THE INDUSTRIAL TRIBUNALS
  
CASE REF:    135/10 

CLAIMANT:			Michael Kenton Hermin

RESPONDENT:		Gosford Housing Association (Armagh) Limited

DECISION
The unanimous decision of the tribunal is as follows:

	(A)	The claims of detrimental treatment (contrary to Article 70B of the Employment (Northern Ireland) Order 1996) are not well-founded and accordingly they are dismissed.
(B)	The claimant was unfairly dismissed and the respondent shall pay to the claimant £26,513 compensation in respect of that unfair dismissal.
(C)	The claimant’s claim for breach of contract, in respect of unpaid wages for the period from 15 September 2009 until 9 October 2009, is well-founded and it is ordered that the respondent shall pay the sum of £1,859 in respect of unpaid wages.
(D)	The claimant’s claim for breach of contract in respect of MBA fees is not well-founded and it is dismissed.

Constitution of Tribunal:
Chairman:		Mr Paul Buggy
Members:		Mr James Devlin
			Mr Raymond Lowden

Appearances:
The claimant appeared in person.

The respondent was represented by Mr T Sheridan of Peninsula Business Services Limited.

REASONS

1.	In these proceedings, the claimant initially brought his claim against the Board of Management of the respondent, and against various individual members of that Board of Management.  However, the claimant was employed by Gosford Housing Association (Armagh) Limited and not by its Board of Management, or by those various individual members of that Board who were initially joined as respondents in these proceedings.  Accordingly, at the beginning of the hearing, the claimant agreed to abandon his claims against the various individual respondents, and the title of the proceedings was altered so that the claim is now brought against the association itself, and only against that association.

2.	The claimant was employed by the respondent from 2 November 2002 until the Autumn of 2009.  Officially, he was employed as a Development and Maintenance Manager.  In practice, he fulfilled the role of chief officer of the respondent throughout his period of employment with them.

3.	On 7 March 2009, the claimant wrote a lengthy letter to all of the members of the Board of Management of the respondent  (In this Decision, we refer to that letter as “the March letter”).

4.	In 2009, the respondent began a disciplinary investigation in respect of offences allegedly carried out by the claimant.  In July 2009 he was suspended, pending the outcome of the relevant disciplinary process.  In early October 2009, the respondent wrote to the claimant and informed him that, in the view of the respondent, the claimant had resigned with effect from 15 September 2009.   The claimant immediately replied.  In his reply, he denied that he had resigned.  Nevertheless, on or about 9 October 2009, the respondent wrote to the claimant, enclosing his P45.  The respondent refused to pay the claimant any salary in respect of the period from 16 September 2009 until 9 October 2009 (on the basis of its contention that he had resigned with effect from 15 September 2009).

The claims and the defence

5.	The claimant asserts that, by sending the March letter, he made a “protected disclosure”, within the meaning of the  Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”).  The respondent says that the writing of the letter did not constitute the making of a protected disclosure.  According to the respondent, the letter contained no relevant factual revelation; instead, according to the respondent, the letter consisted mainly of expressions of the claimant’s own views in respect of certain matters.

6.	The claimant says that, because of the making of the relevant alleged protected disclosure, he was subjected to various instances of detrimental treatment, during the period from March to October 2009.  The respondent asserts that it acted fairly and reasonably, in relation to all matters relating to the alleged detrimental treatment, and that the fact the claimant had written the March letter had no influence on any relevant decisions which the respondent made, or for which it is legally responsible.

7.	The claimant claims that he has been unfairly dismissed.  He says that his employment came to an end because the respondent dismissed him on or about 9 October 2009.  The respondent says the employment came to an end through the actions of the claimant, which constituted a deemed resignation.  According to the respondent, the claimant resigned by committing himself, from on or about 15 September 2009, to undertaking a full-time course in the University of Ulster during the 2009/2010 university year.

8.	The respondent accepts that if the claimant was dismissed, the dismissal has to be an unfair dismissal, within the meaning of Article 130 of the 1996 Order, and that it must also be an automatically unfair dismissal pursuant to Article 130A(1) of the 1996 Order.

9.	The respondent accepts that the claimant is entitled to compensation if he was unfairly dismissed.  They accept that any award of compensation would have to be the subject of an uplift pursuant to Article 17 of the Employment (Northern Ireland) Order 2003 (“the 2003 Order”).  However, they assert that any compensation should be reduced by at least 50% in light of the following conduct on the part of the claimant:

(1)	The covert taping of certain meetings to which he was a party.
 
(2)	His alleged involvement in an attempt to oust certain members of the Board of Management of the respondent.

10.	The claimant says that the relevant conduct should not lead to any substantial reduction in the amount of compensation which would otherwise be due to him.  He says that the relevant conduct, while regrettable, has to be viewed in light of the overall context (the context in which that conduct occurred).

11.	In these proceedings, the claimant makes a claim for breach of contract in respect of the wages which were withheld from him in respect of the period from 
16 September 2009 until 9 October 2009.  The respondent says that no such wages are due to him, because he was not employed by the respondent during that period.  The claimant also claims that the respondent was contractually committed to payment of fees which he incurred in respect of an MBA course which he did at the University of Ulster in the academic year 2009-2010, and he makes a claim for breach of contract in that connection.

Sources of evidence

12.	The claimant gave evidence on his own behalf.

13.	We received no oral testimony from any witness on behalf of the respondent.

14.	The respondent had the opportunity to give the tribunal reasons for their omission to call any witnesses.  However, that invitation was declined.   As we made clear to the parties, the outcome is that the witness statements of the various respondent’s witnesses (the witnesses which the respondent had initially intended to call) are of no evidential value in the context of the issues which we have had to determine in the course of these proceedings.

15.	We saw two agreed bundles of documents, along with some separate miscellaneous documents.

16.	We told the parties that we would not take the contents of any document, within either of the bundles, into account for evidential purposes, unless that document had been drawn specifically to our attention by one or both of the parties.

The facts

17.	We now set out findings of fact which are relevant to the issues which we have determined.  (In order to minimise avoidable duplication, and in the interests of clarity, we have also set out various other findings of fact elsewhere in this Decision).

(1)	Gosford Housing Association (Armagh) Limited was established in 1977 by a small group of local businessmen, with a view to purchasing and renovating older dwellings; some of those founding members are still active on the Board of the respondent.  The Association (the respondent to these proceedings) is partly funded by the Department for Social Development.

(2)	In theory, the claimant was the respondent’s Development and Maintenance Manager.  In reality, he fulfilled most of the functions of the chief officer of a housing association.  In that enhanced role, he was directly answerable to the Board of the respondent.  Furthermore, in that enhanced role, he was frequently involved in interactions with members of the Board of the respondent.

(3)	The distinctions between officers (who implement) and Board members (who decide on policy) were not clearly observed within the affairs of the respondent.  Accordingly, during the course of his employment with the respondent, the claimant often involved himself in matters relating to the internal politics of the Board.  Throughout most of his time with the respondent, that involvement on his part was done with the knowledge and approval of the members of the Board who had the most influence within the Board.

(4)	On 7 October 2009, the claimant received two items of correspondence dated 6 October 2009 from the respondent, informing him of their regret that he had, according to them, resigned from his employment with them, as a result of his (the claimant’s) decision to embark upon a full-time MBA course in the University of Ulster.

(5)	According to that correspondence, unless a response from the claimant was received on or before Friday 9 October at 9.00 am, his employment would be terminated.  He submitted the requested response, together with confirmation that the course was part-time, by recorded delivery, as well as by email and a voicemail, within the stipulated timescale.  According to those responses, he confirmed that he had not resigned from his employment with the respondent.  However, the claimant subsequently received a P45 dated 8 October 2009.  According to correspondence received at that time, the respondent had deducted salary in respect of the period after 15 September 2009, because they regarded the claimant as having effectively resigned on 15 September 2009 (when the MBA course was presumed, by them, to have commenced).

(6)	In August 2008, the Board of the respondent had agreed to sponsor the claimant’s MBA course at Queen’s University Belfast during the academic year 2008-2009.

(7)	However, at around that time, the Department for Social Development was undertaking an audit of the respondent.  The claimant came to the conclusion that he would not be able to successfully sustained his MBA studies in Queens University Belfast during the academic year 2008-09, while also dealing with the increased workload caused by the DSD audit.  Therefore, it was mutually agreed between himself and relevant Board members that he would not pursue the QUB course.  Because he did not pursue that course, he incurred no fees in respect of that course.  Because he did not incur any fees in respect of that course, the question of the respondent complying with their commitment (to pay fees in respect of that course) did not arise.

(8)	Throughout most of his time as an employee of the respondent, the claimant had enjoyed excellent relations with those members of the Board of the respondent who had the most influence.  However, by the spring of 2009, three things had happened.  First, the claimant had become involved in acrimonious confrontations with persons of influence within the Board of the employer.  Secondly, the claimant had become embroiled in an acrimonious exchange with a contractor who was highly regarded by several members of the Board.  (We refer to that contractor elsewhere in this Decision as “X”.)  Thirdly, it was clear to everybody that the respondent would come under considerable pressure from the Department for Social Development as a result of failings which had been, or would be, uncovered in the context of the DSD audit.

(9)	The claimant’s letter of 7 March 2009 (which, according to the claimant, contained a protected disclosure) has already been mentioned above.

(10)	By the late spring of 2009, the respondent was closely scrutinising the claimant’s past behaviour.  Some of that scrutiny merely resulted in the vindication of the claimant.  (For example, an investigation of the claimant’s expenses claims showed that he had done nothing wrong whatsoever in that connection.)

(11)	However, as a result of those investigations, the claimant was suspended in July 2009 and a disciplinary investigation meeting was scheduled for 8 July 2009.

(12)	In July and August 2009, the claimant asserted that he was unable to attend any investigatory disciplinary meeting.
 
(13)	In September 2009, he submitted a letter to the Board of the respondent asking for the opportunity to undertake a “sabbatical”, to permit Mr Graham Long (a member of the Board) the opportunity “to resolve” the issues which had arisen in connection with the claimant’s relationship with the respondent.

(14)	That was the background to the exchange of correspondence, between the claimant and the respondent, which occurred in early October 2009, to which reference has already been made above.

The “protected disclosure” issues

18.	The effect of Article 134A of the 1996 Order is that an employee who is dismissed is to be regarded (for the purposes of the unfair dismissal legislation), as having been unfairly dismissed, if the reason, or the principal reason, for the dismissal is that the relevant employee made a “protected disclosure” (a protected disclosure within the meaning of the 1996 Order).

19.	Article 70B of the 1996 Order provides that an employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.

20.	For the purposes of the 1996 Order, a “protected disclosure” is a disclosure within the meaning of Part VA of that Order.  (That Part of the Order consists of Articles 67A - 67L inclusive.)

21.	Article 67B(1) lists the disclosures which qualify for protection pursuant to Part VA.  Article 67B(1) provides as follows:

		“(1)	In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure tends to show one or more of the following – 

(a)	… 
(b)	that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, 
(c)	…”

22.	The effect of Article 67C is that a qualifying disclosure (within the meaning of Article 67B is a protected disclosure within the meaning of the 1996 Order if the relevant worker makes that disclosure in good faith to his employer.

23.	The March 2009 letter was written within the following context and against the following background.  A Department of Social Housing audit of the respondent had recently been carried out.  That audit report  was highly critical of various acts and omissions on the part of the respondent.  In particular, the auditors had been critical of the way in which the respondent went about procuring response maintenance services.  

24.	In the March letter, the claimant pointed out that a particular contractor (who we will call “X”) had recently been formally appointed as the respondent’s sole or main response maintenance contractor, for a period of six months, without any other contractor having been given the opportunity to compete in respect of that role.  The letter also pointed out that X had been the main response maintenance contractor, on an informal basis, for the respondent for a period of 30 years, in a situation in which other contractors had never been offered the opportunity to compete in respect of that role.  The claimant pointed out that those various arrangements had been criticised by the Departmental auditors.  The letter continued in the following terms:

		“Whilst, I am aware that in attempting to ensure appropriate protocols are observed by the Board of Management for Gosford Housing Association, this is not always a popular preference by certain individuals, who in all probability will attempt to cast doubt upon my performance as the Association’s Manager.

		The same individuals should review their own performance as Board Members, to avoid sanctions being imposed by the Department for Social Housing and other agencies.  It is not unforeseeable that a contractor could complain to the Housing Ombudsman in relation to the appointment of a contractor, which was not open and fair to all”.

25.	According to the claimant, the protected disclosure was contained within the last of the two paragraphs which we have quoted above.  (Below, we refer to that paragraph as the “the relevant paragraph”).  

26.	The March letter went on to list various remedies, which were being suggested by the claimant, with a view to making sure that, in future, there would be fair and open competition in respect of the respondent’s requirements for response maintenance.  

27.	The letter concluded with the following paragraph:

		“I would strongly advocate members review the appointment of our response maintenance contractor as part of our business plan review scheduled
		16 March 2009 to facilitate the necessary protocols being established for the new financial year, commencing in April”.

28.	According to Mr Sheridan, the relevant paragraph does not contain any factual revelation.  Instead, he argued, the paragraph only sets out the claimant’s views and comments, about the implications of the failure (as the claimant saw it) of the respondent to ensure that its response maintenance services requirements were procured on a fair and value for money basis.

29.	According to Mr Sheridan, protected disclosure law only protects an employee who reveals information.  Thus, according to Mr Sheridan, the provisions do not protect an employee who makes unpopular comments in respect of the implications of a particular factual situation.  

30.	We agree with that analysis of the law.  In our view, the protected disclosure provisions of the 1996 Order are available only for the protection of those who reveal information.  In the March letter, in general, the claimant did not provide any new information to the members of the Board.  We are satisfied that, prior to the receipt of the claimant’s March letter, the Members of the Board were already well aware of the fact that X was carrying out the bulk of the response maintenance work emanating from the respondent, and were already aware that X’s appointment was not the result of any objective, transparent or competitive process.  So, to the extent that the letter did contain information, it did not contain new information.  

31.	We also agreed that the relevant paragraph consists of the claimant’s views and comments as to the implications of that factual state of affairs (the factual state of affairs already known to the Board).  

32.	Accordingly, the claimant did not make any relevant protected disclosure within the meaning of the 1996 Order.  Therefore, his Article 70B claim is not well-founded. 

33.	Another implication of our conclusions on the protected disclosure issue is that the claimant cannot be regarded as having been automatically unfairly dismissed pursuant to Article 134A of the 1996 Order.  (Article 134A provides that a dismissal is automatically unfair if the employee was dismissed solely or mainly because he made a protected disclosure). 

Was the claimant unfairly dismissed?

34.	We are satisfied that the claimant was dismissed.  We are also satisfied that this was an unfair dismissal within the meaning of Article 130A(1).  We have arrived at those conclusions for the following reasons, and against the following background.  

35.	On the resignation/dismissal issue, the main thrust of the respondent’s argument, was that the claimant had communicated his intention to terminate his employment, by taking up the full-time MBA course.  However, the claimant never directly informed the respondent of that intention.  (They came to know of that intention because of a letter which they received from the University of Ulster).  

36.	As the claimant has explained to us (during the course of his oral testimony in these proceedings), he had enrolled on the relevant MBA course.  He chose to pursue it on a full-time basis at a time when he was suspended from his employment with the respondent, with the intention that he would pursue it on a part-time basis in the event that his suspension was lifted, unless the respondent was then willing to allow him to pursue it on a full-time basis.  

37.	Contrary to the arguments presented on behalf of the respondent, the claimant did not breach any disciplinary rule by embarking upon a full-time course.  If he had consistently failed, at some time in the future, to present himself for work, with the respondent, during normal working hours, that might possibly have been a different matter.  However, that potential eventuality never arose.  

38.	Furthermore, when the respondent wrote to the claimant, following receipt of the relevant University of Ulster communication, demanding to know whether or not the claimant was resigning, he responded, within the arbitrary timescale which had been dictated by the respondent, by confirming that he had no intention of resigning.

39.	In reality, the respondent seized upon the opportunity provided by the University of Ulster communication to affect to believe that the claimant had implicitly resigned, in a situation in which they had no reasonable grounds for believing that he had done so.

40.	In the course of his oral submissions, at the conclusion of the hearing, Mr Sheridan shifted his ground somewhat, by arguing that the claimant had by his own actions (by enrolling in the full-time course), in effect, dismissed himself.  In support of that proposition, he quoted a passage (at D1/291-306) from “Harvey on Industrial Relations and Employment Law”, which deals with some special situations in which an employee, by his own actions, can be deemed to have terminated the contract of employment.  However the circumstances envisaged in that passage are very different from the circumstances of this case.  Furthermore, as Harvey indicates at paragraph D1/305 of that passage, the concept of “self-dismissal” is of doubtful validity, and it has a very limited scope. 

41.	Article 130A(1) of the 1996 Order provides that a dismissal is to be regarded as automatically unfair if the employer has dismissed the employee without completing the statutory dismissal procedures.  Clearly, this respondent failed to complete any such procedures before dismissing this claimant.  

The amount of compensation for unfair dismissal

42.	In this part of the Decision, we address the issues which arise in the context of compensation.

43.	We are satisfied that the claimant is entitled both to a basic award and to a compensatory award.

The issues in respect of unfair dismissal compensation

44.	The issues in respect of compensation can be summarised as follows:-

	(1)	What is the amount of the claimant’s basic award?

	(2)	Should there be a “conduct” reduction from the basic award?

	(3)	What is the amount of the claimant’s loss, and has he failed to mitigate that loss?

	(4)	Should there be a “Polkey” reduction from any compensatory award?

	(5)	Should any compensatory award be subject to an uplift, pursuant to the Employment (Northern Ireland) Order 2003?

	(6)	Should there be a “conduct” deduction from the compensatory award?

The basic award

45.	The parties are agreed that the claimant is entitled to a basic award of £3,947 (subject to any “conduct” reduction).  We also agree.

The amount of loss and mitigation

46.	We are satisfied that, as a gesture to reflect an omission on their part to increase his salary, the respondent had agreed, for the academic session 2008/2009, to pay the claimant’s fees (amounting to approximately £9,000) in respect of his attendance, on a part-time basis, of an MBA course at Queens University Belfast.  Early in the academic year 2008/2009, the claimant abandoned that course.  As a result, no fees were incurred in respect of that course.  In the academic year 2009/2010, the claimant did incur fees in respect of an MBA course which he did attend at the University of Ulster.  The fees incurred by him in attending at that course amounted to £8,925.  He actually attended the latter course on a full-time basis, but the fees which he then incurred were no greater than the fees which he would have been charged if he had attended on a part-time basis. 

47.	As already noted above, the claimant did not in fact pursue the QUB course in 2008/2009.  He withdrew from that course, with the agreement of the respondent, and no fees were paid by the respondent in respect of the QUB course.  We are sure that the respondent would have acted within the spirit of its previous commitment, and would have paid the claimant’s MBA fees at the University of Ulster, during the academic year 2009/2010, if he had not been sacked in October 2009.  Accordingly, the fees of £8,925 must be included as part of the loss which the claimant has sustained as a result of this unfair dismissal.

48.	Following his dismissal in October 2010, the claimant persisted with his full-time University of Ulster MBA course.  However, while he was continuing with that course, he was simultaneously energetically seeking employment.  He told us, and we accept, that he would have changed from the full-time version of the course to a part-time version of the course if, during the academic year 2009-2010, he had been successful in obtaining the employment which he was then seeking.  Therefore, we reject Mr Sheridan’s argument that the claimant has failed to mitigate his loss because of his perseverance with the University of Ulster  MBA course.  

49.	We are satisfied that the claimant did make prompt, substantial and sustained efforts to obtain alternative employment, after his dismissal, without success.  Accordingly, we are satisfied that the claimant has not failed to mitigate his loss.

50.	The parties are agreed that the claimant’s loss of wages, up to the date of this hearing, was £23,231.

51.	We are satisfied that a six month period in respect of future loss, in light of the current situation in the labour market, and in light of the particular context in which the claimant now has to seek work, is appropriate.  The parties are agreed that the net salary which the claimant would have received for the six month period beginning at the end of this hearing was £12,080 (twenty-six weeks’ wages at £464.63 per week).

52.	We are satisfied that the claimant is entitled to the sum of £380 in respect of loss of statutory rights.

53.	The aggregate of those items (£8,925 in fees, £23,231 in respect of loss to date, £12,080 in respect of future loss, and £380 in respect of loss of statutory rights) is £44,616.

A “Polkey” reduction?

54.	Article 157 of the 1996 Order makes provision in respect of the calculation of a compensatory award in an unfair dismissal case.  Article 157(1) of the 1996 Order provides as follows:-

	“(1)	Subject to [certain other provisions of the 1996 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 complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.”

55.	The well-known House of Lords decision in Polkey  v  Dayton Services is authority for the proposition that, in deciding on the amount of compensation which is “just and equitable” for the purposes of Article 157(1), full account has to be taken of the chance that the claimant could and would have been fairly dismissed in any event, even if the relevant unfair dismissal (the unfair dismissal which is the subject of the tribunal proceedings) had not occurred.

56.	In the circumstances of the present cases, in considering the Polkey issue, two questions have to be answered.  First, if the dismissal had been free of any procedural defects, would a decision to dismiss have been within the range of reasonable responses?  Secondly, would the employer have decided to dismiss in that situation?

57.	In this case, at the time when the claimant was dismissed, he was facing pending disciplinary proceedings.  We have received no oral testimony from any witness on behalf of the respondent.  Therefore, we are in no position to arrive at any definitive conclusion in respect of either of the following two issues.  First, we simply do not know whether or not there was sufficient evidence which would have provided an adequate basis for an employer, acting procedurally fairly and within the range of reasonable responses, to fairly dismiss the claimant.  Secondly, we simply do not know whether the respondent would in fact have chosen to dismiss the claimant in respect of the relevant alleged offences.  Accordingly, we cannot make any Polkey deduction, from the amount of the compensatory award, to reflect the possibility that the claimant could and would have been fairly dismissed if the relevant unfair dismissal had not occurred.  (See Paragraph 55 above.)

“Conduct” deductions

58.	According to Mr Sheridan (on behalf of the respondent), there should be a 50% reduction from the basic award, and there should also be a 50% reduction from the compensatory award, to take account of the claimant’s conduct in covertly taping conversations (in which he was engaged in his capacity as an employee of the respondent) and to take account of his intermeddling, in or about the month of June 2009, in the attempt to oust Mr Frazer from his chairmanship of the Board of the respondent.  Against the following background, and for the following reasons, we agreed with that proposition.

59.	The claimant says that he is far from being proud of having secretly taped conversations within his workplace, on several occasions.  However, in considering that issue, he asks us to take account of the fact that he believed, on reasonable grounds, that people within the respondent were “out to get him”.  We have taken account of the latter factor, and we consider that the claimant’s subjective fears in that connection may well have had a reasonable basis.  Nevertheless, it is a serious matter, and it involves a serious breach of trust, for an employee to secretly tape conversations within the employment context.  The claimant has drawn our attention to some employment cases in which the admissibility of covert tape recordings has been considered.  However, in our view, none of those cases provide authority for any proposition that the secret taping of conversations by an employee, in an employment context, ceases to be blameworthy, even if the employee has good reason not to trust his employer.  Some of the cases cited by the claimant show that a tape is not rendered inadmissible, as evidence in employment tribunal proceedings, merely because it was produced as a result of secret recordings.  However, admissibility has to be distinguished from the question of whether or not the taping constituted blameworthy conduct.

60.	As already indicated above, because none of the respondent’s witnesses have in fact provided any oral testimony in these proceedings, the assertions contained in written respondent’s Witness Statements cannot be taken into account, for evidential purposes, in these proceedings, except to the extent that they have been accepted, by the claimant, as being true.

61.	The claimant initially accepted that the assertions contained at paragraphs 6 and 7 of a Witness Statement which had been prepared on behalf of James Stinson (who was originally scheduled to give evidence on behalf of the respondent) were true.  According to paragraphs 6 and 7 of that Witness Statement:-

	“6.	Prior to the AGM of Gosford Housing [Association] (held on 4 June 2009) the claimant had indicated to both Mr Rowntree and to me that he intended to have some of the committee removed from office.  The claimant would achieve this by marshalling the votes of members of Donaghcloney Housing Association following the merger of the [two] Associations.

	7.	On the night of the AGM the claimant approached myself and Mr Rowntree in the car-park and asked us if we were ready for ‘the fireworks’ that everything was in place for a rowdy meeting and in particular that most existing committee members would not be re-elected.”

62.	Although the claimant initially did not dispute the accuracy of the comments made at paragraphs 6 and 7 of the Stinson Witness Statement, when he told us about what he actually did in the context of the 4 June meeting, it was clear to us that he had not actually “marshalled” any votes, and it was also clear to us that he had not in fact sought to persuade anybody to remove any member of the committee from office.  It is true that he was happy that this was being done, and that he made no secret of his sympathies in that connection.  However, he does not seem to have taken any positive steps to achieve that objective.  It is true that he provided details of the Association’s membership to committee members who were seeking to oust Mr Frazer, but they were entitled to those details of membership in any event.

63.	Accordingly, the position is that we have no evidence that the claimant did take any illegitimate steps to influence the outcome of the vote which took place on 4 June 2009, but it is clear that he did show partisanship, in his dealings with those committee members who, at that time, were keen to oust Mr Frazer.  That was blameworthy conduct.  For the sake of completeness, we add that we are satisfied, in the context of the 4 June meeting, that the claimant’s acts were to not any significant extent motivated by any broader concerns regarding the good governance of the respondent housing association (as distinct from being motivated by the claimant’s own personal, and entirely understandable, self-interest in seeking to make sure that his position within the respondent employer was protected).

64.	“Conduct” reductions are made from basic awards pursuant to Article 156(2) of the 1996 Order.  Paragraph (2) provides as follows:-

	“(2)	Where the tribunal considers that any conduct of the complainant before the dismissal … was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly.”

65.	Case law shows that a basic award cannot be reduced in respect of any conduct unless that conduct was culpable or blameworthy.

66.	In our view, the relevant conduct of the claimant (in respect of recording conversations and in respect of involving himself in the attempt to topple committee members) was both culpable and blameworthy, even when one takes account of the situation in which the claimant found himself when those instances of inappropriate conduct took place.

67.	Article 157(6) of the 1996 Order contemplates conduct-related reductions from compensatory awards, but only where the tribunal finds that the dismissal was to any extent caused or contributed to by any relevant action of the claimant.  The taping and the intermeddling did not cause or contribute to the claimant’s dismissal.  Nevertheless, the tribunal is entitled and obliged to reduce the amount of the compensatory award, to reflect the relevant misconduct, because compensation payable as a compensatory award has to be “just and equitable”.  (See Article 157(1) of the 1996 Order).

68.	Accordingly, in our view, a 50% reduction, as called for by Mr Sheridan, is appropriate both in respect of the basic award and in respect of the compensatory award.

69.	So the basic award of £3,947 is reduced to £1,974.  (See Paragraph 45 above.)

70.	And the compensatory award is reduced to £22,308.  (See Paragraph 53 above.)

Uplift?

71.	Article 17 of the Employment (Northern Ireland) Order 2003 (“the 2003 Order”) provides that, as a general rule, if the statutory dismissals procedure was not completed solely because of a failure on the part of the employer, a tribunal is under an obligation to increase any compensatory award in unfair dismissal proceedings by at least 10%.

72.	That general rule is subject to an exception.  The exception is provided for at paragraph (4) of Article 17, which provides that the general duty does not apply if there are exceptional circumstances which would make an increase of that percentage unjust or inequitable.

73.	We are satisfied that no such exceptional circumstances exist in this case.

74.	We have a discretion to uplift the compensatory award at any point within the range of 10% to 50%.  In the circumstances of this case, we have decided to increase the award only by 10%.  We have arrived at that determination against the following background, and for the following reasons.

75.	This was a very blatant example of an employer trying to avoid the requirements of the statutory dismissal procedure, by pretending that the claimant had resigned, in a situation in which such a view was untenable.

76.	However, in deciding on the amount of the percentage uplift (within the 10% to 50% range), we are entitled to take account of the overall amount of the compensatory award.  (See Chagger  v  Abbey National Plc  [2010] IRLR 47, at paragraph 102).  In this case, we note that the amount of the compensatory award is very substantial.  We take account of that in determining that the uplift should be at the 10% level.

77.	£22,308 plus 10% is £24,539.  (See paragraph 70 above.)

Unfair dismissal compensation (Summary)

78.	The claimant is entitled to a basic award of £3,947, which is subject to a 50% “conduct” reduction, leaving a net basic award of £ 1,974.

79.	The claimant is entitled to a compensatory award, which is made up as follows.

80.	The amount of the claimant’s loss amounts to £44,616.  This consists of £8,925 in respect of the payment for university fees in respect of the University of Ulster course, £23,231 in respect of his salary loss to date, £12,080 in respect of future earnings and £380 in respect of loss of statutory rights.  (The claimant has not failed to mitigate his loss, so we have made no deduction from the figure of £44,616 in respect of any such failure).  

81.	We have made to Polkey “procedural” reduction from the compensatory award.  However, we have reduced the figure of £44,616 by 50%, to reflect the “just and equitable” reduction in respect of the claimant’s conduct.  That leaves a figure of £22,308.

82.	We have uplifted the figure of £22,308 by 10% (pursuant to Article 17 of the 2003 Order), resulting in an overall compensatory award of £24,539.

83.	Therefore, the claimant is entitled to an award of £26,513 (consisting of a basic award of £1,974 and a compensatory award of £24,539.

The claim for wages

84.	We are satisfied that the claimant is due the sum of £1,859 in respect of unpaid wages in relation to the period from 15 September 2009 until 13 October 2009.

The contract claim in respect of the MBA fees

85.	The respondent did contractually commit itself to paying the claimant’s fees in respect of the MBA which he had begun at Queen’s University Belfast during the academic year 2008/2009.  However, with the agreement of the respondent, and for what probably were good reasons, the claimant never pursued that course.  In our view, the contractual commitment on the part of the respondent in respect of 2008/2009 QUB fees did not transmogrify to a contractual commitment, in respect of the year 2009/2010, in respect of an MBA course carried out in an entirely separate university.  (Nevertheless, as already indicated above, we are satisfied that, if the claimant had not been unfairly dismissed, the employer would, in reality, despite the non-existence of any contractual commitment to do so, have been willing to provide equivalent funding in respect of the 2009/2010 University of Ulster course.  See Paragraph 48 above).

Recoupment

86.	The Recoupment Regulations apply.  The prescribed period was the period from 15 October 2009 to 4 January 2011.  The prescribed amount was £15,844.  The amount by which the amount of the unfair dismissal award exceeds the prescribed amount is £10,669.

Interest

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

Chairman:

Date and place of hearing:	6-8, 11 and 12 October 2010.

Date decision recorded in register and issued to parties: