THE INDUSTRIAL TRIBUNALS

CASE REF:	8105/18

CLAIMANT:			Grainne McKnight

RESPONDENTS:		1. Fayreview Catering Ltd
				2. Chris Evans, t/a Fayreview Catering
				3. Leeanne Evans, t/a Fayreview Catering

DECISION

The decision of the tribunal is that the claimant was unfairly dismissed by the respondents, that she is also entitled to the relief set out at paragraph 6 (ii) and (iii) of this decision, and that the respondents pay her the sum of £19,543.21, calculated in accordance with paragraph 10 of this decision, as supplemented by paragraphs 11-12 thereof.

Constitution of Tribunal:

Employment Judge (sitting alone):	Employment Judge Crothers

Appearances:

The claimant was represented by Mr N Richards of the Law Centre NI.

BACKGROUND

1.	The response presented to the tribunal was struck out by the tribunal pursuant to a decision dated 31 December 2018.  No other responses were presented on behalf of the respondents.  A previous Case Management Discussion had reserved the issue of the correct respondent(s) to the substantive hearing.  However, no further clarification was forthcoming and the claimant decided and agreed to proceed against the above respondents.

2.	The tribunal’s decision dated 31 December 2018 striking out the response is annexed hereto.  

3.	None of the respondents appeared at the hearing.

ISSUES

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

(1)		What is the correct title of the respondent?  (See above).

(2)		Do the respondents owe the claimant an amount of money in relation to notice pay?

(3)	Did the respondents fail to provide the claimant with itemised pay statements?

(4)	Did the respondents fail to provide the claimant with initial particulars of employment?

(5)	Did the respondents fail to provide the claimant with written reasons for dismissal?

(6)	Did the respondents fail to provide the claimant with an amount of holiday pay?

(7)	Did the respondents unfairly dismiss/automatically unfairly dismiss the claimant?

The claimant withdrew her claim in respect of an unauthorised deduction from wages.

SOURCES OF EVIDENCE

5.	The tribunal heard evidence from the claimant and from her sister, Louise McKnight.  It also considered relevant documents presented to it in the course of hearing.

FINDINGS OF FACT

6.	Having considered the evidence insofar as same related to the issues before it, the tribunal made the following findings of fact, on the balance of probabilities:-

(i)	The claimant was employed by the respondents or one or more of them from 15 August 2013 until the effective date of termination of her employment on 18 April 2018 (EDT).  The claimant was in receipt of JobSeeker’s Allowance from 1 May 2018 until 26 September 2018 when she became entitled to Employment Support Allowance (ESA).

(ii)	The claimant’s weekly gross wage was £234.90 (£214.00 net).  She was owed three weeks’ notice pay at the effective date of termination of her employment, amounting to £704.70.  Furthermore, in accordance with Article 44(4) and (5) of the Employment Rights (Northern Ireland) Order 1996 (“the Order”), the claimant is entitled to £123.40, as set out in paragraph 10 of this decision.  The tribunal is satisfied that the claimant is entitled to two weeks’ pay in respect of the respondents’ failure to provide written reasons for dismissal (2 x £234.90 = £469.80).  The tribunal is also satisfied, on the evidence, that the claimant should be awarded the amount of £939.60 (4 x £234.90) in respect of the respondents’ failure to provide initial particulars of employment, for the reasons provided later in this decision.

(iii)	The statutory annual leave entitlement for an employee is 5.6 weeks.  The proportion of the relevant leave year which expired on 18 April 2018 -15/08/17 to 18/04/18 = 35 weeks/52 weeks = 0.673 weeks.  The claimant had already taken two weeks’ leave as at 18 April 2018 and therefore her outstanding leave entitlement is 5.6 weeks x 0.673 = 3.77 weeks minus 2 weeks = 1.77 weeks x £234.90 = £415.77.

(iv)	The claimant presented her claim to the tribunal on 15 June 2018.

(v)	The claimant is still in receipt of ESA and intends to begin group sessions with a view to pursuing employment in the near future

	Unfair Dismissal / Automatically Unfair Dismissal

(vi)	The tribunal carefully considered the background information in the claimant’s witness statement and the unchallenged sequence and description of events outlined therein culminating in a telephone conversation with Chris Evans at 19.46 on 18 April 2018 in which he informed the claimant that “I am going to have to let you go Grainne, as it will be too much hassle for both you and me”.  He further asserted that he could not guarantee the claimant’s safety in the Golf Club and that he would pay her holidays owed together with the payment of a week’s redundancy.  He then apologised and hung up the phone.  Chris Evans then texted the claimant at 20.03 stating “so sorry”.  The claimant, in the tribunal’s view, quite reasonably interpreted the telephone call and the text as her dismissal from the respondents’ employment.  She had not worked or been paid from 8 April 2018 when Leeanne Evans had told her to take time off.  She was not given written notice of dismissal or afforded any right of appeal.  On 23 May 2018 she forwarded a grievance letter to Chris Evans regarding her dismissal and how she believed that it had been unfair. This grievance letter was evidently not dealt with by the respondents and, as at the date of hearing, the claimant had not received a response from any of the respondents to her grievance letter.

(vii)	The evidence provided by and on behalf of the claimant was unchallenged and accepted by the tribunal.

THE LAW

7.	(1)	In order to prove that a dismissal is not unfair an employer must establish the reason for the dismissal and that it is one of the statutory reasons that can render a dismissal to be not unfair.  If an employer establishes both of these requirements then whether the dismissal was fair or not depends on whether in all the circumstances the employer acted fairly and reasonably in treating the reason as a sufficient reason for dismissing the employee (Article 130 of the Order).

	(2)	Where an employee is dismissed and the statutory dismissal procedure is applicable but has not been completed and the non-completion is wholly or mainly attributable to the failure of the employer to comply with its requirements the dismissal is automatically unfair (Article 130A of the Order).

	(3)	Where the circumstances set out at paragraph (2) above apply, a tribunal shall increase any award to the employee by 10 per cent and may, if it considers it just and equitable in all the circumstances, increase the award by up to 50 per cent, unless there are exceptional circumstances which would make such an increase unjust or inequitable (Article 17(3) and (4) of the Employment (Northern Ireland) Order 2003).

	(4)	The failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the appropriate procedure (Article 130A(2) of the Order).

	(5)	Where an employer dismisses an employee for misconduct, he must have a reasonable belief that the employee has committed an act of misconduct after having carried out a reasonable investigation (to include a reasonable disciplinary hearing and appeal) and dismissal must be within the range of reasonable responses.

	(6)	Procedural defects in the initial disciplinary hearing may be remedied on appeal provided that in all the circumstances, the latter stages of the procedure are sufficient to cure any earlier unfairness, (see the Court of Appeal in Taylor v OCS Group Ltd [2006] IRLR 613 and (Harvey on Industrial Relations and Employment Law (Harvey) D1 [paragraph 1528]).

	(7)	When determining whether dismissal is a fair sanction, it is not for the tribunal to substitute its own view of the appropriate penalty for that of the employer (Harvey at D1 [1535]).

	(8)	In the decision Rogan v South Eastern Health and Social Care Trust [2009] NICA 47 the Northern Ireland Court of Appeal stated:-

	“21 ... It is for the employer to establish the belief in the particular misconduct.  The tribunal must then consider whether the employer had reasonable grounds upon which to sustain the belief and thirdly whether the employer had carried out as much investigation into the matter as was reasonable in all the circumstances.  The tribunal must also, of course, consider whether the misconduct was a sufficient reason for dismissing the employee.”

	Later it added:-

	“26 ... The judgment as to the weight to be given to evidence was for the disciplinary panel and not for the tribunal.”

	(9)	In the decision of Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721.  the English Court of Appeal reiterated that in a misconduct case British Home Stores v Burchell	[1978 IRLR 379 EAT] remains the cornerstone of misconduct dismissals.  The head note states:-

“(A)  According to British Home Stores Limited v Burchell, in cases of dismissal on the ground of misconduct, the tribunal has to decide whether the employer entertained a reasonable belief in the guilt of the employee.  The employer must establish the fact of that belief; that there were reasonable grounds in his mind to sustain that belief; and that he had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.”

	It further approved the principle in A v B [2003] IRLR 405 EAT that when considering reasonableness under [Article 130(4) of the Order], relevant circumstances include the gravity of the charges and the potential effect on the employee.  

	(10)	The Digest in Lawless v Print Plus JOJ UKEAT/0333/09 states:-

“An uplift of 10% was mandatory. The tribunal then had a discretion to award more than 10%, up to a maximum of 50%, if it considered it just and equitable to do so in all the circumstances. Second, it followed that where a tribunal exercised its discretion to award an uplift of more than 10%, it had to give reasons for doing so. It would equally have to give reasons for not doing so where, as would generally but not invariably be the case, the claimant advanced an argument that it was just and equitable to award more than 10%. Third, although the phrase 'just and equitable in all the circumstances' connoted a broad discretion, the relevant circumstances nevertheless had to be confined to those which were related in some way to the failure to comply with the statutory procedures. Fourth, the circumstances which would be relevant would inevitably vary from case to case and could not be itemised, but they would certainly include: (a) whether the procedures had been ignored altogether or applied to some extent; (b) whether the failure to comply with the procedures had been deliberate or inadvertent; and (c) whether there were circumstances which might mitigate the blameworthiness of the failure. Fifth, provided a tribunal had directed itself appropriately, the appeal tribunal would be very slow to interfere with its exercise of discretion. Further, the size and resources of the employer were capable of being relevant to the exercise of the tribunal's discretion, to the extent that it found that those factors aggravated or mitigated the culpability and/or the seriousness of the failure. Whether they did so in any given case was a matter for the tribunal in that case. Failures by small businesses should not always be regarded as venial (see [10]-[11] of the judgment).”
	
(11)	The tribunal considered Article 126ff of the Order together with Article 130A and the provisions relating to remedy.  It also considered Article 33 (statement of initial employment particulars) and Article 40 (itemised pay statement), together with Article 44 (determination of references), Article 124 (right to written statement of reasons for dismissal), and insofar as relevant, the provisions of the Industrial Tribunal Extension of Jurisdiction Order (NI) 1994.

Polkey Decision

8.	(a)	The decision in Polkey cannot render an automatically unfair dismissal fair but it can give rise to a reduction in the amount of damages up to 100% in appropriate circumstances.

(b)	However in a claim of ordinary unfair dismissal the Polkey decision can cause a dismissal to be fair if the tribunal is of the view, had the proper procedures been applied, that the employee would have been dismissed in any event.  In the absence of any evidence by the respondents, the tribunal cannot be satisfied that the claimant would have been dismissed in any event.

(c)	In relation to an automatically unfair dismissal the issue of Polkey goes to remedy.  However given the lack of evidence of a proper investigation, the tribunal could not be satisfied, even if the statutory procedures had been applied, that the claimant would have been dismissed in any event.  It is therefore inappropriate to make any reduction in compensation on the basis of the decision in Polkey.

SUBMISSIONS

9.	Mr Richards submitted that this was a case of automatic unfair dismissal and that there should be an uplift of 40%-50% in any compensatory award.  He also submitted that the claimant was entitled to payments in respect of the respondents’ failure to provide wage slips in the three month period prior to the presentation of the claim on 15 June 2018.

CONCLUSIONS

10.	The tribunal having carefully considered the evidence before it and having applied the relevant principles of law to the findings of fact, concludes as follows:-

(i)		In this case it is clear, on the evidence, that the statutory dismissal procedure is applicable and that the respondents failed to follow the two-step approach as set out in the Employment (Northern Ireland) Order 2003.  The claimant was dismissed without notice and there is no evidence of a proper investigation or of any attempt to deal with the grievance lodged by the claimant dated 23 May 2018 which was sent to Chris Evans at Fortwilliam Golf Club.  Having applied the legal principles as set out at paragraph 7 of this decision, the tribunal concludes that the claimant has been automatically unfairly dismissed.  The tribunal is satisfied that there should be an uplift in accordance with Article 17 of the 2003 Order of 40% in the circumstances outlined above.  

(ii)		The tribunal is further satisfied that there are no exceptional circumstances rendering an increase of 40% unjust or inequitable.  In any event the tribunal is satisfied that the dismissal of the claimant is unfair under the ordinary principles of unfair dismissal as the respondents’ actions were clearly not in accordance with the principles laid down in Burchell, ie, that the respondents had a reasonable belief that the claimant had committed an act of misconduct after having carried out a reasonable investigation (to include a reasonable disciplinary hearing and appeal) and that any dismissal was within the range of reasonable responses.

(iii)		The tribunal also reiterates its findings at paragraph 8 above.

(iv)	The claimant is also entitled to the relief as set out in paragraph 6 (ii) and (iii) of this decision.

(v)	There is no evidence before the tribunal that the claimant failed to mitigate her loss or that there was contributory fault on her behalf.

(vi)	REMEDY

1)	UNFAIR DISMISSAL

Basic award 

Length of service at EDT 18/04/18:                                 4 years 8 months (15/08/13 to 18/04/18) 

Age at EDT: 	29 years old (DOB 18/06/88) 

Normal week’s pay at EDT (gross): 	£234.90 

Basic award: 4 years x 1 x £234.90= 	£939.60 

Compensatory award 

A. Loss of statutory employment rights 	£500.00 

B. Immediate loss of earnings (to include notice pay -  £704.70)

Loss from EDT 18/04/18 to start of ESA 26/09/18: 

• Normal weekly earnings at EDT 18/04/18 (net): 	£214.00 

• Relevant period 18/04/18 to 26/09/18:	23 weeks 

• Average weekly earnings during relevant period: 	£00.00 (in receipt of JSA £73.10
	from 01/05/18)  

• Loss for relevant period: 23 weeks x £214.00 = 	£4,922.00 

Loss from start of ESA 26/09/18 to date of tribunal 15/01/19: 

• Relevant period 26/09/18 to 15/01/19: 	16 weeks 

• Average weekly earnings during relevant period:	£00.00 (in receipt of ESA £73.10) 

• Loss for relevant period: 16 weeks x £214.00 	£3,424.00 
 
Total immediate
loss of earnings:  £4,922.00 + £3,424.00 = 	£8,346.00 

C. Future loss of earnings 

As assessed by tribunal - e.g. 13 weeks’ loss: 

• Average weekly earnings during relevant period: 	£00.00 (in receipt of ESA £73.10) 

Total future loss of earnings: 13 weeks x £214.00 =      	£2,782.00 

Total Loss – Unfair Dismissal: 

£939.60 + £500.00 + £8,346.00 + £2,782.00 = 	£12,567.60

Plus uplift to compensatory award of 40%	£5,027.40
For failure to comply with Statutory Disciplinary 
Procedures	
TOTAL:    £17,596.64

2) COMPENSATION FOR ACCRUED ANNUAL LEAVE 

Default leave year (in absence of relevant agreement)	15/08/17 to 15/08/18

Statutory annual leave entitlement: 	5.6 weeks

Proportion of leave year expired at EDT 18/04/18:

(15/08/17 to 18/04/18= 35 weeks) / 52 weeks=	0.673 weeks 

Leave already taken at EDT: 	2 weeks

Outstanding leave at EDT:
(5.6 weeks x 0.673= 3.77 weeks) – 2 weeks = 	1.77 weeks 

Total payment in lieu of leave: 1.77 weeks x £234.90 =	£415.77 

3) FAILURE TO PROVIDE WRITTEN PARTICULARS OF EMPLOYMENT 

2 or 4 weeks’ pay, as assessed by tribunal:
e.g. 4 weeks x £234.90 =					£939.60 

4) FAILURE TO PROVIDE WRITTEN REASONS FOR DISMISSAL 

2 weeks’ pay: 2 weeks x £234.90 =			£469.80 

5) FAILURE TO PROVIDE ITEMISED PAY STATEMENTS 

As assessed by tribunal - e.g. all unnotified deductions
made within the 13 weeks preceding date of claim 15/06/18:

25/04/18:  £234.90 (gross) - £214.00 (net) = 	£20.90

20/04/18:  £234.90 (gross) - £214.00 (net) = 	£20.90

16/04/18:  £234.90 (gross) - £214.00 (net) = 	£20.90

06/04/18:  £234.90 (gross) - £214.00 (net) = 	£20.90

29/03/18:  £234.90 (gross) - £214.00 (net) = 	£20.90

23/03/18:  £234.90 (gross) - £216.00 (net) = 	£18.90

Aggregate of unnotified deductions:
(£20.90 x 5) + £18.90 =	£123.40

TOTAL COMPENSATION =	£19,543.21

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

12.	The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996 as amended by the Social Security (Miscellaneous Amendments No 6) Regulations (Northern Ireland) 2010, apply to the decision.  Your attention is drawn to the attached Recoupment Note, which forms part of this decision.

13.	The prescribed period is from 18 April 2018 to 15 January 2019.

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

Employment Judge:

Date and place of hearing:	15 and 31 January 2019, Belfast.

Date decision recorded in register and issued to parties: