THE INDUSTRIAL TRIBUNALS

CASE REF:	866/14

CLAIMANT:			Dean Sterling Jones

RESPONDENT:		Chatterbox Publications Ltd

DECISION
The unanimous decision of the tribunal is that, contrary to the Employment Rights (Northern Ireland) Order 1996, the claimant was automatically and substantively unfairly dismissed; that he suffered an unlawful deduction of earnings amounting to 6 hours’ pay; that he did not receive pay statements or reasons for his dismissal; and that he did not receive written terms and conditions of service.  Compensation amounting to £5,852.00, as calculated in this decision, is awarded to the claimant.  The attention of the parties is drawn to the Recoupment Notice attached to this decision.

Constitution of Tribunal:
Vice President:		Mr N Kelly
Members:			Ms T Hughes
				Mr R Hanna

Appearances:
The claimant appeared in person and was not represented.
The respondent did not appear and was not represented.

Background

1.	The claimant had been employed by the respondent initially in Belfast and then Carrickfergus.  

2.	The claimant stated that he had been employed on 18 February 2013 up to 16 April 2014 when he had been dismissed for alleged misconduct; that he was not paid or given TOIL in respect of six hours’ overtime worked; that he had not received itemised pay statements or reasons for dismissal; and that he had never been given written terms and conditions of service.

3.	The respondent did not turn up at the hearing.  He had been somewhat contemptuous and dismissive of the tribunal process in relation to a previous hearing when he wrote:-

		“Proceed then.

I cant and wont be attending unless of course Judge Greene wishes to personally reimburse me for a day’s pay?

I would have thought that Judge Greene would have understood that we are a very small business and that seeing I work an innate amount of hours in it, I cant drop everything for this.

Perhaps Employment Tribunal Judge Greene would understand had it (sic) tried to start its own business, with his own money and worked the hours I’ve done over the last year and a half.

All the best to everyone down at the offices.

Hope you have a great day tomorrow.”

4.	In the response form lodged by the respondent, the respondent alleged that the claimant’s employment had commenced on 6 February 2013 through the Youth Employment Scheme and that it had ended on 3 January 2014 when the claimant had resigned with immediate effect to work as a freelancer.  Any work he had done thereafter for the respondent had been done on a self-employed basis.  The respondent further alleged that pay-slips were ‘itemised weekly to staff’.  The respondent alleged also that written terms and conditions had been issued to the claimant at the commencement of his employment.

The hearing

5.	The tribunal heard evidence from the claimant.  Obviously, no evidence was put forward by or on behalf of the respondent.  However, the tribunal examined the response form lodged by the respondent together with any correspondence received from the respondent.  

Relevant law

6.	Under Article 126 of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order) an employee has the right not to be unfairly dismissed by his employer.  

Under Article 130A of the 1996 Order, an employee is regarded as having been unfairly dismissed if one of the procedures set out in the Employment (Northern Ireland) Order 2003 in respect of discipline or the termination of employment has not been followed and if that failure to follow the procedure is due to the employer.  

	It is important to remember in this case that the respondent’s only point in relation to the unfair dismissal claim was an allegation that the claimant had not been employed after 3 January 2014 but had been self-employed from that date.  

7.	Under Part IV of the 1996 Order, an employer may not make an unauthorised deduction from earnings from an employee and a complaint may be made to an industrial tribunal in that respect.  

8.	Under Article 40 of the 1996 Order, an employee has the right to be given a written itemised pay statement setting out various items.  If such a statement is not given an employee may require a reference to be made to the industrial tribunal to determine what particulars ought to have been included in such a statement.  There is no provision for compensation in this respect.  

9.	Under Article 33 of the 1996 Order, an employer is required to give an employee a written statement of particulars of employment containing various specified items.  

Under Article 27 of the Employment (Northern Ireland) Order 2003 (‘the 2003 Order’) a tribunal shall make minimum award of either two weeks’ gross pay, or if, in all the circumstances it considers it just and equitable to do so, four weeks’ gross pay where an employer has been in breach of this requirement and where the tribunal has found in favour of the claimant in respect of the various matters including unfair dismissal.  

10.	Under Article 124 of the 1996 Order, an employee is entitled to be provided by his employer with a written statement giving particulars of the reasons for his dismissal.  

	Under Article 125 of the 1996 Order, an industrial tribunal, if it finds a complaint that the employer has unreasonably failed to provide such a written statement it may make a declaration as to what it finds the employer’s reasons were for dismissing the employee and shall make an award that the employer pay to the employee a sum equal to the amount of two week’s pay.  

Findings of fact 

11.	In or around 15 February 2013, the claimant had been placed with the respondent company, initially to work as a graphic designer and then as a writer.  He had been placed under the auspices of the Youth Employment Scheme which was a Government Scheme which promoted the employment of young people.  That scheme involved a subsidy from the Government to the employer for the first year of employment.  That subsidy was paid direct to the employer.  The tribunal is satisfied, on the evidence of the claimant, that this scheme was designed to support employment and that the essential contractual relationship of employer and employee remained between the respondent and the claimant during the payment of that subsidy.  

12.	In this initial phrase of employment, the claimant was paid a weekly wage of £184.44.  

13.	The claimant’s original place of employment was Belfast.  That move to Carrickfergus was in or around June and July 2013.  

14.	The unrebutted evidence of the claimant was that he was never given written terms and conditions of service in accordance with the 1996 Order.  Although the respondent asserted in its response that such terms and conditions of service were provided to the claimant this essentially is a dispute on a question of fact between the claimant and respondent.  The claimant’s evidence was clear and consistent, even when questioned by the tribunal, and the tribunal unanimously accepts that his evidence was credible.  In contrast, the respondent has failed to produce the terms and conditions of service which it alleges were given to the claimant at the start of his employment, or shortly thereafter.  Furthermore, the arguments put forward on behalf of the respondent in the response form have been shown to be less than credible.  That matter will be addressed shortly in this decision.  On the balance of probabilities, therefore, the tribunal accepts that the claimant was not given the statutorily required terms and conditions of service in accordance with the 1996 Order.  

15.	The claimant also stated that he got no itemised pay-slips in accordance with the 1996 Order.  He had, on occasion, to go looking for them and they were occasionally reluctantly given.  Again the tribunal accepts on the balance of probabilities that the claimant is telling the truth in relation to this matter.  Although the respondent again asserts that pay-slips were provided throughout the period of employment.  No such pay-slips had been furnished by the respondent and the only pay-slips furnished by the claimant were intermittent and had been personally requested by the claimant.  On the balance of probabilities, the tribunal concludes that itemised pay-slips were not generally available.

16.	Following the change in premises to Carrickfergus, the claimant found himself in difficulty with transport.  He met with a manager of the respondent, Mr Anderson, and informed him that he was thinking of leaving because of travel costs.  Following discussions, an offer was made to him that his working week would be reduced to 19 hours spread over three days and that he would receive a pay increase of £8.00 an hour together with travel costs.  That resulted in a weekly wage of £152.00.  

17.	The respondent, as indicated above, asserted in the response form that the claimant’s employment had ceased on 3 January 2014.  That assertion is not supported by the clear evidence which the tribunal examined in the bank statements of the claimant’s personal bank account which were furnished by him to the tribunal.  Those bank statements illustrate a pattern which is consistent with the claimant’s evidence and entirely inconsistent with the proposition put forward in the response form.  Those statements indicate an initial wages payment on a regular basis of £184.44.  Those payments were indicated on the bank statement as ‘Chatterbox Publica Chatterboxwages’ giving a payment number.  Following January 2014, when the respondent has asserted the claimant was no longer employed, regular payments continued again identified as:-

		‘Chatterbox Publica Chatterboxwages’

of £152.00 per week.  It seems puzzling that, if the position is as the respondent asserts, the respondent has chosen not to provide evidence of payments of invoices for self-employed work in the period following 3 January 2014.  It seems even more puzzling that payments to the claimant would have continued from an account identified as ‘Chatterboxwages’.  It seems even more puzzling that such payments would have been on a regular basis for the amount asserted by the claimant as representing three days’ pay or 19 hours’ pay at £8.00 per hour.  The tribunal therefore prefers the evidence of the claimant and concludes that the claimant’s employment continued, although varied in terms of hours and pay following January up until the date of his dismissal on 16 April 2014.  

18.	The tribunal was confirmed in this conclusion when it examined the pay-slip obtained by the claimant on request for the 24 January 2014, ie for a period when the respondent has asserted he was no longer an employee.  That pay-slip refers to the salary, gross pay and earnings and is in a format that could only be consistent with that appropriate for an employee, including a reference to National Insurance.

19.	The tribunal was further confirmed in its conclusion when it examined certain text messages which appear to be from Mr Anderson to the claimant on 7 March 2014, 23 March 2014 and 9 April 2014 which are consistent with e-mails sent to an employee and appear to be unlikely to be the sort of e-mails sent to an individual doing self-employed work for a business.  

20.	It is the tribunal’s conclusion therefore that the assertions made in the response on behalf of the respondent were, to put it mildly, incorrect.  

21.	The claimant gave evidence, which the tribunal accepts, that he was dismissed verbally with no written statement and no right of appeal in breach of the statutory dismissal procedure on or about 16 April 2014.  Although there is no claim before the tribunal of a public interest disclosure, the tribunal accepts the credible and unrebutted evidence of the claimant that this dismissal resulted from valid concerns that he had expressed over copyright difficulties.  

22.	Even if the statutory dismissal procedure had been correctly followed, the tribunal concludes that the dismissal of the claimant in these circumstances was entirely unwarranted and was a decision which no reasonable employer, on the evidence before it, could properly have reached.  It was therefore, apart from being an automatically unfair dismissal, a substantively unfair dismissal of the claimant.  

23.	The claimant stated, although there is no supporting documentation, that he had worked six hours’ overtime for the respondent for which he had been due either payment or time off in lieu.  Neither had been afforded.  The tribunal therefore concludes, on the balance of probabilities, that he is owed six hours’ pay from the respondent.  

Remedy

24.	The basic award in respect of unfair dismissal in this case is calculated in accordance with the 1996 Order and is:-

		2 x £152.00 (gross)			=			£304.00

25.	The claimant gave evidence of a sustained search for alternative employment following his dismissal on 16 April 2014.  However, the tribunal must bear in mind in assessing a proper compensatory award, that the claimant had been dismissed from relatively lowly paid part-time employment and that his job search to date appears to have been narrowly focused.  After discussions, the tribunal unanimously concludes the claimant should have been able to find alternative employment at this level within six months from the date of his dismissal, given the low level of pay and even allowing for the current state of the job market.  The tribunal is not attracted to the argument that claimant must automatically receive compensation up to the date of the hearing (which is in itself a variable date determined by a range of factors) and again automatically receive a further award for a period beyond that date.  It is the tribunal’s task, as an industrial jury, to reach a fair determination of the actual loss suffered by the claimant, given the realistic scope for mitigation of that loss.  The tribunal therefore determines that the claimant’s compensatory award is:-

		26 weeks x £152.00 (net)			=		£3,952.00

26.	That compensatory award is subject to a minimum increase of 10% and a maximum increase of 50% where the employer, as in this case, has failed to comply with the statutory procedure.  The tribunal is satisfied that the claimant had been an employee up to 16 April 2014 when a grossly unfair disciplinary procedure was invoked by the respondent.  In all the circumstances of the case, the decision of the tribunal is that the appropriate uplift in this matter should be 25%.  That makes the final compensatory award:-

		£3,952 + 25%				=		£4,940.00

27.	The claimant did not receive terms and conditions of service as required by the 1996 Order and the tribunal does not accept the respondent’s assertion that the claimant did in fact receive these terms and conditions.  If it were correct that he had done so, it would have been a relatively simple task for the respondent to have produced evidence to that effect.  It has not done so.  The tribunal therefore awards two weeks’ pay:-

		£152.00 x 2					=		£   304.00

	The tribunal does not, in the absence of any evidence from the respondent, intend to make a declaration of the reasons for that dismissal.

28.	The claimant did not receive written reasons for dismissal and the tribunal concludes that he is entitled to a further award of two weeks’ pay:-

		£152.00 x 2					=		£  304.00

29.	The total award is therefore as follows:-

		Basic award					=		£  304.00

		Uplifted compensatory award		=		£4,940.00

		Award in respect of a failure to
		provide terms and conditions of service	=		£  304.00

		Award in respect of a failure to
		written reasons for dismissal		=		£  304.00

		Total						=		£5,852.00

Recoupment Notice

30.	The claimant has claimed Jobseeker’s Allowance from 16 April 2014 and a Recoupment Notice is therefore to be issued to the respondent delaying part of the payment of compensation until the Social Security Agency has considered the matter and made the appropriate recoupment, subject to the Employment Protection (Recoupment of Jobseeker’s Allowances and Income Support) Regulations (Northern Ireland) 1996.  

31.	The required particulars to be fixed by the tribunal are:-

		(i)	Monetary Award (ie full amount of award)	£5,852.00

		(ii)	Amount of prescribed element
			(Compensatory award)				£4,940.00

		(iii)	Dates to which the prescribed element		18 April 2014
			is attributable (the date of the dismissal and	to
			date of the tribunal)					27 October 2014

		(iv)	Amount by which the monetary award
			accedes the proscribed element is		£912.00

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

Vice President

Date and place of hearing:	27 October 2014, Belfast

Date decision recorded in register and issued to parties: