THE INDUSTRIAL TRIBUNALS

CASE REF:	3826/09

CLAIMANT:				Jenny Ray

RESPONDENT:			SSP UK Ltd

DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed but she contributed to her dismissal to the extent of 25% and a further 25% reduction was made to reflect that had as much investigation as was reasonable in all the circumstances of the case been made there was a reasonable chance  that further information could have been forthcoming to cast doubt upon the claimant’s culpability as perceived by the respondent to the extent that she might have kept her job. The claimant’s claim to have been discriminated contrary to the Race Relations (Northern Ireland) Order 1997 is hereby dismissed.  The respondent is hereby ordered to pay the sum of £4,187.25 to the claimant.  The claimant’s claim in respect of an entitlement to eight days’ holiday pay was not pursued and is hereby dismissed.

Constitution of Tribunal:
Chairman:			Ms W A Crooke	
Members:			Ms M Mulligan
				Mr J E Hughes

Appearances:			
The claimant was represented by Mr B O’Hare, Barrister-at-Law instructed by Norman Shannon and Co Solicitors.
The respondent was represented by Mr K Nathan, Employment Consultant.

Sources of Evidence

1.	The claimant gave evidence on her own behalf.  Mr Graeme Scott, Regional Controller of the respondent and Mrs Ruth Sykes, General Manager gave evidence on behalf of the respondent.  Bundles of documents were before the tribunal.

The Claim and the Defence

2.	The claimant’s claims were that she had been unfairly dismissed and that she had been discriminated against contrary to the Race Relations (Northern Ireland) Order 1997.  The respondent denied these claims.  

3.	The applicable law in respect of unfair dismissal is found in the Employment Rights (Northern Ireland) Order 1996 at Articles 126-130.

4.	The applicable law in respect of Race Discrimination is found in the Race Relations (Northern Ireland) 1997 and in particular in Articles 6(2) and 52A of that Order.

5.	In reaching its decision the tribunal has had regard to the following case law:-

Airbus Onward UK Limited-v-Webb [2008] EWCA CIV 49. 
 
British Home Stores-v-Burchell [1980] ICR 303

Madarassy-v-Nomura International plc [2007] EWCA CIV 33

Findings of Fact

(1)	The claimant was employed by the respondent as an Administration
 Manager at Belfast International Airport and at the time of her dismissal had
 been employed for 4½ years.

(2)	The respondent carries out the business of running a number of food and beverage outlets at the airport.

(3)	The claimant’s role involved management of the office and finance for nine units at the airport.  She was responsible for storing reports of figures, invoices and data entry, including stock figures on to the respondent’s computer system.  It was not disputed that the claimant was a very good employee.  In July 2008 the claimant was promoted and given additional responsibilities including the Human Resource function for 70 employees.  At the time of her dismissal she had a clear disciplinary record.

(4)	The claimant took three weeks’ annual leave from 21 November 2008-
15 December 2008.

(5)	The claimant had two administrative assistants – Alison MacNamee and Margaret Williamson.

(6)	The Stores Manager was Frank Tyson and stocktaking was done on a weekly basis.  Frank Tyson would insert handwritten figures on to a blank stock sheet form which he had previously designed.  He would then give that sheet to the claimant who entered this data in to the computer and would print out a spreadsheet that Frank Tyson was supposed to sign to verify that the figures were correct. Once that had been done, the claimant was required to enter this verified figure into the Lynx computer system.  Once the General Manager of the respondent’s operation at the airport (Ms Sharon Wright - at the time of the claimant’s dismissal) had verified the figures, the claimant would exit the system.  Once the Lynx system was closed down, certain documents would automatically print off from the computer.  This was the basic operation carried by the claimant every week, and although she would mostly have carried out this operation, she did have occasional help from her assistants Alison MacNamee and Margaret Williamson.

(7)	It was not disputed that the claimant’s office and the computer system were accessible to all, although the respondent contended only the claimant would have had the training and ability to operate the system.  Given that the claimant’s evidence that Alison MacNamee and Margaret Williamson would sometimes be called in to help complete her computerisation of the stocktaking results, was not controverted by the respondent, the tribunal finds that at the very least the claimant and her two assistants would have been capable of operating the computerisation of the stocktaking and the entry of the figures into the Lynx system.  There was no compelling evidence to show that the General Manager Sharon Wright or the Stores Manager Frank Tyson had the ability to carry out this operation but there was no compelling evidence to show that they had not.   Both of them seemed to have been recent appointees to the respondent, being in post around 
3 months at the time of the events in question.

(8)	Although the oral evidence to the tribunal was that Alison MacNamee picked up an error on the system herself and brought it to the attention of Graeme Scott the Regional Controller, when the tribunal perused the notes of the investigation, it was found that Frank Tyson the Stores Manager reported a query to her and this triggered in turn her report to Graeme Scott.

(9)	Graeme Scott investigated Alison MacNamee’s query briefly and then looked at it in greater detail later on that day.  His role in the respondent is to protect  the gross profit of each unit.  His job can involve investigation of anomalies, areas of theft and controlled audits.  For the first 3½ years of his employment with the respondent he was himself an Administration Manager.  When he initially received Alison MacNamee’s report on Friday 
5 December 2008, he was told that she believed that the gross profit should be greater than it was.  When he looked at the previous week’s figures for the respondent’s operation at the Belfast International Airport, he noticed a big drop from the stockholding in the week ending 21 November 2008.  Initially he believed that a figure had been put in in error for the previous week.

(10)	When he requisitioned stock sheets for the 3-4 weeks, he noticed that the figure on the stock sheets was not the same as the figure in the Lynx system. Therefore he alerted his Line Manager and Sharon Wright, the General Manager of the respondent’s operation at the airport.  He also told the Regional Director of the respondent of the impact of what he had found and that there could be a possible trading deficit.  He told Sharon Wright that he would commence a formal financial investigation.  His first step was to go back to the start of the financial year to see what the stockholding on the unit actually was.  The results of his investigations suggested that for eight consecutive weeks a figure was wrongly put in to the system with the result that the variance between actual stock and the stock on the Lynx system was getting bigger and bigger.  As an aide memoire to himself Mr Scott prepared the table of variances and we set this out as follows:-

Week	
Sheet Total	
Inputted	
Variance	
Actual	Overinflated
By	
01/10/08	£15,631.11	£31,717.01	£16,085.90	£15,631.11	£16,085.90	
08/10/08	£14,476.66	£34,476.66	£20,000.00	£14,476.66	£20,000.00	
15/10/08	£10,775.09	£34,766.66	£23,991.57	£10,775.09	£23,991.57	
22/10/08	£10,990.08	£35,295.41	£24,305.33	£10,990.08	£24,305.33	
29/10/08	£12,434.90	£40,799.30	£28,364.40	£12,568.17	£32,346.73	
5/11/08	£12,879.57	£44,914.90	£32,035.33	£12,568.17	£32,346.73	
12/11/08	£33,693.74	£48,093.74	£14,400.00	£13,693.74	£34,400.00	
19/11/08	£32,122.46	£49,990.85	£17,866.39	£12,122.46	£37,868.39	

6.	Mr Scott discovered that not only were the wrong figures being inputted into the Lynx system, but that a hidden formula was inflating the figures by £20,000 and that was especially visible in weeks 7 and 8 of his table.

7.	Mr Scott interviewed the claimant, Alison MacNamee and Frank Tyson as part of his investigation.  The claimant contended in her evidence that Sharon Wright had told her that Mr Scott had a few queries and she did not realise that she was facing a full blown investigation.  The claimant did not have any answers to the queries put to her by Mr Scott in the investigation, but she did point out that anyone could have accessed her computer to insert the wrong figures and there had been considerable difficulties with the computer crashing.  She also said that none of the figures were her responsibility.  She simply produced them and did not analyse them.  Mr Scott noted that this was a very different situation to what the claimant had previously presented to him in his dealings with her.  The claimant appeared to Mr Scott to be a person that took her job seriously and personally.

8.	As another part of his investigation, Mr Scott had the timecards of Margaret Williamson, the claimant and Alison MacNamee checked for the eight week period.  This check revealed that of the three, only the claimant had been in attendance for the full period of eight weeks.  Alison MacNamee had three weeks of sickness and Margaret Williamson took two weeks of leave.

9.	The tribunal noted that Margaret Williamson was not spoken to at all by Mr Scott.  The reason for this was Mr Scott’s belief that she was not involved in any way in the stock entry figures.  However the claimant pointed out from time to time she would have been involved in helping complete the claimant’s work if the claimant was otherwise detained.  Alison MacNamee was interviewed.  She alleged that during a previous year she believed that the claimant had altered information in the computer system.  However she had nothing to back up this allegation with and Mr Scott discounted it.

10.	Mr Scott also found out that for a period Frank Tyson had not signed off on his stock sheets.  As a result, the entry of his figures had been authorised by  Sharon Wright the General Manager but there was no evidence that Mr Scott had ever asked Frank Tyson and Sharon Wright why this was the case.

11.	Sharon Wright, the General Manager, was not interviewed as part of the investigation.  The reason Mr Scott gave for this omission was that she was fairly new in post and was still learning the job.  He considered her financial skills were poor.  It was acknowledged by the respondent that the claimant (if indeed she was the culprit) had not made any financial gain.  Conversely from the evidence, the person who would have had most motive to massage the figures relating to the profitability of the airport units was Sharon Wright.

12.	The claimant suggested that the difficulties they had had with the computer system crashing might have been responsible for the wrong figures going in to the system.  Mr Scott had the computer department check out this contention.  It is not necessary for a computer technician to attend at the premises of the airport to do this.  This is a system that can be accessed remotely, and having done this, Mr Scott was informed that the database was clean and there was no evidence of tampering.

13.	By a notice dated 19 December 2008 the claimant was required to attend a disciplinary hearing.  The charge in this notice was:-

“Entry of figures inflating the stock over a period of eight stock takes.  The overall inflation amounting to over £30,000.00”.  The claimant was also warned that this was a serious matter and that if this conduct was deemed to be gross misconduct, she could face dismissal.  She was advised of her right of accompaniment.  The disciplinary interview took place on 29 December 2008 in front of Ruth Sykes, General Manager, and Fiona McGregor as note taker.  Teresa Mulholland a fellow employee attended with the claimant.  This disciplinary hearing lasted between 5-6 hours.  At the very outset, it appeared that the claimant had not been given copies of all the documentation that was going to be relied at this hearing.  Although before the tribunal the claimant contended this was unfair, the tribunal has noted that Mrs Sykes offered the claimant an adjournment to check the documentation and this offer was rejected by the claimant.  This was a wide ranging meeting and the claimant was given an opportunity to put her case.  In response to a query by Teresa Mulholland Mrs Sykes contacted the IT department to enquire about the function attached to the F9 key on the computer.  The function attached to this key was to clear the theoretical stock and was not relevant to the case.  Mrs Sykes’ decision was that the claimant was guilty of gross misconduct and she was dismissed from the company with effect from 29 December 2008.  The reason given in the letter of 30 December 2008 was as follows:-

“Following a reasonable investigation there is a genuine belief that you were responsible for the entry of false stock figures in Lynx over a period of eight weeks.  The falsification of the stock figures inflated the stock at site potentially masking a stock management issue at site and leaving it undetected for an unacceptable period of time.  Throughout, your assertion  has been that you entered the stock figure from the stock sheet despite that not being the stock figure in Lynx at closure.  The falsification of figures is considered as gross misconduct for which you can be dismissed”.

14.	The claimant appealed this decision and her appeal was heard by Graham Frazer, Operations Manager, on 26 January 2009.  In her letter of 15 January 2009 she set out the five issues upon which her appeal was based.  Having perused this letter of 15 January 2009 and having regard to the notes of the appeal, the tribunal considers the appeal dealt with all the issues raised by the claimant.  The appeal was not upheld and that decision was communicated to the claimant by letter dated 29 January 2009.	

15.	During the appeal, the claimant raised the issue that she felt she was being less favourably treated than other employees of Indian Ethnic Origin.  She said that she had been dismissed for gross misconduct for a first offence and she had a clean disciplinary record, whereas Mr Vikas Bhatia and Mr Yogesh Kadwe had avoided dismissal when their disciplinary records showed that they had final written warnings.  There was no evidence that this allegation had been investigated as part of the appeal hearing.  However, when Mr Kadwe had made a similar complaint of  race discrimination during a disciplinary hearing, it was investigated.

16.	The tribunal finds that the statutory dispute resolution procedures set out in Schedule 1 Part 1 of the Employment (Northern Ireland) Order 2003 were complied with.  Hence no question of statutory procedural unfairness arises.

17.	We do not have evidence of a sufficient quality to enable us to find that there was a policy of treating Indians more favourably.  We do not consider the claimant’s hearsay evidence of Fiona McGregor’s (the Human Resources) adviser’s alleged remark to this effect be of a sufficient weight to base a finding upon it.

Conclusions

18.	Race Discrimination Claim

Article 6 (2) of the Race Relations (NI) Order 1997 provides as follows:-

“It is unlawful for a person, in the case of a person employed by him at an establishment in Northern Ireland to discriminate against that employee -

(c)	by dismissing him, or subjecting him to any other detriment”.

Article 52A(2) of the same Order states as follows:-

“Where the hearing of the complaint the complainant proves facts from which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent –

(a)	has committed such an act of discrimination or harassment against the 	complainant;

(b)	is by virtue of Article 32 or 33 to be treated as having committed such an act 	of discrimination or harassment against the complainant, the tribunal shall uphold the complaint unless the respondent proves he did not commit or, as the case may be, is not to be treated as having committed that act”.

19.	In approaching any case of discrimination, a tribunal is required to find primary facts from which inferences of discrimination can be drawn.

20.	Having surveyed the facts found in this case, the tribunal can only find the facts set out in this paragraph as being in any way relevant to race.

a.	The claimant in this case is of Northern Irish ethnic origin.  The comparators 
Mr Kadwe and Mr Bhatia were of Indian origin.

b.	The claimant who had a clear disciplinary record was dismissed for her first offence of gross misconduct.  The two comparators had an active disciplinary history and both, when final written warnings were active, received further final written warnings in respect of misconduct rather than being dismissed.

c.	During the course of one of his dismissal hearings Mr Kadwe said that he was being racially discriminated against, and this provoked an investigation.  During the claimant’s appeal she made the same allegations and there was no record of any investigation having taken place.

As we have found that there was a difference in treatment between the claimant and Mr Kadwe and Mr Bhatia, we do not think it is necessary for us to make any findings based on the authority of Airbus UK Ltd-v-Webb, cited to us by Mr O’Hare in support of the proposition that Mr Kadwe’s final written warning in 2006 did not have to be discounted purely because it had expired. 

21.	Has the tribunal found sufficient primary facts from which an inference of discrimination could be drawn such as to displace the burden of proof.  In reaching a decision on this point the tribunal has had regard to the case of Madarassy-v- Nomura International PLC.  In this case the Court of Appeal ruled that mere differences in status or treatment  are not sufficient to shift the burden of proof.  There must be something more.  We do not consider the claimant’s hearsay evidence of the Human Resources Manager’s alleged comment that the respondent should not dismiss an Indian to be of sufficient weight to constitute the “something more”.  The tribunal concludes therefore that the primary facts that have been found in this case relate to differences in status or treatment.   Accordingly we find that this is insufficient evidence to shift the burden of proof to the respondent and the claimant’s claim for race discrimination falls.  Therefore we do not consider that there is any need to carry out an examination of the comparators in this case, whether actual or hypothetical.

Unfair Dismissal Case

22.	In any case involving dishonesty the guidelines set down in the case of British Home Stores-v-Burchell are of great relevance.  These are the questions to be asked:-

a.	Was there a belief that misconduct had occurred?

In this case there was clear evidence of unusual figures notified by Alison MacNamee to Graeme Scott.  When it was looked into, Mr Scott found that there were large figure variances that could not be explained.  So the tribunal considers there was a belief  that some form of misconduct had occurred which the company had to look into.

b.	Was it reasonable to hold such a belief?

The rising stock variance figures could not be readily explained.  An investigation of the timecards for the eight week period in question showed that the claimant was the only person who had been there for the full period of eight weeks.  The claimant was the person mostly responsible for the inputting of the stock figures.  Taking account of these facts and realising that the falsely inputted figures could have inflated the value and profitability of the respondent incorrectly, it was reasonable for the respondent to have the belief that the figures were being tampered with and the claimant, as the person who was most involved with the inputting of the figures on to the Lynx system, should be investigated.

c.	Was there as much investigation into the matter as was reasonable in the circumstances of the case?

Mr Graeme Scott, a Regional Controller, came over to Belfast International Airport to conduct an investigation.  He interviewed the claimant, Frank Tyson and Alison MacNamee.  He investigated the stock sheets and the reports of the Lynx system.  It appeared that the figures on the stock sheets were not put into the Lynx system and a formula whereby the stock was inflated by £20,000.00 per week was operating in the computer, especially in the last two weeks of the eight week period surveyed.  The claimant generally, but not exclusively, was responsible for inputting the figures to the Lynx system.  There was no hard evidence to say that the claimant definitely had or had not inputted the incorrect figures or inserted the £20,000.00 formula, but in the circumstances of what her practice was, (to do  most of the inputting of the stock on to the spreadsheet and hence to the Lynx system herself) and the fact that the claimant was the only person in attendance for the full period of eight weeks, it was more likely than not, on the balance of probabilities that the claimant had something to do with this matter.  However Sharon Wright the relatively new General Manager was not interviewed or investigated, as Mr Scott considered that she had no knowledge of the Lynx system and her financial abilities were on the poor side.  The tribunal has noted that although the claimant might have had the opportunity to input the wrong figures, it was not disputed that she had no financial motive for doing so.  She had nothing to gain.  However, Sharon Wright as the person responsible for the performance of the respondent’s operation in the airport, would undoubtedly have had a motive to commit the misconduct claimed, as it was in her interests to see that the units performed as well as possible.  For no objective reason, Sharon Wright was left out of the investigation.

23.	The claimant’s contention that the system itself was to blame was investigated and checked remotely with the IT department.  Mr Scott was told that the database was clean.  Similarly, the respondent found no evidence of someone changing the figures inputted.

24.	Although the tribunal’s attention was drawn to the notes of Mr Scott’s investigation with Alison MacNamee and Frank Tyson, the case that was advanced before the tribunal was that Alison MacNamee found the discrepancy on her own initiative.  From this, the respondent appeared to drawn the inference that it was glaringly obvious that if the claimant’s assistant could find it, why could the claimant not find it?  When the tribunal actually examined the notes of the investigation, it found that it was Frank Tyson who raised the problem with Alison MacNamee.  As a consequence of this being overlooked by Mr Scott no enquiry was made as to why Mr Tyson  had not spotted the discrepancy earlier.   Had such an enquiry been made, it is possible that further information might have been uncovered to shed light on the issue of who was responsible for inflating the stock figures.  Furthermore, the fact that Mr Tyson had not countersigned the figures produced by the claimant for a period  prior to the discovery of the inflation of figures, was not really investigated by the respondent.

25.	The conclusion drawn by the tribunal is that certain useful areas of investigation were not covered and given the importance of the issue to the respondent and the complexity of the situation, the respondent did not carry out as much investigation as would have been reasonable in the circumstances of this case.  From the evidence before it the tribunal concludes that Frank Tyson’s role in events was insufficiently investigated and Sharon Wright’s role was not investigated at all.  In weighing up what percentage deduction to make, the tribunal has considered the evidence that the claimant did most of the inputting of figures, as against the failure to pursue a line of enquiry with one material witness and a complete failure to investigate another relevant witness, and has assigned a percentage likelihood of 25% (a reasonable chance) that such enquiries could have revealed more useful information.

Procedural Unfairness

26.	The claimant advanced the case that the charge of falsification of the figures was never put to her during the disciplinary hearing.  It only came to her notice in the letter whereby she was dismissed dated 30 December 2008.  The tribunal does not have any sympathy with this contention.  Whilst different terms might have been used in the invitation to the hearing, the hearing itself and the dismissal letter  - over inflation, fraud and falsification, the tribunal finds that these are sufficiently close in meaning for the claimant to be under no illusion as to what offence she stood accused,

Did the Respondent Act Reasonably in treating the offence as a sufficient reason  for dismissing the employee?

27.	The claimant was in a position of trust and responsibility with the respondent.  Although it was the first offence, the issue of falsification of entries (if found proved) is in the opinion of the tribunal sufficient for the employer to treat it as a sufficient reason for dismissing the employee.

Contributory Fault

28.	Even though the tribunal has found that the respondent did not carry out as much investigation, as was reasonable in the circumstances of the case, the tribunal has noted that it was a feature of the evidence that the respondent could not understand how the claimant had failed to spot the variances which got larger as the weeks went on.  The tribunal simply does not believe the claimant’s evidence that it was not her job to spot any inaccuracies.  The tribunal considers that as the claimant had been in post for 4½ years, she would have had that period of experience of working with the figures, and it was reasonable to expect her to pick up on such a large discrepancy.  The tribunal finds that the claimant was culpable and blameworthy in this respect and reduces the compensation it awards to her by 25%.

Computation of Compensation Basic Award

Basic Award

29.	The claimant had 4½ years of service with the respondent and was 31 years of ages at termination of employment.  Her gross weekly wage was £442.00 as all the claimant’s years of service were in ages bands 22-40 years, the multiplier that this information attracts is one, consequently the computation of the basic award is as follows:

£350 (being the applicable weekly statutory maximum  at the time in question (x 4 x1) = £1,400.00

Compensatory Award (Immediate Loss)

30.	This claimant has successfully mitigated her loss in that she was unemployed only from 29 December 2008 to 27 January 2009.  From 28 January 2009 to 7 August 2009 she worked for Yara UK Limited with total net earnings of £6,547.90.  From 
11 August 2009 to 12 January 2010 the claimant has been working for Khazana (R G International Limited) and her current net weekly wage is £302.38 with an ongoing net deficit of £32.62.

31.	Period A

From 29 December 2008 to 27 January 2009 – unemployed.

Loss = £335 x 4 = £1,340.00

Period B

(a)	Period in employment with Yara 28 January-7 August 2009

Loss of Earnings £335.00 x £28.00 = 			£9,380.00

Total Earnings (Net) = £6,547.90

£9,380.00 - £6,547.90 = £2,832.10
 
(b)	Period in employment with Khazana

21 weeks x £335.00 = £7,035.00

Less money received (£6,261.22) = £773.78

(c)	Future loss  

There is an ongoing  net differential weekly of £32.62 between what the claimant is currently earning and what she earned in her previous employment.  Given the current state of the economy, it will take the claimant some time to work her way back to a job of comparable status to that which she had with the respondent.  Consequently the tribunal awards a continuing loss figure of £32.62 for 26 weeks:-

£32.62 x 26 = £848.12

(d)	Loss of Statutory Rights
For this head of damage the tribunal awards £250.00

Summary of Compensation

Basic Award					-			£1,400.00

Immediate Loss A				-			£1,340.00
Immediate Loss B				-			£2,832.10
Immediate Loss C				-			£   773.78

Future Loss					-			£   848.12

Statutory Rights				-			£   250.00
						=			£7,444.00

Less 25% Contribution			-			£1,861.00
						=			£5,583.00

Less 25% Procedural Unfairness	-				£1,395.75

						=			£4,187.25

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

31.	The attention of the parties is drawn to the recoupment notice which accompanies this decision.

Chairman:

Date and place of hearing:	12-14 January and 22 January 2010 in Belfast.	

Date decision recorded in register and issued to parties:

Case Ref No:   3826/09

CLAIMANT:		Jenny Ray 

RESPONDENT:	 	SSP UK Ltd
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	£4,187.25 	
(b)  Prescribed element	£675.00 	
(c)  Period to which (b) relates:	29 December 2008 to
27 January 2009
	
(d)  Excess of (a) over (b)	 £3,512.25	

	The applicant 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 applicant in respect of that period; (b) is not payable until the Department of Health and Social Services 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 applicant 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 applicant.

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 applicant will receive a copy of the recoupment notice and should inform the Department of Health and Social Services 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 applicant, 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 applicant and regardless of any dispute between the applicant and the Department.