THE INDUSTRIAL TRIBUNALS 

CASE REF:  2612/11

CLAIMANT:		David Lemon 

RESPONDENTS:	1.  Kevin Dale t/a Direct Promotions 
			2.  Direct Promotions Limited 

DECISION

The decision of the tribunal is that the claimant was unfairly dismissed by the respondent. We also find that the respondent failed to provide the claimant with a  written contract or itemised pay statements, to pay him for holidays and to pay his last 3 weeks’ pay. We order the respondent to pay the claimant the sum of £13289.63 by way of compensation.

Constitution of Tribunal:

Chairman:	Miss E McCaffrey

Members:	Mrs L Hutchinson
		Mr D Edmont

Appearances 

The claimant was represented by Mr Stephen Mearns of John Ross and Sons Solicitors.

The respondent was represented by Mr Corkey, Barrister-at-Law, instructed by Stephen Chambers Solicitors Limited.

THE ISSUES 

The issues for the tribunal to decide were as follows:-

1.	Given that the respondent agreed the claimant had been dismissed, was the claimant unfairly dismissed?

2.	Did the respondent follow the appropriate statutory procedures in relation to the claimant’s dismissal?

3.	If the correct procedures had been followed, would the claimant nevertheless have been dismissed?

4.	If the dismissal was automatically unfair, should the award be uplifted and if so, by what percentage?

5.	Did the claimant receive an itemised pay statement?

6.	Did the claimant receive a written contract?

7.	Was the claimant paid for his holidays and if not, how much is he owed for this?

8.	Did the claimant suffer unlawful deductions of wages in that he did not receive his last month’s pay?

THE FACTS

9.	Having heard evidence from the claimant, from the respondent and from Mr John Johnston (a former employee of the respondent) and having the opportunity to consider the documents open to us in the course of the hearing, we make the following findings of relevant facts.  We note that there was a conflict of evidence between the claimant and the respondent in particular on a number of issues and the facts found reflect our findings in relation to these matters.

10.	The claimant was employed by the respondent as a van sales driver from 13 July 2010 until 22 August 2011.  He was aged 38 at the date of his dismissal.

11.	The respondent’s business was selling products on promotion into garage shops throughout Ireland and drivers working for him covered a number of shops which they were given as their “run”.  The procedure was that drivers would visit the various garage forecourts within their “run”, leaving stock which was invoiced to the garage.  Two to four weeks later, the drivers would call back at the garage to put fresh stock in place and collect any returns for which the garage owners were credited.  The drivers were paid 8.5% commission on the net amount of their sales, namely the sales less the goods returned.

12.	The claimant started in the business in July 2010 and had a trial period of one month.  Completing his run could take up to 3 days and both the claimant and Mr John Johnston noted that they worked long hours to cover the extent of the run.

13.	The respondent stated that he ran the business himself, it was a small business and that he did not have any management system. He subsequently said that the firm had “No procedures”, including disciplinary procedures. He did not provide his staff with a contract of employment or with pay slips. He did not know exactly what pay the sales drivers received.  He said another member of his staff dealt with that and did not appear to think he had any personal responsibility in this regard.  It appeared that for some time the respondent had not been accounting for tax and national insurance on employees’ pay but he advised the tribunal that this was now all up to date.  He also stated that his sales staff did not receive paid holidays because, in his words, he paid them “full commission” and they did not receive any pay when they took leave.

14.	In the summer of 2011 the respondent alleged that he had checked the sales figures recorded by the claimant and the return of goods.  The respondent said that he became concerned the claimant had not lifted his credits and was in fact “manipulating” his figures to show higher sales figures.  There were figures produced to the tribunal showing the sales figures which were achieved and showing the credits.  While these fluctuated from month to month, there was no particular rise in the amounts of his sales through May, June and July, the last full months that he worked.  On the contrary, his sales figures were actually higher in November and December of 2010 and particularly high in the months of January, February and April of 2011. There was no discussion of this with the claimant, nor was any disciplinary action taken against the claimant in this regard.  We therefore do not accept the respondent’s comments in this regard. 

15.	On 2 August 2011 the claimant was travelling from Newry through Drogheda and Dublin to Kildare, Portlaoise, Kilkenny, Tipperary, East Cork and West Cork arriving in Cork at 7.30 pm in the evening.  All of the vans were fitted with a tracker devise which allowed the respondent to monitor their location and their speed.  On 4 August 2011, the claimant’s travel record started at 11.18 am in West Waterford and travelling then via Kilkenny, Carlow, Kildare and via the Naas dual carriageway to West Dublin and to Swords at 2.30 pm.  On 5 August the claimant’s journey started in Bangor County Down and went via Belfast and Lisburn, Armagh, Monaghan, Newry, Drogheda, South Newry, North Newry, Lisburn and back to Belfast.  His tracker showed his journey starting at 7.51 am and finished at 4.33 pm.

16.	On 4 August 2011, the respondent sent a claimant a text message telling him to “Kill his speed”.  The claimant texted back, “Didn’t think I was going fast, what speed was I going?”  The respondent replied, “You can read the report yourself 90mph on Tuesday, not far off it today. Unacceptable”.  The claimant replied, “Didn’t even realise.  Sorry about that”.  It was the claimant’s evidence and we accept that the respondent did not mention the issue of his speeding to him again on his return from his journey.  In fact, on checking the records, the claimant was not shown as travelling at 90mph on 4 August 2011.  His highest speed was 85mph and his average speed throughout the journey was closer to 70-75mph.  It is correct however that the claimant was exceeding the speed limit on a number of occasions.

17.	In the summer of 2011, the claimant said that he had become increasingly concerned about the fact that he had not received written terms and conditions of employment and that he had not received any pay slips.  He had spoken to some of the respondent’s previous employees about the matter and they had expressed similar concerns, he said.  He discovered that the respondent had not been paying his PAYE tax and national insurance by telephoning HMRC and making enquiries.  He was told by HMRC that they had no record of the appropriate contributions having been paid for the claimant.  The claimant was also conscious that although he had received time off, he had not been paid for it.  The claimant worked for the respondent through the summer and winter of 2010/2011.  It was the claimant’s evidence, and this was not disputed by the respondent, that he had verbally requested a contract of employment but had not received this.

18.	On 16 August 2011 the respondent had asked the drivers to take out “bubble bags” to place with their customers.  The claimant had pointed out to the respondent that he had already tried to place these bubble bags but that they had not sold well and the garages didn’t want them.  The respondent insisted that the claimant should take them.  The claimant set out on his run without taking the bubble bags with him and then received a telephone call from the respondent insisting that he would pick up his allocation and do as he was asked to do.

19.	The claimant went and picked up the bubble bags but when he reached Dundalk, he said that he was feeling unwell and very unhappy about a number of issues, not least the respondent’s attitude and his failure to provide itemised pay statements.  The claimant said he was concerned that he could himself be in trouble if his tax and National Insurance was not paid.  He phoned the respondent, who told him to return to the office.  On his return, the claimant said he would make an appointment to see his doctor and the respondent was content with that.  The claimant got an appointment with his doctor three days later and the doctor gave him a sick line.  The claimant could not reach the respondent by phone to tell him of the sick line, so he left a text message for him.  This was on 18 August and the claimant received no contact at all.  On 18 August the day the text message was sent, the claimant then received a text message from the respondent asking him to come in on 22 August at 4.00 pm “for a chat”.  There was no indication of what the meeting was about.

20.	It was the respondent’s case that when the claimant went off sick on the 16 August, the respondent at that stage reviewed the claimant’s situation, in his words, to see what was “going wrong” with the claimant. The respondent said that at this point he became very concerned about the claimant’s driving and the fact that he had been speeding so much.  He did not notify the claimant of this before the meeting on 22 August.

21.	On 22 August 2011 the claimant went as arranged to see the respondent.  The respondent had a friend of his, Victor Flavin, present at the meeting.  The respondent’s evidence was that he had asked the claimant if he wished to have anyone else present when he arrived and that the claimant had said no.  The claimant was clear in his evidence that the respondent had not asked if he wished to have anyone present and we accept the claimant’s evidence on this point.

22.	There were two different versions of the meeting which followed.  The respondent clearly said that he had raised the issue of the claimant’s speeding with him and dismissed him on this basis.  The claimant said that the speeding was never mentioned but that the issue of the “bubble bags” was referred to and that the respondent then told the claimant that he was going to “draw a line” under the whole thing and let him go.  The respondent also told the claimant that he “didn’t think his head was in it anymore”.  The respondent also told the claimant that he would pay him his wages as normal and that the claimant would receive a letter in the next couple of days about the meeting.  The claimant thanked the respondent and gave him a letter which he had brought with him to the meeting in relation to the issue of his contract of employment and pay slips.  In the letter, the claimant also raised the fact that he was not entitled to any form of holiday pay, notice period and disciplinary procedures.

23.	On leaving the meeting, the claimant went outside and spoke to his colleagues in the warehouse and told them that he had been dismissed.  He also made them aware of his telephone conversation with HMRC staff about his tax and National Insurance.

24.	Following the claimant’s dismissal, he attempted to ring the respondent’s office to obtain his outstanding pay.  He was told by Heather White in the office that he would have to contact the respondent about it.  He had texted the respondent on 31 August and left a message for him but had received no reply.

25.	The tribunal was shown a number of texts which had been forwarded from the respondent’s phone to the claimant’s phone.  These appeared to be from a woman.  The respondent first of all sent the claimant a text on 22 August (the day the claimant was dismissed) saying “Just been informed of your actions against my company … your ex colleagues are not impressed with you…..personally I am delighted its them you have to answer to.  Promotions is a tough racket.”  This was followed by three texts sent by the respondent, to the claimant, which the respondent alleged were forwarded by him as they had been sent by the girlfriend of a claimant.  The respondent then sent a further message saying “That comes from your hairdresser friend she says hi xx”.

26.	The claimant said that he was confused as to where these messages had come from.   He could only think that the respondent had done this to try and scare the claimant.  He said the respondent was aware that while the claimant had been separated from his wife, he had seen someone else for a period of time and he wondered if the respondent had sent these text messages to try and make trouble between him and his wife.  He was also concerned that the respondent was trying to scare the claimant because the claimant had been in touch with HMRC in relation to the PAYE tax and National Insurance.

27. 	Following the meeting on 22 August, the claimant received a letter from the respondent dated 1 September 2011.  This stated that the claimant had been dismissed for gross misconduct, the nature of the conduct being the four day period during August when “You drove a company vehicle at excessive and illegal speeds in contravention of Road Traffic legislation and against company policy.  This was a dangerous and illegal action which is totally unacceptable to the company.”  The letter set out a number of incidents of excessive speed and then went on to say that once an account had been taken of the claimant’s customer accounts any money due to him would be paid.  The letter does not refer at any point to the claimant having a right to appeal against the dismissal.

28.	In relation to the company’s policy on excess speeding, it was the claimant’s evidence that when he started work with the respondent, the respondent had gone out with him on his run at one stage and had said to him, “These things can go up to 80mph you know,” which the claimant took as a directive to drive faster.  The respondent made the point (and the claimant agreed) that each van had a sticker in the front which indicated that drivers should not speed.  However, the claimant was clear that the issue of speeding was not discussed either with the drivers as a group or individually and he was not aware that speeding would be treated as a disciplinary matter.  The claimant also indicated that in January or February of 2011, he was in the office one day when the respondent threw a ticket at him from the PSNI in relation to excess speed by the claimant.  The respondent told the claimant to “deal with it.”  The claimant had the option of accepting points on his licence and a fine or a speed awareness course.  He said, and we accept, that he was given time off work by the respondent to attend the speed awareness course.  He said that he was also aware that Jason Johnston, another employee, had received a speeding ticket and had also attended the speed awareness course.  Neither of them was subject to any disciplinary action in relation to this matter.

29.	Mr John Johnston (who gave evidence for the claimant) said that the sticker in relation to not speeding was never in any van he had driven for the respondent while employed by him.  He confirmed however that his brother Jason had received points in relation to speeding and he confirmed that he was not aware of anyone apart from Mr Lemon being allegedly disciplined for speeding.  He also gave evidence that he had himself had been dismissed by the respondent while off sick, for allegedly not meeting targets of which he said he had not been notified, although he was asked to work a month’s notice.

30.	After the claimant had issued his proceedings to the industrial tribunal and he had received a notification of hearing, he noticed a missed call on his phone from the respondent.  As he was still waiting for outstanding wages, he returned the call but recorded the phone message.

31.	The content of that telephone call was as follows:-

Claimant 	Who are you ?

Respondent	You know exactly who it is silly div head

Claimant	Is that Kevin >

Respondent	that?? Listen I am going to find you once this court things by then I am going to let you know and let you f**king see what it’s like to be a wanker and make a cunt of folk and all the folk you f**king work with right

Claimant 	What are you talking about 

Respondent 	Get that clear in your f**king head you slimy wee piece of shit

Claimant 	What are you talking about ?

This was the end of the conversation.  The claimant felt intimated by this, spoke to his wife and contacted the police in relation to the matter.

32.	Following his dismissal the claimant managed to find work as a driver delivering fruit and vegetables to customers.  He said that this was a temporary job but had been employed in this job since around the beginning of October 2011.  He said that his hours varied to a certain extent but that he was earning an average of about £140.00 per week net.

33.	The claimant had received job seeker’s allowance from the date of his dismissal until he started work at the beginning of October and the total amount received was £261.80.

34.	In relation to the claimant’s final wages, the respondent asserted that when he had checked out the goods held by the garages on the claimant’s run there was a considerable amount of stock lying out for which credits had to be applied, indeed a total figure of over £26,000.  The respondent alleged that this supported his view that the claimant had not been properly accounting for credits and that he was failing to lift returns.  The claimant disagreed with this and said that the figures in the final accounts actually reflected the full stock held by each garage.  He said that if this was averaged out it would account for stock held by each garage of approximately £350.00 worth of goods and that he reckoned that a similar amount had been placed in each store when he first took over the run.  We accept that the claimant was not in any way manipulating the figures and that the final figures for the amount due to him as recorded by the respondent are inaccurate because of the high level of credits which he applied.

THE RELEVANT LAW 

35.	Unfair Dismissal

It is well established that the claimant has the right not to be unfairly dismissed as set out in Articles 130 and following of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”). We have not set out the relevant case law as it is well-established and easily accessible.

Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides as follows:

“130	(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) 	relates to the capability or qualifications of the employee for performing work of a kind which he was employed by the employer to do,

		(b) 	relates to the conduct of the employee,

		(c) 	is that the employee was redundant, or 

		(d) 	is that the employee could not continue to work in the position which he held without contravention (either on his part or that of his employer) of a duty or restriction imposed by or under a statutory provision …”

In relation to the issue of procedural fairness, the appropriate provisions are to be found in Article 130A which provides as follows:-

“130A	(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 I 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 130A(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.

	(3)	For the purposes of this Article, any question as to the application of a procedure set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under Article 17 of that Order.”

The statutory disciplinary and dismissal procedures set out in Schedule 1 of the 2003 Order comprise three stages: a letter from the employer to the employee, setting out the alleged misconduct and inviting the employee to a disciplinary meeting at which he is entitled to be accompanied; the disciplinary meeting at which the employee is entitled to be heard and to reply to the allegations against him; a written decision to the employee and if appropriate, the right to appeal the decision.

Article 17(3) of the Employment (Northern Ireland) Order 2003 makes provision for the uplift of awards in a case to which the statutory procedures apply, but they have not been followed due to the failure of the employer.  The tribunal should increase the award by 10% and may, in situations where it considers it just and equitable to do so, increase it by up to 50%.

Written terms and conditions of employment

An employee is entitled to receive written terms and conditions of employment by virtue of Articles 33(1) and 36(1) of the 1996 Order.  By Article 27 of the 2003 Order, where the tribunal finds that that no contract has been provided, it shall award 2 weeks’ gross pay, and may award up to 4 weeks’ gross pay if it considers it just and equitable to do so.

Failure to provide an itemised pay statement

The right to receive an itemised pay statement is set out in Article 40 of the 1996 Order.  The objective of the legislation is to ensure that employers are accounting for PAYE tax and National Insurance on pay to their staff and that employees can see clearly that this has been done.  The remedy reflects this: Article 44(4) of the 1996 Order  provides :

		“Where on a reference in the case of which paragraph (3) applies the tribunal further finds that any unnotified deductions have been made from the pay of the employee during the period of thirteen weeks immediately preceding the date of the application for the reference (whether or not the deductions were made in breach of the contract of employment), the tribunal may order the employer to pay the employee a sum not exceeding the aggregate of the unnotified deductions so made.” 

A week’s pay

In cases where there is a dispute about the correct figures for a week’s pay, as in this case, the tribunal needs to calculate the correct pay based on the 12 weeks’ of employment prior to the date of termination.  (Article 18 of the 1996 Order).  The current maximum for a week’s pay is £400 per week.

Unlawful deductions from wages

An employee is entitled not to have unlawful deductions made from any wages to which he is contractually entitled by virtue of Article 45 and following of the 1996 Order, and this includes unpaid wages, although the claimant may also pursue such a claim as a breach of contract.

Paid holidays

All employees are entitled to a minimum of 28 days paid holiday per year, under Regulation 30 of the Working Time Regulations 1998 (as amended).

REASONS AND DECISION

36.	Questions 1-3: Was the claimant unfairly dismissed?

The first issue for us to consider was whether the claimant was unfairly dismissed.  The respondent agreed that he had been dismissed, so the only issue for us is the fairness of the dismissal.  From the statutory procedures set out above at paragraph 35 above, and from the respondent’s own evidence, it is clear that these were not followed and so we find that the dismissal is automatically unfair.

37.	We must then consider whether, if the proper procedures had been followed, the claimant would nevertheless have been dismissed.  As part of our deliberations, we have considered what the principal reason for the dismissal actually was and what was in the employer’s mind as the reason at the date of dismissal.  The respondent said it was because of the claimant’s driving at excessive speed in early August.  However, although there was a text record of an exchange between the claimant and the respondent at the time, there was no disciplinary follow up.  The claimant was not aware of any company policy on speeding or driving offences generally and had not been made aware that a driving offence/conviction could endanger his job.  Indeed, when he received a notice about speeding from the PSNI, the respondent’s attitude was that it was for the claimant to deal with it, and he was given time off work to attend a speed awareness course.  A similar course was attended by another employee, Jason Johnston.

38.	The respondent’s evidence was that when the claimant went off sick in August, he started to carry out a review of the claimant’s “situation” to see, as he put it, what was “going wrong” with the claimant.  Added to this was the fact that, just prior to the claimant going off sick, the claimant had queried a work instruction in relation to the “bubble bags” and had verbally requested a written contract and payslips.  The accounts given by the respondent and the claimant of the “disciplinary meeting“ are also at odds: the respondent says the claimant’s excessive speed was discussed, the claimant said it was not, although there was a reference to the “bubble bag” matter which he found difficult to follow and that the respondent told him that he didn’t think the claimant’s “head was in it any longer.”  We are not persuaded by the respondent’s account of the events leading up to the claimant’s dismissal and we do not believe that excess speed on the part of the claimant was the principal reason for his dismissal.  Accordingly, if the correct procedures had been followed, we believe the claimant would not have been dismissed.  We find that the claimant was unfairly dismissed and we set out the award in more detail below.

39.	Question 4:  Should the award be uplifted and if so, by how much?

Given the evidence we heard about the complete lack of procedures and the cavalier attitude adopted by the respondent, we believe a substantial uplift is appropriate. It is not enough for the respondent literally to shrug his shoulders to the tribunal and say that his is a small business and they have no procedures. In this case we believe it would be just and equitable to award an uplift of 30% on the award.

40.	Question 5:  Did the claimant receive an itemised pay statement?

The respondent himself conceded that the claimant did not receive itemised pay statements and so that is our finding. Under the relevant provisions of the 1996 Order, the claimant is entitled to an award of the unnotified deductions made for a period of up to thirteen weeks immediately preceding the application to the tribunal. As the claimant lodged his claim on 18 October 2011, 8 weeks after his dismissal, we award him an amount equal to the aggregate deductions made for the 5 weeks he was still employed during that thirteen week period.  We note that although the respondent told us that he had paid the appropriate PAYE amounts, he was not able to produce pay records to confirm the gross and net pay to which the claimant was entitled. There was no agreement between the parties on the claimant’s correct pay and we have had to reach a decision on this as well. The basis of this decision is set out below at paragraph 45.  The calculation is set out below.

41.	Question 6:  Did the claimant receive a written contract?

The respondent agreed that the claimant had not received a written contract. In light of the respondent’s attitude about the total lack of procedures in his business, we consider it would be just and equitable to award the claimant four weeks’ gross pay by way of compensation.

42.	Question 7:  Was the claimant paid for his holidays and if not, how much is he owed for this?

	The respondent agreed the claimant was not paid for holidays and so he is entitled to be paid for 28 days’ holiday at his net pay.

43.	Question 8:  Did the claimant suffer unlawful deductions of wages in that he was not paid for his work in August 2011?

It was agreed that the claimant did not receive his pay for August 2011 and he is entitled to this.  We order that the respondent should pay him an amount for August 2011 which we have calculated on the basis of three weeks’ pay as set out below.

Calculation of Award

44.	As there was no agreement between the parties as to the correct gross and net pay for the claimant, we have used the figures provided by the respondent as the basis for our calculations.  The respondent had provided a schedule showing the monthly net sales figures on which the drivers’ 8.5% commission was based and the net amounts paid to the claimant monthly.  On checking these figures, we became aware that the net figures paid to the claimant represent the gross commission less 22%, which we assume represents standard rate tax.  To obtain the correct net figures, we have applied the general tax code (747L) to the gross commission figures we had calculated.

On this basis, the claimant’s pay for the last three complete months he worked for the respondent were as follows:

May                  	Gross £1354.19                  	Net  £1117.71
June                 	Gross £1523.06                  	Net  £1232.54
July                   	Gross £1210.54                  	Net  £1020.03

45.	Applying the method set out in Article 18 of the 1996 Order, we then calculated the average gross and net weekly pay over the thirteen week period represented by these three months.  The gross pay was £314.44, the net pay was £259.25 and the average deductions for tax and National Insurance were £55.19.

46.	We have therefore calculated the claimant’s award for unfair dismissal as follows:

Basic Award

The claimant had one year’s service at the date of dismissal and was aged 38, so he is entitled to 1 week’s pay:   			  £   259.25

Compensatory Award

(A) 	Loss from 22-08-2011 to 03-10-2011(when claimant found work)
6 weeks x £259.25  =       					 £  1555.50

(B) 	03-10-2011 to 02-03-2012 (date of hearing) - 22 weeks

Loss of earnings (£259.25 - £150)= £109.25 x 
22 weeks =                       					£  2403.50

(C) 	Future loss – 26 weeks

£109.25 x 26 weeks    =    					£  2840.50 

Uplift of 30%       =                    					£  2117.62       
                                                            
	Loss of statutory rights -                                                           £    350.00                                                          
 	Total unfair dismissal award          				£  9526.37                                                              

	Failure to provide written contract : 
	4 weeks’ gross pay  £314.44 x 4 =   				£ 1257.76                                                          

Failure to provide itemised pay statements:
5 weeks’ deductions @ £55.19 per week =          		£    275.95                                            

Failure to pay Holiday pay 
28 days @ £ 51.85 (£259.25 divided by 5) =  			£  1451.80                                               

Pay for August 2011 
3 weeks @ £259.25 =                      				£    777.75                                                                 

Total award                	    					£13289.63                                                                               

47.	We order the respondent to pay the claimant £13289.63 by way of compensation.                                   

48.	This award is subject to recoupment in accordance with the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 (as amended).  The monetary award for unfair dismissal is £9526.37.  The amount of the prescribed element is £3959 and the dates to which the prescribed element applies are 22 August 2011 to 2 March 2012.  The monetary award exceeds the prescribed element by £5567.37.

Costs

49.	We have considered the claimant’s application for costs in this case.  Although we found the respondent’s explanations totally inadequate and his treatment of the claimant was shabby to say the least, we believe he has already been penalised by the uplift in the award.  We do not consider that the behaviour of the respondent in the conduct of the case sufficiently vexatious or unreasonable to merit the award of costs.

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

Chairman:

Date and place of hearing:  14 February and 2 March 2012, Belfast.

Date decision recorded in register and issued to parties: