Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  5977/18

 

 

CLAIMANT:                          Stephen Hare

 

RESPONDENT:                  Beatties Distribution Services Ltd

 

 

DECISION

 

The tribunal unanimously finds that:

 

1.         The claimant was unfairly dismissed by the respondent.

 

2.         The respondent failed to pay to the claimant the appropriate notice pay.

 

3.         The respondent made an unlawful deduction of wages from the claimant.

 

4.         The respondent is ordered to pay to the claimant the sum of £5106.04

 

 

CONSTITUTION OF TRIBUNAL:

 

Employment Judge:          Employment Judge Browne

 

Members:                             Professor D Boyd

Mr I Atcheson

                       

 

APPEARANCES:

 

The claimant was represented by Mr N Richards of the Law Centre NI.

 

The respondent was represented by Mr P Moore of Copacetic Business Solutions Ltd.

 

 

ISSUES

 

1.            The issues to be determined by the tribunal were, broadly stated: Whether the claimant had resigned from his employment, or if he was dismissed; whether or not the respondent made an unlawful deduction from wages by deducting an amount to cover the cost of repairs to a vehicle owned by the respondent, negligently damaged by the claimant.

 

EVIDENCE AND FINDINGS OF FACT

 

2.            The claimant was employed by the respondent as a delivery driver between April 2015 and 6 April 2018.

 

3.            In January 2018, the claimant applied for a similar job with another company, and he was interviewed for it on 20 February 2018.  In a letter dated 16 March 2018, the claimant received a letter from his prospective new employer, confirming that his application had been successful.  The letter made clear that the job offer was subject to satisfactory references and a verifiable five year history.

 

4.            On the claimant’s evidence, he accepted the job offer, but then thought better of it.  At no stage did he inform the respondent that he was intending to leave; nor did he inform his prospective new employer that he had decided not to take up the job offer.

 

5.            On 30 March 2018, the claimant texted his line manager to say that he would not be coming to work due to being unwell.  On 2 April 2018 (Easter Monday), the claimant went on a pre-booked and authorised holiday abroad.

 

6.            On 29 March 2018 Mark Laughlin, the respondent’s Operations Manager, had received an email from the claimant’s prospective new employer.  The email stated that the claimant would be starting his new job with them on 9 April 2018.  The email included an employment reference questionnaire, seeking the respondent’s input.  The email also enclosed a form from the claimant, dated 31 January 2018, giving the new employer authority to seek references.

 

7.            Whilst the claimant was still at work on 29 March, Mr McLaughlin told the tribunal that he could not contact him because the claimant was out doing his deliveries.  On his evidence, he planned to speak to the claimant the next morning, but the claimant was off sick.  It was argued on behalf of the respondent that it would have been improper to contact the claimant because he was off sick.  Mr McLaughlin conceded that he was “not 100% sure” from the information he received that the claimant was leaving.

 

8.            Mr McLaughlin, on behalf of the respondent, replied on 4 April 2018, by which date the claimant was on holiday.

 

9.            The tribunal considered that there were, in effect, four core questions, numbered 6 to 9.  In response to questions 6 (“would you re-employ the applicant?”), Mr McLaughlin replied “No”.  The reason for that answer, given in number 7, was “Suffered heart attack last year and was only capable of delivering reduced numbers”.

 

10.         The claimant told the tribunal that his heart condition had only caused him to be absent from work for four weeks in 2017, and that his workload upon his return had been the same as before, and rose due to it being the Christmas period.

 

11.         Question 9, asking the respondent to “provide any other information that you feel may be of relevance to this application”, was not answered by Mr McLaughlin.

 

12.         On 5 April 2018, Mr McLaughlin wrote to the claimant, stating that the new employer had contacted the respondent “to state that you will be starting new employment with them … I can confirm that your contract has been terminated from [6 April] …”

 

13.         Mr McLaughlin’s letter was sent by recorded delivery.  It appeared from the evidence that it had been signed for on 7 April 2018, but the claimant told the tribunal that he did not receive it until Monday 9 April 2018. 

 

14.         On 5 April, the claimant’s prospective new employer also wrote to him (received on
9 April) stating that “we regret to inform you that we cannot proceed with your employment on this occasion as we are not in receipt of satisfactory references”.

 

15.         The claimant returned to the respondent’s premises on Monday 9 April, intending to work as normal.  He was unable to clock in, or to gain access to the computerised work allocation system.

 

16.         He spoke to Mr Laughlin, who read out the letter the claimant claimed not to have received before he went to work that morning.  The claimant explained to Mr Laughlin that he had decided not to take the other job, but Mr Laughlin told him that he had already found a replacement.  The claimant was then told by Mr Laughlin to leave the premises.

 

17.         The claimant on 11 April 2018 wrote to Mr McLaughlin, asking for written reasons for what he regarded as his dismissal.

 

18.         On 13 April Mr McLaughlin replied, setting out the chain of events, concluding “I hope this clarifies the decision to terminate your contract on 6 April 2018”.

 

19.         The claimant was due to receive his month’s pay on 15 April via bank transfer, but contacted the respondent’s accountant when it did not arrive.  The accountant told him that his pay was being withheld because the claimant in December 2017 had been responsible for accidental damage to one of the respondent’s vans.

 

20.         The claimant accepted that he was responsible, but stated that the respondent’s usual practice was to make arrangements with employees immediately when the damage was caused, and to work out a payment plan.  In his case, nothing more was said about the damage until his contract was terminated.

 

21.         The claimant’s final pay had £600.00 deducted from it, to cover what the respondent stated to be the cost of repair.  It is of note however that the van has not been repaired, and the respondent did not produce any evidence of an estimated cost.

 

22.         There was provision in the claimant’s contract of employment for discretionary deductions for this type of event.

 

THE RELEVANT LAW

 

23.         The relevant legislation on unfair dismissal is contained in Articles 127 and 130 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”):-

 

“Circumstances in which an employee is dismissed

 

127.—(1)   For the purposes of this Part an employee is dismissed by his employer if (and, subject to paragraph (2) F1. . . , only if):-

 

(a)          the contract under which he is employed is terminated by the employer (whether with or without notice),

 

(b)          he is employed under a limited-term contract that terminates by virtue of the limiting event without being renewed, or]

 

(c)          the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct.

 

            (2)  An employee shall be taken to be dismissed by his employer for the purposes of this Part if:-

 

(a)          the employer gives notice to the employee to terminate his contract of employment, and

 

(b)          at a time within the period of that notice the employee gives notice to the employer to terminate the contract of employment on a date earlier than the date on which the employer's notice is due to expire; and the reason for the dismissal is to be taken to be the reason for which the employer's notice is given …

 

130.—(1)   In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show:-

 

(a)          the reason (or, if more than one, the principal reason) for the dismissal, and

 

(b)          that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

 

            (2)  A reason falls within this paragraph if it:-

 

(a)          relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

 

(b)          relates to the conduct of the employee,

 

(c)          is that the employee was redundant, or

 

(d)          is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under a statutory provision.

 

            (3)  In paragraph (2)(a):-

 

(a)          “capability”, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and

 

(b)          “qualifications”, in relation to an employee, means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held.

. . .

 

            (4)  [Where] the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer):-

 

(a)         depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

 

(b)         shall be determined in accordance with equity and the substantial merits of the case.”

 

The relevant law concerning unlawful deduction from wages is contained in Article 45 of the 1996 Order, which states:-

 

            “(1)  An employer shall not make a deduction from wages of a worker employed by him unless:-

 

(a)          the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or

 

(b)          the worker has previously signified in writing his agreement or consent to the making of the deduction.

 

            (2)  In this Article “relevant provision”, in relation to a worker's contract, means a provision of the contract comprised:-

 

(a)          in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or

 

(b)          in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

 

            (3)  Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion.

 

            (4)  Paragraph (3) does not apply in so far as the deficiency is attributable to an error of any description on the part of the employer affecting the computation by him of the gross amount of the wages properly payable by him to the worker on that occasion.

 

            (5)  For the purposes of this Article a relevant provision of a worker's contract having effect by virtue of a variation of the contract does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect.

 

            (6)  For the purposes of this Article an agreement or consent signified by a worker does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.

 

            (7)  This Article does not affect any other statutory provision by virtue of which a sum payable to a worker by his employer but not constituting “wages” within the meaning of this Part is not to be subject to a deduction at the instance of the employer.”

 

CONCLUSIONS

 

24.         In this case, it was the respondent’s case that the claimant in fact resigned, and relied upon the email from the claimant’s prospective new employer to Mr McLaughlin on 29 March 2018.

 

25.         The claimant’s case was that he did not resign, and that the respondent could not properly rely upon the word of a third party.  The claimant also argued that it was, in any event, incumbent upon the respondent to clarify with him what his intentions were, before deciding to treat the prospective new employer’s communication as a resignation.

 

26.         The tribunal is unaware of any provision which permits an employer to regard and treat a contract between it and an employee as terminated arising from contact from a third party.

 

27.         The tribunal additionally found the letter from Mr McLaughlin of 13 April 2018 to shed light upon the process by which the claimant’s contract came to an end.  Mr McLaughlin ended his letter by stating by stating “I hope this clarifies the decision to terminate your contract.”  The tribunal considers the clear and natural meaning of those words to be confirmation that the respondent decided to terminate it, not the claimant.  In those circumstances, the tribunal is satisfied that the respondent dismissed the claimant.

 

28.         The respondent has provided no reason which would satisfy the tribunal that the dismissal was for a reason within the legislation which would render it fair; nor was any argument advanced to suggest that the respondent otherwise would have been justified in dismissing the respondent.

 

29.         The tribunal does not accept that Mr McLaughlin was in any way prevented from contacting the claimant the day he received the email.  The fact that he was unsure that the claimant was definitely leaving made it even more urgent that the situation be clarified before taking the decision to terminate the claimant’s contract of employment.

 

30.         The tribunal is satisfied from the evidence that the dismissal, and the highly prejudicial responses provided in the questionnaire, were motivated by nothing less than spite, with the sole intention of sabotaging the claimant’s new employment.

 

31.         The consequences of the respondent’s actions, in leaving the respondent with no way forward and no way back, must have been obvious at the time to Mr McLaughlin.  The tribunal has concluded that the most likely explanation is that he was well aware of the likely result of his actions, and decided to proceed in order to maximise the resulting damage to the claimant.

 

32.         Whilst the claimant ought to have informed his prospective new employers that he had changed his mind, that is only relevant as between him and them, and has no material bearing upon the merits of this case.  

 

33.         The dismissal is therefore unfair, and it was carried out with no compliance by the respondent with the statutory dismissal procedure.  The tribunal concludes that the failure to carry out or complete any such procedure was entirely due to the failure of the respondent.

 

34.         The tribunal is also satisfied that the deduction from the claimant’s final pay for damage to the van was similarly vindictive.  Such a discretionary deduction could properly be made within the terms of the contract.

 

35.         In order to be properly exercised, however, discretion must be in good faith, which, from the evidence, the tribunal concludes it was not.  The respondent up until this point had shown no intention to recover any of the cost.  Whilst the respondent argued that such work would not be carried out until disposal of the vehicle, it was unable to produce even an estimate, and no work had been carried out by the time of the tribunal hearing.  The tribunal therefore concludes that the amount of £600.00 cannot properly be regarded as a lawful deduction.  The respondent is ordered to pay to the claimant the sum of £600.00. 

 

REMEDY

 

1.         UNFAIR DISMISSAL

 

BASIC AWARD

 

2 years’ service at time of termination x 1.5 (re age) x £337.50 (week’s pay)                                                           =	£1,012.50
Plus four weeks’ pay due to failure to comply with statutory dismissal procedure                                                      =	£1,350.00
	£2,362.50

 

COMPENSATORY AWARD

 

The tribunal considers that the just and equitable award under this heading should be calculated as follows:

 

A.        Immediate loss of earnings:

 

            The parties agreed that the figure provided by the claimant in the schedule of loss was incorrect, as the claimant started a new job sooner than previously asserted.  The tribunal considers that the correct amount should relate to the period 9/4/18 to 15/4/18: £317.33, less £62 for a day’s casual work = £255.33 (nett)

 

            The relevant period ought to be 26 weeks, therefore:-

 

26 x £12 (difference per week in pay) = £312

 

B.        Future loss of earnings

 

            The tribunal accepts the respondent’s contention that the decision by the claimant to accept, and remain in, his new job, at a lower rate of pay, appeared to be more likely to be on the basis that it was so close to home, rather than being the only job offered to him.  The tribunal therefore does not consider that an award for future loss is just and equitable in all the circumstances of this case.

 

C.        Pension loss

 

            In common with the award of future loss, the tribunal does not consider that such award is just and equitable in all the circumstances of this case.

 

2.         UNAUTHORISED DEDUCTION OF WAGES

 

A.         Notice pay

 

            2 weeks’ pay x £337.50 = £675.00.

 

B.        Deduction regarding van damage

 

            £600.

 

            TOTAL AWARD (less £600 re van) = £3604.83.

 

            The tribunal considers that an uplift of 25% is appropriate in all the circumstances of this case:-

 

£3,654.83 x 25% = £901.21

 

 

 

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

 

 

Employment Judge:

 

 

Date and place of hearing:          13 November 2018, Belfast.

 

 

Date decision recorded in register and issued to parties: