Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 2369/14

 

 

 

CLAIMANT: Nicola Lewsley

 

 

RESPONDENT: Holy Trinity Community Centre

 

 

DECISION

 

The unanimous decisions of the tribunal are as follows:

 

(A) The claimant's unfair dismissal claim is well-founded. It is ordered that the respondent shall pay the sum of £448 to the claimant as compensation in respect of that unfair dismissal.

 

(B) We granted the claimant leave to pursue a claim under Article 13 of the Employment Relations Order 1999 in these proceedings. That claim is not well-founded. Accordingly, that claim is dismissed.

 

 

Constitution of Tribunal:

 

Employment Judge: Employment Judge Buggy

 

Members: Ms L Torrans

Mr D Walls

 

 

Appearances:

 

The claimant was represented by Mr Patrick Moore of PM Associates.

 

The respondent was represented by Mr N Phillips, Barrister-at-Law instructed by Jones Cassidy Brett Solicitors.

 

 

REASONS

 

1. Holy Trinity Community Centre ("the Centre") is a registered charity, which is located at Norglen Gardens, Andersonstown, Belfast. The claimant was employed by the Centre for several years until 29 September 2014, as a care assistant. With effect from the latter date, she was dismissed.

 

The claims

 

2. In these proceedings, the claimant makes two claims. (1) She complains of unfair dismissal. (2) She complains of a breach of Article 12 of the Employment Relations (Northern Ireland) Order 1999. (Article 12 is entitled "Right to be accompanied").

 

The facts

 

3. In the following sub-paragraphs, we set out findings of fact which are relevant to the issues which we have determined. (In order to minimise avoidable duplication, and in the interests of readability, some additional findings of fact are set out elsewhere in this Decision):

 

(1) The Centre provides childcare facilities for children up to the age of four years. It also provides a Counselling service and it has a service for "Elderly People Activities".

 

(2) The claimant was employed in the Centre as a Day Care Assistant from June 2010 onwards. She worked 16 hours per week. The childcare facility operates from Monday-Friday and is open from 8.00 am to 5.30 pm. The Centre can take up to 30 children.

 

(3) At the time of the claimant's dismissal, the Centre employed the following staff: a Childcare Manager, a Childcare Supervisor, a Cook and 8 Childcare Assistants (of which the claimant was one). The Counselling service has a team of 6 staff members and the service for Elderly People Activities has just one staff member.

 

(4) In September 2014, the Centre had a practice of allowing or requiring its staff members to take the cash home if Centre fees were paid in cash by parents close to the end of the day.

 

(5) On 12 September 2014 (which was a Friday), during the late afternoon, a particular parent (who is described in this Decision as "X") handed over £500 to the claimant in cash, for childcare fees which were due to the Centre.

 

(6) In these proceedings, there has been a dispute between the parties as to whether or not, on that occasion, the claimant complied with the Centre's practices regarding the provision of receipts. For the purpose of resolving the issues in these proceedings, we do not need to arrive at conclusions in relation to the subject-matter of that dispute.

 

(7) The claimant never handed over the cash to the Centre.

 

(8) She lost the money that had been entrusted to her on 12 September 2014.

 

(9) She did not realise that she had lost the money, and she forgot that she had received the money, until Management raised queries about the issues several days after 12 September.

(10) This may be an appropriate place for us to record our disapproval of the laxity of the Centre's procedures at the relevant time. In our view, it is entirely inappropriate for an employer to have a system whereby large sums of money, belonging to the employer, are taken home, over a weekend, to an employee's place of residence.

 

(11) Soon after the matter was first raised with her by the employer, the claimant admitted that she had received the money, and that she had lost the money.

 

(12) In a text which she sent on 24 September 2014, the claimant asserted that her "nerves r wrecked" over the matter. However, in her conversations with Management within the Centre soon afterwards, she gave the impression that she was not much concerned about the issue.

 

(13) On 29 September 2014, the claimant was given a letter requiring her to attend a disciplinary hearing on 30 September. The letter was in the following terms:

 

"I am writing to inform you that you are required to attend a disciplinary interview at 2.00 pm on 30 September 2014 at Centre Manager's Office.

 

The reason for the disciplinary interview relates to a day care payment you received from [X]. Details of issues to be discussed.

 

·                       No evidence of a receipt.

·                       Not informing Daycare Manager of payment received from the parent (£500.00).

·                       No recollection of where the money is.

·                       Failure to recognise Holy [Trinity's] financial procedures

 

Under the terms of the company's disciplinary procedure, you are entitled to be accompanied at the investigation interview by a fellow employee or a union representative".

 

(14) The relevant "interview" was, in reality a disciplinary hearing. The disciplinary hearing was carried out by Ms Bernie Toner, the Centre's Director. (She had only came into that post earlier during the month of September 2014).

 

(15) The claimant was accompanied at the hearing by Ms Siobhan Connolly, the Daycare Manager. She was so accompanied because Management gave her to understand that accompaniment was mandatory (whereas, of course, it was entirely a matter for the claimant whether she wished to be accompanied at the hearing), and because Ms Connolly, in effect, nominated herself for that task.

 

(16) The disciplinary hearing was brought forward, at the claimant's request, from 30 September to 29 September (the day on which she received the "invitation" letter), because she wanted to get it over with.

 

(17) In the course of the disciplinary hearing, the claimant did not show any signs of genuine remorse for the loss of the money, or for the failure to realise, in a timely manner, that the money had got lost.

 

(18) Ms Toner decided to dismiss the claimant. That dismissal was confirmed in a letter dated 29 September 2014, which was handed to the claimant on that day. That letter was in the following terms:

 

"I am writing to confirm the details of the investigation interview held on 29/9/14. It was noted that you were offered the right to representation at this interview and that you exercised this right. Siobhan Connolly attended the meeting. It was also noted you had been advised Bernie Toner would be taking minutes.

 

The investigation interview was held and following detailed investigations you have been dismissed for Gross Misconduct with effect from 29/9/14. The reasons for your dismissal are:

 

·          No evidence of a receipt.

·          Not informing Daycare Manager of payment received from the parent (£500.00).

·          No recollection of where the money is.

·          Failure to recognise Holy [Trinity's] financial procedures.

·          Financial negligence.

This letter is written confirmation of your dismissal.

 

... "

 

In passing, we note that the "financial procedures" of the Centre, in September 2014, left a lot to be desired, in view, in particular, of the then prevailing practice of expecting staff to take large sums of money to their respective homes, on a regular basis, in situations in which money due to the Centre was received from parents late during the day.

 

(19) Throughout the lengthy period between the date of her dismissal and the day of this unfair dismissal hearing, the claimant never made any approaches to the Centre with a view to making arrangements for payments to the Centre in respect of the £500 which she had lost. According to Mr Moore, the reason for the failure to approach the Centre was that the claimant did not "trust" those involved in the Centre's management. We do not see that as a good reason for the claimant's failure to approach the Centre about arrangements about payments.

 

(20) During the course of her oral testimony during this hearing, the claimant was asked whether she considered herself to be to blame, in respect of the loss of her job. She told us that she regarded herself as being only "slightly" to blame.

 

The "Right to be accompanied" claim

 

4. As originally presented, the claim form did not include a claim of breach of the right to be accompanied.

 

5. During the course of this hearing, Mr Moore, on behalf of the claimant, applied for leave to amend the claim form, so as to include a complaint of breach of Article 12 of the Employment Relations Order 1999. We granted that leave, having had regard, in particular, to the following matters.

 

6. First, we noted that there was no good reason for the omission to include the claim in the claim form as originally presented. Secondly, we noted that the claimant would now be out-of-time if she were to present an Article 12 complaint, in fresh proceedings. However, we also noted that the time lapse, between the alleged failure to comply with Article 12 and the request for leave to amend, consisted only of a short number of months. Thirdly, we noted that the respondent would suffer no prejudice as a result of the late admission of this claim (as distinct from suffering prejudice from the admission of the claim at all), because the question of whether or not the claimant was refused a reasonable request to be accompanied at a disciplinary hearing was a question which would inevitably have to be answered during the course of the unfair dismissal hearing, even if an Article 12 complaint could not be made.

 

7. Paragraph (1) of Article 12 provides that, in the context of a disciplinary hearing, the relevant right to be accompanied only arises if the relevant worker "requests" to be accompanied at the hearing.

 

8. We are satisfied that, in the context of the disciplinary hearing which is relevant in these proceedings, the claimant never actually requested to be accompanied at the hearing. (It was the Management of the respondent, who were keen that the claimant should be accompanied).

 

9. Accordingly, because the claimant never asked the respondent to permit her to be accompanied (at the relevant disciplinary hearing), Article 12 did not apply at all in the circumstances of this case. For that reason, the Article 12 complaint must be dismissed.

 

Unfair dismissal (Liability)

 

10. We are satisfied that this dismissal was unfair. Our reasons are as follows.

 

11. The effect of Article 130A of the Employment Rights Order (Northern Ireland) 1996 ("ERO") is that, for the purposes of the unfair dismissal legislation, an employee who is dismissed is to be regarded as having been unfairly dismissed if the statutory dismissal procedure applied to the dismissal, and the procedure was not completed, and that non-completion (of the procedure) was wholly or mainly attributable to failure by the employer to comply with its requirements.

 

12. The statutory dismissal procedure does apply in the circumstances of this case.

 

13. Key elements of that procedure are set out in Schedule 1 of the Employment (Northern Ireland) Order 2003 ("the 2003 Order").

 

14. According to that schedule, at Step 1 of the statutory dismissal procedure, the employer must, in advance of any disciplinary hearing, tell the relevant employee that it is contemplating dismissing her (if that is what the employer is contemplating).

 

15. The letter of 29 September 2014, which invited the claimant to the disciplinary hearing, has already been set out above. There is nothing in that letter which explicitly warns the claimant that dismissal is being contemplated. In our view, there is no relevant implicit warning either, even when that letter is construed within the context within which it was written.

 

16. In this connection, we have had regard to the statements of principle which were set out at paragraphs 53-75 of the English Court of Appeal's judgment in Cartwright v King's College, London [2010] EWCA Civ 1146, to which Mr Moore drew our attention. We note that, at paragraph 65 of his judgment in Cartwright, Rimer LJ endorsed the statements of principle which had been set out at paragraphs 23, 25 and 26 of Zimmer Ltd v Brezan UKEAT/0294/080ZT, 25 October 2008. Paragraph 64 of Cartwright is worth quoting in full:

 

"64. The employer's argument on its appeal was that the statutory requirements for a valid Step 1 statement did not require the employer to do more than set out the ' conduct or characteristics, or other circumstances' that had led him to contemplate dismissal: he did not also have to say that he was contemplating dismissal. Insofar as the appeal tribunal had said otherwise in Alexander and Homeserve, it was said that its utterances were obiter, wrong and anyway non-binding. The appeal tribunal in Zimmer said that, if satisfied that the primary submission was correct, it would not have regarded itself as bound by either of the preceding authorities to reject it. But it was not. Judge Burke said:

 

'23. However, we are not persuaded that the EAT overstated the requirements of a step 1 letter in either decision. We accept that paragraph 1(1) of the statutory procedure could be construed as requiring only the limited obligation on which Mr Oudkerk [counsel for the employer] relies, but in our judgment the relevant words can and should be construed consistently with the views taken by the EAT in Alexander and Homeserve, to which we have referred, namely, that the words which appear after the comma, despite the comma, are descriptive of the obligation contained in within the procedure and not merely descriptive of the words which precede the comma. That, in our judgment, is consistent (and the alternative is not consistent) with the aims and purposes of the statutory provisions as described by the EAT in paragraph 34 of Alexander, in our view correctly. Unless the employee is enabled to understand from the step 1 letter that he is at risk of dismissal, in our judgment the purpose of the Step 1 letter in a dismissal case cannot be properly achieved. The employee is plainly entitled to have some idea what type of sanction is in the mind of the employer or, at least, in a dismissal case, that dismissal is in the mind of the employer, so that he knows the potential extent of what it is that he may be facing when, armed with the information given to him by the Step 1 letter, he goes to the Step 2 meeting.'

 

The appeal tribunal continued, as follows, in a passage including the citation made by Underhill J in the appeal tribunal:

 

'25. ... We accept that on the facts of a particular case it is open to a tribunal to consider that the Step 1 letter, and information provided with it, can be regarded, in the individual circumstances of the case before them, as sufficient to communicate the risk to the employee of dismissal, albeit the letter does not expressly say that. Homeserve is a clear example of that type of case. Here Mr Oudkerk submits that sending the disciplinary procedure with the email, which process bore within it the contents which we have described, could have only have [sic] meant to Mr Brezan that he was at risk of dismissal and that that was borne out at the following disciplinary meeting when Mr Brezan said that he understood very clearly why he was at that meeting ....

26. We do not accept that submission, attractively as it was put. The email said only that the meeting was to discuss Mr Brezan's mileage and expenses claims which had been discussed earlier that day. It made no reference to misconduct, still less gross misconduct. As we have already said, it did not direct Mr Brezan's attention to any specific part of the length disciplinary document. It was possible from the letter for anyone to think that the employers were thinking, or might be thinking, not in terms of dismissal at all but in terms of relying on unprofessional conduct or failing to record matters which should be recorded or on other matters falling within the definition of "misconduct" as opposed to "gross misconduct"; the whole series of meetings (according to the Tribunal's findings) took place within the context of what appeared to the Tribunal to be an ongoing discussion about the mileage claims'."

 

17. Mr Moore also pointed to the fact that Schedule 1 of the 2003 Order specifies that the disciplinary hearing is not to take place until the employee has had a reasonable opportunity to consider her response to the information contained in the disciplinary hearing invitation letter.

 

18. Mr Moore points out that the relevant disciplinary hearing, (the hearing which culminated in the claimant's dismissal) took place on the day the invitation letter was sent to the claimant. In those circumstances, he argued, the claimant did not have a reasonable opportunity to consider her response to the information contained in the invitation letter, prior to the start of the disciplinary hearing.

 

19. Mr Phillips pointed out that the hearing took place on the same day only because the claimant wanted that to happen; Mr Phillips correctly stated that, had it not been for the claimant's wish to get the disciplinary hearing over with, that hearing would not have taken place until the following day.

 

20. We have doubts as to whether, in the circumstances of this case, an employer would be allowing the employee to have a reasonable opportunity to consider her response to the information contained in a disciplinary hearing invitation letter, if the hearing was held the day after the letter was received. (That was what would have happened in this case, if the claimant had not asked for the date of the hearing to be brought forward). However, in any event, that is not what happened in this case. What happened here is that the disciplinary hearing took place on the very same day as the day on which the claimant was provided with the disciplinary hearing invitation information. In those circumstances, through the fault of the employer, the meeting took place at a time when the employee had not had a reasonable opportunity to consider her response to the information which was contained in the invitation letter. (See sub-paragraph (2) of paragraph 2 of the Schedule to the 2003 Order).

 

21. Against that background, and for those reasons, we are sure that this dismissal was automatically unfair because of the timing of the disciplinary hearing (as well as being unfair for the reasons specified at paragraph 15 above).

 

22. The dismissal letter has already been quoted above. Mr Moore argued that the dismissal was also unfair because, although the disciplinary hearing invitation letter ("the invitation letter") specified only four instances of misconduct (no evidence of a receipt, not informing the manager of the payment being received, no recollection of where the money is and a failure to recognise the employer's financial procedures), the dismissal letter specified that the claimant was being dismissed, not just because of those four alleged failures, but also because of an additional allegation, namely "Financial negligence".

 

23. We reject Mr Moore's argument on that point. We think that, by adding the words "Financial negligence", as a ground for dismissal, in the letter of dismissal, the employer was merely setting out what it considered to be a collective description of the four instances of alleged misconduct which had been set out in the invitation letter and which had already been repeated, earlier, within the dismissal letter itself.

 

24. Mr Moore also argued that the claimant should not have been dismissed on a "conduct" ground and that instead the relevant issues should have been considered as a capability issue. We also reject the argument. In our view, for example, the failure to hand over the money received from the parent is clearly a conduct issue (although, we do recognise that it might, in some circumstances, also properly be regarded as a capability issue).

 

25. As Mr Moore points out, there was confusion as to the role of Ms Connolly in the context of the disciplinary hearing. The claimant would have been content to have attended the disciplinary hearing without any representation. It was the employer who insisted upon the claimant being "represented". Therefore, Ms Connolly, who could hardly be regarded as being friendly to the claimant's perspective upon events, was, in effect, foisted upon the claimant, in an alleged role as her employee-representative.

 

26. We do not regard the representation fiasco as involving a breach of the statutory dismissal procedure. We do regard that matter as constituting a serious breach of procedures, which had the potential consequence of making this an unfair dismissal, within the meaning of Article 130(4) of ERO. We are also sure however that, if the representation fiasco had not occurred, and if the disciplinary process had been fair in every respect, it is likely, in the circumstances of this case, that the claimant could and would have been fairly dismissed; we are satisfied that any such dismissal would, in those circumstances, have been fair. Accordingly, the effect of Article 130A(2) of ERO is to prevent the dismissal from being unfair merely because of the representation fiasco.

 

Unfair dismissal (Amount)

 

27. Against the background set out below, and for the reasons explained below, we have decided not to make any compensatory award to the claimant in respect of the unfair dismissal.

 

28. This claimant received cash to the value of £500 from a particular parent. She permanently lost that cash. She did not realise she had lost that cash until some weeks later. She then only realised that she had lost the cash because the employer brought the issue to her attention. When the issue was brought to her attention, her consistent approach was to regard the matter as "no big deal"; and, during the entire period, from the date on which the loss was brought to her attention, to the time of her dismissal, she never exhibited any genuine remorse.

 

29. There was a conflict of evidence between the claimant on the one hand, and
Ms Toner on the other hand, on the question of whether the claimant showed remorse, or a sense of responsibility (in relation to the relevant lapses), during the course of the disciplinary process, or during the course of the interactions with her employer's representatives which had preceded the initiation of that process. On those matters, we prefer the evidence of the employer's witnesses. We note that, during the course of the hearing in the industrial tribunal, the claimant gave every indication that she did not regard her action, in losing the money, as being any "big deal". In our view, her attitude on those matters during the course of the industrial tribunal hearing provides powerful support for the version of events, on the relevant matters, which was canvassed by the relevant employer's witnesses.

 

30. We are sure that the claimant was dismissed mainly because of the totality of the behaviour and attitude described at paragraph 28 above. (In our view, she would not have been dismissed if, having lost the money, she had shown remorse).

 

31. We are sure that the combination of the behaviour and attitude described at
paragraph 28 above constitutes culpable and blameworthy conduct.

 

32. Paragraph (2) of Article 156 of ERO provides that, where the tribunal considers that any conduct of the claimant before the dismissal was such that it would be just and equitable to reduce the amount of the basic award to any extent, the tribunal must reduce that amount accordingly.

 

33. Article 157(6) of ERO provides that, where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the claimant, it must reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.

 

34. The amount of the loss to the Centre which was caused by the claimant's conduct was substantial; the seriousness of that lapse was significantly aggravated by the claimant's failure, until the employer brought it to her attention, to realise that she had lost so much of the employer's money; and the claimant's implicit lack of remorse in relation to the relevant lapses was a considerable additional aggravating factor.

 

35. Having taken all of the matters described in the last preceding paragraph into account, we are satisfied:

 

(1) that it is just and equitable to make an Article 156(2) reduction (from the basic award) of 100%, and

 

(2) that it is just and equitable to reduce the amount of the compensatory award by 100%.

 

36. Mr Moore rightly drew our attention to the decision of the Employment Appeal Tribunal in Steen v ASP Packaging Ltd UKEAT/0023/13/LA, which contains a valuable discussion of the requirement to provide adequate reasons for making conduct deductions, from basic awards and from compensatory awards, in unfair dismissal cases. That decision also notes that a 100% reduction is very rare. We accept the accuracy of the latter observation. But it is also very rare for an employee to lose £500 of her employer's money; to fail to notice the loss throughout a lengthy period; and, when confronted with details of the loss, to fail to express any genuine remorse, or to accept any personal responsibility.

 

37. As noted above, we have determined that the basic award contributory conduct reduction should be 100%. However, we must now take account of the effect of Article 154(1A).

 

38. The effect of paragraph (1A) is that, if that paragraph applies, an industrial tribunal is, as a general rule, under an obligation to increase any award under Article 152(1)(a) to the amount of four weeks' pay.

 

39. Paragraph (1A) only applies if all of three conjunctive conditions exist:

 

(1) The employee must have been unfairly dismissed in contravention of the statutory dismissal procedure.

 

(2) The employee must not have been reinstated or re-engaged.

 

(3) As provided for by sub-paragraph (c) of paragraph (1A):

 

"the amount of the award under Article 152(1)(a), before any reduction under Article 156(3A) or (4), is less than the amount of four weeks' pay".

 

40. It is noteworthy that, according to sub-paragraph (a) of Article 152(1) itself, the amount of an award "under" Article 152 (1)(a) is:

 

"(a) a basic award (calculated in accordance with Articles 153 to 156, 160 and 161) ..." [Our emphasis]

 

41. We note that a basic award which has been calculated in accordance with Article 156 is an award which may have been subjected to an Article 156(2) contributory conduct reduction.

 

42. Against that background, and for those reasons, we have concluded that the general rule provided for in paragraph (1A) of Article 154 (as described at paragraph 38 above) does apply in the circumstances of this case.

 

43. However, does the exception to that general rule also apply? That exception is provided for in paragraph (1B):

 

"(1B) An industrial tribunal shall not be required by paragraph (1A) to increase the amount of an award if it considers that the increase would result in injustice to the employer".

 

44. We do not consider that requiring the respondent to pay a basic award of four weeks' pay would result in any injustice to the employer. We accept that the failures to follow the statutory dismissal procedure were inadvertent, and that those who were responsible for those failures (within the Management of the respondent) were doing their best to be fair, and to do things according to the rules. However, they did fail to follow the statutory dismissal procedure in some significant respects. Furthermore, the respondent employer employs a significant number of staff.

45. The parties were in dispute on the question of whether or not the claimant should be treated as having four years' continuity of service (for the purpose of calculating the basic award) or only three. Because of our conclusions on the Articles 156(2) and 154(1A) issues, we do not have to resolve that dispute.

 

46. The importance of the paragraph (1A) issue only became apparent after the main hearing of this case had concluded. However, the parties agreed to address that issue during the course of written submissions ("Submissions"), which were provided by the parties after the hearing. In arriving at our conclusions on the paragraph (1A) issue, we have taken careful account of those Submissions.

 

47. As Mr Moore has pointed out in his Submission, the provisions of Article 154(1A) are penal in nature. They are designed to punish and deter, in the context of failures on the part of employers to comply with the statutory dismissal procedures. In our view, in deciding whether to make an Article 154(1A) award, the behaviour of the employee is of very limited significance. (See paragraph 36 of Ingram).

 

 

48. In his Submission, Mr Phillips realistically (although only implicitly) accepted that Ingram v Bristol Street Parts [2007] UKEAT 0601 06 2304 (23 April 2007) is a highly persuasive and relevant authority in the present context. At paragraph 10 of the Submission, Mr Phillips, commented as follows:

 

"10 - The Respondent submits that if the EAT authority of Ingram is taken to be correct then the proper interpretation is as follows:

 

1. The Tribunal calculates the basic award as normal by reference to the employee's age and number of years of employment.

 

2. The Tribunal then decides whether the conduct of the complainant before the dismissal was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent under Art 156(2). If the Tribunal does conclude that there was such conduct then the Tribunal is obliged (by virtue of the use of the word "shall" in Art 156(2)) to reduce the basic award. It is submitted that this can be a 100% reduction.

 

3. After any such reduction if the basic award is less than 4 weeks wages then the Tribunal shall increase the basic award to 4 weeks' pay.

 

4. However, if the Tribunal considers that the increase would result in injustice to the employer the Tribunal is not obliged to impose the increase, and the amount of the award after reduction for the employee's conduct (which can be a 100% reduction stands)".

 

49. In deciding the issues in the context of Article 154(1A), we have applied the principles which were set out in Ingram, and we have followed the process recommended in the quoted part of Mr Phillips' Submission (although we have arrived at no concluded view on the question of whether the basic award should be calculated by reference to three or four years of continuity of employment).

 

50. In the context of step 4 of the process contemplated at paragraph 10 of the respondent's Submission, Mr Phillips has drawn our attention to the case of Dalzell v Roger McIlvenna and Julie McIlvenna [2014] NIIT 01744 13IT (04 February 2014).

 

51. In the particular factual context of Dalzell, the tribunal in that case concluded that an Article 154(1A) increase ought not to be imposed because, in that tribunal's view, such an increase would result in injustice to the employer.

 

52. The facts of this particular case are significantly different from the facts in the Dalzell case which were relevant, in that case, in the context of the Dalzell tribunal's decision on the Article 154(1A) issue.

 

53. Against that background, and for those reasons, and not without hesitation, we have decided to make an award of four weeks' pay, as a basic award, to the claimant in this case. That amounts to an aggregate sum of £448.

 

General comments

 

54. On behalf of the employer, Mr Phillips was careful to make clear that the employer was not now suggesting that the claimant had acted dishonestly, and had never made any such suggestion. None of our own findings, as set out above, implies any conclusion, on the part of this industrial tribunal, that the claimant acted dishonestly.

 

Interest

 

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

 

 

 

 

 

Employment Judge:

 

Date and place of hearing: 19 March 2015, Belfast.

 

Date decision recorded in register and issued to parties: