THE INDUSTRIAL TRIBUNALS

CASE REF:    2082/10IT

CLAIMANT:	Amanda Jamison

RESPONDENT:	Jonathan Watson T/as NI Security Solutions

DECISION

The unanimous decision of the tribunal is as follows:-

1.      That the claimant was unfairly dismissed and the respondent is hereby ordered to pay the claimant compensation in the sum of £9057.82; and

2.	That the claimant is entitled to 2 weeks notice pay and the respondent is hereby ordered to pay to the claimant the sum of £337.50; and

3.	That the claimant is entitled to 7 days holiday pay and the respondent is hereby ordered to pay to the claimant the sum of £393.75.

Constitution of Tribunal:

Chairman:		Ms June Turkington

Members:		Mr William Irwin
			Mr James Welsh

Appearances:

The claimant appeared and represented herself at the hearing.

The respondent did not appear at the hearing.

The Claims

1.	The claims were a claim of unfair dismissal, a claim in respect of notice pay and a claim for unpaid holiday pay.

The Issues

2.	The issues to be determined by the tribunal in relation to the claim of unfair dismissal were:-

(a)	whether the respondent had complied with the statutory dismissal procedure pursuant to The Employment (Northern Ireland) Order 2003 and The Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 and therefore whether the dismissal of the claimant was automatically unfair; and, if appropriate;

(b)	the compensation to be awarded to the claimant

3.	The issue to be determined by the tribunal in respect of the claim for notice monies was whether the claimant had received the required period of notice of termination of her employment.  If not, had she received pay in lieu of notice and, if not, the sum to which the claimant was entitled.

4.	The issue to be determined by the tribunal in relation to the claim for holiday pay was whether the claimant was entitled to unpaid holiday pay and, if so, the sum payable in that respect.

Disposal of the claim in the absence of the respondent

5.	The respondent did not appear at the hearing.  The tribunal was satisfied that the Notice of Hearing had been sent to the respondent at his last known address in good time before the hearing.  The respondent had not contacted the Office either on the day of the hearing or before.  Accordingly, the tribunal decided that it was appropriate to proceed to hear the claim in the absence of the respondent.

Sources of Evidence

6.	The tribunal heard oral evidence from the claimant and considered a number of documents submitted by the claimant.  The tribunal also considered and took account of the content of the response form submitted by the respondent.

Facts of the Case

Having considered the claim form submitted by the claimant, and having heard the claimant’s evidence and considered the documents submitted by the claimant, the tribunal found the following relevant facts:-

7.	The claimant was employed by the respondent’s father Mr Robert Watson in a secretarial/human resources/administrative/clerical role beginning on 6 May 2008.  The claimant recalls signing terms and conditions of employment, but she did not have a copy of this document as the respondent’s father had not given her a copy.

8.	The claimant originally worked 30 hours per week, but from around mid March 2010, the claimant’s hours were reduced to 22.5 hours per week.  At the end of her employment, the claimant earned £168.75 per week gross, £153.52 per week net.

9.	In November 2009, the claimant was informed by the respondent’s father that his son Jonathan Watson (the respondent) would be taking over the business with effect from 1 April 2010.  The respondent did take over the business from that date and the tribunal finds as a fact that the respondent was the employer of the claimant at the termination of her employment.

10.	On 31 May 2010, the respondent’s father handed the claimant a letter.  The content of this letter was as follows:-

		“Due to the economic climate and downturn in work we have had to make several cut backs within the company.  Unfortunately we have to terminate your contract with NI Security Solutions, as of Monday, 31 May 2010.

		We are hereby giving you one weeks notice from today Monday, 31 May 2010.

		We thank you for the professional service you provided for our company”.

11.	The respondent did not suggest a meeting with the claimant to discuss possible termination of her contract of employment nor did the respondent offer any appeal.

12.	Having read the letter, the claimant was unsure whether she was expected to work the notice period referred to.  She therefore telephoned the respondent to seek clarification.  The respondent asked the claimant to work on Wednesday, 2 June in order to process the wages.  The claimant reported for work on Tuesday, 1 June and Wednesday, 2 June.  The claimant has not received any pay for those days.

13.	The claimant’s solicitors wrote to the respondent by letter dated 9 June 2010.  The solicitors sought written reasons for the claimant’s dismissal.  They also sought clarification regarding the procedure adopted by the respondent and raised an issue in relation to holiday pay.  By letter dated 18 June, the respondent replied.  The respondent stated that there had been an error in his letter dated 31 May in that the date of termination of the claimant’s employment should have been stated as 7 June since the respondent was giving one week’s notice of termination.  The reason for termination of the claimant’s employment was given as redundancy.  The respondent argued that the claimant had been paid outstanding holiday pay of £393.75.

14.	The claimant’s solicitors then sent a further letter to the respondent.  The solicitors stated that the claimant was entitled to receive 2 weeks notice rather than one week and that she had not received any pay for the week of 31 May 2010 nor did she receive any redundancy payment.  Finally, the claimant had not actually received holiday pay of £393.75.  The respondent did not reply to this correspondence.

15.	The tribunal had an opportunity to consider relevant documents, including the respondent’s payment summary for 1 June 2010.  This appeared to show a gross payment of £562.50 to the claimant.  The tribunal understands that this figure included pay for the week commencing 31 May 2010 together with outstanding holiday pay.  However, the tribunal also considered the BACS Detail report for 2 June 2010 which seemed to confirm a payment of £0 (Nil) to the claimant.  The tribunal therefore finds as a fact that the claimant did not process any payment to herself on 2 June.  Accordingly, the tribunal further finds as a fact that the claimant did not receive any pay in respect of the week commencing 31 May 2010 nor did she receive any payment in respect of holiday pay.

16.	The respondent’s holiday year ran from January to January and the claimant was entitled to statutory paid leave in accordance with the Working Time Regulations.  When she was working 30 hours per week, she was entitled to 22 days per year (pro rata), that is 1.86 days per month.  After her hours were reduced to 22.5 hours per week, the claimant’s leave entitlement was reduced to 1.4 days per month.  The claimant took one day’s annual leave during the 2010 leave year.  In his correspondence with the claimant’s solicitors, the respondent did not dispute the claimant’s figures of 52.5 hours (7 days) equating to £393.75 in respect of her entitlement to outstanding holiday pay.

17.	After the termination of her employment, the claimant continued to run her small business as she had done throughout the period of her employment.  However, due to the present economic climate, this business made no profit in the period after the termination of her employment.  The claimant looked at job advertisements in the local papers and on the Belfast Telegraph web-site.  The claimant asked for a few application forms, but was told that the prospective employers would require references.  The respondent had not provided the claimant with a reference and she had not asked the respondent for a reference as she thought it unlikely the respondent would accede to this request since he had stopped replying to her correspondence.  The claimant did not apply for Job Seekers Allowance or any other relevant benefits.  The claimant remained unemployed at the date of hearing, save for continuing to run her small business.

Statement of Law

18.	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/her of the right to appeal against the decision.

	Step 3  -  Appeal

	If the employee informs the employer of his/her wish to appeal, the employer must invite him/her 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.

19.	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).  Where there is an automatically unfair dismissal because the employer has failed to comply with the statutory dismissal procedure, the basic award must be a minimum of 4 weeks’ gross pay unless that increase would result in injustice to the employer – article 154 (1) (a) of the Order.

20.	Pursuant to Article 17 of The Employment (Northern Ireland) 2003, where it appears to the tribunal that the non-completion of the statutory dismissal procedure was wholly or mainly attributable to the employer, it shall increase any award made to the employee by 10 per cent and it may, if it considers it just and equitable in all the circumstances to do so, increase the award by a further amount up to 50%.

21.	By article 118 of the 1996 Order, the notice required to be given by an employer to terminate the contract of employment of an employee is one week where the claimant was employed for a period between one month and two years and an additional week for each completed year of continuous employment thereafter.

22.	By regulation 14 of the Working Time Regulations 1998, where a worker’s employment is terminated during the course of his leave year and the proportion of leave taken by the worker is less than the leave accrued at the termination date, then the employer shall make him a payment in lieu of the leave which was accrued but not taken.

Conclusions

Unfair dismissal

23.	In light of the facts found, the tribunal had no hesitation in concluding that none of the requirements of the statutory dismissal procedure were complied with in this case.   Whilst the respondent did hand a letter to the claimant, it was clear that the respondent’s letter dated 31 May 2010 was confirming that the claimant’s employment was terminated.  It was clear that action was taken (ie the claimant’s employment was terminated) before any meeting took place.  This was a clear breach of the statutory dismissal procedure as described at para 18 above.  Further, the respondent failed to conduct a step 2 meeting with the claimant or offer a step 3 appeal meeting.  The tribunal was satisfied on the basis of the facts found that the non-completion of the statutory dismissal procedure was wholly attributable to the respondent.  The tribunal therefore concluded that the dismissal of the claimant was automatically unfair.  In the circumstances, it was not therefore necessary for the tribunal to consider whether the dismissal was fair in all the circumstances.

24.	Accordingly, the unanimous decision of the tribunal is that the claimant was unfairly dismissed and that the claimant is entitled to compensation for such unfair dismissal.

Notice pay

25.	In light of the facts set out above, the tribunal determined that the effective date of dismissal in this case was 7 June 2010.  The claimant was handed the letter of dismissal on 31 May 2010 so that she received one week’s notice of dismissal.  The claimant had two years continuous employment which means that, in accordance with article 118 of the Order, she was entitled to two weeks notice of termination.  The tribunal has found as a fact that the claimant did not receive any pay for the week commencing 31 May.  The claimant is therefore entitled to pay for this week together with pay in lieu of notice of one further week  -  two weeks pay in total.

Holiday pay

26.	In relation to the claim for holiday pay, the tribunal was satisfied that the claimant had accrued but had not taken 52.5 hours (7 days) of holiday up to the date of termination of her employment.  The tribunal concluded that the claimant was entitled to pay in lieu of this holiday which amounts to £393.75.

Compensation

27.	Having determined that the claimant was unfairly dismissed, the tribunal went on to consider the appropriate remedy.  The claimant did not seek reinstatement or re-engagement. The tribunal therefore considered that the appropriate remedy was compensation.

28.     As set out above, the claimant in this case was automatically unfairly dismissed due to the respondent’s failure to comply with the statutory dismissal procedure, the basic award in this case should be a minimum of 4 weeks’ gross pay unless this would result in injustice to the employer.  The tribunal does not believe that such an award would result in such injustice in this case.

29.	Since the claimant had not actually applied for any jobs, the tribunal was not satisfied that the claimant had made reasonable efforts to mitigate her loss.  However, the tribunal was mindful of the extremely difficult economic climate in Northern Ireland generally at the present time.  Using its best judgment, the tribunal therefore concluded that, even given reasonable efforts to mitigate her loss, it is likely that the claimant would take 9 months from the date of termination of her employment to obtain alternative employment with comparable earnings.

30.	Accordingly, the tribunal determined that it would be just and equitable in all the circumstances for the claimant to be awarded loss of earnings for a period of 9 months from the date of dismissal.

31.	 The tribunal considered the appropriate uplift to the award for unfair dismissal pursuant to article 17 of the 2003 Order as described at para 20 above.  It was clear that the respondent failed to hold a step 2 meeting with the claimant before deciding to dismiss her.  It was also clear that the respondent failed to offer the claimant a right of appeal even though it was obvious she was not happy with the decision.  Accordingly, the tribunal considered that the respondent’s non-compliance with the statutory dismissal procedure was fairly serious.  The tribunal concluded that the uplift should be towards the higher end of the scale between 10 and 50 %.  Therefore, the tribunal determined that it was just and equitable in all the circumstances for the award to the claimant in respect of unfair dismissal to be increased by 35%.

32.	The tribunal considers that the appropriate compensation in this case in accordance with article 152 to 158 of the Employment Rights (Northern Ireland) Order and article 17 of the Employment (Northern Ireland) Order is as follows:-

(A)	Basic Award

	£168.75 (gross weekly wage) X 4 	=	   £675.00 

(B)	Compensatory Award

	Immediate loss to date of hearing:-

	27 weeks x £153.52 (net weekly wage) 	=	£4,145.04

	Future loss of earnings:-

	12 weeks x £153.52 	=	£1,842.24

(C)       Loss of statutory rights
			    £300.00

	Total compensatory award for unfair dismissal 	=	£5,987.28

	Increase in compensatory award of 35%       	ADD	£2,095.54

	TOTAL compensatory award after increase 	=	£8,082.82

	Prescribed element  	=	NIL

	The tribunal considers that a reduction for contributory fault is not appropriate in this case.

	Accordingly, the tribunal hereby orders the respondent to pay to the claimant compensation for unfair dismissal in the sum of £9057.82.

33.	 The claimant is also entitled to 2 weeks pay in respect of notice pay for the weeks commencing 31 May 2010 and 7 June 2010 calculated as follows:-

Award in respect of notice monies 2 x £168.75 (gross weekly pay) = £337.50

34.	In addition, the claimant is entitled to payment of the sum of £393.75 in respect of holiday pay.

Award in respect of holiday pay = £393.75

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

Chairman:

Date and place of hearing:	14 December 2010, Belfast.

Date decision recorded in register and issued to parties: