THE INDUSTRIAL TRIBUNALS

CASE REFS:  1681/07, 1682/07,
1683/07,1684/07

CLAIMANTS:		David Morgan
Jim Graham
Alan Bell
Brian Lucas

RESPONDENT:		MET Steel Ltd

DECISION

The unanimous decision of the tribunal is that each of the claimants was unfairly dismissed and compensation is awarded as calculated in this decision in the following amounts:-

David Morgan		£18,950.30

Jim Graham			£22,766.65

Alan Bell			£24,290.14

Brian Lucas	£12,658.60 (subject to recoupment of Jobseeker’s
                                                              Allowance).

Constitution of Tribunal:

Chairman:		Mr N Kelly

Members:		Miss J Townsley
                         	Mr R Hanna

Appearances:

The claimants were represented by Mr G Daly of Francis Hanna & Co Solicitors.

The respondent was represented by Mr P Bloch of the Engineering Employers’ Federation.

Agreed Facts

(1)	Mr Bloch and Mr Daly, in an extremely helpful and constructive manner, identified and agreed the facts which were necessary for determination of the issues before this tribunal.

(2)	Mr David Morgan started work for the respondent in April 1988 and was employed as a machine operator/crane driver.

(3)	Mr Jim Graham started work for the respondent in April 1976 and was employed as a machine operator.

(4)	Mr Alan Bell started work for the respondent in May 1992 and was employed as a steel worker.  

(5)	Mr Brian Lucas started work for the respondent in August 1988 and was employed as a machine operator.

(6)	The four claimants and six other employees of the respondent at the Mallusk plant were members of the GMB trade union. Mr Bell was the shop steward.

(7)	A pay dispute was ongoing in the Mallusk plant in the summer of 2007 and on 3 July 2007 the GMB employees had a meeting at which, by a unanimous show of hands, they voted for an overtime ban.

(8)	Those employees were not contractually obliged to work overtime.  However the four claimants customarily worked one hour overtime each weekday morning between 6 am and 7 am and the other 6 GMB members customarily worked overtime on Friday afternoons and at the weekend.

(9)	On 4 July 2007, Mr Bell, in his capacity as shop steward, informed Mr James McMahon, the plant manager, that all ten GMB members had decided to impose an overtime ban with immediate effect.

(10)	On Monday 23 July 2007, after the 12th fortnight holiday break, Mr Trevor Marshall, a director of the respondent company, and Mr McMahon spoke to each of the four claimants and asked them if they would be prepared to work an hour’s overtime the next morning between 6 am and 7 am.

(11)	Each of the four claimants refused to do so as they were taking part in the overtime ban as previously advised by Mr Bell to Mr McMahon.  Each employee confirmed that they considered this to be industrial action.

(12)	Before seven o’clock on the morning of Tuesday 24 July 2007, each of the four claimants received a letter delivered by courier to their home address informing them that they were summarily dismissed.  The letters read:-

“You have participated in industrial action in that you failed to attend for overtime between 6 am and 7 am on 24 July 2007.  Please note that you are summarily dismissed with immediate effect from the company’s employment”.

(13)	Mr Alan Bell gave evidence and was cross-examined.  His evidence was that at 5.50 am on the morning of 24 July 2007 he received a telephone call from one of his colleagues informing him that he had just received a dismissal letter delivered by courier.  The letter directed to Mr Bell had been delivered to his previous address which was the only address then advised to the company.  This evidence was not challenged and the tribunal concludes that the letters of dismissal in relation to one claimant at least were delivered before overtime was due to commence at 6 am and therefore before there had been any practical implementation of the overtime ban. The tribunal also accepts the unchallenged submission on behalf of the respondent that all four letters were delivered to the claimant’s homes before 7 am.

(14)	The other six GMB members were not asked to work overtime on the morning of 24 July 2007.

(15)	On Tuesday 24 July 2007, Mr Dawson, a GMB organiser, appealed on behalf of the claimants against the decision to dismiss.  The respondent refused to entertain any appeal and took the view that the statutory dismissal procedure did not apply.  GMB not surprisingly disagreed but the respondent wrote back on 27 July 2007 maintaining their position that the statutory dismissal procedure did not apply in these circumstances.  The respondent’s letter went on to state:-

“However, if you have a view to the contrary and are prepared to set out the details of same precisely, I will, of course, consider same”.

(16)	On Thursday 26 July 2007, GMB wrote to the respondent and confirmed that the other six GMB members would be working overtime “under protest until the present situation is resolved”.  The respondent separately interviewed each of the other six GMB members on the same day and confirmed with each of them that they were “available to work overtime as usual”. In the ordinary course of events, they would have worked overtime on the Friday afternoon ie on 27 July.

Issues

(17)	The parties agreed that the claimants had not been dismissed:-

(i)	while taking part in unofficial industrial action within the meaning of Article 143 of the Employment Rights (Northern Ireland) Order 1996 (the 1996 Order) or;

(ii)	while taking part in protected industrial action within the meaning of Article 144 of the 1996 Order.

(18)	Mr Daly argued that the claimants and their six GMB colleagues were all taking part in official but unprotected industrial action at the time of the claimants’ dismissals.  Therefore the respondent, in dismissing the four claimants, and not dismissing their six GMB colleagues, had opened the door to a claim of unfair dismissal under Article 144(3)(a) of the 1996 Order.  That Article, where relevant, provides that a tribunal shall not determine a claim for unfair dismissal where the claimant was at the date of dismissal taking part in official unprotected industrial action unless it is shown that one or more relevant employees of the same employer have not been dismissed.   “Relevant employees” are defined where relevant, as;

“in relation to a strike or other industrial action, those employees at the establishment of the employer at or from which the complainant works who at the date of his dismissal were taking part in the action”.

It was common case between the parties that no issue arose in relation to the establishment at which the claimants worked and that the issue therefore was whether the other six GMB employees had been taking part in the industrial action ie taking part in the overtime ban at the date of the claimants’ dismissals.

Mr Daly argued firstly, that the other six GMB employees had been taking part in industrial action and that the industrial tribunal therefore had jurisdiction to determine the unfair dismissal claims and that secondly, the dismissals were automatically unfair because the statutory dismissal procedure had not been fulfilled.  The dismissals were also unfair on the merits in view of, in particular, the length of service of the four claimants and the manner in which and the reasons for which the dismissals were effected.

(19)	Mr Bloch argued on behalf of the respondent that the other six GMB members were not, at the date of the dismissals of the four claimants, taking part in any industrial action and that therefore Article 144(3)(a) did not apply.  He argued that the tribunal therefore had no jurisdiction to determine the claims of unfair dismissal.  The other six GMB members would have had to have actually been taking part in the overtime ban by failing to work specific overtime or alternatively by signifying their support by either taking part in a picket line or by sending a letter of support or by taking some other particular action.

He argued that if however the tribunal did determine that it had jurisdiction to hear the claims, the actions of the four claimants amounted to substantial contributory misconduct and that the basic award, compensatory award and any uplift should be reduced by 100%.

(20)	There was a complaint in respect of an allegedly unpaid lying week but this complaint was effectively discontinued.

(21)	Therefore the issues for the tribunal to determine were as follows:-

(i)	Did the tribunal have jurisdiction to hear the complaints of unfair dismissal in respect of the four claimants?  In other words, did Article 144(3)(a) apply to the circumstances of this case?

(ii)	If the tribunal did have jurisdiction, was the dismissal automatically unfair under the Employment Rights (Northern Ireland) Order 2003 because the employer did not offer and facilitate an appeal?

(iii)	If the tribunal had jurisdiction and if the dismissals were not automatically unfair under the 2003 Order, were the dismissals unfair for the purposes of Part XI of the 1996 Order?

The Law

(22)	In Coates and Venables v Modern Methods and Materials Ltd [1982] IRLR 318, Mrs Coates and Mrs Venables were dismissed for taking part in a strike.  They argued that the industrial tribunal had jurisdiction to entertain their complaints of unfair dismissal because another employee Mrs Leith had also been on strike and had not been dismissed.  The relevant GB legislation was in similar terms to Article 144(3)(a) in that it required that the other person who had not been dismissed was a person who took part in the strike or other industrial action.  Mrs Leith had been at the meeting of employees which marked the beginning of the strike but had not attended work because she was frightened she would receive abuse from her colleagues if she did so.  After a while she returned home and went on sick leave.  When she was off work she had attended strike meetings but did not receive strike pay.  The industrial tribunal concluded that Mrs Leith was in fact taking part in the strike and that therefore it was within their jurisdiction to hear the complaints of unfair dismissal brought Mrs Coates and Mrs Venables.  The EAT reversed this decision and that decision was in turn reversed by the Court of Appeal.  That Court determined that whether an employee is taking part in a strike or other industrial action must be judged by what the employee does and not by what he thinks or why he does it.  In that case, the industrial tribunal could reasonably have concluded on the evidence before it that the employee concerned, Mrs Leith, did not cross a picket line because of fear of abuse but was nevertheless taking part in the strike.  The decision was within the bounds of possible reasonable decisions by an industrial tribunal which were exempt from appellate interference.

(23)	In Midland Plastics v Till and others [1983] IRLR 9, employees were in dispute with their employer and had written to their employer setting out demands and stating that “if these demands are not met in full it is our intention to take industrial action as from 11 am Tuesday 5 May”.  In response to queries from the employer, the employees failed to specify what industrial action they might take and they were all dismissed before the 11 am deadline.  The Industrial Tribunal therefore had to determine whether or not the employees had been taking part in industrial action at the date of their dismissals.  If they had been taking part in industrial action, the tribunal would not have had jurisdiction to determine their unfair dismissal complaints.  In the end, the tribunal concluded that it had jurisdiction.  The EAT stated that the industrial tribunal had correctly concluded that at the time of the employees’ dismissal, they had not been taking part in a strike or other industrial action notwithstanding that they had threatened to take industrial action later that day.  The EAT held that the GB equivalent to Article 144 defines the stage at which the employer is entitled to dismiss without fear of unfair dismissal proceedings by reference to the time at which somebody takes part in a strike or other industrial action.  The threat of taking industrial action does not in itself amount to taking industrial action.  The actual taking of industrial action is the last stage in the bargaining process and is distinct from the stage at which the threat of it is being used as a negotiating weapon.  The EAT considered that the tribunal had correctly distinguished that case from Winnett v Seamarks Brothers Ltd in which it was held that where some of the workforce had started on industrial action and others had expressed their intention of joining in such action as soon as they came on shift, those who had expressed such intention were themselves taking part in industrial action.  In that case (Winnett) strike action was being taken and the only question was whether those particular applicants were taking part.

(24)	In Winnett v Seamarks Brothers Ltd [1978] IRLR 387, as indicated above, the issue was whether or not employees who had not yet commenced their shift but who had stated their intention of joining the strike action once their shift commenced were taking part in that strike.  The EAT determined that an employee does not need to withhold his labour when he is contractually due to work in order to be taking part “in strike action or other industrial action”.  If all the employees of the company engaged in shift work decide to stop work from the time of a meeting those employees who are due to work on the following shifts are taking part in strike or other industrial action when they intimate that their labour will be withdrawn at a time when the current shift actually stops working.  They do not only begin to take part in strike or other industrial action from the time when their shift begins, and they do not actually work.  

Decision

(25)	For the tribunal to decide that it has jurisdiction under Article 144(3)(a) of the 1996 Order to hear the four claims of unfair dismissal, it would have to conclude that it had been shown that the claimants’ six GMB colleagues, who had not been dismissed, had been taking part in industrial action, namely the overtime ban, at the date of the claimants’ dismissal ie 24 July 2007.

(26)	At the meeting on 3 July 2007, all ten GMB members had unanimously decided on an overtime ban which was in place from 5 July 2007.  No overtime had been offered to the other six GMB members between that date and 26 July 2007 when those employees recanted and decided to work overtime “under protest”.  The question for this tribunal is therefore whether those six GMB members were taking part in industrial action (the overtime ban) on 24 July 2007 even though their stated refusal to work overtime had not been put to a practical test or had any practical impact at that stage.

(27)	The position of those six GMB members during the entire period from 5 July 2007 to 26 July 2007 had been communicated by Mr Bell to Mr McMahon, in his capacity as a shop steward. That position was quite clear.  There was a standing refusal to work overtime.  The 12th fortnight break deprived that standing refusal of any immediate practical effect but it was nevertheless in place throughout that period and in particular was in place on 24 July 2007 ie the date of the dismissals.

(28)	The four claimants made it plain when interviewed on 23 July 2007 that the purpose of the overtime ban was to put pressure on the respondent to sort out pay issues.  Mr Bell, when announcing the overtime ban to Mr McMahon, referred back to a GMB letter of 26 June 2007 which raised those pay issues and which stated that unless there were a reply within five days further action would be taken.  The overtime ban was the consequence of a failure to reply within the stated timeframe.  The tribunal is therefore satisfied that the overtime ban was industrial action.

(29)	While Mr Bloch sought to argue that on 24 July 2007 and indeed before that date the other six GMB members had not indicated their support for the action by taking part in a picket line, by writing letters of support or by any other action, it is clear that those six GMB members voted in common with the four claimants, by a unanimous show of hands, for the overtime ban at the meeting on 3 July 2007.  It is difficult for this tribunal to imagine a clearer demonstration of support for that overtime ban.  

(30)	While the decision in Midland Plastics makes it plain that a threat or a mere intimation of industrial action does not in itself amount to taking part in industrial action within the meaning of Article 144, the tribunal takes the view that the six GMB members who were not dismissed had gone far beyond uttering a mere threat of industrial action.  A unanimous vote had been taken in a meeting to put an overtime ban in place with immediate effect and that decision and the imposition of the overtime ban had been communicated to management by Mr Bell in his capacity as shop steward.  That overtime ban was still in place until 26 July 2007.

(31)	The tribunal therefore concludes that on 24 July 2007 all ten GMB members were taking part in industrial action and that only four of those members ie the four claimants were dismissed.  The tribunal therefore concludes that it has jurisdiction within the terms of Article 144(3)(a) to hear and determine the complaints of unfair dismissal brought by the four claimants.

(32)	Turning to the second issue, as set out in paragraph 21 above, the tribunal concludes that the respondent was obliged to offer and facilitate an appeal hearing in respect of each of the four claimants and that it failed to do so.  The tribunal further concludes that the failure to comply with statutory dismissal procedure was wholly due to a failure on the part of the respondent.  

(33)	Turning to the third issue, the tribunal concludes that even if it had not determined that the dismissals were automatically unfair, it would have determined that the dismissals were nevertheless unfair in all the circumstances of the case.  The four claimants had a combined service of some 80 years and there was no evidence of any prior disciplinary issues or problems in relation to their employment.  They were not contractually obliged to work overtime and indeed it appears from the papers that one of the other six GMB members when recanting his position, indicated that he was not available to work overtime that weekend because of prior commitments.  There is no evidence that his non-availability became an issue with the employer.  The tribunal concludes that no reasonable employer in these circumstances would have summarily dismissed four individuals with that length of combined service because they had failed to work one hour’s non-contractual overtime even where they had indicated that overtime would not be performed until the pay issue had been resolved.  The tribunal further notes the manner in which the summary dismissals were effected ie by delivery by courier early in the morning to the claimants’ home addresses.  It had not been made plain to the claimants on the previous day, when they indicated their refusal to work overtime, that that refusal would, or even could, lead to their dismissal.  The respondent did not, as it could have done, wait until the four claimants had arrived at work at 7am on Tuesday 24 July and communicated their dismissal to them at that point.  Instead, for reasons which this tribunal cannot comprehend, it chose to deliver the dismissal notices in an intrusive and inappropriate manner by courier to their home addresses at an extraordinarily early hour of the morning. 

(34)	Mr Bloch argued that it had in fact been necessary for the respondent to deliver the notices of dismissal during the time when the claimants were actually taking part in industrial action ie between 6am and 7am when the requested overtime was not being performed. Otherwise, he argued, the respondent would have lost the protection potentially afforded by Article 144 against being sued for unfair dismissal. If this was indeed the reason for the respondent’s decision to deliver notices of summary dismissal to the homes of four long-standing employees before 7am, the respondent failed to do so in at least one case. As recorded in paragraph 13 above, the tribunal has concluded that at least one of the claimants received his notice of dismissal before 6am when the overtime was scheduled to begin. Therefore, even if Mr Bloch’s skilfully developed argument was correct, it would not assist the respondent in relation to at least one dismissal.

(35)	However, the tribunal does not accept that argument which was based on the decision of the NIRC in Heath and another v J F Longman (Meat Salesmen) Ltd [1973] IRLR 214.  Mr Bloch argued that “date” should, for the purposes of Article 144, be construed as “at the time”. The decision in Heath could be read as making that point but it was made in the narrow context of an industrial action which ceased just before and on the same day as dismissals took effect. The NIRC concluded that the tribunal had jurisdiction because the dismissals had taken effect after the industrial action had ended. The tribunal does not regard this decision as support for the proposition that an employer has to dismiss employees at the precise time or times that each such employee is actively participating in the industrial action in a practical sense. If that were the legal position, each shift would have to be dismissed in sequence and immense practical difficulties would occur.

(36)	In contrast to what actually happened, if the respondent had dismissed all of the ten employees who were participating in the overtime ban, at any stage between 4 July when the ban commenced and 26 July when the ban ended, the tribunal would not have had jurisdiction to hear complaints of unfair dismissal.

Remedy

(37)	Mr Bloch, on behalf of the respondent, accepted that the sole reason for the dismissals was the participation of the claimants in the overtime ban.  There was no other reason for the dismissals and there were no separate allegations of misconduct.  He argued that the participation in the overtime ban should be treated by the tribunal as substantial contributory misconduct and that the basic award, compensatory award and any uplift should be reduced by 100%.  The tribunal does not agree.  In the first place, the tribunal does not accept that a refusal to work voluntary ie non-contractual overtime, particularly at an early stage in such industrial action, could be properly construed as substantial misconduct or indeed as misconduct at all.  The refusal to work voluntary overtime involved no contractual breach.  The discussions between Mr Bell and Mr McMahon, on the evidence before the tribunal, appear to have been conducted in a civilised manner.  There appears to be nothing which could have been described as misconduct on the part of the claimants.

(38)	More importantly, the House of Lords in Tracey and others v Crosville Wales Ltd [1998] 167 considered a situation in which bus drivers engaged in an overtime ban were dismissed. Some but not all of the bus drivers were subsequently reengaged with the employer and it was held, on that basis, that the tribunal had jurisdiction to hear complaints of unfair dismissal.  One of the points considered on appeal was whether participation in industrial action could amount to contributory conduct for the purpose of reducing any compensation which an industrial tribunal might award for unfair dismissal.   Lord Nolan analysed the relevant case law in detail and approved the conclusions of Waite LJ below in the Court of Appeal in which he stated;

“Although that is the primary ground on which (by reason of its consistency with the scheme of the legislation as I have sought to analyse it) I would prefer to hold that Courtaulds was correctly decided, that decision was also in my judgement correct in its chosen ratio, at pages 224-225, namely that; ‘it is not possible for an industrial tribunal to hold under Section 74(6) that the industrial action in which the employee was taking part (whether or not it was in breach of contract) in itself justifies a reduction in compensation, since an industrial tribunal is unable to determine whether or not, and to what extent, it is just and equitable to make such a reduction”.

	“I would however add to that the qualification that in cases where the complainants have been shown to being responsible for some additional conduct of their own, then the fact that such conduct occurred during, and as part of, the industrial action does not preclude the industrial tribunal from examining it separately and considering whether it contributed to the complainant’s dismissal.”

(39)	As indicated above, in the present case, the respondent has not sought to argue that any of the four claimants were involved in any ancillary misconduct and therefore the tribunal concludes that it has no jurisdiction to consider whether participation in industrial action was in and of itself contributory misconduct justifying any reduction in compensation.

(40)	Article 130A of the 1996 Order as amended by the Employment (Northern Ireland) Order 2003 provides that an employee shall be regarded as unfairly dismissed if an applicable procedure set out in Part 1 of Schedule 1 to the 2003 Order is not completed where that non-completion was wholly or mainly due to failure by the employer to comply with its requirements.

In the case of a summary dismissal, the modified procedure requires that;

“If the employee informs the employer of his wish to appeal, the employer must invite him to attend a meeting.”

The tribunal concludes that the Article 130A applies in this case because the respondent failed to invite the claimants to an appeal meeting. Under Article 17(3) of the 2003 Order, a tribunal in these circumstances must uplift the compensatory award by 10% and may increase it by up to 50%.

The failure on the part of the respondent to allow appeals is puzzling. While they were probably acting under a genuine but erroneous belief that a tribunal would have had no jurisdiction to hear any complaints of unfair dismissal, that in itself should not have had any bearing on whether or not to allow an appeal. These were long-standing employees and a reasonable employer would, in the opinion of the tribunal, have heard their appeals, no matter what view that employer took of the jurisdiction issue.

The tribunal concludes that an uplift of 25% in each case would be just and equitable.

The claimants’ gross and net earnings with the respondent have been calculated by reference to the complete weeks ending 12 May 2007 to 21 July 2007 using figures supplied by the respondent and not objected to by the claimants.

Brian Lucas

(41)	Mr Lucas had 19 complete years of service at the date of dismissal and the basic award is therefore calculated as follows:-

One year’s service over the age of 41 and eighteen years over the age of 22.  Therefore 19.5 weeks x £310 per week    =  £6,045

Mr Lucas claimed jobseeker’s allowance for one week immediately after his dismissal and took up employment, at something approaching the minimum wage, from 6 August 2007.  That employment continues.  The tribunal, after careful deliberation, has concluded that it would be reasonable to expect Mr Lucas and indeed each of the four claimants to have obtained equivalent employment within twelve months from the date of their original dismissal.  The compensatory award is therefore calculated as follows:-

Loss of earnings from 24 July 2007 to 23 July 2008
@ £331.94 per week							= £17,260.88

Loss of statutory rights							= £250

Total										= £17,510.88

LESS 

Earnings up to date of hearing and continuing to 23 July 2008	= £12,220.00
(£235 net per week x 52 weeks)

Total compensatory award						= £5,290.88

Uplift of 25%								= £6,613.60

Total including basic award						= £12,658.60

(i)	The monetary award is £12,658.60.

(ii)	The prescribed element is £5,290.88.

(iii)	The relevant period for the prescribed element is 24 July 2007 to 23 July 2008.

Jim Graham

(42)	Mr Graham commenced employment in April 1976 and therefore had 31 years’ service at the time of his dismissal.  His basic award is therefore calculated as follows:-

Maximum basic award  =  £8,680.00.

Mr Graham claimed incapacity benefit for five weeks following the date of his dismissal and commenced employment on 5 September 2007 and that employment continues.  The tribunal has heard no evidence in relation to the five week period when Mr Graham was incapable of work but given the timing of the incapacity, immediately after the dismissal, concludes on the balance of probability that this incapacity was more likely than not to have been caused by the respondent’s actions in relation to the dismissal.  The new employment pays significantly less than his original earnings.  Again the tribunal concludes it would be reasonable for Mr Graham to have obtained equivalent employment within twelve months from the date of the original dismissal therefore the compensatory award is calculated as follows:

Loss of earnings from 24 July 2007 to 23 July 2008
@ £368.65 per week							= £19,169.80

Loss of statutory rights							= £250

Total										= £19,419.80

LESS

Incapacity Benefit								= £390

Earnings up to date of hearing and continuing to 23 July 2008	= £7,760.48
(£149.24 x 52 weeks)

Total compensatory award						= £11,269.32

Uplift of 25%								= £14,086.65

Total including basic award						= £22,766.65

David Morgan

(43)	Mr Morgan started working for the respondent in April 1988 and therefore had nineteen years’ service at the date of his dismissal.  The basic award is calculated as follows:-

19 years service over the age of 22.

19 weeks x £310 per week = £5,890.

(44)	In the agreed Schedule of Loss, there is no record of any social security claim.  Mr Morgan commenced work on a much lower paid job on 22 August 2007 and that employment continues.  The tribunal again concludes that it would have been reasonable to expect Mr Morgan to obtain equivalent employment within twelve months from the date of his dismissal and therefore his compensatory award is calculated as follows:-

Loss of earnings from 24 July 2007 to 23 July 2008
@ £376.76 per week							= £19,591.52

Loss of statutory rights							= £250

Total										= £19,841.52

LESS

Earnings up to date of hearing and continuing to 23 July 2008	= £9,393.28
(£180.64 x 52 weeks)

Total compensatory award						= £10,448.24

Uplift of 25%								= £13,060.30

Total including basic award						= £18,950.30

Alan Bell

(45)	Mr Bell started work in May 1992 and therefore had fifteen years’ service at the date of his dismissal.  His basic award is therefore calculated as follows:-

Seven years service below 41 years and eight years over 41 years.

19 weeks x £310 per week  = £5,890.00.

(46)	Mr Bell claimed incapacity benefit from 30 July 2007, immediately after his dismissal and that incapacity benefit remains in payment until the present date.  Mr Bloch for the respondents argued that he was incapable of work and that therefore no issue of compensation arose.  Mr Daly, for Mr Bell, submitted a GP’s letter which was not agreed and was therefore taken on its merits as hearsay evidence.  That GP letter simply recorded:-

“the above has been receiving sick lines and has been unable to work since 26 July 2007.  His main complaint being of stress and difficulty coping.  He has been very upset and preoccupied by a sudden loss of employment and coming to a tribunal”.

The tribunal does not consider it likely that much would have been gained by calling the GP to give evidence.  In situations where an individual alleges that he is suffering from stress as a result of a work-related incident, the most that any medical witness can realistically say is that the individual recounted those complaints to the medical witness.  In the ordinary course of events, a medical witness can rarely positively verify or indeed disprove the assertions made to that medical witness by the individual recounting mental health symptoms.  In the collective experience of this tribunal, they cannot recall a single instance in which a medical witness called by a claimant recounted symptoms reported by that claimant and then sought to doubt or query any of those symptoms.

(47)	In any event, Mr Bell gave evidence and it is on that evidence that the tribunal relies.  He stated that he had been receiving incapacity benefit from the end of July 2007, and that he had suffered from depression, stress and nerves as a result of pressure at work.  This pressure originated in the negotiating process where he was acting as a middle man between the employees and the employer in his capacity as shop steward.  He indicated that he had been going to the doctor before his dismissal.  He stated that he suffered from depression “from when I came out of work”.  He didn’t think he would have been sacked for failing to work one hour’s overtime and certainly not in a situation where the four people sacked had a combined total of eighty years’ service between them.  Mr Bell described in evidence what happened on the morning of 24 July 2007 when he received a phone call from one of his colleagues at 5.50 am.  That colleague indicated that he had just received a notice of summary dismissal.  Having observed Mr Bell giving evidence and having reviewed in detail the circumstances in which these dismissals were carried out, the tribunal concludes that Mr Bell was indeed upset and shocked at the phone call he received early on that morning and at the subsequent events as they unfolded.  The manner of the dismissal and the refusal of the respondent to countenance any appeal in a situation where four long-standing employees were at the early stages of an overtime ban, particularly where the overtime was voluntary and not contractual, would have placed any individual under strain.  This strain would have been significantly greater where the individual was the shop steward organising the industrial action.

(48)	In Dignity Funerals Ltd v Bruce [2005] SC 6, the Court of Session reiterated that the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by a complainant, in consequence of the dismissal insofar as that loss is attributable to action taken by the employer.  The head note also records that:-

(1)	“the compensatory award depended on proof of loss and any application of the just and equitable test must be underpinned by findings of fact establishing that the loss was caused  to material extent by the dismissal; 

(2)	If the dismissal was not a cause of wage loss, no award was due; if the sole cause, the full award would normally be appropriate; if the circumstances are just and equitable an award would be less than the full wage loss.

(3)	The tribunal required to make clear cut findings on whether the depression was caused by the dismissal, if so whether it continued to be caused for the period to the hearing, and how long it would continue to be caused; 

(4)	The making by the tribunal of no compensatory award for the period from dismissal to the hearing but an award for six months beyond that was strange but was not challenged by the appellant and must stand.

(5)	The decision of the tribunal to make no compensatory award for the period to the date of the hearing was made without a proper basis of findings of fact and without proper reasons.

(6)	The EAT ought to have remitted the case to the same tribunal to reconsider its decision on the compensatory award for the period prior to the hearing and to make findings of fact and to give reasons.

(49)	In the present case, the issue therefore is whether Mr Bell’s incapacity for work is attributable to the fault of the respondent.  If so, then a compensatory award should be considered to the appropriate extent.  The tribunal has concluded, on the albeit limited evidence available, that Mr Bell’s incapacity for work was directly related to the fact of his dismissal, the manner in which that dismissal was carried out and the refusal of any appeal process.  The tribunal concludes, as it has with the other three claimants, that it would be reasonable to expect Mr Bell to find equivalent employment within twelve months of the date of his dismissal and therefore his compensatory award is calculated in the following basis:-

Loss of earnings from 24 July 2007 to 23 July 2008
@ £340.82 per week							= £17,722.64

Loss of statutory rights  £250						= £17,972.64
LESS

Incapacity benefit;  £62.55 x 52 weeks					= £3,252.60

Total compensatory award						= £14,720.04

Uplift of 25%								= £18,400.14

Total including basic award						= £24,290.14

(50)	Mr Lucas received Jobseeker’s Allowance after his dismissal. The provisions of the Employment Protection (Recoupment of Jobseekers allowance and Income Support) Regulations (Northern Ireland) 1996 apply in these circumstances and the attention of the parties is drawn to the document annexed to this decision in respect of the recoupment which forms part of this decision.

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

Chairman:

Date and place of hearing:	21 April 2008, Belfast.

Date decision recorded in register and issued to parties: