THE INDUSTRIAL TRIBUNALS

CASE REF:  1399/10

CLAIMANT:			Alan McAllister

RESPONDENT:		A1 Estate Agents Limited

DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent and compensation of £12,272.08 calculated as set out in this decision is awarded to the claimant (subject to recoupment of Jobseekers Allowance).   

Constitution of Tribunal:
Chairman:		Mr N Kelly
Members:		Dr D Mercer
			Mrs S Doran

Appearances:
The claimant appeared in person.
The respondent had not entered a valid response.  He attended the hearing but was not permitted to take part in the proceedings.

Issue to be determined

(1)	The issue to be determined by the tribunal was whether or not the claimant had been unfairly dismissed contrary to Article 131 of the Employment Rights (Northern Ireland) Order 1996.  

Preliminary Issues

(2)	The respondent did not enter a response to this claim and did not apply within the statutory time limit for an extension of time within which to do so.  Mr Thomas William Faulkner, the owner of the respondent company, attended the hearing.  He produced a blank response form from within a bundle of papers that he was holding and announced that “this is the first time I have seen this”.  He explained that the tribunal papers must have been filed away and forgotten.  No satisfactory explanation was given for his failure to enter a response.  The Chairman explained that he had no right to take any part in the proceedings.

(3)	The claimant lodged his claim form on 20 May 2010 in the Tribunal Office in Belfast.  He explained in evidence that he had carried out an internet search on the steps he should take following his dismissal.  He had been directed to the ETS site in Great Britain and, following their instructions, had completed an online claim form and submitted that claim form on line well within the three month statutory limit.  The ETS had written back to him some four weeks later, pointing out that they had no jurisdiction to determine a claim in Northern Ireland.  The claimant then lodged his claim with this tribunal on the same day that he received the letter from the ETS.  The tribunal is concerned that there is genuine scope for confusion on the part of a claimant who wants to complete an online claim form and, in the circumstances of this case, concludes that it was not reasonably practicable for the claimant to have lodged his claim in Belfast within the three month time limit.  Time has therefore been extended to 20 May 2010.  

Relevant findings of fact

(4)	The claimant was employed by the respondent as a general office worker from an unknown date in June 2007 to 3 February 2010.  In the absence of any more specific evidence in relation to the date on which the claimant’s employment commenced, the tribunal will assume that his employment commenced on 30 June 2007.  

(5)	On 3 February 2010, Mr Faulkner asked the claimant to accompany a client to a building which had been used to store furniture for properties which were rented out by the respondent company to private tenants.  The claimant found that the locks on this building had been changed and that the furniture had been removed.  The claimant informed Mr Faulkner.  Mr Faulkner lost his temper and told the claimant that he was “going to be someone else’s problem”.  The claimant asked Mr Faulkner if he was being dismissed.  Mr Faulkner agreed.

(6)	The respondent did not comply with any of the steps in the statutory dismissal procedure.  

(7)	The claimant’s weekly pay was £211.66 gross and £183.10 net.  

Relevant Law

(8)	Article 130(A) of the 1996 Order provides:-

“(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 1 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 had followed the procedure.”

(9)	Article 17 of the 2003 Order provides:-

“(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 procedures was wholly or mainly attributable to failure by the employer to comply with the requirements of the procedure, 

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

(4)	The duty under paragraph (2) and (3) to make a reduction or increase of 10% 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.”

(10)	The standard dismissal procedure set out in full in Schedule 1 to the 2003 Order provides for a three stage procedure.  The first stage is a written statement of the circumstances which lead the employer to contemplate dismissing the employee.  That written statement must be sent to the employee together with an invitation to attend a meeting to discuss the matter.  The second stage is the meeting at which the employer informs the employee of the decision and notifies the employee of his/her right to appeal against the decision.  The third stage is the appeal and notification by the employer to the employee of the decision on appeal.  

(11)	Article 154(1A) of the 1996 Order provides that where an employee is regarded as automatically unfairly dismissed because of the non completion by the employer of the statutory dismissal procedure, the basic award, if it were otherwise to be less than the amount of four weeks’ gross pay, shall be increased to four weeks’ gross pay, unless the tribunal considers that such an increase would result in injustice to the employer.

Decision

(12)	The tribunal concludes that the claimant was dismissed on 3 February 2010.  

(13)	That dismissal was automatically unfair because of the respondent’s failure to comply with the statutory dismissal procedure.  There had been no written statement, no interview and no appeal.  

(14)	Even if the dismissal had not been automatically unfair, the dismissal was, on the uncontested evidence of the claimant, substantively unfair.  It was outside the band of reasonable responses open to an employer in the circumstances of this case.

(15)	Basic Award (below age 22)

	½ a week’s gross pay x 2 completed years’ service =		£211.66

	Statutory uplift to 4 weeks minimum
	Total									£846.64

	Compensatory Award 

	Past Loss

	29 weeks to date of hearing x £183.10 net weekly pay =      £5,309.90

	Future Loss

	The tribunal is satisfied that the claimant has taken reasonable steps to mitigate his loss by seeking other employment through the Job Centre and on websites.  It concludes that, on the balance of probabilities, the claimant should be able to obtain alternative employment within a further 23 weeks (making 52 weeks in total)

23 weeks future loss x £183.10 =				       £4,211.30

Total compensatory award					       £9,521.20

Statutory Uplift

The tribunal in all the circumstances of the case considers that a 20% statutory uplift would be appropriate.  

20% x £9,521.20 =  £1,904.24 = 		   		       £11,425.44
	   	  
(16)	The claimant is in receipt of Jobseekers Allowance and for the purposes of a Recoupment Notice:

	(i)	The monetary award is £11,425.44.

	(ii)	The prescribed element is £5,309.90.

(iii)	The relevant period for the prescribed element is 3 February 2009 to 21 September 2010.

	(iv)	The monetary award exceeds the prescribed element by £6,115.54. 

(17)	The parties attention is drawn to the Notice below which forms of the decision of the tribunal.

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

Chairman:

Date and place of hearing:  21 September 2010, Belfast		

Date decision recorded in register and issued to parties:

Case Ref No: 1399/10
CLAIMANT: 	Alan McAllister 
RESPONDENT: 	A1 Estate Agents Limited
ANNEX TO THE DECISION OF THE TRIBUNAL
STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S 
ALLOWANCE/INCOME SUPPORT
1.	The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996. 
                                                                                                  £ 
(a) Monetary award 						11,425.44 
(b) Prescribed element 					  5,309.90 
(c) Period to which (b) relates: 				3 February 2009 -21 
                                                                                                    September 2010
(d) Excess of (a) over (b) 					   6,115.54 
The claimant may not be entitled to the whole monetary award. Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department of Social Development has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department. The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant. 
2.	The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing. When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.
3.	The claimant will receive a copy of the recoupment notice and should inform the Department of Social Development in writing within 21 days if the amount claimed is disputed. The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the claimant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the claimant and regardless of any dispute between the claimant and the Department.