THE INDUSTRIAL TRIBUNALS
  
CASE REF:    1864/10 
 
CLAIMANT:    	Thomas Liggett

RESPONDENT: 	Jameson Roofing Specialists Limited

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed, that notice pay is due to him and that he be awarded the sum of £3,621.74.  The tribunal draws attention to the matters set out in the Recoupment Notice attached to this decision.

Constitution of Tribunal:

Chairman:	Mr William A Palmer

Members:	Mr Brendan Heaney
	Mr John McAuley

Appearances:

The Claimant represented himself.

The Respondent was represented by Mr Robert Joseph Jameson, its Managing Director.

Cases Heard Together

1.  	This case was heard with that of Mr Spencer Gray (Mr Gray) (Case Ref:  No:  01902/10IT), whose claim against the respondent is similar to that of the claimant’s.  A separate decision will be issued in Mr Gray’s case.

The Claim

2.  	The claimant claimed that his selection for redundancy was unfair and that he did not receive the amount of notice pay due to him.  We shall consider the claim of unfair selection under each of the separate provisions relating to ordinary unfair dismissal and automatic unfair dismissal.  The notice pay claim is a breach of contract one and we have the jurisdiction to deal with it under the provisions of the Industrial Tribunals Extension of Jurisdiction (Northern Ireland) Order 1994.

Evidence

3.  	Evidence was given, on behalf of the respondent, by Mr Robert Joseph Jameson, its Managing Director (Mr Jameson) and Mr William Trimble (Mr Trimble).  The claimant gave evidence on his own behalf.  Documents were also submitted.

The Title to the Proceedings

4.  	With the consent of the parties, we ordered that the name of the respondent be amended to “Jameson Roofing Specialists Limited”.

The Standard of Proof Applied.

5.	The standard of proof applied by us in reaching conclusions is the balance of probabilities.

The Facts

The Respondent’s Business and the Claimant’s Employment

6.	The respondent is engaged in the roofing business and also undertakes work connected to the removal of asbestos from buildings.

7.  	No issue was taken as to the amount of the redundancy payment, in the sum of £1,621.62, paid by the respondent to the claimant and based on 3 years’ reckonable service.  In the grievance letter referred to later and written by a solicitor on behalf of the claimant, there is also a reference to 3 years’ service in respect of notice pay.  We are satisfied that the claimant, a roofer, whose date of birth is 7 October 1963, had 3 years’ reckonable service with the respondent.

Redundancy

8.  	Mr Jameson told us that in March 2010 there was a downturn in work, caused by a customer company going into liquidation.  We accept that the liquidation led to a decline in work.  However, it is clear that the recession also played a role: in the document, dated 22 March 2010 and signed by the claimant and Mr Jameson and referred to later, it is stated, in the first sentence, that for some time the respondent had been “experiencing a considerable downturn due to the current recession.”  We are satisfied that a redundancy situation arose in March 2010 and that it was necessary for the respondent to make redundancies.  There was insufficient work to keep all the roofers (of which there were approximately 15) employed.  However, our considerations, in respect of the dismissal, do not end there.

9.  	The respondent’s Management Group (the Group) met on 22 March 2010 to consider redundancies.  The group consisted of Mr Jameson, Mr Timothy Jameson (Mr Jameson’s son and General Manager of the respondent), Mr Wesley Jameson (Asbestos Manager), Mr Paul Hill (Quantity Surveyor) and Mr Jim Quinn (Contracts Manager).  This was the first time that the respondent was required to consider redundancies since its establishment in 1974.  The Group had before them the training and disciplinary records of those employees engaged in roofing.  There was a concentration on those engaged in the type of roofing carried out by the claimant.  Each employee was considered on the basis of timekeeping, skills, workmanship and capabilities.  An important matter under “capabilities”, in the claimant’s case, was the fact that he did not hold a driving licence.  This meant that he would have to be driven to any one person jobs allocated to him.  The Group came up with 5 names and listed 4 out of the 5 for redundancy.  Those listed were the claimant, Mr Gray, Mr Trimble (a relation of Mr Jameson’s) and Mr Simon Mulgrew (who was a trainee)..  The 5th person was Mr Mullan.  During the hearing, the claimant raised the question on the retention of Mr Webb, who did not hold a driving licence and who was not listed for redundancy.  It was, however, reasonably thought at the time that Mr Webb held a driving licence.  It turned out, after the selection had been made and after the respondent’s insurers required that all driving licences be checked, that Mr Webb did not hold a licence.  Mr Mullan was a supervisor and the Group considered that he, as he had more experience than the claimant, should be kept on.  Mr Mulgrew’s redundancy was to take place a week or two after the claimant’s, Mr Gray’s and Mr Trimble’s.  A Mr Macay, who did not hold a driving licence was retained.  No explanation was offered as to why Mr Macay was kept on, as opposed to the claimant.

10.  	On the evening of 22 March 2010, Mr Jameson called the claimant to the office.  He was told of his redundancy and also told that he could be put on, what Mr Jameson referred to as, “short term notice”.  This, Mr Jameson explained to us, meant that the claimant would go on to public benefits for up to 12 weeks’ and that after this time the respondent would take the claimant back into its employment.  The claimant did not accept this suggestion and said that he would take redundancy, which we consider to be a reasonable choice.  What Mr Jameson referred to as a “proposition”, was put to the claimant.  This proposition was that redundancy money would be paid, but not the full amount of notice pay: the claimant would receive only one week’s pay in lieu of notice.  A document (the document) was drawn up by the respondent.  It is dated, 22 March 2010, and was signed by both Mr Jameson and the claimant, probably on the following day.  The document is in the following terms:

“You will be aware for some time that we have been experiencing a considerable downturn of work due to the current recession.  Further to the discussion we have had today we will regrettably be terminating your employment on Friday next 26 March.  Wages for your last week of work and Easter holiday pay will be paid on 1 April.

	In our discussion we explained the company’s current lack of work and financial circumstances and it was agreed that one week’s notice and payment of redundancy for the number of years served would be acceptable to you.

	You will be entitled to a redundancy payment of £1,621.62-based on 3 years service and your age = 4.5 weeks”

11.	At the discussion referred to above, there was no exchange of views on, for example, retraining or alternative employment.  The claimant had no input.  The position was, as the claimant states in his originating application, that he was presented with a fait accompli.

12.  	Mr Jamison told us that, on 25 March 2010, he spoke to the claimant and Mr Gray and told them that some new work had come in and that they did not have to leave on 26 March 2010: in other words their employment could continue.  In cross-examination by Mr Gray, Mr Jameson agreed that it was his son, Mr Timothy Jameson, who had spoken to the claimant and Mr Gray on 25 March 2010.  There was a dispute as to what Mr Timothy Jameson had said to Mr Gray and the claimant, namely, whether he had said that their employment could continue indefinitely or whether he asked them to work for one week beyond their finishing date of 26 March 2010.  In the event, the claimant and Mr Gray did work for 1 week beyond their original finishing date, namely, until 2 April 2010.  We did not hear from Mr Timothy Jameson and, therefore, we accept that he had asked the claimant and Mr Gray to work for 1 further week only, that is, until 2 April 2010.

13. 	The respondent did not have any in-house expertise in industrial relations.  Mr Jameson was not aware of the statutory procedures, to which we shall refer to later.  He did not seek, nor did he receive, any expert advice in relation to the dismissal of employees through redundancy.

14.  	No procedures were gone through by the respondent.  We accept that the respondent is a small firm.  However, we consider that its size and the resources available to it does not absolve it from, for example, at least explaining the respondent’s situation to the claimant, warning him of possible redundancy, consulting with him to give him an opportunity of commenting on the selection criteria and to hear any views he might have, for example, on retraining: nor does its size and resources absolve it from observing the statutory procedures. 

Notice Pay

15.	Under this sub-head we deal with the document, under which, it will be recalled, the claimant agreed to forego part of his entitlement to notice pay.

16.  	Article 245 (1) of the Employment Rights (Northern Ireland) Order 1996 (the Order of 1996) provides as follows;

	“Any provision in an agreement (whether a contract of employment or not) is void in so far as it purports-

	(a)	to exclude or limit the operation of any provision of this Order, or

	(b)	to preclude a person from bringing any proceedings under this Order before an industrial tribunal.” 

17.  	Article 245 (2) of the Order of 1996 makes provision for exceptions to the general rule set out above, but none is applicable in this case.

18.  	We consider, and hold, that the agreement is a void one under the provisions of Article 245 (1) of the Order of 1996.  Also, we consider that it would be unfair to hold the claimant to the agreement about notice pay contained in the document.  He was not given ample opportunity to consider the matter fully or seek advice, before endorsing the document.

19.  	The claimant, therefore, is entitled to pursue a contractual claim in respect of the balance of notice pay due to him by virtue of Article 118 of the Order, which sets out, inter alia, the rights of an employee to minimum notice.

Automatic Unfair Dismissal

20.  	The respondent clearly contemplated dismissing the claimant.  There is no reason why the Standard Procedures (the Procedures) would not have applied in this case.  The Procedures, which are given effect by Article 15 (1) of the Employment (Northern Ireland) Order 2003 (the Order of 2003) and are contained in Schedule 1 (Part 1) to that Order, apply in this case.  Briefly, they require that an employer contemplating dismissing an employee take a number of steps involving the employee.  The employer must, for example, set out in writing “the employee’s alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing ……the employee.”  The Procedures were not followed by the respondent, in this case.

21.  	Consequences flow from the failure of an employer to follow the Procedures.  Article 130A (1) the Order of 1996 makes provision for automatic unfair dismissals and provides as follows:

	“(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 [Order of 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.”

22.  	A further consequence is that the compensatory award made to the claimant may be enhanced.  Article 17 (3) of the Order of 2003 provides as follows:

	“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 procedure,

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

23.  	Paragraph 4, referred to above, provides, insofar as relevant:

	The duty under paragraph…3 to…make an increase does not apply if there are exceptional circumstances which would make [an] increase of that percentage unjust or inequitable, in which case the tribunal may make no …increase or [an] increase of such lesser percentage as it considers just and equitable in all the circumstances.”

24.	We hold that the claimant was automatically unfairly dismissed and also that there are no “exceptional circumstances”, as referred to above. 

Ordinary Unfair Dismissal

25. 	The provisions that we have to consider, in this case in relation to ordinary unfair dismissal, are contained in Article 130 (1), (2) and (4) of the  Order of 1996.  The reason for the claimant’s dismissal was redundancy.  That being so we set out (immediately below) only the relevant parts of the provisions referred to.

	“(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.

	(2)	A reason falls within this paragraph if it

		(a)	………..

		(b)	……….

		(c)	is that the employee was redundant,

		(d)	………..

	(4)	Where the employer has fulfilled the requirements of paragraph (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 administration resources of the employer’s undertaking) the employer acted reasonably 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.”

26.	We have already determined that the reason for the dismissal was redundancy.  We must then consider the fairness provisions contained in Article 130 (4) above.  In the light of our findings with regard to the circumstances of the dismissal, we consider that the dismissal was unfair.  

Compensation

Notice Pay

27.	This is a contractual claim and is brought under the provisions of the Industrial Tribunals Extension of Jurisdiction (Northern Ireland) Order 1994.

	Article 15(1) of the Order of 2003, states that Schedule 1 to that Order shall have effect.  In Schedule 1 the grievance procedures are set out at paragraphs 6 to 8.  Regulation 6 (1) (a) of the Employment (Northern Ireland) Order (Dispute Resolution) Regulations (Northern Ireland) 2004 provides, insofar as relevant, as follows:

	“The grievance procedures apply,    , in relation to any grievance about an action by the employer that could form the basis of a complaint by an employee to a tribunal under-

	(a)	a jurisdiction listed in Schedule 2 [of the Order of 2003]”

	In Schedule 2 to the Order of 2003, one of the jurisdictions listed is the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994.

	In relation to the notice pay claim, the claimant set out his grievance in writing (through a solicitor) to the respondent.  No action was taken by the respondent.  The provisions contained in Article 17(3) Order of 2003, therefore, apply (see Paragraph numbered 22 above in relation to these provisions).  We do not consider that “exceptional circumstances” exist that would make an enhancement “unjust or inequitable”.

	The claimant was entitled 3 weeks’ notice.  He was given notice on the evening of 22 March 2010.  Had he worked the notice period, the last day of his employment would have been 12 April 2010.  The only notice worked was the week on which notice was given and the extra week worked at the request of Mr Timothy Jameson: of the 15 working days (the notice period, using a 5 day working week) the claimant worked for a total of 9 days.  This leaves 6 days outstanding, namely 1 and one fifth weeks.  In respect of this period we award the claimant £346.80 (Nett pay of £289.00 per week x 1.2).

	The statutory procedures, which have been in place for some time, were not followed.  In the circumstances of this case, we consider that the enhancement should be 40%.  We, therefore increase the award to £485.52.

Basic Award

28.	As previously stated the claimant had 3 years’ reckonable service.  He is, therefore, entitled to 4.5 weeks’ pay, which amounts to £1,621.62.  However, he received £1,621.62 in respect of redundancy, which is deducted from the basic award, leaving a nil award.

Compensatory Award

29.	In determining the compensatory award we follow the duty imposed upon us by Article 157 (1) of the Order of 1996, which, in brief, states that this award shall be such amount as we consider just and equitable in all the circumstances.  In this case, in order to fulfil our duty, we must consider whether dismissal would have occurred notwithstanding the respondent’s failure to follow any procedures whatsoever.  We are unable to make a determination on this, one way or the other.  We, therefore, follow the suggestion made by the EAT in Sillifant v Powell Duffryn Timber [1983] IRLR 91, at paragraph 22, where it is stated:

	“There is no need for an ’all or nothing’ decision.  If the Industrial Tribunal thinks there is a doubt whether or not the employee would have been dismissed, this element can be reflected by reducing the normal amount of compensation by a percentage representing the chance that the employee would still have lost his job.”

30.	We award £300 in respect of loss of employment rights.

31.	Between the date of dismissal and the date of hearing the claimant did agency work for 2 weeks.  It was mid-November 2010 before he obtained permanent employment.  That employment netts an amount similar to that netted with the respondent.  The claimant was unemployed for 26 weeks.  We consider this period to be reasonable, in view of the downturn in the building industry.  Had the claimant continued employment with the respondent, he would have earned a nett wage of £289 for each of those weeks.  The loss is, therefore, £7,514.  However, we have to consider the basic amount (that is, without reference to the enhancement) that we have awarded in respect of notice pay.  Where an employee has been unfairly dismissed and has been paid a sum in lieu of notice and obtains employment during the notice period, he/she does not have to account for earnings received during that period (Norton Tool Co. Ltd v Tewson [1972] IRLR 86).  However, in the case under consideration, the claimant was not paid a sum in lieu of notice and did not find employment, during the remainder of the notice period.  We consider that Babcock Fata Ltd v Addison [1987] IRLR 86, holds that Norton does not apply where, as in this case, the claimant was not paid a sum in lieu of notice and did not obtain employment during the notice period.  We, therefore, deduct the amount awarded in respect of notice pay.  This leaves a balance of £7,167.20 (£7,514-£346.80).  The total compensatory award (including the £300 awarded in respect of loss of employment rights) is at this point £7,467.20.  Other matters have now to be considered.

32.	With regard to the chances of the claimant being made redundant had he being given an opportunity to respond and have his say, we would put these as low.  We consider that he had a 30% chance of retaining his employment and, therefore, we reduce the figure above by 70% to £2,240.16.  As the statutory procedures were not followed we increase this amount by 40% to £3,136.22.

33.	The total amount awarded to the claimant is £3,621.74 (which is the total of the compensatory award and the enhancement in respect of the notice pay claim), but subject to the recoupment provisions below.

Recoupment.

34.	The claimant received relevant benefits for the purposes of the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996 (the regulations).  In accordance with our duty under the regulations we set out the required particulars below.

	(a)	Monetary Award                                        	£3,621.74

	(b)	Prescribed Element                                	£2,254.20
					(30% of £7,514)

		Prescribed Period                                    	2 April 2010
					until 19 October 2010.

	Excess of (a) over (b)                            	£1,367.54

	The attached Recoupment Notice forms part of this decision.

Chairman:

Date and place of hearing:	30 November 2010 (PM) and 6 December 2010,
at Belfast.