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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Kerr v Toughglass Ltd [2009] NIIT 1162_08IT (11 May 2009) URL: http://www.bailii.org/nie/cases/NIIT/2009/1162_08.html Cite as: [2009] NIIT 1162_08IT, [2009] NIIT 1162_8IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1162/08 IT

CLAIMANT: Matthew Kerr

RESPONDENT: Toughglass Ltd (in Administration)

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent and the tribunal Orders the respondent, subject to the recoupment provisions, to pay to the claimant the total sum of £9,718.39.

Constitution of Tribunal:

Chairman: Mr J V Leonard

Members: Mrs Walker

Mr Robinson

Appearances:

The claimant was represented by Mr D Murphy, Solicitor, of Law Centre (NI).

There was no appearance by or on behalf of the respondent.

Reasons

1. The Tribunal heard oral evidence from the claimant, there being no appearance by or on behalf of the respondent, and documents were submitted by the claimant’s representative. The Tribunal noted the correspondence from the Joint Administrators concerning the respondent’s position in connection with the matter.

The Issue

2. In his claim to the Tribunal dated 22 August 2008 and received by the Office of the Tribunals on that date, the claimant claimed unfair dismissal. From the further documents before the Tribunal, the Tribunal noted that the respondent company had been the subject of an Administration Order issued by the High Court of Justice in Northern Ireland on 15 August 2008, whereby John G Gordon and Bridget Napier of Napier & Sons, Solicitors, were appointed as Joint Administrators of the respondent company. Further correspondence from Mr Gordon on behalf of the Joint Administrators dated 22 October 2008 confirmed that the Administrators had no objection to the continuation of these proceedings before the Tribunal. As is mentioned below, such consent is necessary for proceedings to continue against a company which has been placed in Administration by Order of the High Court. With that confirmation to hand, the Tribunal confirmed that the case was enabled to proceed to a hearing. Accordingly the Tribunal proceeded to hear evidence and to inspect documents and to reach its determination in respect of the issue of unfair dismissal and thereafter to deal with the matter of remedy.

The Tribunal’s Findings of Fact

3. In consequence of the oral and documentary evidence before it the Tribunal, on the balance of probabilities, determined the following material facts:-

   1. The claimant commenced employment with the respondent company on or about the 7 June 1999 and he was continuously employed until 23 May 2008. At the time of termination of his employment the claimant was employed in the role of a team leader and he earned £325.00 gross pay per week and his take home pay was £270.00 per week nett. The claimant was born on 26 December 1979 and at the time this employment came to an end he was aged 28 years.

   2. The claimant’s employment with the respondent was in connection with the business of glazing and glass installation. From the claimant’s evidence, the Tribunal is satisfied that no work performance or disciplinary concerns were ever at any time raised by the respondent with the claimant prior to the claimant receiving a letter from the respondent dated 29 April 2008 that stated that he was being suspended from work pending an investigation.

   3. The claimant then attended a meeting with respondent’s management on 13 May 2008 and a number of allegations were put to him by the respondent’s management concerning his work performance and conduct at work. The claimant orally responded to these allegations at that meeting. Consequent upon this meeting, with effect from 23 May 2008, the claimant was summarily dismissed from employment, without notice.

   4. By letter dated 30 May 2008 the claimant wrote to the respondent requesting an appeal against the decision of dismissal. In his said letter of 30 May 2008 requesting this appeal the claimant went into considerable detail in an endeavour to address various issues that had been raised in the course of the 13 May 2008 meeting that had led to his dismissal. For the reason which appears below, the Tribunal does not need to recite the detail in respect of all of the foregoing in this decision. In consequence of a submission made in the course of these proceedings on the part of the claimant’s representative, the Tribunal’s primary focus in this matter was on whether or not the respondent’s management had or had not complied with the statutory dismissal procedures, the specific provisions of which are further mentioned below.

   5. By letter dated 9 June 2008, the respondent wrote to the claimant inviting the claimant to attend a meeting on 12 June 2008. However, the claimant was at that time out of the country, in Spain. The Tribunal is satisfied that the respondent’s management would without doubt have been aware of that absence abroad as the intention to go abroad to Spain on vacation and relevant details had been notified to management by the claimant prior to the dismissal. There was therefore nothing that could be described as a concluded agreement that the claimant would attend an appeal meeting on 12 June 2008.

   6. The claimant duly returned from Spain. That absence from Northern Ireland, so the Tribunal understands, probably lasted two weeks. It must be said that, regrettably, the claimant’s evidence regarding dates and duration of absence was generally rather vague and unsatisfactory. Thus, the Tribunal had considerable difficulty in establishing a precise timeline in respect of the occurrence of material dates that related to some of the central issues in the case. Upon return from this June 2008 visit to Spain, the claimant was contacted by telephone by the respondent’s management with a view to arranging a meeting for the purposes of the appeal.

   7. As the Tribunal understands it (again with some difficulty in view of the vagueness and unsatisfactory nature of the claimant’s evidence) the claimant discussed and agreed to attend an appeal meeting scheduled with the respondent’s management for 8 July 2008. However, a very short time after he had reached this agreement, his mother apparently made an arrangement for him to go abroad once again, this time to the Canary Islands. The claimant then further contacted the respondent’s management, this time by letter dated 1 July 2008 and he stated in that letter that he would not be available to attend the appeal meeting which had been scheduled for 8 July 2008. In that letter the claimant stated that he would be unavailable from 5 to 14 July but that he would be available from 14 July onwards to attend the appeal meeting and he requested that the appeal meeting be arranged as soon as possible after that latter date. The claimant received no further communication from the respondent and indeed no appeal meeting ever took place thereafter.

   8. After the dismissal, the claimant signed on for Jobseekers’ Allowance. He was in receipt of that allowance until 4 August 2008. From that latter date onwards he then gained employment, caring for a close relative. He remained in this employment at the date of the Tribunal hearing. In this employment the claimant received a nett wage of £153.42 per week. The claimant gave evidence to the Tribunal concerning certain endeavours on his part to secure alternative employment. The Tribunal will further refer to these endeavours in the part of this decision which relates to the Tribunal’s award of compensation.

   9. The Tribunal did not need to determine any other material findings of fact for the purposes of its decision.

THE APPLICABLE LAW

4. The Employment Rights (Northern Ireland) Order 1996 (hereinafter referred to as “the 1996 Order”) provides at Article 126 of the 1996 Order that an employee has the right not to be unfairly dismissed by his employer. Article 130 of the 1996 Order provides for the test of fairness concerning the dismissal by an employer.

5. If a Tribunal makes a finding of unfair dismissal, and an order for re-engagement or re-instatement is inapplicable, a Tribunal may make an order for compensation including both a basic award and a compensatory award. Under Article 153 of the 1996 Order the basic award is calculated with reference to the effective date of termination of employment and under Article 129 it is provided that if the contract is terminated without statutory notice (under Article 118) for the purposes of calculating the qualifying period for the basic award the date upon which the statutory period of notice would have expired is applicable. For the compensatory award under Article 157 of the 1996 Order, the compensatory award is such amount as the Tribunal considers just and equitable having regard to the loss sustained by the complainant in consequence of the dismissal, insofar as that loss is attributable to action taken by the employer.

6. The Employment (Northern Ireland) Order 2003 ("the 2003 Order") includes provisions, respectively, under Article 17(1) to (4), in relation to non-completion of statutory procedure: adjustment of awards by industrial tribunals and under Article 23, in relation to procedural fairness in unfair dismissal.

7. The detail of the foregoing provisions, recording the Tribunal's own emphasis in bold lettering, is as follows:-

"17. —

This Article applies to proceedings before an industrial tribunal relating to a claim under any of the jurisdictions listed in Schedule 2 by an employee.

(3) If, ..... it appears to the industrial tribunal that—

the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies,

the statutory procedure was not completed before the proceedings were begun, and

the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer to comply with a requirement of the procedure,

it shall, subject to paragraph (4), increase any award which it makes to the employee by 10 per cent and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50 per cent.

(4) The duty under paragraph (2) or (3) to make a reduction or increase of 10 per cent does not apply if there are exceptional circumstances which would make a reduction or increase of that percentage unjust or inequitable, in which case the tribunal may make no reduction or increase or a reduction or increase of such lesser percentage as it considers just and equitable in all the circumstances.”

23. —

(1) Part XI of the Employment Rights Order (unfair dismissal) shall be amended as follows.

(2) After Article 130 there shall be inserted—

“Procedural fairness

130A. —

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if—

(a) one of the procedures set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (dismissal and disciplinary procedures) applies in relation to the dismissal,

(b) the procedure has not been completed, and

(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.

(2) Subject to paragraph (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.

(3) For the purposes of this Article, any question as to the application of a procedure set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under Article 17 of that Order.”

8. Schedule 1 to the 2003 Order sets out statutory dispute resolution procedures. Part 1 of Schedule 1 provides for standard and modified dismissal and disciplinary procedures. The modified dismissal procedure provides that the employer must set out in writing the employee's alleged misconduct which has led to the dismissal and what the basis was for thinking at the time of the dismissal that the employee was guilty of the alleged misconduct, and the employee's right to appeal against dismissal, and the employer must send the statement or a copy of it to the employee. If the employee does wish to appeal, he must inform the employer. If the employee informs the employer of his wish to appeal, the employer must invite him to attend a meeting. The employee must take all reasonable steps to attend the meeting. After the appeal meeting, the employer must inform the employee of his final decision. It is generally provided that each step and action under the procedure must be taken without unreasonable delay. Timing and location of meetings must be reasonable.

9. The Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (“the 2004 Regulations”), insofar as material, at Regulation 13 provide as follows:-

“ Failure to attend a meeting

     13.  - (1) … if it is not reasonably practicable for -

(a) the employee….; or

(b) the employer,

to attend a meeting organised in accordance with the applicable statutory procedure for a reason which was not foreseeable when the meeting was arranged, the employee or, as the case may be, employer shall not be treated as having failed to comply with that requirement of the procedure.

(2) In the circumstances set out in paragraph (1), the employer shall continue to be under the duty in the applicable statutory procedure to invite the employee to attend a meeting and, where the employee is exercising his rights under Article 12 of the Order of 1999 and the employee proposes an alternative time under paragraph (4) of that Article, the employer shall be under a duty to invite the employee to attend a meeting at that time.

(3) The duty to invite the employee to attend a meeting referred to in paragraph (2) shall cease if the employer has invited the employee to attend two meetings and paragraph (1) applied in relation to each of them.

(4) Where the duty in paragraph (2) has ceased as a result of paragraph (3), the parties shall be treated as having complied with the applicable statutory procedure.”

There are various other provisions contained in the 2004 Regulations concerning the non-applicability of the statutory procedures or, alternatively, circumstances in which the procedures do not apply or are treated as being complied with. The Tribunal does not intend to recite these provisions here.

In respect of the issue of the insolvency of the respondent company, as mentioned, the respondent company was the subject of an Administration Order. The relevant legislation is contained in the Insolvency (Northern Ireland) Order 1989. Article 24(3)(a) of the said 1989 Order provides that no proceedings can be commenced and continued without the consent of the Administrator or the leave of the Court.

The Tribunal’s Decision

10. The Decision of the Tribunal in this case is easily arrived at by means of the Tribunal concentrating its focus upon the statutory dismissal procedures. As is mentioned above in connection with these statutory procedures, upon dismissal of any employee, the employee has an entitlement to present a grievance. That post-dismissal grievance is dealt with under the “modified dismissal procedure”. That procedure provides that:-

1. the employer must set out in writing the employee's alleged misconduct which has led to the dismissal

2. The employer must set out in writing what the basis was for thinking at the time of the dismissal that the employee was guilty of the alleged misconduct

3. The employer must set out in writing the employee's right to appeal against dismissal

4. The employer must send the statement or a copy of it to the employee.

5. If the employee does wish to appeal, he must inform the employer.

6. If the employee informs the employer of his wish to appeal, the employer must invite him to attend a meeting.

7. The employee must take all reasonable steps to attend the meeting.

8. Each step and action under the procedure must be taken without unreasonable delay.

9. Timing and location of meetings must be reasonable.
   
   
   

11. In this instance, the Tribunal is satisfied that the first invitation afforded to the claimant by the respondent was not reasonable. That view is taken for the reason that the Tribunal believes that the respondent must have been fully aware that the claimant would have been out of the country in Spain on the suggested date of the meeting, 12 June 2008. In respect of the second meeting proposed by the respondent, there appears to have been agreement reached between the respondent and the claimant that the meeting would indeed take place on 8 July 2008. Notwithstanding that agreement, the arrangement was cancelled by the claimant, without apparent consent of the respondent, as the claimant was once again going abroad. In essence therefore, there was one meeting only afforded, by agreement, by the respondent to the claimant in this case. Regulation 13 (1) providing for the modified procedure mentioned in detail above, which applies in this instance, provides that the employer shall continue to be under duty under the terms of the applicable statutory procedure to invite the employee to attend a meeting. The Tribunal notes that the statutory provisions use the word in Regulation 13(1) “arranged”. That suggests a consensual agreement being arrived at as to the date and time of any such meeting. However, that responsibility on the employer’s part does not extend beyond two such arrangements (which are broken by the employee on account of unforeseen circumstances). Thus any employer is only discharged from this statutory responsibility if the employee, on two separate occasions, breaks such arrangements. In this instance, the employee broke only one such arrangement, that being the arrangement in respect of the meeting scheduled to take place on 8 July 2008. The respondent therefore, on the facts of the matter, remained under a continuing duty to invite the claimant to a further meeting. Indeed, the claimant in his letter to the respondent dated 1 July 2008 indicated that he would be available from 14 July onwards for a meeting and he requested that the appeal meeting be arranged as soon as possible after 14 July. No invitation to any further meeting was extended to the claimant by the respondent, notwithstanding the claimant’s request, and no meeting indeed ever took place. Responsibility for the omission rested with the respondent. As a consequence, the Tribunal determines that the respondent is in breach of the statutory duty imposed under Regulation 13 of the 2004 Regulations.

12. As the respondent is in breach of the statutory procedure, Article 130A of the 1996 Order provides that the claimant is to be regarded as unfairly dismissed by the respondent. That being the case, this disposes of the issue of unfair dismissal to be determined in the matter. In the light of this finding of unfair dismissal, the Tribunal now turns to the matter of remedy. The claimant claimed compensation only. The material facts of the claimant’s employment and the duration are set out above and referred to further below for of the purposes of calculation of any award.

Basic Award for Unfair Dismissal

13. The Tribunal determines that a basic award is applicable. The claimant’s gross pay in the employment with the respondent was £325.00 per week ( that figure is below the statutory maximum threshold applicable at the time). The claimant was aged 28 years and he had been employed from 7 June 1999. The date of dismissal (without notice) was 23 May 2008. Under Article 118 of the 2006 Order the statutory period of notice was 8 weeks. As mentioned above, Article 129 of the 1996 Order extends the effective date of termination for the purposes of calculation of the basic award in this case by 8 weeks, thereby providing for a deemed continuous period of employment for the calculation of the basic award of 9 years’ service.

£325.00 x (applicable multiplier for age and deemed service 7.5) = £2,437.50.

Compensatory Award for Unfair Dismissal

14. The claimant’s nett pay in the employment with the respondent was £270.00 per week. After a brief period during which the claimant signed on for Job Seeker’s Allowance, the claimant did enter into employment but at a much reduced wage in comparison to the wage earned in the earlier employment with the respondent, that latter being a figure of £153.42 nett pay per week. When questioned by the Tribunal about this and concerning the endeavours the claimant had gone to in order to regain employment at a level of remuneration equivalent to that previously earned, the Tribunal was not satisfied that the claimant had made reasonable and appropriate endeavours to secure employment with equivalent remuneration and thus to mitigate his loss. There was no evidence that the claimant had made any proper or proactive efforts in that regard. Accordingly, the Tribunal felt that it was inappropriate to award compensation for loss beyond the date of the Tribunal hearing. The relevant period is 40 weeks. The applicable loss calculation is therefore as follows:-

£270.00 x 40 weeks = £10,800.00

Less earnings from employment during this period

30 weeks at 153.42 per week = £4,602.60

£ 6,197.40

The Tribunal’s award for loss of statutory rights = £200.00

Statutory Enhancement of Award for Unfair Dismissal

15. The Tribunal now turns to a consideration of potential enhancement of compensation on account of the breach of the statutory dismissal procedure by the respondent in this case. As mentioned above, the statutory provisions provide for a mandatory enhancement of compensation by a figure of 10% (unless that would be unjust or inequitable) and the Tribunal has a further discretion to enhance compensation up to a figure of 50%. In determining this issue, the Tribunal gave consideration to the leading cases upon the matter, these including Metrobus v Cook [2006] UKEAT/0490, Aptuit (Edinburgh) Ltd v Kennedy [2006] UKEAT/0057, Cex Limited v Lewis [2007] UKEAT/0013 and McKindless Group v McLaughlin [2008] IRLR 678. Following in particular the latter case, McKindless, the Tribunal believes that it must exercise its discretion by reference to some particular facts or circumstances surrounding the failure to complete the statutory procedure which can properly be regarded as making it just and equitable that the award should be lifted above the prescribed mandatory 10%. In this case, on the facts, it appears to be the case that the respondent failed to further follow and to complete the statutory procedure on account of the financial difficulties in which it found itself, which difficulties ultimately resulted in the making of the Administration Order. There is no evidence that the respondent company entirely disregarded the procedure in the initial stages. The company had certainly in the early stages appeared to be quite willing to arrange a meeting in pursuance of the statutory procedure. Under these circumstances, having considered the matter, the Tribunal believes that it is just and equitable to award the mandatory uplift in compensation amounting to 10%. The Tribunal does not make any further enhancement to the award under these circumstances.

THE TOTAL AWARD OF COMPENSATION

Basic Award:- £2,437.50.

Compensatory Award:- £6,397.40

Enhancement:- £883.49

Total:- £ 9,718.39

16. Recoupment of Benefit from Awards

The claimant did receive social security benefits to which the Employment Protection (Recoupment of Job Seeker’s and Income Support) Regulations (Northern Ireland) 1996 apply. The following recoupment of benefit is therefore applicable in this case:-

(a) Monetary Award: £9,718.39

(b) Prescribed Element: £9,518.39

(c) Prescribed Period: 23 June 2008 to 27 February 2009

(d) Excess of (a) over (b): £200.00

AND the attached Recoupment Notice forms part of the decision. Your attention is drawn to the notice below which forms part of the decision of the Tribunal.

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

Chairman:

Date and place of hearing: 27 February 2009, Belfast

Date decision recorded in register and issued to parties: