THE INDUSTRIAL TRIBUNALS

CASE REF:	1722/10
	
CLAIMANT:			Sarah McKeown

RESPONDENT:		Duni Limited

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent.  The respondent is hereby ordered to pay to the claimant a total sum of £7017.47 by way of compensation for unfair dismissal.

Constitution of Tribunal:

Chairman:		Ms June Turkington

Members:		Mr Jim Hughes
Ms Ailish Hamilton

Appearances:

The claimant appeared and represented herself.

The respondent appeared and was represented by Mr Green of Engineering Employers Federation.

The Claim 

1.	The claim was a claim of unfair dismissal.
	 
The Issues

2.	The issues to be determined by the tribunal were as follows:-
 
(a)	Whether the tribunal had jurisdiction to hear the claim.  The tribunal was required to determine whether the claimant’s claim was lodged outside the statutory time limit.  If so, the tribunal had to decide whether it was not reasonably practicable for the claim to be lodged in time and, if so, whether the claim was lodged within such further period as the tribunal considers reasonable.

(b)	In the event of the tribunal deciding that it had jurisdiction to determine the claim, the tribunal would then have to determine whether the statutory dismissal procedure had been completed.  If not, whether the respondent was responsible for such non-completion and whether the dismissal of the claimant was thereby rendered automatically unfair.  

(c)	In any event, the tribunal also considered that it should express its view as to the fairness of the claimant’s dismissal generally.

(d)	In the event that it found the dismissal of the claimant to be unfair, the tribunal had to determine the appropriate remedy.  The claimant sought compensation only.

Sources of Evidence

3.    	The tribunal heard oral evidence from the claimant and from Dermot Byrne and Debra Kennils on behalf of the respondent.  In the course of the hearing, the parties also referred the tribunal to a number of documents in the tribunal bundle.

Contentions of the Parties

4.	The respondent’s representative contended that the claimant’s claim form had been presented outside of the statutory time limit.  He further contended that it was reasonably practicable for the claim to have been presented in time and that there was therefore no basis for the tribunal to extend the time limit for presentation of the claim.  Accordingly, the respondent’s representative argued that the tribunal did not have jurisdiction to hear the claimant’s claim. 

5.	If the tribunal was against him on the time point, the respondent’s representative contended that the claimant had been fairly dismissed by reason of redundancy and following a fair process which complied with the statutory dismissal procedure.  

6.	The claimant accepted that her claim was lodged approximately 1 month outside the statutory time limit.  However, she argued that facts had come to light after the expiry of that time limit which she felt were highly relevant and she had acted to lodge her claim with the tribunal very shortly thereafter.  In this regard, the claimant relied on the case of Market Research Association Ltd v Simpson , a summary of which the Chairman had furnished to both parties. The claimant argued that, in the circumstances, the tribunal should extend the time limit for the claim to be lodged.  

7.	In relation to the substance of the case, the claimant sought to cast doubt on the genuineness of the redundancy in this case.  The claimant argued that a post advertised by the respondent shortly after her dismissal was essentially her former post.  The claimant therefore contended that her dismissal was unfair.

Facts of the Case

8.	Having considered the claim form and response, and having heard the oral evidence of all the witnesses and considered the documents referred to in evidence, as well as the submissions made by or on behalf of both parties, the tribunal found the following relevant facts:-

9.	The claimant was employed by the respondent from 15 September 2008 to 5 March 2010.  The respondent is a manufacturer and supplier of disposable paper napkins and tablecloths to the catering industry.  It has a global operation with a parent company based in Sweden.  The claimant was initially employed as a Design Consultant in sales.  Around May 2009, the claimant’s job title was changed to that of Business Development Executive.  

10.	The claimant’s basic salary was £2003 per month gross and £1306 net (£462.23 per week gross and £301.38 per week net).  She was entitled to a sales-related bonus, but no bonus was earned during the last 6 months of her employment.  The claimant was a member of the respondent’s pension scheme, but no evidence was presented to the tribunal in relation to the claimant’s entitlements under that scheme.  The claimant had a company car, namely a 2007 Volkswagen Passat, which she was entitled to use for personal use.  Estimated personal use was approximately 200 miles per month.

11.	The claimant’s job included working closely with the respondent’s main distributor in Northern Ireland, namely McLaughlins.  The claimant’s job also involved direct sales to end users of the respondent’s products, essentially cold calls to hotels and restaurants.  The claimant worked from home.  Her line manager was Mr Byrne.  The claimant’s job was within the Commercial division of the respondent and Mr Byrne was National Account Manager within that division.

12.	During 2009, there was a new distributor of the respondent’s products in Northern Ireland, namely Jordans.  The claimant was not permitted to work with Jordans.  Rather, Jordans received assistance from another of the respondent’s employees, namely Paula, who was an Account Manager based in England.  Jordans were in direct competition with the claimant’s distributor McLaughlins.  This led to difficulties for the claimant because McLaughlins were suspicious that she was helping their competitor, although this was not the case.  Further, Jordans were on occasion under-cutting McLaughlins prices.  This led to a loss of business for McLaughlins and also had an impact on the claimant’s ability to meet targets and therefore her entitlement to a sales-related bonus.  The claimant made her line manager aware of these difficulties.

13.	From the beginning of her employment, the claimant had difficulties with internet access from her home which in turn led to difficulties with the administrative side to her work.  These technical difficulties were finally resolved around November 2009, but the claimant was left with a backlog of administrative work which she had not been able to process/submit.  On 9th December 2009, the claimant was invited to attend a disciplinary meeting the next day in respect of her performance level.  Following this, the claimant was issued with a verbal warning, confirmed in writing, which was to remain on her file for a period of 3 months.  In the early part of 2010, Mr Byrne indicated to the claimant that he was pleased with the improvement in her performance.

14.	On 24 February 2010, the claimant received a conference call from Mr Byrne and the respondent’s HR manager Ms Kennils.  They indicated to the claimant that her job was at risk of redundancy and she was therefore asked to attend a meeting in England on 26 February.  This was confirmed by a letter of the same date.  The purpose of the meeting was to “discuss the claimant’s position within Ireland which has been identified as being “at risk” of redundancy and to discuss the rationale behind the review and the options available”. The claimant was reminded of her right to be accompanied to the meeting.  

15.	The claimant attended the meeting with Mr Byrne and Ms Kennils on 26 February, accompanied by a colleague.  At the meeting, the rationale for the decision to “remove the BDE role from Ireland” was explained as being due to the change in overall distribution policy in Ireland, the dramatic decline in overall volume within the Irish region and instability in the distribution sector.  It was outlined to the claimant that there was a position of Business Manager in Ireland which had greater responsibilities than the claimant’s present role and a greater salary.  The claimant was given a copy of the Job Profile for this job and asked to consider the matter over the weekend.

16.	The next Monday, 1 March 2010, the claimant confirmed to Mr Byrne and Ms Kennils that she wished to apply for the new post of Business Manager.  An interview was arranged for the claimant a few days later on 4 March.  During this interview, the claimant had to make a number of presentations.  Following the interview, Mr Byrne and Ms Kennils confirmed to the claimant the next day, 5 March 2010, that she had been unsuccessful in her application for the new Business Manager post.  Mr Byrne and Ms Kennils considered that she did not have the “required skills and level for this role”.  Much of the explanation as to why the claimant was unsuccessful was based on the claimant’s performance in her existing role of Business Development Executive rather than on her performance at interview. 

17.	During the telephone call to the claimant on 5 March, Ms Kennils also confirmed to the claimant that she was now being made redundant with immediate effect.  The claimant’s entitlements were outlined to her and Ms Kennils also explained arrangements for the return of company property and other practical matters related to the termination of her employment.

18.	The claimant received a letter dated 5 March 2010 confirming the termination of her employment.  Under the terms of her contract, the claimant was entitled to one month’s notice of termination.  The claimant was not required to work her period of notice.  The respondent paid the claimant what was termed an ex gratia payment of £2003 or one month’s gross pay.  The claimant was allowed to retain her company car for approximately 1 month after her dismissal, until 6 April 2010.

19.	The claimant was offered a right of appeal.  The claimant did not appeal against her dismissal.  The claimant was initially shocked by her dismissal.  At the time, she was inclined to accept that her role had been made redundant and she had therefore been dismissed by reason of redundancy.

20.	The post of Business Manager for Ireland was never filled.  No one other than the claimant was interviewed for this role and the post was never advertised.  The duties of this post have been taken on by another employee of the respondent, namely Paula, an Account Manager based in England.  On the balance of probabilities, the tribunal found as a fact that the respondent never had any intention of actually filling this post of Business Manager for Ireland.  The tribunal was inclined towards the claimant’s view that she was invited to apply for this potential role as a way of “softening the blow” of her dismissal.

21.	On 18 May 2010, the respondent’s HR Manager Ms Kennils sent an e-mail to a recruitment agency indicating that the respondent wished to recruit to a number of Business Development Executive roles, including one in Ireland.  These posts were within the respondent’s Corporate Division and the line manager was Cliff Woods.  The respondent’s evidence was that these new posts had resulted from a new strategy outlined at a meeting in Sweden shortly before 18 May.  No documents were produced to the tribunal in relation to this new strategy.  

22.	On or about 5 July 2010, the claimant received an alert from Totaljobs.com recruitment web-site which referred to a post of Business Development Executive based in Belfast.  The salary and package were very similar to those of the claimant’s previous post.  The claimant contacted the recruitment agency and spoke to the recruitment consultant responsible for this post, Clive Cranfield.  The claimant asked whether the post was with the respondent and Mr Cranfield confirmed that it was, but it had been filled.  The discovery of this new information significantly changed the claimant’s view of her dismissal.

23.	The claimant then sought advice from the Labour Relations Agency and lodged her claim with the tribunal 2 days later, on 7 July 2010.

24.	Having examined the respective Job Profiles for the new Business Development Executive post and the claimant’s former Business Development role and having heard the evidence of the parties in this regard, the tribunal finds as a fact that there was a very substantial over-lap between these 2 posts.  The tribunal therefore finds that the 2 posts were substantially the same.

25.	Following her dismissal, the claimant was initially somewhat shocked.  She claimed Income Support for approximately 10 weeks after her dismissal.  She began to look actively for alternative employment within a month of her dismissal.  The claimant started a new job as a Relief Manager with Avon after 10 weeks.  Whilst at the time of the hearing, this was not a permanent job, the claimant has been kept on whilst other Relief Managers have not and the claimant is hopeful that this will become permanent employment.  At this stage, the claimant is not actively seeking alternative employment at a higher rate of pay.  The claimant’s salary in her new post is £16,500 per annum (gross), average net pay of £1035 per month (£234.10 per week).  She also has a company car, but she is not entitled to any bonus or pension.

Statement of Law

26.	By article 145 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”), a tribunal can only consider a complaint of unfair dismissal if:-

i.  	it is presented to the tribunal before the end of the period of 3 months beginning with the effective date of termination; or

ii.	within such further period as the tribunal considers reasonable in a case where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period.

27.	It is clear that, in applying article 145, there are 2 issues for the tribunal to determine.  The first is whether it was not reasonably practicable for the claimant to lodge the claim on time.  In the case of Palmer v Southend on Sea BC 1984 IRLR 119, the Court of Appeal, having reviewed the authorities on the [equivalent of] article 145 concluded that the term “not reasonably practicable meant something like “reasonably feasible”.”  The burden of proving that it was not reasonably practicable for the claimant to have lodged the claim within the primary time limit lies with the claimant – Porter v Bandridge Ltd 1978 ICR 943.

28.	In the case of Machine Tool Industry Research Association v Simpson 1988 IRLR,  the claimant was dismissed for redundancy, but she heard after the end of the limitation period that another employee had apparently been taken on to do her work.  The claimant now thought she had not been redundant at all and promptly presented a claim of unfair dismissal which was then 3 days out of time.  The Court of Appeal held that a tribunal is entitled to find that it was not reasonably practicable for a complaint to have been presented within time where there were crucial or important facts which did not become known to the claimant until after the expiry of the original time limit.  

29.	The Court further stated that in addressing a case of this type, the tribunal must consider three issues:-

(1) 	was it reasonable for the claimant not to be aware of the factual basis upon which he could bring a claim within the 3 month period?

(2) 	the claimant must establish that the knowledge which he gains has been reasonably gained by him in the circumstances and that that knowledge is crucial or important to his change of belief to the view that he has grounds for a claim.

(3) 	the acquisition of that knowledge must be crucial to the decision to bring a claim.

30.	The statutory dismissal procedure introduced by the Employment Rights (Northern Ireland) Order (“the 2003 Order”) applies in this case.  In basic terms, the statutory procedure set out in Schedule 1 of the 2003 Order requires the following steps:-

Step 1 – written statement of grounds for action and invitation to meeting – the employer must set out in writing the grounds which lead the employer to contemplate dismissing the employee.

Step 2 – meeting – this meeting must take place before action is taken.  The meeting must not take place unless –

(a)	the employer has informed the employee what the basis was for including in the statement the grounds given in it, and

(b)	the employee has had a reasonable opportunity to consider his response to that information.

After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision.

Step 3 - appeal – if the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.  After the appeal meeting, the employer must inform the employee of his final decision.  The employee must be afforded the right to be accompanied at any meetings under the statutory dismissal procedure.

31.	By article 130A (1) of the Employment Rights (Northern Ireland) Order 1996 (“the Order”), where the statutory dismissal procedure is applicable in any case and the employer is responsible for non-completion of that procedure, the dismissal is automatically unfair. A tribunal is required to consider whether the dismissal is automatically unfair under article 130A even where this issue has not been specifically raised by the claimant – see Venniri v Autodex Ltd (EAT 0436/07). 

32.	By article 154 (1) (a) of the 1996 Order, where there is an automatically unfair dismissal by reason of breach of the statutory dismissal procedure, the basic award for unfair dismissal must be a minimum of 4 weeks’ gross pay unless that would result in injustice to the respondent.

33.	Further, by Article 17 of the 2003 Order, where the tribunal is satisfied that the non-completion of an applicable statutory procedure is wholly or mainly attributable to failure by the employer, it shall increase any award which it makes to the employee by 10% and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount up to an increase of 50%.

34.	Leaving to one side the question of potentially automatically unfair dismissal as referred to above, pursuant to Article 130(1) of the Order, it is for the employer to show the reason for the dismissal and that it is a reason falling within para (2).  

35.	A reason falls within para (2) if it is that the employee was redundant.  By article 174 of the Order, an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to:-

(b)	“the fact that the requirements of that business-
(i)	for employees to carry out work of a particular kind have ceased or diminished”

36. 	Article 130(4) of the Order states as follows:-

“where the employer has fulfilled the requirements of para (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”.

37. 	By article 152 of the Order, where a tribunal makes an award of compensation for unfair dismissal, the award shall consist of a basic award and a compensatory award.  Article 156(4) of the Order states that the basic award shall be reduced by any payment already made by the employer to the employee on the ground that the dismissal was by reason of redundancy.

38.  	By article 157 of the Order, 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 the claimant in consequence of the dismissal in so far as that loss is attributable to the action taken by the employer.  In ascertaining the claimant’s loss, the tribunal is required to apply the common law rules in relation to the claimant’s duty to mitigate his or her loss.
          
      Conclusions

       Should the time limit for lodging the claim be extended?
    
39. 	The claimant readily accepted that her claim form was lodged outside the primary time limit of 3 months from the date of dismissal.  The claimant’s dismissal took effect on 5 March 2010 and her claim form was lodged on 7 July 2010, approximately one month after the expiry of the primary time limit.  

40.   	The tribunal therefore had to consider whether, in the circumstances, it was not reasonably practicable for the claimant to lodge the claim in time.  The tribunal found as a fact that, at the time of her dismissal and up until 5 July 2010, the claimant was inclined to accept that she had genuinely been made redundant and therefore she did not believe that she had any grounds for a complaint of unfair dismissal.  The claimant’s view changed very significantly after she discovered on 5 July 2010 that the respondent had advertised a job which appeared very similar to her former job. 

41.  	The tribunal has given careful consideration to the case of Simpson referred to above.  The tribunal believes that the facts of the claimant’s case are very similar to the facts of the Simpson case.  In that case, the Court of Appeal concluded that it had not been reasonably practicable, in the sense of being reasonably feasible, for Ms Simpson to have presented her claim on time given that she had only discovered crucial facts after the expiry of the primary time limit.  

42. 	The tribunal also considered each of the 3 issues set out by the Court of Appeal in its judgment in Simpson. The first issue is whether it was reasonable for the claimant not to be aware of the factual basis on which she could bring an application to the tribunal.  In this case, the claimant believed at the time of her dismissal that her post had disappeared and she was therefore inclined to accept that her dismissal was genuinely for redundancy.  The crucial fact discovered by the claimant was that the respondent was recruiting to a post which appeared to the claimant to be very similar to her former post.  The tribunal considers that it was reasonable for the claimant to be unaware of this fact until July 2010. 

43.  	The second issue to be considered is whether the knowledge gained by her was reasonably gained and that this was crucial to her change of belief to a view that there were grounds to bring a claim.  In this case, the claimant had not appealed against her dismissal and she was generally very clear, candid and consistent in her evidence that she had effectively accepted her dismissal unless and until she had discovered that a job had been advertised by the respondent which appeared to be very similar to her former post.  The tribunal has found as a fact that this discovery caused a very significant change in the claimant’s frame of mind so that she now began to doubt the genuineness of the dismissal.  In other words, she now believed there were grounds for bringing a claim of unfair dismissal.

44.  	Thirdly, the tribunal considered whether the acquisition of the relevant knowledge was crucial to the decision to bring a claim.  In this case, the tribunal had no doubt that the discovery of the relevant facts was decisive in the claimant’s decision to bring a claim.  In particular, the claimant reached this decision within a few days of the discovery of the information in question.

45.  	Accordingly, having considered each of the factors set out in the Simpson case, the tribunal concluded that, due to lack of knowledge of relevant facts, it was not reasonably practicable for the claimant to have brought this claim on time.

46. 	The tribunal then had to consider the issue of whether the claimant had then actually commenced her claim within a reasonable time after the discovery of the crucial facts.  In this case, the claimant had lodged her claim within 2 days after the relevant information became known to her.  The tribunal considered that, on any view, the claimant had acted very promptly and this was certainly within a reasonable time after the relevant discovery.

47. 	In all the circumstances, the tribunal concluded that the time limit for lodging the claim should be extended in this case and therefore, this claim was lodged within the extended time limit and the tribunal has jurisdiction to consider the claimant’s claim of unfair dismissal.

      Automatically unfair dismissal

48.   	In this case, it was accepted by the respondent that the claimant had been dismissed. The tribunal was therefore required to consider whether:-

(a)	the statutory dismissal procedure was applicable in this case;

(b) 	if so, whether the statutory dismissal procedure had been completed in this    case; and

        	(c) 	if not, whether any failure to complete the statutory procedure was due to fault on the part of the respondent.

 49. 	The tribunal reviewed generally the requirements of the statutory dismissal procedure as outlined at para 30 above.  The tribunal noted that the only letter the claimant had received before confirmation of her dismissal was the letter dated 24 February 2010 inviting her to a meeting on 26 February.  This letter simply informed the claimant that her job was “at risk” and that she was invited to a meeting to discuss the rationale and options available. The statutory procedure requires that the employer must write a letter to the claimant setting out the grounds on which the employer is contemplating the dismissal of the claimant.  In effect, a letter under the statutory dismissal procedure under step 1, must invite the employee to a meeting to discuss the possible termination of their contract of employment.  It must be made clear to the claimant that dismissal is at least a potential outcome.  

50. 	In this case, the tribunal does not believe that the letter of 24 February was to this effect.  Rather, in effect this letter was inviting the claimant to a consultation meeting at which options were to be discussed.  Potential dismissal was not raised as a possible outcome of the meeting on 26 February and the tribunal does not believe that it would have been clear to the claimant that dismissal was in the contemplation of her employer.  Further, the claimant was not given the basis of the grounds for possible dismissal prior to the meeting on 26 February as also required by the statutory dismissal procedure. 

51. 	Accordingly, the tribunal has concluded that the respondent failed to comply with the statutory dismissal procedure since the claimant did not receive a step 1 letter inviting her to a step 2 meeting to discuss the possible termination of her employment.  That being the case, the tribunal has concluded that the dismissal of the claimant was automatically unfair in accordance with article 130 (A) (1) of the 1996 Order.  

“Ordinary” unfair dismissal

52.	Notwithstanding its conclusion in relation to automatically unfair dismissal, the tribunal considered it was appropriate to provide the parties with an indication of its view of as to whether the dismissal of the claimant would have been fair or unfair in accordance with established principles of fairness.

53. 	The tribunal then proceeded to consider whether the respondent had shown the reason for the dismissal in this case and that this reason was a potentially fair reason for dismissal.  The respondent argued that the reason for dismissal was redundancy.  The claimant argued that this was not a genuine redundancy on the basis that a job which was very similar to her old post was advertised by the respondent within a short time after her dismissal.

54. 	The tribunal found as a fact that there was a very substantial over-lap between the claimant’s former post and the new post of Business Development Executive in Ireland, first advertised by the respondent in May 2010.  The tribunal then considered whether the respondent had shown that the reason for dismissal was that the requirements of the business to do the type of work which the claimant was employed to do in that place had ceased or diminished (see article 174 of the 1996 Order).  The tribunal took account of its finding that the claimant’s old post and the new BDE post were substantially the same and the fact that the new post was advertised just 2 months after the date of the dismissal of the claimant.  The tribunal considered that it was likely that the new post had been in gestation for some time prior to it being advertised.  The respondent failed to produce any documents to back up its argument that the new post arose from a change in business strategy.

55. 	For all these reasons, the tribunal was not satisfied that the respondent had shown that the requirements for the relevant type of work had ceased or diminished at the time of the claimant’s dismissal.  Accordingly, the tribunal concluded that the respondent had not shown that the reason for dismissal in this case was redundancy.  Leaving to one side the issue of automatically unfair dismissal by reason of non-completion of the statutory dismissal procedure, the tribunal would in any event have found the dismissal of the claimant to be unfair because the respondent did not show that the reason for dismissal in this case was redundancy.

Remedy

56. 	Having determined that the claimant was unfairly dismissed, the tribunal went on to consider the appropriate remedy.  The claimant did not seek reinstatement or re-engagement. The tribunal therefore considered that the appropriate remedy was compensation.  

57. 	With respect to the payment of £2003 described as an ex gratia payment, the tribunal noted that the claimant was entitled to one months’ net pay in lieu of notice.  The tribunal therefore considered that this payment should properly be characterised as £1306 by way of pay in lieu of notice, with the balance of £697 being properly an ex gratia payment.

58.     Within one month of her dismissal, the claimant began to apply for alternative jobs. The tribunal was therefore satisfied at this stage that the claimant had made reasonable efforts to mitigate her loss.  Approximately 10 weeks after her dismissal, the claimant obtained an alternative post with Avon, albeit this job was at a lower rate of pay.  In view of the present economic climate, the tribunal considered it was reasonable for the claimant to accept this job.  The tribunal notes however that the claimant has not continued to make efforts to obtain employment at a rate of pay comparable to her earnings with the respondent.  The tribunal is therefore of the view that, following her engagement by Avon, the claimant has not made reasonable efforts to mitigate her loss.  However, the tribunal was mindful of the extremely difficult economic climate in Northern Ireland generally, at the present time.  The tribunal also took account of the fact that the claimant’s basic earnings with the respondent were at a relatively high level.  Using its best judgment, based on its collective experience of the local labour market, the tribunal therefore concluded that, even given reasonable efforts to mitigate her loss, it is likely that the claimant would take 12 months from the date of termination of her employment to obtain alternative employment with comparable earnings.

59.  	Accordingly, the tribunal determined that it would be just and equitable in all the circumstances for the claimant to be awarded loss of earnings for a period of 12 months from the date of dismissal. 

60.	The tribunal considered the appropriate uplift to the award for unfair dismissal pursuant to article 17 of the 2003 Order as described at para 33 above.  On the one hand, the respondent had failed to make it clear to the claimant that dismissal was being contemplated prior to meeting with her.  On the other hand, the respondent had conducted at least one meeting with the claimant and had also offered her a right of appeal which she had failed to exercise.  Accordingly, the tribunal considered that the respondent’s non-compliance with the statutory dismissal procedure was not the most serious failure.  The tribunal concluded that the uplift should be towards the lower end of the scale between 10 and 50 %.  Therefore, the tribunal determined that it was just and equitable in all the circumstances for the award to the claimant in respect of unfair dismissal to be increased by 20%. 

61.	The tribunal considers that the appropriate compensation in this case in accordance with article 152 to 158 of the Employment Rights (Northern Ireland) Order and article 17 of the Employment (Northern Ireland) Order is as follows:-

(A)	Basic award

Minimum basic award of 4 weeks in view of the respondent’s non-completion of the statutory dismissal procedure
£ 380 (max gross weekly wage) X 4 = £1520
Deduct ex gratia payment of              - £ 697    
                                                       	  = £ 823
 (B) 	Compensatory award
Loss of salary

Immediate loss to conclusion of hearing (11th February 2011):-
49 weeks x £ 301.38 (net weekly wage) = £14767.62
Future loss of earnings to 4th March 2011:-
3 weeks x £301.38                                  = £904.14

Loss of company car

The claimant had a Volkswagen Passat – personal use 200 miles per month.  The tribunal has assumed a diesel model.

Cost as new is in the range £20,000 to £30,000

Using the AA Running Cost Tables, gives a cost per mile of 109.5 pence per mile

The claimant lost personal use of the company car for approximately 1.5 months before she obtained alternative employment 

Loss of company car   1.5 x 200x 109.5 pence 	= £328.50 

Loss of statutory rights
                           
	Award                                                      		= £300
                    
Total loss                                               		= £16300.26 
                     	
Deduct payment in lieu of notice                    	-  £  1306.00 

                                                                                       	= £14994.26 

                     	Deduct sums earned from new job – (42 weeks x £234.10 per week)    
                                                          
			-   £  9832.20                  
        =  £  5162.06 

                    	 Increase in monetary award of 20% ADD £ 1032.41   
                   
TOTAL compensatory award after increase   =  £6194.47 

     	The tribunal considers that a reduction for contributory fault is not appropriate in this case.  Further, since the tribunal has found that there were both procedural and substantive flaws in this case, the tribunal does not consider that it would be appropriate to apply any reduction to reflect the possibility that the claimant may have been dismissed in any event.

                   	Accordingly, the tribunal hereby orders the respondent to pay to the claimant compensation for unfair dismissal in the sum of £7017.47 

Recoupment

62.	This award is subject to the Employment Protection (Recoupment of Jobseekers Allowance and Income Support) Regulations (Northern Ireland) 1996.

The claimant indicated in her claim form and confirmed in evidence that she had received Income Support following her dismissal by the respondent.  The award in this case is therefore subject to recoupment.  The dates of the prescribed element are 5 March 2010 to 11 February 2011.  The prescribed element of the award is £5162.06. 

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

64.	Your attention is drawn to the notice below which forms part of the decision of the tribunal.

Chairman:

Date and place of hearing: 20 January and 11 February 2011, Belfast.
	
Date decision recorded in register and issued to parties: