THE INDUSTRIAL TRIBUNALS

CASE REF:  4342/09

CLAIMANT:			Thomas Ivan McLucas

RESPONDENT:		Warmflow Engineering Limited

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent.  The respondent is hereby ordered to pay to the claimant a total sum of £1,937.50.         

Constitution of Tribunal:

Chairman:		Ms Turkington

Members:		Mr Burnside
Mr McKeown

Appearances:

The claimant appeared and represented himself.

The respondent appeared and was represented by Mr Hillen of Hillen Management Consultancy

The Claim 

1.	The claim was a claim of unfair dismissal.

The Issues

2.	The issues to be determined by the tribunal were as follows:-

(a)	Whilst this issue was not raised directly by either of the parties, the tribunal had to consider whether the statutory dismissal procedure had been completed.  If not, whether the respondent was responsible for such non-completion and whether the dismissal of the claimant was thereby rendered automatically unfair.  

(b)	The tribunal also considered that it should in any event express its view as to whether the dismissal of the claimant had been unfair in other respects, including whether the claimant had been unfairly selected for redundancy and whether the dismissal was otherwise procedurally unfair.

(c)	In the event that it found the dismissal of the claimant to be unfair, the tribunal had to determine the appropriate remedy.  The claimant sought reinstatement.

Sources of Evidence

3.     	The tribunal heard oral evidence from the claimant and from Stuart Cousins and Gerard Mackle on behalf of the respondent.  In the course of the hearing, the parties also referred the tribunal to a number of documents in the tribunal bundle.

Contentions of the Parties

4.	The respondent’s representative contended that the claimant had been fairly dismissed by reason of redundancy and following a fair and objective selection process.  He pointed out that the arrangements in relation to the redundancy procedure followed by the respondent had been agreed with the Union and further contended that the statutory dismissal procedure had been fully completed.

5.	The claimant did not dispute that there was a redundancy situation facing the respondent.  However, he contended that he had been unfairly selected for redundancy and that he had therefore been unfairly dismissed.  The claimant challenged the allocation of marks to himself and other employees under the selection criteria/matrix used by the respondent. 

Facts of the Case

Having considered the claim form and response, and having heard the oral evidence of all the witnesses and considered the documents referred to in evidence, and the submissions made by or on behalf of both parties, the tribunal found the following relevant facts:-

6.	The claimant who was born on 25 May 1964, was employed by the respondent from 21 December 1998 to 28 February 2009.  The claimant was employed in the respondent’s factory initially as a brake press operator for a period of 18 months and was then promoted to the role of supervisor. 

7.	During his employment with the respondent, the claimant never received any warnings either in relation to his conduct or the quality or quantity of his work.

8.	The bulk of the respondent’s business is in oil fired heating systems for domestic heating.  The business is therefore closely connected with the building industry.  The respondent’s markets are in Northern Ireland, the Republic of Ireland and mainland UK.  

9.	In the summer of 2008, there was a severe downturn in the respondent’s business.  A number of positions were not filled when employees moved on.  This occurred with a director’s post and certain administration posts.

10.	In August 2008, the respondent had a total of 143 employees.  At that stage, the respondent was seeking to avoid redundancies.  There was a focus on sales and the use of temporary agency staff was restricted.  Further, one shift was reduced.  The respondent also kept stock at a high level in order to protect overall job numbers.

11.	In the period from August to November 2008, it became clear to the respondent that the situation was serious.  Sales were down 33% and the respondent determined that more serious action was required.  The respondent had never previously had to make redundancies in 40 years of trading.  Before implementing redundancies, the respondent sought professional advice and spoke to other companies which had already made redundancies.  A total of 17 employees were made redundant over the following months.  By the date of hearing, the respondent had only 103 employees.  

12.	The respondent discussed the proposed redundancies and the proposed arrangements for selection for redundancy with the Union GMB.  The arrangements proposed by the respondent were agreed by the Union.

13.	In the claimant’s shift, there were 3 supervisors working in different departments.  The respondent was intending to make some of the shop floor staff redundant and therefore there was a reduced need for supervisors on this shift.  Accordingly, the respondent decided that one of the 3 supervisors on this shift would be made redundant.  

14.	In order to select which of the 3 supervisors would be made redundant, Mr Stuart Cousins in conjunction with the Production Manager, Trevor Johnston, decided that it would be appropriate to evaluate the training of each supervisor and what they were capable of.  Mr Cousins and Mr Johnston developed a scoring matrix to record the capabilities of each of the 3 supervisors in various areas of production.  A weighting was applied to reflect the percentage of overall production hours taken up by each process.  A further weighting factor was also incorporated to reflect the level of skill required in the particular task/process.  Mr Cousins and Mr Johnston deliberately decided not to use length of service as a criterion. 

15.	Scores relating to each of the areas in the selection matrix were allocated to each of the 3 supervisors by Mr Cousins and Mr Johnston and the completed scoring matrix was signed by both Mr Cousins and Mr Johnston on 23 January 2009.  The claimant’s overall score was 44 and the scores of the other 2 supervisors were 60 and 73 respectively.  The claimant had considerably longer service than at least one of the other supervisors.

16.	On 30 January 2009, the claimant was working as usual as a supervisor on the shop floor.  He was asked to leave the shop floor and come to a meeting with Mr Cousins.  The claimant was given a document dated 30 January 2009 and headed “Redundancy Notification”.  This document stated “Due to the selection process it has been decided that you are to be made redundant.  This will take effect immediately.  You will not be required to work your notice period; you will receive payment in lieu of notice.”  Prior to being called to this meeting with Mr Cousins, the claimant had received no warning whatsoever of impending redundancies nor had he been given any indication that he might be affected by redundancy.

17.	Mr Cousins had decided in advance not to go into much detail at this meeting and the claimant was therefore invited to a further meeting the next week (on 4 February 2009) to discuss “your redundancy situation”.  The claimant was informed of the right to be accompanied to this second meeting.  The claimant was also told that, at the meeting on 4 February, he would be informed how the selection criteria were applied to him and the respondent would explain how his total redundancy payment had been calculated.  The Redundancy Notification document stated that, at the next meeting, the claimant would be asked if he wished to lodge an appeal against “this decision”.  No monies would be paid if an appeal was to be lodged.  However, if no appeal was to be lodged, the claimant would receive payments forthwith.  The claimant signed the Redundancy Notification document to confirm that he understood the content.  

18.	Following this meeting, the claimant was told to clear his locker, leave the premises and not to return to his work station.  The tribunal accepted the claimant’s evidence that he went from supervising another employee on the shop floor to being out in the car park within a period of 15 minutes.  The claimant was left in a very shocked state.

19.	The claimant did attend the further meeting with the respondent arranged for 4 February 2009.  The claimant was not accompanied at the meeting.  Mr Stuart Cousins provided the claimant with further detail of the redundancy selection process and the points allocated on the scoring matrix.  At this meeting, the claimant made a number of points.  Firstly, he stated that, with the right training, he could have done any of the relevant tasks.  Secondly, the claimant also complained that he had received limited formal training during his time as a supervisor.  This, he claimed, was in contrast to his 2 supervisor colleagues.  At the end of the meeting, the claimant was asked whether he wanted to end the consultation process or whether he wanted to appeal.  The claimant indicated that he wanted to appeal.

20.	In his letter of appeal, the claimant stated that he wished to appeal the decision that he should be selected for redundancy.  He asked for further detail of the points allocated to the other supervisors.  He said he felt that the points allocated to him had been kept deliberately low since certain jobs he had been doing for years had not been included in the point scoring.  He also felt the criteria had not been evaluated consistently between himself and the other supervisors.

21.	The claimant’s appeal was heard on 17 February 2009 by Mr Ken Cousins and Mr Gerard Mackle was also present at the meeting.  During the meeting, the claimant made a number of points about areas where he felt he should have scored higher points.  He also put forward his arguments about the scoring of one of the other supervisors in particular, including points allocated in respect of sickness absence.  Generally, the claimant concluded by stating that he felt he had been unfairly treated.

22.	Mr Ken Cousins indicated to the claimant that he would have to seek further information about the issues raised by the claimant and would give the matter further consideration.  

23.	Following the appeal meeting, Mr Ken Cousins and Mr Mackle reviewed the scoring matrix and made certain amendments to the scoring.  These changes increased the claimant’s score from 44 to 50.  However, the claimant’s overall score remained lower than that of the other 2 supervisors.

24.	The decision of Mr Ken Cousins was conveyed to the claimant by letter dated 20 February 2009.  Mr Cousins confirmed that, despite the claimant’s score having been increased in light of the information presented at the appeal meeting, this did not change the outcome.  Mr Cousins concluded that the claimant’s selection for redundancy was fair and his appeal was not successful.  

25.	On 25 February, the claimant was issued with his redundancy monies and his P45.  The claimant received the following sums:-

	Redundancy payment  - £5,196.62
	
	(calculated on the same basis as a statutory redundancy payment save that the statutory cap was not applied – based on gross weekly pay of £451.88 per week)

	Pay in lieu of notice - £4,518.75
	
	(based on 10 weeks gross pay)

26.	On or about 2 March 2009, the claimant sent a grievance letter to the respondent indicating that he wished to raise a grievance on the grounds of unfair dismissal.  The respondent responded by offering the claimant a meeting to discuss his grievance if he had something new to discuss.  The claimant did not provide any further response and the respondent then wrote to the claimant on 9 April 2009 indicating that unless they heard anything further from the claimant by 16 April, they would consider the matter closed.

Statement of Law

27.	The statutory dismissal procedure introduced by the Employment Rights (Northern Ireland) Order (“the 2003 Order”) applies in this case.  In basic terms, the statutory procedure set out in Schedule 1 of the 2003 Order requires the following steps:-

Step 1 – written statement of grounds for action and invitation to meeting – the employer must set out in writing the grounds which lead the employer to contemplate dismissing the employee

Step 2 – meeting – the meeting must take place before action is taken.  The meeting must not take place unless –

(a)	the employer has informed the employee what the basis was for including in the statement the grounds given in it, and

(b)	the employee has had a reasonable opportunity to consider his response to that information

After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision.

Step 3 - appeal – if the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.  After the appeal meeting, the employer must inform the employee of his final decision.  The employee must be afforded the right to be accompanied at any meetings under the statutory dismissal procedure.

28.	By article 130A (1) of the Employment Rights (Northern Ireland) Order1996 (“the Order”), where the statutory dismissal procedure is applicable in any case and the employer is responsible for non-completion of that procedure, the dismissal is automatically unfair.  A tribunal is required to consider whether the dismissal is automatically unfair under article 130A even where this issue has not been specifically raised by the claimant – see Venniri v Autodex Ltd (EAT 0436/07). 

Further, by Article 17 of the 2003 Order, where the tribunal is satisfied that the non-completion of an applicable statutory procedure is wholly or mainly attributable to failure by the employer, it shall increase any award which it makes to the employee by 10% and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount up to an increase of 50%.

29.	Leaving to one side the question of potentially automatically unfair dismissal as referred to above, pursuant to Article 130(1) of the Order, it is for the employer to show the reason for the dismissal and that it is a reason falling within para (2).  A reason falls within para (2) if it is that the employee was redundant.  By article 174 of the Order, an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to:-

(b)	“the fact that the requirements of that business-

(i)	for employees to carry out work of a particular kind
              		have ceased or diminished”

30.	Article 130(4) of the Order states as follows:-

“where the employer has fulfilled the requirements of para (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –

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

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

31.	In the case of Williams v Compair Maxam Ltd [1982] IRLR 83, the EAT set out the standards which should guide tribunals in determining whether a dismissal for redundancy is fair (under article 130(4) of the Order).  These guidelines have been expressly approved by the Northern Ireland Court of Appeal in Robinson v Carrickfergus Borough Council [1983] IRLR 122.   Browne-Wilkinson J expressed the position as follows:

“... there is a generally accepted view in industrial relations that, in cases where the employees are represented by an independent union recognised by the employer, reasonable employers will seek to act in accordance with the following principles:

1	The employer will seek to give as much warning as possible of impending redundancies so as to enable the union and employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and, if necessary, find alternative employment in the undertaking or elsewhere.

2	The employer will consult the union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible. In particular, the employer will seek to agree with the union the criteria to be applied in selecting the employees to be made redundant. When a selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria.

3	Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency at the job, experience, or length of service.

4	The employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider any representations the union may make as to such selection.

5	 The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment.”

In the case of Polkey v AE Dayton Services Ltd [1987] 3 All ER 974, HL, Lord Bridge emphasised the importance of consultation in redundancy cases saying:

'... in the case of redundancy, the employer will normally not act reasonably unless he warns and consults any employees affected or their representative ...'

32.	Pursuant to article 146 of the Order, a tribunal which finds a complaint of unfair dismissal to be well-founded may, where the claimant expresses a wish for the tribunal to make such an order, make an order under article 147 for the reinstatement of the claimant (in accordance with article 148) or the re-engagement of the claimant (in accordance with article 149).

33.	Article 150 of the Order states that, in exercising its discretion as to whether or not to order reinstatement to the claimant’s former job in any case, the tribunal shall take into account the following:-

a.	whether the claimant wishes to be reinstated;

b.	whether it is practicable for the employer to comply with an order for reinstatement, and

c.	where the claimant has caused or contributed to the dismissal, whether it would be just to order his reinstatement.

34.	If the tribunal decides not to make an order for reinstatement, it is required by article 150(2) to consider whether to make an order for re-engagement to employment which is comparable or otherwise suitable for the claimant and, if so, on what terms.  In so doing the tribunal shall take account of the factors outlined at in the previous paragraph.

35.	The manner in which the tribunal should approach the task of considering whether to order reinstatement or re-engagement was considered by the Court of Appeal in the case of Port of London Authority v Payne [1994] IRLR 9.   The Court of Appeal confirmed in this case that the issue of practicability is a question of fact for the tribunal. However, Neill LJ emphasised that the tribunal should, in reaching its conclusion, 'give due weight to the commercial judgment of the management' unless they were disbelieved.  The meaning of “practicability" was also considered in the Port of London case where Neill LJ said this:

		'The standard must not be set too high……... The employer does not have to show that reinstatement or re-engagement was impossible. It is a matter of what is practicable in the circumstances of the employer's business at the relevant time'.

36.	If the tribunal determines that it is not appropriate to order either reinstatement or re-engagement, it shall consider an award of compensation.  By article 152 of the Order, where a tribunal makes an award of compensation for unfair dismissal, the award shall consist of a basic award and a compensatory award.  Article 156(4) of the Order states that the basic award shall be reduced by any payment already made by the employer to the employee on the ground that the dismissal was by reason of redundancy.

37.	By article 157 of the Order, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the claimant in consequence of the dismissal in so far as that loss is attributable to the action taken by the employer.  In ascertaining the claimant’s loss, the tribunal is required to apply the common law rules in relation to the claimant’s duty to mitigate his or her loss.

38.	In the Polkey case, the House of Lords confirmed that, in certain circumstances a tribunal may properly find that even though the dismissal would have taken place in any event, adherence to fair procedures would have delayed its implementation. In these circumstances compensation should be awarded for the additional period of time for which the employee would have been employed to allow for a fair procedure to be completed.

Conclusions

Automatically unfair dismissal

39.	In this case, it was accepted by the respondent that the claimant had been dismissed.  The tribunal was therefore required to consider whether:-

(a)	the statutory dismissal procedure was applicable in this case;

(b)	if so, whether the statutory dismissal procedure had been completed in this    case; and

(c)	if not, whether any failure to complete the statutory procedure was due to fault on the part of the respondent.

40.	The tribunal reviewed generally the requirements of the statutory dismissal procedure as outlined at para 27 above.  The tribunal noted that the claimant had been given a document on 30 January which stated that “it has been decided that you are to be made redundant.  This will take effect immediately.  You will not be required to work your notice period; you will receive payment in lieu of notice”.   The tribunal considered the requirement under step 1 of the statutory procedure for a written statement of the grounds which lead the employer to contemplate dismissing the employee.  It was clear to the tribunal that the notice given to the claimant did not set out the grounds on which his dismissal was being contemplated.  Rather, this document effectively confirmed a decision which had already been taken, that is that the claimant was to be made redundant.  Indeed, this was to take effect immediately.  The dismissal was not stated to be subject to any further discussion or confirmation.  The language used in the notice was unambiguous.  

41.	Further, the tribunal considered the requirements of step 2 of the statutory procedure.  In particular, the tribunal noted that the step 2 meeting must take place before action is taken.  In this case, the only meeting which could conceivably have met the requirements of step 2 took place on 4 February 2009.  Before that meeting, the claimant had received the Notice referred to in the previous paragraph, he had been asked to leave the respondent’s premises, to clear his locker and told that he was not expected to return to work.  The tribunal had little hesitation in concluding that, in effect, the dismissal of the claimant was put into action before the meeting took place on 4 February.  It was clear to the tribunal that the dismissal of the claimant was to be effective unless and until it was over-turned on appeal.  

42.	Accordingly, the tribunal concluded that there was a very serious failure to comply with steps 1 and 2 of the statutory procedure in this case.  The statutory procedure was therefore not completed and the tribunal reached the clear conclusion that such non-completion was wholly attributable to the respondent.  Therefore, in accordance with article 130A(1) of the Order, the tribunal concluded that the dismissal in this case was automatically unfair.

“Ordinary” unfair dismissal

43.	Notwithstanding its conclusion in relation to automatically unfair dismissal, the tribunal considered it was appropriate to provide the parties with an indication of its view as to whether the dismissal of the claimant would have been fair or unfair in accordance with established principles of unfairness.

44.	The tribunal had little difficulty in concluding that the respondent had shown that the reason for dismissal in this case was redundancy.  It was clear that the claimant was dismissed at the same time as a number of other employees as a result of a significant downturn in business.  The tribunal was therefore satisfied that there was in this case a potentially fair reason for dismissal in accordance with article 130(1) and (2) of the Order.

45.	The tribunal then proceeded to address the question whether the dismissal was fair or unfair in accordance with article 130(4) of the Order.  In this regard, the tribunal reviewed the principles set out in the Williams and Polkey  cases referred to at para 31 above and considered each of the 5 principles set out in the Williams case in turn.  It is clear that a fair redundancy dismissal procedure would have involved early warning of the impending redundancy situation and consultation meetings with individual employees as well as with the Union.  In this case, the tribunal had found as a fact that the claimant had been given no warning of impending redundancies prior to 30 January 2009.  Further, there was no consultation with the claimant on an individual basis before that date.  In this regard, the tribunal had a great deal of sympathy with the claimant in relation to the position he found himself in on 30 January 2009 when, within minutes of leaving the shop floor, he was informed “out of the blue” of the decision to make him redundant.  The tribunal wishes to make clear its disapproval of this aspect of the procedure followed by the respondent in this case.

46.	In relation to selection for redundancy, the tribunal took into account the fact that the respondent had consulted with the Union GMB in relation to the procedure for making redundancies and the selection criteria.  Further, that the selection criteria had been agreed.  Generally, the tribunal was inclined to the view that the selection criteria applied by the respondent were both fair and objective.  The tribunal could understand and sympathise with the claimant’s annoyance that he had been selected for redundancy rather than another supervisor with much shorter service with the respondent.  However, looking at the matter objectively, the tribunal was of the view that the application of the criteria to the claimant, as adjusted on appeal, was fair overall.

47.	The tribunal heard no evidence as to whether the respondent actively considered the availability of suitable alternative employment for the claimant.  However, in view of the overall reduction in jobs within the respondent at the relevant time, the tribunal was left with the impression that, realistically, there was little or no chance that suitable alternative employment could have been found for the claimant.

48.	Therefore, the tribunal would have concluded that the procedure followed by the respondent fell short of what would be expected of a reasonable employer in failing to provide early warning to those employees affected by the impending redundancy situation and in failing to consult with the claimant on an individual basis before the decision was taken to make him redundant.
  
49.	Accordingly, had it been required to reach formal conclusions in this regard, the tribunal would have concluded that the dismissal of the claimant was unfair in accordance with “ordinary” principles of fairness in relation to redundancy dismissals.

Remedy

50.	The claimant in this case sought reinstatement to his former post.  The tribunal therefore considered whether it should make an order for reinstatement in this case.  In exercising its discretion in this regard, the tribunal considered the factors set out in article 150 of the Order (see para 33 above).  It was clear in this case that the claimant had not caused or contributed to his dismissal to any extent.  Indeed, the claimant had an entirely clear record and the respondent made it clear during the course of the hearing that the claimant was a valued and long-serving employee.  It was therefore clear that both factors (a) and (c) were in favour of an order for reinstatement being made.

51.	However, the tribunal then had to consider factor (b) that is whether it was practicable for the employer to comply with an order for reinstatement.  The tribunal was mindful that the claimant was employed as a supervisor of shop floor workers.  Therefore, the respondent’s needs in respect of the claimant’s grade of staff was very much dependant on the numbers of staff employed on the shop floor on the relevant shift.  The tribunal found as a fact that the overall numbers of staff employed by the respondent had reduced from 143 in August 2009 to 103 by the date of hearing.  Against this background of a significant reduction of overall staff numbers, the tribunal was satisfied that there was no work available for the claimant and it would not therefore be practicable for the respondent to comply with an order for reinstatement.

52. 	In accordance with article 150(2) of the Order, the tribunal then addressed the question whether it should make an order for re-engagement of the claimant.  The tribunal noted that re-engagement is to employment which is comparable or otherwise suitable for the claimant.  In this case, the tribunal was of the view that comparable employment for the claimant would have been at supervisor or equivalent level.  For the reasons set out in the previous paragraph, the tribunal concluded that it would not be practicable in the present circumstances for the respondent to comply with an order for re-engagement.

53. 	The tribunal therefore concluded that compensation was the appropriate remedy in this case.  

Basic Award for unfair dismissal

54.	In this case, the respondent had made various payments to the claimant at the time of his dismissal.  In particular, the claimant had received a redundancy payment of £5196.62 which was calculated on the same basis as a statutory redundancy payment save that this payment was not subject to the statutory cap on a weeks pay, but rather was calculated on the basis of the claimant’s full weekly gross pay.  Pursuant to article 156(4) of the Order, it is clear that any sums paid by the employer by way of redundancy payment should be set off against the basic award.  Since the claimant in this case had already received a payment in excess of the basic award, no further payment is due to the claimant in respect of the basic award.

Compensatory Award for unfair dismissal

55.	The tribunal then addressed the compensatory award.  Having considered the facts of this case, the tribunal was satisfied that the respondent’s failings in this case were essentially procedural in nature.  The tribunal was of the view that this was a case where it was highly likely that the dismissal would have occurred in any event even if a fair procedure had been followed.  Accordingly, it was the tribunal’s conclusion that this was a case where adherence to a fair procedure would have delayed the dismissal of the claimant. 

56.	The tribunal therefore considered that it would be just and equitable to award the claimant compensation for the period of time which would have been required to allow for a fair procedure to be completed.  As set out at para 45 above, the tribunal’s view was that a fair procedure would have included early warning of the impending redundancy situation and individual consultation meetings with the claimant prior to any decision in relation to redundancies.  These steps should have been taken before the commencement of the statutory dismissal procedure.  The tribunal was satisfied that these additional steps would have taken 30 days to complete and therefore the claimant’s employment would have continued for a further 30 days if a fair procedure had been implemented.

57.	Accordingly, the tribunal considered that the appropriate compensatory award in this case was I month’s pay (30 days).

58.	The compensatory award is calculated as follows:-

Claimant’s net monthly pay = £1,300

Therefore, compensatory award of 1 month’s net pay = £1,300

Loss of statutory rights

59.	The tribunal decided to make an award in respect of loss of statutory rights of £250.

Increase in award

60.	As set out above, the tribunal had no hesitation in concluding that the respondent was wholly responsible for the non-completion of the statutory dismissal procedure in this case.  The tribunal considered the increase in the amount of the award which would be appropriate in this case in accordance with article 17 of the Order – see para 28 above.  The tribunal had concluded that the respondent had failed to comply with steps 1 and 2 of the statutory dismissal procedure, although it had fully complied with the appeal stage of the procedure (step 3).  In these circumstances, the tribunal’s conclusion was that the appropriate percentage increase in the overall award to the claimant should be around the mid point of the range between 10% and 50%.  The tribunal determined that the appropriate increase in the award in this case was 25%.

61.	The respondent is therefore ordered to pay to the claimant a total sum of £1,937.50 calculated as follows:-

Compensatory award =            	£1,300
      
Add loss of statutory rights =	£ 250 
     
Total award                         =	£1,550
      
Increase in award               =	25%
     
GRAND TOTAL                  =	£1,937.50   

Recoupment

62.	This award is subject to the Employment Protection (Recoupment of Jobseekers Allowance and Income Support) Regulations (Northern Ireland) 1996.

The claimant indicated in his claim form and confirmed in evidence that he had received Jobseekers Allowance following his dismissal by the respondent.  The award in this case is therefore subject to recoupment.  

The dates of the prescribed element are 28 February 2009 to 28 March 2009.  

The prescribed element of the award is £1,550.

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

Chairman:

Date and place of hearing:	27 November 2009, Belfast.

Date decision recorded in register and issued to parties: