THE INDUSTRIAL TRIBUNALS

CASE REFS:  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 proper award of compensation for unfair dismissal is £9,550.84 and the tribunal Orders the respondent, subject to the recoupment provisions, to pay to the claimant the sum of £9,550.84.

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 A Watkins of the respondent company.

REASONS
1.	Reasons are given in accordance with Rule 30 contained in the 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 Mr Aidan Watkins.  The tribunal had before it a bundle of documents submitted on behalf of the claimant by Mr Canavan which included copies of a number of case law authorities.  The tribunal also received oral submissions on behalf of the claimant and the respondent.  

THE BACKGROUND AND THE ISSUE

2.	On 9 May 2007 consequent upon an oral hearing, a decision (‘the original decision’) was promulgated by this tribunal.  The respondent sought a review of the original decision and on 18 July 2007 a review decision (‘the review decision’) was promulgated by this tribunal.  The tribunal does not intend to rehearse the factual or the legal content of either the original decision or the review decision herein as these are a matter of record, save insofar as appears below.  Consequent upon the promulgation of the review decision, the claimant sought to institute an appeal by way of a requisition to the tribunal to state a case for the opinion of the Court of Appeal. As a consequence this tribunal stated the following question for the opinion of the Court of Appeal:-

“Was the industrial tribunal wrong in law to conclude that the claimant/ appellant was not entitled to be granted an increase of award pursuant to Article 17(3)(c) of the Employment (Northern Ireland) Order 2003 by reason of the fact that he had less than one year’s continuous service in the employment of the respondent?”

The Court of Appeal answered that question, “yes”, allowed the appeal, and remitted the matter to this tribunal with a direction that it should apply the statutory uplift in compensation of 10% provided for in Article 17(3) of the Employment (Northern Ireland) Order 2003 (“the 2003 Order”). The Court of Appeal further directed the tribunal to consider whether to apply a further increase beyond that percentage.  Accordingly (and this was confirmed as agreed at the outset by both parties) the tribunal had to address the foregoing issue as directed by the Court of Appeal specifically regarding the direction to determine whether to apply a further increase beyond 10% to the award of compensation.  

THE ADDITIONAL EVIDENCE

3.	After some discussion, the parties agreed (and the tribunal confirmed) that it was appropriate to hear certain additional evidence from the respondent’s witness, Mr Aidan Watkins. That evidence related to the discrete issue of the respondent’s actual knowledge of the applicable law at the date of termination of employment, 11 January 2006, the date of dismissal of the claimant by the respondent.  It was agreed that this state of knowledge was a material issue to be considered by the tribunal in the context of the tribunal’s consideration of the potential statutory uplift.  

4.	The tribunal therefore proceeded to hear the oral evidence of Mr Aidan Watkins. On the balance of probabilities, the tribunal determines from the evidence that this was a small family-run firm and Mr Aidan Watkins, together with Mrs Bridie Watkins, was substantially responsible for the administration of the respondent’s business and was tasked with employment matters, such as dealing generally with human resources and implementing any employment policies and procedures.  Although the evidence of Mr Aidan Watkins was somewhat vague in that regard, the tribunal concludes that none of the respondent’s employees, including the claimant, had a written statement of terms and conditions of employment at the date of the claimant’s dismissal. There was certainly no written code in the nature of written terms of contract provided to employees which would relate to the particular statutory grievance and disciplinary procedures which are contained in the provisions of the 2003 Order. That 2003 Order had become operative at 3 April 2005, as the tribunal has earlier noted.  

5.	Whether as a result of the institution of these proceedings by the claimant, or whether this arose as part of a general administrative exercise carried out by the Labour Relations Agency and designed to bring these statutory procedures to the attention of employers, it appears to be the case that the respondent was at some time in discussions with the Labour Relations Agency concerning the implementation of written terms and conditions of employment which were intended to take account of these statutory grievance and disciplinary procedures. However, as far as the tribunal understands it, such discussions did not take place until after the date of dismissal.  From the evidence, the tribunal concludes that Mr Aidan Watkins, who would have been otherwise responsible for the implementation of these employment procedures with Mrs Bridie Watkins, was at the material time quite unaware of the specific detail of these statutory procedures. The same can probably be said for Mrs Bridie Watkins, although the tribunal did not hear specific evidence from Mrs Watkins.  However, Mr Aidan Watkins did certainly inform the tribunal that he was familiar with the general concept of procedural fairness in disciplinary proceedings.  Mr Watkins in addressing the tribunal did continue to maintain that the claimant had ‘walked out of the job’ and that therefore matters of procedural fairness did not arise. However, the tribunal’s earlier finding in that regard is clear in both the original decision and in the review decision.  

6.	The tribunal does not need to determine any additional findings of fact for the purposes of this decision; indeed any other relevant findings of fact have been recorded in the earlier decisions of the tribunal.  

THE SUBMISSIONS

7.	On behalf of the claimant, Mr Canavan drew to the tribunal’s attention the applicable statutory provisions and also a number of case law and other authorities. These included the following:-

Metrobus Limited  v  Cook [UKEAT/0490/06] [9 January 2007]
		Cex Limited  v  Lewis [UKEAT/0013/07] [10 August 2007]
		Aptuit (Edinburgh) Ltd  v  Kennedy [UKEATS/0057/06] [4 July 2007]
Harvey on Industrial Relations and Employment Law, Division D,       [2810 -2812]

Mr Canavan submitted that the tribunal had a very wide discretion in regard to the matter of statutory uplift.  He drew to the tribunal’s attention the portion of the commentary in the extract from ‘Harvey’ cited where the learned author, he contended, appeared to suggest that the seriousness of the breaches of the statutory procedure and the size and status of the employer were proper factors to take into account in deciding the percentage uplift to be applied to the compensatory award.  However, Mr Canavan respectfully submitted, the learned author of Harvey was incorrect in the reference to the size and status of the employer as being material considerations.  That was made clear, he suggested, by the Scottish Employment Appeal Tribunal (EAT) in the case of Aptuit (referred to above); the tribunal’s focus had to be purely on the issue of failure to complete the statutory procedure - the size and status of the employer was not a proper consideration.  Mr Canavan certainly did concede that this was a small employer, but that was not relevant, he submitted.  However, this was not the case where the respondent was ignorant of the law. Mr Canavan then made reference to a line in the respondent’s form of response to the claim where it is stated, “Kevin Harkin never asked to use or raise any grievance procedure”, thereby, he submitted, suggesting that the respondent was indeed fully familiar with the statutory grievance procedures. 

8.	Mr Canavan continued by making the submission that, on the facts of the case, the claimant did indeed raise a grievance in very clear terms with the respondent. The respondent was well aware that the claimant was raising a grievance and that ought to have been dealt with under the statutory grievance procedure.  Therefore the application of Article 17(3) of the 2003 Order to the case was entirely clear.  This was a matter, Mr Canavan submitted, where there was no heed paid whatsoever to the statutory procedures; at that stage these procedures had been in force for some eight months.  This case ought therefore to attract compensation at the upper end of the percentage uplift available to the tribunal and the tribunal should have regard to the cases cited by him in that respect when exercising its discretion as to statutory uplift.  

9.	For the respondent, Mr Aidan Watkins indicated that he would be bound by the tribunal’s decision in the matter, but he did maintain that the respondent was entirely ignorant of the statutory procedures at the material time.  At that material time the respondent had genuinely regarded this as not having been a dismissal but as a case of the claimant simply walking out of the job.  

THE TRIBUNAL’S DECISION

10.	In this matter, the tribunal is dealing with a discrete issue, that being the consideration of the proper statutory uplift to the award of compensation, if any, beyond the figure of 10% which latter percentage figure has been directed to be applied by the Court of Appeal.  Here the tribunal sees an employer who, notwithstanding the fairly widespread publicity given at the time to the new statutory grievance and disciplinary procedures, appears to have been ignorant of the specifics of these statutory procedures. The tribunal here sees an employer who did not have in place any written code covering disciplinary procedures and other terms and conditions of employment and which might otherwise have given proper effect in contractual terms to these statutory procedures. The basic requirement to have a written statement of particulars of employment has of course been a statutory necessity for a very considerable time (see Article 33 and especially Article 35 of the Employment Rights (Northern Ireland) Order 1996). 

11.	Although it can be said that any responsible employer by the end of 2005, if not before then, ought to have known about these statutory procedures, the tribunal is not convinced in this case on the facts that the employer did have any specific knowledge.  Put simply, this employer was ignorant of the law and, it appears, did not seek proper informed advice at the time. The tribunal takes the view that this was, to an degree, a culpable ignorance; the employer ought to have known of the statutory procedures.  That fact therefore cannot be disregarded in this decision.  

12.	The tribunal has considered the arguments and the case law and other authorities put forward by Mr Canavan.  These were, Mr Canavan indicated, the most recent authorities that he could find in regard to the legal issues.  However, he did not draw to the tribunal’s attention an English EAT case which the tribunal considers to be quite useful in that this case provides a working analysis of the cases cited by Mr Canavan and also is of slightly more recent origin. That is the case of Butler v G R Carr (Essex) Ltd [UKEAT/1028/07/1510].  In Butler, whilst the EAT expressly declined to give specific general guidance, it did refer to the cases of Cex Ltd, Metrobus Ltd and Aptuit and alluded to the respective uplifts of 10% in Cex (which was upheld on appeal), 40% in Metrobus (which was also upheld) and 40% in Aptuit (which was sent back by the Employment Appeal Tribunal).  In Butler, His Honour Judge McMullan QC noted that, on the facts of that particular matter, the tribunal had pitched its award in the top half of the range.  The judgment continues:-

                  “  41.  The Tribunal pitched its award in the top half of the range. Where precisely in the top half, that is between 30 and 50 using a scale of 10 to 50, it puts it, is a matter of fact, we hold. The Tribunal has considered the starting point for this as being a significant and serious breach of the statutory procedure. That depiction is correct. All three steps were disregarded. When there has been such a serious breach, it is apt for a Tribunal to place the uplift in the top half of the bracket and the Tribunal's finding as to that is also correct. 
                42.  Whereabouts within the top bracket must be a matter for the discretion, exercised justly and equitably, of the Employment Tribunal. Here, the Tribunal considered whether the breach was wilful or blatant. It decided it was not a deliberate [sic] of the Respondent [sic] decision to flout the statutory regime. It therefore pitched it at the bottom end. Had it been blatant or wilful, it would have gone up.   “

13.	In the foregoing case of Butler the figure of 30% was upheld by the EAT.  Taking everything into account, and given the particular facts of this case, the tribunal feels that an appropriate uplift percentage is a figure of 30%. This is for the reason that, notwithstanding that there has been a serious breach, nonetheless there is no compelling evidence of any deliberate decision to flout the statutory regime. That is the tribunal’s unanimous determination in this regard.

THE AWARD

14.	There is, as mentioned in the earlier decisions, a compensatory award only in this case. The claimant’s nett pay in the employment with the respondent was £198 per week. Without uplift, the compensatory award as stated is as follows:-

	£198 x 37 (less 2 days) =	£7,246.80.

	The tribunal’s award for loss of statutory rights was £100.

	The enhancement applied to the foregoing, as now confirmed in this decision, is 30%. 
            30% of  £7,346.80 = £2,204.04

Total compensation including statutory enhancement is £9,550.84.

RECOUPMENT OF BENEFIT FROM AWARD

15.    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:			                       £9,550.84

            (b)	Prescribed Element:			             £7,246.80

            (c)      Prescribed Period:            11 January 2006 to  6 May 2008

            (d)	Excess of (a) over (b):                                          £2,304.04

             AND the attached recoupment Notice forms part of the decision of the tribunal.

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

Chairman:

Date and place of hearing:	6 May 2008, Londonderry

Date decision recorded in register and issued to parties: