THE INDUSTRIAL TRIBUNALS 

CASE REF:  5061/09

CLAIMANT:	Lindsey McConnell 

RESPONDENTS:	RTA  Ireland Ltd

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed and orders the respondent to pay her £2571.71 in compensation.

The respondent is the claimant’s employer therefore Richard Hennity is dismissed as a party from the proceedings and the title of these proceedings is amended accordingly. 

Constitution of Tribunal:

Chairman:		Ms J Knight	

Panel Members:	Mr A Crawford
			Mr D Hampton

Appearances:

The claimant appeared in person and represented herself.

The respondent did not appear but was represented by Ms Jan Graham of BJM Chartered Accountants.

ISSUES

(1)	

(a)	The issue to be determined by the tribunal was whether the claimant was unfairly dismissed by the respondent, contrary to Article 145 of the Employment Rights (Northern Ireland) Order 1996.

(b)	At the outset of the hearing Ms Graham applied on behalf of the respondent for an adjournment of the hearing on the basis that settlement negotiations between the parties had broken down on the morning of the hearing and the respondent wished now to obtain legal advice. Mr Hennity,  the  respondent’s Facilities Manager who handled the termination of the claimant’s employment was in Kilkeel but had asked Ms Graham to deal with the hearing on behalf of the respondent. He had given instructions to Ms Graham about the events leading to the claimant’s dismissal. The claimant objected to the adjournment application because she had taken time out of work to attend at the hearing and because advance warning of the hearing had been notified to the parties by the Office of the Tribunals on 11 June 2009. The tribunal decided after careful consideration of the submissions made, that it was not in the interests of justice to adjourn the hearing. The tribunal took into account that the parties were notified of the hearing on 11 June 2009 and that this remained the case even though settlement negotiations were ongoing. The tribunal considered that the respondent could have sought legal advice at an earlier stage but had chosen not to. In addition the tribunal took into account that Mr Hennity, although he was in the jurisdiction, had apparently chosen not to attend at the hearing to give evidence. 

EVIDENCE

(2)	The tribunal heard the oral submissions by Ms Graham and the oral evidence of the claimant. Ms Graham did not challenge the claimant’s evidence. The tribunal took into consideration the originating claim and response forms and a copy of the claimant’s contract of employment which was submitted in evidence. 

FINDINGS OF FACT

(3)	The Tribunal found the following relevant facts to be proved on a balance of probabilities: 

(3.1)	The claimant was employed by the respondent RTA Ireland Limited from 22 May 2006 until 14 January 2009. Her date of birth is 21 November 1986 and she was 22 years old at the effective date of dismissal. She was initially employed as a part time Accounts Assistant but was made a full time Operation Analyst from May 2006. She was line managed by Mr Hennity and her gross weekly pay was £291.20 and net weekly pay was £230.76. 

(3.2)	Mr Hennity called the claimant into a meeting on 9 January 2009 and told her that she would be made redundant and that she could work a week’s notice if she felt able to do so. She asked Mr Hennity about the redundancy criteria applied and the reason why she, rather than one of her colleagues had been selected. She was informed that the respondent did not have a written redundancy procedure and that she had been selected for redundancy on grounds of experience and because she had only worked on a full time basis since 2006. The claimant had experience in both purchasing and accounts and had longer continuous service than her colleague in accounts, Andrea Annette, who although was employed full time by the respondent from 2001 had a break in her service between December 2005 and January 2006. 

(3.3)	The claimant told the tribunal that there had been some prior discussion within the company of the possibility of redundancies due to a downturn of business and she was aware that two male warehouse workers were also made redundant the same day. However she was not given any prior written notice of the possibility that her employment might be terminated and was not notified of any right to appeal against this decision. The respondent did not take measures to avoid compulsory redundancies through inviting voluntary redundancy. Ms Graham conceded that the respondent had not complied with the statutory dismissal procedures. 

(3.4)	The claimant worked until 14 January 2009 and was paid until end of January 2009. She lodged a complaint of unfair dismissal with the Office of Industrial Tribunals and the Fair Employment Tribunal. The respondent denies that the claimant was unfairly dismissed. She claimed Jobseekers’ Allowance until she obtained higher paid employment on 2 March 2009. She has therefore had no loss of earnings since that date. The tribunal sought representations from the claimant and Ms Graham in relation to compensation in the light of the admitted failure of the respondent to comply with the statutory dismissal procedures. 

RELEVANT LAW

(4)	An employee has the right not to be unfairly dismissed by his or her employer pursuant to Article 126 Employment Rights (NI) Order 1996 as amended. (the “1996 Order”).

(4.1)	Article 130 (1) of the 1996 Order provides that “in determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— 

(a)	the reason (or, if more than one, the principal reason) for the dismissal,    and

(b) that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

    (2)  A reason falls within this paragraph if it—  
          
 ....(c) is that the employee was redundant, or

(4)	Where the employer has fulfilled the requirements of paragraph (1), the   determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— 

(a)	depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b)	shall be determined in accordance with equity and the substantial merits of the case.

(4.2)	Article 130A (1) of the 1996 Order provides that an employee who is dismissed shall be regarded for the purpose of this Part as unfairly dismissed if-

(a)	One of the procedures set out in Part 1 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.

 (4.3)  Article 154 (1A) of the 1996 Order provides that “where
(a) an employee is regarded as unfairly dismissed by virtue of Article 130 (A)(1) (whether or not his dismissal is unfair or regarded as unfair for any other reason),
(b) an award of compensation falls to be made under Article 146(4), and

(c) the amount of the award under Article 152(1)(a), before any reduction under Article 156(3A) or (4), is less than the amount of four weeks' pay,
the industrial tribunal shall, subject to paragraph (1B), increase the award under Article 152(1)(a) to the amount of four weeks' pay.

(1B) An industrial tribunal shall not be required by paragraph (1A) to increase the amount of an award if it considers that the increase would result in injustice to the employer."
(4.4)   Article 17(3) of the Employment (NI) Order 2003 (the 2003 Order) provides that   “If, in the case of proceedings to which this Article applies, it appears to the industrial tribunal that - 
(a) the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies,

(b) the statutory procedure was not completed before the proceedings were begun, and

(c) 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.”

CONCLUSIONS:
(5)
(5.1)	The tribunal determined that the claimant’s employer was RTA Ireland Ltd and dismisses Richard Hennity as a party to these proceedings and therefore amends the title accordingly. 

(5.2) 	The tribunal is satisfied on the facts found that there was a downturn of work and that the employer has shown that the principal reason for the claimant’s dismissal was for redundancy which is potentially a fair reason. However the tribunal determines that the respondent did not act fairly and reasonably in the redundancy selection process leading to the dismissal of the claimant. The tribunal took into consideration that the respondent did not have a redundancy policy and procedure and that there was no prior warning to or individual consultation with the claimant that her post was at risk. No consideration was apparently given as to whether it was appropriate for the claimant or some other employee to be selected. The reason advanced on behalf of the respondent for the basis of the claimant’s selection for redundancy that she had only been working in the department full time since May 2008, was in the view of the tribunal, inherently unfair and unreasonable. 

(5.3) 	The respondent has admitted that it did not comply with the statutory dismissal procedures and therefore in accordance with Article 130(A) of the 1996 Order the claimant’s dismissal is automatically unfair.

COMPENSATION :

(6)   The tribunal therefore concludes that it is just and equitable to award compensation totalling  £2571.71 to the claimant calculated as follows ;

(6.1) Basic Award

	4 weeks x 1(age multiplier) x £291.20 (gross weekly pay)  =     £1164.80

(6.2) Compensatory Award

	Loss of earnings from 1 February 2009 until 2 March 2009 =     £1173.12    
	 4 Weeks x £230.76 (net weekly pay)      £923.12
	Loss of statutory rights                             £250.00

	Sub total                                                                                       £2337.92

	Plus 10% statutory Uplift                          £233.79

	TOTAL                                                     £2571.71

(6.3) 	Rule 4(3) of the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland)1996 apply to this award as set out in the Statement annexed which forms part of this decision.

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

Chairman:

Date and place of hearing:	14 September 2009, Belfast

Date Decision issued to the Parties:

Case Ref No: 5061/09

CLAIMANT:		Lindsey McConnell

RESPONDENT:		RTA Ireland Ltd
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	2571.71	
(b)  Prescribed element	923.12	
(c)  Period to which (b) relates:	1 February 2009-2 March 2009	
(d)  Excess of (a) over (b)	1648.59	

	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.