THE INDUSTRIAL TRIBUNALS  

    CASE REFS:	2894/11
127/12

CLAIMANT:			Ian Stewart                                                                                       

RESPONDENT:		Aber Systems Limited

DECISION

(A)	The claimant’s claim in respect of notice pay is well-founded and it is ordered that the respondent shall pay to the claimant the sum of £803 in respect of notice pay.

(B)	The claimant’s claim in respect of redundancy pay is well-founded and it is declared that the respondent is liable to make a redundancy payment of £1,939 to the claimant.  

(C)	The claimant has not pursued any claim in respect of holiday pay.  Accordingly, that claim is formally dismissed.  

(D)	The claimant’s claim in respect of unfair dismissal is well-founded.  A hearing in respect of unfair dismissal remedies will take place at a later date, if the claimant chooses to pursue such remedies.  (See below).

Constitution of Tribunal:

Chairman:		Mr P Buggy	

Members:		Mr J Law
			Mr C McIlwaine

Appearances:

The claimant was self-represented.

The respondent was debarred from participating in the proceedings, because it did not presented a response in either of these cases.

REASONS

1.	We were satisfied that the claimant had been employed for six years by the respondent company, until 21 October 2011, and that, with effect from that date, he was dismissed without due notice, ostensibly because the company was ceasing to trade.

2.	The claimant’s notice pay has been calculated on the following basis.  The claimant was entitled to net pay in respect of a period of five weeks beginning on the date of termination of his employment.  (Because, at the time of dismissal, the claimant worked for six years for the respondent company, he was entitled to six weeks’ notice, but he was in fact given only one week’s notice of dismissal).  Notice pay awards are subject to reduction to take account of any wages received from new employment, in respect of any part of the notice period, if that new employment was made possible because of the termination of the old employment.  Such awards are also subject to reduction to take account of any social security benefits received, or receivable, in respect of the notice period.  

3.	The claimant’s redundancy pay award has been calculated on the basis of his gross weekly pay of £277 per week.  He was entitled to redundancy pay calculated on the basis of seven weeks, because he is deemed to have been employed by the company for more than seven years and because he was aged more than 21 years of age and less than 41 during each of his years of service.

4.	Although the claimant was actually employed only for six years by the respondent company, he would have been employed for at least seven years if he had been given due notice.  Accordingly, for the purpose of calculating his redundancy pay, we have treated him as having been employed for seven years: see Article 180(5) of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”).

5.	We are satisfied that the claimant was unfairly dismissed because it is clear that there was no pre-dismissal consultation with him in relation to the contemplated redundancy.  

6.	We have decided to defer consideration of remedies until 5 October 2012.  If, in the meantime, the claimant decides not to pursue any claim in respect of an unfair dismissal award, he should notify the Secretary of the tribunals, to that affect, in writing, by mid-September 2012.

7.	The reasons for the deferral of the unfair dismissal remedies hearing are as follows.

8.	First, the claimant does not appear to be confident that any unfair dismissal award could be enforced, in practice, against the respondent company.  Only the Basic Award element of any unfair dismissal award would be within the scope of any potential statutory guarantee (whereby, in some circumstances, the Department for Employment and Learning acts as guarantor in respect of certain unsatisfied claims against employers).  The amount of any basic award would be subject to reduction by the amount of any redundancy payment (thus, in practice, in the circumstances of this case, reducing that Basic Award to nil). 

9.	Secondly, it is at present unclear whether, in the long term, the claimant will suffer any substantial loss of wages as a result of his dismissal.  (He is currently employed, by a new employer, at a salary of £1,167 per month, but the current position is that his employment is temporary, for the purpose of providing maternity cover). 

10.	Thirdly, the current position is that the respondent company has not become formally “insolvent” (in the sense in which the term “insolvent” is usually used within the context of the statutory guarantee legislation).  Accordingly, the current position is that the Department has no power to make any payment to the claimant in respect of anything except redundancy pay; so, even the Basic Award element of any award of unfair dismissal compensation is currently outside the scope of the statutory guarantee. 

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

Chairman:

Date and place of hearing:  8 May 2012, Belfast.		
Date decision recorded in register and issued to parties: