THE INDUSTRIAL TRIBUNALS

CASE REF:    1411/12  

CLAIMANT:	John Samuel Matthew Robinson

RESPONDENT:	McQuaid Engineering Ltd

DECISION

It is the unanimous decision of the tribunal that the claimant was unfairly dismissed by the respondent and that when proceedings were commenced the respondent was in breach of its duty to provide the claimant a written statement of employment particulars.  The respondent shall pay the claimant £2,339.70.

Constitution of Tribunal:

Chairman:	Ms M Bell

Panel Members:	Mrs M Mallon
	Ms M Galloway

Appearances:

The claimant was self-represented. 

The respondent was represented by Mr Paul McQuaid and Ms Julie McQuaid, managing director and a director of the respondent company respectively.

1.	The claimant in his claim complained that he had been unfairly dismissed because statutory procedures were not followed when he was dismissed by reason of redundancy with immediate effect without any prior notification on 5 May 2012 and that he had never received a statement of employment particulars from the respondent.

2.	In its response the respondent resisted the claimant’s complaint on the basis that the claimant would have been dismissed in any event and has been in a better job since before expiry of notice but acknowledged no statement of employment particulars had been provided.  At hearing the respondent acknowledged that the claimant’s dismissal was automatically unfair for failure to comply with the statutory minimum dismissal procedures and was only resisted in terms of the amount of compensation sought.

EVIDENCE

3.	The tribunal considered the claim, response, documentation handed in by the claimant and respondent and heard oral evidence from the claimant, Mr McQuaid and Ms McQuaid.

ISSUES FOR THE TRIBUNAL

4.	The issues before the tribunal were as follows:-

	i.	Has the claimant been unfairly dismissed?

	ii.	Is the respondent in breach of its duty to provide a statement of particulars of employment?

	iii.	If so, what remedy is appropriate?

FINDINGS OF FACT

5.	Prior to commencing employment with the respondent the claimant applied to the respondent for a job as a design engineer.  The claimant was later employed by the respondent on 2 August 2010 in the role of after sales service and parts engineer for which he was paid on average £384.45 gross being £315.00 net per week.  No statement of particulars of employment was furnished by the respondent to the claimant.

6.	The respondent was involved in a scheme through Invest NI under which it had a programme providing for it to take on employees in three new positions, the first of which was a financial advisor, which it did.

7.	Around November 2011 the respondent started a process of engagement with  financial and production management consultants appointed by Invest NI to deal with issues in particular relating to its cash flow, the result of which was that a decision to downsize the company was eventually taken at the beginning of May 2012.

8.	On or about 4 May 2012 Mr McQuaid accepted the advice of the management consultants that the respondent needed very quickly to cut back on its costs otherwise it would not be able to meet weekly bills and a decision was made to proceed by targeting what they considered to be the respondent’s largest salaried non-production employees.  At that stage the respondent had already placed adverts in the local press for the second new position provided for under the Invest NI programme being a design engineer role, but in view of the respondent’s financial situation it was decided that it could not afford to proceed with that appointment.

9.	On 4 May 2012 the claimant was invited to a meeting with Mr McQuaid, Ms McQuaid and the respondent’s financial advisor at which the claimant was advised without any prior notice that he was being made redundant with immediate effect and would be paid to the end of the month but informed that if he got a new job before then and required it, his P45 could be issued prior to then.  At that time Ms McQuaid was responsible for the respondent’s HR matters and assumed because the claimant was not entitled to a statutory redundancy payment that the respondent had in paying the claimant to the end of the month fulfilled its obligations to him, she was not aware of the applicable statutory minimum dismissal procedures or redundancy procedures and had not any sought advice thereon.

10.	Including the claimant, the respondent made three employees redundant on 4 May 2012.  Since then the respondent’s workforce has reduced in total from thirty-five to twenty-two employees, including a reduction in its design department from five to two employees.

11.	Within a week of the claimant’s dismissal the respondent started a trainee design engineer in a trainee role on a low salary subsidised by Invest NI for a one year period.

12.	Consideration was not given by the respondent at the time of the claimant’s redundancy to making the trainee’s position available to the claimant by way of alternative employment or to other alternative employment.  The respondent in evidence discounted the suitability of the trainee position for the claimant or existence or any other alternative employment in view of his skills and salary expectations in particular having recently sought a pay rise.

13.	On 4 May 2012 the claimant was paid £321.57 by the respondent in respect of wages due for the last week worked by him.  The respondent then paid the claimant  four further payments each for £303.03 net (after tax, NIC and a student loan deduction of £7) being £384.45 gross, on 11, 18, 25 May 2012 and 1 June 2012 and payslips were subsequently furnished in respect of these payments.

14.	The claimant succeeded in obtaining a new job as a design engineer which he commenced with his new employer on 28 May 2012 at a higher rate of pay than his employment with the respondent.

THE LAW

15.	The Employment (Northern Ireland) Order 2003 at Schedule 1 sets out Statutory Dismissal and Disciplinary procedures to be followed as a bare minimum where applicable, by an employer contemplating dismissal or taking disciplinary action against an employee.  The standard procedure in summary consists of three steps requiring an employer to provide an employee at Step 1 with a written statement of grounds for action and an invitation to a meeting, at Step 2 a meeting and at Step 3 an appeal.

16.	Under Article 126 of the Employment Rights (Northern Ireland) 1996 Order an employee has the right not to be unfairly dismissed by his employer.  Article 130 sets out how the question of whether a dismissal is fair or unfair is to be determined, however under Article 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 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Procedures) applies in relation to the dismissal,

	(b)	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.

	There is provision at Article 17 of the 2003 Order for an uplift to be applied to awards in proceedings before an Industrial Tribunal relating to a claim under any of the jurisdictions listed in Schedule 2 [which includes Article 145 of the 1996 Order (Unfair Dismissal)] by an employee where it appears to the Industrial Tribunal that a claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies, the statutory procedure was not completed before the proceedings were begun, and the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer to comply with the requirement of the procedure, in which case it shall (subject to paragraph (4) therein) increase any award which it makes to the employee by 10% 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%.

17.	Where an Industrial Tribunal finds the grounds of complaint of unfair dismissal are well-founded the Orders it may make are set out at Articles 146 of the 1996 Order and include reinstatement, re-engagement and otherwise compensation.  How compensation is to be calculated is set out in Articles 152 to 161.

18.	Article 154(1 A) of the 1996 Order provides that where an employee is regarded as unfairly dismissed under Article 130A (1) and the basic award amount is less than four week’s pay then the Industrial Tribunal shall increase it to the amount of four week’s pay unless under Article 154(1 B) it considers the increase would result in injustice to the employer.

19.	An employer is required to provide a written statement of particulars of employment to an employee under Article 33(1) of the 1996 Order.  There is provision under Article 27 (3) of the 2003 Order such that where the tribunal makes an award in relation to proceedings listed in Schedule 4 which includes unfair dismissal and the employer is in breach of that duty when the proceedings were begun the tribunal shall increase the award by the minimum amount, being two weeks’ pay, and may, if it considers it just and equitable in all the circumstances, increase the award by the higher amount instead, being four weeks’ pay.  The duty does not apply if there are exceptional circumstances which would make an award or increase unjust or inequitable.

20.	The overriding duty imposed on a tribunal on a finding of unfair dismissal is to award compensation which is just and equitable in the circumstances.  Harvey on Industrial Relations and Employment Law/Division D1 Unfair Dismissal 19, discusses compensation and how this should be assessed, in particular speculative loss where a dismissal might have occurred and sets out at Paragraph [2546] that “in some cases it is difficult to be certain whether the dismissal would have occurred had the employer acted fairly.  Classically this problem arises in circumstances where the employer has failed to act fairly because he has failed to apply certain procedural safeguards which might, had they been applied, have led to the employee retaining his job.  Prior to the decision in Polkey  v  AE Dayton Services Ltd [1987] IRLR 503, [1988] ICR 142, HL, the Courts took the view that if on the balance of possibilities the dismissal would have occurred, then the dismissal should be held to be fair.  This view was embodied in the principle of British Labour Pump  v  Byrne which the House of Lords in Polkey held was not good law.  Lord Bridge indicated, however, that the chances of whether or not the employee would have been retained must be taken into account when calculating the compensation to be paid to the employee.  Accordingly, if the prospects of the employee having kept his job had proper procedures been complied with were slender, then there would be a significant reduction in compensation.”  Reference is made to Browne-Wilkinson J in Sillifant  v  Powell Duffryn Timber Ltd [1983] IRLR 91 as putting it; “there is no need for an “all or nothing” decision.  If the [Employment] 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 employment.”

APPLYING THE LAW TO THE FACTS FOUND

21.	The standard procedure of the statutory dismissal and disciplinary procedures was applicable to the claimant’s dismissal but on the respondent’s own admission, it was not aware of the required procedure and so it was not followed.  The tribunal finds that the claimant’s dismissal by the respondent was automatically unfair under Article 130A (1) of the 1996 Order, the non-completion of the dismissal and disciplinary procedures being wholly attributable to the failure of the respondent to comply with its requirements.

22.	Whilst following the required statutory procedure may have allowed the claimant some opportunity to discuss with the respondent steps to avoid or mitigate against his potential redundancy and whilst it is properly a decision for an employee facing redundancy to decide upon the suitability of available alternative employment, in light of the respondent’s immediate financial difficulties necessitating an on-going substantial reduction in its workforce since and the lack of alternative employment otherwise potentially available save for a trainee design engineer post, the tribunal is persuaded that even had the statutory procedures been followed there is a likelihood that the claimant would still not have retained his employment with the respondent.  The tribunal on consideration of all the circumstances considers there to be a 90% chance that the claimant’s employment would still have come to an end in May 2012 had the statutory procedures been followed and on that basis find it just and equitable to reduce the compensatory award by 90% to reflect this.

23.	In light of the respondent’s ignorance of its obligations under the statutory dispute resolution procedures rather than a deliberate disregard of same, the tribunal considers it just and equitable in all the circumstances to increase the compensatory award by 10% under Article 17 of the 2003 Order.

24.	The tribunal awards compensation for unfair dismissal as follows:-

	Basic Award

	As the claimant’s basic award would amount to less than four week’s pay the tribunal increases it to an amount equal to four week’s pay under Article 154 of the 1996 Order.

	4  x  £384.45	=	£1,537.80

	Compensatory Award

	Taking into account payments made to the claimant up to 1 June 2012 by the respondent and the claimant’s commencement of new employment at a higher rate on 28 May 2012, the tribunal considers the following compensation just and equitable:

	Loss to Date of Hearing

	Nil 

	Loss of Statutory Rights	 	  £300.00

	Future Loss

	Nil

	Total Compensatory Award 	=	  £300.00

	Compensatory Award After 90% Reduction

	To reflect chance claimant would still have lost his job

	£300.00  -  £270.00	=	    £30.00

	Total Compensatory Award After 10% Uplift under Article 17 of the 2003 Order

	£30.00  +  £3.00	=	    £33.00

25.	As acknowledged by the respondent it failed in its duty to provide the claimant with a statement of particulars of employment as at commencement of these proceedings.  The tribunal is not persuaded on the evidence before it that it is just and equitable to award the higher amount and accordingly awards the lower amount of two weeks’ pay being £768.90.

CONCLUSION

26.	It is the unanimous decision of the tribunal that the claimant was unfairly dismissed by the respondent and that when proceedings were commenced the respondent was in breach of its duty to provide the claimant a written statement of employment particulars.  The respondent shall pay the claimant £2,339.70.

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

Chairman:

Date and place of hearing:       4 December 2012, Belfast.

Date decision recorded in register and issued to parties: