Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:     6614/09

 

 

 

CLAIMANT:                      Ronnie Murdock

 

 

RESPONDENT:                Nortel Networks UK Ltd (in administration)

 

 

 

Certificate of Correction

 

In the Decision issued on 23 October 2014, at paragraph 87, “23 October 2014” is substituted for “1 November 2009.”

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EMPLOYMENT JUDGE:__________________________________________

 

Date:_______________________________________

 

DECISION

 

The claimant’s unfair dismissal claim is well-founded.  It is ordered that the respondent shall pay to the claimant the sum of £66,200 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.               For the general context to this case, see paragraphs 1-15 of the decision of an industrial tribunal in Mathews and Others v Nortel Networks UK Ltd (in administration) and Others [2014] NIIT 06598 009IT.  What follows is by way of summary of that context. 

 

2.               The respondent, Nortel Networks UK Ltd (which is referred to below simply as “Nortel”) entered into administration by order of the English High Court on 14 January 2009.  That administration is still continuing. 

 

3.               Nortel is part of the wider Nortel Group (referred to below simply as “the Group”).  That group is headed by the Nortel Networks Corporation (the ultimate holding company in the Group).  On 14 January 2009, the Corporation (together with some of its Canadian subsidiaries) sought protection under Canadian bankruptcy law in order to facilitate a reorganisation of the Group for the benefit of its creditors.  On the same day, Nortel Networks Inc (a private company, incorporated in the United States, which was the primary US operating company of the Group) and associated companies filed voluntary petitions in the Delaware Bankruptcy Court, seeking the protection of Chapter 11 of the United States Bankruptcy Code. 

 

4.               In January 2009, the Group was a global supplier of networking solutions, its business being based upon: (1) the development, licensing and maintenance of intellectual property; (2) the marketing of telecommunications, computer networks and software products; and (3) services based on that intellectual property. 

 

5.               In January 2009, the Group operated on a highly integrated basis, across multiple jurisdictions; that was the reason why there were co-ordinated insolvency filings.  The order of the English Court extended not only to Nortel, but also to 18 associated companies operating in separate European jurisdictions (all of whom had their Centre of Main Interest within the jurisdiction of the courts of England and Wales). 

 

6.               According to the Nortel administrators, the position was as follows.  At the outset, the object of the administration was to rescue the business of Nortel as a going concern.  This required participation in a series of co-ordinated asset sales involving a reorganisation of various individual global business lines of the Group.  This of itself involved the maintenance of the various businesses pending sale and the provision of transitional services following any sale. 

 

7.               On 30 March 2009, the joint administrators of Nortel gave notice terminating the employment of 89 people employed at Nortel’s premises in Monkstown, Newtownabbey, ostensibly by reason of redundancy.  In June of that year, another substantial group (amounting to approximately 20 staff), also employed at Monkstown, were also made “redundant”.  In March and June of 2009, many of the Nortel employees based in England and Wales were also made redundant. 

 

8.               All of the employees who were made redundant by Nortel in Northern Ireland in 2009 have benefitted from protective awards which were made by an industrial tribunal in January 2011.  Many of those employees applied to the Department for Employment and Learning (“the Department”) for payments, in the Department’s capacity as the statutory guarantor in respect of certain employment debts.  Pursuant to those applications, most of those employees have received payments from the Department in respect of holiday pay, notice pay and redundancy pay and also in respect of a protective award. 

 

9.               Unfair dismissal compensation is, however, outside the scope of the statutory guarantee.

 

The breach of contract claim

 

10.           This decision is concerned only with this claimant’s claim of unfair dismissal, which was brought pursuant to Article 145 of the Employment Rights (Northern Ireland) Order 1996 (“ERO”). 

 

11.           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). 

 

12.           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 the contractual redundancy pay claim; instead, they expect that the matter can in due course be resolved, between the claimant and the administrators, during the course of the insolvency process. 

 

The history of this claim

 

13.           Originally, the administrators were refusing to grant permission in respect of the pursuit of any employees’ claims.  Unite the Union took proceedings in the English High Court challenging that refusal.  (The judgment in that litigation is Unite the Union v Nortel Networks UK Ltd (in administration) [2010] IRLR 1042).  While that litigation was still pending, the administrators granted consent for the pursuit of Article 217 complaints, and for the pursuit of equivalent complaints in Great Britain.  (Article 217 complaints are complaints brought under Article 217 of ERO, in respect of an alleged breach of the requirements of Article 216 and/or of Article 216A of the 1996 Order). 

 

14.           In January 2012, the administrators announced that permission was now being granted to the Northern Ireland employees (and also to the GB employees) to pursue any pending employment tribunals complaints that they wished to pursue.    

 

15.           This hearing, in respect of this claimant’s unfair dismissal claim, was held long after that “general” grant of permission.  Why the delay?  For two main reasons. 

 

16.           First, all the Northern Ireland claimants initially agreed that no useful purpose would be served by holding unfair dismissal claims hearings until it became clear whether there would be a dividend to unsecured creditors and, if so, the extent of that dividend.  (Unfair dismissal awards are unsecured claims in the context of an administration).  The appropriateness of that first reason for delay has diminished over the years, mainly because of the following factors:

 

(1)      According to the administrators, even after all the time which has elapsed since March 2009, they are still unable to give any useful indication as to the amount of any likely dividend payable to unsecured creditors, and are still unable to indicate a likely timescale within which any useful guidance as to the likely amount of any dividend might become available. 

 

(2)      All of the claimants who are currently represented by Mr Stephens (including this claimant) now want an industrial tribunal to arrive at conclusions in relation to their respective unfair dismissal claims. 

 

17.           Secondly, all parties (including all the claimants now represented by Mr Stephens) were agreed that the unfair dismissal claims should not be the subject of hearings until there has been a final resolution of questions as to whether or not various TUPE transferees should be joined as respondents to the unfair dismissal claims of various relevant claimants.  Those issues were resolved in the late Spring of 2014.

 

 

 

 

This claim

 

18.     This claimant was one of the Northern Ireland employees of Nortel who were dismissed, ostensibly on the ground of redundancy, in March 2009.

 

Liability 

 

19.     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. 

 

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

 

21.     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

 

22.     In assessing the amount of any unfair dismissal compensation which is due to this claimant, the key issues can be summarised as follows:

 

(1)           How should past loss be quantified?

 

(2)           In assessing the extent of past loss, what are the practical implications, if any, of rules relating to mitigation and causation?

 

(3)           Is the claimant entitled to any amount in respect of future loss and, if so, how much?

 

(4)           Should the claimant’s compensation be reduced pursuant to the Polkey principle?

 

(5)           Should the amount of compensation be increased pursuant to Article 17 of the Employment (Northern Ireland) Order 2003 (“the 2003 Order”) and, if so, by how much?

 

(6)           Should the amount of compensation be “grossed up”?

 

          Those issues are all addressed below.

 

The course of the proceedings

 

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

 

24.     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.

 

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

 

26.     In 2012, various unfair dismissal claims, brought by ex-employees of Nortel who were made redundant in Great Britain in 2009, were heard by an employment judge sitting at Reading.  Those claims were the subject of a written judgment (“the Reading judgment”) by Employment Judge Gumbiti-Zimuto; that judgment was issued on 26 April 2012.  During the course of this hearing, my attention was drawn to the Reading judgment. 

 

27.     In arriving at my conclusions in this case, I have had regard to the statement of applicable legal principles in the Reading judgment.

 

General

 

28.     The claimant received a payment in respect of redundancy from the Department.  Accordingly, as Mr Stephens realistically recognised, this claimant is not entitled to the basic award element of unfair dismissal compensation.  (See Article 156(4) of ERO).  Therefore, in this case, I must focus on calculating the amount of any compensatory award due to the claimant in respect of his unfair dismissal.    

 

29.     The effect of Article 158(1) of ERO, combined with the effect of the Employment Rights (Increase of Limits) Order (Northern Ireland) 2009 [SRNI 2009/45] (“the 2009 Order”), in respect of dismissals in March and June 2009, is that the amount of any compensatory award made under Article 157 of ERO must not exceed £66,200.

 

30.     In the circumstances of this case, any compensatory award has to be assessed pursuant to Article 157 of ERO. 

 

31.     Article 157(1) provides that, subject to certain provisions which are not relevant in the present context, the amount of the compensatory award:

 

                    “... shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the [claimant] in consequence of the dismissal in so far as that loss is attributable to action taken by the employer”.

 

Past and future loss

 

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

 

33.     I was satisfied that the extent of this claimant’s recoverable loss of earnings, from the date of his dismissal until the date of this hearing, was £38,472 (subject, however, to any application of the Polkey principle).

 

34.     The claimant was dismissed in March 2009.  He was on Jobseeker’s Allowance from April 2009 until September 2009.  Since then, he has been continuously employed, although at much reduced salaries (in comparison with the salary which he enjoyed while employed in Nortel).  I have no doubt that the difference between the salaries which he has earned since the date of dismissal, and the salary which he would have earned if he had not been dismissed, is the result of the unfair dismissal.  I have no doubt that he has done his best to mitigate his loss.  In assessing his past loss, I have taken no account of the loss sustained by him during the 12 weeks after the date of dismissal, because he has already received, from the Department, a sum in respect of notice pay.  (The claimant was entitled to 12 weeks’ notice pay).  During the period beginning 12 weeks after the date of dismissal and ending on the date of assessment (5 August 2014), the claimant’s net pay, if he had still been employed by Nortel, would have been £119,000 approximately.  During that period, when his earnings from post-dismissal are taken into account, he lost £38,122.  To that sum, I have added £350 in respect of loss of statutory rights.

 

35.     Article 157(4) provides that, in ascertaining the loss referred to in paragraph (1) of that Article, the tribunal is to apply the same rule:

 

                    “... concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of Northern Ireland”.

 

          It is clear law that, in relation to any failure to mitigate, the onus of proof rests upon the respondent.  In the circumstances of this case, any such onus has not been discharged. 

 

36.     However, that is not the end of the matter.  Even if a failure to mitigate has not been proven, I still have to be satisfied, on the balance of probabilities, that the loss complained of is loss which was sustained in consequence of the dismissal, and that it is a loss “attributable to” action taken by the employer.  (See Article 157(1), already referred to above). 

 

37.     In the English Court of Appeal, in Dench v Flynn and Partners [1998] IRLR 653, Sir Christopher Staughton made the following relevant observations:

 

                    “What has to be assessed in terms of [the GB equivalent of Article 157(1) of ERO] is 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 ...

 

                    That is the ordinary common sense test of the common law.  Was the loss in question caused by the unfair dismissal or by some other cause?  The tribunal must ask itself and answer that question and then ask what amount it is just and equitable for the employee to recover”.

 

38.     I deal with the possible application of the Polkey principle below.  Subject to the possible application of that principle, I am sure that the cause of this claimant’s post-dismissal losses (as specified at paragraph 33 above and at paragraph 45 below) was due to the unfair dismissal and that the loss claimed for in respect of that dismissal is loss attributable to that dismissal.

 

39.     In Whelan v Richardson [1998] IRLR 114, the point was made that, in the context of a claim for an unfair dismissal compensatory award, the assessment of loss has to be judged on the basis of the facts as they appear at the date of the assessment hearing (the date on which the tribunal or employment judge carries out the assessment in respect of the loss which is claimed). 

 

40.     In most unfair dismissal cases, the remedies hearing takes place within about six months of the date of the dismissal.  So this is a very unusual case, because the amount of the compensatory award in this case is being assessed more than five years after the date of the dismissal.  However, in my view, in assessing loss in this case, I am carrying out precisely the same task as I would have had to carry out if the compensatory award in this case was being assessed in September 2009.

 

41.     If I had been assessing compensation in this case in 2009, I would have had to arrive at a view as to what I thought was likely to happen, in relation to the claimant’s income, during the period beginning in October 2009.  Because of the lengthy delay in assessing the claimant’s compensatory award claim, I now have the advantage of knowing precisely what did happen during the period from September 2009 until September 2014.

 

42.     Accordingly, I know much more now than I would have known if I had been assessing the amount of compensation in this case in September 2009; and I am obliged to take account of that knowledge.  (See paragraph 39 above).

 

43.     In Whelan v Richardson, Judge Peter Clark set out the following principles:

 

          “...   

 

          (2)      Where the applicant has been unemployed between dismissal and the assessment date then, subject to his duty to mitigate and the operation of the recoupment rules, he will recover his net loss of earnings based on the pre-dismissal rate.  Further, the industrial tribunal will consider how long the loss is likely to continue so as to assess future loss. 

 

          (3)      The same principle applies where the applicant has secured permanent alternative employment at a lower level of earnings than he received before is unfair dismissal.  He will be compensated on the basis of full loss until the date on which he obtained the new employment and thereafter for partial loss, being the difference between the pre-dismissal earnings and those in the new employment.  All figures will be based on net earnings.

 

          ...”

 

44.     In assessing future loss in this case, I have to carry out the task contemplated in the last sentence of point (2) of the quoted extract from Whelan. 

 

45.     In the circumstances of this case, I have calculated the amount of the claimant’s future loss, subject to any application of the Polkey principle, at £4,966. 

 

46.     I have arrived at that figure because I have concluded that the claimant’s current rate of relevant loss (the rate of loss currently being sustained in consequence of the dismissal, being loss that is attributable to the dismissal) will continue at the current rate for a further 12 months, beginning on the date of the unfair dismissal hearing. 

 

47.     In arriving at the latter conclusion, I have taken account in particular of two factors.  First, I have taken account of what has happened during the lengthy period which has elapsed since the date of dismissal.  Secondly, I have taken account of the extent of the economic difficulties in which Northern Ireland still finds itself, particularly in respect of the types of jobs for which the claimant is qualified.

 

48.     The total of the sums specified above (at paragraphs 33 and 45) is £43,438.

 

Polkey?

 

49.     Should the amount specified in the last preceding paragraph be reduced, as a result of the application of the Polkey principle?

 

50.     At paragraph 44 of its judgment in Software 2000 Ltd v Andrews [2007] IRLR 568, the Employment Appeal Tribunal described the following judicial guidance (as set out in earlier judgments) in relation to what it described as “the Polkey approach”:

 

                    “... [T]he Polkey approach – assessing what would have happened had the dismissal been fair – was wholly consistent with the principle of assessing of loss flowing from the dismissal on a just and equitable basis, which is the principle underlying [the GB equivalent of Article 157].  These should be approached as “a matter for the common sense, practical experience and sense of justice of the employment tribunal sitting as an industrial jury” ... the employment tribunal’s task was “to construct, from evidence not speculation, a framework which is a working hypothesis about what would have occurred had the [employer] behaved differently and fairly”.

 

51.     As Underhill P pointed out at paragraph 18 of the Employment Appeal Tribunal judgment in Compass Group PLC v Ayodele [2011] IRLR 802:

 

                    “The real question here is about how a Polkey point ought to be raised.  The primary burden is no doubt on the employee to prove his loss.  In the ordinary case, however, that burden is discharged simply by showing that he has been (unfairly) dismissed, since that prima facie establishes that he has lost the earnings that he would have received had the employment continued: the loss is in principle indefinite, at least up until the natural terminus of retirement – though of course in practice it will usually be limited by reference to the time it has taken, or should have taken, for him to find a new job at the same rate of pay.  If the employer wishes to rely on the fact, or the chance, that the earnings would have been lost at some earlier date for some particular reason ... it is for the [employer] to raise that contention and to support it with any evidence that may be necessary (though often the relevant evidence will overlap with what is in any event before the tribunal for other purposes) ...”.

 

52.     In Pinewood Repro Ltd (t/a Country Print) v Page [2011] ICR 508, it had been contended on behalf of the employer that, because a third of relevant staff were being made redundant, the claimant had had a one-in-three chance of being made redundant, and that that percentage chance should therefore have been taken into account, in reducing the claimant’s compensatory award, on the basis of the Polkey principle.

 

53.     That contention was the subject of robust argument, on behalf of the claimant, in terms which were mentioned at paragraph 42 of the EAT judgment:

 

                    “42.  Finally, in relation to the Polkey issue, the guidelines in [Software] make it clear that it is for the employer to adduce relevant evidence on which he wishes to rely to show that the employee would or might have ceased to be employed in any event.  The tribunal in this case had found that there was no cogent evidence to enable them to attempt to reconstruct “what might have been” (see Software paragraph 54 (3)).  Simply because there were three possible candidates with close marking did not mean that there was a one in three chance that the Respondent would be dismissed ...”.

 

          At paragraph 47 of its judgment, the EAT, in essence, endorsed those arguments:

 

          “47.  Accordingly, we cannot find fault with the tribunal’s determination [on a scoring issue] nor do we find fault on the Polkey issue.  At the end of the day, the tribunal determined that there was no cogent evidence from the employer as to whether he would have been dismissed in any event, leaving only the evidence from the claimant which suggested that he would not have been dismissed in the redundancy selection exercise and that actually that possibility was clearly accepted by the tribunal.  We, therefore, agree that there was no cogent evidence which would have allowed the Tribunal to speculate with the degree of certainty suggested in the Software case.  In our view, the “one in three argument” is completely fallacious – it is not evidence based”.

 

54.     In this case, I have assumed (in favour of Nortel) that it is contending that the compensatory award should be reduced in line with the Polkey principle. 

 

55.     However, in this case, I have received no evidence which provides a proper foundation for any reduction of the amount of the compensatory award, on account of any possibility that, even if the claimant had not been unfairly dismissed, (when he was in fact unfairly dismissed) he would have been, or might have been, fairly dismissed:

 

(a)            at that time,

 

(b)            at some date thereafter.

 

56.     As already noted above, the respondent has conceded, and I have decided, that this dismissal was unfair because the statutory dismissal procedure was not followed.  However, it is clear that this dismissal was also unfair because there was no individual consultation with the claimant in relation to his selection for redundancy.  The fact that a substantial proportion of the staff of the respondent at Monkstown were made redundant in 2009 is a fact which does not in itself provide any adequate evidential basis for concluding that the claimant’s compensatory award should be reduced to reflect some percentage chance that he could or would have been fairly dismissed, by reason of redundancy, either at the time when he was actually dismissed, or at some later date.  (I simply do not know whether Nortel’s choice of redundancy pools was fair, whether the relevant redundancy process was in many respects carried out fairly, or whether it was carried out through an entirely unfair process).  My understanding is that Nortel no longer operates in Northern Ireland.  My understanding is that most, if not all, of the “remaining” Nortel staff, who were still employed in Northern Ireland after June 2009, were ultimately transferred, through TUPE transfers, to the employments of various transferees.  However, I have no evidence as to whether this claimant would have been assigned to any such transferred entity, or as to the specific transferred entity to which he would have been assigned (if he had not been dismissed in March 2009).  Furthermore, I have no evidence on the question of whether all of the transferred employees, in all of the transferred entities, were ultimately dismissed by way of redundancy.  In this case, there was insufficient evidence before me for the purpose of allowing me to construct, from evidence not speculation, a framework which would provide a working hypothesis about what would have occurred had Nortel behaved differently and fairly.  (See paragraph 50 above).  I fully understand that there may be sound economic reasons for the decision of the administrators not to become involved in this unfair dismissal hearing.  However, in the absence of that participation, I am constrained to conclude that I have no adequate evidence that the claimant would have been dismissed by Nortel in any event, even if a fair selection procedure had been followed, or that he would subsequently have been fairly dismissed, by reason of redundancy, by a TUPE transferee, or indeed that he would have been assigned (after March 2009) to any particular entity which was subsequently the subject of a TUPE transfer.  In this connection, I note that it has been contended on behalf of the claimant that the March 2009 and June 2009 dismissals were not really by reason of redundancy, but were instead prompted by a desire on the part of the administrators to reduce the workforce so as to make the various sub-businesses more attractive to potential purchasers.  (In the absence of evidence in these proceedings on behalf of Nortel, I am in no position to decide the latter issue either way).  Under paragraph (3) of rule 14 of the Industrial Tribunals Rules of Procedure, I have power to make such enquiries of persons appearing before me and of witnesses as I consider to be appropriate.  I have exercised that power in this case, but still have been left with no adequate evidential basis for arriving at the “framework” which would provide an appropriate “working hypothesis” about what would have happened to the claimant’s employment, in March 2009 or at some subsequent date, if this dismissal had been conducted fairly.  (Again, see paragraph 50 above).  Having said all that, I am left with an uneasy feeling that the compensation in this case might well have been substantially reduced if adequate evidence on the Polkey issue had been presented to me.  I have not thought it appropriate to carry out extensive enquiries, about any degree of risk which the claimant would have faced, in respect of dismissal, in March 2009 or afterwards, if the process of his March 2009 dismissal had been carried out fairly.

 

An Article 17 uplift?

 

57.     In this case, the respondent did not follow the statutory dismissal procedure, or any aspect of that procedure.  At the time of this claimant’s dismissal, the respondent was being run by people who must have known very well that Nortel was under an obligation to comply with that procedure.

 

58.     Article 17 of the Employment (Northern Ireland) Order 2003 (“the 2003 Order”) applies to unfair dismissal claims.  Paragraph (3) of Article 17 is in the following terms:

 

                    “(3) If, in the case of proceedings to which this Article applies, it appears to the industrial tribunal that –

 

                              (a)      the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies,

 

          (b)      the statutory procedure was not completed before the proceedings were begun, and

 

          (c)      the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer [to comply with a requirement of the procedure],

 

it shall, subject to paragraph (4), increase any award which it makes to the employee by 10 per cent and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50 per cent”.

 

59.     Paragraph (4) of Article 17 frees an industrial tribunal from that general Article 17 duty to uplift by at least ten per cent, but it does so only “...  if there are exceptional circumstances which would make ... [an] increase of that percentage unjust or inequitable ...”.

 

60.     I have no doubt that there are no circumstances in this case which would make an increase of 10 per cent unjust or inequitable.

 

61.     Provisions equivalent to Article 17 of the 2003 Order were contained in section 31 of the Employment Act 2002.  (Section 31 applied in Great Britain, but has been repealed).

 

62.     In Wardle v Credit Agricole Corporate and Investment Bank [2011] IRLR 604 (Wardle (1)), the English Court of Appeal considered the following matters:

 

(1)      Was it relevant to have regard to the size of the compensation award, in exercising the discretion to increase the award pursuant to section 31?

 

          (2)      In the circumstances of that particular case, was the tribunal entitled to conclude that the circumstances of the breach were such as to attract an uplift of 50 per cent? 

 

63.     At paragraphs 14 - 37 of the judgment of Elias LJ in Wardle (1), those matters were considered, in considerable detail.  The main elements of his conclusions, in relation to the relevant issues, were as follows:

 

                    (1)      The purpose of section 31 was essentially punitive.

 

                    (2)      There must be something about the particular circumstances of a particular case which justifies the conclusion that ten per cent would be inappropriate and ought to be increased.  The starting point is ten per cent.  The tribunal should only increase the uplift if an uplift of ten per cent would not adequately reflect the degree of culpability.  An increase to the maximum of 50 per cent should be very rare indeed.

 

                    (3)      Once the tribunal has fixed on the appropriate uplift (by focussing on the nature and gravity of the breach), but only then, it should consider how much this involves in money terms:  The extent of the uplift should not be disproportionate. 

 

                    (4)      In considering the sort of sum which would be proportionate and acceptable (as a section 31 uplift) it is of some relevance to have regard to the sums which the courts are willing to award for injury to feelings and for aggravated damages.  (In that context, Elias LJ considered it to be noteworthy that, for aggravated damages, the amounts rarely exceed £5,000, which was the sum for such damages which was awarded in Vento v Chief Constable of West Yorkshire [2003] IRLR 102).

 

64.     This dismissal occurred during the course of large scale redundancies, which were being conducted by people who must have known, very well, that they were under an obligation to follow the statutory procedures, but who, nevertheless, did not do so.  No significant aspect of the relevant statutory procedure was followed in this case.  In my view, that combination of circumstances is sufficient to make it appropriate to increase the relevant uplift to 50 per cent, subject to the proportionality issue.

 

65.     The Wardle (1) judgment, if read in isolation, seems to imply that the amount of section 31 uplift should not be such as to increase the amount of the compensatory award by more than about £7,500.

 

66.     However, I have noted that, in the Wardle case itself, the Court of Appeal ultimately decided upon a section 31 uplift of 15 per cent, which increased the compensation by a sum which was little short of £19,000.  (See Wardle v Credit Agricole Corporate and Investment Bank (No. 2) [2011] IRLR 819, which is referred to below as Wardle (2)).

 

67.     Against that background, and having had regard in particular to the Wardle (2)  judgment, I have decided that this claimant is entitled to an uplift of 45 per cent pursuant to Article 17 of the 2003 Order (having noted that that uplift will not increase the amount of the award by more than £20,000).

 

68.     That uplift increases the amount of the compensatory award by £19,547.

 

69.     The aggregate of the figures specified in paragraphs 48 and 68 above (£43,438 and £19,547) is £62,985.

 

Grossing up?

 

70.     At paragraph 16.17 of Korn and Sethi’s “Employment Tribunal Remedies”, Fourth Edition, the concept of grossing up, in the context of unfair dismissal awards, was explained, in the following terms:

 

                    “[Grossing up] means that ... an employment tribunal must gross up any award for any unfair dismissal that it makes over £30,000 ... to ensure that, after tax, the claimant receives the net award made by the employment tribunal (see 2.02 for current rates)”.

 

71.     In 2010/11, according to paragraph 2.02, payments on the termination of an office or employment were taxed on a sliding scale, and the position was as follows:

 

          “(a)     The first £30,000 was tax-free.

 

          (b)      The balance may be taxed at the higher rate of tax, which for the tax year 2010-11, is 20 per cent on income up to £37,500, 40 per cent on income above £37,500 but less than £150,000 ...”.

 

72.     In this case, I am indeed awarding more than £30,000 in respect of unfair dismissal.  With some reservations, I have decided to agree to Mr Stephens’ argument that the compensatory award should be “grossed-up”.  In doing so, I have followed the process which is recommended at paragraphs 2.04-2.07 of Korn and Sethi.

 

73.     Why do I gross up with reservations?  Because I very much doubt that this claimant will ever actually receive any amount in excess of £30,000 in respect of unfair dismissal. 

 

74.     However, at this point in time, on the basis of any information currently available to me, I simply cannot say what the percentage dividend, available to unsecured creditors, is likely to be.

 

75.     Against that background, and for those reasons, I have decided to “gross up” the compensatory award.

 

76.     In my view, the grossed up award cannot exceed the statutory maximum of £66,200.  (See paragraph 29 above).  I do not understand Mr Stephens, or Mr Bondoumbou, to have argued to the contrary.

 

77.     Grossing up the compensatory award in this case has the effect of bringing that award up to, and beyond, the statutory maximum of £66,200.  (See paragraph 29 above).

 

Summary and overall conclusions

 

78.     I have assessed the claimant’s past losses as amounting to £38,472 including the sum of £350 in respect of loss of statutory rights.  (See paragraph 33 above).

 

79.     I have awarded £4,966 in respect of future loss.  (See paragraph 45 above).

 

80.     The sum of the amounts specified in the last two preceding paragraphs is £43,438.           

 

81.     That figure of £43,438 is not subject to any “Polkey” reduction.

 

82.     The figure of £43,438 is however subject to a 45 per cent increase, pursuant to Article 17 of the 2003 Order.  (See paragraph 68 above).

 

83.     Accordingly, the claimant is entitled to a compensatory award of £62,985,                     which is the sum of £43,438 after being subjected to that 45 per cent uplift.  (See paragraph 69 above).

 

84.     That sum of £62,985 must then be grossed up.

 

85.     After grossing up, the award amounts to a sum in excess of £66,200. 

 

86.     However, the amount of the compensatory award cannot be greater than £66,200, (See paragraph 29 above).

 

Recoupment of benefit from awards

 

87.     The Recoupment Regulations apply.  Attention is drawn to the notice below, which forms part of this Decision.  The prescribed element is £65,850.  The prescribed period is the period from 1 April 2009 until 1 November 2009.  The amount by which the monetary award exceeds the prescribed element is £350. 

 

Interest on industrial tribunal awards

 

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

 

 

 

Employment Judge:      

 

 

Date and place of hearing:         5 August 2014, Belfast.             

 

 

Date decision recorded in register and issued to parties: