656_08IT 656_08IT Fleming v PFG Plant Hire Ltd [2009] NIIT 656_08IT (09 April 2009)

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URL: http://www.bailii.org/nie/cases/NIIT/2009/656_08IT.html
Cite as: [2009] NIIT 656_8IT, [2009] NIIT 656_08IT

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THE INDUSTRIAL TRIBUNALS



CASE REFS: 00656/08 & 00902/08



CLAIMANT: Thomas Fleming



RESPONDENT: PFG Plant Hire Ltd



DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent and taking into account a 25% reduction for contributory fault, the tribunal orders the respondent to pay the claimant the sum of £13,905.55.





Constitution of Tribunal:

Chairman: Mr S A Crothers

Panel Members: Mr H McConnell

Mr A Crawford



Appearances:

The claimant was represented by Ms Maguire of the Law Centre (NI).

The respondent was represented by Mr K McGuigan, Solicitor of Meyler McGuigan Solicitors.


THE PARTIES


1. It was agreed by both parties at the outset of the hearing that PFG Plant Hire should be dismissed from the proceedings and that the correct respondent is PFG Plant Hire Ltd, as reflected in the title to this decision.


THE CLAIM


2. The claimant claimed that he had been unfairly dismissed by the respondent. He also contended that his contract of employment had been breached and that the respondent had failed to provide him with written reasons for his dismissal. The respondent contended that the claimant had resigned and was not dismissed. The respondent’s solicitor conceded that if the tribunal found that the claimant had been dismissed, there was no defence being proffered to the claim of unfair dismissal but that contributory fault was an issue.


THE ISSUES


3. The issues before the tribunal, as agreed by the parties, were as follows:-


  1. Was the claimant dismissed?


  1. If so, was the claimant automatically unfairly dismissed?


  1. Was the claimant’s contract breached?


  1. Did the claimant receive written reasons for his dismissal?


SOURCES OF EVIDENCE


4. The tribunal heard evidence from the claimant and from Mr Corrigan, an ex-employee of the respondent and on behalf of the respondents from Mr John Haughey, Managing Director, Miss Kate Conway, Mr Loughran, and Mr Horisk. The tribunal was also presented with documentation on behalf of both parties and took into account only documentation referred to in the course of evidence.


FINDINGS OF FACT


5. Having considered the evidence insofar as same related to the issues before it, the tribunal made the following findings of fact on the balance of probabilities:-


(i) In weighing the evidence before it the tribunal took into account the fact that parts of the evidence provided by all witnesses lacked credibility.


  1. The claimant is treated as having been employed by the respondent from March 1998. He was employed as a digger driver.


  1. On 25 January 2008, a tragic accident occurred whereby an employee of the respondent was killed in the course of his employment. This had an obvious impact upon the claimant and his work colleagues. The tribunal is not satisfied however that this had a material bearing upon the events leading to the cessation of the claimant’s employment.


  1. On Thursday 31 January 2008, there was an incident between the claimant and Mr Loughran, a fellow employee. The tribunal is not satisfied that this involved any physical assault by the claimant upon Mr Loughran. In any event Mr Loughran reported the matter to Mr John Haughey. Mr Haughey was one of the four Directors of the respondent company. The other Directors were Padraig Haughey, Francis Horisk, and Gary Haughey. On 1 February 2008, John Haughey contacted the claimant to enquire if he was working on Saturday 2 February. Mr Haughey requested the claimant to call and see him at the respondent’s yard when he finished work. The claimant was working at a site in Portadown on Saturday 2 February. When the claimant had failed to arrive at the respondent’s yard in or about 4.00pm on that date, Mr John Haughey contacted him. There was an exchange of missed calls. Eventually the claimant was able to contact Mr John Haughey on his mobile in or about 4.30pm – 5.00pm. Mr Horisk was in the vehicle along with Mr Haughey when the call was made. The claimant enquired why a meeting was necessary. Mr Haughey mentioned that the claimant had threatened a fellow employee, Mr Loughran, the previous day. Mr Horisk overheard the entire telephone call on the speaker system. The tribunal accepts that when reference was made to an incident involving Mr Loughran and the claimant, the claimant used the words “tell you what you can do with your job – you can stick it up your fucking arse”. The claimant’s evidence was that he had merely said “shove it”. However, he had not referred to anything he said in his claim form to the tribunal. The tribunal, however also found that the respondent’s evidence was, in some respects, inconsistent with the response filed on behalf of the respondent.


  1. On Sunday 3 February 2008, Francis Horisk contacted Mr Corrigan who was the van driver responsible for giving the claimant a lift to work on Monday morning. He was advised not to collect the claimant on Monday morning. The tribunal does not accept that there was a meeting of the nature suggested by the respondent on the morning of 4 February 2008, involving the respondent’s managers together with Mr Corrigan and Damien Doyle. The claimant obviously expected to be collected for work. He rang Mr Corrigan who informed him that he had been told not to give him a lift. The tribunal accepts that the claimant subsequently attempted to contact Mr John Haughey up to and including 12 February 2008 but without success.


  1. The claimant wrote to Mr John Haughey on 12 February 2008 in the following terms:-


“Dear John


Grievance regarding my employment


1] Why the van driver was told not to lift me any more


2] why are you not offering me work after ten years of service and not responding to my phone calls.


3] Are 1 and 2 connected in any way to the request for a private meeting outside of work.


Yours Sincerely”


  1. The claimant was then forwarded a P45 dated 12 February 2008, received by him on or about 18 February. The tribunal does not accept that Mr John Haughey knew nothing about the P45 procedure involving the claimant and is satisfied that it was not something which Kate Conway generated herself without authorisation by or on behalf of the respondent.


The tribunal does accept that some time before he received his P45, the claimant had a conversation in the respondent's premises with Miss Conway. However, on the evidence before it, the tribunal is unable to arrive at a finding as to what precisely was said. It does however, find on the balance of probabilities, that contrary to Miss Conway's evidence, there was no record of any conversation recorded in her diary. The respondents could have produced any such documentation, but did not do so.


(viii) The tribunal does not accept the respondent’s evidence that the Directors met on a Sunday some three weeks after the episode on 2 February 2008. The response to the claim which was prepared and signed by Mr Haughey indicated that on Tuesday morning 5 February 2008, the claimant rang him to ask what the position was. According to the response, Mr John Haughey contacted the claimant on Wednesday morning 6 February 2008 to inform him of a decision arrived at by the other three Company Directors “that they would not employ anyone who would treat another employee or speak to a senior member of staff in the manner as previously noted”. This was a reference to the episode regarding Mr Loughran and the claimant. The response blatantly contradicts the evidence given by both Mr John Haughey and Mr Horisk regarding a Directors’ meeting. The tribunal does not accept that Mr John Haughey stood up for the claimant at any such meeting and in any event, finds that the language used by the claimant on Saturday 2 February is ambiguous in relation to the issue of resignation. Mr Haughey did not contact the claimant further and the tribunal finds that the effective date of termination of the claimant’s employment was 4 February 2008. It is also apparent to the tribunal that language of the nature used by the claimant was commonplace in the context of the building industry. On the other hand, it does not accept the claimant’s evidence that he had planned to go to Dublin on the evening of 2 February 2008 and that this was the reason why he was unable to meet with Mr John Haughey.


(ix) The tribunal also finds that the respondent provided no written terms and conditions to the claimant and did not have an appropriate disciplinary or grievance policy in writing. It was not impressed by Mr John Haughey’s somewhat dismissive approach in this regard.


(x) At the effective date of termination, the claimant was aged 51. His net take home pay with the respondent was £425. He commenced employment with Fox Contracts on 18 February 2008 and earned £340 per week. The tribunal is not persuaded by the respondent’s evidence that it reduced employees’ salaries by 5% in or about September 2008 and by a further 5% approximately more recently. There is no documentary evidence before the tribunal to prove any such reduction. Furthermore, the tribunal had evidence before it that advertisements were placed by the respondent in the Tyrone Herald newspaper in February 2009 advertising for vacancies. It was satisfied, apart from any potential vacancies, that there was enough work for existing employees.


SUBMISSIONS


6. The tribunal received considerable assistance from the helpful submissions furnished by Mr McGuigan and Miss Maguire. These submissions are attached to this decision. Both legal representatives made further oral submissions on the final day of the hearing.


THE LAW


7. The relevant statutory provisions of The Employment Rights (Northern Ireland) Order 1996 (“the Order”) and case law are adequately set out in the written submissions attached to this decision. The tribunal considered these submissions carefully together with the oral submissions and the section in Harvey on Industrial Relations and Employment Law Volume 1, paragraph D1225-249, including the case of Kwik-Fit (GB) Ltd v Lineham [1992] IRLR 156 EAT. In relation to assessing loss for the notice period, it also took into account the case of Burlo v Langley [2007] IRLR 145 CA which, in referring to the case of Norton Tool Company Ltd v Tewson [1972] IRLR 86 NIRC the Court of Appeal held that in calculating compensation in relation to unfair dismissal, an employee who is dismissed without notice should receive a full notice payment without having to give credit for sums earned from other employers during the notice period. Furthermore, as was held in the case of Hilti (GB) Ltd v Windridge [1974] IRLR 53 NIRC, in calculating an employee’s loss of earnings due to unfair dismissal, net pay should be used in respect of all periods, including the notice period.


CONCLUSIONS


8. The tribunal, having carefully considered the evidence together with the submissions from both parties and having applied the principles of law to the facts as found concludes as follows:-


  1. The tribunal is satisfied that the claimant was unfairly dismissed without notice on 4 February 2008 and that there should be an uplift in the compensatory award pursuant to Article 17 of The Employment (Northern Ireland) Order 2003 of 40%.


  1. Apart from the provisions contained in Article 130A of the Order and the separate grounds for a finding of unfair dismissal thereunder, the tribunal is satisfied that the decision to dismiss the claimant did not fall within the band of reasonable responses which a reasonable employer might have adopted in the particular circumstances of this case, and therefore the dismissal was unfair.


  1. The tribunal is satisfied that the claimant, in using the language he did on 2 February 2008 (and which his representative acknowledged could be the subject of disciplinary action) contributed towards his own dismissal and that there should be a 25% reduction in the compensatory award to reflect this, by virtue of Article 157(6) of the Order. Moreover, the tribunal is satisfied that a similar reduction should be made in respect of a basic award by virtue of Article 156(2) of the Order. The tribunal is also satisfied that the claimant is entitled to payment of notice pay in the sum of £3,825 (9 x £425 net per week) and to the sum of £1,158.30 (2 x £579.15) in respect of failure to provide written reasons for dismissal.


  1. The tribunal therefore awards the claimant the sum of £13,905.55 made up as follows:-




Calculations before deductions


Basic award 13.5 x £310 = £4,185.00


Compensation award 2 weeks from

4/2/2008-18/2/2008 @ £425 per week = £850.00


Loss of earnings from 18/2/2008-18/2/2009

£85 x 52 weeks = £4,420.00


Uplift on compensatory award for respondent’s

Failure to follow the statutory procedures

40% x £5,270 = £2,108.00


Calculation after deductions


Basic award £4,185 less 25% = £3,138.75


Compensatory award £7,378.00 less 25% = £5,533.50

Add

Notice Pay 9 x £425 £3,825.00


Failure to provide written reasons for dismissal £1,158.30


Loss of statutory rights £250.00


TOTAL: £13,905.55


The tribunal does not consider it just and equitable in all the circumstances to award any further amount for future loss of earnings.


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




Chairman:



Date and place of hearing: 18 February 2009, 18 and 20 March 2009, Omagh.



Date decision recorded in register and issued to parties:











Thomas Fleming v. PFG Plant Hire Limited

Submission

Interpretation of the Claimant’s statement





to allow a reasonable time to elapse to see if the Claimant intended what he said or to investigate the matter per Wood J. in Kwik-Fit Ltd v. Lineham [1992]183ICR.

In my opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view tribunals should not be astute to find otherwise. However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself to entitle the Tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight’.







11) of the conversation or the statement that he made, which in the circumstances and in light of the evidence subsequently given, was a significant omission.



Issue of the Grievance Procedure









Statement of Loss







unfairly dismissed the Respondent submits that he is not entitled to Compensation by reason of his behaviour.

Section (123(1)] does not ... provide that regard should be had only to the loss resulting from the dismissal being unfair. Regard must be had to that but the award must be just and equitable in all the circumstances, and it cannot be just and equitable that a sum should be awarded in compensation when in fact the employee has suffered no injustice by being dismissed’:









“Estimated fluctuations in earnings: Certain other factors make the assessment of future loss even more speculative. The tribunal should not consider the earnings in the old or the new jobs as static but ought to take into account any likely fluctuations in both.”







Claimant’s calculation of the sum is excessive. If the Tribunal finds that the Claimant is entitled to compensation under this heading the appropriate figure is £50.



































CASE REFERENCE NUMBERS 656/08 &902/08


IN THE OFFICE OF THE INDUSTRIAL TRIBUNALS & FAIR EMPLOYMENT TRIBUNAL

Between

THOMAS FLEMING

CLAIMANT

-and-

P F G PLANT HIRE LIMITED

RESPONDENT



Submissions on the evidence



[Submissions made verbally]



Submissions on the Law

  1. Was the claimant dismissed?

Article 127 of the Employment Rights (NI) Order 1996 (“the 1996 Order”) states;

“(1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to paragraph (2), only if) —
(a) The contract under which he is employed is terminated by the employer (whether with or without notice),...
(b)…
(c) The employee terminates the contact 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.”


1







The respondent is alleging that the claimant resigned and that there was no dismissal.

It is the claimant’s case that he never had any intention of resigning and that nothing he said could have been interpreted as a resignation. Rather, the respondent was determined to get rid of him and used the conversation of Saturday 2 February as a pretext for doing so.

    1. 1.2 Did the claimant resign?

The claimant concedes that during the discussion on Saturday 2 February he told his boss to “shove it”. The respondent alleges that the claimant in fact said “tell you what you can do with your job - you can stick it up your fucking arse”. It is submitted that whichever of the two versions is accepted by the Tribunal as the words more likely to have been used, the employer was not justified in treating the language as a resignation. In fact the employer did not consider it was a resignation. Both phrases are ambiguous.

I would refer the Tribunal to paragraphs 225 to 249 of Division D 1, 2 C of Harvey on Industrial Relations and Employment Law at tab 8 which provides a useful summary of the caselaw on the problem of ambiguous language in dismissal and resignation circumstances.



Firstly, the language the claimant used to Mr Haughey should be construed against the background of the construction industry and specifically the background of the work environment within the respondents. Both the claimant and Mr John Corrigan have given evidence that it was entirely normal for workers on the construction site to use swear words and on occasion to shout. JH denied that he swore but indicated that he did not find swearing unacceptable. Although in some work environments, use of the term “shove it” to the Director of an organisation, could be considered to be totally outrageous this is not so in this case. I refer to the case of Tanner v. DT Kean Ltd [19781 !RLR 110, EAT(para 26 of Harvey extract) in which a particularly abusive use of language by an employer to his employee was held not to be a dismissal but rather language that was “reprimand that the employee should have understood as a reprimand rather than a dismissal. I refer also to the case of Futty v. D & D Brekkes Ltd (1974J IRLR 130 (para 26 of Harvey extract) in which an Employment Tribunal held that the statement by an employer “if you do not like the job, fuck off” was not to be interpreted “in isolation — but against a background of the fish-dock”. In this case the Tribunal concluded that the








2

foreman’s words to the claimant were no more than “a general exhortation to get on with his job”. It is not submitted that the claimant’s language is acceptable, rather, that it was in no way unusual in the context of the respondent’s workplace.



Secondly, the words of the claimant in this case “shove it” or even the respondent’s version are on their face ambiguous. Accordingly, in order to determine how the words should be interpreted an objective test applies and the question of whether or not there has been a resignation must be considered in the light of all the surrounding circumstances. The test is how a reasonable listener would have understood the words uttered and whether the listener in genuinely construing them in a particular way, acted reasonably in all the circumstances in so construing them. Authority for this proposition is to be found in the EAT case i & J Stern v. Simpson [1983] IRLR 52 (paragraph 7) (tab
3).



An example of cases where words were held to be unambiguous is in the case of BG Gale v Gilbert [1978] lRLR 453 (para 241 of Harvey extract) in which the employee said “I am leaving, I want my cards”.



Similarly in the case of Sothern v Franks Charlesly [19811 IRLR 278 the employee said “1 am resigning”. That is the level of clarity that is required for words to be held to be unambiguous.



However, if the Tribunal were to decide that the claimant’s words (whatever they were), were on their face an unambiguous resignation the respondent was not entitled to interpret those words in the overall context as a genuine resignation.


Although the cases of Gale and Sothern may indicate that unambiguous words should be interpreted at face value, the Court of Appeal in the case of Sovereign House Security Services Ltd v. Savage [1989] IRLR 115 (CA) (tab 5) decided that an objective test should be adopted when interpreting words which are on their face unambiguous.







3



At paragraph 7 of the decision Lord Justice May stated:


“In my Opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view Tribunals should not be astute to find otherwise. However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the Tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight.”



See also the EAT case of Martin v. Yeoman Aggregates Ltd [19831 IRLR 49 (paragraphs 12-15) (tab 2). This case involved the dismissal of an employee which was immediately retracted. This case is particularly noteworthy as it emphasises the fact that

.it is a matter of plain common sense, vital to industrial relations, that either an employer or an employee should be given the opportunity of recanting from words spoken in the heat of the moment.”



See also Kwik-Fit (GB) Ltd v. Lineham [19921 IRLR 156, in which an employee resigned after being given a disciplinary warning. See paragraphs 31-33.


The EAT stated that whilst there was no general duty on an employer to ensure that an employee using apparently unambiguous words of resignation intended to resign, nevertheless in special circumstances it might be unreasonable for words to be construed at face value. At para 31 the EAT states:



“This includes where words are given in the heat of the moment or in temper, or under extreme pressure. In those circumstances, the employer should allow a reasonable time to elapse (usually a day or two) to see if the employee actually intended what he said. Further, a prudent employer will investigate the matter and if he fails to do so may find that the Tribunal has drawn the inference that there was a dismissal.”



Even if the claimant had uttered the words the respondent alleges and even if such words were a resignation this is specifically the type of case envisaged by the court in Kwik-Fit.


4

The claimant was still deeply affected by his colleague’s death - he was under stress and was very upset.


Management were of the claimant’s upset and in the circumstances it would have been totally unreasonable for Mr Haughey to conclude that the claimant’s statement was a
resignation.


Even if there had been a resignation by the claimant in this case, any reasonable employer would have waited at least to the Monday to see if the employee really meant to resign.


This case fits squarely with the Kwik-Fit case —the respondent seized on words which it said were a resignation.


In fact the resignation has been fabricated by the respondent and is not supported by the evidence. Mr Haughey had taken the decision to dismiss the claimant on or before 2 February and put it into effect by telling the van driver not to pick up the claimant on the following Monday.


There was a dismissal and the reason was either because of the claimant’s comments about the death of his work colleague or his relationship with Francis Horisk or because he didn’t turn up to the Saturday meeting or because of how he spoke to JH or a combination of all.


The claimant does not need to show what the reason for the dismissal was — simply that he was dismissed.
















5





  1. Automatic Unfair Dismissal


If the Tribunal finds that the claimant was dismissed, I would respectfully submit that it must then also find that the dismissal was automatically unfair by virtue of Article 130A of the 1996 Order which states:


“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 I of 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 (I), 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) 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...”




For the avoidance of doubt, Article 130A(2) of the 1996 order (the partial reversal of Polkey) does not apply as the statutory procedures have not been complied with.























6



  1. Polkey

Due to the failure to follow the statutory procedures, the claimant’s dismissal cannot be held to be fair. However, the Tribunal might have power to reduce the claimant’s compensation if it were to find, for example, that had proper procedures been followed, the claimant would have been dismissed in any event (Polkey v AE Dayton Services [19871 IRLR 503 HI). This is not a case where any Polkey deduction should be made. The guidelines for determining whether a Polkey deduction is appropriate were set out in Software 2000 Ltd v ,4ndrews & Others [2007] IRLR 568 (reproduced in paragraph 26 of Butler v GR Carr Essex Ltd at tab 7).

Under this guidance, it is for the employer to adduce evidence on which he wishes to rely to show that the employee would or might have ceased employment in any event.

The respondent has not sought to submit any evidence to unfair dismissal but for the sake of completeness, I set out below why the respondent in this case would not have been entitled to dismiss the claimant under the normal principles of unfair dismissal.


3.1 Was there a potentially fair reason for the dismissal?

Art 126 of the 1996 order states:

“126 (1) An employee has the right not to be unfairly dismissed by his employer.”


Article 130 sets out potential fair reasons for dismissal:


“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.


The potentially fair reasons set out in Article 130 (2) are capability, conduct redundancy or contravention of a duty or restriction imposed by or under a statutory provision.







7

See Associated Society of Locomotive Engineers and Firemen (ASLEF) v Brady [2006] IRLR 576 at tab 6. Mr. Brady was sacked for alleged gross misconduct but he asserted that the real reason for his dismissal was hostility of the employer against him. The EAT confirmed the employment tribunal’s decision Mr Brady had been unfairly dismissed because the real reason was hostility and not the ostensible reason of gross misconduct. See paragraph 72.


At paragraph 76 the FAT highlighted the fact that


“... it was not incumbent on the Tribunal to make any finding as to the actual reason [for dismissal] at all. It was sufficient for them to say that the Union had not satisfied them that the real reason was a statutory reason...”


See also paragraphs 79 to 80.


3.2 Was the respondent’s decision to dismiss reasonable?


Article 130(4) of the 1996 Order states:


“(4) Where the employer has fulfilled the requirements of paragraph (1), the determination of the question of 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.”


Even if the respondent had a potentially fair reason for dismissal, which is strenuously denied, the claimant asserts, in the alternative that the respondent did not act reasonably in treating such reason as sufficient reason to dismiss the claimant.








8



It is accepted that the Tribunal should not substitute its own view for that of the employer. However, the respondent’s actions were outside the band of reasonable responses which any employer would have made in the circumstances (Iceland Frozen Foods Jones [1982] IRLR 439). Factors relevant to the issue of whether the respondent behaved reasonably are as follows:


3.2.1 Lack of any disciplinary rules


The importance of having clear rules communicated to employees was set out in W Brooks & Son v Skinner [19841 IRLR 379 (paragraph 16) (at tab 4) in which the EAT stated:


“It seems to this tribunal that whether or not an employer is justified in treating a particular matter of conduct as sufficient to justify a dismissal must include the question of whether the employee knew, in a particular case, that his conduct would merit summary dismissal. ... Therefore, this tribunal considers that the consideration of the, question whether the respondent knew he would be dismissed was a relevant mater — not the only matter- but it was a relevant matter for ‘the tribunal to take into consideration.”


3.2.2 Failure to consider any possible mitigating factors


I refer the Tribunal to the EAT case of Taylor v Parsons Peebles NEl Bruce Peebles Ltd (1981) IRLR 119 (see tab 1). In this case it was the employer’s policy to automatically
dismiss any employee who deliberately struck another. The EAT upheld the employee’s appeal against a finding of fair dismissal and Lord McDonald stated:


“The proper test is not what the policy of the respondents as employers was but what the reaction of a reasonable employer would have been in the circumstances. That
reaction would have taken into account the long period of service and good conduct
which the appellant was in a position to claim. It is not to the point that the employer’s code of disciplinary conduct may or may not contain a provision to the effect that
anyone striking a blow would be instantly dismissed. Such a provision no matter how
positively expressed must always be considered in the light of how it would be applied by a reasonable employer having regard to the circumstances of equity and substantial
merits of the case.”








9



The Peebles case highlights the importance of a reasonable employer exercising its discretion in all cases. Even if there had been misconduct by the claimant in this case the reasonable response of any employer would have been to perhaps reprimand the claimant but certainly not dismiss.


In summary, even if the respondent had based its decision to dismiss on the claimant’s behaviour (which it did not) and even if it had then followed correct procedures a dismissal would have been unfair in any event.

4 Compensation

4.1 Compensatory Award


The claimant’s schedule of loss sets out the claimant’s basic award, loss of earnings and other losses to be taken into account in calculating his award.

4.2 Uplift on compensatory award

Pursuant to Article 17 of the Employment (NI) Order 2003 the claimant is entitled to an uplift on his compensation for the employer’s total failure to comply with any procedures. Article 17 states:


“Non-completion of statutory procedure: adjustment of awards by industrial tribunals


I 7. — (1) 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.

(2)....
(3) If, in the case of proceedings to which this Article applies, it appears to the industrial tribunal that—

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

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

(c) 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,



10

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 percent.

(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 in crease or a reduction or increase of such lesser percentage as it considers just and equitable in all the circumstances.

(5) Where an award falls to be adjusted under this Article and under Article 27, the adjustment under this Article shall be made before the adjustment under that Article.”

The EAT in Butler v GR Carr (Essex) Ltd (2008 UKEAT/128/07 (paragraphs 41-42) (tab 7) has held that a serious breach of the procedure should normally lie in the top half of the statutory bracket and a 30% uplift was appropriate where the breach was serious but not wilful or blatant. I would submit that an uplift in excess of 30% would be appropriate.

Any uplift which the tribunal chooses to apply should be to the compensatory element of the award only as the basic award is specifically excluded by Article 158A of the 1996 Order.

5 Contributory Fault


The claimant has not been guilty of contributing to his dismissal in any way. For there to be contributory fault to any dismissal —the respondent needs show a reason for the dismissal. No reason has been given so how can there be contributory fault?













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24.

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