THE INDUSTRIAL TRIBUNALS  

CASE REF:    3000/11 

CLAIMANT:	Michael McIlwaine

RESPONDENT:	Bridge BP Realisations Limited (formerly Barretts Priceless Ltd) in administration 

DECISION ON REMEDY

The unanimous decision of the tribunal is that the claimant is awarded the amount of £31,523.01 by way of compensation. 

Constitution of Tribunal:

Chairman:	Mr S A Crothers

Members:	Ms A Hamilton
	Mrs K McCrudden

Appearances:

The claimant was represented by Miss L Askin, Barrister-at-Law, instructed by PJ McGrory & Co Solicitors.

The respondent did not present a response to the tribunal.

1.	Background

	(i)	On 8 February 2012 a default judgement was made against Barretts Priceless Ltd and contained, inter alia, the following terms:-

			“The time for presenting a response having expired, without any response having been entered, I find that the claimant’s complaint of unfair dismissal is upheld”.  

	(ii)	The title of the respondent is amended to that shown above.

	(iii)	Deloitte LLP, in correspondence to the tribunal office, received on 16 February 2012, advised that Neville Kahn, Adrian Berry and Daniel F Butters were appointed joint Administrators to the respondent.  Deloitte subsequently consented to the proceedings continuing against the respondent in correspondence to the claimant’s solicitors dated 30 April 2012.  

	(iv)	The tribunal sought to clarify certain aspects of the schedule of alleged loss with the claimant’s solicitors subsequent to the hearing.  It also finally received correspondence from the claimant’s solicitors on 17 August 2012, enclosing correspondence from Xtravision dated 15 August 2012, which stated that Xtravision does not and does not intend to contribute to a pension for the claimant.

2.	The Issue
	
	The issue before the tribunal was as to what remedy, if any, the claimant was entitled to.

3.	Sources of Evidence

	The tribunal heard evidence from the claimant and considered correspondence and documentation referred to in the course of evidence.

4.	Findings of Fact

	Having considered the evidence insofar as same related to the issue before it, the tribunal made the following findings of fact on the balance of probabilities:-

	(i)	The claimant’s date of birth is 9 February 1971.  He commenced employment with Barretts Priceless Limited in July 1993 and, at the effective date of termination of his employment on 16 September 2011, was employed as the Regional Sales and Operations Manager.  
	
	(ii)	The claimant’s gross weekly wage was £927.69.  His net weekly wage, (to include the amount which he paid towards his pension on a weekly basis, of £30.00) was £803.08.  His employer’s contribution to his pension was £50.00 per week.  

	(iii)	The claimant was entitled to receive the following payment from Barretts Priceless Limited:-

Statutory redundancy payment 18 weeks @ £400	  £7,200.00

Notice pay @ 3 months 	£13,000.00

Health care scheme for notice period 	     £155.00

Car allowance for notice period 	  £1,950.00

Employer’s pension contribution for notice period 	     £650.00

Fuel card for notice period 	     £600.00

Total	£23,555.00

The claimant was paid £23,550.

	(iv)	The claimant did not claim a basic award.  He maintained that had he not been unfairly dismissed, he would have continued to be employed and would have transferred under the Transfer of Undertaking’s Regulations to the new company.  On the evidence before it, and in light of the default judgement on liability, the tribunal was not in a position to establish if or when the claimant would have been fairly made redundant at a later date, but had to rely on the claimant’s uncontradicted evidence before it in relation to continuity of employment.

	(v)	The claimant obtained new employment on 16 April 2012 as a District Manager with Xtravision.  He has been placed on a six month probation period and had no reason not to believe that he could remain with Xtravision after that date and have permanent employment.  Furthermore the correspondence referred to at paragraph 1(iv) above indicates that he is unlikely to have the benefit of pension contributions from Xtravision.  In his current job he does not have a car allowance but has the benefit of a company car and his new employer also covers fuel costs.  He does not however have health care cover in his new job.  He previously received £11.92 per week in respect of health care from Barretts Priceless Limited.  

5.	The Law

	The law in relation to the compensatory award is set out in Article 157 of the Employment Rights (NI) Order 1996.  The tribunal also considered the cases of Scope  v  Thornett (2007) IRLR 155 CA and Delanair Ltd  v  Mead (1976) IRLR 340 EAT, and the case of Young’s of Gosport Ltd  v  Kendell (1977) IRLR 433 EAT.

6.	Submissions

	The tribunal considered oral and written submissions on behalf of the claimant.

7.	Conclusions

	The tribunal, having carefully considered the evidence together with the submissions and having applied the principles of law to the findings of fact, awards the claimant a compensatory award as follows:-

	[The claimant has already been paid 3 months notice pay up to 16/12/2011].

	Loss of wages from 16 December 2011 until
the commencement of new employment on
16 April 2012  =  17.5 weeks  x  £803.08	= 	£14,053.90

	Loss of wages from 16 April 2012 to date
of hearing (13 June 2012) 8.5 weeks  x  £803.08  -
£598.38  =  8.5  x  £204.70 	=	   £1,739.95

	Total  	= 	£15,793.85

	The tribunal is satisfied that it is just and equitable
to award the claimant an additional amount for
future loss of:-

	52 wks x £204.70  	=	£10,644.40

	Loss of health care benefits – loss from
16 December 2011 until 13 June 2012  
=  26  x  £11.92 	=	     £309.92
	
	Future loss 52 wks x £11.92 	=	     £619.84

	Total			=	     £929.76

	Pension loss from 16 December 2011 to 13 June 2012 = 26 x £50 	=	   £1,300.00

	Future loss = 52 x £50 	=	   £2,600.00

	Loss of statutory rights 	=	     £250.00

	Balance awarded to claimant on termination	=	         £5.00

	Total loss amount	=	£31,523.01
	
	The Employment Protection (Recoupment of Job Seekers Allowance and Income Support) Regulations (Northern Ireland) 1996 apply.  The award is therefore subject to recruitment of Job Seekers Allowance amounting to £1,253.58 over the prescribed period.  The attached recoupment notice forms part of the decision of the tribunal.	

8.	This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (NI) 1990.

	Chairman:

	Date and place of hearing:  14 June 2012, Belfast.

	Date decision recorded in register and issued to parties: