THE INDUSTRIAL TRIBUNALS    
 
CASE REF:    1098/12  

CLAIMANT:	Carol Guthrie

RESPONDENT:	Catherine McClure, t/a Ballymoney Foot Clinic

DECISION

The decision of the tribunal is that the claimant was unfairly dismissed by the respondent and the respondent is ordered to pay to the claimant the sum of £1,100.06.

Constitution of Tribunal:

Chairman:	Ms M Sheehan

Members:	Mr R McKnight
	Mr M Robinson

Appearances: 

The claimant represented herself at hearing.  

The respondent was represented by Mr McQuitty, Barrister-at-Law, instructed by J W Pinkerton & Son Solicitors.

THE ISSUES

1.	The claim is for unfair dismissal in or around 15 March 2012 contrary to Article 126 of the Employment Rights (Northern Ireland) Order 1996 (hereafter referred to as the ERO).  In the context of this claim, the following issues arise for determination by the tribunal:-

	(a)	Whether the respondent complied with the statutory dismissal procedure.

	(b)	If the respondent did comply with the statutory dismissal procedure then whether the respondent after a reasonable investigation held a genuine belief that the claimant committed an act of gross misconduct namely deliberately taking a sum of money from petty cash without authorisation on 12 March 2012.

	(c)	If so, was dismissal for that offence within the range of reasonable responses for an employer?

	(d)	Whether there was procedural unfairness?  If so, is it likely, or was there a chance, that such unfairness would have made no difference to the outcome?

	(e)	In the event that the tribunal concludes that the claimant was unfairly dismissed, did the claimant by her conduct contribute to her own dismissal and, if so, to what extent?

THE FACTS

2.	The tribunal heard oral evidence from the respondent and Mr Stephen Flynn, the solicitor for the respondent, who attended the internal appeal hearing sought by the claimant once notice of termination of her employment had been given by the respondent and the claimant.  The tribunal was also referred to a number of documents identified at hearing as A1 (the agreed bundle of documents consisting of 59 pages) as well as a document produced at hearing by the claimant identified as A12.  The tribunal did not receive any oral or written submission from the claimant and a written submission was handed to the tribunal on behalf of the respondent.  On the basis of the evidence, we make the following findings of relevant fact in relation to the alleged unfair dismissal.

3.	The claimant was employed at a podiatry practice owned by the respondent as a receptionist/secretary from 15 September 2008 until 15 March 2012.  The claimant was not given a written statement of main terms and conditions of employment until May 2011.  The statement of main terms and conditions included a term entitling her to one week’s notice for each full year of service.  Holiday entitlement was stated to be accrued from 1 January to 31 December with entitlement stated to be 23 days paid annual leave.  Customary holidays and Bank Holidays were stated as not guaranteed.  On 15 March 2012 the claimant was handed by the respondent written notice of termination of her employment signed by the respondent with the last day of her employment stated to be 15 March 2012.

4.	The letter of dismissal indicated that the events that took place on 12 March 2012, specifically the claimant’s admission on that date of the deliberate taking of a sum of money without authorisation, resulted in the respondent being unable to trust the claimant with responsibility for the handling of monies paid by clients and the recording of such sums.  The respondent’s letter stated that theft was listed in the contract of employment as gross misconduct and the claimant was given notice of immediate termination of her employment.  The claimant was advised of her right of appeal. 

5.	The claimant had been employed by the respondent through an informal recruitment process which relied on a recommendation from a family friend.  The claimant had been disciplined in May 2011 by the respondent for failing to accurately record money received from a client and failure to place money received in the cash box.  The claimant’s explanation for the failure was forgetfulness and she received a verbal warning which expired after six months.

6.	On the morning of 12 March 2012 a patient of the respondent made the respondent aware during her treatment that she had purchased a foot cream from the claimant prior to entering the treatment room.  At the lunch break, when the podiatry practice closed for business, the respondent in accordance with her usual practice, checked the cash book and the cash box.  The respondent noted that the purchase of the cream was not recorded in the cash book as required.  Further the sum of money did not appear to have been placed in the cash box.  The respondent removed from the cash box the morning’s takings and placed the cash in a sealed envelope.  The normal cash float of £50.00 was returned to the cash box by the respondent.  The respondent also contacted the client by telephone during the lunch break to confirm that the cream had been purchased and paid for.  The client affirmed that was the situation before the claimant returned to the respondent’s business premises.

7.	The respondent, after two afternoon appointments, took the opportunity to check the cash book to ascertain whether it had been updated to reflect the purchase of a foot cream that morning.  When the respondent discovered that the cash book still had no record of the purchase of the foot cream, she raised the issue with the claimant.  The claimant initially could give no explanation for the absence of the cash and then advised that cash had been given from the cash box to a charity collector.  Upon further questioning the claimant retracted that explanation and indicated that she had taken the money for the foot cream and borrowed a further sum of money from the cash box having placed an ”IOU” for £20.00 in the cash box after her return from lunch.  The claimant knew that prior authorisation was required from the respondent before the claimant could utilise funds in the cash box for charity or for her own use.

8.	By the close of business on that date the respondent found the cash book records had been amended to reflect the purchase of the foot cream by that particular client.  The £20.00 was repaid to the respondent the following day.

9.	The respondent did not speak with the claimant again about the claimant’s actions on 12 March 2012 until 15 March 2012.  In the meantime the claimant continued to have responsibility for the receiving and recording of cash received in connection with the respondent’s business.  The respondent did consult with solicitors regarding this matter which led to the respondent furnishing the letter of dismissal to the claimant on 15 March 2012.  No other meeting was held with the claimant by the respondent prior to the discussion at the close of business on 15 March 2012 when the claimant was advised by the respondent that she was dismissed and handed at the same time the letter giving her notice of termination of her employment.

10.	The claimant was employed at the national minimum hourly rate of pay and normally worked thirty and a half hours per week.  The claimant’s weekly salary before tax and national insurance were deducted was £200.08.  The weekly net wage was £181.55.

11.	The respondent’s written notice of termination of employment dated 15 March 2012 advised the claimant of her right of appeal to be exercised within 3 working days.  The claimant submitted a request for an appeal which was held on 27 March 2012.  The claimant’s letter of appeal made no mention of her ground of appeal or of any inaccuracies stated in the respondent’s letter of dismissal.  The appeal was conducted by the respondent and the appeallate decision maker was also the respondent.  The respondent had arranged for a solicitor to be present as note taker for the appeal hearing.  During this hearing the claimant reiterated one of the earlier explanations for the missing funds namely a donation to charity witnessed by a named client of the respondent’s practice.  Further the claimant claimed that certain postings were entered in the cash book prior to client’s attending for treatment and the cash received in connection with the foot cream had been entered into a “red jotter”.  When the specific jotter was produced at the appeal hearing no such entry could be located by either the claimant or the respondent.  The claimant at the appeal hearing also stated that she had borrowed the sum of £20.00 and apologised as she should have asked permission before borrowing the money.

12.	Subsequent to the appeal hearing the claimant contacted the client named by the claimant as having witnessed the alleged handing over of cash to a charity collector on the morning of 12 March 2012.  The client when contacted did not affirm the claimant’s version of events in that he denied witnessing any such event.  The respondent by letter dated 29 March 2012 advised the claimant of this fact and affirmed that the claimant’s appeal had been unsuccessful and the decision to dismiss would stand.  The respondent stated in this letter that her belief that the claimant had either mistakenly or deliberately failed to record cash received from a client, removed the cash without permission for her own use and altering financial records to conceal the removal of those monies as well as providing false and contradictory explanations led the respondent to conclude that the claimant was guilty of gross misconduct under the terms of her employment.

13.	The note of the appeal hearing was tendered in evidence to the tribunal and all parties indicated that it was a fair reflection of events.  The claimant had no dispute with the respondent in respect of outstanding pay or monies upon the termination of her employment other than her claim for unfair dismissal.  The claimant had not found alternative employment at the date of hearing, other than occasional employment as a domestic cleaner and house minder earning approximately £100.00 per month.

THE RELEVANT LAW AND DECISION

14.	The date of termination is governed by Article 129 of the Employment Rights (Northern Ireland) Order 1996.  As the respondent in this case gave no notice of termination, the date will be the date “termination takes effect” – Article 129 (1) (b).

15.	Under Article 129 (2) where an employer has failed to give the requisite notice under Article 118 and the notice required would, if duly given on the date when the contract was terminated by the employer, mean that the contract of employment would have expired on a date later than the effective date of termination  -  ie, the date it was terminated  -  then the later date is the effective date of termination for the purpose of calculating an award under Article 153 (1).

16.	The reasons set out in Article 130 (2) encompass amongst others conduct.  Article 130A (2) was introduced into the 1996 Order on foot of the Employment (Northern Ireland) Order 2003 (“the 2003 Order”).  This provides that an employee who is dismissed shall be regarded for the purposes of that part of the 1996 Order as unfairly dismissed if the employer has failed to follow the statutory dismissal procedures that are applicable.  This is often termed as the dismissal being automatically unfair.  These statutory dismissal procedures arise from the 2003 Order and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (“the 2004 Regulations”).  Failure to follow any part of the applicable statutory dismissal procedures as provided in the legislation will render a dismissal automatically unfair.

17.	There are two types of procedure that may be followed in respect of dismissals.  One is called the standard procedure which will apply to all cases unless the other, the modified procedure can be shown to apply.  Before the modified procedure can be shown to apply it is necessary to satisfy each and every one of the four 
sub-paragraphs of paragraph 2 to regulation 3 of the 2004 Regulations.  These are:-

“(a)	the employer dismissed the employee by reason of his conduct without notice; and 

(b)	the dismissal occurred at the time the employer became aware of the conduct or immediately thereafter; and

(c)	the employer was entitled in the circumstances to dismiss the employee by reason of his conduct without notice or any payment in lieu of notice; and

(d)	it was reasonable for the employer in the circumstances to dismiss the employee before enquiring into the circumstances in which the conduct took place.” 

18.	Step 1 of the modified procedure is also relevant.  It is set out in Chapter 2 to Schedule 1 of the Employment (Northern Ireland) Order 2003 Order and provides:-

“4.	The employer must –

	(a)	set out in writing – 

		(i)	the employee’s alleged misconduct which has led to the dismissal,

		(ii)	what the basis was for thinking at the time of the dismissal that the employee was guilty of the alleged misconduct, and

		(iii)	the employee’s right to appeal against dismissal, and

	(b)	send the statement or a copy of it to the employee.”

19.	Insofar as is material, Part 1 of Schedule 1 of the 2003 Order sets out the standard procedure which provides:-

“Step 1 : statement of grounds for action and invitation to meeting

1(1)	The employer must set out in writing the employee’s alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.

  (2)	The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.

Step 2 : Meeting

2(1)	The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.

  (2)	The meeting must not take place unless:-

	(a)	the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it; and

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

  (3)	The employee must take all reasonable steps to attend the meeting.

  (4)	After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.”

20.	Even if the dismissal is not automatically unfair, Article 130A(2) of the 1996 Order provides that if there has been any failure by the employer to follow any other procedure that ought to be followed, the dismissal may nevertheless be unfair.  However, if the employer establishes that he would have dismissed the employee even if he had followed a fair procedure, then procedural unfairness, of itself, is not a reason to hold the dismissal to be unfair.  (Alexander  v  Brigden Enterprises Limited [2006] IRLR 422; Kelly-Madden  v  Manor Surgery [2006] EAT/0105/06; Software 2000 Ltd  v  Andrews [2007] IRLR 568.)

21.	Harvey on Industrial Relations and Employment Law, Volume 1, D1 [1550] sets out three different circumstances in which dismissal for a first offence may be justified.  These are:-

	(1)	where the act of misconduct is so serious that dismissal is a reasonable sanction to impose notwithstanding the lack of any history of misconduct.  This is effectively dismissal for gross misconduct;

	(2)	where disciplinary rules of the company have made it clear that particular conduct will lead to dismissal.  This seems to be so even if, without reference to the rules, dismissal would be regarded as unfair; and

	where the employee has made it clear that he is not prepared to alter his attitudes so that a warning would not lead to any improvement.  Again, it seems that if the employee remained silent on the issue of his future intention, or indicated that he would desist from the conduct in the future, dismissal would not otherwise be justified.

22.	Article 130A (2) states that failure by an employer to follow the statutory dismissal procedure shall not be regarded for the purposes of Article 130 (4) of Employment Rights (Northern Ireland) Order 1996 as by itself making the employer’s action unreasonable and therefore unfair if the employer can show that the employee would have been dismissed had the procedure been followed.

23.	Under Article 130 of the Employment Rights (Northern Ireland) Order 1996 the respondent must show that there is a potentially fair reason for the dismissal.  In a case where the reason for dismissal is conduct the tribunal should also determine whether the employer has acted reasonably in all the circumstances in dismissing the claimant.  The tribunal must not substitute its own view for that of the employer.

24.	Article 130 [4] provides as follows:–

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

		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 

		shall be determined in accordance with equity and the substantial merits of the case.“

25.	Alexander and Hatherley  v  Bridgen Enterprises Ltd [2006] IRLR 422 is authority for the proposition that “it is not open to an employer who is in breach of the minimum statutory procedure to contend that even had he complied with them the result would have been the same”.  However, once “the statutory procedures have been complied with, employer are thereafter provided with a defence for failing to comply with fuller procedural safeguards if they can show that dismissal would have occurred anyway even had such procedures been properly followed”.

26.	If an employer fails to follow the statutory dismissal procedure, it was held in Polkey  v  AE Dayton Services Ltd [1998] ICR 142, that the tribunal may reduce the compensatory award by an appropriate percentage to reflect the probability of a dismissal occurring in any event had the statutory procedure been completed.  The exception to this is where the substantive reason for dismissal is redundancy.

APPLYING THE LAW TO FACTS FOUND

27.	The tribunal considered the provisions of Article 130A of the Employment Rights (Northern Ireland) Order 1996 which states that an employee such as the claimant who has been dismissed shall be regarded as unfairly dismissed where the statutory dismissal procedure applied; was not completed by the respondent and the non-completion is wholly attributable to the failure of the respondent to comply with the statutory requirements.  It is clear from the authorities that the statutory procedures represent a minimum standard of fairness.  In Alexander  v  Brigden Enterprises Limited [2006] IRLR 422, Elias J explained the extent of the employer’s obligations at paragraphs 38 and 39 as follows:-

		“At the first step the employer merely has to set out in writing the grounds which lead him to contemplate dismissing the employee, together with an invitation to attend a meeting.  At that stage, in our view, the statement need to do more than state the issues in broad terms … at Step 1 the employee simply needs to be told that he is at risk of dismissal and why.  In a conduct case this will be identifying the nature of the misconduct in issue, such as fighting, insubordination or dishonesty. In other cases it may require no more then specifying, for example, that it is lack of capability or redundancy.  That is consistent, we think, with the approval which this tribunal has adopted in relation to grievance procedures in the Canary Wharf and Other cases.  Of course, most employers will say more than this brief statement of grounds, but compliance with the statutory minimum procedure is in our view met by a limited written statement of that nature.

		It is at the second step that the employer must inform the employee of the basis for the ground or grounds given in the statement.  This information need not be reduced into writing; it can be given orally.  The basis for the grounds are simply the matters which have led the employer to contemplate dismissing for the stated ground or grounds.  In the classic case of alleged misconduct this will mean putting the case against the employee; the detailed evidence need not be provided for compliance with this procedure, but the employee must be given sufficient detail of the case against him to enable him properly to put his side of the story.  The fundamental elements of fairness must be met.”

28.	The tribunal received from the respondent’s legal representative a written submission that addressed whether the respondent’s dismissal was lawful assuming that the statutory dismissal procedure had been complied with by the respondent.  The submission however failed to address the primary question that arose in this case  -  whether the respondent had complied with the statutory dismissal procedure.  It appeared to be a glaring omission in the circumstances of this case.  It was clear to this tribunal that the respondent carried out a certain amount of investigation on 12 March 2012 when she first discovered that the cash received by the claimant had not been recorded correctly and the cash had not been lodged in the cash box by the claimant as required.  However as the respondent furnished the letter of dismissal to the claimant on 15 March 2012 without first having set out in writing the alleged misconduct and inviting the claimant to a meeting, the tribunal had to consider whether  the modified procedure applied to this claim.  The condition set out in paragraph (a) of paragraph 2 to regulation 3 of the 2004 Regulations was satisfied but when the tribunal considered whether “the dismissal occurred at the time the employer became aware of the conduct or immediately thereafter”, the tribunal found it could not say that condition (b) was satisfied in the circumstances of this claim.  The respondent was aware of the conduct on 12 March 2012 but dismissal did not occur until late in the afternoon of 15 March 2012.  Further during that period the claimant continued to carry out all duties, including the receipt of cash from clients, the recording of cash in the cash book and the lodging of cash in the cash box.  The tribunal took cognisance of a decision of an Employment Appeal Tribunal S O’Neil  v  Wooldridge Ecotec Limited UKEAT 0282-07 where a delay of one day between the alleged misconduct occurring and the dismissal led the EAT to conclude that “it was not open to them (meaning the tribunal who had concluded in favour of an employer and their decision was subject of an appeal) to be satisfied (that the modified procedure had been complied with by the employer), as for the modified procedure to apply they required to be, that there had been a dismissal “at the time the employer became aware of the conduct or immediately after it”.  It appeared to this tribunal that “immediately after” can only be attributed it’s simplest meaning.  The respondent in this case took time to consult solicitors, have a letter of dismissal drafted for her consideration and then consider the contents of the draft and sign it as well as allowing a full day of business to be completed on the Thursday before handing the letter to the claimant.  The tribunal concluded that dismissal did not occur immediately after the employer became aware of the conduct which led to the claimant’s dismissal.

29.	Once this tribunal concluded that the modified dismissal procedure did not apply it was incumbent on the tribunal to ask if the standard procedure applied and whether it was complied with.  On the findings of fact, in particular that there was a dismissal without the respondent having first set out in writing the claimant’s alleged conduct and sending it to her with an invitation to attend a meeting to discuss the matter, it is perhaps not surprising that this tribunal was not satisfied that the respondent complied with the standard procedure.  As Elias J pointed out in paragraph 36 of Alexander & Hatherley v Bridgen Enterprises Ltd 

		“It is relevant to bear in mind that once the statutory procedures have been complied with, employers are provided with a defence for failing to comply with fuller procedural safeguards where they can show dismissal would have occurred anyway even had such procedures been properly followed.  This factor in our view militates against allowing the bar for the statutory procedures being set too low.”

	In this case despite the fact that the basic statutory minimum in the words of Elias J is “not set too high”, the respondent failed to meet that minimum threshold and therefore the claimant’s dismissal is automatically unfair.

30.	The tribunal then went on to consider the remedy to be awarded to the claimant.  As discussed by Elias J in Alexander & Hatherley v Bridgen Enterprises Ltd and followed in Kelly Madden  v  Manor Surgery compensation for an automatically unfair dismissal falling within the terms of Article 130 (1A) is modified in two ways – a minimum award of four weeks pay as a basic award where the amount of the award before any reduction would be less than four weeks pay and the requirement to increase any compensatory award by an amount at least equal to 10% but not greater than 50% unless there are exceptional circumstances which would make it unjust or inequitable to do so. 

31.	The question of what would have happened had proper procedures been complied with remains relevant and highly material when assessing compensation.  As the Article 130(2)A defence is not available to the respondent in the circumstances of this case the Software 2000 Ltd  v  Andrews approach is not relevant and instead the only question for this tribunal on the appropriate amount of compensation to be awarded to the claimant is whether the claimant would still have been dismissed even if a fair procedure had been followed.  This is often referred to as the Polkey analysis  -  arising from Polkey  v  A E Dayton Services Ltd [1987] IRLR 503 HL.  The onus is on the respondent as employer to satisfy the tribunal that she would have dismissed the claimant even if fair procedures had been complied with.  In considering this question the tribunal took into account the following facts, the claimant clearly did not properly record cash received on the 12 March 2012, the claimant removed cash from the cash box without prior authorisation from the respondent, the claimant had been instructed on many occasions that prior authorisation was required before removing cash from the cash box for her own use, when challenged by the respondent regarding the missing cash the claimant gave a variety of explanations, none of which stood up to investigation.  The tribunal examined a number of pages of the cash book and noted that there was no other page in the weeks before this incident that had required the use of tippex or modification of the initial entry made by the claimant, thereby undermining the credibility of the claimant with regard to one of the explanations furnished for failing to enter details of the purchase of the foot cream at the same time as the payment made for treatment.  Further the tribunal found the claimant unimpressive in certain aspects of her evidence regarding difficulties with a previous employer to the respondent.  Further the claimant acknowledged in answer to a panel member that she knew her actions were misconduct as she had not put the money in the records and cash box but she had expected a written warning.  The tribunal were satisfied that had proper procedure been followed given the size of the respondent’s business and the need for trust and integrity in the handling of cash between employer and employee, the claimant was likely to have been invited to a disciplinary hearing by the respondent on 20 March 2012 with notice of dismissal with immediate effect being given on 22 March 2012 or thereabouts.

32.	The tribunal considered Articles 17 to 20, 146, 152, 153, 154 (1A) and (1B) and 157 to 162 of the Employment Rights (Northern Ireland) Order 1996.  The tribunal considered the provisions for adjustment of awards where there has been 
non-completion of the statutory procedure as detailed in Articles 17, 23 and 29 of the Employment (Northern Ireland) Order 2003.  There was a clear flouting of the Statutory Dismissal Procedure by the respondent.  There was no break in the claimant’s continuity of employment.  The claimant had three complete years of service, commencing when she was aged 53 years.  This would have entitled the claimant to one and a half week’s gross pay for each of the three years service as the basic award.  In the circumstances of this case the tribunal considered and determined that the enhanced award in accordance with the provisions of Article 154 (1A) and (1B) of the Employment Rights (Northern Ireland) Order 1996 as amended was not required.

33.	The claimant is entitled to a payment representing four and a half weeks gross pay  – 4.5  x  gross weeks pay namely £200.08  =  £900.36

COMPENSATORY AWARD

34.	The evidence before the tribunal leads to the conclusion, on the balance of probabilities, that had the respondent followed a fair procedure the claimant would have been dismissed in any event, perhaps within a week of the actual date of termination, but still without notice or monies in lieu of same.  The clear reason for dismissal was the fact that the respondent was running a cash rich business and her sole employee’s main duties concerned the handling and safekeeping of cash.  It was essential in such circumstances that the respondent be able to trust and rely on the employee’s honesty and integrity and as a result of the claimant’s conduct on 12 March 2012 and the variety of inaccurate explanations for her conduct the respondent no longer felt able to repose any reliance on the claimant.  The failure to follow the statutory dismissal procedure prevented the claimant from receiving pay for at least a further one week period.  It appeared to the tribunal that it was “just and equitable” to restrict the claimant’s loss due to the actions of the respondent to the loss of pay for that one week period.  The claimant was entitled to one week’s net pay being £181.55 reflecting the period it would have taken for a statutory dismissal procedure to be implemented.  In the circumstances of this case the tribunal does not consider that it would be just and equitable to include any further monies for future economic loss.

35.	The tribunal is satisfied that the provisions of Article 17 (3) of the 2003 Order are satisfied.  Article 158A is clear that this duty to increase arises in respect of the compensatory award (Article 152 (1) (b)).  There are no exceptional circumstances in this case that would make a requisite increase in the compensatory award unjust or inequitable.  There is little guidance as to the factors to be taken into account in determining whether it is just and equitable in all the circumstances to increase any award from the prescribed ten percent by an amount that does not exceed fifty percent.  This tribunal has taken into account the social policy that underlies the introduction of this statutory procedure and the circumstances of this case.  The picture the tribunal has obtained of the respondent is that the respondent could not be said to have had a cavalier attitude to her statutory obligations although the tribunal noted that it was not until some three years into the claimant’s employment that the respondent complied with Article 36 of the Employment Rights (Northern Ireland) Order 1996 and provided the claimant with a written statement of her main terms and conditions of employment.  This tribunal has concluded that this case is as suitable a case as any that might arise in the future where it is just and equitable to increase any award that may be made.  It is difficult to envisage all the circumstances, due to the lack of case law on this issue, where an increase over and above the ten percent might arise but this tribunal determined that this was not such a case and considers the appropriate uplift in the compensatory award in this case is ten percent.

	Basic Award 

	4.5 x weeks pay @ £200.08  =	   £900.36

	Compensatory Award

	Loss of earnings reflecting

	One week’s net pay @ £181.55  =	   £181.55

	10% increase on £181.55 (as per Article 158A)  =	     £18.15

	Total Award:	£1,100.06

36.	The Employment Protection (Recoupment of Job Seeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996 do apply to this decision.  Your attention is drawn to the Notice attached which forms part of the decision of the tribunal.

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

Chairman:

Date and place of hearing:       10 October 2012, Belfast.

Date decision recorded in the register and issued to the parties:

Case Ref No:    1098/12

CLAIMANT:	Carol Guthrie

RESPONDENT(S):	Catherine McClure t/a Ballymoney Foot Clinic

ANNEX TO THE DECISION OF THE TRIBUNAL

STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME –RELATED EMPLOYMENT AND SUPPORT 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; The Social Security (Miscellaneous Amendments No.6) (Northern Ireland) 2010.

	£	
(a)  Monetary award	£1,100.06	
(b)  Prescribed element	£181.55	
(c)  Period to which (b) relates:	15 March 2012  –  22 March 2012	
(d)  Excess of (a) over (b)	£918.51	

	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, Income-related Employment and Support 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, Income-related Employment and Support 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.