THE INDUSTRIAL TRIBUNALS

CASE REF:	1744/13

CLAIMANT:			Patricia Dalzell

RESPONDENTS:		1.	Roger McIlvenna 
				2.	Julie McIlvenna

DECISION
The unanimous decision of the tribunal is that the claimant was automatically or technically        unfairly dismissed because of breaches in the statutory dismissal procedure and that the claimant was also ordinarily unfairly dismissed because of a lack of a fair procedure.  Any compensation due in this matter is subject to a 100% reduction as set out in this decision and no compensation is directed to be paid.

Constitution of Tribunal:
Vice President:		Mr N Kelly
Members:			Mrs K Elliott
				Mr J Pollock

Appearances:
The claimant was represented by Mr Scullion, Barrister-at-Law, instructed by Worthingtons, Solicitors.
The respondents appeared in person and were unrepresented.

Background

1.	At all relevant times, the respondents operated a small retail business over two floors in a commercial building.  The first floor largely comprised a clothing shop.  The ground floor comprised a jewellery shop and gold buying operation which operated as ‘The Gold Buying Centre’.

2.	The claimant at all relevant times was employed as Manager and worked in the ground floor of the building operating the jewellery shop and gold buying centre.  

3.	An individual, described for the purposes of this decision as Mr X, sold jewellery to the respondents through the claimant on several occasions for approximately one year.  He was not a jewellery dealer and had no known connections to that trade.  The PSNI subsequently described him to the claimant and to the respondents as ‘known to them as an opportunistic thief”.

4.	On 25 June 2013, Mr X was left unattended in the jewellery shop by the claimant.  He stole a gold chain and a diamond pendant valued at several hundred pounds from a glass display case.  Within minutes he sold these items back to the claimant for £18.00.  

5.	On 26 June 2013, Mr X stole two large gold and diamond rings each valued at more than £1,000.00 from the jewellery shop.  Later that same day, Mr X sold one of those rings back to the respondents through the claimant for £45.00 and he sold the other ring to an assistant in the shop for £30.00.  That latter transaction was conducted in front of the claimant and with the claimant’s permission.  

6.	Again on 26 June 2013, Mr X stole an antique gold and diamond ring valued at more than £1,000.00 from the jewellery shop.  On the next day, 27 June 2013, Mr X tried to sell it back to the respondents through the claimant.  At that point, the claimant telephoned the first respondent who attended the shop and directed that the PSNI were called.  

7.	The first respondent’s mother had been diagnosed with terminal cancer on or about 24 May 2013 and unfortunately died on 7 July 2013.  Throughout this period, the two respondents had significant caring responsibilities, including caring responsibilities conducted overnight.  They had told the claimant that they would not be working in the premises on the dates noted in the preceding paragraphs.  

8.	The assistant in the shop, who had purchased one of the stolen rings for £30.00, resigned her employment without explanation on 28 June 2013 leaving the respondents shorthanded.  

9.	The respondents left the claimant in employment in the period immediately following the incidents described above.  The respondents approach to a disciplinary process was haphazard, wrong and to an extent distracted by their caring responsibilities in relation to Mrs McIlvenna (Senior).  They failed to follow the statutory disciplinary process or to follow any sort of normal procedure.  The claimant was eventually dismissed for gross misconduct some three weeks later on 17 July 2013.

10.	The claimant alleges that she was unfairly dismissed from her employment as manager and seeks compensation.  She has lodged a schedule of loss totalling £24,516.78.  

Relevant law

Basic unfair dismissal

11.	The Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) provides at Article 130:-

		“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 (ii) 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 – of the employee for performing work of the kind which he was employed by the employer to do;

(b)	relates to the conduct of the employee.

		...

(4)	In any other case 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 reasons shown by the employer) –

(a)	depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and

(b)	shall be determined in accordance with the equity and the substantial merits of the case.”

12.	The proper test to be employed by the tribunal in the case of an alleged misconduct dismissal is known as the ‘Burchell’ test and was approved by the Northern Ireland Court of Appeal in Rogan  v  South Eastern Health & Social Care Trust [2009] NICA 47.  The decision sets out:-

“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time.  That is really stating shortly and compendiously what is in fact more than one element. 

First of all, there must be established by the employer the fact of that belief; that the employer did believe it.  

Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief.  

And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.”

The Employment (Northern Ireland) Order 2003 (‘the 2003 Order’) set out a standard dismissal disciplinary procedure which is still in force in Northern Ireland although it has been abolished in Great Britain.  That procedure consists of three steps.  The first step is that the employer must set out in writing details of the employee’s alleged misconduct which have led the employer to consider dismissal or disciplinary action and the employer must send that statement to the employee and must invite the employee to attend a meeting to discuss the matter.  There is therefore a requirement for a written disciplinary charge and an invitation to a meeting.  The second step is that the meeting must take place before disciplinary action is taken and the employee must have a reasonable opportunity to consider his response to the disciplinary charge.  After the disciplinary meeting the employer must tell the employee of his decision and must notify the employee of his right of appeal against the decision.  The third step is that the employee, if he wishes to appeal, must be invited to a further appeal meeting at which his appeal will be heard and after which he will be informed of the employer’s final decision.

13.	Article 130A of the 1996 Order, as amended by the 2003 Order, provides:-

“(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) [tribunal’s emphasis], 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 130(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.”

14.	Article 130A(2) can only be regarded as a clear legislative provision intended to discourage claims of unfair dismissal by unmeritorious claimants simply on the basis of technical breaches in procedure.  There was initial controversy within GB as to whether or not that provision applied solely where the employer had failed to comply with general fairness in relation to procedure or whether it also applied where there had been a failure to follow the statutory three step procedure described above.  

15.	Where Article 130A(2) applies, it has the effect of overturning the House of Lords decision in Polkey  v  AE Dayton Services Ltd [1988] ICR 142 which itself had overturned the ruling in British Labour Pump Co Ltd  v  Byrne [1979] ICR 347.  Where that part of the Article applies, an employer can argue that, despite failure to follow a procedure, the dismissal was fair because he would have dismissed the employee even if the procedure had been followed.

16.	In two 2006 decisions, the EAT considered the GB equivalent of this provision.  In Mason  v  Governing Body of Ward End Primary School [2006] IRLR 432, concluded, inter alia, that the equivalent GB provision did not apply to breaches of the statutory dismissal procedure and that it reversed Polkey to a limited extent only.  In Alexander  v  Bridgen Enterprises Ltd [2006] IRLR 422, the EAT concluded that the equivalent provision applied to a situation where there had been a breach of any procedure which the tribunal considered the employer ought to have complied with.  

17.	In the later decision of Kelly-Madden  v  Manor Surgery [2007] IRLR 17 the EAT returned again to this issue and concluded that the GB equivalent provision applied to any procedure which the tribunal felt that the employer ought to have followed and that it reversed Polkey to that significant extent.  However, the EAT made it plain that it did not apply to cases where there is a wholesale breach of procedures or where there was a breach of the statutory three step procedure.  It stated:-

“As Section 98A(2) makes clear, it is not open to an employer who is in breach of the minimum statutory procedure to contend that, even if he had complied with them, the result would have been the same.  This is of course an important limitation restricting the scope of the Polkey reversal because the effect is that fundamental procedural defects are likely to involve a breach of statutory procedures and cannot then be saved by the                        sub-section.”

The position therefore is that in circumstances such as those in the present case, where the employer has not followed the minimum statutory procedure, the reversal of the Polkey doctrine does not take effect.  

In such circumstances the employer cannot argue that the dismissal was fair : he cannot dispute liability.  He can however deal with issue of remedy by:-

(1)	relying on Polkey (which has not been reversed) and by arguing for a percentage reduction in compensation to reflect the chance of dismissal; and

(2)	applying the principle of contributory fault arguing for a reduction in the basic and compensatory award by the percentage which is just and equitable.

A Polkey reduction and a contributory fault reduction can often reach the same result by a different route.

18.	In the Kelly-Madden decision, the Employment Tribunal had also reached an alternative conclusion that any compensation payable should be reduced by 100% on the grounds of contributory misconduct.  The EAT concluded that a finding of a 100% contribution was not sustainable in view of the tribunal’s criticism of the employer’s regulatory and administrative procedures and the tribunal’s recognition that this failure on the part of the employers had contributed to a relevant lack of communication which was in part to blame for what had occurred.  

In the present case, the breaches in procedure, and any lack of communication, do not appear to have contributed to what occurred in the relevant incidents in terms of conduct.

Contributory conduct

19.	If the tribunal concludes that an employee was guilty of culpable or blameworthy conduct which contributed to his dismissal, see Nelson  v  BBC (No 2) [1979] IRLR 346, compensation in respect of both the basic and compensatory awards may be reduced by an appropriate percentage.  In determining whether the conduct is blameworthy, the test is objective.  It does not matter whether the employee knew the conduct was wrong – see Ladbroke Racing Ltd  v  Mason [1978] ICR 149.

	If the employee is wholly to blame for the dismissal compensation may be reduced by 100% - see Hollier  v  Plysu Ltd [1983] IRLR 260.

Statutory uplift

20.	Article 138A of the 1996 Order as amended by Article 17(3) of the 2003 Order, provides that where an employer has failed to follow the statutory procedure, the compensatory award for unfair dismissal shall be uplifted by a minimum 10% and may, where it is just and equitable to do so, be uplifted by up to 50%.  The requirement of a minimum 10% uplift does not apply if there are exceptional circumstances which would make such an uplift unjust or inequitable.  In those cases there can be a lesser uplift or no uplift at all.  

	Article 154 of the 1996 Order, as amended by the 2003 Order, provides that where the is an automatically unfair dismissal the employee shall be entitled to a minimum basic award of four weeks’ gross pay except where the tribunal “considers that the increase would result in injustice to the employer”.

Credibility

21.	In discussions with counsel for the claimant, the Vice President made it plain that the tribunal was concerned that no GP was going to be called to give medical evidence in circumstances where the unrepresented respondents had not positively accepted the content of the disclosed and redacted GP notes.  The Vice President had specifically made it plain that the tribunal was concerned that the heavily redacted notes did not indicate whether the claimant had suffered any previous mental health problems.  The claimant asked for a postponement to enable the GP to be called.  Given that this matter had been case-managed and that the claimant was represented by a solicitor and counsel, that permission was refused, particularly in regard to the possibly limited value of such evidence.  In any event, the tribunal directed that the claimant be re-called to deal with this specific point in evidence.  

22.	The claimant would therefore have been aware, from the exchange between the Vice President and counsel, that this was a point which could potentially be of some significance to her claim.  The first question put to the claimant in further                     cross-examination, when she was recalled, was whether it was correct that the alleged panic attack as a result of receipt of the response form was the first occasion on which she had suffered mental health problems.  The claimant’s reply was clear and unequivocal.  She stated that it was.  The claimant was then asked, in cross-examination, whether it was not the case that the claimant had previously told the second respondent that she had suffered a nervous breakdown as a result of a marital problem.  The claimant stated that this was a matter which arose with a different GP and had been some years previously.  This answer was not a relevant answer.  The tribunal concludes that the claimant deliberately presented an untruth to the tribunal in circumstances where she believed that that untruth might assist her claim.  That has significant consequences for her credibility.

23.	The tribunal also notes that the claimant had in the course of the disciplinary process clearly misrepresented the position in relation to Jill Moffett.  She had told the second respondent that Ms Moffett was available, and therefore by implication that Ms Moffett was willing to attend a disciplinary meeting when it is clear the claimant had not spoken to her.

24.	The tribunal also notes that the claimant clearly sought photographic ID from customers on other occasions and that she failed to properly explain why she did not do so in relation to Mr X, in what must have been highly suspicious circumstances and where she did not know Mr X personally.  She only knew Mr X from his frequent attempts to sell jewellery in the shop.

	The tribunal therefore does not regard the claimant’s evidence as credible.

25.	In relation to Ms Stevenson, the tribunal notes the clear statements by Ms Stevenson that she was not interested in the five stone champagne diamond ring that she had bought, that she was not concerned about its value, and that it was simply a charitable donation on her part to help Mr X.  Given the size of that ‘donation’, relative to her earnings, and given the fact that Ms Stevenson did not know Mr X personally, the tribunal does not find that evidence credible.  

26.	The tribunal finds the evidence of the two respondents consistent and credible.  The two respondents, particularly the first respondent, appeared genuinely and frequently upset during the tribunal hearing at the illness and the subsequent death of Mrs McIlvenna (Senior).  The tribunal concludes that their evidence that they were distracted at some relevant times by these personal circumstances was true.  

Relevant findings of fact 

27.	There was a dispute about whether the claimant had been employed by both respondents (the argument advanced on behalf of the claimant) or whether she had been employed by the first respondent alone (the argument advanced on behalf of the respondents).  

28.	It is clear that the second respondent held herself out in correspondence, particularly in the dismissal letter, and in her business card, as a joint owner of the business.  As against that, the first respondent alone leased the shop premises and the first respondent alone was mentioned on the relevant pay-slips with a tax reference number as the employer.  It was clear in the evidence in this case that paperwork and legal technicalities were not a particular strong point of either respondent.  The contractual document detailed at Pages 83 -84 of the bundle was signed by the claimant and the first respondent.  It was not signed by the second respondent.  It directed all correspondence to the first respondent but the document throughout referred to the employer as ‘we’ rather that ‘I’. 

29.	In an ideal world, such a basic issue as the identity of the employer and the identity of all the parties to an employment contract would have been perfectly clear from the documentation.  References to the employer would have been consistent and unarguable.  That is not the case here.  There appears to be genuine confusion between the claimant and the respondents on this simple and basic point.  It is perhaps a further example of a disorganised and amateurish approach taken to personnel matters in a small business which had never, before the current case, had to deal with the dismissal of an employee.  

30.	While the second respondent told the tribunal that she regarded herself as an employee of the first respondent, that is not consistent with the position adopted by her in correspondence and on her business card.  On the balance of probabilities, the tribunal concludes that the claimant was legally employed by both respondents.  

31.	At all relevant times, the respondents operated their retail business on two floors, ie the ground floor and the first floor, in a commercial building.  The first floor comprised, largely, a clothing shop and it is not directly relevant to the present case.  The ground floor comprised a jewellery shop and an office area.  The claimant was, at all relevant times, the manager of that part of the operation.  

32.	The other employee who is relevant to this case was Ms Lorraine Stevenson who worked part-time and who worked for part of that time in the jewellery shop on the ground floor.  

33.	As part of the jewellery shop, the respondents operated a gold buying operation which traded under the name ‘The Gold Buying Centre’.  

34.	In the jewellery shop, a particular glass display case, with a glass countertop, held 12 high value items, including the three large gold and diamond rings mentioned earlier in the background to this case.  These high value items were displayed individually under the glass countertop in separate presentation boxes.  The glass case also contained three ‘pads’ which each contained five items of jewellery in total.  Those items were of lesser financial value than the high value items which were displayed separately in presentation boxes.  They included the gold chain and the pendant, referred to earlier in the background of the case.  There were, therefore, a total of 12 high value items and 15 lesser value items on display in this glass case.  

35.	The items in this glass case were removed from that case at the end of each working day by the claimant and were placed by the claimant in the safe in the office area.  That was an obvious precaution in the case of a break-in.  On some occasions, the items may have been handed to the claimant by Ms Stevenson.  However, it is clear that on two occasions in each working day, the claimant individually handled the 12 high value items and the three pads containing 15 lesser value items.  

36.	As indicated above, the five stone gold and champagne diamond ring which was stolen from the glass case by Mr X on 26 June 2013 and then almost immediately sold by Mr X to Ms Stevenson with the express agreement and permission of the claimant was one of the 12 high value items displayed individually in presentation boxes in that glass case.  It had originally belonged to the second respondent and had been shown to Ms Stevenson and to the claimant by the second respondent.  It had been tried on earlier by Ms Stevenson.  It had been on display in the glass case for approximately one week and had been removed and replaced each day during that week by the claimant before it was stolen by Mr X and then bought by Ms Stevenson.  The ring was produced in evidence by the respondents and it was clear to the tribunal, although the tribunal obviously has no particular expertise in jewellery, that it was a substantial ring in terms of the amount of gold and in terms of the size of the five stones.  

37.	The gold and 12 stone diamond eternity ring stolen by Mr X from the glass case on 26 June 2013 and almost immediately sold to the claimant was again a high value item which had been one of the items displayed in the glass case in individual presentation boxes.  This ring had been displayed for a significantly longer period and had again been removed and replaced throughout that period on a daily basis by the claimant.  The ring was again produced by the respondents and, again accepting that the tribunal has little or no experience in these matters, it was clear to this tribunal that this was a substantial ring both in terms of the weight of the gold and the size of the stones.  

38.	The third ring which had been stolen by Mr X on 26 June 2013 and which he had attempted to sell to the claimant on 27 June 2013 was again one of the 12 high value items displayed in individual presentation boxes for a lengthy period.  It had again been removed and replaced each day throughout that period by the claimant.  

39.	This was a small retail operation with a limited stock of high value items.  It was under the direct control and supervision of the claimant as manager.  There were only 12 such high value items on display.  On the evening of 26 June 2013 and on the morning of 27 June 2013, three out of the twelve individual high value items were missing.  A quarter of the high value stock was missing at those points in time.  The claimant had placed the high value items in the office safe on the evening of 26 June 2013 and had replaced them in the glass case on the morning of 27 June 2013.  The claimant did not telephone the respondents on the evening of 26 June 2013 or on the morning of 27 June 2013 to inform them that these items were missing.  The claimant did not telephone the police on either the evening of 26 June 2013 or the morning of 27 June 2013 to inform them that high value items were missing.  The claimant did not have any payments or deposits in the till which could have accounted for the absence of these items.  She did not apparently notice and did not connect the absence of these items to the unusual purchases from Mr X which are highlighted above.  The claimant stated to the tribunal that she did not notice the absence of these rings or the absence of the gold chain and the pendant on the evening of 26 June 2013.  The claimant stated in cross-examination that she felt on the morning of 27 June 2013 that there might be items missing but she had not looked for the items or for any receipts or deposit notes.  She had not checked with the respondents to see if they had been removed for some unknown reason or had been placed elsewhere.  She stated she was busy with a customer when the shop opened at 10.00 am on 27 June 2013.  It is, however, notable that no action was taken by the claimant in relation to these items which she states she felt might have been missing until Mr X attempted to sell the third ring after 1.00 pm on that day.  Some three hours had therefore elapsed since the claimant ‘felt’ high value items might have been missing without any action from the claimant in her role as manager. 

40.	The claimant was, at all relevant times, the manager of the jewellery shop.  Given the nature of the business, ie a jewellery shop and a gold buying centre, the claimant had particular responsibilities to her employer to keep an eye on stock and to check the legality of purchases.  The actions and inactions of the claimant in this respect were, to say the least, startling.  The respondents were entitled to have been extremely concerned in relation to her conduct as a manager.  

41.	The first relevant incident occurred on 25 June 2013.  On that day Mr X, who the claimant described as a ‘frequent customer’ and who was later described by the police as an ‘opportunistic thief’, attempted to sell two chains to the claimant as manager of the gold buying centre.  No hallmark was visible on either chain and the claimant, who was at that stage accompanied by Ms Stevenson on the ground floor of the premises, took the two chains to the back office area to perform an acid test.  She did not perform that acid test at the sales counter in the shop.  She did not ask Mr X to return at a later time which would have allowed her to either leave the chains to be tested by the first or second respondent or to have conducted the test in the office area at a time which would not have left the shop area unattended.  She did not tell Ms Stevenson to remain in the shop even though the claimant did not need any assistance from Ms Stevenson to conduct the test.  In fact she and her assistant, Ms Stevenson, who was at all times an employee under her direct control, left the sales area and left Mr X entirely unattended.  They went to the back office.  

42.	The tribunal notes that the contract of employment, which was signed by the claimant, states clearly:-

		“Always be at the counter when customers are in the shop.”

This is nothing more than a statement of the blindingly obvious; particularly in the context of a jewellery shop containing high value items in a glass counter and particularly in the case of a gold buying centre.  It is even more blindingly obvious where there is a ‘frequent customer’ who frequently sells unrelated items of jewellery but who has no known or obvious connection to the jewellery trade.  

43.	The respondents were clear that a document entitled ‘Gold Buying Procedures’ was on prominent display at all relevant times on the wall in the office.  There was also a card beside the till reminding employees to seek photographic ID from persons selling jewellery.  Neither the claimant nor Ms Stevenson said that the procedures or the card had not been on display.  They had apparently not noticed the procedures or apparently had not read them.  The claimant stated that she did not recognise parts of the procedures.  The obvious implication was that she did recognise other parts.  The claimant and Ms Stevenson denied being trained.  

44.	The tribunal notes and accepts the clear and consistent testimony of both respondents and concludes that both the procedures and the card had been on display and had been known to both the claimant and Ms Stevenson.  In any event, those procedures were simply common sense.  They hardly needed to have been written down or to have been read by the claimant.  For example, they stressed the need to get photographic ID from anyone selling gold.  They also stated:-

“If acid testing needs done, fill in the receipt book for the item and Roger or Julie will complete this.”

	Since acid testing, to determine whether or not an item is solid gold or simply                gold-plated, could damage and devalue any item, that provision seems perfectly understandable and unremarkable.

45.	In any event, whether or not the claimant had exceeded her authority by conducting an acid test on jewellery, she clearly left Mr X unattended in the shop on 25 June 2013 and had failed to take normal steps to ensure that either she or Ms Stevenson, or both, remained with the customer at all times and that valuable stock was safeguarded.  That was, rightly, a matter of significant concern to the respondents.

46.	It is also significant, although again a statement of the blindingly obvious, that the procedure stated:-

“Use good judgment.  If someone is willing to sell a large diamond ring for scrap price be suspicious.”

	Unsurprisingly, the author of these procedures did not find it necessary to add:-

“Particularly if the large diamond ring is your own property in the first place and is missing from the small number of high value items on display right in front of you.”

47.	The claimant, having completed the acid test, told Mr X that the chains were                  gold-plated rather than solid gold and that she was unable to purchase the items.  The fact that Mr X did not appear to know whether those items which he either owned, or had authority to sell, were gold plated did not apparently raise any suspicions.  He left the premises.  

48.	The second relevant incident occurred on the same day, ie on Tuesday 25 June 2013.  Mr X returned a short time after having left the shop.  On this occasion he had two different gold items; a gold chain and fob and a diamond and gold pendant.  These were items that he had previously stolen shortly beforehand from the display glass case.  The tribunal accepts the evidence of the respondents that Mr X had conducted this theft while being left unattended in the shop while the acid test was being conducted.  It also accepts the evidence of the respondents that this event was clearly visible on CCTV footage.  This evidence was not challenged by the claimant.

	The CCTV footage was not available to the tribunal.  It was retained by the PSNI.  However it seems clear, on the balance of probabilities, that the theft occurred as described by the respondents.  It is equally clear that the respondents, having checked the CCTV and having considered the sequence of events, were entitled to conclude the theft had occurred in that manner and at that time.

49.	In any event, the claimant did not notice that the respondents already owned the two items presented by Mr X in this incident.  The claimant apparently did not realise that these two items had been on display among a limited number of items in the glass display case.  The claimant did not query why Mr X returned so suddenly after his earlier visit.  The claimant did not ask for proof of ownership of the two new items.  She did not ask for photographic ID.  The claimant is in fact uncertain whether she had ever asked for photographic ID from Mr X during any of his earlier sales of jewellery.  On the balance of probabilities, the tribunal concludes that she never had asked for such ID.  If she had or felt she might have asked for such ID from Mr X, the claimant would have said so and would have sought the   relevant receipt or receipts from the respondent.  Such receipts may have included details of any photographic ID as in the example where the claimant had recorded a passport number.  The claimant alleges that it was not unusual for such ID not to have been sought.  The first respondent accepted that he did not seek such photographic ID if he personally knew the customer; otherwise he did.  The claimant did not know Mr X personally other than through his relatively frequent visits to the shop.  The claimant had also completed other receipt forms in respect of other customers in which she had asked for photographic ID.  She had on one occasion, for example, asked for a passport and had recorded the passport number.  She was unable to satisfactorily explain why she had not done so with Mr X, other than to say she had used her discretion.  Given the circumstances of the case, where someone who frequently sold jewellery, without any apparent good reason for doing so, and who had suddenly re-appeared on the day of 25 June 2013, having just left the premises, it is surprising that the claimant was not more suspicious.  The respondents were entitled to be extremely concerned at the claimant’s approach to her role as manager.

50.	In any event, the claimant purchased these two items from Mr X and paid cash for them.  The respondents were perhaps fortunate that Mr X was no master criminal.  He was clearly in something of a hurry to get some cash; hence his return just after the theft of these two items to sell them back to their lawful owner.  He was perhaps lucky that the items were not recognised at that point by the claimant.  He gave the claimant a false address but gave his real name.  He was, in any event, visible in the CCTV coverage.  However, the tribunal concludes that the respondents were entitled to take the view that any person working as a manager of a jewellery shop and a gold buying centre should, in all the circumstances of this incident, have been immediately suspicious and that such a person should have taken basic steps to safeguard their interests and to safeguard their stock.  Even if the claimant had not recognised the two items, as two items which formed part of a limited stock of high value items, and even if she did not relate the return of Mr X with these two items to his earlier and unsupervised presence in the shop, the respondents were entitled to conclude that the claimant should have followed the basic and obvious steps of checking ownership and photographic ID.  The tribunal has concluded that the claimant was aware of the gold buying procedures.  The respondents were entitled to conclude that she was so aware.  Even if it were otherwise, the steps of checking ownership and ID were, in all the circumstances of this incident, so obvious and basic that the respondents were entitled to be extremely concerned that they had not been carried out.  

51.	The next relevant incident occurred on the following day, ie Wednesday 26 June 2013.  Mr X re-appeared in the shop at approximately 11.10 am and attempted to sell yet another item of jewellery.  This was a gold-coloured football ring.  The claimant performed a magnet test and concluded that it was only gold-plate.  On that basis she refused to purchase it.  The attempted sale of yet another item of jewellery apparently did not raise the claimant’s suspicions.  The fact that Mr X did not know whether an item he owned, or which he had authority to sell, was solid gold or just gold-plated, did not raise the claimant’s suspicions.  This again was a matter which could legitimately raise the concerns of any employer.  Mr X remained in the shop and leaned over the glass countertop, on the top of the glass case, for an extended period; some 27 minutes.  The respondents were entitled to be extremely concerned this was an activity which apparently did not excite any level of suspicion on the part of the claimant.  They were entitled to be equally concerned that Mr X was not told to leave the shop.  Mr X stole two high value items from that glass case, by leaning over the counter to open the back of the case.  Those two items were, firstly, the five stone champagne diamond and gold ring, which was valued by the respondents at £1,500.00 and the 12 stone diamond and gold eternity ring which was valued by the respondents at £2,500.00.  Mr X then left the shop at approximately 11.37 am.

52.	Just over one hour later, on the same day, Mr X returned to the shop and attempted to sell these two items back to the claimant in her role as manager of the gold buying centre.  The claimant was present at that point together with her assistant, Ms Lorraine Stevenson.  Apparently this attempted sale of yet more items of jewellery did not cause either the claimant or Ms Stevenson to be suspicious.  In the opinion of the tribunal, this again was a matter of some legitimate concern for the respondents.  Neither the claimant or Ms Stevenson apparently noticed that the two high value items were the respondents’ own property, that they were missing from the glass case which was just a few feet away from them.  Neither connected the attempted sale, by Mr X, with his lengthy and unusual presence in the shop shortly beforehand and with his lengthy and unusual conduct in relation to the glass case during that visit to the shop.  These were rings which had been regularly handled by the claimant, each morning and evening, when taking them between the glass case and the office safe and indeed, earlier that morning had been removed from the safe and placed in the glass case by the claimant.  

53.	In any event, the claimant offered Mr X £15.00 for the five stone ring.  This was one per cent of the value stated by the respondents.  As previously indicated in this decision, the five stone ring was a substantial ring with a significant weight and with five large stones.  The claimant stated in evidence that following tests she was only satisfied that three of the stones were genuine diamonds.  The respondents dispute this and state that all five stones were genuine diamonds.  The tribunal prefers the respondents’ professional evidence on this matter which has not been rebutted.  However, in any event, the claimant was unable to satisfactorily explain the basis of the offer for £15.00 for such an item, even if it had only three genuine diamonds as well as a substantial weight in gold.  Following that £15.00 offer, Ms Stevenson offered, with the permission of the claimant, £30.00.  She purchased the ring from Mr X for that sum in a private sale for cash and with no records.  The respondents were entitled to be extremely concerned at the circumstances surrounding the purchase and with the role of the claimant in allowing the diversion of a purchase and therefore the diversion of any consequent profit, from the respondents to Ms Stevenson.

54.	Ms Stevenson stated in evidence that she had no interest in the ring or in its value.  She had been taken in by ‘a sob story’ from Mr X and had given him the £30.00 as a charitable donation to help him out.  She did not recognise the ring as the ring from the glass case a few feet away from her.  She did not remember the ring as one which had previously been owned by the second respondent and she did not remember the ring as one she had tried on at an earlier date.  According to Ms Stevenson all five stone rings looked alike to her.  The tribunal notes and the respondents were entitled to note that, given the level of wages paid to Ms Stevenson as a part-time worker, this was a significant amount of money for Ms Stevenson to give to Mr X as a charitable donation in respect of an item in which she had no interest.  Moreover, this disinterest in jewellery was surprising in someone who worked for at least part of her time in a jewellery shop and who, according to her statement, was supposed to receive jewellery-making training.  The tribunal does not find this evidence credible.  In any event, the actions of Ms Stevenson and the claimant in respect of this five stone ring were surprising.  Apart from the fact that what would appear to the tribunal to have been obvious suspicions were not being aroused; despite the fact that photographic ID was again not sought; despite the fact that the ring was not recognised by either employee, this was an incident where a purchase was diverted from the respondents to an employee.  If this had been a genuine purchase from a genuine customer with a legitimate reason to own and sell the ring, the respondents would have been cheated of that purchase and cheated of any subsequent profit.  The respondents were therefore entitled to be concerned, and indeed extremely concerned, at all these matters.  

55.	The other item presented for sale by Mr X in this transaction was the 12 stone diamond and gold eternity ring.  This was again a substantial ring with a significant weight and with what appeared to the tribunal to be large diamonds.  It also looked relatively unusual.  Neither the claimant or Ms Stevenson recognised it as part of the respondents’ limited high value stock.  The claimant offered £42.00 for it and asked Mr X to leave it with her to see if she could offer more.  The claimant spoke to the second respondent on the telephone and asked her for permission to offer £45.00.  She did not mention the diamonds.  She did not mention the suspicious circumstances.  She did not ask for photographic ID.  She did not query ownership.  She did not wonder why Mr X seemed to possess a stream of unrelated gold or gold-plated items which he was apparently free to sell.  The respondents were entitled, again, to be extremely concerned at all these matters.

56.	Mr X returned to the shop approximately two hours later and was paid £45.00 by the claimant.  While he was in the shop, and possibly not believing his own luck, he stole a third gold and diamond ring from the high value items in the glass case by again leaning over the glass counter and opening the back of the case.  Mr X then left the shop at approximately 3.32 pm.

57.	The next relevant incident was the following day, ie Thursday 27 June 2013.  Mr X again entered the shop and stayed for approximately 15 minutes before leaving.  Some 30 minutes later, he returned to the shop and attempted to sell the third ring that he had stolen from the glass case on the previous day.  The claimant states that she recognised this ring as the respondents’ own property.  She told Mr X that she would retain the ring to assess its value.  Mr X then started to ask questions about who worked in the shop and when the shop opened and closed.  Mr X used his mobile phone.  The claimant gave evidence that she was concerned that he was planning a robbery.  

58.	The claimant telephoned the first respondent.  She told him of a suspicious customer and stated that he had left a ring to sell which looked similar to one of the respondents’ stock.  She did not, at this point, say that the ring and indeed other items were missing from the limited stock in the glass case a few feet away from her.  The first respondent arrived and recognised the ring as part of his own stock.  He instructed the claimant to telephone the PSNI who then attended the shop.  The claimant produced the 12 stone gold and diamond eternity ring and the chain and the diamond pendant which she had purchased off Mr X over the previous three days.  The first respondent recognised these items as also the respondents’ own property.  Ms Stevenson then stated that she had bought a ring off Mr X and produced the five stone gold and champagne diamond ring.  The claimant and Ms Stevenson were interviewed and gave statements to the PSNI in the presence of the first respondent.  

59.	There was a great deal of discussion about whether or not the second respondent had, during this incident, said to Ms Stevenson, during this incident, that “you are fucking thief” or whether she had simply said “what you have done is tantamount to theft”.  The second respondent would have required the forbearance of a saint not to have passed some comment on a situation where a valuable ring had been stolen and then sold for cash to an employee.  That does not seem to this tribunal to be particularly relevant to an unfair dismissal claim from the claimant.  To the extent that it matters, the tribunal accepts the version of events put forward by the second-named respondent.

60.	Ms Stevenson telephoned the claimant later that night and told the claimant, who was the manager of the shop, that she would not be coming back to the shop.  The claimant did not pass this information on at that stage to the respondents.  Ms Stevenson resigned in writing the next day.  Her letter of resignation gave no reasons for that resignation and gave no notice.  The respondents were taken by surprise.

61.	The departure of Ms Stevenson left the respondents suddenly shorthanded in a very small business.  This was a particular problem given the personal and substantial difficulties that they were then experiencing caring for the first respondent’s terminally-ill mother.  They were unable to spend much or any of their time at that stage to work in the shop or indeed to deal properly with the particular problems raised for their business by the incidents on 25, 26 and 27 June 2013 relating to the conduct of the claimant.  

62.	That said, the disciplinary process adopted by the respondents was haphazard and considerably less than the norm.  The basic facts of the incidents set out above were clear and were not in dispute.  There was no denial from the claimant or from Ms Stevenson that the thefts had occurred and that the purchases had occurred as set out above.  Statements had been taken from the claimant and from                          Ms Stevenson by the PSNI in the presence of the first respondent.  In a perfect world, with respondents who were not significantly distracted by their own personal difficulties and perhaps with respondents who were more familiar with personnel issues, the respondents would have compiled their own duplicate and formal statements from each other, from the claimant and from Ms Stevenson.  However, in the real world, a small employer, with trying personal circumstances and where there was no real dispute about the facts of the incident, is unlikely to have taken any pedantic steps in duplicating the PSNI statements or in recording a formal investigatory process.  

63.	The respondents were perfectly candid in evidence, in stating that they had to retain the claimant in their employment at that time, together with another worker who had previously been employed by them and who stepped in at the last minute.  The respondents accepted that they were shorthanded and that they were unable, because of their personal circumstances at that point in time, to assist personally in the running of the business.  They had other matters on their minds.

64.	On Monday 1 July 2013, the claimant had a meeting with the two respondents.  They gave her a letter which stated that it was a Final Written Warning and which stated that her conduct would be under review for two months.  The letter did not indicate that a disciplinary or investigatory process in relation to the incident was still underway.  Looking at the letter in isolation, it indicates that everything was concluded.  The respondents were adamant in evidence that it had been made plain to the claimant, in the course of that meeting, that they were going to take two months to look at this incident properly before reaching a conclusion.  Their evidence was that the disciplinary process had not concluded with this warning and that the claimant was aware that it had not been concluded.  

65.	On 4 July 2013, some three days before the death of Mrs McIlvenna (Senior), the claimant lodged a grievance against the warning and stated that she was ‘shocked and appalled’ at the way she had been spoken to and had been treated by the respondents.  That does not seem to be consistent with the claimant’s evidence to the tribunal that the disciplinary process, in respect of some significant incidents on 25, 26 and 27 June 2013, had been concluded at that point with a simple warning and that she had been told by the respondents that her job was not at risk.  If the claimant’s evidence in this respect had been correct, it seems unlikely that, at that particular time, she would have felt it necessary to lodge a grievance.  Given the undisputed facts in relation to the incidents, she would have regarded herself as extremely fortunate to have escaped with only a warning.  The claimant’s evidence that she was annoyed at the way she says she had been treated and that she wished to challenge a warning, is not credible.  In any event the grievance was not upheld.  

66.	On 16 July 2013, and this would have been some nine days after the death of Mrs McIlvenna (Senior), the claimant was invited to attend a meeting with the respondents on 17 July 2013.  She was told that she could have a colleague or a trade union representative present.  There was no recognised trade union in this business and therefore this appears to the tribunal to be very much a standard letter.  In any event, the meeting was to discuss her continuation as manager for ‘financial and procedural reasons’, that reference makes no sense in the circumstances of this case.  The reference to ‘procedural reasons’ in particular makes no sense.  

67.	The claimant texted the second respondent and asked for the meeting to be adjourned to Saturday 20 July 2013 because Jill Moffat, the member of staff who the claimant wanted as a representative, would not be available until then.  The text clearly stated:-

		“Jill is able to attend on Saturday.”

68.	The second respondent agreed to conditionally postpone the meeting if Jill was willing to attend.  The replying text clearly stated:-

“If Jill is willing to attend, the meeting will be postponed until 9.30 am Saturday morning.”

69.	The second respondent texted Jill to confirm that she would be available for a postponed meeting.  Jill’s reply stated:-

“If there no one else available, but I can’t make it until Monday as I am on holiday.”

70.	The respondents were therefore entitled to conclude, and the tribunal concludes, that the claimant’s assertion that Jill was available to attend a meeting on that Saturday and therefore the necessary implication that the matter had been discussed with Jill and she had agreed to attend the meeting, was untrue.  

71.	The meeting then reverted back to its original timing on 17 July 2013 as had been clearly indicated by the first replying text from the second-named respondent.  

72.	The claimant stated that she was taken by surprise by this meeting and that the second respondent had intimidated her by locking the shop door behind her.  The tribunal does not see how the arranged meeting could have been a surprise given the above arrangements.  It prefers the evidence of the second respondent that the claimant refused to leave the shop area to move into the back office area for the purposes of the meeting.  The shop door was therefore locked, with the key left in it, during the meeting to prevent customers walking in.  The claimant was not in any sense detained and could and indeed did leave the shop.  

73.	The tribunal also notes that the first respondent had the dismissal letter already typed and in his possession before the meeting.  He handed it to her at the meeting and stated she refused to participate in the meeting.  

74.	The dismissal letter stated that her employment was being terminated on the ground of gross misconduct.  It stated that this gross misconduct was, in the claimant’s position of manager, allowing a member of staff to privately purchase goods which were presented for sale to the respondents.  It stated that there was collusion in the subversion of potential profit from the respondents.  It stated that the claimant had demonstrated a huge lack of product knowledge of items which had previously been stolen from the premises.  It criticised the claimant’s conduct in relation to customers.  It also criticised the fact that the claimant purchased items which had been stolen, in some cases, only minutes beforehand from the respondents’ counter while the claimant had been absent from the shop floor in breach of her terms and conditions of employment.  It also criticised the claimant’s failure to obtain any form of identification from the seller.  It stated that these incidents of gross misconduct had resulted in a complete breakdown in trust.  It stated that the respondents were ‘deeply disappointed in how you have repaid our trust and time invested in you, especially considering the personal circumstances you knew we were going through at this time”.  

	She was dismissed with immediate effect on 17 July 2013.

75.	The claimant obtained a part-time job in Primark and worked at least two shifts in that job in October 2013.  Her evidence was that she suffered a panic attack after receiving the response form which had been lodged in the tribunal on behalf of the respondents.  She stated that this panic attack was because of what that response form had said.  She stated that she was then incapable of seeking or taking alternative employment.  The tribunal does not accept that this occurred as alleged by the claimant.  It notes its conclusions about the claimant’s general credibility.  It notes the fact that she clearly misrepresented the position in relation to her previous medical history in her evidence to the tribunal.  It notes the fact she had clearly misrepresented the position in relation to Jill Moffat’s availability for the meeting on 20 July 2013 and it also notes the fact that the alleged panic attack appears nowhere in the medical notes.  It also notes that the dismissal letter had been explicitly critical of the claimant and had specifically accused her of collusion in the improper diversion of profits from the respondents to Ms Stevenson.  The letter of dismissal had also been expressly critical of her behaviour in relation to purchasing items which had previously been stolen from the premises.  The response form, prepared on the respondents’ behalf, was considerably more detailed but contained nothing of any particular substance or significance in addition to the matters already covered in the dismissal letter.  The tribunal does not see why being dismissed from her job in circumstances as described and having been in receipt of a clear dismissal letter, the claimant was apparently medically capable of obtaining alternative employment but suddenly was not so medically capable once she had received the response form.  The tribunal also notes that the GP did not attend to give evidence.  It is clear that the GP notes did no more than record what the claimant had told the GP.  Even if the GP had attended to give evidence, it is probable that the most the GP could have told the tribunal was that the GP had been told by the claimant of alleged work-related stress.  It seems to the tribunal unlikely that any objective medical evidence in relation to this could have been produced.  In any event it was not produced.  Given all of the above, the tribunal concludes that the claimant has not established that she was medically unable to work after her dismissal or that any such inability to work was because of the dismissal, because of the terms of the response form, or for any other reason.  

The hearing

76.	The hearing lasted for two days, ie 7 – 8 January 2014.  The case had previously been case-managed by telephone conference call.  The parties had been directed to exchange witness statements and had been told that those witness statements once they were sworn or affirmed, would be accepted as evidence-in-chief.  The witnesses, including the claimant and respondents, would then move immediately to cross-examination and re-examination.  

77.	The claimant and Ms Lorraine Stevenson provided witness statements, swore or affirmed to those statements and gave evidence.  The two respondents provided witness statements, swore or affirmed to those statements, and gave evidence.  

78.	As previously indicated, no other evidence was produced on behalf of the claimant and, in particular, no medical witness was produced.  The two respondents, who were unrepresented, had not positively accepted or approved the allegations in relation to mental health made on behalf of the claimant.  The two respondents had produced witness statements from two other individuals who did not attend the hearing, did not swear or affirm to those statements and were not presented for cross-examination.  As with the GP notes, these two statements were not agreed and can only be regarded as of limited value and cannot be accorded any significant weight.  

Decision

79.	It is clear and the respondents accept that there were significant and frequent breaches of both the statutory procedures and of normal disciplinary practice.  The disciplinary charge had not been set out in writing in advance of the disciplinary meeting.  The claimant had therefore not been given a full opportunity to prepare a response.  There was no written invitation to that meeting.  The dismissal letter had been prepared before the meeting.  The claimant was not positively notified of her right to appeal.  The claimant must have known of the right to appeal; she had exercised it in relation to the warning.  Whether any of these breaches in the statutory procedure would have made any difference at all to the outcome is another matter.  It is however under current legislative provisions an irrelevant matter in terms of liability – there was an automatic or technical unfair dismissal.

	The conduct of the respondents must be criticised.  Even allowing for their personal difficulties at the time, it was incumbent on them to seek advice and to follow clear statutory procedures and to ensure that a fair procedure had been adopted.

80.	The Polkey reversal procedure or ‘get out clause’ provided in the 1996 Order does not apply in these circumstances.  It is therefore not open to the respondents to argue simply that the claimant would have been dismissed in any event had a fair procedure been applied and therefore to argue that it had been a fair dismissal.  It is clear that this was technically or automatically an unfair dismissal because of breaches in the statutory dismissal procedure and that it was also a procedurally unfair dismissal in ordinary terms.  This is a situation that the respondents could easily have avoided by taking appropriate advice and by acting properly.

81.	However, this is not a tribunal system which is designed to allow the unjust enrichment of unmeritorious claimants simply because of procedural defects, even substantial procedural defects in the application of disciplinary processes by an employer.  The requirement for justice and equity applies not just to liability but also to remedy.  The legislative provisions quoted above make that plain.  In order to achieve justice and equity, it is important to consider to what extent a Polkey reduction is appropriate and to consider to what extent the claimant had contributed to her dismissal through culpable actions or inactions.

82.	The tribunal is satisfied that the respondents own particular personal circumstances arising out of the terminal illness and the subsequent death of Mrs McIlvenna (Senior), at the relevant times contributed significantly to their failure to deal properly with the disciplinary process.  Furthermore, the abrupt departure of Ms Stevenson and their inability to assist in the working of the shop meant that they believed that they had little choice but to retain the manager in employment for a brief period.  The tribunal concludes that the respondents had simply put the matter on the long-finger pending the resolution of their personal difficulties.  The tribunal accepts the evidence of the respondents that the warning letter was simply a holding operation pending the completion of the disciplinary process once they had time to deal with that process and the tribunal accepts that the claimant was made aware of that position.  If the position were otherwise, and if, as the claimant now argues she was let off with just a warning, it is highly improbable that the claimant would have reacted in the way she did and in the terms she did.  Furthermore, the tribunal does not find the claimant or Ms Stevenson credible for the reasons outlined earlier.  It prefers the clear and convincing testimony of the respondents.  

83.	The tribunal also concludes that the claimant was guilty of serious and culpable actions and inactions which resulted in potentially serious loss to the respondents and which also would have potentially led to a serious loss in the business reputation of the respondents.  If Mr X had been a slightly more competent criminal, and if he sold the stolen items elsewhere, the respondents would have faced a substantial financial loss.  As it was, Mr X was paid various amounts in cash for items he had stolen from the respondents on the claimant’s watch.  The tribunal heard no evidence of any of this money having been repaid by Mr X and concludes that it is unlikely on the balance of probabilities that this money will ever be repaid.  There was also clearly a serious risk to the respondents’ trading reputation.  That culpable activity was not contributed to by any action or inaction on the part of the respondents.  

84.	The first issue for the tribunal to determine is the reason for the dismissal.  In that respect, the onus of proof lies on the respondents.  The tribunal is satisfied that the respondents have discharged that onus and that the reason for the dismissal was conduct, ie the conduct of the claimant as manager of the jewellery shop and gold buying centre on 25, 26 and 27 June 2013.  That conduct was a potentially fair reason for dismissal.

	The tribunal accepts the evidence of the respondents in this regard and concludes that it is highly unlikely that in the short period between 27 June 2013 and 17 July 2013 some other course of dismissal had intervened or had suddenly occurred to the respondents.

85.	While the dismissal was technically and procedurally unfair, the tribunal is satisfied that, apart from those issues of procedure, this was a dismissal which was substantially fair.  The conduct of the claimant as manager, and as described above, was at best incredibly negligent.  It was definitely conduct which could have led a reasonable employer to have dismissed an employee.  It is not just the case that the claimant’s conduct would have resulted in a dismissal being within the band of reasonable responses; the claimant’s conduct was such that a dismissal was almost inevitable.  A Polkey reduction of 100% is appropriate in this case.

86.	Furthermore, the tribunal concludes that the culpable conduct of the claimant contributed to the dismissal of the claimant.  The claimant sought to apportion some of the blame to the respondents.  It was, for example, suggested by the claimant that the respondents were to blame for the thefts because the jewellery was on display in a glass case which could, with some effort, be opened by someone leaving over the top and reaching over behind the case.  With respect to the claimant’s ingenious arguments, that somewhat misses the point.  Apart from a break-in overnight, there never had been such a theft before 25 June 2013.  In any event, it was the claimant’s responsibility as manager to safeguard the stock and not to leave customers unattended.  It was also the claimant’s responsibility to check the stock she handled daily and to exercise reasonable caution when purchasing jewellery.  It was also the claimant’s responsibility to act in her employers’ interests.  The claimant failed in all of this and brought the dismissal on herself.  No one else was to blame.  

A contributory conduct reduction of 100% in both the basic and compensatory awards is appropriate in this case.

87.	The claimant did not seek and did not argue for reinstatement or re-engagement which were in any event impractical.  That leaves the basic and compensatory award.  The tribunal has concluded that it would be appropriate to reduce any compensatory award by 100% as both a Polkey reduction and as a contributory conduct reduction.  It does not therefore intend to conduct an academic arithmetical exercise calculating such a sum in detail to then reduce it to zero.

88.	As far as any hypothetical uplift is concerned the uplift would have been the minimum.  The tribunal is satisfied that the respondents’ failure to follow the statutory procedure, or indeed any fair procedure, was not due to malice and was not a deliberate disregard of procedures.  It was due to a mixture of incompetence and the fact that they were distracted with the illness and death of Mrs McIlvenna (Senior).  

89.	There is statutory provision for a minimum basic award.  The legislation provides that the basic award should be a minimum of four weeks’ gross pay where the statutory procedures have not been followed, as in the present case.  That basic award need not be paid if the tribunal concludes that it would result in injustice to the employer.  The tribunal notes the decision of the Northern Ireland Court of Appeal in G M McFall & Co Ltd  v  Curran [1981] IRLR 455.  The Court determined that as a general rule any reduction in the basic and in the compensatory award should be made at the same percentage.  While the statutory dismissal procedure postdates the decision of the Court of Appeal the principle it sets out is clear.

	Furthermore, in all the circumstances of the case, and, in particular, given the personal pressures put on the respondents, given the death of Mrs McIlvenna (Senior) on 7 July 2013, and given the intervention of the ‘twelfth’ holidays, penalising the respondents by requiring them to pay four weeks’ gross pay to the claimant would cause them some significant injustice.  The tribunal notes that the claimant was fortunate to receive an ex gratia payment of one week’s pay; it would be unjust the respondents to order more.

	This is therefore a technical finding on liability with zero remedy.

90.	The tribunal has therefore decided that the 100% reduction should apply to both the basic and compensatory awards.  No compensation is therefore awarded.

Vice President:

Date and place of hearing:	7 – 8 January 2014, Belfast

Date decision recorded in register and issued to parties: