THE INDUSTRIAL TRIBUNALS

CASE REF:	  6620/09

CLAIMANT:			Sinead McAllister

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 £52,699 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 she 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.     

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, she referred to a written schedule of loss (“the Schedule”), which sets out the compensation claimed by her.  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.  (Obviously, at paragraph 28 of Murdock, in applying to this case, the word “her” should be substituted for the word “his”). 

Loss

16.	Pursuant to Article 157(1) of the Employment Rights (Northern Ireland) Order (“ERO”), the claimant is clearly entitled to recover in respect of any loss sustained by her 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, and subject also to the potential application of the Polkey principle.  (For the Polkey issue, see below).  

17.	I was satisfied that the extent of this claimant’s recoverable loss of earnings, throughout the relevant period up to the date of this hearing, was £22,515 (subject, however, to any application of the Polkey principle).  

18.	Immediately prior to her dismissal, the claimant’s net weekly pay was £280.  The claimant was dismissed on 30 March 2009.  She was unemployed for only a short period thereafter.  Then she was employed in Gallaghers, in Balymena, from April 2009 until November 2009, although only at £210 net pay per week.  Thereafter, she was employed in Schrader Electronics, Carrickergus, from November 2009 until March 2013, but only at £240 net weekly pay.  Since March 2013, she has been employed in a food outlet in Larne, but only at £93 net weekly pay.  

19.	I asked the claimant various questions, which were relevant in the context of my task of deciding whether or not the loss claimed for, since March 2013, is and will be loss sustained in consequence of the dismissal, and loss which is attributable to the dismissal.  In light of the claimant’s answers to the relevant questions, I am satisfied, in favour of the claimant, on both of those points.  (I regarded the claimant as an honest witness).  In particular, I am satisfied that, if the claimant had not been dismissed by the respondent on, or at some date after, 30 March 2009, she would not have resigned from that employment, and she would, accordingly, still be in that employment.  I have no doubt that the difference between the salaries which the claimant has earned since the date of her dismissal, and the salary which she would have earned if she had not been dismissed (throughout the relevant period ending on the date of the main hearing of this unfair dismissal claim) is the result of the unfair dismissal.  I have no doubt that she has taken appropriate action to mitigate her loss.  In assessing her past loss, I have taken no account of the loss sustained by her during the nine weeks immediately after the date of dismissal, because she has already received, from the Department for Employment and Learning (“the Department”), a sum in respect of notice pay.  (The claimant was entitled to nine weeks’ notice pay).  During the period beginning nine weeks after the date of dismissal and ending on the date of assessment (8 August 2014), the claimant’s net pay, if she had still been employed by the respondent, would have been approximately £75,654.  During that period, her earnings, from post-dismissal employment, amounted to £53,139.  The balance, between those two sums is £22,515.  To that sum, I have added £350 in respect of loss of statutory rights.    

20.	The present decision should be read as though paragraphs 35-44 of the Murdock Decision were set out immediately below.

21.	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 £9,734.  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 for a further 12 months, beginning on the date of the unfair dismissal hearing.

22.	In arriving at the latter conclusion, 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 which Northern Ireland still finds itself, particularly in respect of the types of jobs for which the claimant is qualified.  Thirdly, I have taken account of the claimant’s personal circumstances.   

23.	The aggregate loss sustained by the claimant, consisting of past loss and future loss, is £32,599 (£22,515 + £350 + £9,734).  

Polkey?

24.	This Decision should be read as though paragraphs 49-56 of Murdock were set out immediately below.  (Obviously, in their application to this case, the relevant paragraphs should be read as though any reference to the male gender was a reference to the female gender: thus, “he” becomes “she”, etc). 

25.	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?

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

27.		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.

28.	That uplift increases the amount of the compensatory award by £16,300.

29.	The aggregate of the figures specified in paragraphs 23 and 28 above (£32,599 and £16,300) is £48,899.

Grossing Up?

30.	This Decision should be read as though paragraphs 70-75 of the Murdock Decision were set out immediately below.  

31.	Grossing up has the effect of adding £3,800 to the amount of the compensatory award.  The overall amount of the compensatory award, after grossing up, is £52,699.    

Summary and overall conclusions

32.	I have assessed the claimant’s past losses as amounting to £22,515 including the sum of £350 in respect of loss of statutory rights.  (See paragraph 19 above).

33.	I have awarded £9,734 in respect of future loss.  (See paragraph 21 above).  

34.	The aggregate of the amounts awarded in respect of past loss and in respect of future loss is £32,599.  (See paragraph 23 above).  

35.	That figure of £32,599 is not subject to any Polkey reduction.  

36.	The figure of £32,599 is however subject to a 50 per cent increase, pursuant to Article 17 of the Employment (Northern Ireland) Order 2003.  (See paragraph 27 above).  That produces a figure of £48,899.

37.	The latter figure has been “grossed up”.  The effect of the grossing up is to increase the amount of the compensatory award by £3,800.  

38.	As so grossed up, the amount of the compensatory award is £52,699.

Recoupment of benefit from awards

39.	The Recoupment Regulations apply.  Attention is drawn to the notice below, which forms part of this Decision.  The prescribed element is £41,632.  The prescribed period is the period from 1 April 2009 until 12 November 2014.  The amount by which the monetary award exceeds the prescribed element is £11,067.

Interest on industrial tribunal awards

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

Employment Judge:       

Date and place of hearing:  8 August 2014, Belfast.

Date decision recorded in register and issued to parties: