant not to carry out planned site audit visits and to remain in the office to prepare for the forthcoming business continuity external audit which the claimant regarded as an unusual step which had never happened before.
(28) At this time John McMahon confirmed by email to the claimant that the Victoria Secrets job in Dublin was complete and that there was no need for him to visit. However, while on leave on Dublin, he saw the respondent’s operatives working at the Victoria Secrets project and he believe that John McMahon had lied to him.
(29) A further consultation meeting took place between the claimant and Simon Campbell with Karen Fullerton also in attendance on 8 December 2017. At the meeting, inter alia, Mr Campbell asked the claimant if he would be reconsidering applying for any of the alternative roles. The claimant confirmed that he would not be so doing. Mr Campbell also stated then that the Board would meet in order to conclude the process. He warned the claimant that a possible outcome was that his position may be at risk of redundancy. The minutes of the meeting continued to give the impression that the decision in relation to the restructure had not been made despite the decision of the Board on 13 October 2017. However, by the date of this meeting the only outstanding issue was where the current three persons within the Systems Department would end up following the restructure.
(30) A further Board meeting did not occur as suggested by Mr Campbell. Mr Campbell stated that there were a few telephone calls to the Board members and they agreed to proceed with the process. It was clear from the evidence of Wilson Lamont that not all board members were involved in this consultation process by telephone.
(31) On 15 December 2017 the claimant was told he was being made redundant from that day and would be paid notice of 12 weeks. He was escorted from the premises by two directors Sean McEvoy and Wilson Lamont. His mobile telephone, laptop, security keys etc were taken from him. The claimant alleges that Mr Campbell told him that the decision to make him redundant was agreed at the Board unanimously. However, there had not been a Board meeting at which this was decided. Simon Campbell said there were telephone calls between Board members but apparently not involving all Board members as Wilson Lamont was not contacted.
(32) The claimant’s appeal against redundancy was heard on 8 January 2018 by Wilson Lamont. The outcome was sent to the claimant by letter of 12 January 2018 and the claimant was unsuccessful. Before making his decision on the appeal Wilson Lamont discussed it with Simon Campbell and Karen Fullerton. He did not tell the claimant what he had said to them or they to him or give the claimant a chance to respond.
(33) In the course of the letter of outcome Mr Lamont stated,
“… We agree that the work you did is not being done away with but that the new set up will allow the company to meet its objectives more effectively.”
(34) The letter of outcome also revealed,
“… that in all possible outcomes we could assure Mr McMullan that there would be either his old or new role available to him depending on the outcome of the reorganisation proposal.”
(35) The letter also recorded,
“… On the basis that you think the reorganisation is down to you not being good enough at your job please be assured, as re-iterated during the process, the driver for change was not any failure or lack of ability on your part but simply because we feel that the new expanded roles are best done by splitting the responsibilities that you had and adding other duties.”
(36) The claimant does not believe that there was a genuine redundancy situation or that the business was in a state of restructuring or that his job was no longer essential to the running of the business. He disputes the reason for the restructure or that there was evidence for it.
(37) The respondent does not have a redundancy policy.
(38) The claimant was told that he could apply for any of the three new posts which embraced jobs that he was already doing. The job descriptions for these jobs were created and finished prior to the claimant being provided with the initial consultation document. However, he was never told of salary, bonus and any other associated benefits of the new posts.
(39) Simon Campbell did not think that the new post of PQQ Manager was relevant to the claimant although the claimant had been in charge of this job for a number of years. The post was filled in March 2018 by Adam Torrie, and Internal Contracts Administrator who had no previous experience of the PQQ process or arrangements although he had solid construction knowledge and IT presentation skills. The new QEBCIS Manager had a working knowledge of quality improvements on site rather from a purely systems perspective.
(40) Tara Taylor an external consultant based in London was appointed to carry out part of the claimant’s work. She was appointed for the Wimbledon job when the claimant was off ill.
(41) The claimant was not told how the Board of Directors reached the decision to make him redundant. In relation to Nicola Tomlinson there was a vacant role for a contract administrator within the respondent company. During the consultation Ms Tomlinson expressed an interest in the contracts administrator role and was advised that if the consultation process concluded with a result that her current role was made redundant she would move into this role immediately with no break in employment which she accepted. However, she subsequently found employment elsewhere. In relation to Brian McMullan, as part of the consultation process he indicated that there were a number of duties, especially around the auditing that would be too much for the proposed managers and he put forward a counter proposal of a Prozero support role. The Board accepted Mr McMullan’s proposal and created a role for him which he currently occupies.
(42) One of the respondent’s sub-contractors was a person called Peter Trainor who had helped with some high profile stonework projects. The respondent believed that his work gave the company a commercial edge and they wanted to keep him close to the company. Therefore Simon Campbell, Sean McEvoy and Paul Scullion set up a company with Peter Trainor called Trainor Stone and Tile Limited. Space was provided for Mr Trainor at the respondent’s premises and he was provided with some expertise from the respondent including health and safety processes and issues with which the claimant dealt.
(43) The claimant also provided some additional work to Trainor Stone and Tile Limited in 2016 where he set up their systems and health and safety infrastructure. For this work the claimant received a £5,000 bonus via the respondent and Trainor Stone and Tile Limited were charged for this bonus by the respondent via the recharge mechanism.
(44) In 2017 Simon Campbell asked the claimant to provide him with a breakdown of the time he had worked on Trainor Stone and Tile Limited and the time he had spent in that year was half a day. He therefore did not, in Mr Campbell’s view, warrant any extra remuneration for this work.
(45) The claimant lodged his claim for age discrimination, unfair dismissal, automatically unfair dismissal and breach of contract on 8 March 2018.
(46) The claimant did not provide any
explanation as to why he did not raise the alleged age discrimination which
related to the appointment of the three persons to the Board on 17 December
2015 until his claim form on 8 March 2018, although he had raised this complaint
in an email on 21 November 2017.
THE LAW
5. (1) To establish that a dismissal is not unfair an employer must establish the reason for the dismissal and that it is one of the statutory reasons that could render its dismissal not unfair or is some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. If an employer establishes both of these requirements, then whether the dismissal was fair or not depends of whether in all the circumstances the employer acted fairly and reasonably in treating the reason as a sufficient reason for dismissing the employee (Article 130 The Employment Rights (Northern Ireland) Order 1996).
(2) For the purposes The Employment Rights (Northern Ireland) Order 1996 an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to the fact that his employer has ceased or intends to cease to carry on the business for the purposes for which the employee was employed by him or to carry on that business in the place where the employee was so employed or the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where the employee was employed by the employer have ceased or diminished or are expected to cease or diminish (Article 174(1) The Employment Rights (Northern Ireland) Order 1996).
(3) Where an employee is dismissed and the Statutory Dismissal Procedure is applicable but has not been completed and that non-completion is wholly or mainly attributable to the failure of the employer to comply with its requirements the dismissal is automatically unfair (Article 130 The Employment Rights (Northern Ireland) Order 1996).
(4) Where the employer has failed to comply with the Statutory Dismissal Procedures and it is mainly or wholly responsible for the failure a tribunal shall, increase any award to the employee by 10% and it may, if it considers it just and equitable in all the circumstances, increase the award by up to 50%, unless there are exceptional circumstances which would mean an increase unjust or inequitable (Articles 17(3) and (4) The Employment Rights (Northern Ireland) Order 2003).
(5) A person (A) discriminates against another person (B) on the grounds of B’s age, if A treats B less favourably than he treats or would treat other persons and A cannot show the treatment to be a proportionate means of achieving a legitimate aim. (Regulation 3 The Employment Equality (Age) Regulations 2006).
(6) Where the complainant proves facts from which the tribunal could, apart from this regulation, conclude in the absence of an adequate explanation that the respondent has acted in a way unlawful under these regulations a tribunal shall uphold the complaint unless the respondent proves that he did not commit or is not to be treated as having committed that unlawful act (Regulation 37 The Employment Equality (Age) Regulations 2006).
(7) An employment tribunal shall not consider a complaint of age discrimination unless it is presented to the tribunal before the end of a period of three months beginning with the date the act complained of was done. The tribunal may nevertheless consider any such complaint or claim which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so (Regulation 42 The Employment Equality (Age) Regulations 2006).
(8) Where a claimant asserts ignorance of the right to make a claim the same principles that are relevant to the ‘not reasonably practicable’ escape clause … above apply when considering a ‘just and equitable’ extension (see Bowden v Ministry of Justice UKEAT/0018/17 (25 August 2017, on reported) at paragraph 38; and Averns v Stagecoach in Warwickshire UKEAT/0065/08 (16 July 2008, unreported). Accordingly, the assertion must be genuine and the ignorance – whether of the right to make a claim at all, or of the procedure for making it, or the time within which it must be made – must be reasonable … (Harvey on Industrial Relations and Employment Law P1 [279.02]).
(9) In the Wall’s Meat case, Brandon LJ dealt with the matter as follows:
‘The performance of an act, in this case the presentation of a complaint, is not reasonably practicable if there is some impediment which reasonably prevents, or interferes with, or inhibits, such performance. The impediment may be physical, for instance the illness of the complainant or a postal strike, or the impediment may be mental, namely, the state of mind of the complainant in the form of ignorance of, or mistaken belief with regard to, essential matters. Such states of mind can, however, only be regarded as impediments making it not reasonably practicable to present a complaint within the period of three months, if the ignorance on the one hand, or the mistaken belief on the other, is itself reasonable. Either state of mind will, further, not be reasonable if it arises from the fault of the complainant in not making such enquiries as he should reasonably in all the circumstances have made, or from the fault of his solicitors or other professional advisers in not giving him such information as they should reasonably in all the circumstances have given him.’
(Harvey on Industrial Tribunals and Employment Law P1[206].
(10) Brandon LJ then expanded on the circumstances in which the ignorance, as opposed to mistaken belief, might give grounds for a finding of reasonable impracticability:
‘With regard to ignorance operating as a similar impediment, I should have thought that, if in any particular case an employee was reasonably ignorant of either (a) his right to make a complaint of unfair dismissal at all, or (b) how to make it or (c) that it was necessary for him to make it within a period of three months from the date of dismissal, an [employment] tribunal could and should be satisfied that it was not reasonably practicable for his complaint to be presented within the period concerned.
For this purpose I do not see any difference, provided always at the ignorance in each case is reasonable, between ignorance of (a) the existence of the right, or (b) the proper way to exercise it, or (c) the proper time within which to exercise it. In particular, so far as (c), the proper time within which to exercise the right, is concerned, I do not see how it can justly be said to be reasonably practicable for a person to comply with the time limit of which he is reasonably ignorant.
While I do not, as I have said, see any difference in principle in the effect of reasonable ignorance as between the three cases to which I have referred, I do see a great deal of difference in practice in the case or difficulty with which a finding that the relevant ignorance is reasonable may be made. Thus, where a person is reasonably ignorant of the existence of the right at all, he can hardly be found to have been acting unreasonably in not making enquiries as to how, and within what period, he should exercise it. By contrast, if he does know of the existence of the right, it may in many cases at least, although not necessarily all, be difficult for him to satisfy and [employment] tribunal that he behave reasonably in not making such enquiries.
To that extent, therefore, it may, in general, be easier for complainant to avail himself of the “escape clause” on the ground that he was reasonably ignorant of his having a right at all, than on the ground that, knowing of the right, he was reasonably ignorant of the method by which, or the time limit within which, he ought to exercise it.’
(Harvey on Industrial Tribunals and Employment Law P1[206.01]).
(11) So, whilst a claimant’s state of mind is to be taken into account, it is clear from the above that his mere assertion of ignorance either as to the right to
claim, or the time limit, or the procedure for making the claim, is not to be treated as conclusive; the tribunal must be satisfied as to the truth of the assertion and, if it is, it must be satisfied that the ignorance in each case was reasonable … (Harvey on Industrial Relation and Employment Law P1[207]).
(12) Where there is no reduction in the number of employees, but a reorganisation results in one employee being dismissed and a new employee taking their place, the analysis can be become nuanced. (Harvey on Industrial Relation and Employment Law E[387]).
(13) In Vaux and Associated Breweries Limited v Ward [1968] 112SOLJO761, 3ITR385, DIVCt; then Vaux and Associated Breweries Limited v Ward (No 2) [1969] 113SOLJO920, 5ITR62 DIVCT. The company turned the old Star and Garter into a modern roadhouse, dismissed Mrs Ward, the 57 year old barmaid, and proposed to replace her with a younger blonde ‘bunny-girl’. At the first hearing the tribunal found there was a redundancy situation because there was no longer any need for old-fashioned barmaids. The Divisional Court remitted the case for an investigation whether the work involved would be the same, and the tribunal eventually decided that the
bunny-girl would be doing essentially the same work as Mrs Ward and therefore there was no diminution in the requirement for employees to undertake particular work. There was therefore no redundancy situation.
(14) In Murphy v Epsom College [1983] IRLR 395 … EAT; [1984] IRLR 271 … CA the college had one full-time plumber. A second plumber who did some heating work was replaced by a heating engineer who did some plumbing work. In a claim for unfair dismissal it was held (inter alia) that the second plumber (Murphy) was dismissed by reason of redundancy. Before the EAT, it was argued for Murphy that the college still needed as much general plumbing as before and it still needed two employees to do that work, and therefore Murphy was not redundant. The EAT rejected this and the EAT’s decision was upheld by the Court of Appeal, O’Connor LJ explaining that ‘as to the question of whether the employee was redundant, for my part I am quite satisfied that the modernisation of the heating arrangements diminished the requirement of the employers for plumbers, because the maintenance of the plant as modernised was not a plumber’s work. It seems therefore that on the facts it was considered that there was a diminution in the need for a particular work (general plumbing work) and a corresponding increase in the need for heating engineering work as a result of the modernisation of the college’s heating system. This was therefore a straightforward fulfilment of [The Employment Rights (Northern Ireland) Order 1996 Article 174(1)(b)] (Harvey on Industrial Relations and Employment Law E [390]).
(15) In Shawkat v Nottingham City Hospital NHS Trust (No 2) … [2001] IRLR 555, Shawkat was employed as a thoracic surgeon. The hospital subsequently built a cardiac unit and wanted him to combine pure thoracic work with cardiac work. He refused. They insisted. He resigned and successfully claimed unfair (constructive) dismissal. On the issue whether he was entitled to a redundancy payment the tribunal held that purely thoracic work was work of a different kind from combined thoracic and cardiac work; nevertheless, Shawkat was not redundant as defined because the hospital still needed as much thoracic work and they still needed as many employees to do that thoracic work. The Court of Appeal held that the tribunal had not erred in law. There was no diminution in the employer’s requirement for employees to carry out work of a particular kind. Indeed at [16] of the decision the Court of Appeal referred to the tribunal’s conclusion that the organisation in question had involved the Trust arranging for more staff to do cardiac surgery but did not involve a corresponding reduction in the requirement for thoracic surgery: that continued undiminished. Again, there was no redundancy within the meaning of [The Employment Rights (Northern Ireland) Order 1996 Article 174(1)(b)] (Harvey on Industrial Relations and Employment Law E [389]).
(16) Thus Murphy, as properly understood, also aligns with the view of the Divisional Court in Vaux where it was outlined that if there had been actual difference in the role of the old-fashioned barmaid and the bunny-girl, there would be a redundancy situation because then the employee carrying out the former role would have been dismissed because of a diminution in the requirement for an employee to carry out that particular work. The same view was taken by the EAT in Pillinger v Manchester Area Health Authority [1979] IRLR 430. On the facts there was no redundancy situation because Mr Pillinger was replaced by someone doing exactly the same work (albeit with a different job title) but the EAT observed at [8] that:
‘Now, if it were possible to say on the evidence that the kind of work which this newly appointed more senior Scientist did was in someway different and, or intended to be different, from that which would have been done by Dr Pillinger, then it might be possible to say here that the requirement for Dr Pillinger to do his particular branch of the research had ceased or diminished’.
(17) It can be seen from the above examples that there may be considerable importance to how work of a ‘particular kind’ is defined. This will especially apply where there is a reorganisation but no reduction in the number of employees. … (Harvey on Industrial Relations and Employment Law E[393]).
(18) Although the consultation required of an employer before dismissing on grounds of redundancy may be directly with the employees concerned or with their representatives, such consultation must be fair and proper. The definition set out by Glidwell LJ in R v British Coal Corporation ex parte Price – that “fair consultation means (a) consultation when the proposals are still at a formative stage; (b) adequate information on which to respond; (c) adequate time in which to respond; and (d) conscientious consideration by an authority of a response to consultation” would be adopted. (King & Others v Eaton Ltd [1996] IRLR 199 CS.).
(19) Fair industrial practice requires an employer to offer a longstanding employee, given notice of dismissal for redundancy, the opportunity of new employment which arises during his notice period before filling the vacancies with newly recruited employees (Stacy v Bapcock Power Limited (Construction Division) [1986] IRLR 3 EAT).
(20) Implicit in the duty to look for alternative employment in a redundancy situation is a responsibility on the employer not simply to look, but to give careful consideration to the possibility of offering the employee another job. That a vacant position would involve demotion is something primarily for the employee to worry about (Avonmouth Construction Company Ltd v Shipway [1979] IRLR 14 EAT).
(21) In Canadian Imperial Bank of Commerce v Beck UKEAT/0141/10/RN the claimant, aged 44, was dismissed from his role of marketing allegedly by reason of redundancy. The claimant also brought a claim for age discrimination the respondent had sought to recruit a new Head of Marketing and set out a series of attributes they wanted the successful candidate to possess. The final person specification read that they wanted ‘a younger, entrepreneurial profile (not a headline profile rainmaker)’. The tribunal agreed that the claimant’s role was not redundant. In relation to age discrimination the claimant stated that he comfortably satisfied all the personal specification requirements for Head of Marketing, apart from the fact that he could not be described as ‘younger’. The Tribunal, although expressing that they thought it high unlikely the respondent would dismiss someone in order to recruit someone a few years younger so that they could pull rank, decided that the use of the word ‘younger’ in the personal specification was enough to shift the burden of proof to the respondent. The Tribunal found that the respondent who claimed that the claimant was ‘simply not right’ for the job, had not discharged the burden of proof that the reason for dismissal was not significantly influenced by his age and thus the age discrimination claim succeeded. The respondent appealed against this ruling. The EAT dismissed the appeal. On the age discrimination claim, they concluded that the Employment Tribunal had meticulously gone through the reasons for dismissal given by the respondent and was entitled to reach the conclusion that the respondent’s evidence was not genuine and that they were rationalising after the event.
(22) It has been noted that under some jurisdictions a tribunal is empowered to grant an extension of time ‘if, in all the circumstances of the case, it considers that it is just and equitable to do so’, … Where these words appear, it has been held that they give the tribunal ‘a wide discretion to do what it thinks just and equitable in the circumstances … they entitle the … tribunal to take into account anything which it judges to be relevant’: Hutchison v Westward Television Ltd [1977 IRLR 69 [1977] ICR 279, EAT. The discretion is broader than that given to tribunals under the ‘not reasonably practicable’ formula … Notwithstanding the breadth of the discretion, it has been held that, ‘the time-limits are exercised strictly in employment … cases’, and that there is no presumption that a tribunal should exercise its discretion to extend time on the ‘just and equitable’ ground unless it can justify failure to exercise the discretion, as the onus is always on the claimant to convince the tribunal that it is just and equitable to extend time, ‘the exercise of discretion is the exception rather than the rule: (Robertson v Bexley Community Centre [2003] EWCA Civ 596, [2003] IRLR 434, at paragraph 25, per Auld LJ); Department of Constitutional Affairs v Jones [20087] EWCA Civ 894, [2008] IRLR 128, at paragraphs 14-15, per Pill LJ). (Harvey on Industrial Relations and Employment Law P1 [277]).
(23) The discretion to grant an extension of time under the ‘just and equitable’ formula has been held to be as wide as that given to the Civil Courts by s 33 of the Limitation Act 1980 to determine whether to extend time in personal injury actions (British Coal Corporation v Keeble, DPP v Marshall above). Under that section the court is required to consider the prejudice which each party would suffer as a result of granting or refusing an extension, and to have regard to all the circumstances, in particular:-
(a) the length of and reasons for the delay;
(b) the extent to which the cogency of the evidence is likely to be affected by the delay;
(c) the extent to which the party has co-operated with any request for information;
(d) the promptness with which the claimant acted once he or she knew of the facts given rise to the cause of action; and
(e) the steps taken by the claimant to obtain appropriate professional advice once he or she knew of the possibility of taking action (see British Coal Corporation v Keeble [1997] IRLR 336 at paragraph 8).
However, although in the context of the ‘just and equitable’ formula, these factors will frequently serve as a useful checklist, there is no legal requirement on a tribunal to go through such a list in every case ‘provided of course that no significant factor has been left out of account by the employment tribunal in exercising its discretion’ (Southwark London Borough v Afolabi [2003] EWCA Civ 15, [2003] IRLR 220 at paragraph 33 Peter Gibson LJ). This point was reiterated by Laing J in Miller v Ministry of Justice UKEAT/0003/15 (15 March 2016, unreported) … where she rejected any suggestions that if a tribunal does not expressly rehearse the factors and ‘balance them off’ appropriately, it will err in law. She emphasised that it is for the employment tribunal to decide (subject to Wednesbury) what factors are relevant to the exercise of its discretion and what weight to give to them, and not for the EAT to give detailed instructions on the matter (paragraphs 29-30) (Harvey on Industrial Relations and Employment Law P [279]).
In Hollister v National Farmers’ Union [1979] IRLR 238 the Court of Appeal held that in dismissing an employee under the heading of some other substantial reason arising from a reorganisation that an employer must show that there was some sound, good business reason for the reorganisation. (Harvey on Industrial Relations and Employment Law D1 [1860]).
APPLICATION OF THE LAW AND FINDINGS OF FACT TO THE ISSUES
6. (1) As recorded above the claimant has abandoned his claims in relation to breach of contract and in relation to the respondent’s grievance procedures.
Age Discrimination
(2) The claimant’s claim for age discrimination relates only to the appointment to the Board of Directors of Wilson Lamont, John McMahon and Melvin Hopps on 17 December 2015.
(3) The claimant at that time was not offered the opportunity to apply for the appointment to the Board of Directors nor considered by the Board for appointment.
(4) The claimant alleges that the appointment arises from ageism or age discrimination.
(5) The claimant did not bring a claim for age discrimination until his current claim was lodged on 8 March 2018.
(6) The claimant first raised the allegation with Simon Campbell and Karen Fullerton on 21 November 2017 by email. The age discrimination was investigated and not upheld. The claimant was informed by letter of 12 December 2017.
(7) The claimant did not take any further steps to progress his age discrimination claim until lodging the current claim on 8 March 2018.
(8) Neither did the claimant provide any explanation as to why he did not make a claim sometime between 17 December 2015 and the lodging of his claim on 8 March 2018 or what changed around 8 March 2018 to cause him to bring his claim.
(9) On 17 December 2015 the respondent appointed three persons to the Board of Directors, Wilson Lamont, then aged 42; John McMahon, then aged 33; and Melvin Hopps, then aged 34. The claimant was then aged 48.
(10) The reason for their appointment was set out in the email of 17 December 2015. In it Mr Campbell states in relation to the three persons appointed:-
“Each has demonstrated a drive and determination to succeed and excellence in their own areas and I believe that these wise heads on young shoulders will bring a new prospective and set of experiences to the board and will enhance and challenge the existing team to make us better placed to navigate our way through the challenges we will undoubtedly face in the future …”.
(11) Simon Campbell gave evidence to the tribunal on the phraseology used and in particular the phrase, “wise heads on young shoulders”.
(12) Mr Campbell denies that age was a factor in the appointments to the Board. The purpose, he said, of their appointment was for the best interest of the company. He further explained that their skills and talents would be hard to replace and he did not want to lose them. In relation to the words used in the email, “wise heads on young shoulders”, he said he used that phraseology to make the announcement more interesting.
(13) The tribunal considers that the analysis set out in the case of Canadian Imperial Bank of Commerce v Beck UKEAT/0141/10/RN is a helpful analysis in considering the age discrimination claim in the instant claim.
(14) The tribunal therefore concludes that Regulation 37 The Employment Equality (Age) Regulations 2006 applies and that the claimant has proved facts from which the tribunal could, apart from this Regulation, conclude in the absence of any adequate explanation that the respondent has committed an act to which the 2006 Regulations apply. In so concluding the tribunal had regard to the following matters:-
(a) The three persons appointed to the Board at ages 42, 34 and 33 were all younger than the claimant at 48.
(b) That Wilson Lamont, at just six years younger than the claimant, is not much younger than the claimant.
(c) The reasons advanced by the respondent, i.e. the skills of the three appointees were largely a matter of subjective assertion by Simon Campbell, which, though not challenged, were not based on any evidence that was adduced before the tribunal to substantiate the truthfulness of the assertions.
(d) The reason advanced by Simon Campbell for using the phrase “wise heads on young shoulders” to make it interesting was rather shallow.
(e) The use of the controversial phrase with talk about “a new perspective and set of experiences” as the company “faced the future” are consistent with a view that a younger group of people because of their youth are better able to plan for the future, have new perspectives and experiences and are more likely to be there for a longer period into the future and that age might well have been a factor.
(15) Once the burden shifts the onus is on the respondent to provide an adequate explanation that proves that the respondent did not commit the act or is not to be treated as having committed the act. To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of age, since ‘no discrimination whatsoever’ is compatible with the burden of proof directive (Igen v Wong [2005] 3 ALL ER 812).
(16) Applying the burden of proof, the ingredients for a successful claim for discrimination on the ground of age are in place. However, the tribunal does not find that the respondent is guilty of age discrimination as it is precluded from considering a complaint under Regulation 6 of The Employment Equality (Age) Regulations 2006 because the claim was not brought within three months of the act of discrimination occurring on 17 December 2015, i.e. by 17 March 2016. The claimant did not bring the claim until 8 March 2018. Nor can the claimant benefit from the discretion to extend time on the ‘just and equitable’ ground as he did not provide any explanation for the delay, or the promptness with which he acted once he knew of the facts giving rise to the cause of action and the steps taken by the claimant to obtain appropriate professional advice once he knew of the possibility of taking action (British Coal Corporation v Keeble [1997] IRLR 333).
(17) Whilst the claimant did not advance in evidence any reason for the delay in bringing his claim for age discrimination his representative Mr Clements, suggested in submission that the claimant did not bring the claim earlier as he did not know to do so. The particular type of ignorance whether of the existence of the right to bring a claim, or the proper way to do so, or the proper time within which to make a claim were not explained either in evidence or in the submissions.
(18) In the absence of any evidence from or on behalf of the claimant to explain the delay and the reasons for it, including any ignorance from which the claimant may have suffered, there is not any basis before the tribunal upon which it could exercise its discretion to extend time to 8 March 2018 on a ‘just and equitable’ basis to enable the claimant to continue with his claim.
(19) Accordingly, the claimant’s claim for age discrimination is dismissed.
Unfair Dismissal
(20) The respondent dismissed the claimant on 15 December 2017. The unambiguous reason given was redundancy.
(21) The claimant appealed the decision to make him redundant unsuccessfully.
(22) The reason for the redundancy advanced by the respondent was a restructure of the Systems Department. The three particular areas within that department which the claimant had managed and run until 2017 were to be split into three separate units, each with its own manager.
(24) The respondent asserted positively that there was not any criticism of the claimant’s performance or his abilities or skills. There were some rather subjective concerns articulated by the respondent’s witnesses in relation to the pre-qualification questionnaires and submissions in the content that according to the respondent, the Systems Department was under resourced.
(25) As Wilson Lamont stated in the outcome letter of the appeal on 12 January 2018:-
‘… We agree that the work you did isn’t being done away …’
(26) The statutory definition of redundancy at Article 174(1) The Employment Rights (Northern Ireland) Order 1996 has been the subject of many decisions and much analysis. The position appears to be that if there is an actual difference between the role of the Systems Department Manager and the new structure with three units, each with its own manager that that would amount to a redundancy situation. In the instant claim that test appears to be satisfied. The claimant’s job as a systems department manager covered three substantial and distinct areas; health and safety; quality environmental business continuity an information security; and pre-qualification questionnaires and submissions. In the new structure there would not be an overall systems department manager but rather three separate units, each with its own manager covering one of the major tasks and responsibilities previously discharged by the claimant.
(27) Having established that there was a redundancy situation the tribunal must then consider in all the circumstances, if the employer acted fairly and reasonably in treating the reason as a sufficient reason for dismissing the employee (Article 130 of the Employment Rights (Northern Ireland) Order 1996).
(28) The tribunal concluded that in all the circumstances the employer did not act fairly and reasonably in treating the reason as a sufficient reason for dismissing the claimant. In so concluding the tribunal had regard to the following matters:-
(a) Under the new structure the work previously done by the claimant was not being done away with.
(b) The three substantive areas of responsibility previously discharged by the claimant were continuing.
(c) The claimant had to discharge previously all these responsibilities.
(d) The respondent does not make any criticisms of the claimant’s performance, skills or abilities.
(e) The respondent accepts that the claimant was eminently suited for two of the new jobs, the Health and Safety Manager and the QEBCIS manager. There was some reluctance about saying the claimant was eminently suitable for the Pre-Qualification Manager but that fell short of saying he was not suitable for the job.
(f) The respondent was creating three new posts and had three persons within the Systems Department, although the two other employees were not managers and were junior to the claimant.
(g) There was available suitable alternative employment.
(h)
The respondent did
not offer suitable alternative employment. The respondent only offered the
claimant the chance to apply for the posts, to be like any other candidate. In
so doing the respondent did not give careful consideration to the possibility
of offering the employee another job (Avonmore Construction Company Limited
v Shipway [1979]
IRLR 14).
(29) The dismissal therefore by the respondent of the claimant on the ground of redundancy was an unfair dismissal.
Some other substantial reason
(30) The respondent relies on the reorganisation of the Systems Department as a justification for the dismissal of the claimant should it be unsuccessful in its claim that the claimant was made redundant, claiming in the alternative that it constitutes another potentially fair ground for dismissal, ie, some other substantial reason.
(31) To satisfy the requirements of some other substantial reason the employer must show in a reorganisation scenario that “… there was some sound, good business reason for the reorganisation” (Lord Denning in Hollister v National Farmers’ Union [1979] IRLR at 550).
(32) The tribunal accepts that there was a potentially good business reason to reorganise the Systems Department, specifically to enable the respondent to grow the business and compete more effectively with its competitors.
(33) The re-organisational reason would, in the tribunal’s view, satisfy the first test of being described as some other substantial reason.
(34) Having established that the dismissal would fall under the heading of some other substantial reason, the tribunal must then consider whether in all the circumstances the employer acted fairly and reasonably in treating the reason as a sufficient reason for dismissing the employee (Article 130 The Employment Rights (Northern Ireland) Order 1996.
(35) The tribunal concludes that the employer did not or would not have acted fairly in treating this reason as a sufficient reason for dismissing the claimant. In so concluding the tribunal would repeat the reasons set out at paragraph 6(28) above.
(36) The respondent therefore has unfairly dismissed the claimant.
Automatic unfair dismissal
(37) The respondent went through the procedural steps that are expected in making an employee redundant; notice of the possibility of redundancy was given to the claimant; the reasons for that were provided; consultation was held with the claimant about the changes; the claimant was given the reasons for the respondent’s decision; and the claimant was offered an appeal.
(38) Whilst the tribunal has been critical in some respects of the manner in which this was done, those criticisms fall short of persuading the tribunal that the procedural process in relation to the dismissal of the claimant was itself a sham, or was carried out in such a way as to fail the required statutory dismissal procedures.
(39) Accordingly, the claimant has discharged the requirements under the Statutory Dismissals Procedures and therefore there is not a question of any uplift in the compensation to be awarded to the claimant.
Remedy
(40) The claimant received a redundancy payment of £4,500.00 being nine weeks’ pay at £500.00 per week.
(41) The tribunal is not persuaded that the claimant did not mitigate his loss. The claimant was highly qualified and earning a considerable salary in excess of £107,000.00 per annum plus benefits in relation to a company car, a pension and medical insurance. The tribunal accepts that the number of potential jobs that would offer this salary and other benefits would be quite small in the context of Northern Ireland. The tribunal accepts therefore that applying for two jobs might well be reasonable in the circumstances. There was not any evidence adduced before the tribunal that there were other jobs suitable for the claimant attracting the same salary and benefits for which he could have applied. The tribunal accepts further that the claimant had been searching websites and other sources of potential jobs. However, there comes a stage when the claimant must begin to look at other possible jobs even at a lesser salary when the number of jobs suitable for him in accordance with his former salary and benefits is quite small.
(42) The tribunal considers that in the last quarter of 2018 the claimant should have begun to look around for other potential jobs that would be suitable to the claimant and it considers that such should have be available certainly by the conclusion of the tribunal hearing on 7 February 2019. The tribunal accordingly allows a loss up to 7 February 2019. It does not allow any future loss.
(43) The tribunal is persuaded that there was not any contributory fault on the part of the claimant in the decision to make him redundant given that he had not been warned in advance of any proposed re-structure within his department and given that his job was likely to go, it is understandable that he was not enthused by that and had a number of questions about which he wanted answered first.
(44) The claimant is not persuaded that the tribunal is entitled to any bonus for his work with Trainor Store and Tile Limited.
(45) The parties agreed, that the claimant’s net pay was £946.81 per week (£49,234.00 ÷ 52); that his loss of the benefit of a company car was 50% of the full cost which amounted to £69.23 per week (£3,600.00 ÷ 52); that his pension loss per year was £2,496.72 which works out at £48.01 per week; that his annual professional membership totalled £860.00.
(46) Accordingly the tribunal awards compensation as follows:-
Basic award
£500.00 x 7.5 = £3,750.00
Redundancy paid to the claimant £4,500.00
Basic award due = £ 0.00
Compensatory award
16 December 2017-8 February 2019
£946.81 x 60 = £56,808.60 = £56,808.60
Notice pay
16 December 2017-10 March 2018
£946.81 x 12 = £11,361.72
£45,446.88
The loss of the company car
16 December 2017-8 February 2019
£69.23 x 60 = £ 4,153.85
Pension Loss
16 December 2017 to 8 February 2019
£48.01 x 60 = £ 2,880.83
Professional membership to be paid by the respondent
£ 860.00
Total Loss £53,341.56
Less balance of Redundancy Payment £ 750.00
________
£52,591.56
Grossing up for tax purposes
(£52,591.28 - £30,000) £22,591.28 x 1.2 = £27,109.36
£30,000.00
________
Total compensation £57,109.36
Loss of statutory rights £ 500.00
£57,109.36
________
TOTAL COMPENSATION £57,609.36
(47) Although the claimant has said in his claim form that he has made a claim for either Job Seekers Allowance, Income Support or Income Related Employment and Support Allowance, there was no evidence before the tribunal that he has received any monies.
7. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Employment Judge:
Date and place of hearing: 11, 12, 13 December 2018; 21, 22, 23 January 2019; and 7 February 2019, Belfast.
Date decision recorded in register and issued to parties: