THE INDUSTRIAL TRIBUNALS

CASE REF:	653/04	

CLAIMANT:			John Lewsley		 

RESPONDENTS:		Moore & Faloon		

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claimant is ordered to pay a deposit of £35 as a condition of being permitted to take part in that part of the proceedings relating to his claim under the Disability Discrimination Act 1995.

Constitution of Tribunal:

Chairman:	Mr W A Palmer (Chairman sitting alone).

Appearances:

The claimant represented himself.

The respondents were represented by Mr Dermot Faloon.    	

Background

1.	A Case Management Discussion was held on 20 September 2005 before the Vice-President at which she ordered that, “[t]he tribunal will list this case for a pre-hearing review.  At that hearing the tribunal will consider whether there is any likely prospect of success in this case and may make an order that a deposit is paid by the claimant to continue with his claim.”

In paragraph numbered 11 of his Application to an Industrial Tribunal (“the application”) the claimant states that the type of complaints he wishes the tribunal to decide are in respect of unfair dismissal, non-payment of Statutory Sick Pay and holiday pay.  In paragraph 13 of the application the claimant states, “I feel…….that employer has breached Disability Discrimination Act”. 

The purpose of this hearing is not to decide these issues, but to decide whether the claimant should be required to pay a deposit in order to continue with all or part of the proceedings.  No oral evidence was taken.  The tribunal bases its decision on the application, the respondent’s Notice of Appearance (“the appearance”), the oral submissions made at the hearing and the answers to questions asked by the tribunal.

The Relevant Rule

2.	The relevant rule is rule 20, which is contained in Schedule 1 to The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.  Rule 20(1) provides that if a chairman, at a pre-hearing review, considers that the contentions put forward by any party in relation to a matter required to be determined by a tribunal have little reasonable prospect of success, the chairman may make an order against that party requiring the party to pay a deposit of an amount not exceeding £500 as a condition of being permitted to take part in the proceedings relating to that matter.

The Tribunal’s Approach

3.	The tribunal will examine each of the claimant’s claims in the light of the information made available to it by the parties and the submissions and consider whether the claims have little reasonable prospect of success.

The Unfair Dismissal Claim and also the Disability Issue  

4.	The claimant is claiming unfair dismissal and compensation in respect of the dismissal.  

The information contained in the application is sparse, but the claimant clarified his case during his submissions and in answers to the tribunal’s questions.

The claimant was employed by the respondents from towards the end of 1999 until early 2004, when he was dismissed.  The brief circumstances of his dismissal, according to the claimant, are that he had been off ill with a prostate gland and kidney infection for some 6 weeks, and had sent sick notes to the respondents, when one Friday a Mr Faloon came to his home and told him in unmistaken terms that he would have to get back to work, otherwise he would be dismissed.  The claimant explained to Mr Faloon that he would have to see his doctor again before starting work.  Mr Faloon said that he needed the claimant in work.  On the Monday evening following the visit by Mr Faloon, the claimant was dismissed.  In his submission to the tribunal the claimant said that he was informed of his dismissal by his nephew, Mr Kevin Toman.  However, in the application he refers to the letter of dismissal from the respondents, dated 25 February 2004, which will be referred to below.   The basis of the claimant’s claim is that he was dismissed whilst off work on sick leave.

The letter, dated 25 February 2004, to the claimant states as follows;

“I am writing to let you know that due to your periods of extended absence I have no option but to let you go.

In the last twelve month period you have taken a total of 46 days leave.  This can be broken down as follows:

Week ending 05/06/03       4 days
Week ending 12/06/03       5 days
Week ending 19/06/03       3 days
13/01/03 – 26/02/04           35 days

I enclose your contract which states that if you take over 35 days sick leave in any one twelve month period then your contract of employment can be terminated.  Your extended sick leave has left me no choice but to do same.

I am also withholding your sick and holiday pay totalling £88.45 as part payment of the £350 loan which Moore and Faloon lent you.  I would ask you return the balance £261.55 as a matter of urgency.

May I take this opportunity to thank you for your service and wish you every success in the future.

Yours sincerely

Michael Faloon
Partner”

The provision in the contract of employment relating the 35 days sick leave in any twelve month period is contained in clause 11(2), the relevant part of which states as follows:

“In the event of prolonged sickness (which will be defined as a period or periods in excess of 35 working days in any period of 12 months) the Company reserves the right to terminate the contract.”

In the appearance the respondent says, in what appears to be a response to the claim in respect of unfair dismissal, “1.see clause 11(2) of contract” and “3.written to on two other occasions”

With regard to the “two other occasions” these appear to refer to two letters written to the claimant, one dated 24/07/02 (“the first letter”) and the other dated 17/09/03 (“the second letter”).

The first letter says:

“Further to the verbal warning you received in June 2002 I am writing to give you a written warning on your job performance.

It has come to my attention that despite the verbal warning you are still not performing your duties to a satisfactory level.  In particular you are still not respecting your supervisor and you are still not performing a full days work.  If this situation continues I will be left with no option but to issue you with a final warning followed by dismissal as per the terms of your contract.

Yours sincerely

Michael Faloon

Site Director”

The second letter says:

“Further to the verbal warning you received last week and a written warning that you received last July I am writing to give you a final warning on your job performance.

It has come to my attention that despite the warnings you are still not performing your duties to a satisfactory level.  In particular you are not reporting for work and not telephoning myself or your foreman to explain why you will not be reporting.  This is not acceptable.

If the situation continues I will be left with no option but to dismiss you as per the terms of your contract.

Yours sincerely

Michael Faloon
Site Director”

The tribunal in considering all the above is unable to conclude that the claimant’s contentions have little reasonable prospects of success.

In the appearance it is accepted that the claimant was dismissed.  The claimant’s contention is that he was dismissed abruptly whilst he was off ill with a prostate gland and kidney infection.  He contends that he had provided the respondents with sick notes covering his illness.  It would also appear that he will contend that the respondent’s response to his illness was to warn him in strong terms that if he did not come back to work he would be dismissed and in fact was dismissed within days of the warning.  Mr Faloon’s only submission was that the company worked on occupied houses and needs a reliable workforce.  He said that the claimant was a good worker, but unreliable and that the company went through the procedure and let him go.  The tribunal has taken into account the claimant’s alleged sickness record and also the letters written to him.

With regard to the disability claim, the claimant says in the application that the respondent breached the Disability Discrimination Act 1995.  When asked by the tribunal what this claim was about, the claimant said that his case was that he was unfit for work and that his doctor had put him on the sick.  The disability claim refers to what appears to be a transient condition, namely an infection of the prostate gland and kidney, and it also appears to the tribunal that the claimant will be relying on this condition in alleging that he was discriminated against in being dismissed from his employment.  In the circumstances, the tribunal considers that in this aspect of his unfair dismissal claim the claimant has little reasonable prospect of success and, therefore, the tribunal will consider whether a deposit order should be made in respect of this part of his claim for unfair dismissal.

Under rule 20(1) there is discretion whether or not to make an order to pay a deposit.  Under rule 20(2) it is provided that no order for a deposit shall be made unless the chairman has taken reasonable steps to ascertain the ability of the party against whom it is proposed to make the order to comply with such an order, and has taken account of any information so ascertained in determining the amount of the deposit.  The tribunal enquired of the claimant as to his means.  He said that he is the sole earner in the household which consists of himself, his spouse and 5 children, one of whom is his and his wife’s grandchild.  He has a net income from his employment of £300 per week.  Out of this £66.79 per week is paid for rent, £30 for electricity, approximately £125 for groceries and £30 in total to two mail order clubs.  This is a total of £251.79 each week.  He also provides money to the children to go out with their friends.  He has no savings.  In view of the claimant’s financial situation any deposit ordered should be of a relatively modest amount.  The tribunal is mindful that the claimant has no savings and of the small surplus that would be likely to remain at the end of a week,  and is also mindful of the provisions of rule 20(4), which limit the amount of time the claimant would have to accumulate and lodge a deposit.  These provisions state that if a person against whom an order for a deposit has been made does not pay to the Secretary of the Office of the Tribunals the amount specified in the order within the period of 21 days of the day on which the document recording the order is sent to him, or within such other period, not exceeding 14 days, as the chairman may allow in the light of representations made within that period of 21 days, a chairman shall strike out the part of the claim to which the order relates.  

Taking account of all the above, the tribunal considers that a deposit should be ordered and that the sum of £35 would be appropriate and, therefore, orders that the claimant pay a deposit of that amount as a condition of being permitted to take part in that part of the proceedings relating to his claim under the Disability Discrimination Act 1995.

Non-payment of Holiday Pay and Statutory Sick Pay

5.	In the letter of dismissal of 25 February 2004 the respondents wrote to the claimant to say that they were withholding his sick and holiday pay totalling £88.45 as part payment of a £350 loan and asked for the balance of £261.55.

Clause 10 of the contract of employment sets out the claimant’s annual holiday entitlement (29 days) and continues, 

“On termination of employment, holiday entitlement will be calculated to the nearest full month worked.  If an employee has taken holidays, which have not been worked for, any excess holiday pay will be deducted from the final salary”

Clause 11 of the contract provides that the claimant will be entitled to Statutory Sick Pay during any unavoidable absence through sickness or accident provided the notification and certification procedure for Statutory Sick Pay is followed.  The procedure is set out.

There is nothing before the tribunal to indicate that the respondents are claiming any agreement under which they were entitled to withhold these amounts from the claimant’s pay.  Furthermore, the claimant informed the tribunal that he disputes that the loan, referred to in the letter of 25 February 2004, was outstanding.  He claims that that loan had been repaid at the time of his dismissal.

Although the claimant alleges in the application that sick pay was withheld when his employment ended, he informed the tribunal that in fact it was a tax credit that had been withheld.

In light of the matters above, the tribunal does not consider that these claims qualify for consideration that a deposit be paid.

Chairman:

Date and place of hearing:      15 March 2006, at Belfast

Date decision ordering the claimant to pay a deposit
recorded in the register and issued to the parties: