THE INDUSTRIAL TRIBUNALS
CASE REF: 2726/02
CLAIMANT: Alice Fleming
RESPONDENT: Derry Youth & Community Workshop
DECISION
The unanimous decision of the tribunal is that compensation of £1,529.75 as calculated in this decision and in the schedule hereto is payable by the respondent to the claimant.
Appearances:
The claimant was represented by Mr D Murray of UNISON
The respondent was represented by Mr G Purvis, Barrister-at-Law, instructed by Babington & Croasdaile, Solicitors.
REASONS
- This was a remedies hearing following the decision of the tribunal issued to the parties on 29 July 2005, that the dismissal of the claimant had been procedurally unfair.
- After considering the evidence of the claimant and that of Declan Doherty, together with the documentary evidence submitted by both parties, the tribunal concludes on the basis of probabilities that:-
(i) The claimant had a grievance against her colleague Mairead Hull because Ms Hull had been appointed as an internal verifier.
(ii) The claimant did act towards Mairead Hull as described in Mairead Hull's complaint of 27 May 2002.
(iii) The claimant did contact the OCR external verifier at her home in breach of both internal and OCR procedures to press the case of a student.
- The tribunal has approached this matter in the manner set out in the Court of Appeal in Digital Equipment Co Ltd -v- Clements (number 2)(1998) IRLR 134. In the circumstances of this case it has first calculated the total loss suffered by the claimant taking into account the claimant's duty to mitigate, then applied an appropriate Polkey deduction and finally made an appropriate deduction for contributory fault.
- The tribunal calculated the basic award as set out in the schedule. In relation to the compensatory award, the claimant submitted a Schedule of Loss which indicated that she obtained alternative part time employment immediately after her dismissal and that the net loss per week was £96.00. After examining the pay slips and tax records submitted, the tribunal accepts that this was the net weekly loss. However, the claimant is required under Article 157(4) of the 1996 Order to mitigate her loss. The claimant had some 27 years experience in business administration at a reasonably high level and a business management degree. She also had experience in running her own bookmakers office and in running a retail shop. The efforts made by the claimant to obtain alternative employment appear to the tribunal to be sporadic and half hearted at best. The tribunal concludes that the claimant could and should have been able to obtain further part time employment or more likely alternative full time employment within at the latest 18 months from the date of dismissal. While it is normal practice to allow for the loss of earnings up to the date of the tribunal hearing, that is not a rule of law. The tribunal is obliged to award a sum which it considers "just and equitable" under Article 157(1) and is obliged to apply provisions of 157(4) in relation to the mitigation of loss. This is particularly the case where a long period of time has elapsed between the dismissal and the date of hearing. In this case the period is three years. The tribunal therefore fixes for the purposes of the initial calculation the compensatory award at a weekly net loss of £96.00 for a period of 78 weeks together with £250.00 for loss of statutory rights. No claim was made in respect of pension loss and no social security benefits were claimed.
- The tribunal then moved to consider the question of a Polkey deduction in accordance with the House of Lords decision in Polkey -v- A E Dayton Services Limited [1988] ICR 142; i.e. whether the compensatory award should be reduced by a percentage to represent the chance that the claimant would still have lost her employment. The tribunal considers in all the circumstances of this case that if a fair procedure had been followed, there was a probability that the claimant would still have been properly dismissed summarily for matters set out above. The tribunal therefore fixes a Polkey reduction of 75%.
- The tribunal then turned to consider whether a further deduction should be applied to the compensatory award and a reduction to the basic award for contributory fault in accordance with Articles 157(6) and 156(2) of the 1996 Order. As the Court of Appeal pointed out in Rao -v- Civil Aviation Authority [1994] IRLR 240, the fact
that a Polkey reduction has already been made may in many cases have a significant bearing on what deduction is to be made. The tribunals over-riding duty is to award a figure which is just and equitable in all the circumstances of the case. The tribunal regards the claimant's conduct as outlined in paragraph 2 as culpable and believes that it contributed to her dismissal. The tribunal therefore applies a 50% reduction to the basic award of £1,125.00 and to the reduced compensatory award of £1,934.50: - which leaves a total award of £1,529.75.
- This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 1 September 2005, Londonderry.
Date decision recorded in register and issued to parties:
SCHEDULE
Basic Award
3 complete years x 1½ x £250.00 maximum
gross weekly pay = £1,125.00
Less 50% contributory fault = £ 562.50
Compensatory Award
78 weeks x £96.00 = £7,488.00
+ Loss of statutory rights = £ 250.00
TOTAL = £7,738.00
Less
Polkey reduction @ 75% = £1,934.50
Less contributory fault @ 50% = £ 967.25
TOTAL COMPENSATION PAYABLE = £1,529.75
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