THE INDUSTRIAL TRIBUNALS

CASE REF:	306/06
416/06

CLAIMANT:	Kieran Joseph Harkin

RESPONDENT:	Kevin Watkins T/A Watkins Scaffolding

DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent and the tribunal Orders the respondent, subject to the recoupment provisions, to pay to the claimant the total sum of £8,816.16.

Constitution of Tribunal:

Chairman:		Mr J V Leonard

Members:		Mr Lindsay
			Mr Patterson

Appearances:

The claimant was represented by Mr M Canavan, Solicitor, of McGuinness & Canavan, Solicitors.

The respondent was represented by Mr P Rodgers, Barrister-at-Law, instructed by W J Hasson, Solicitor.

REASONS

1.	Reasons are given in accordance with Rule 30 contained in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, reasons having been reserved at the conclusion of the hearing of the matter.  The tribunal heard oral evidence from the claimant, from Mr Michael O’Kane, from Mr Kieran McGuinness, from the respondent Mr Watkins, and from Mr Aidan Watkins.  The tribunal also had before it an agreed bundle of documents and additional documents were placed before the tribunal in the course of the hearing, by agreement.

2.	The claimant’s initial claim was contained in a claim form dated 28 February 2006 which was received by the Office of the Tribunals on 9 March 2006.  In that claim, the claimant claimed that he had been employed by the respondent from May 2005 and that the employment had ended on 10 January 2006 (or alternatively 11 January 2006).  The claimant contended that he had been dismissed by the respondent because he took health and safety concerns to the attention of his employer and as a result of that he was unfairly dismissed.

3.	By a further claim made by the claimant and dated 6 April 2006 and received by the Office of the Tribunals on that date, the claimant claimed notice pay and holiday pay due.

4.	By response dated 28 March 2006 and received by the Office of the Tribunals on 14 April 2006 the respondent conceded that the applicant had been an employee, but denied that the claimant had been dismissed.  It was contended that, as the claimant had only been employed by the respondent for seven and half months, he could not claim unfair dismissal.  It was further contended that the claimant had refused without justification to work when he was employed to do so and that the claimant had left work on his own account and that he had come back to get his wages and his P45, both of which he had requested.

5.	In regard to the second (wages) claim on the part of the claimant, no response was entered by the due date and a default judgement was made on 19 May 2006.  However, a letter was received by the Office of the Tribunals from the respondent’s solicitor on 24 May 2006 enclosing a response.  By a decision on an application to review issued on 29 August 2006, the default judgement was revoked.  The matter then proceeded to be listed for a full hearing in respect of both of the claimant’s claims.

6.	Accordingly, the tribunal had to determine the unfair dismissal claim and also the wages claim on the part of the claimant.  

THE TRIBUNAL’S DETERMINATIONS OF FACT

7.	On foot of the oral and documentary evidence before it on the balance of probabilities the tribunal determined the following facts material to the issues:-

(a)	The tribunal heard the oral evidence of the various witnesses.  It must be said that the tribunal had certain difficulties with the evidence of a number of witnesses (with of course the exception of the Departmental witness Mr O’Kane) and the tribunal had to treat a certain part of the oral evidence in this case, from both sides, with a measure of circumspection.  The evidence was in certain aspects self-serving and inconsistent and the tribunal’s task in reaching conclusions of fact was made rather more difficult on account of that fact.  Notwithstanding this, the tribunal was able to determine sufficient factual material to enable its conclusions as set out below to be arrived at.

(b)	The respondent was the sole proprietor of a scaffolding business.  At the material time this business employed around 20 employees.  The business ran a fleet of vehicles.  These consisted of three heavy goods vehicles, a seven and a half tonne flatbed lorry, and four smaller vehicles, being small vans.  The claimant was first employed by the respondent in mid-May of 2005 as the driver of the seven and half tonne flatbed lorry (which for convenience the tribunal shall hereinafter refer to as “the lorry”).  The claimant's job was to deliver scaffolding and equipment on site and to attend to ancillary duties.  The claimant was the holder of a Class C1 driving licence entitling him to drive the lorry.

(c)	The lorry was first registered in 1993 and was acquired by the respondent on 1 November 2004.  It bore the registration number "L75MAK".  The lorry was subject to goods vehicle testing.  At the material time, late 2005, it bore a goods vehicle certificate which was due to expire on 6 December 2005.

	(d)	The claimant’s employment by the respondent was uneventful until early December 2005.  At this time the claimant experienced certain difficulties with the lorry; one of the windscreen washers, on the driver’s side, became inoperative and also the lorry's horn did not work.  In addition to the foregoing, there was a crack (or possibly a number of cracks) on the lorry's windscreen.  Although these did not interfere unduly with the driver’s vision, this defect caused the claimant to be quite concerned that the lorry's windscreen might break and fall into the cab area of the lorry.

	(e)	There was no regular vehicle maintenance programme in respect of the respondent’s vehicles.  The system for reporting any matters was that each driver had personal responsibility for bringing to the respondent’s attention any vehicle defects.  By way of illustration, around this time the claimant had brought a bald tyre on the lorry to the attention of the respondent.  That defective tyre was replaced without any difficulty and promptly by a contractor retained by respondent.

	(f)	In accordance with the foregoing established procedure, the claimant brought to the respondent’s attention the fact that the lorry's windscreen was cracked, that the horn did not work, and that the windscreen washer was defective.  The claimant mentioned these particular issues to the respondent orally on at least two occasions in the early part of December 2005.  The response on the respondent’s part was to state to the claimant that the lorry was shortly due to undergo goods vehicle testing by the Driver and Vehicle Testing Agency ("DVTA") and that everything would be dealt with at that time.  However, the claimant was dissatisfied with that response. 

	(g)	The claimant carried with him a bottle of water in the lorry's cab and he was compelled to stop driving the lorry when the windscreen became dirty.  He had to get out of the cab and to pour water on to the lorry's windscreen in order to provide clear vision with the use of the wipers.  Notwithstanding his dissatisfaction and concern, the claimant did continue to drive the lorry throughout the month of December 2005 and up until the Christmas holidays.  The claimant appears to have believed that any of the lorry's defects would be properly attended to over the Christmas period.  The claimant duly went on vacation over Christmas for a period of two working weeks.

	(h)	The claimant returned to work on Monday 9 January 2006.  He drove the lorry that day.  The following day, Tuesday 10 January 2006, the claimant was in the respondent’s office when he noticed a goods vehicle certificate application form in respect of the lorry.  He became aware from this that the expiry date had passed in respect of the then current goods vehicle certificate for the lorry.  There existed what was known as the DVTA “pink sheet” on that date.  This was a certificate issued by the DVTA providing for a temporary exemption and permitting the subject vehicle to be driven on the public road pending deferred testing.  This procedure existed on account of the backlog in applications and processing of DVTA testing which then applied. In this case the "pink sheet" applied to the lorry from the expiry date of the then current certificate, 6 December 2005, until the actual test date which had been provided by DVTA, 1 February 2006.  The tribunal is unclear from the evidence as to whether or not the claimant did see that "pink sheet" and the tribunal is therefore uncertain as to whether the claimant would thus have been aware that the testing exemption was extended to 1 February 2006.  In view of the claimant’s previous concerns regarding the state of the vehicle, he became even more concerned.  He determined to see the respondent immediately.  However he was unable to see the respondent until the following day.

	(i)	On Wednesday 11 January 2006, the claimant spoke with the respondent.  He stated that he was unwilling to drive the lorry and his reasons for this.  The precise words which were exchanged between the claimant and the respondent on that date were the subject of considerable conflict in evidence between the two at hearing.  The claimant construed the conversation to the effect that the respondent had clearly and unambiguously stated to him that if the claimant was unwilling to drive the lorry in its present state there was no work for him.  The claimant took this as constituting a dismissal of him by the respondent.  Furthermore, he believed that he was being dismissed by the respondent by reason of his refusal to drive the lorry, which lorry he believed not to be in a safe and a fit condition to drive pending the vehicle being fully repaired and prepared for DVTA testing. 

	(j)	The claimant immediately went and sought advice from the Citizens' Advice Bureau.  The Citizens' Advice Bureau advised the claimant to write to the respondent seeking written reasons for his dismissal.  That the claimant did by letter dated 21 January 2006.  The claimant at this time also contacted the Health and Safety Executive and the Police Service of Northern Ireland to report the matter.  The tribunal however has seen no evidence of any follow-up action taken by either of those two agencies.  It appears that a statement was made by the claimant to the Police but this may have been misplaced. Certainly the documentation confirmed the claimant's evidence that the claimant had contacted a Constable Harte of Londonderry PSNI on 13 January 2006.  The claimant stated that this was to report the vehicle defects; the tribunal accepted that evidence.

	(k)	On Thursday 12 January 2006 the claimant telephoned Ms Doherty, the respondent's office administrator, and he requested his final wages and a P45 form to be prepared.  On Friday 13 January 2006, the claimant called with the respondent to collect his wages and the P45.  He spoke with the respondent and he requested clarification as to where he stood.  The respondent certainly said nothing to him that day to disabuse him of the notion that he had in fact been dismissed.

	(l)	After this, the claimant signed on for state benefits.  He received Job Seekers’ Allowance covering the period from 11 January 2006 up to, according to the documentation seen by the tribunal, 2 October 2006.  The claimant made a number of endeavours to obtain alternative employment.  With effect from 25 September 2006, the claimant secured employment with a firm called "Power & Pipeline Heating Ltd".  In that employment the claimant was paid a wage commensurate with that earned by him previously in his employment with the respondent.  On the evidence (and by the claimant's concession and by agreement between the respective parties' representatives), the claimant had no ongoing loss beyond 25 September 2006.

	(m)	The claimant was provided with no written statement of terms and conditions of employment throughout his employment by the respondent.  At the material time the claimant was aged 37 years and his gross wage in this employment by the respondent was £230 per week and £198 nett.  He had been employed for less than one year at the time the employment came to an end.

	(n)	There was no evidence, oral or documentary, supporting the existence of any written health and safety at work policies of the respondent, nor of any written policies or procedures concerning vehicle maintenance and inspection, nor of any written contracts of employment or disciplinary and grievance procedures on the respondent's part.

	(o)	All of the respondent’s vehicle servicing was carried out by a company called Greysteel Commercial Repairs Ltd ("Greysteel").  From the evidence of Mr McGuinness, the proprietor of Greysteel, it would appear that the approach taken to the maintenance and repair of the respondent’s vehicles by Greysteel (with the concurrence of, or on the express instruction of, the respondent) was to carry out the minimum amount of work necessary to ensure that a vehicle such as the lorry might pass any goods vehicle testing but not to do anything more than that.  That approach was presumably motivated by reasons of cost.  The lorry was presented for testing to DVTA after Greysteel had on 28 January 2006 carried out some works to prepare the vehicle for testing.  From the documentation seen by the tribunal none of the test preparation work appears to have included work in connection with the cracked windscreen alleged, the defective horn alleged, and the defective washer alleged by the claimant.  

	(p)	As it transpired, the lorry was refused a goods vehicle certificate in the course of the test carried out by DVTA on 1 February 2006.  That refusal was on nine separate grounds.  Materially, these grounds included a defective horn and an inoperative off-side front windscreen washer.  These constitute of course two out of the three vehicle defects alleged by the claimant in these proceedings.  The further evidence, which the tribunal accepted, was that the lorry's cracked windscreen had indeed been replaced by the respondent by the time of the testing on 1 February 2006.  That was done by a specialist windscreen repair firm.  In his evidence, the respondent did concede that the windscreen had been cracked.  However the respondent disputed the extent of the cracking as alleged by the claimant.  Nonetheless the respondent did accept at hearing that the state of the cracked windscreen was sufficient to suggest that it ought properly to have been replaced. 

	(q)	Both the respondent and his brother, an employee of the business Aidan Watkins, contended that these three alleged defects had not been brought to attention of the respondent at any time prior to the claimant’s employment coming to an end.  Mr McGuinness’s evidence was rather vague as to whether or not any of these specific defects had been brought to his attention.  However, he did state that the horn might have been defective (and fixed by him by attending to a loose connection) prior to the vehicle undergoing the testing on 1 February 2006.  Aidan Watkins denied, without any reservation, that there had existed any defects with the vehicle whatsoever prior to testing, notwithstanding the DVTA test result.  Accordingly the tribunal attached little weight to his evidence.  The respondent did concede that the defects (the horn and the screen washer) had been picked up in the DVTA vehicle testing, but maintained that these had not been expressly referred by him, or by anyone on his behalf, to Greysteel to be repaired. 

	(r)	The lorry was eventually successfully tested by DVTA, following further work carried out by Greysteel, on 6 March 2006.  That work notably included the fitting of a new horn, that being apparent from the Greysteel invoicing documentation.  It also appears that the defective windscreen washer was repaired by Mr McGuinness prior to that latter test by unblocking the jet of the windscreen washer.  

	(s)	The tribunal did not need to determine any further findings of fact to reach its determination in this case.

THE APPLICABLE LAW

8.	The Employment Rights (Northern Ireland) Order 1996 (hereinafter referred to as “the 1996 Order”) provides at Article 126 of the 1996 Order that an employee has the right not to be unfairly dismissed by his employer.  Article 130 of the 1996 Order provides for the test of fairness concerning the dismissal by an employer.

9.	If a tribunal makes a finding of unfair dismissal, and an order for re-engagement or re-instatement is inapplicable, a tribunal may make an order for compensation including both a basic award, under Article 153 of the 1996 Order, and a compensatory award under Article 157 of the 1996 Order, the compensatory award being such amount as the tribunal considers just and equitable 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. 

10.	The Employment (Northern Ireland) Order 2003 ("the 2003 Order") was made on 13 November 2003 and included amongst those provisions becoming operative from 3 April 2005 were the following Articles of the 2003 Order:-

Article 17(1) to (4), in relation to non-completion of statutory procedure: adjustment of awards by industrial tribunals.

Article 23, in relation to procedural fairness in unfair dismissal.

11.	The detail of the foregoing provisions, recording the tribunal's own emphasis in bold lettering, is as follows:-

"17. — 
This Article applies to proceedings before an industrial tribunal relating to a claim under any of the jurisdictions listed in Schedule 2 by an employee. 
(3)    If, ..... it appears to the industrial tribunal that— 
the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies, 
the statutory procedure was not completed before the proceedings were begun, and 
the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer to comply with a requirement of the procedure, 
it shall, subject to paragraph (4), increase any award which it makes to the employee by 10 per cent and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50 per cent. 

(4)    The duty under paragraph (2) or (3) to make a reduction or increase of 10 per cent does not apply if there are exceptional circumstances which would make a reduction or increase of that percentage unjust or inequitable, in which case the tribunal may make no reduction or increase or a reduction or increase of such lesser percentage as it considers just and equitable in all the circumstances.”
23. — 
(1)  	Part XI of the Employment Rights Order (unfair dismissal) shall be amended as follows. 
(2)    After Article 130 there shall be inserted— 

“Procedural fairness
130A. — 
(1)    An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if— 
(a)	one of the procedures set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (dismissal and disciplinary procedures) applies in relation to the dismissal,
(b)	the procedure has not been completed, and

(c)	the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.
(2)   Subject to paragraph (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.

(3)   For the purposes of this Article, any question as to the application of a procedure set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under Article 17 of that Order.”

12.	Schedule 1 to the 2003 Order sets out statutory dispute resolution procedures.  Part 1 of Schedule 1 provides for standard and modified dismissal and disciplinary procedures.  Such procedures involve an employer providing to an employee a statement in writing regarding conduct, characteristics or circumstances which led him to contemplate dismissing or taking disciplinary action against an employee.  That statement in writing must be sent to the employee, and the employee invited to attend a meeting.  A meeting must follow at which the employee has been given a reasonable opportunity to consider his response and to attend, and an appeal must be afforded to the outcome of any decision on the employer’s part.  

13.	The Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (“the 2004 Regulations”), insofar as material, provide as follows:

Application of dismissal and disciplinary procedures

3.—(1)	Subject to paragraph (2) and regulation 4, the standard dismissal and disciplinary procedure applies when an employer contemplates dismissing or taking relevant disciplinary action against an employee.

There are various provisions contained in the 2004 Regulations concerning the non-applicability of the statutory procedures or, alternatively, circumstances in which the procedures do not apply or are treated as being complied with.  The tribunal does not intend to recite these provisions here.

14.	The 1996 Order further provides as follows:-

"Health and safety cases

132. 

An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee— 

(a) -

(b) -

(c) -	being an employee at a place where— 

(i)	 there was no such representative or safety committee, or 

(ii)	there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means, he brought to his employer's attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety.”

This particular provision carries an exemption from the normal qualifying period of continuous service (one year) as provided for by Article 140 (1) of the 1996 Order.  Article 140 (3)(c) of the 1996 Order provides for that exemption. 

15.	The 1996 Order at Article 45 provides that any deficiency in wages due to a worker is to be treated as a deduction made by the employer.  If a tribunal determines a complaint under Article 55 of the 1996 Order well-founded the tribunal may order a respondent to pay to a claimant the amount of any deduction made in contravention of Article 45.

THE TRIBUNAL’S DETERMINATION

16.	In this case the tribunal is able to determine factual material with sufficient certainty upon which to reach the conclusion that the claimant did indeed orally bring health and safety concerns regarding the state of the lorry to the respondent on at least two occasions in the month of December 2005.  These concerns related to three specific issues.  Firstly, there was the issue of a cracked windscreen which the claimant felt presented an evident danger, as the windscreen ran the risk of breaking up and falling into the lorry's cab.  Secondly, there was the issue of a defective horn which the claimant felt to be an obvious source of risk.  Thirdly, there was the issue of a windscreen washer which was not operative on the driver’s side and which thereby impeded the driver's vision.  This was particularly so at a time of the year (December) when road dirt and spray might present a significant obstruction to a clear and safe view on the part of the driver.  This latter problem was such that the claimant had to carry with him a bottle of water.  He had to stop his vehicle in to order to pour water onto the windscreen to clear this by the use of the windscreen wipers, without the aid of the water jet.  On the weight of evidence, the tribunal has no doubt that these specific matters were mentioned by the claimant to the respondent.  However, the respondent took the view that everything would be attended to when the vehicle was being prepared for its goods vehicle certificate test.  The claimant, notwithstanding his unhappiness at the situation, nonetheless drove the lorry for part of the month of December 2005.  He did so for the perhaps understandable reason, as he put it in the course of the hearing, that he did not want to “rock the boat”.

17.	However, when the claimant returned from his Christmas vacation on 9 January 2006 and ascertained that the lorry was well past the expiry date of its current goods vehicle certificate period and that a test was pending, he became quite concerned at the continuing perceived unroadworthiness of the vehicle.  He complained to the respondent that he was unwilling to drive the vehicle on account of these defects and pending it being tested.  Whatever words were employed by the parties in the exchange of Wednesday 11 January 2006, the claimant certainly understood that he was being dismissed by reason of his failure to agree to drive a lorry which he quite genuinely thought presented a health and safety risk.  The tribunal's view, on the strength of the evidence, is that the claimant had good reason to arrive at that understanding.  That is further confirmed by the claimant's subsequent actions which were prompt, clear and unambiguous.  He left the respondent’s premises and he went directly to the Citizens' Advice Bureau in order to seek advice as to his position.  He shortly thereafter approached the Health and Safety Executive and also the Police.  After that he sought legal advice.

18.	The respondent’s contentions were that, firstly, there had been no complaint made by the claimant regarding health and safety issues and, secondly, that there had been no dismissal.  The respondent's case was in part based upon the suggestion that the claimant had in effect "fabricated" the health and safety issue, that being necessary to sustain his case.  This arose, so it was contended, on foot of a misunderstanding on his part as to the effect of the “pink sheet”.  That had extended the testing exemption and the lorry could quite properly have been driven on the road.  The claimant on foot of that misunderstanding had resigned from employment, but without being dismissed.  However, he then realised that he did not have sufficient service to claim for unfair dismissal.  Hence the health and safety issue "emerged" as part of the claimant's case. 

19.	The tribunal has noted, but has considerable difficulty in accepting, the foregoing contention.  This is for the reason that the claimant it seems approached the Health and Safety Executive and the Police within a very short period of time after 11 January 2006 when he believed himself to have been dismissed by the respondent.  At that point the claimant would have had no idea whether or not the lorry was going to pass or to fail the vehicle testing wholly or partly on account of one or more of the issues which he had raised.  However, these very issues were indeed a contributory cause of the vehicle failing the first DVTA test on 1 February 2006.  In that test failure, there is objective evidence to support the existence of two of these vehicle defects, that then being taken together with the respondent's concession on the need for windscreen replacement.  All three defects therefore complained about by the claimant in these proceedings did objectively exist; they are not a fabrication on the claimant's part.  From the weight of the evidence, the tribunal believes it more probable than not that these three specific vehicle defect issues were indeed brought by the claimant to the respondent’s attention prior to the events that occurred on 11 January 2006.

20.	The respondent's primary contention is that the claimant was not dismissed on 11 January 2006, nor at all by the respondent.  The respondent has contended that the claimant left this employment voluntarily.  It is contended that there were no words of dismissal employed by the respondent towards the claimant.  It is stated, further, that the evidence of the claimant’s voluntary resignation is to be found in his telephoned request for the P45 and for his final pay to be made available to him on Friday 13 January 2006.  In submissions, the respondent’s representative has invited the tribunal to attach no weight to the claimant’s evidence in the face of the significant evidential conflict between the claimant and the respondent and his witnesses.

21.	The tribunal does not accept the respondent's representative’s submission in that regard.  On the balance of the evidence, and attaching proper weight to that, the tribunal accepts as reasonable the interpretation placed by the claimant on the situation that he faced in his discussions with the respondent on 11 January 2006.  The tribunal accepts that the respondent used words towards the claimant connected to the claimant's complaints concerning the lorry defects.  The respondent stated that if the claimant refused to drive the lorry there was no work for him.  These words were capable of reasonably being construed by the claimant as words of dismissal.  Significantly, there was nothing said to the claimant either on the date when those words were spoken, 11 January 2006,  nor at any subsequent stage by the respondent, nor by anyone on behalf of the respondent, to contradict the impression gained by the claimant that he had indeed been dismissed by the respondent.  As the claimant, quite reasonably in the tribunal’s opinion, felt that the dismissal had occurred in the context of his raising health and safety concerns with the respondent, the claimant was entitled, equally reasonably, to connect the dismissal with his having raised health and safety concerns with the claimant.  Accordingly, the tribunal is of the opinion that the dismissal may properly be linked with the claimant having raised health and safety concerns with his employer about the state of the lorry which he was being required to drive.  Clearly, on 11 January 2006 the respondent was requiring the claimant to drive the lorry, notwithstanding the claimant's expressed health and safety concerns, and was stating that if the claimant did not agree to do so there was no work for him.  Accordingly, the conclusion of the tribunal is that the dismissal of the claimant by the respondent was for a reason connected with the claimant raising health and safety concerns.

22.	For the claimant, the claimant’s representative has submitted that this case falls squarely within the provisions of Article 132 of the 1996 Order.  The claimant’s representative has made it clear in submissions that he was not seeking to rely on Article 132(1)(d) of the 1996 Order but rather on Article 132(1)(c) of the 1996 Order.  For the respondent, the submission is that the claimant is not entitled to rely on Article 132(1)(c). 

23.	The claimant’s representative has therefore argued that the claimant brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety.  As the claimant had done that and was dismissed as a result, his dismissal ought properly to be regarded as unfair.

24.	For the respondent, the respondent’s representative drew the tribunal’s attention to the case of Balfour Kilpatrick Ltd -v- Acheson and Others [2003] IRLR 683.  That case was cited as authority for the proposition that to engage in unlawful industrial action could not constitute "reasonable means" for the purposes of the foregoing statutory provision.  Informing an employer for the purposes of the statutory provision does not equate to taking industrial action (i.e. by withdrawing labour).

25.	The tribunal does not accept the respondent's submission.  The tribunal is of the view that the statute is clearly designed to place within a protected situation any employee who (in the absence of a formal structure designed to deal with such a situation), on that employee's own behalf and by reasonable means brings to his employer’s attention relevant circumstances in relation to health and safety issues.   On the facts, that is what the claimant was without doubt doing, or endeavouring to do, in this case.  As a result of the claimant's endeavour, the respondent's words and actions towards the claimant constituted an effective dismissal of the claimant.  The tribunal accordingly does accept that the case falls within the ambit of Article 132(1) of the 1996 Order.  As a result, the claimant is to be regarded as being unfairly dismissed by the respondent.

26.	Article 126 of the 1996 Order does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than one year, unless one of the statutory exceptions applies.  One such statutory exception is the exception in respect of the matters mentioned in Article 132 that is provided for by Article 140(3) of the 1996 Order.  Accordingly the “one year” provision is inapplicable.  No qualifying period of employment is required for the tribunal to have jurisdiction under these particular circumstances.

27.	This is a dismissal which occurred on 11 January 2006.  The provisions of the 2003 Order had been operative at that time since 3 April 2005.  It was on 11 January 2006 that the respondent apparently first contemplated the dismissal of the claimant.  The tribunal notes that there was no endeavour whatsoever made by the respondent to engage in any of the statutory dismissal procedures that were then applicable.  For that reason, additionally, the dismissal of the claimant by the respondent is unfair on foot of Article 130A of the 1996 Order.

28.	In this particular situation, a statutory discretion is afforded to the tribunal under the provisions of Article 17(3)(c) of the 2003 Order to increase the minimum mandatory enhancement of compensation for unfair dismissal (that minimum being set at a figure of 10%).  The tribunal has noted that the exception provided by Article 17(4) of the 2003 Order does not apply.  The additional amount may be up to 50%, as the tribunal thinks might be just and equitable.

29.	In this case, the tribunal has considered all of the circumstances surrounding the dismissal of the claimant.  The tribunal determines that there should be an increase of compensation on foot of the discretion afforded to the tribunal by Article 17(3)(c) of the 2003 Order to a figure of 20%.  That is applied as is mentioned below.

30.	The tribunal has examined the claimant’s endeavours to secure alternative employment and is satisfied that the claimant made reasonable endeavours.  No issue arises on account of this.  The period of loss sustained by the claimant as a consequence of this dismissal is calculated by the tribunal as 37 weeks, less two days, (from 11 January 2006 until 25 September 2006) at which stage the claimant’s loss ceased as a result of his securing employment at a level of wage commensurate with that earned by him in the employment with the respondent.  

31.	The tribunal therefore finds that the respondent unfairly dismissed the claimant and the tribunal awards compensation in respect of this unfair dismissal as set out below.

32.	The tribunal gave consideration to the claimant's wages claim in addition to the foregoing.  The notice pay claim is subsumed into the damages for unfair dismissal.  There was insufficient evidence to sustain any other wages or holiday pay claim and the tribunal makes no additional determination in that regard.

33.	Basic Award for Unfair Dismissal

	The tribunal determines that no basic award is applicable.

34.	Compensatory Award for Unfair Dismissal

	The claimant’s nett pay in the employment with the respondent was £198 per week.

	£198 x 37 (less 2 days) = £7,246.80.

	As this was a short-term employment, the tribunal’s award for loss of statutory rights = £100.

	The enhancement applied to the foregoing is 20% = £1,469.36

Total = £8,816.16

35.	Recoupment of Benefit from Awards

The claimant did receive social security benefits to which the Employment Protection (Recoupment of Job Seeker’s and Income Support) Regulations (Northern Ireland) 1996 apply.  The following recoupment of benefit is therefore applicable in this case:-

(a)	Monetary Award:					£8,816.16

	(b)	Prescribed Element:				£7,246.80

	(c)	Prescribed Period:  11 January 2006 to 24 January 2007

	(d)	Excess of (a) over (b):				£1,569.36

AND the attached Recoupment Notice forms part of the decision.  Your attention is drawn to the notice below which forms part of the decision of the tribunal.

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

Chairman:

Date and place of hearing:	24 January 2007, Londonderry

Date decision recorded in register and issued to parties:

Case Ref No: 306/06

CLAIMANT:		Kieran Joseph Harkin

RESPONDENT:		Kevin Watkins T/A Watkins Scaffolding

ANNEX TO THE DECISION OF THE TRIBUNAL

STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME SUPPORT

1.	The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.

	£	
(a)  Monetary award	£8,816.16	
(b)  Prescribed element	£7,246.80	
(c)  Period to which (b) relates:	11 January 2006 to
         24 January 2007	
(d)  Excess of (a) over (b)	£1,569.36	

	The claimant may not be entitled to the whole monetary award.  Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department of Social Development has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department.  The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.

2.	The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing.  When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.

3.	The claimant will receive a copy of the recoupment notice and should inform the Department of Social Development in writing within 21 days if the amount claimed is disputed.  The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the claimant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the claimant and regardless of any dispute between the claimant and the Department.