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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Hambly v Board of Governors of Enniskillen Royal Grammar School (Breach of Contract Redundancy Payment Unfair Dismissal Other) [2019] NIIT 08256_18IT (20 March 2019)
URL: http://www.bailii.org/nie/cases/NIIT/2019/08256_18IT.html
Cite as: [2019] NIIT 8256_18IT, [2019] NIIT 08256_18IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 8256/18
CLAIMANT: Ciara Hambly
RESPONDENT: Board of Governors of Enniskillen Royal Grammar School
Certificate of Correction
The decision issued on 20 March 2019, at APPEARANCES which reads;
“The respondent was represented by Conor Hamill, Barrister-at-Law, instructed by Elliott Duffy Garrett Solicitors”
is corrected to read;
“The respondent was represented by Conor Hamill, Barrister-at-Law, instructed by Napier & Sons Solicitors”
Vice President:_____________________________________
Date: __________________________________
Amendments recorded in Register and issued to the parties on:
THE INDUSTRIAL TRIBUNALS
CASE REF: 8256/18
CLAIMANT: Ciara Hambly
RESPONDENT: Board of Governors of Enniskillen Royal Grammar School
DECISION
The unanimous decision of the tribunal is that the claimant was automatically unfairly dismissed by the respondent on 30 June 2018 and compensation of £3,160.88 as calculated in this decision is awarded to the claimant.
The claims in relation to contractual or statutory notice pay and contractual or statutory redundancy pay are dismissed.
The claims in relation to unfair dismissal for assertion of a statutory right, unfair dismissal on the ground of a protected interest disclosure and unlawful detriment on the grounds of trade union affiliation or association were withdrawn in the course of the hearing and dismissed.
CONSTITUTION OF TRIBUNAL
Vice President: Mr N Kelly
Members: Mrs Mary O’Kane
Mr Iain Foster
APPEARANCES:
The claimant appeared in person.
The respondent was represented by Mr Conor Hamill, Barrister-at-Law, instructed by Elliott Duffy Garrett Solicitors.
BACKGROUND
1. The claimant is a teacher in modern languages.
2. The respondent is a voluntary grammar school.
3. The claimant has worked as a teacher at the respondent’s school for the following periods:
17 April 2012 to 21 March 2013 – maternity leave cover for Ms E Maguire.
15 September 2014 to 22 June 2015 – maternity leave cover for Ms J Donald.
22 February 2016 to 30 June 2016 – maternity leave cover for Ms McCready‑Bamber.
1 September 2016 to 18 December 2016 – maternity leave cover for Ms McCready‑Balmer.
3 January 2017 to 30 June 2017 – maternity leave cover for Ms E Maguire.
1 September 2017 to 20 December 2017 – cover for unpaid leave of Ms L Lane.
3 January 2018 to 30 June 2018 – cover for unpaid leave of Ms L Lane.
4. Ms Lane, for whom the claimant had been covering during the latter period of her employment, was made redundant by the respondent following an application for voluntary redundancy. That redundancy took effect from 31 August 2018.
5. The claimant was given notice of termination as a result by letter dated 29 May 2018. That letter pointed out that the post held by Ms Lane was being supressed and that there was to be a reduction in the number of full-time equivalent teachers in the school. The termination of the claimant was with effect from 30 June 2018. The claimant’s services were not required during July and August which was during the school holidays when no teaching duties were required to be performed.
6. The statutory three step procedure for terminating employment was not followed by the respondent.
7. The claimant lodged a tribunal claim on 11 June 2018 alleging;
(i) Automatic unfair dismissal on the basis of continuous service from 22 February 2016 to 30 June 2018.
(ii) Unfair dismissal for assertion of a statutory right (seeking particulars of employment).
(iii) Unlawful detriment on the grounds of trade union affiliation and association.
(iv) Unfair dismissal as a result of a protected interest disclosure (a letter the claimant sent to the ETI on 9 May 2018).
(v) Failure to pay statutory redundancy pay.
(vi) Failure to pay notice pay.
8. The respondent did not accept that the claimant had been an employee during the relevant period. It alleged that the claimant had instead been a worker for the purposes of the Employment Rights (Northern Ireland) Order 1996 (the 1996 Order). The respondent also alleged that there had been insufficient continuous service to ground a claim for unfair dismissal or to ground a claim for redundancy pay. The respondent denied all the other claims.
Procedure
9. On the first day of the hearing 12 March 2019, the claimant was represented by Mr S Doherty, Barrister-at-Law instructed by Murnaghan and Fee Solicitors.
10. Mr Doherty BL pursued an application for third party disclosure against the Employment and Training Inspectorate. In particular, he sought disclosure from the ETI of all documents, including handwritten or annotated notes prepared by the Inspectorate for a discussion with the respondent Senior Management Team in or around May 2018 in connection with an inspection. The claimant sought to establish that sufficient disclosure of her complaint to the ETI had been made to the Senior Management Team to enable her to be identified by the Senior Management Team.
11. The respondent denied being aware of the claimant’s identity as a whistleblower before the termination of her contract. The ETI had confirmed in writing to the claimant’s solicitor on 11 March 2019 that the claimant’s identity had not been disclosed to the school and that the details of her letter had not been disclosed to the school. The ETI had simply paraphrased various communications including the communication from the claimant.
12. The application for third party disclosure was refused. Whether or not the respondent had known of the claimant’s identity as an alleged whistle-blower had been an issue which had been apparent since the lodging of the response on behalf of the respondent. The respondent had always denied being aware of the identity of the claimant as an alleged whistle-blower. The application for third party disclosure was extremely late and could have been made much earlier. If it had been granted at this stage, it would have caused significant delay to the hearing of this matter with increased costs to both the respondent and to the tribunal. The application was no more than a fishing expedition in any event. There was no reason to suppose that any such notes or documents which might be disclosed by ETI would have lent any support to the claimant’s supposition that her identity had been specifically or effectively disclosed to the respondent’s Senior Management Team during the relevant meeting.
13. Once the application for third party disclosure had been refused, Mr Doherty BL disclosed that the legal funding which had been provided by the claimant’s trade union had already been terminated. On that basis he and his instructing solicitor were compelled to withdraw from the case.
14. No criticism can be made of the actions of Mr Doherty BL or of his instructing solicitor in this regard. However it is a pity that the claimant’s trade union chose to withdraw funding at this late stage. This led to a situation which was not conducive to the interests of justice.
15. It left the claimant unrepresented with little warning. The tribunal had been ready to proceed and the respondent, which had instructed solicitor and counsel had also been ready to proceed. There was a situation which should have been avoided. Decisions in relation to legal funding should have been made at a much earlier stage.
16. Although the claimant clearly felt the situation stressful, she was willing to proceed with the case and to commence cross-examination. The claimant made it plain that in her financial circumstances, she would not be able to obtain alternative legal representation at any point. Any postponement would therefore have achieved nothing but would have added significantly to the costs of the respondent and indeed to the stress occasioned by the claimant. It would also have significantly delayed determination of the claims.
17. In any event the claimant withdrew her claims of
(i) unfair dismissal for assertion of a statutory right; and
(ii) unlawful detriment on the grounds of trade union affiliation or association.
18. The case proceeded in relation to;
(i) a claim of automatic unfair dismissal contrary to the 1996 Order.
(ii) A claim of unfair dismissal as a result of a protected interest disclosure.
(iii) Failure to pay statutory redundancy pay.
(iv) Failure to pay statutory notice pay.
19. The claimant was obviously in a difficult situation having been deprived of legal representation with little warning. She was also on occasion visibly distressed. The tribunal attempted to assist her in putting forward her claims and in pointing out the difficulties faced by both the claimant and the respondent in relation to the arguments that they advanced.
20. In the course of cross-examination the claimant repeatedly accepted that she had no evidence that the respondent had been aware of her identity as the author of the letter dated 9 May 2018 which had been sent to the ETI. She further accepted that she could produce no evidence to support her claim that her dismissal had been motivated by her alleged status as a whistle-blower. The position of the respondent, in the absence of any evidence to the contrary, was that her dismissal had been the outworking of the arrangement between the respondent and the claimant to provide cover for Ms Lane up to 30 June 2018, and that there had not been any other motivation for that dismissal.
21. The claimant was given the opportunity to reflect on her position and to discuss her claims with the Labour Relations Agency.
22. The claimant withdrew her claim of unfair dismissal on the ground of a protected interest disclosure at approximately 3.00 pm on the first day of the hearing. The hearing stopped at that point and resumed on the second day at 10.00 am to deal with the remaining claims of automatic unfair dismissal, failure to pay contractual or statutory redundancy pay and failure to pay contractual or statutory notice pay.
23. At the commencement of the second day, the Vice-President pointed out to counsel for the respondent that the issues had already been significantly narrowed by the claimant. The Vice-President asked Mr Hamill BL whether it was still the situation that the respondent was disputing the status of the claimant as an employee and still disputing continuous service sufficient to ground a claim of automatic unfair dismissal. There was a discussion about the well-known case law in relation to these matters.
24. Mr Hamill confirmed that he had already discussed these issues with the respondent and that these arguments were now no longer being pursued by the respondent. The status of the claimant as an employee at the relevant times was accepted by the respondent. Continuous service as alleged by the claimant from 22 February 2016 to 30 June 2018 was accepted by the respondent. A failure to follow the statutory three step procedure and consequently an automatic unfair dismissal was accepted by the respondent.
25. An alleged failure to pay redundancy pay and an alleged failure to pay notice pay was still in dispute. There was no evidence before the tribunal of any contractual entitlement to either redundancy pay or notice. The claimant had been engaged during the relevant period through the Northern Ireland Substitute Teachers Register and paid on a daily rate.
26. The parties were urged to consult with the Labour Relations Agency to consider an alternative resolution but those efforts unfortunately proved unsuccessful.
27. The cross-examination of the claimant proceeded in relation to remedy for the automatic unfair dismissal and in relation to the claims for failure to pay statutory notice pay and failure to pay statutory redundancy pay. The respondent did not wish to cross-examine the only witness called by the claimant. The statement of that witness was accepted as evidence without being sworn.
28. The respondent decided not to call any witnesses in relation to the remaining claims but to rely on submissions.
FINDINGS OF FACT AND DECISION
29. The claimant had been engaged from 22 February 2016 to 30 June 2018 as an employee by the respondent and had accumulated continuous service during that period of more than two complete years.
30. The respondent had failed to fulfil the statutory three step procedure as required by the 1996 Order. In particular, there had been no interview, no decision and no appeal.
31. The dismissal on 30 June 2018 had therefore been automatically unfair.
32. The claimant had been given notice of her dismissal by letter dated 29 May 2018, received the next day, and there had no failure to provide statutory notice contrary to the 1996 Order.
33. The claimant accepted that the redundancy applied for by Ms Lane and granted by the respondent being procedurally correct. Ms Lane’s post had been declared redundant. Ms Lane had been compensated for that redundancy. The claimant had not been made redundant and there had been no redundancy in relation to her.
34. The claimant accepted that her employment to cover for Ms Lane’s absence had been for an anticipated twelve month period. She further accepted that she had had no legitimate expectation of further employment and no legitimate expectation that that period would have been extended for any reason. When Ms Lane’s post had been suppressed that post had no longer available to her. The respondent had made further arrangements within its reduced staffing which were arrangements which had been reasonably open to it as an employer balancing both the curriculum and funding. The fact that the respondent had used NISTR when it should perhaps have considered open recruitment is irrelevant. The claimant had been engaged through NISTR and had been paid on that basis. That had been the contractual relationship between the claimant and the respondent.
Remedy for Automatic Unfair Dismissal
35. The claimant had been automatically unfairly dismissed. Therefore under Article 154(1A) of the 1996 Order, the claimant is entitled to a minimum of four weeks wages gross pay as basic award.
That amounts to 4 x £508 (statutory cap) = £2,032.00
There was no evidence before the tribunal that such an minimum basic award would have resulted in injustice to the employer for the purpose of paragraph (1B).
36. A compensatory award for unfair dismissal is restricted under Article 157 of the 1996 Order to such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequent of the dismissal insofar as that loss is attributable to action taken by the employer.
(Tribunal emphasis)
37. The claimant’s last post had been limited in time and restricted to cover teaching duties for Ms Lane. The claimant accepted that she knew her employment would end in any event in June 2018. She had had no legitimate or other expectation of further employment.
38. She stated that there had been no vacancy within her area since this dismissal. She had further been offered no substitute work. However there is absolutely no evidence that any of this had been related to her dismissal in relation to her latest employment to cover for Ms Lane.
39. The reality is that the claimant’s termination in June 2018 had been expected by both the claimant and the respondent from the start of the employment. It had terminated when teaching duties were no longer required. That had been the basis of the claimant’s employment. The respondent had however committed a serious procedural error. It had failed to follow the statutory three step procedure which has been in place within this jurisdiction for some fifteen years. It is extremely regrettable that the respondent failed to follow a widely known and obvious procedure. However the extent of any loss occurred by the actions of the respondent is the loss of any further time of employment which might have been occasioned by the proper completion of the statutory procedures. Given the fact that the respondent had been aware of the issue from at least 29 May 2018, the tribunal concludes that the completion of the statutory procedure would have taken at most two further weeks from 30 June 2018 to allow for the proper completion of the three steps. The result would in any event had been the same. The claimant’s services were no longer required. The relevant teaching duties ended on 30 June 2018. Ms Lane’s post had been suppressed and internal arrangements to cover the workload of the school had been made by the respondent.
40. The tribunal therefore awards two weeks net pay as its compensatory award in this case. It represents the total financial loss established by the claimant in this respect which was occasioned by the actions of the respondent.
41. It is unfortunate that no schedule of loss has been provided by either party in this case. The details of net pay are restricted to the payslips provided in the bundle. The net pay for the last three months of her employment was
April £2,121.21
May £2,608.27
June £2,608.27
Total £7, 337.75.
42. That amount of £7,337.75 represents pay over thirteen weeks. Dividing that sum by thirteen produces £564.44.
43. Multiplying that sum by two = £1,128.88.
44. The tribunal accepts that this is an imperfect calculation of net weekly pay but given the information provided it appears to be as correct as possible. The tribunal therefore awards a compensatory award of two weeks net pay totalling £1,288.88.
45. The total award made by the tribunal in respect of the finding of automatic unfair dismissal is;
Basic award £2,032.00
Compensatory Award £1,128.88
Total £3,160.88
Notice Pay
46. There was no evidence before the tribunal of any contractual notice entitlement. The claimant argued that she should not have been engaged through NISTR on a daily rate basis and that she should have been engaged under different contractual terms.
It certainly appears that the career break cover for Ms Lane could and perhaps should have been dealt with differently. However, it was not. The claimant had been employed through NISTR on a daily rate basis. That had been the contractual relationship between the claimant and the respondent. The claim in relation to contractual notice pay is dismissed.
47. Statutory notice had been given by letter dated 29 May 2018.
48. The claim in respect of statutory notice pay is dismissed.
Redundancy Pay
49. The claimant had not been made redundant for the purposes of the 1996 Order. There had been a redundancy situation in relation to Ms Lane. The claimant’s contract terminated as expected on 30 June 2018 and there had been no expectation of renewal or extension even if Ms Lane had not been made redundant. The reason for the claimant’s termination had not been a redundancy situation. It had been the conclusion of the agreed arrangement between the claimant and the respondent, in relation to teaching duties up to 30 June 2018. The claim for a statutory redundancy payment is dismissed.
50. In any event, even if there had been a redundancy situation in relation to the claimant on 30 June 2018, any statutory redundancy payment would have had to be deducted from the unfair dismissal award under Article 156(4)(b) of the 1996 Order. The claimant would be no better off and would receive exactly the same compensation.
51. The claimant had been engaged through NISTR on a daily rate basis. There was no evidence before the tribunal of any contractual entitlement to redundancy pay. The claim for contractual redundancy pay is dismissed.
Interest
52. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Vice President:
Date and place of hearing: 12 and 13 March 2019, Belfast.
Date decision recorded in register and issued to parties: