THE INDUSTRIAL TRIBUNALS

CASE REF:	2602/15

CLAIMANT:			Michael Riley

RESPONDENT:		PCO Davies Limited

DECISION 
The unanimous decision of the tribunal is that:-

The claimant was unfairly dismissed by the respondent and the tribunal makes an award of compensation to be paid by the respondent to the claimant in the sum of £17,043.48.

Constitution of Tribunal:
Employment Judge:	Employment Judge Drennan QC
Members:			Mr I O’Hea
				Mr T Carlin

Appearances:
The claimant was represented by his sister, Ms D Irvine.
The respondent was represented by Mr T Sheridan, of Peninsula Business Services Ltd.

Reasons

1.1	The claimant presented a claim to the tribunal on 18 November 2015, in which he made a claim for unfair dismissal.  The respondent presented a response to the tribunal on 21 December 2015, in which it denied liability for the claimant’s said claim.  In accordance with the tribunal’s normal case-management procedures, at a Case Management Discussion, on 4 February 2016, the parties identified that the claim was a claim of alleged unfair dismissal.  In the record of the said hearing, dated 4 February 2016, it was noted, in particular, that:-

“There is a dispute about whether or not the claimant had been dismissed in this matter ... .”

1.2	At the commencement of the substantive hearing, the claimant’s representative, confirmed, after taking instructions, if the tribunal found the dismissal of the claimant was unfair, that the claimant wished to obtain by way of remedy an award of compensation and, in particular, he did not seek an Order of Re-instatement and/or Re-engagement, pursuant to the provisions of Article 147 – 151 of the Employment Rights (Northern Ireland) Order 1996.

1.3	It was agreed by the respondent’s representative that the claimant’s claim also included a claim that there had been a failure by the respondent to provide to the claimant, pursuant to Article 33 of the Employment Rights (Northern Ireland) Order 1996, a written statement of particulars of employment at any material time; and that, if the claimant was found to have been unfairly dismissed by the respondent, then the claimant was entitled to make a claim arising from any such failure, pursuant to Article 27 of the Employment (Northern Ireland) Order 2003.  It was agreed that this was not a freestanding claim and therefore it did not require to be the subject of any application to amend the claimant’s claim form and to be expressly pleaded by the claimant (see further Scott-Davies  v  Redgate Medical Services [UKEAT/0273/06] and Advanced Collection Systems Ltd  v  Goltekin [UKEAT/0377/14).

2.	At the outset of the substantive hearing, the claimant’s representative made an application to the tribunal to strike-out the respondent’s response, pursuant to Rule 18(7) of the Industrial Tribunals Rules of Procedure, contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (‘the Rules of Procedure’), on the grounds that the respondent had not complied with Orders made by the Tribunal and/or the proceedings had been conducted by the respondent and/or its representative unreasonably.  In particular, the claimant’s representative relied on the fact that, at the Case Management Discussion on 4 February 2016, as set out in the Record of Proceedings dated 4 February 2016, it had been provided that the parties were to exchange, by first class post or e-mail, photocopies of all relevant documentation or documentation upon which they intended to rely at the substantive hearing no later than 5.00 pm on 18 February 2016 and that the parties were to exchange full witness statements in relation to both liability and remedy no later than 5.00 pm on 4 March 2016, by first class post or e-mail.  The claimant’s representative insisted, as she was entitled to do, that this application would be heard and determined by the tribunal before the commencement of the claimant’s claim to the tribunal.

2.2	The claimant’s representative forwarded to the respondent’s representative all discoverable documents by the due date and time; but, unfortunately, the respondent’s representative did not provide to the claimant’s representative all relevant discoverable documentation until the morning of 19 February 2016.  Although the precise time and date ordered by the tribunal had not been complied with by the respondent’s representative, the tribunal was satisfied that the above short delay did not give rise to any prejudice to the claimant’s representative, who had sufficient time to consider the respondent’s documentation in advance of the substantive hearing.  As set out above, there was also to have been simultaneous exchange of witness statements by 5.00 pm on 4 March 2016.  There was an agreed extension of time, made between the parties, until 6.00 pm on 4 March 2016.  The claimant’s representative exchanged his witness statements with the respondent’s representative, by the agreed extended time and date for exchange.  Unfortunately, again, the respondent’s representative failed to comply with the tribunal’s order, extended as agreed between the parties; and, indeed, the respondent’s witness statement was not provided to the claimant’s representative until 9 March 2016.  Simultaneous exchange, rather then sequential exchange, had been ordered, by consent, by the tribunal.  By failing to provide the respondent’s witness statement, in accordance with the Order of the Tribunal, potentially, the respondent obtained ‘a procedural advantage’ and, in particular, would therefore have been able to draft the respondent’s witness statement, already knowing the contents of the claimant’s witness statements.  I was assured by the respondent’s representative that this did not occur and that the respondent’s witness statement had been prepared, in draft, some four days prior to the original date for exchange.  By way of explanation, the tribunal was informed that, on 4 March 2016, the respondent’s representative was unexpectedly out of the jurisdiction and it was not until 9 March 2016, that it was possible to arrange for the respondent’s witness to sign the previously drafted witness statement.  Once again there had been a failure to comply with the tribunal’s order and no proper and relevant application, in these circumstances, had been made to the tribunal or relevant notification, by way of explanation, to the claimant’s representative.  Given the unexpected difficulties that had occurred for the respondent’s said representative, the tribunal was surprised that, in those circumstances, a copy of the draft witness statement, which had already been prepared, was not exchanged with the claimant’s representative as agreed; but with the caveat that it was a draft statement, which still required the signature of the respondent’s witness, and the signed witness statement would be forwarded as soon as possible upon the respondent’s representative return to the jurisdiction.  None of this was done; and, if it had, it would have avoided the undoubted additional pressure put on the claimant’s representative, who is not a legal representative, preparing her case for the substantive hearing.  However, in the circumstances, the tribunal was not satisfied that any particular prejudice had been caused to the claimant by the delay in serving the respondent’s witness statement.  The claimant’s representative accepted she had sufficient time, since the service of the said witness statement, to prepare the claimant’s claim and to consult with the claimant about the contents of the said witness statement.  It was properly agreed, by the respondent’s representative, that, if necessary, the claimant could give additional oral evidence, if taken by surprise by anything contained in the respondent’s witness statement.

2.3	Under the terms of the overriding objective, parties and their representatives are required to assist the tribunal to further the overriding objective.  This requires parties and their representatives to comply with orders made by the tribunal.  Orders made by the tribunal are not some sort of ‘optional extra to be taken                         à la carte’ by parties and/or their representatives.  If particular difficulties arise in complying with the tribunal’s orders, then the parties and their representatives should liaise and, if necessary and appropriate, an application must be promptly made to the tribunal, in writing, applying, for example, for an extension of time.  Where there is good reason, such an application will normally be granted by the tribunal.  Failure to comply with tribunal’s orders, and, in particular, interlocutory orders and agreed timetables for exchange of witness statements, are increasingly becoming a problem for the tribunals.  Parties and their representatives must not be under any misapprehension that such failures will no longer be tolerated by the tribunal and may result, in appropriate circumstances, in the tribunal exercising its relevant powers under the Rules of Procedure, including strike-out decisions and Orders for Costs.  (See Peifer  v  Castlederg School High School & Another [2008] NICA 49, judgment of Girvan LJ.)

2.4	To have granted the claimant’s representative’s application to strike-out the respondent’s response, as the claimant’s representative properly recognised, would have been a draconian remedy; and, in light of the relevant legal authorities, it is a remedy which is rarely exercised by the tribunal, save in the most obvious of cases.  Indeed, although it is apparent, as set out above, that the tribunal’s orders have not been complied with, the tribunal was not satisfied that the claimant’s representative had established that a fair trial was not possible.  

	In the circumstances, the tribunal refused the claimant’s representative’s application to strike-out the respondent’s response.  However, it must be recognised that, by doing so, the tribunal was not condoning, in any way, the failure to comply with the tribunal’s orders by the respondent.  

3.1	The tribunal heard oral evidence from the claimant and the claimant’s sister, Ms D Irvine, who also represented the claimant, and also from Mr Paul Davies, on behalf of the respondent.  

	Having considered the evidence given to the tribunal by the parties, as set out above, the documents contained in the ‘trial bundles’, as amended, during the course of the hearing, to which the tribunal was referred during the course of the hearing, together with the oral submissions by the representatives of the parties at the conclusion of the hearing, the tribunal made the following findings of fact, insofar as necessary and relevant for the determination of the claimant’s claim, as set out in the following sub-paragraphs.

3.2	The claimant was employed by the respondent from on about 1 July 2013 until on or about 27 October 2015 (see later).  The claimant had a good working record and there was no evidence of any previous disciplinary matters during the course of his said employment.  The respondent carries out disaster, fire and flood restoration, commercial cleaning, carpet and upholstery cleaning, and repair work for private and commercial clients.  The claimant was employed by the respondent to carry out duties in relation to the above work, together with some other driving duties.  It was agreed, at no time material to this action, was the claimant given particulars of his contract of employment.  If he had been, the tribunal is satisfied many of the issues that have arisen in this matter might have been avoided, as was recognised by Mr Davies during the course of his evidence.

	It was agreed, at the termination of his said employment, the claimant was earning £327.44 gross per week and £287.01 net per week.

3.3	It is useful, at the outset of this decision, to set out, briefly, the context in which the claimant was making his claim against the respondent.  A major and central issue, as was recognised at the Case Management Discussion on 4 February 2016, and which required to be determined by the tribunal, was:-

“Whether the claimant was dismissed by the respondent on 27 October 2015.”

	If he was, it was not disputed by the respondent’s representative that the statutory dismissal procedure was not complied with by the respondent and the claimant would therefore have been automatically unfairly dismissed.  It was also not disputed by the representatives of the parties that, if the claimant was not so automatically unfairly dismissed by the respondent, then the claimant, in the alternative, was claiming he had been unfairly constructively dismissed by the respondent (see later).

3.4	The claimant’s claim included a claim for holiday pay.  Following the production, by way of discovery, during the course of the proceedings, by the respondent’s representative, of the ‘Wall Planner’, upon which holidays of employees of the respondent were marked up, the claimant reduced his claim to a claim for two days’ holiday pay, namely in relation to 6 March 2015 and 23 June 2015.  The claimant had no records to dispute what was stated on the Wall Planner.  This stated that, on the relevant dates, the claimant was on holiday and was not working.  However, he believed the Wall Planner had to be in error, for reasons related, inter alia, to his son’s birthday on 24 June 2015, his own birthday on 4 March 2015 and a family anniversary relating to his late father on 7 March 2015.  He contended, in light of these matters, there would have been no reason for him to take a holiday, as suggested on the Wall Planner, on the said dates referred to above.  

	Given the Wall Planner system was shown to be correct for all other days of holiday taken by the claimant during the relevant period and the absence of any firm detailed evidence from the claimant to contradict what was stated on the Wall Planner, the tribunal, on balance, decided to reject the claimant’s claim for holiday pay in relation to the said two days referred to above.  In any event, as subsequently accepted by the claimant’s representative, if the tribunal found the claimant was dismissed by the respondent on 27 October 2015 (see later), the claimant, by that date had already exceeded the holidays to which he was entitled and he could not therefore properly make any such claim for holiday pay against the respondent.

3.5	The respondent, is a corporate franchisee of Rainbow International LLC.  As the franchisor, it is based in Great Britain.  The managing director of the respondent is Paul Davies.  

	Insofar as relevant and material to the determination of the claimant’s claims, the following are terms of the franchise agreement made between Rainbow International LLC, the respondent and Mr Davies, as Managing Director of the respondent; which agreement was admitted in evidence, without objection and without formal proof:-

		“ ... 

		8.	Franchisee’s Operating Obligations

In order to maintain the highest standard of service to be provided by the Franchisee ... the Franchisee shall during the term of this agreement ...

		...

		8.2	General

		...

8.2.2	Carry on the Franchisee’s Business to the highest standards of service

...

8.2.4	Not do anything which may bring the business or Franchisee’s business into disrepute or may have a detrimental effect on the business or the Franchisee’s business and not assist any other person to do so;

8.2.6	Permit the Franchisor and any person authorised by the Franchisor to enter, during normal business hours, upon the premises, the vehicle or elsewhere to inspect the same and take copies of any item and to make such other investigations as may be necessary in the activities of the Franchisee relating to the Business are of a sufficiently high quality and that the provisions of the agreement are being complied with.

13	Staffing

	The franchisee shall:-

		...

13.4	obtain a signed contract from all persons employed by or who provide services to the Franchisee in such form as is approved by the franchisor prior to their employment or their engagement and shall disclose confidential information only to such persons who have previously signed such a contract and take all such reasonable steps as may be required by the Franchisor to enforce the provisions of such a contract.

13.5	Ensure that all personnel employed in or who provide services on behalf of the franchisee’s business shall at all times have a neat and clean appearance, render competent, sober and courteous service to customers and comply with any and all directions of the franchisor relating to dress, appearance, and demeanour;

...

		21.	Termination

21.1	The Franchisor may terminate this agreement immediately by giving notice in writing to the franchisee in any of the following events which because of the special nature of the Franchisor relationship shall constitute repudiatory breaches of contract ...

		...

21.1.4	If the Franchisee shall, in the reasonable opinion of the franchisor, have a detrimental effect on the goodwill of the business or the Franchisee’s business; 

	...

21.1.16	In the event of persistent and valid complaints to the Franchisor as to the quality of the service given by the Franchisee provided always that the franchisor has provided the Franchisee with written notice of such complaints;		[Tribunal’s emphasis]

...

21.1.20	In the event of any reported breach of any the Franchisee’s or the individual’s obligations under this agreement or the manual.  For the purpose of this Sub-Clause a repeated breach shall be interpreted as two or more breaches of any the Franchisee’s or individual’s obligations during any calendar year;

... .”

	There was no evidence produced by the respondent of anything contained in the franchisor’s operations manual, supplied to the respondent, relevant to the issues to be determined by the tribunal in these proceedings.

3.6	On 27 October 2015, the claimant was telephoned at home by Paul Davies, the managing director of the respondent and told to pick up another employee, Steven Hewitt, and report to the Head Office of the respondent in Newtownards.  When the claimant arrived at the office, at or about 8.30 am, Mr Davies asked to speak to the claimant alone in his office.  Ms S Bailie was also present.  Mr Davies informed the claimant that he had received an e-mail about an incident that had occurred at a policy-holder’s property, where the claimant and Mr Hewitt had been working, in or about the week of 23 October 2015, following a fire at a                     policy-holder’s property.  

3.7	The incident had come to the attention of Mr Davies at some time late on 26 October 2015, when a chain of e-mails, dated 26 October 2015, which had referred to the said incident, had been sent to him from the relevant insurer via the Head Office of Rainbow International LLC (‘the franchisor’) and asking him for comments by 5.00 pm on 27 October 2015.  In particular, it was stated, in the said chain of e-mails the policy-holder (‘AB’) had phoned the loss adjuster to inform him she was “unhappy with a number of Rainbow staff as she attended the property in order to collect some post and ended up finding him dancing around the house with her 20 month old granddaughter’s knickers on his head ... .”  The chain of e-mails also noted that the policy-holder was understandably very upset; and it also stated that the loss adjuster had been asked to obtain an e-mail from the policy-holder confirming the details of what had happened.

	In an e-mail, dated 27 October 2015 at 1311, which was therefore subsequent to the meeting between the claimant and Mr Davies, and before the 5.00 pm deadline referred to above, the loss adjuster subsequently provided further details of the policy-holder’s complaint, on foot of his telephone call with AB on 26 October 2015, as referred to previously.  

	In particular, he stated:-

“I had rung AB regarding progress of the claim in general and she advised me Rainbow had completed what they were cleaning on Friday 23rd of October 2015.  She then said she had something to raise about Rainbow which her husband had told her to leave as Rainbow was now finished.  

AB said that she called into her house to collect post and during the last week whilst Rainbow was cleaning.  She was not specific on the actual day or time.  She advised when she entered the house that one of the two Rainbow employees was larking around with a pair of pants on his head that belonged to the policy-holder’s 20 month old granddaughter who lives at the risk property.  AB said that the employee was ‘gutted’ when she saw him and removed the pants from his head.  AB was not specific about any conversation that may have occurred at that point before she left the house ... .”

Although the policy-holder had been asked to put detail of the incident in writing by e-mail, the loss adjuster stated in this e-mail she had not done so at the time of his said subsequent e-mail.

3.8	Following receipt of the complaint, as set out in the chain of e-mails, dated 26 October 2015, but before the claimant met Mr Davies, Mr Davies had a telephone conversation with the franchisor’s operations director, Mr Ford, about this complaint.  No record was kept of this conversation.  However, in a letter dated 27 October 2015, which also appears to have been received by Mr Davies subsequent to his meeting with the claimant, Mr Ford stated:-

	“Re Incident on 26th of October ...

	Dear Paul

As you will be aware as valued custodian (Franchise Owner) of the brand, we have great pride in our brand values looking after customers at a point when they are most vulnerable following a flood or a fire damage incident.

Turning to the recent incident where your staff acted in an inappropriate manner [sic] in front of a customer we need to inform you that we are not prepared to allow the staff involved directly with this incident to be utilised on any operational site in connection with any instruction that we pass you under the Rainbow Brand.  We need your written undertaking that this will be the case.

Furthermore could we also have evidence of your ‘toolbox’ talks with your staff in relation to the brand values when dealing with such vulnerable customers.

This is crucial to ensure this rare but nonetheless unfortunate incident is not repeated.

... .”

	The tribunal is satisfied that the earlier telephone conversation between Mr Ford and Mr Davies must have been in similar terms to that subsequently set out by Mr Ford in more formal terms in the said letter.  It has to be noted Mr Davies had already taken the action, outlined below, at the conclusion of the said meeting, at a time when he had not yet received the said letter and such action, given its similarity to what was said to the claimant by Mr Davies at the meeting.

3.9	At the time of the meeting with the claimant, on the morning on 27 October 2015, it must be noted that Mr Davies had not only had the details of the complaint, as set out in the chain of e-mails dated 26 October 2015, referred to above, had spoken to Mr Ford, but he also had spoken himself to AB, the policy-holder, prior to the meeting.  No notes were taken of this conversation with AB.  However, although the complaint had originally said the claimant was dancing with pants on his head, AB had advised Mr Davies the claimant was not dancing with pants on his head but that he ‘had the wee-uns pants on his head’.  

	The tribunal is satisfied Mr Davies, with this qualification, outlined to the claimant, at the commencement of the meeting, the gist of the complaint as outlined in the                 chain of e-mails dated 26 October 2015.  Indeed, there was considerable agreement between the claimant and Mr Davies about what took place at the meeting.  In particular, Mr Davies pointed out, which was not disputed by the claimant, that, not surprisingly, the complaint had been taken seriously by the insurers, the loss adjusters but also by the franchisor, Rainbow International LLC; and he had also explained to the claimant how the insurer gave considerable work to Rainbow International LLC and could not have such incidents occurring and was not prepared to let the claimant work on any of their insurance contracts.  

	Although the claimant had immediately accepted, from the outset of the meeting, there had been an incident in which he had been involved at this policy-holder’s home, the tribunal is satisfied he also explained in some detail to Mr Davies, during the course of the meeting, in similar terms to those set out in his witness statement, the conduct that had occurred which had given rise to the complaint.  The tribunal found the claimant a straightforward, consistent and credible witness, when explaining, in evidence, his version of what occurred at the policy-holder’s property, which was not seriously challenged by the respondent’s representative; and, as seen below, was supported to a significant extent by Mr Hewitt, when he was asked to give his version of events to Mr Davies at the meeting.  

	In his witness statement, which the claimant adopted as his evidence-in-chief, he explained:-

“Steven and me was doing the inventory in the front bedroom and laughing about how cold the house was and I was leaning over the chest of drawers writing inventory of clothing, Steven put a small item on my head and joked it was to keep my head warm and left the room.  As I was taking it off my head, I looked into the landing and the policy-holder was standing laughing.  I apologised, she laughed it off and went on talking about her house and what work was being done ... .”

The tribunal is satisfied Mr Davies, having heard the claimant’s version of events, not only told the claimant ‘Rainbow has no work for you here’, which was consistent with the letter received from Mr Ford; but also the earlier conversation, upon which the subsequent letter was based; but significantly, despite his denials in evidence to the tribunal, he also said the claimant “I am gonna have to let you go”.

Mr Davies, then, having spoken to the claimant, called Mr Hewitt into the room and asked him:-

	“Did you put a pair of kids pants on Michael’s head?”

Mr Hewitt replied:-

“No they were dolls pants as when we were doing the inventory I lifted them out of the bottom drawer where all the dolls and dolls clothing was.”

Again Mr Davies repeated the seriousness of the situation and the fact that their actions could cost Rainbow International LLC a large contract.  Then Mr Davies said to Mr Hewitt:-

“I’m letting Michael go there is no work here for him and I’m not letting you stay so you are going too ... .”

The claimant left the office, believing, to his utter shock, that Mr Davies had dismissed him from his employment with the respondent.  

3.10	The claimant maintained, in evidence, that until Mr Hewitt told Mr Davies that they were dolls pants that had been put on his head, he did not know what type of pants had been put on his head during the incident at the policy-holder’s house; but he did not dispute some type of pants had been put on his head by Mr Hewitt.  The claimant confirmed to the tribunal in evidence he had not reported the incident to Mr Davies.  He explained he had not considered it was necessary to do so, in light of his apology to AB and her reaction to the matter at the time, as set out previously.

3.11	At the time of the meeting on 27 October 2015, the claimant was a                       full-time permanent salaried employee of the respondent, who on occasion also did some overtime for the respondent; whereas, at that time, Mr Davies wrongly believed the claimant was employed ‘on an ad hoc basis/as required/as and when required basis’.  Indeed, he accepted, in evidence, it was not until some time later, upon receiving relevant employment advice (see later) that Mr Davies realised that the claimant was a full-time permanent salaried employee and was not employed on any such ‘ad hoc basis/as required/as and when required basis’.  

3.12	Immediately following the meeting on the morning of 27 October 2015, the claimant, who was still in a state of shock, and hoping that Mr Davies might have changed his mind, at 9.02 am texted Mr Davies and said:-

		“Alrite mate am I defo sacked.”

Mr Davies did not reply by text but rang the claimant and confirmed there was no longer any work for the claimant and he had to let him go.  Mr Davies informed the claimant he was acting on instructions from Rainbow International LLC (ie the franchisor) who had said they did not want people ‘like that’ working for them.  Mr Davies, in the course of his cross-examination, sought to suggest he had said:-

“It is not that I am sacking you, it is I don’t have any work.”

This was not put to the claimant in the course of his cross-examination, but, more significantly, the tribunal noted it was not stated in the respondent’s response form (see later).  Despite the terms of the claimant’s text message to Mr Davies, in the circumstances, the tribunal is not satisfied he took the opportunity to clarify the claimant’s employment status during this conversation, as he sought to suggest in evidence to the tribunal.  In particular, he made no suggestion that the claimant was on authorised paid leave/suspension.  Further, he did not make any reference to any investigation to be carried out, pending any decision on his employment (see later).

3.13	The claimant, in evidence, which was not challenged, said that, after the claimant had left the office, he was informed by another employee, that Mr Davies had called all the members of staff into the office and told them everything about the incident, the outcome and his decision to dismiss those involved.  By speaking to the other employees, in these terms, in the tribunal’s judgment, this was consistent with the terms of the letter from Mr Ford and the necessity for Mr Davies to talk to staff in relation to Brand values when dealing with vulnerable customers.

3.14	Shortly thereafter, the claimant contacted the respondent’s administrative office and spoke to Ms Bailie to see if he could get any of his pay-slips which he had not received.  Ms Bailie said she would print them out and he could come and collect them.  The claimant did so but was only given pay-slips by Ms Bailie for the last five months up to the end of October 2015.  While he was there, Ms Bailie, whose evidence which was not challenged, expressed her sympathy regarding the claimant’s dismissal saying ‘it was awful’.  On 29 October 2015, the claimant sent Mr Davies a further text message and asked him would it be possible for him to pay him for working that month as he needed to get clothes for his kids for Christmas.  Mr Davies replied saying “yes that’s no issue”.  But, subsequently that day, he texted the claimant saying “I have paid them wages mate.  I paid you until the end of the month as I said I would and also didn’t deduct the additional days holidays that you had used”.  In a further text message that day, Ms Bailie referred to hoping the claimant would get something sorted and suggested the claimant might try to apply to Argos, as they always had vacancies for people coming up to Christmas and it was handy enough to get to.  Again, it has to be noted there was no suggestion in these replies from Mr Davies or Ms Bailie, the administrator who had been at the meeting that the claimant was still employed by the respondent.  It further confirms the tribunal’s conclusion, as set out previously, that in the telephone call shortly after the meeting, Mr Davies did not state:-

			“It is not that I am sacking you.”

3.15	Mr Hewitt, who is also nicknamed Spick, had been working for the respondent, prior to these events, for a number of days.  Mr Hewitt had also worked for the respondent, on occasion at his car business, Millreagh Motors.  It was not disputed by the parties that the employment of Mr Hewitt, in contrast to the claimant, was on ‘a casual/as required basis’.  

3.16	Following the meeting on 27 October 2015 between the claimant and Mr Davies, the claimant contacted his sister, Ms Irvine, who offered to contact Mr Davies to plead with him to see reason and to reconsider his decision.  When Ms Irvine rang Mr Davies there was no answer so she left a voicemail introducing herself and asking Mr Davies to contact her.  Mr Davies returned the call.  The call lasted approximately 14 minutes and 25 seconds.  Mr Davies told Ms Irvine, inter alia, “It’s nothing personal.  I like big Michael but Rainbow provide my work and if they don’t want someone on jobs then I have to let them go”.  He also said that, besides Rainbow’s request, the claimant was fully aware that “from day 1 Michael had been an as required worker” (see previously).  Ms Irvine asked Mr Davies to re-consider his decision, given the fact that the incident was no fault of the claimant.  She reminded Mr Davies that Mr Hewitt had admitted this to him in front of the claimant and Ms Bailie.  However, Mr Davies reiterated to Ms Irvine that Rainbow provided all his work and that meant he no longer had anything for the claimant and had to let him go.  Ms Irvine raised the requirement of carrying out an investigation but Mr Davies stated that he was under no obligation to afford the claimant any of the rights that he felt he might be entitled to as an employee as he was ‘as required’.  Despite Ms Irvine continuing to challenge that the claimant was employed ‘as required’, Mr Davies made it quite clear that he was not prepared to change his decision, as outlined above.  

3.17	Following the said conversation with Mr Davies, Ms Irvine then assisted the claimant to draft and type up a letter to Mr Davies, dated 29 October 2015, which was sent to Mr Davies by first class recorded post, on that day.  

3.18	In this letter, the claimant commenced the letter by stating:-

“On Tuesday 27 October 2015, you advised me that because of a complaint my employment had been terminated.  I would like to appeal this decision for the following reasons.”

The claimant then set out his history of the matter and of the events at the                 policy-holder’s home, referred to previously, which was largely consistent with what the claimant had explained to Mr Davies at his meeting on 27 October 2015, as set out previously.  In particular, he stated:-

“ ...

We spent approximately three weeks at this particular job.  During the second week, I was leaning on a chest of drawers writing an inventory of clothing when Steven Hewitt thought he would joke around and very quickly placed a tight item on my head.  Steven believed that the item was a pair of doll’s pants.  It happened very quickly, and almost immediately, I reached up and grabbed the item, pulling it off my head.  As I was doing this, the policy-holder walked upstairs on to the landing where she had a clear view to where I was.  It was at this point I became aware of what the item was.  It was a very embarrassing situation to be put in and was no fault of my own.  I did not see Steven coming toward me as I was bent over writing the infentory and could have done nothing more than I did, which was to immediately remove the item, offer an explanation and apologise ... .

When Steven and I got to the office, you asked everyone to leave the room saying that you needed to speak to me.  You mentioned the incident of the job in Coleraine a few weeks earlier.  You said that you had been in touch with the policy-holder following a complaint she had made to Rainbow International.  You told me that the policy-holder had said that she was upset to have walked into her house to find a grown man there with a 20 month old granddaughter’s underwear on his head.  You asked me what had happened, if this was true.  I explained the incident to you as stated above and that I was in the process of removing the items as the policy-holder walked upstairs.  You mentioned getting e-mails, one saying that I was allegedly dancing around with the item on my head and another saying this was not true.  I am not clear about who sent these e-mails.  You then called Steven Hewitt into the office to hear his side of the story.  Steven confirmed that what I had told you was the truth.  Steven also confirmed that he had place the item on my head, ‘messing about’ in his opinion.  You said that Rainbow International had told you they did not want people who behaved like this doing work for them and as a result you had no work for me at all ...

		...

It has since come to my attention that after I left you, you brought everyone working there that day into the office and told them everything about the incident, the outcome and your subsequent decision.  

As you are fully aware, this would be very much out of character for me.  I do not behave in this way and can guarantee you that if Steven had not behaved the way he did, this incident would not have occurred.  His actions were completely out of my control.  I am a grown man, in my thirties and a father to four children.  I would not find it acceptable or amusing to behave in this way.  I feel very hurt and very unfairly treated.  Steven’s intentions were not made known to me and were beyond my control; I did not know what was going to happen until it had happened.  I did all that I could do in the circumstances which was to remove the item and apologise to the policy-holder immediately.  I am very upset and disappointed that even though Steven owned up to and accepted responsibility for his actions in front of you and me, that you still made the decision to dismiss me.  I believe that I have been further unfairly treated because this decision was made without following statutory minimum disciplinary procedures, without any warning, without any formal investigation and in turn denying me the right to a fair hearing and to accompaniment.  

... .”

3.19	Some days after, at a date unknown, following receipt of this letter, dated 29 October 2015, Mr Davies obtained employment advice from Peninsula Business Services (‘Peninsula’).  He accepted, in evidence, he became aware, at that time, that following the said advice, the claimant was not employed on some ‘ad hoc basis/as required/as and when required basis’; but rather he was, at the relevant time, a permanent full-time salaried employee and an employee to whom the statutory dismissal procedures applied.  

3.20	On Friday 30 October 2015, the claimant called to Mr Davies’ other business, Millreagh Motors, to give him the keys for the storage unit, in which all the equipment was kept for use in connection with the work of the respondent.  As the claimant handed Mr Davies the keys, he said to the claimant – “Is that all the keys you have?”.  The claimant replied “yes” and walked out and shut the door behind him.  Surprisingly, Mr Davies had no recollection of this conversation, but accepted the claimant had returned his keys subsequent to the meeting of 27 October 2015.  Again, there was no suggestion by Mr Davies that the claimant was still employed by the respondent or that he might require the keys at some later date.  

3.21	By letter dated 11 November 2015, Mr Davies, having obtained further advice and assistance from Peninsula wrote to the claimant as follows:-

“I was surprised to receive your letter of 29/10/15 in which you advised you would like to appeal the decision made to dismiss you.  I would advise you that you are currently an employee of PCO Davies t/a Rainbow International and at no point have you been dismissed.  

At present investigations have been completed in relation to an alleged incident which took place in October 2015.  Possible outcome from these investigations are that we may decide that it is necessary to pursue a formal disciplinary procedure with you, or alternatively we may decide that there are no grounds for this.  

I understand that you will want to know what is going to happen as soon as possible and I will endeavour to let you know as quickly as I can.

		... .”

Unfortunately due to difficulties and delays with delivery of the letter by the Royal Mail to the claimant, the letter, dated 11 November 2015, was not received by the claimant until 26 November 2015 (see later).

3.22	Mr Davies, unaware the claimant had not yet received his letter of 11 November 2015, sent a further letter to the claimant dated 18 November 2015, in which he stated:-

“As you are aware our clients Rainbow International (Head Office) have contacted the company requesting that you be removed from their jobs due to the following matters of concern:  

Alleged objectionable behaviour; further particulars being that in October 2015 you were allegedly seen by a client with a pair of her young grandchild’s underwear on your head, prompting her make a complaint.  

Your manager, Paul Davies, has already contacted you to request that you do not attend the premises while we conduct an investigation into this matter.  I have arranged for your contractual wages to be processed for November and until such times as this matter is concluded.  

You are therefore, officially on authorised paid leave/suspension from 27/10/15.  This action is not to be regarded in any way as disciplinary action, but as a holding measure while we investigate the matter of concern.

The company has no alternative but to respect Rainbow International (Head Office) (and Care Quality Commission) wishes as it is part of the service level agreement that they can insist that our employees are removed from Rainbow International jobs when there are ongoing issues of concern to investigate.

In order to investigate these matters further I feel that it would be beneficial to speak with you in more detail.  This will ensure we can establish all of the facts surrounding the matter and give you the opportunity to put forward your explanation and points of view.  

To this end you are required to attend an investigation meeting on Tuesday 24 November 2015, at 9.30 am, ... [at the respondent’s premises].  The meeting will be conducted by Paul Davies, Managing Director.  Sam Bailie will also be in attendance as note-taker.

After this meeting we will be in a better position to consider whether to pursue a formal procedure with you and what representations can be made to the client on your behalf.

If you have any queries on the contents of this letter, please do not hesitate to contact me.”

This letter, signed by Mr Davies, was also drafted on the advice and assistance of Peninsula.

By letter dated 21 November 2015, the claimant replied to the letter on 18 November 2015 stating, inter-alia:-

		“I am very shocked by the content, most of which is untrue.

You and I both honestly and truly know, and as God is my witness, that until receipt of your letter today you have made no contact with me to advise or discuss suspension or investigation or anything that could be construed as being related to same.  To be clear there has been no mention to me before day, verbal, written or otherwise, that you have placed me on suspension with pay pending an investigation.

Furthermore, I have not, nor am I expecting to receive any wages from you.  So much so that I have had to complete a claim form with the Social Security Office in order to be able to provide some support to my four children until I obtain new employment in order to be able to provide some support to my four children until I obtain new employment.  This has been a devastating thing to have to do, especially this time of the year.  I would therefore advise you that if you process this payment to me it could result in legal or unlawful implications with the DHSS.  But I ask you not to do this. ...  

I am very sorry but am unable to attend the “investigation meeting” that you have arranged for Wednesday 25 November 2015 at 9.30 am as stated in your letter.  

I would advise you that because of the events of 27 October 2015 onward, in addition to having received no response from you within the specified time, I lodged a claim with the Employment Tribunal on 18 November 2015.

I must advise you of how deeply shocked and saddened I am that the very good trusting and respectful working relationship I had with you has been so badly broken down to the point where I have been made to feel that there is no longer any trust or respect left between us ... .”

As noted above, when sending this letter, the claimant had not received the letter of 11 November 2015 from Mr Davies.

In a further letter, dated 23 November 2015, Mr Davies wrote a further letter to the claimant, again on advice and assistance from Peninsula, in which he stated:-

“ ... I write further to your e-mail of 22/11/15 in which you stated you had been unable to attend the informal investigation meeting due to be held on 25/11/15.

You also advised in your email that you did not receive any reply.  However I can advise you that a letter was issued to you and delivered by Royal Mail recorded delivery on 13 November.  The tracking information indicates that you did not retrieve this on 13 November and have not responded to the card which was left by Royal Mail.

As you are aware our clients Rainbow International (Head Office) have contacted the company requesting that you be removed from their jobs due to the following matters of concern: alleged objectionable behaviour; further particulars being that in October 2015 you were allegedly seen by a client with a pair of her young grandchild’s underwear on her head, promptly her to make a complaint.  

You were advised in my previous letter of 20/11/15 that you are currently unauthorised paid leave/suspension from 27/10/15 however you have stated in your email that you did not wish to receive payment as you have completed a claim form with the Social Security.  I would advise that in order to respect your wishes I can arrange payment of these wages at time of your choosing.  However it is your responsibility to contact the Social Security Office in order to provide them with up to date and accurate information in relation to your current employment status.  For avoidance of doubt I can confirm that you currently remain an employee of PCO Davies Ltd t/a Rainbow International, Newtownards.

The company has no alternative but to respect Rainbow International (Head Office) (and care quality commission) wishes as it is part of the Service Level Agreement that you can insist that part of the Service Level Agreement that they can insist that our employees are removed from Rainbow International Jobs when there are ongoing issues of concern to investigate.

To this end you are required to attend a reschedule investigation meeting on Tuesday 1 December 2015 at 9.30 am [at respondent’s premises].

The meeting will be conducted by Paul Davies, Managing Director.  Sam Bailie will also be in attendance as note-taker.

After this meeting we will be in a better position to consider whether to pursue a form of procedure with you and what representations can be made to the client on your behalf.  

		... .”

3.23	In relation to the delivery of the letter of 11 November 2015, it would appear that, following further investigation by the claimant and Ms Irvine upon receipt of the correspondence from Mr Davies referring to the letter of 11 November 2015 and its receipt by the claimant, Royal Mail had not in fact left a relevant card, as suggested by Mr Davies, informing the claimant of the necessity to collect the letter from the Royal Mail Office; this failure did not become apparent to them until receipt by the claimant of the letter of 20 November 2015 with the consequence that the said letter of 11 November 2015 was not obtained by the claimant until 26 November 2015.

3.24	As referred to above, on 18 November 2015, the claimant presented his claim to the tribunal for unfair dismissal, in which he claimed that he had been dismissed by the respondent on 27 October 2015 and, in the alternative, if he had not been so dismissed by the respondent, then he had been unfairly constructively dismissed by the respondent on that date.  The respondent presented a response to the claimant’s claim to the tribunal on 21 December 2015.  This response was drafted by Peninsula on behalf of the respondent.  It was presented to the tribunal by Peninsula, with the agreement of the respondent; and, in particular, that of Mr Davies, who accepted in evidence he had read and agreed the said response before it was presented to the tribunal.  However, the tribunal noted that Mr Davies, in the course of his evidence, despite his assertion he had agreed and read the response before it was presented to the tribunal, seemed surprised and unaware of much of its contents.

3.25	In particular, the respondent, in its response, stated:-

	“9.  It is denied that the claimant was dismissed by the respondent, let alone unfairly dismissed as alleged.  In fact the respondent maintains that the claimant remains an employee of the company at the date of this response.  

	10.	The respondent concedes that the MD of the company told the claimant that there was no work for him at the company on 27 October 2015 following the complaint against him.  However, the respondent contends that this statement was made by the MD in haste, in the heat of the moment and without due consideration to the prevailing circumstances.

	11.	Following the events of the meeting on 27 October 2015, the respondent took a more considerate approach to the prevailing facts and reached out to the claimant to inform him that, in fact, they considered him still to be an employee of the company.

	12.	On 20 November 2015, the respondent confirmed to the claimant that further to the instructions of Rainbow International LLC, the claimant had been placed on suspension on full pay while the complaint against him was being investigated.  The claimant was also invited to an investigation meeting to discuss the complaint against him.

	13.	The claimant refused to engage in the investigation process by refusing to attend the meeting, instead commencing these proceedings.

	14.	The respondent was keen to resolve the confusion between the parties and so expressly confirmed to the claimant in writing that he was still an employee of the respondent by letter dated 23 November 2015.  The respondent also invited the claimant to attend a re-scheduled investigation meeting.  Once again, the claimant refused to engage in the investigation process.

	15.	Pursuant thereto, the respondent continued to consider the claimant an employee of the company, and so advised him to attend a disciplinary hearing to address the complaint made against him.  At the date of response, this hearing has not yet taken place.

	16.	In consideration of the above, the respondent submits that it has done all in its power to resolve the confusion between the claimant and the respondent in respect of the claimant’s current employment status.  The respondent concedes that it initially gave the claimant the impression that he had been dismissed on 27 October 2015.  However, its diligent action since that date to rebuild the relationship between the parties demonstrates the respondent’s regret in respect of MD’s initial haste, and also its commitment to the claimant and his continued role at the company.

	...”.

3.26	By letter dated 14 December 2015, Mr Davies wrote again to the claimant in which he stated:-

	“ ... As you are aware, our clients Rainbow International have contacted us requesting that you be removed from their insurance instructions, due to a complaint regarding your conduct.  

	Your manager Paul Davies has already contacted you to ask that you do not attend the premises.  In the meantime your contractual wages will continue to be paid.  

	As you will recall, you were invited to attend an informal investigation meeting on 25/11/2015 and a rescheduled informal investigation meeting on 1/12/2015 however you failed to attend these meetings and did not contact the company to advise that you would not be able to attend.  You are now required to attend a disciplinary hearing to be held on 17/12/2015 at 9.30 am [at the respondent’s premises]. 

	The purpose of the hearing is to afford you the opportunity to provide an explanation for these matters of concern:

	Alleged objectionable behaviour; further particulars being that you were allegedly seen by a client with a pair of her young grandchild’s underwear on your head, prompting her to make a complaint.

	If these allegations have substantiated, we will regard them as serious misconduct.  

	I enclose for your information, copies of the documents that will be used at the hearing, which are itemised below, together with a copy of our Disciplinary Rules and Procedures:-

	(1)	Letters to attend investigation meetings on 25/11/2015 and 01/12/2015.

(2)	Copy of customer complaint.

	(3)	Copy of letter from Rainbow International Head Office requesting that all involved in the incident no longer attend any insurance instructions.

I have attached a copy of the company’s Disciplinary Rules and Procedures (which you are aware) and to which I will be making reference.

The hearing will be conducted by Paul Davies, Samantha Bailie will also be in attendance as note-taker.

If you are unable to provide a satisfactory explanation in this regard you may be given a warning, or a final written warning if deemed appropriate in accordance with our disciplinary procedure.  

You are entitled, if you so wish, to be accompanied by a fellow employee.  If you wish to exercise this right then it is your responsibility to make the necessary arrangements.

If you do not attend the disciplinary hearing without giving advance notification or good reason, we will treat your non-attendance as a separate issue of misconduct.

Should you wish to contact an employees who you feel could assist in preparing an explanation for the allegations made against you then please contact me in order that I can arrange to take witness statements from them.

At the end of the disciplinary hearing I will adjourn it to consider my response.  No decision will be made at that stage.  Pending that decision, however we will immediately hold a separate meeting to discuss the client’s request to remove you from their client premises.  This will ensure I can establish all of the facts and give you the opportunity to put forward your explanation.  I will then be able to make formal representations on your behalf to the client with the aim of having you re-instated.

I feel it is appropriate to point out that we have no alternative but to respect the client’s wishes.  It is part of our contractual arrangement with them that they have the right to request exclusion of any of our personnel on  their client premises.  

After I have spoken to the client I will contact you again to arrange a further meeting.  I must warn you that if we are unable to persuade the client to allow you to continue work on their premises and we have no alternative employment for which you can be considered your contract may be terminated.  The technical reason for this dismissal would be for ‘some other substantial reason’ (SOSR), namely third party pressure.  However we will seek to avoid this if possible.

If you have any queries regarding the contents of this letter please contact me ... .”

Mr Davies, agreed, in evidence, the enclosed Rules and Disciplinary Procedures had never been shown to the claimant prior to this letter and were operated as Disciplinary Rules and Procedures of the respondent.  These were a set of standard disciplinary orders and procedures, which had been supplied to Mr Davies at some earlier time by an employment consultancy he had previously worked with.

By letter, dated 16 December 2015, Ms Irvine, on behalf of her brother, wrote to Mr Davies stating:-

	“On behalf of Mr Reilly I would advise you that he is unable to attend the meeting you have arranged for 17 December 2015.  

	As advised in previous correspondence, you told Mr Reilly on 27 October 2015 that because of an alleged incident Rainbow no longer had any work for him and as a result you need to let him go.  

	In correspondence sent to you by email on 21 and 25 November 2015 Mr Reilly advised you, and with reasonable notice, that he was unable to attend the meetings you have scheduled for 25 November and 1 December 2015.

	Mr Reilly remains very disappointed that you continue to distort the trust in this case.”

3.27	In light of the events of the meeting on 27 October 2015 and the respondent’s conduct, in particular Mr Davies, including his correspondence, since that date that the respondent, and in particular Mr Davies, by his conduct, the claimant had concluded Mr Davies was now blatantly lying and twisting the truth in relation to the events on 27 October 2015 and in the immediate period thereafter as outlined above; and that, in the circumstances, their relationship had thereby broken down beyond repair.  It should be noted that, when Ms Irvine wrote to the respondent on 16 December 2015 neither the claimant nor Ms Irvine had seen the respondent’s response, presented to the tribunal on 21 December 2015.  The said response was not sent by the tribunal to Ms Irvine, as the claimant’s representative, until letter dated 6 January 2016.

3.28	In relation to the earnings which the claimant would have been entitled to if he had been on suspension, as stated by the respondent on 27 October 2015 until                   31 December 2015, these payments were not paid or purported to be paid by the respondent to the claimant until, by way of BACS transfer, they were paid until the beginning of the week of tribunal these on or about 21 March 2016, in the sum of £1,863.28 in total (£1,090.48 net per 30 November 2015 and £772.80 net per 30 December 2015).  It was not disputed by the parties that, if the claimant was entitled to any compensation from the tribunal, then this sum required to be taken into account in relation to any award of compensation.

3.29	The claimant has not yet obtained new employment.  The claimant gave evidence, which was not seriously challenged by the respondent’s representative of the strenuous efforts made by him, setting out the attempts that he has made, to obtain alternative new employment; but, unfortunately, without any success.  The tribunal was satisfied, on the evidence before it, that he has looked for work in the local newspapers, job centre, online and Jobs NI and he has contacted employment agencies and answered certain adverts; but all without any success to date.    

Relevant law

4.1	Article 126 of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) provides:-

		“An employee has the right not to be unfairly dismissed by his employer.”

	Article 130 of the 1996 Order provides:-

“(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 (if more than one the principle) for the dismissal; and

(b)	that it is either a reason falling within Paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

		 (2)	The reason falls within this paragraph if it –

...

(b)	relates to the conduct of the employee,

...

		 ...

(4)	Where the employer has fulfilled the requirements of Paragraph (1) the determination of a 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 as treating it as a sufficient reason for dismissing the employee; and

(c)	shall be determined in accordance with equity and the substantive merits of the case.
		
		...

		 (6)	Paragraph (4) is subject to Article 130A ... .”

	Article 130A of the 1996 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 these requirements.

(2)	Subject to Paragraph (1) failure by an employer to follow procedure in relation to the dismissal of an employee shall not be regarded for the purpose 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.”

	Article 127 of the 1996 Order provides:-

“(1)	For the purposes of this Part an employee is dismissed by his employer if (and subject to Paragraph (2) ... only if) –

(a)	the contract under which he is employed is terminated by the employer (whether with or without notice);

		...

(c)	the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.

(2)	An employee shall be taken to be dismissed by his employer for the purposes of this Part if –

(a)	the employer gives notice to the employee to terminate his contract of employment, and

(b)	at a time within the period of that notice the employee gives notice to the employer to terminate the contract of employment on a date earlier then the date on which the employer’s notice is due to expire;

and the reason for the dismissal is to be taken to be the reason for which the employer’s notice is given.”

	Article 33 of the 1996 Order provides:-

“(1)	Where an employee begins employment with an employer, the employer shall give to the employee a written statement of particulars of employment.

		... .”

Article 27 of the Employment (Northern Ireland) Order 2003 (‘the 2003 Order’) provides:-

“(1)	This Article applies to proceedings before an industrial tribunal relating to a claim by an employee under any of the jurisdictions listed in Schedule 4.  [It was not disputed this included a claim for unfair dismissal.]

...

		 (3)	If in the case of proceedings to which this Article applies –

(a)	the industrial tribunal makes an award to the employee in respect of the claims to which the proceedings relate, and

(b)	when the proceedings were begun the employer was in breach of his duty to the employee under Article 33(1) ... of the Employment Rights Order the tribunal shall, subject to Paragraph (5) increase the award by the minimum amount and may, if it considers just and equitable in all the circumstances increase the amount by the higher amount instead.

		 (4)	In Paragraphs ... (3) –

(a)	references to the minimum amount are to an amount equal to two weeks’ pay, an

(b)	references to the higher amount are to an amount equal to four weeks’ pay.

(5)	The duty under Paragraphs (2) and (3) does not apply if there are exceptional circumstances which would make an award or increase under that paragraph unjust and inequitable.”

	[It was not disputed the amount of a week’s pay at the material time was £327.44.]

Such a claim is not a freestanding claim and cannot be made unless a claim under Schedule 4 has been upheld (see Scott-Davies  v  Redgate Medical Services [2006] UKEAT/0273).  The duty on the tribunal to consider making such an award is mandatory in the prescribed circumstances, whether or not the claim has been pleaded by the claimant – see before.

When an adjustment to an award of compensation falls to be adjusted under Article 17 of the 2003 Order (see before) and Article 27 of the 2003 Order, any adjustment to be made under Article 17 is made before any adjustment under Article 27.

4.2	Substantial changes to the law of unfair dismissal were introduced, following the commencement in April 2005 of the Employment (Northern Ireland) Order 2003 (‘the 2003 Order’); and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (‘the 2004 Regulations’).  The 2003 Order and the 2004 Regulations introduced, inter alia, statutory procedures to be complied with by an employer relating to matters of discipline and/or dismissal.   These provisions came into operation on 3 April 2005.  They were not repealed by the Employment Act (Northern Ireland) 2011 and were therefore applicable, insofar as relevant and material to this matter.

In essence, the statutory procedures introduced under the said legislation required employers, subject to certain exemptions which were not applicable to this case, to follow a specific procedure when subjecting employees to disciplinary action or dismissal.  There are two alternatives, namely:-

(a)	standard dismissal and disciplinary procedures (DDP);or 

(b)	a modified DDP.

There was no dispute that the latter procedure was never applicable in this matter.  

Under the standard DDP it is provided at Paragraphs 1 – 3 of Schedule 1 of the 2003 Order as follows:-

“(i)	Step 1 –

A statement of grounds for action and invitation to meeting –

 (1)	The employer must set out in writing the employee’s alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.

 (2)	The employer must send a statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.

Step 2 – Meeting

(1)	Meeting must take place before action is taken, except in the  where the disciplinary action consists of suspension.

			(2)	Meeting must not take place unless –

			(a)	the employer has informed the employee of what the basis was for including in the statement in Paragraph (1) the ground or grounds given in it; and

			(b)	the employee has had a reasonable opportunity to consider its response to that information.

			(3)	The employee must take all reasonable steps to attend the meeting.

			(4)	After the meeting the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.

			Step 3 – Appeal

			(1)	If the employee does wish to appeal, he must inform the employer.

			(2)	If the employee informs the employer of its wish to appeal, the employer must invite him to attend a further meeting.

			(3)	The employee must take all reasonable steps to attend the meeting.

			(4)	The appeal meeting need not take place before the dismissal or disciplinary action takes effect.

			(5)	After the appeal meeting the employer must inform the employee of its final decision.”

(ii)	There are a number of general requirements set out at Paragraphs 11 – 13 of Part III of Schedule 1 of the 2003 Order, which provide, as follows:-

				“Introductory 

				(11)	The following requirements apply to each of the procedures set out above (so far as applicable)

				 Timetable

				 (12)	Each step and action under the procedure must be taken without unreasonable delay.

				 Meeting

				 (13)	

				 (1)	Timing and location of meetings must be reasonable.

				 (2)	Meetings must be conducted in a manner which enable both employer and employee to explain their cases.

				(3)	In the case of appeal meetings which are not the first meeting, the employer should, as far as is reasonably practicable, be represented by a more senior manager than attended the first meeting (unless the more senior manager attended that meeting).”

		(iii)	Under Regulation 12 of the 2004 Regulations, it is provided, in essence, that the failure of a party to follow the applicable DDP then releases the other party from the obligation to follow it:-

				“(1)	If either party fails to comply with the requirement of an applicable statutory procedure including a general requirement contained in Part III of Schedule 1, …               non-completion of the procedure shall be attributable to that party and neither party shall be under obligation to comply with any further requirement of the procedure.”

		(iv)	Under Regulation 3(1) of the 2004 Regulations, the standard DDP applies when the employer contemplates dismissing or taking relevant disciplinary action against an employee.

		(v)	Existing contractual and dismissal procedures remain to the extent that they supplement the statutory DDPs – which are intended to give the employee certain ‘basic’ protections.

4.3	The Employment Appeal Tribunal has also held, in the case of Metrobus Ltd  v  Cook [UKEAT/0490/06] (Paragraphs 27 – 29), where a tribunal has made a finding of automatic unfair dismissal, pursuant to similar provisions in the Employment Rights Act to Article 130A(1) of the 1996 Order, it may be ‘useful’ for the tribunal to record its judgment, in the alternative, on the ‘ordinary’ unfair dismissal allegation, (ie pursuant to Article 130 of the 1996 Order).  Given the reasons and conclusions of the tribunal, as set out later in this decision, the tribunal did not consider it useful or necessary, in the circumstances, to determine the claimant’s alternative claim of unfair constructive dismissal.

4.4	Failure to comply with the relevant statutory dismissal procedures has an impact on compensation in relation to a claim of unfair dismissal, resulting in an adjustment upwards (in the case of default by the employer) or in an adjustment downwards (in the case of default by the employee).  Under Article 17(2) and 17(3) of the 2003 Order, the adjustment must be at least 10% and, if the tribunal considers it just and equitable, up to 50%.  However, under Article 17(4) of the 2003 Order, a tribunal can apply no adjustment (or an adjustment of less than 10%) if there are exceptional circumstances making a 10% adjustment unjust or inequitable.  Any potential uplift or reduction is limited to the compensatory award only; and there is no provision in an unfair dismissal claim to uplift the compensatory award beyond the statutory maximum (Article 158A of the 1996 Order).

4.5	Although the decisions of the Employment Appeal Tribunal and/or the Court of Appeal in England and Wales are not binding on this tribunal; however, the tribunal, in the absence of any relevant decisions in the Court of Appeal in Northern Ireland in relation to the said statutory dismissal procedures, subject to what is stated later in this decision, has found the decisions of the Employment Appeal Tribunal and/or the Court of Appeal in England and Wales, in relation to such matters, persuasive and appropriate to follow – in particular, in circumstances where the decision of the Employment Appeal Tribunal and/or the Court of Appeal in England and Wales relate to provisions, which were then applicable in Great Britain, and which were in similar terms to the relevant statutory provisions in Northern Ireland, to which reference has been made above.  The Employment Appeal Tribunal and/or the Court of Appeal in England and Wales has been reluctant to set down principles that fetter the discretion of a tribunal in relation to this issue of the uplift and reduction of the compensatory award in relation to a finding of automatic unfair dismissal (see Cex  v  Lewis [UKEAT/0031/07].

	In Metrobus Ltd  v  Cooke [UKEAT/0490/06] the EAT did not interfere with an uplift of 40% where the employer had ‘blatantly’ failed to comply with the obligation to send a Step 1 letter and acknowledged that the uplift provisions were more ‘penal than compensatory in nature’.  In Davies  v  Farnborough College of Technology [2008] IRLR 4, Burton J suggested a maximum uplift could apply where there had been a complete and deliberate breach of any procedures.  Subject to what is set out below, ultimately the extent of any uplift would appear to be a matter within the discretion of a tribunal, having regard to all material circumstances, which are unlimited.  Further, the statutory provisions do not require the tribunal to start at an uplift of 50% and work downwards in accordance with evidence of mitigation provided by the respondent (see Butler  v  GR Carr (Essex) Ltd [UKEAT/0128/07].  However, in the case of Aptuit (Edinburgh)  v  Kennedy [UKEATS/0057/06], the Employment Appeal Tribunal (in Scotland) held that, when exercising its discretion to uplift an award, the only circumstances which the tribunal may take into account are those surrounding the failure to complete the statutory procedure.  In the case of McKindless Group  v  McLaughlin [2008] IRLR 678, the Employment Appeal Tribunal (in Scotland) has again confirmed that, in exercising the discretion the tribunal must do so by reference to some particular facts and circumstances surrounding the failure to complete the statutory procedure which can properly be regarded as making it just and equitable that the employer should be penalised further.  Somewhat controversially, the EAT held that an uplift should not follow if the employer does not explain the reasons for the failure to comply, on the grounds that the statutory provisions do not oblige the employer to explain the failure.

	In the case of Virgin Media Ltd  v  Seddington & Another [UKEAT/0539/08], Underhill J applied the McKindless Group case and confirmed that a (if not the) primary factor requiring to be taken into account in exercising the discretion in relation to whether an uplift was applicable, related to how culpable the failure to employ the statutory procedures was.  Underhill J accepted that, in some circumstances, failure to employ the statutory procedures might speak for itself.  In addition he said that the issue of uplift should not be approached too mechanistically, as had occurred in the particular facts of that case.  In Abbey National Ltd  v  Chagger [2009] IRLR 86, Underhill J held that it was legitimate for a tribunal to take into account the overall size of an award, when deciding the amount of an uplift.

	In the case of Wardle  v  Credit Agricole [2011] EWCA Civ 545, Elias LJ reviewed all the authorities and stated:-

“18	Before answering this question, it is necessary to consider the principles which should inform a tribunal when exercising its Section 31(3) discretion.

 19	I confess that I do not find the sub-section at all easy to apply. In Chagger the Court stated that its purpose was to operate ‘as an incentive to encourage parties to make use of the statutory procedures’.  It is a stick rather than a carrot, and the sanction for failing to comply has a significant punitive element since failure leads to additional compensation irrespective of the adverse effect on the employee.  It is no doubt because the penalty should be commensurate with the offence that the EAT has expressed the view on a number of occasions that the degree of culpability is a highly significant factor when assessing the appropriate uplift.  Culpability will include such considerations as the extent of the breach and whether it is deliberate or inadvertent : see the observations of the EAT President, Underhill J, in Virgin Media  v  Seddington UKEAT/00539/08, Paragraph 20 and Lawless  v  Print Plus UKEAT/0333/09, Paragraph 10.

 20	Whilst I do not dissent from that analysis, I think it would be wrong to see the uplift purely in penal terms.  The breach does have adverse consequences for the other party.  In the case of a dismissal, the employee is deprived of the opportunity to persuade the employer, before the axe falls, that the dismissal would be inappropriate or unfair.  Instead he is compelled to go to law to vindicate his position.

21	The consequences of the breach for an employee will vary from case to case.  For example, it may be felt particularly harshly where the dismissal is for misconduct, and especially so if there are what turn out to be false allegations of fraud or dishonesty which can then only be successfully challenged in the tribunal, where they necessarily become aired in public.  In my judgment this would render the breach more culpable than would otherwise be the case and would be a potentially important factor justifying an uplift significantly above the 10%.

22	I do not think that the ability of the wrongdoer to pay is in itself a relevant factor when considering the degree of culpability.  Having said that, a large company which infringes the procedures will often be more culpable than a small business because it has less excuse for being ignorant of its obligations and the potential consequences of its actions.

23	The curiosity about these provisions - both as they affect the employer and employee - is that the sanction is defined by reference to the compensation awarded to the employee which is in turn a function of the employee's loss.  Yet that depends on a whole host of factors some of which are entirely fortuitous and have no bearing on the employer's conduct at all.  For example, if the employee is unfairly dismissed in flagrant and deliberate disregard of the procedures, but he secures equivalent employment immediately following the dismissal, the compensation will be very small and even the maximum uplift will only result in a very modest sum of money.  By contrast, an employer who inadvertently commits a relatively minor breach in circumstances where considerable loss is suffered will have to pay much more even if the uplift is limited to 10%.  The stick strikes more harshly on the wrong dog.  That, however, is what Parliament has enacted, and tribunals must seek to give effect to Parliament's intention, however difficult or arbitrary the consequences may appear to be.

24	In my view, some understanding of Parliament's intention can be gleaned by a careful consideration of the structure of the sub-section.  As the EAT has observed (eg in the Lawless case) the tribunal is not charged with fixing a percentage somewhere between 10 and 50% as it deems just and equitable.  Had that been the formulation then I can see that it may well have been appropriate for a tribunal to choose 10% for the least serious breaches and 50% for the most flagrant with the rest falling at the appropriate point within the range.  Rather the tribunal is enjoined to start with 10% and it must then consider whether it is just and equitable to increase that percentage and, if so, by how much.

25	As Lady Smith pointed out giving the judgment of the EAT sitting in Scotland in McKindless Group  v  McLaughlin [2008] IRLR 678, Paragraph 13, this requires a tribunal to explain what facts or circumstances surrounding the failure to comply make it just and equitable to go beyond the minimum at all.  This should not be an automatic response whenever the tribunal thinks that the breach is more than minor.  On the contrary, there must be something about the particular circumstances which justifies the conclusion that 10% would be inappropriate and ought to be increased.  The circumstances need not be exceptional, otherwise that word would have been used here as it is in sub-section (4), but in my judgment they must be such as to clearly justify concluding that the starting point of 10% would not adequately reflect the degree of culpability.

26	In my opinion an increase to the maximum of 50% should be very rare indeed.  It should be given only in the most egregious of cases.  An example given by Lady Smith in the McKindless case which would at any event get close to the maximum is where there is a clear finding that the employer is determined to dismiss the employee whatever the merits and has deliberately and cynically ignored the procedures in case they get in the way of his being able to do so.  However, the mere fact that the employer has ignored the procedures altogether would not in my view justify an increase to the maximum, although it would often justify some increase beyond 10%.

27	Once the tribunal has fixed on the appropriate uplift by focusing on the nature and gravity of the breach, but only then, it should consider how much this involves in money terms.  As I have said, this must not be disproportionate, but there is no simple formula for determining when the amount should be so characterised.  However, the law sets its face against sums which would not command the respect of the general public, and very large payments for purely procedural wrongdoings are at risk of doing just that.  The EAT referred to the case of HM Prison Service  v  Johnson [1997] ICR 275 when Smith J, as she then was, observed, with respect to the level of compensation for injury to feelings, that it was necessary to have regard to ‘the view which members of the public would have to the amount of the award’.  In my judgment, that is a fortiori the case where the award is either unrelated, or at least only partially related, to any specific injury to, or loss suffered by, the employee.

28	In considering the sort of sum which would be proportionate and acceptable, it is, in my view, of some relevance to have regard to the sums which the courts are willing to award for injury to feelings and for aggravated damages.  

...

29	I do not suggest that these are entirely analogous situations, but I think that save in very exceptional cases, most members of the public would view with some concern additional payments following an uplift for purely procedural failings which exceeded the maximum payable for injured feelings.”

In a recent case, before the Court of Appeal in Northern Ireland, in the case of Brinks Ireland Ltd  v  Hines [2013] NICA 32, one of the issues which the Court could have been required to consider on appeal was the uplift of 50%, in circumstances where the tribunal had found that the dismissal was unfair; but, in the event, the Court of Appeal remitted the case to the industrial tribunal to further consider the nature of the dismissal and, in light of same, the application (if relevant) of the said uplift provisions.  The industrial tribunal, upon remittal, decided the claimant was expressly, deliberately and unfairly dismissed and affirmed the earlier decision of a 50% uplift of the compensatory award.  This subsequent decision was not the subject of appeal.  In a decision in the Court of Appeal in the Northern Ireland, in the case of Lewis  v  McWhinney’s Sausages Ltd [2013] NICA 47, the provisions relating to an uplift, pursuant to Article 17(3) of the 2003 Order were also, inter alia, the subject-matter of the proceedings; but in the event, it was again not necessary for the Court of Appeal to make any observations on the said provisions, relating to uplift, when dismissing the appeal.  

4.6	Following the introduction of the new statutory dismissal procedures, Article 130A(1) and (3), as set out above, provided a dismissal was automatically unfair if the new procedures were not followed.  As set out previous (Paragraph 3.3) the respondent’s representatives did not dispute the said procedures had not been complied with.

4.7	Article 130A(2) made further changes in the law in relation to unfair dismissal and, in particular, provided in certain circumstances, the partial reversal of the principles set out in the well-known House of Lords decision in the case of Polkey  v  AE Dayton Services Ltd [1988] ICR 344 (‘Polkey’).  However, Article 130A(2) does not apply in a case where there has been a dismissal in breach of the statutory dismissal procedures, whereby the dismissal is automatically unfair under Article 130A(1).  Article 130A(2) of the 1996 Order therefore is only of application  where the statutory dismissal procedure has been complied with but there has been a breach of procedures, other than statutory dismissal procedures (see further letter).  

4.8	For the statutory procedures to apply and for the claimant to establish a claim of automatic unfair dismissal for non-compliance, the claimant had to establish that he had been dismissed by the respondent, pursuant to Article 127(1)(a) of the 1996 Order.  If he was not dismissed by the respondent, the statutory dismissal procedures do not apply and he would be unable to establish he had been ‘automatically’ unfairly dismissed.  In such circumstances, as set out previously, the claimant would have to show, in the alternative, he had been unfairly constructively dismissed, pursuant to Article 127(1)(c) of the 1996 Order.  The statutory dismissal procedures do not apply to a constructive dismissal.

4.9	A mere intention to dismiss does not of itself constitute a dismissal.  That intention must be communicated to the employee.  As held in J & J Stern  v  Simpson [1983] IRLR 52, in order to decide whether or not there has been a termination, the words used should be construed in the context of the facts of the case.  It is only if there is ambiguity after looking at the words in their context that a further test of whether a reasonable employer might have understood the words to be tantamount to dismissal might be applied.

4.10	The general principle is that once notice of dismissal is given it not open to the employer unilaterally to retract it.  However, in Martin  v  Yeoman Aggregate Ltd [1983] IRLR 49 it was held, if an employer dismissed in the heat of the moment, the dismissal can be withdrawn provided it is done almost immediately when tempers cool.  In Willoughby  v  CF Capital PLc it was held any such exception should not be construed so widely as to subvert the Rule; in particular, in a case where the employer has deliberately given notice (ie not hot-headedly) it will be very difficult to withdraw it merely because the employer changes his mind.

	As seen in Harvey on Industrial Relations and Employment Law, Volume I, Section D1, Paragraph 249, in a case such as Willoughby, where there was an immediate retraction of dismissal, such a retraction by an employer to be successful may depend on whether the employee agrees to the employer’s retraction.  As stated in the said paragraph:-

“ ... Although this may be hard on an employer genuinely trying to retrieve a situation, it is at least compatible with the law on constructive dismissal where it has been held that once an employer has breached trust and confidence that an employer may not unilaterally repeat and withdraw its actions, thus leaving it up to the employee whether or not still to leave and claim constructive dismissal (Buckley  v  University of Bournemouth [2010] IRLR 445).”

4.11	Procedural defects in the initial disciplinary hearing may be remedied on appeal, provided that in all the circumstances the later stages of the procedure are sufficient to cure any earlier unfairness.  As the Court of Appeal held in Taylor  v  OCS Group Ltd [2006] EWCA Civ 702:-

“If an early stage of a disciplinary process is defective and unfair in some way then it does not matter whether or not an internal appeal is technically a re-hearing or review, only whether the disciplinary process as a whole is fair.  After identifying a defect a tribunal will want to examine any subsequent proceedings with particular care.  Their purpose in so doing will be to determine whether, due to the fairness or unfairness of the procedures adopted, the thoroughness or lack of it of the process and the                      open-mindedness (or not) of the decision-maker, the overall process was fair, notwithstanding any deficiencies at an early stage.”

	In a recent decision, the Employment Appeal Tribunal, in the case of Holt  v  Res On Cite Ltd [2014] UKEAT/0410 emphasised that the tribunal’s role is to consider the fairness of the processes as a whole, and an appeal should not be seen separately but should be seen as part of the entire disciplinary process (see further First Hampshire & Dorset Ltd  v  Parhar [2012] UKEAT/0643]). 

	In McMaster  v  Antrim BC [2010] NICA 45, Coghlin LJ emphasised:-

The fundamental purpose served by an agreed appeal disciplinary procedure is to ensure that both sides have a full and fair opportunity to put their respective cases and secure a just outcome to any dispute, including putting right, where necessary, any errors or shortcomings apparent in the initial hearing.  As a matter of principle it is difficult to accept that the effective operation of an appeal could be simply prevented by an employer either refusing the employee the right to such an appeal procedure or by rejecting an outcome considered to be adverse to his or her interest leaving the frustrated employee with compensation for breach of contract as his or her only remedy.”

See further West Midlands Co-Operative Society Ltd  v  Tipton [1986] AC 536)  In London Probation Board  v  Kirkpatrick [2005] ICR 965, approved by Coghlin LJ, in McMaster, HH Judge McMullan QC made clear:-

... the whole point of internal appeals is to allow for bad or unfair decisions to be put right.”

4.12	Under Article 157(1) of the 1996 Order, the amount of a compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer.  In having regard to what the employee has lost in consequence of the dismissal, it may be necessary to determine what would have occurred but for the dismissal.  This may require an assessment as to whether the employment would have ended but for the dismissal.  

In the well-known House of Lords decision in Polkey  v  AE Dayton Services Ltd [1988] ICR 344 it was held that, in essence, an employer who had acted unreasonably and in breach of procedures could not contend that, since the dismissal would have occurred anyway, even if proper procedures had been followed, the dismissal should be found to be a fair dismissal.  Indeed, it is only in limited circumstances that an employer would be able to successfully argue that compliance with fair procedures would be futile.  

	However, although the tribunal might find that dismissal was unfair, a tribunal, following Polkey, was able to reduce the employee’s compensation by a percentage to represent the chance the employee would have still been dismissed.  In the case of Polkey it therefore required the employer to satisfy the tribunal it would have dismissed the employee, even if it had complied with fair procedures.  However, as seen above, a ‘Polkey’ reduction is not confined to a dismissal rendered unfair purely by procedure failure (as happened in the facts of Polkey); it can also apply in a wider range of cases, depending on the facts found by the tribunal.

4.13	Article 130A(2), as set out previously, made a further change to the law of unfair dismissal and resulted, in certain circumstances, in a partial reversal of the principles set out in Polkey, as indicated above.

	Article 130A(2) provides that a dismissal, following a failure to follow other procedural steps, will not affect the fairness of the dismissal, provided the employer can show the employee still would have been dismissed, if he had followed the steps correctly.  The Polkey decision was partially reversed and the ‘no difference rule’, which had applied before Polkey, was reinstated for a failure to follow procedures, other than the new statutory dismissal and disciplinary procedures.  The reference to procedures in Article 130A(2) was the subject of some conflicting decisions in the Employment Appeal Tribunal, but the generally accepted view would seem now to be that it applies to any procedure, written or otherwise, which the tribunal considers a reasonable employer might follow (see Kelly-Madden  v  Manor Surgery [2007] IRLR 17).

4.14	However, what is clear, from the legal authorities, is that Article 130A(2) is only of assistance to an employer, whenever the DDP has been complied with.  Automatic unfairness cannot be cured by invoking Article 130A(2) (Butt  v  CAFCSS [UKEAT/0362/07]).  As was made clear in the case of Goodin  v  Toshiba [UKEAT/0271/08], there can be a Polkey reduction of up to 100% in an automatic unfair dismissal case, where the breaches of procedure would have made no difference to the dismissal.  If the employer has complied with the DDP (but the dismissal is nevertheless unfair for other reasons), but there is a greater than 50% chance that the employer would have dismissed the employee, pursuant to Article 130A(2), the dismissal will be fair.  Thus, where the relevant DDP has been complied with but the dismissal is procedurally unfair for the ordinary purposes of Article 130(4) of the 1996 Order, any Polkey deduction cannot exceed 50%.

4.15	In Software 2000 Ltd  v  Andrews [2007] UKEAT/0533/06, Elias J gave some useful guidance in carrying out the assessment referred to above:-

“(1)	In assessing compensation the task of the tribunal is to assess the loss flowing from the dismissal, using its common sense, experience and sense of justice.  In the normal case that requires it to assess for how long the employee would have been employed but for the dismissal.

(2)	If the employer seeks to contend that the employee would or might have ceased to be employed in any event had fair procedures been followed, or alternatively would not have continued in employment indefinitely, it is for him to adduce any relevant evidence on which he wishes to rely.  However, the tribunal must have regard to all the evidence when making that assessment, including any evidence from the employee himself.  (He might, for example, have given evidence that he had intended to retire in the near future.)

(3)	However, there will be circumstances where the nature of the evidence which the employer wishes to adduce, or on which he seeks to rely, is so unreliable that the tribunal may take the view that the whole exercise of seeking to reconstruct what might have been is so riddled with uncertainty that no sensible prediction based on that evidence can properly be made.

(4)	Whether that is the position is a matter of impression and judgment for the tribunal.  But in reaching that decision the tribunal must direct itself properly.  It must recognise that it should have regard to any material and reliable evidence which might assist it in fixing just compensation, even if there are limits to the extent to which it can confidently predict what might have been; and it must appreciate that a degree of uncertainty is an inevitable feature of the exercise.  The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence.

... .”

In considering issues relating to ‘Polkey’ deductions in the case of Hill Ltd  v  Governing Body of Great Tey Primary School, Langstaff P said:-

“24.	A ‘Polkey’ deduction has these particular features.  First, the assessment of it is predictive : could the employer fairly have dismissed and, if so, what were the chances the employer would have done so?  The chances may be at the extreme (certainly that it would have dismissed or certainly that it would not) though more usually will fall somewhere on a spectrum between these two extremes.  This is to recognise the uncertainties.  A tribunal is not called upon to decide the question on balance.  It is not answering the question what it would have done if it were the employer : it is assessing the chances of what another person (the actual employer) would have done.”

In the case of Dev  v  Lloyds TSB Asset Finance Division Ltd [2014] UKEAT/0281, Langstaff P confirmed the above approach but also stated:-

“6.	A tribunal asked to consider a Polkey question must not ask what would have happened but rather what might have happened.  To ask what would have happened asks for a decision, effectively, on the balance of probability, with a straight yes or no answer.  The second looks at the matter as one of assessment of chances within a range of 0% - 100%.  It is well established that the latter is the correct approach ... (see further Ministry of Justice  v  Parry [2013] ICR 311 and Hill Ltd  v  Governing Body of Great Tey Primary School ...).”

	In Brinks Ireland Ltd  v  Hines [2013] NICA 32, Girvan LJ followed, with approval, the guidance of Elias J in Software 2000 Ltd  v  Andrews.

In Software 2000, Elias J also provided guidance, with reference to the assessment involved pursuant to Article 130A(2):-

“The Section 98A(2) (ie Article 130A(2) in NI) and Polkey exercises run in parallel and will often involve consideration of the same evidence but they must not be conflated ... .”

(Section 98A(2) of the Employment Rights Act 1996 no longer applies in Great Britain.)

4.16	In the case of Morrison  v  Amalgamated Transport & General Workers Union [1989] IRLR 361, the Northern Ireland Court of Appeal held in relation to the issue of contributory fault:-

“(i)	the tribunal must take a broad common sense view of the situation;

(ii)	that broad approach should not necessary be confined to a particular moment, not even the moment when the employment is terminated;

(iii)	what has to be looked for in such a broad approach over a period is conduct on the part of the employee which is culpable or blameworthy or otherwise unreasonable; and

(iv)	the employee’s culpability or unreasonable conduct must have contributed to or played a part in the dismissal.”

In Allders International Ltd  v  Parkins [1982] IRLR 68, it was emphasised that it is the employee’s conduct alone, which is relevant to the issue of whether the loss resulting from the dismissal should be reduced on grounds of contributory fault.

In a recent decision of the Employment Appeal Tribunal in the case of Steen  v  ASP Packaging Ltd [2013] UKEAT/0023, Langstaff P, confirmed it would be a rare case where there would be a 100% deduction for contributory fault.  He also confirmed it was necessary for the tribunal to focus on what the employee did or failed to do and not rely the employer’s view of what he had done but the employer’s assessment of how wrongful that act was; and if any such conduct, as identified by it, which it considers blameworthy, caused or contributed to the dismissal to any extent and, if so, to what extent the award should be reduced and to what extent it is just and equitable to reduce it.  If the identified conduct which the tribunal considers blameworthy did not to any extent cause or contribute to the dismissal there can be no reduction, no matter how blameworthy in other respects the tribunal might think the conduct to have been.  Langstaff P noted that Polkey deductions and deductions for contributory fault are approached on different basis and do not directly overlap:-

“That is because the focus in a Polkey decision is predictive, it is not historical, as is the focus when establishing past contributory fault as a matter of fact.  Second, Polkey focuses upon what the employer would do if acting fairly.  Contributory fault is not concerned with the action of the employer but with the past actions of the employee.  A finding in respect of Polkey thus may be of little assistance in augmenting reasons given by a tribunal in respect of contributory deduction.”

4.17	Article 156(2) of the 1996 Order, provides, in relation to the issues of the amount of a basic award and contribution on the part of the claimant:-

		“Where the tribunal considers any conduct of the complainant before the dismissal .... was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly.”  

Article 157(6) of the 1996 Order provides in relation to the issues of the amount of a compensatory award and contribution on the part of the claimant:-

	“Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.” 
In the Northern Ireland Court of Appeal, in the case of GM McFall & Company              Ltd  v  Curran (1981) IRLR455, which would be normally binding on this tribunal, it was held that the general rule is that both the basic and compensatory awards should be reduced by the same amounts.  It should be noted, however, that the relevant legislation in Northern Ireland at the time of that decision was differently worded to that now seen in the 1996 Order.  In particular, the provisions relating to both a basic award and a compensatory award were in similar terms to that now seen in Article 157(6) of the 1996 Order and both provisions, at that time, therefore had reference to causation/contribution. 

Now, Article 156(2) and Article 157(6) of the 1996 Order, as set out above, are in similar terms to those set out in Sections 122(2) and 123(6) of the Employment Rights Act 1996, which applies in Great Britain.  As has been made clear in a recent decision of Langstaff P in the case of Steen  v  ASP Packaging Ltd (2013) UKEAT/0023/13:-

“The two sections are subtly different.  The latter calls for a finding of causation.  Did the action which was mentioned in Section 123(6) cause or contribute to the dismissal to any extent?  That question does not have to be addressed in dealing with any reduction in respect of the basic award.  The only question posed there is whether it is just and equitable to reduce or further reduce the amount of the basic award to any extent.  Both sections involve the consideration of what is just and equitable to do.” 										[Tribunal’s emphasis]

He also points out that, in applying the provisions of Section 123(6) if the conduct which it has identified and which it considers blameworthy did not cause or contribute to the dismissal to any extent, then there can be no reduction, pursuant to Section 123(6), no matter how blameworthy in other respects the tribunal might consider the conduct to have been.  If it did cause or contribute to the dismissal, then issues arise to be determined in relation to what extent the award should be reduced and to what extent it is just and equitable to reduce it.

Langstaff P emphasises that:-

“A separate questions arises in respect of Section 122(2) (the basic award) where the tribunal has to ask whether it is just and equitable to reduce the amount of the award to any extent.  It is very likely, but not inevitable, that what a tribunal concludes is a just and equitable basis for the reduction of the compensatory award will also have the same or a similar effect in respect of the basic award but it does not have to do so.”        

	So, in light of the foregoing, it would appear that, despite the change in the wording of the legislative provisions in Northern Ireland since the decision of the Court of Appeal in Northern Ireland, in GM McFall & Company Ltd, was decided, in most cases the same result would still be achieved; albeit it must be remembered that, in relation to the compensatory award, issues of causation/contribution have to be considered before any issues of reduction arise.  This, for the reasons set out above, is unlike the position in relation to the basic award.  However, as seen above, in most cases, the same reduction will continue to be applied to the basic and compensatory awards. 

4.18	In a recent decision in the case of British Gas Trading Ltd  v  Price [2016] UKEAT/03267/15, Mrs Justice Simler (P) has recently reviewed the authorities in relation to the issue of contributory fault and the statutory provisions relating to reduction of the basic and compensatory award in such circumstances, pursuant to Section 122(2) and 123(6) of the Employment Rights (Northern Ireland) Order 1996 (see before re: 156(2) and 157(6) of the 1996 Order).

	After emphasising the Sections, focus on the conduct of the employee and not on the conduct of the employer she relied on the guidance provided by                    HHJ Peter Clark in an old case of Optikinetics Ltd  v  Whooley [1999] ICR 984 when he stated:-

“(1)	Before making any finding of contribution the employee must be found guilty of culpable or blameworthy conduct.  The inquiry is directed solely to his conduct and not that of the employer or others.

(2)	For the purposes of Section 123(6) the employee’s conduct must be known to the employer at the time of the dismissal (cƒ : the just and equitable provision under Section 123(1) and have been a cause of the dismissal.

(3)	Once blameworthy conduct causing, in whole or in part, the dismissal has been found, the tribunal must reduce the compensatory award by such proportion as it considers just and equitable.  It must make a reduction ...

(4)	A finding of contribution under Section 122(2) does not require a finding that the conduct is causatively linked to the dismissal.  It may be first discovered after dismissal.  The wording of Section 122(2) grants to the tribunal a wide discretion as to whether to make any, and if so what, reduction in the basic award on the ground of the employee’s conduct.

(5)	After some uncertainty ... it is now clear that different proportionate reductions are permissible in relation to the basic and compensatory awards ...

(6)	The appellate courts will rarely interfere with the employment tribunal’s assessment of the percentage reduction for contribution.”

(Paragraph 5 of the guidance requires to be considered further in light of the judgment seen in Steen above.)

On the facts of the Price case, the EAT found the tribunal in determining these issues of contributory fault and reduction of basic and/or contributory award, had wrongly focused on the conduct of the employer rather than the employee and had confused causation of the dismissal with causation of the unfairness.

It held:-

“The question for a tribunal was the statutory question – did the culpable conduct cause or contribute to any extent to the claimant’s dismissal?  That question involves a mixed question of law and fact, as the parties agree.  In many cases, the answer will be obvious once the facts are found taking a broad common sense approach.  There may be cases however, where an evaluative judgment must be made as to whether the conduct was a legal contributing or an effective cause; or to put it another way, whether dismissal was a direct and natural consequence of the conduct.  Depending on the circumstances, it is open to a tribunal to determine that it was not.”

In relation to Paragraph 3 of the guidance in Optikinetics, where it states a tribunal must make a reduction once blameworthy conduct causing, in whole or in part, the dismissal has been found, Simler J concluded that, having found conduct did cause or contribute to the dismissal and that a tribunal is required to consider reducing the amount of the compensatory award by such proportion as it considered ‘just and equitable’, having regard to that finding, it would be difficult to envisage circumstances, although she did not altogether rule them out, where it would not be just and equitable to reduce the award at all, when there was a finding the claimant’s blameworthy conduct caused or contributed to the dismissal.  

4.19	The amount of any reduction of the basic and/or compensatory award (see before), by a percentage on just and equitable grounds, can be as much as 100%; but such a sizeable reduction, although legally possible, is rare/unusual/exceptional (see Lemonious  v  The Church Commissions (2013) UKEAT/0253/12); and, if such a reduction is made by a tribunal, it must be justified by facts and reasons set out in the decision.  In any event, the factors which help to establish a particular percentage should be, even if briefly, identified (see further Steen  v  ASP Packaging (2013) UKEAT/0023/13).

4.20	In relation to the issue of compensation, where a claimant has obtained income from a new job, following an unfair dismissal, the Employment Appeal Tribunal, in the case of Whelan  v  Richardson [1988] IRLR 144, summarised the approach to be taken by tribunals; albeit emphasising that tribunals had a discretion to do what was appropriate in individual cases:-

“(1)	The assessment of loss must be judged on the basis of the facts as they appear at the date of assessment hearing (‘the assessment date’).

 (2)	Where the (claimant) has been unemployed between dismissal and the assessment date then, subject to his duty to mitigate in the operation of the recoupment rules, he will recover his net loss of earnings based on the pre-dismissal rate.  Further, the Employment Appeal Tribunal will consider for how long the loss is likely to continue so as to assess future loss.  

 (3)	The same principle applies where the (claimant) has secured permanent alternative employment at a lower level of earnings than he received before his unfair dismissal.  He will be compensated on the basis of full loss until the date in which he obtained the new employment and thereafter for partial loss, being the difference between the pre-dismissal earnings and those in the new employment.  All figures will be based on net earnings.  

 (4)	Where the (claimant) takes alternative employment on the basis it will be for a limited duration, he will not be precluded from claiming loss to the assessment date, or the date on which he secures further permanent employment, whichever is the sooner, giving credit for earnings received from the temporary employment.

 (5)	As soon as the (claimant) obtains permanent alternative employment paying the same or more than his pre-dismissal earnings his loss attributable to the action taken by the respondent employer ceases.  It cannot be revived if he then loses that employment either through his own action or that of his now employer.  Neither can the respondent employer rely on the employee’s increased earnings to reduce the loss sustained prior to his taking the new employment.  The chain of causation has been broken.”

This guidance was described as helpful by the Court of Appeal in Dench  v  Flynn & Partners [1998] IRLR 653, although the Court considered that the obtaining of permanent employment at the same or a greater salary would not in all cases break the chain of causation.  The Dench decision was applied in Cowen  v  Rentokil Initial Facilities Service (UK) Ltd [2008] AER (D) 70.  Further, in a recent decision of the Employment Appeal Tribunal, in the case of Commercial Motors (Wales) Ltd  v  Hawley [2012] UKEAT/0636, the Employment Appeal Tribunal cited with approval the case of Dench and, in particular, the judgment of Beldam LJ, when he stated at Paragraph 19 of his judgment:-

“19	... no doubt in many cases a loss consequence upon unfair dismissal will cease when an applicant gets employment of a permanent nature at a equivalent or higher level of salary or wage than the employee enjoyed when dismissed.  But to regard such an event is always and in all case putting an end to the attribution of the loss to the termination of employment, cannot lead in some cases to an award which is just and equitable.

 20	Although causation is primarily a question of fact the principle to be applied in deciding whether the connection between the cause, such as unfair dismissal and its consequences, is sufficient to find a legal claim to a loss of damage, is a question of law.  The question for the tribunal was whether the unfair dismissal, could be regarded as a continuing course of loss when she was consequently dismissed by her new employer with no right of compensation after a month or two in her new employment.  To treat the consequences of unfair dismissal as ceasing automatically when other employment supervenes, is to treat the effective cause that which is simply closest in time.”

In Salvesen Logistics Ltd  v  Tate [UKEAT/689/98], the Employment Appeal Tribunal made clear that the chain of causation will not be broken where it is clear from the outset that the employment would be on a temporary basis.  

4.21	In relation to the issue of mitigation of loss, there is no dispute that the principle that a claimant is under a duty to take reasonable steps to mitigate his loss is              well-established under common law and that the principles of mitigation of loss apply equally to awards of compensation by a tribunal in relation to awards of compensation for unfair dismissal (see Fyfe  v  Scientific Furnishings Ltd [1989] IRLR 331) and that therefore the employee must take reasonable steps to obtain alternative employment.  In the case of Wilding  v  British Telecommunications PLc [2002] IRLR 524, the Court of Appeal ruled that the following general principles apply in determining whether a dismissed employee, who is refused an offer of employment, has breached the duty to mitigate:-

“(a)	The duty of the employee is to act as a reasonable person unaffected by the prospect of compensation from her employer.

 (b)	The onus is on the former employer as wrongdoer to show that the employee has failed to mitigate by unreasonably refusing the job offer.

 (c)	The test of reasonableness is an objective one based on the totality of the evidence.

 (d)	In applying that test, the circumstances in which the offer is made and refused, the attitude of the former employer, the way in which the employer had been treated, in all the surrounding circumstances, including the employee’s state of mind, should be taken into account.

 (e)	The tribunal must not be too stringent in expectations of the injured party (that is, the employee).

The guidance in set out in the Wilding case has been applied in a number of recent decisions by the Employment Appeal Tribunal; but each relate to their own particular facts (see further Harris  v  Tennis Together Ltd [2009] UKEAT/0358/08, Hibiscus Housing Association Ltd  v  Mackintosh [2009] UKEAT/0534/08, and Beijing Ton Ren Tang (UK) Ltd  v  Wang [2009] UKEAT/0024/09.”

The state of the labour market can be relevant in deciding whether an employee has made reasonable efforts to find a new job (see Korn Employment Tribunals Remedies, Paragraphs 13 – 28).  It was held HG Bracey  v  Kes [1973] IRLR 210 that the duty of mitigation does not require the dismissed employee to take the first job that comes along, irrespective of pay and job prospects.  

	In the recent decision of Look Ahead Housing and Care Ltd  v  Chetty (2014) UKEAT/0037 Langstaff emphasised, in relation to the burden of proof by the employer:-

“But without there being evidence (whether by direct testimony or by inadequate answers given by a claimant in cross-examination) adduced by the employer on which a tribunal can be satisfied, on the balance of probabilities, that the claimant has acted unreasonably in failing to mitigate, a claim of failure to mitigate will simply not succeed”.	[Tribunal’s emphasis]

5.1	In light of the facts as found by the tribunal and after applying the legislative provisions and the guidance set out in the legal authorities referred to in the previous paragraphs of this decision, the tribunal reached the following conclusions, a set out in the following sub-paragraphs.

5.2	The first issue for the tribunal to determine was whether the claimant was dismissed by the respondent at the meeting on 27 October 2015.  The tribunal is satisfied that Mr Davies did so.  Mr Davies, as found by the tribunal, told the claimant, in particular, ‘I’m gonna have to let you go’.  He used similar phraseology, when discussing the incident with Mr Hewitt at the same meeting.  There was no suggestion at the time, or subsequently, that he did not dismiss Mr Hewitt at that time.  Indeed, his wording is also consistent with his belief, at that time, that he was entitled to dismiss the claimant, in circumstances where he wrongly believed, as he now accepts, the claimant was not a permanent full-time employee; but rather was employed on some form of ‘ad hoc basis/as and when required’.  

	What Mr Davies said to the claimant at the meeting was also consistent with the conversation between Mr Davies and Mr Ford, as subsequently confirmed in the letter dated 27 October 2015, which was to the effect that Rainbow (‘the Franchisor’) were not prepared to let the claimant work on any of their insurance contracts.  Of course, this has to be contrasted with subsequent correspondence in November and December 2015 from Mr Davies to the claimant that Rainbow would not let the claimant work on their insurance contracts pending the outcome of the investigation and disciplinary proceedings.  Further, as found by the tribunal, Mr Davies told a meeting of the other employees, shortly after the claimant had left the meeting, that the claimant had been dismissed.  The claimant in a text, which was sent very shortly after the meeting asked Mr Davies if he had been sacked.  This was the opportunity for Mr Davies to explain to the claimant he was not sacked, what he had said he had done so in haste and that the claimant was merely suspended on full pay, pending investigation and, if necessary, a disciplinary hearing.  He did not take that opportunity.  The claimant’s subsequent conversations with Mr Davies and Ms Bailie, the administrator, in relation to outstanding wages, together with Ms Bailies’ suggestion of the claimant working at Argos, over Christmas, all confirmed that Mr Davies, with the knowledge of Ms Bailie, the administrator, had taken the decision to dismiss the claimant at the meeting on 27 October 2015.  Indeed, there was no attempt by Mr Davies, in the immediate period following the meeting to suggest otherwise.  Again, shortly after the meeting on 27 October 2015, Mr Davies repeated to the claimant’s sister, Ms Irvine, he had to let the claimant go.  He did not tell her the claimant was not dismissed or that he was suspended pending investigation and a disciplinary hearing.  He did not suggest to the claimant, when he returned the keys to the store, he was still employed by the respondent.  Significantly, for the purposes of these proceedings, it was not until after Mr Davies had sought advice from Peninsula, following correspondence from Ms Irvine at or about end of October 2015, that there was any suggestion from Mr Davies that the claimant was not dismissed but rather he had been suspended pending investigation and a disciplinary hearing.  Significantly also, in this correspondence, there was no suggestion that Mr Davies had previously been in error in what he had said or there was some confusion on his part or that he had said it ‘in haste, in the heat of the moment and without due consideration to the prevailing circumstances’.  That suggestion only emerged in the respondent’s response, drafted by Peninsula and presented to the Office of the Tribunals in December 2015.  If Mr Davies had admitted this error on his part in the immediate aftermath of the meeting on 27 October 2015, it not only would have been credible but also might have led to resolution of the matter.  However, Mr Davies did not take that opportunity because, in the tribunal’s judgment, he was satisfied, in his own mind at that time, he was not only entitled to dismiss the claimant but he had done so.  It was only after he had obtained advice from Peninsula, that Mr Davies sought to avoid the consequences of his previous actions.  In this context, it must also be noted that the outstanding pay, if it was intended the claimant was to be on paid suspension, was not in fact paid by the respondent until just before the tribunal hearing itself, following advice from Peninsula.  Further, it was not until the response presented to the Office of the Tribunals in December 2015 that the claimant was told ‘the respondent concedes that it initially gave the claimant the impression he had been dismissed on 27 October 2015 and suggested its diligent action, since that date to rebuild the relationship demonstrated the respondent’s regret in respect of Mr Davies initial haste in the heat of the moment ...’.  In the tribunal’s judgment this was a carefully phrased response to the claimant’s tribunal claim, prepared on advice from Peninsula, to try to overturn the fact that the claimant had in fact been dismissed by Mr Davies on 27 October 2015 and in circumstances where, in fact, as set out previously, there had been no such diligent action on the part of Mr Davies.  Indeed, the contrary was true.  Until Mr Davies obtained advice from Peninsula, despite numerous prior opportunities to remedy the situation, he did not acknowledge that he had wrongfully dismissed the claimant at the meeting on 27 October 2015.  Indeed, the tribunal noted Mr Davies, despite his assertion in evidence that he had agreed and read the response before it was presented to the tribunal, seemed surprised and unaware of much of its contents, including the particular concession, referred to above, as set out in the response.  As seen in Martin  v  Yeoman Aggregate Ltd, any opportunity for Davies to retract the dismissal of the claimant was always limited in time and, in particular, in circumstances, if true, it had been done in haste and in the heat of the moment.  Mr Davies, by his actions, failed to make an immediate retraction and therefore, regardless of his subsequent actions, there was always a dismissal, which, in the circumstances, in the absence of compliance with the statutory procedures, was an automatic unfair dismissal.

6.1	Having so concluded, the claimant was automatically unfairly dismissed, it was necessary to consider the compensation to which the claimant was entitled, by way of remedy.  The tribunal was satisfied the claimant had taken all reasonable steps to obtain other employment, following his dismissal, and indeed this was never seriously challenged by the respondent.  In the circumstances, the tribunal was satisfied the claimant had not failed to mitigate his loss.  However, the tribunal was hopeful, given his non-technical skills, but also his ability to drive, and despite the present difficult economic climate, that the claimant should be able to obtain alternative employment in or about the beginning of August 2016 and that the period of ongoing future loss should be confined to that period.

6.2.1	The tribunal, having concluded for the reasons set out previously the claimant was automatically unfairly dismissed, in circumstances where the statutory dismissal procedures had not been followed, it still remained necessary for the tribunal to consider whether any compensatory award required to be the subject of a ‘Polkey’ reduction.  As confirmed in Goodin  v  Toshiba, in an automatic unfair dismissal case, there can be a Polkey reduction up to 100%, where the breaches of procedure would have made no difference to the dismissal.  In Dr Allen  v  Queen Mary University of London [2016] UKEAT/0265/15 the Employment Appeal Tribunal held that “when considering Section 123(1) and (6) the Employment Tribunal will often have to address both a Polkey issue (was there a chance – and if so what change – the claimant would have been dismissed fairly?)  In principle, it should consider these separately, Polkey first and contributory conduct next”.

6.2.2	Applying the guidance set out in the legal authorities, referred to in Paragraph 4.15 of this decision, the tribunal concluded it could not properly conclude, having carried out the relevant predictive assessment, that the respondent could have fairly dismissed the claimant.  To have so concluded, in the judgment of the tribunal, involved too much speculation and/or uncertainty as to what might have happened.

	Mr Davies was unable to point to any term in the franchise agreement between the Franchisor and the respondent, which allowed the Franchisor to dictate who the respondent could employ at any time or, more particularly, what disciplinary action, if any, the respondent could or should impose.  By way of contrast, there are provisions in the Franchise Agreement, which allow for the termination by the Franchisor of the Franchise Agreement in certain circumstances.  In particular, pursuant to Paragraph 21.1.16 of the agreement, it is only in the event of persistent and valid complaints as to quality of service, that the agreement could be so terminated.  This incident, on the evidence, was a ‘one off’ incident.  Indeed, in Mr Ford’s letter to Mr Davies, dated 27 February 2015, he referred to ‘this rare but nonetheless unfortunate incident’, which does not suggest a pattern of persistent complaints, as required to be shown to enable the Franchisor to terminate the agreement.  No doubt, if the franchise agreement was terminated this would have major financial implications for the respondent.  However, this would seem to be a remote possibility in these circumstances.  In the letter dated 18 November 2015 to the claimant, Mr Davies stated, inter alia:-

“ ... The company has no alternative but to respect Rainbow International (Head Office) (and Care Quality Commission) wishes, as it is part of the service level agreement, that they can insist that our employees are removed from Rainbow International jobs, when there are ongoing issues of concern to investigate ... .”

It should be noted Mr Davies, in evidence, was unable to explain the reference and/or relevance to Care Quality Commission in this letter, nor to any such term in any service level agreement.  It is possible such a term could be implied – but significantly, removing an employee from Rainbow International jobs, during a period when there are ongoing issues of concern to investigate, is very different from saying the Franchisor, under the Franchise Agreement, is entitled to insist, following such an investigation, on the removal of the claimant from Rainbow work.  Indeed the above letter concludes:-

“After this meeting, we will be in a better position to consider whether to pursue a formal procedure with you and what representations can be made to the client on your behalf.”

Similar sentiments were expressed in the respondent’s letter of 23 November 2015.  The letter of 14 December 2015 by Mr Davies to the claimant referred, inter alia, to seeking to persuade the Franchisor to allow the claimant to continue to work on their work, following the outcome of the disciplinary hearing.  Given the claimant was not the instigator of the incident but rather the victim of Mr Hewitt’s practical joke, and after taking into account his previous good working record, which was never challenged, it has to be highly speculative, in the tribunal’s judgment, that the respondent could have fairly dismissed the claimant for misconduct in such circumstances.  Even if, contrary to what is set out above, the Franchisor could insist, on foot of an implied term in the service level agreement, following any such investigation and disciplinary hearing, on the removal of the claimant from Rainbow work it is apparent from the above correspondence that Mr Davies would be able to make representations to the Franchisor.  Given the claimant’s limited involvement in the circumstances outlined previously, his good working record, it is not certain such representations would not have been successful; and therefore the claimant would have been allowed to continue on Rainbow work and not therefore put his employment at risk.

6.2.3	In the letter of 14 December 2015, and subsequently in the respondent’s response form, Mr Davies contended that, following any such investigation or disciplinary hearing, and the Franchisor could not be persuaded to allow the claimant to do Rainbow work, the claimant could be dismissed for ‘some other substantial reason’, namely third party pressure.

In relation to any fair dismissal on the ground of some other substantial reason, it is necessary to have regard to the leading legal authorities in this area, namely Dobie  v  Burns International Security Services (UK) Limited [1983] IRLR 278, when the Employment Appeal Tribunal held:-

“Whether a dismissal at the behest of a third party was a fair dismissal for some other substantial reason involves a two-stage analysis.  The first stage is to see whether the employee justified the reason for dismissal and at this stage the Employment Tribunal has to have regard only to the conduct of the employer and not to whether the employee suffered any injustice.  If the employer passes the first test, then what has to be determined is whether the dismissal was fair having regard to equity and the substantial merits of the case including possible injustice to the employee.  If an employee was told at the time  of the making of the contract that his employment could be terminated at the behest of a third party, then if he is dismissed in those circumstances he cannot complain that the employer is acting contrary to equity or that his dismissal in unreasonable according to the substantial merits of the case.  But if he is not so told, the position is different.”

Firstly, there was no evidence before the tribunal the claimant was told his employment could be terminated at the behest of the Franchisor, when his employment commenced.  But also given the matters referred to in the previous sub-paragraphs, the tribunal was not persuaded, with the necessary degree of certainty in the circumstances, the respondent would have been able to fairly dismiss the claimant for some other substantial reason, due to third party pressure.

6.2.4	In light of the foregoing, in the judgment of the tribunal, there was too much uncertainty about what might have happened, if proper procedures had been followed, to allow any Polkey reduction to be made in the circumstances.

6.3.1	In relation to the issue of contributory fault, the tribunal had to consider the actions of the claimant and not the respondent and, initially, in particular, whether the claimant was guilty of conduct which was culpable or blameworthy or otherwise unreasonable (see further Morrison  v  ATGWU and Optikinetics  v  Whooley).  Undoubtedly, an incident occurred at the home of the policyholder and the claimant had involvement in that incident, as set out previously.  On the facts, as found by the tribunal, his involvement was the consequence of the actions of a practical joke by Mr Hewitt.  As he took the pants off his head, AB appeared.  The claimant immediately apologised and AB recognised he was, as she described, ‘gutted by what had happened’.  There was nothing, at the time, to suggest AB intended to make any complaint about the incident.  It is of some significance that the initial complaint had been that the claimant had been dancing around the house.  However, AB, in a conversation with Mr Davies, accepted this was not correct and she had only seen the claimant with the pants on his head.  This was consistent with the claimant’s description of the incident as referred to above.  If the claimant had been dancing around the house, as initially suggested, the tribunal would have concluded this was culpable/blameworthy conduct.  In the absence of this allegation and with the claimant’s involvement being due to the actions of Mr Hewitt, the tribunal, after very careful consideration, could not find the claimant’s actions to be culpable or blameworthy.  There was no suggestion at the time of the incident or before AB left the property, she intended to make a complaint; indeed the claimant believed the matter had been quickly and amicably resolved by his said apology to AB, which she had acknowledged and which appeared to him to have been accepted by her at the time.  

	Given this belief, the tribunal did not consider any failure by the claimant to report the incident to Mr Davies, upon his return from the policyholder’s property was culpable/blameworthy conduct on the part of the claimant.

6.3.2	It has to be noted, it was not until 11 November 2015, despite the various opportunities prior to that to clarify the situation, that Mr Davies expressly informed the claimant, despite what had been said to him at the meeting on 27 October 2015 and subsequently, he had not been dismissed.  Indeed, it was not until the respondent’s response form, presented to the tribunal on 21 December 2015, following advice from Peninsula that it was ever suggested by the respondent what had been said at the meeting on 27 October 2015 had been said ‘in haste, in the heat of the moment and without due consideration’.  For reasons seen previously, it was not until the response form was presented that the respondent accepted that a wrong impression had been given about the claimant’s employment status following the meeting on 27 October 2015.  In the circumstances, in the judgement of the tribunal, it was not correct the respondent had done all in its power to resolve the confusion between the claimant and respondent in respect of the claimant’s current employment status, as suggested in the response.  

	Again, the letter of 18 November 2015, following advice, stated the claimant was on ‘authorised paid/leave suspension from 27/10/15’; yet it was not until, immediately prior to this hearing, such monies to which the claimant would have been entitled, if so suspended, was paid to the claimant.  

If any of these said actions to attempt to remedy the position had been taken by the respondent, immediately after the meeting on 27 October 2015 and Mr Davies had properly clarified the situation at that time, the tribunal might have considered, by subsequently refusing to attend the investigation/disciplinary hearings, the claimant had in some way contributed to his dismissal.  However, he was dismissed on 27 October 2015, without the respondent complying with the relevant statutory procedures.  All the actions by the respondent to offer such investigation/disciplinary hearing pending dismissal occurred long after the dismissal had already occurred and in circumstances where the dismissal was automatically unfair.  In such circumstances, the tribunal was not satisfied the claimant contributed to his dismissal, which occurred on 27 October 2015.  In any event, given what had taken place previously, it was not surprising  and understandable, in the circumstances, the claimant refused to take part, for the reasons set out in his letter of 21 November 2015, when he concluded ‘the good trusting and respectful working relationship I had with you has been so badly broken down to the point where I have been made to feel that there is no longer any trust or respect left between us’.

6.3.3	In light of the foregoing, the tribunal does not consider there should be any reduction in any award of compensation for contributory fault on the part of the claimant.  

6.3.4	If the tribunal is wrong, and any of the matters referred to above were such contributory conduct, the tribunal is not satisfied it would be just and equitable to make any such reduction of either the basic and/or compensatory award, given the claimant’s limited involvement in the incident for which he was not responsible and for which he apologised and believed he had amicably resolved with the                  policy-holder, together with the respondent’s failure to promptly acknowledge it had been in error to dismiss him, with the resultant understandable loss of trust and confidence of the claimant in any subsequent attempt by the respondent to conduct a fair disciplinary process.  Indeed, in the tribunal’s opinion, it would have given rise to one of the unusual/rare circumstances identified in British Gas Trading Ltd, where it would not be just and equitable to make any reduction, although there had been a finding of culpable/blameworthy conduct.

6.4	Article 154 of the 1996 Order [basic award : minimum in certain cases] provides:-

		“(1A)	Where –

(a)	an employee is regarded as unfairly dismissed by virtue of Article 130A(1) (whether or not his dismissal is unfair or regarded as unfair for any other reason);

(b)	the amount of the award under Article 152(1)(a) [the basic award] ... is less than the amount of four weeks’ pay, the industrial tribunal shall subject to Paragraphs (1B) increase the award under Article 152(1)(a) to the amount of four weeks’ pay.

(1B)	An industrial tribunal shall not be required by paragraph (1A) to increase the amount of an award if it considers that the increase would result in injustice to the employer.”

The tribunal, noting that the respondent’s franchise agreement with the franchisor, has brought and continues to bring considerable financial benefits to the respondent, as outlined by Mr Davies in the course of his evidence, was not satisfied that any such increase would result in injustice to the respondent.

6.5	Given the tribunal’s finding that the claimant was unfairly dismissed, a jurisdiction within Schedule 4 of the 2003 Order, and it was agreed by the respondent’s representative that the respondent had failed to provide to the claimant a statement of employment particulars at any time material to these proceedings, pursuant to Article 33 of the 1996 Order, the tribunal was therefore under a duty to increase any award, pursuant to Article 27 of the 2003 Order.  After taking into account, there was a fundamental misunderstanding by Mr Davies of the terms of the contract of employment under which the claimant was employed, which would probably have been  resolved if particulars of contracts had been provided to the claimant, as required under Article 33 of the 1996 Order, at the commencement of his employment, the tribunal was satisfied that it was just and equitable, in the circumstances, to increase the award by the higher amount, namely four weeks’ pay.  There was no evidence of any exceptional circumstances which would have made such an increase unjust or inequitable.

6.6	In light of the foregoing, the tribunal assessed the compensation to be paid by the respondent to the claimant, as follows:-

		A.	Basic award

			4 x £427.44
(taking account of uplift to four weeks’ pay,
Pursuant to Article 154(1A) of the 1996 Order)		£ 1,309.76

		B.	Compensatory award

			(a)	(i)	Loss of earnings
					(aa)	from 27 October 2015 to
						24 March 2016 (date of hearing)
						(inclusive of two weeks’									notice pay)
						21 weeks x £287.01			£ 6,027.21

					(bb)	Loss of earnings from
						25 March 2016 to
						5 August 2016
						19 weeks x £287.01			£ 5,453.19
					(aa) + (bb)					£11,480.40

				(ii)	Less payment by the respondent of
£1,863.28 in March 2016			£ 9,617.12

			Add 40% uplift for breach of statutory procedures	£  4,006.84
			Total								£14,423.96
			
(iii)	Increase of award, pursuant to 
					Article 27 of the 2003 Order

					4 x £327.44					£  1,309.76

			Total compensatory award :
			(£14,423.96 + £1,309.76)					£15,733.72

			Total monetary award :
			A + B (basic and compensatory award)			£17,043.48

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

6.8	The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996, as amended, apply to this decision.  Your attention is drawn to the attached Recoupment Notice, which forms part of this decision. 

Employment Judge

Date and place of hearing:	24 March 2016; and
5 April 2016, Belfast

Date decision recorded in register and issued to parties: