THE INDUSTRIAL TRIBUNALS

CASE REF:	  6463/09

CLAIMANT:			Martin Lyttle

RESPONDENT:		Nortel Networks UK Ltd (in administration)

DECISION 

The claimant’s unfair dismissal claim is well-founded.  It is ordered that the respondent shall pay to the claimant the sum of £7,989 in respect of that dismissal. 

Constitution of Tribunal:

Employment Judge (sitting alone):	Employment Judge Buggy

Appearances:

The claimant was represented by Mr Andrew Stephens.

The respondent was not represented.

REASONS

1.	I refer to my decision in Murdock v Nortel Networks UK Ltd (in administration) (case reference no: 6614/09, decision issued on 23 October 2014).  Below, any reference to the “Murdock Decision” is a reference to that decision.  

2.	This Decision should be read in conjunction with the Murdock Decision.

3.	This Decision should be read as though the contents of paragraphs 1-9 inclusive of the Murdock Decision were set out immediately below.

The breach of contract claim

4.	This decision is concerned only with this claimant’s claim of unfair dismissal.  In these proceedings, this claimant also has a pending claim for breach of contract.  That is a claim relating to an alleged contractual entitlement to redundancy pay, over and above the statutory redundancy pay entitlement.  (That statutory entitlement has of course already been the subject of a successful application to the Department for Employment and Learning).  The claimant is not abandoning that contractual redundancy claim.  However, the claimant and the administrators are agreed that there is no need for an industrial tribunal adjudication in respect of that claim; instead, the claimant and the administrators expect that the matter can in due course be resolved, between them, during the course of the insolvency process.  

The history of this claim

5.	This Decision should be read as though paragraphs 13-17 of the Murdock Decision were set out immediately below.

This claim

6.	This claimant was one of the Northern Ireland employees of Nortel who were dismissed, ostensibly on the ground of redundancy, in March 2009.  The claimant says that he was unfairly dismissed.  This is my decision in respect of that unfair dismissal claim.

Liability

7.	By email dated 14 July 2014, Ms Amanda Rowe, on behalf of the administrators, confirmed that they do not contest claims made in respect of unfair dismissal, against the respondent, by any Northern Ireland claimants. 

8.		Because the respondent is not contesting the unfair dismissal claim, I have jurisdiction to hear that claim as an employment judge sitting alone.

9.	It is clear that the respondent did not comply with the statutory dismissal procedure.  Accordingly, on that ground alone, the dismissal is unfair. 

Compensation issues

10.	I refer to paragraph 22 of Murdock, which sets out the compensation issues which had to be determined in that case.  All of the issues there specified also have to be addressed in the circumstances of this case, with the exception of the issue relating to “grossing-up”.     

The course of the proceedings

11.	For costs reasons, the administrators have decided not to participate in these proceedings.  

12.		The evidence in this case mainly consisted of the oral testimony of the claimant.  During the course of that testimony, he referred to a written schedule of loss (“the Schedule”), which sets out the compensation claimed by him.  The amounts set out in the Schedule were subject to some amplification and modification during the course of the testimony.  The Schedule, as so modified, has provided a useful basis for assessing compensation in this case.

13.	Mr Stephens has had the benefit of advice and guidance from Mr Francis Bondoumbou.  I have also received written submissions (“Submissions”) which Mr Bondoumbou drafted.  I have taken those Submissions into account in deciding this case.

14.	At paragraph 26 of Murdock, I refer to the judgment of an employment judge in England, sitting at Reading, in respect of various unfair dismissal claims, which were heard in 2012, and which were brought by ex-employees of Nortel who had been made redundant in Great Britain in 2009.  In arriving at my conclusions in this case, I have had regard to the statement of applicable legal principles which was set out in the Reading judgment.

General

15.	This Decision should be read as though the contents of paragraphs 28-31 of Murdock were set out immediately below.  

Loss

16.	Pursuant to Article 157(1) of ERO, this claimant is clearly entitled to recover in respect of any loss sustained by him in the past, provided that any such loss has been sustained in consequence of the dismissal, and is attributable to the dismissal.  

17.	I was satisfied that the extent of this claimant’s recoverable loss of earnings, from the date of his dismissal until 31 January 2013 (see below) was £4,976.  To that sum, I have added £350, for loss of statutory rights.  The aggregate of those two sums is £5,326.  	

18.	The claimant was dismissed on 30 March 2009.  In assessing his loss, I have taken no account of any loss sustained by him during the nine weeks beginning on the date of dismissal, because he has already received, from the Department for Employment and Learning, a sum in respect of notice pay, in relation to that period.  Accordingly, in the circumstances of this particular case, the period which is relevant for the calculation of loss (“the relevant period”) began upon the expiration of nine weeks after the date of dismissal.   

19.	Since 31 January 2011, the claimant has been earning a weekly net salary which is greater than the weekly net salary which Nortel was paying him at the time of his dismissal.  Accordingly, in this case, the relevant period ends on 31 January 2013.  In respect of the relevant period, I am satisfied that the claimant’s net loss (the salary which he would have been paid if he had still been employed by the respondent, less the salaries which he was paid in post-dismissal employment) amounted to £4,976.  

20.	I refer to paragraph 32 and paragraphs 35-37 of the Murdock Decision.  This Decision should be read as though those paragraphs were set out immediately below.  

21.	I deal with the possible application of the Polkey principle later in this decision.  Subject to the possible application of that principle, I was satisfied that the cause of this claimant’s losses during the relevant period (as specified above) was the unfair dismissal and that the loss claimed for in respect of that dismissal is loss attributable to that dismissal.

22.	I refer to paragraphs 39-43 of the Murdock Decision.  This decision should be read as though those paragraphs were set out immediately below.  

Polkey?

23.	This Decision should be read as though paragraphs 49-56 of Murdock were set out immediately below.  

24.	Because of the factual circumstances noted in those paragraphs of Murdock, and because of the legal principles set out in those paragraphs, I have concluded in this case that there should be no Polkey deduction from the claimant’s compensation.  

An Article 17 uplift?

25.	This Decision should be read as though the contents of paragraphs 57-66 of the Murdock Decision were set out immediately below.  

26.		Against the background set out at paragraphs 57-66 of the Murdock Decision, and having had regard in particular to the Wardle (2) judgment, I have decided that this claimant is entitled to an uplift of 50 per cent pursuant to Article 17 of the Employment (Northern Ireland) Order 2003.

27.	That uplift increases the amount of the compensatory award by £2,663.  (See paragraph 17 above). The aggregate of £5,326 and £2,663 is £7,989.

Summary and overall conclusions

28.	I have assessed the claimant’s recoverable loss as amounting to £5,326, including the sum of £350 in respect of loss of statutory rights.  (See paragraph 17 above).

29.	That figure of £5,326 is not subject to any “Polkey” reduction.

30.	That figure of £5,326 is however subject to a 50 per cent increase, pursuant to Article 17 of the Employment (Northern Ireland) Order 2003.  (See paragraph 26 above).

31.	Accordingly, this claimant is entitled to a compensatory award of £7,989 (which is the sum of £5,326, after being subjected to the 50 per cent uplift mentioned at paragraph 26 above).

Recoupment of benefit from awards

32.	The Recoupment Regulations apply.  Attention is drawn to the notice below, which forms part of this Decision.  The prescribed element is £7,639.  The prescribed period is the period from 1 April 2009 until 6 November 2014.  The amount by which the monetary award exceeds the prescribed element is £350.

Interest on industrial tribunal awards

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

Employment Judge:       

Date and place of hearing:  6 August 2014, Belfast 

Date decision recorded in register and issued to parties: