THE INDUSTRIAL TRIBUNALS

CASE REF:	  1655/14

CLAIMANT:		William Ivor Williams

RESPONDENT:	Belfast Drain Clearance Service Ltd, t/a Dyno Rod NI and Express Drains and Industrial Cleaning Services

DECISION 

The unanimous decision of the tribunal is that the claimant was unfairly selected for redundancy and was unfairly dismissed.  We order the respondent to pay the claimant the sum of £6,833.56 as set out at Paragraphs 41-43 of this decision.

Constitution of Tribunal:

Employment Judge:	Employment Judge McCaffrey

Members:	Mr J Boyd
	Mr M Grant

Appearances:

The claimant was represented by Mr Cormac Rice, Solicitor of Paul Doran Employment Law.

The respondent was represented by Mr Rob McCausland, Barrister-at-Law, instructed by A and L Goodbody Solicitors.

Issues

1.	The main issue for the tribunal to consider was whether the claimant had been unfairly selected for redundancy by the respondent when he was dismissed on grounds of redundancy on 27 May 2014.  In particular, the claimant claimed that there was no redundancy situation at the date of his dismissal and, secondly, that he had been unfairly selected for redundancy, in that he alleged the procedure applied by the respondent was unfair.  The respondent disputed these claims.

Facts

2.	We heard evidence from the claimant and from Darren McGowan one of his work colleagues.  Short witness statements had been produced by Martin Cleland, Operations Manager of the respondent and by Colin Barnes, Senior Operations Manager.  These witness statements were prepared prior to obtaining legal advice and on the application of the respondent’s representative, it was agreed that Mr Barnes would give oral evidence on behalf of the respondent and he was also cross-examined on that evidence.  We did not therefore take Mr Cleland’s witness statement into account.  In addition a number of documents were opened to us in the course of the hearing.  On the basis of the evidence provided to us we make the following findings of relevant facts.

3.	The claimant was employed by the respondent as a General Operative commencing on 4 July 2011.  He was subsequently made redundant on 27 May 2014.  He worked a 40 hour week and was paid £290.00 per week gross,                £253.00 per week net.  On occasion he also worked overtime and did additional hours on a call-out basis.  The respondent’s business, as may be inferred from their name, involved industrial cleaning, cleaning of drains and clearing up after oil spills.

4.	In the early part of 2014 the respondent was unsuccessful in bidding for the renewal of a cleaning contract known as the CTC/CPD contract.  This expired on 1 April 2014.  Up until that point the contract had been managed by H&J Martin who engaged the respondent to carry it out.  Subsequently, the work was taken on for the Northern region by a firm named Grahams, so the respondent lost that work.  They also carried out work under the Amey contract.  This is a 12 month rolling contract which is due to end in November 2015.  However by the summer of 2014 most of the planned work due to be done before 1 December 2014 had already been done.  The respondent carried out other contracts for organisations such as the Bank of Ireland, HMRC and Shorts.  Their staff were required to be security cleared for some or all of these customers.  The claimant at that time spent most of his time working on the CTC/CPD and Amey contracts and had not received security clearance for other customers such as HMRC and Bank of Ireland.  The claimant indicated that the security clearance had to be applied for by the respondent, but there was no confirmation of this from the respondent’s side.  It was clear from the evidence given by Mr Barnes, and it was not disputed by the claimant, that the respondent had lost business and work was on the downturn in their business.  The respondent was considering redundancies and divided their staff into three groups, HGV drivers, One Man Van drivers and Others/General Operatives.  They were all scored on the same matrix and the claimant was in the ‘Others’ group.  There was no evidence of any requests by management for voluntary redundancies put before us, nor was there any suggestion that there had been negotiations with union representatives, or that unions were recognised by the respondent.

5.	On 8 May 2014 the claimant and three other individuals were invited to consultation meetings in relation to redundancy.  No-one else in the three groups was interviewed on their score.  The claimant was given a copy of the scoring that he had been given on the redundancy matrix, but no explanation of how the scores were arrived at was given to him prior to the meeting.

6.	The consultation meeting took place on 13 May 2014 between Colin Barnes and the claimant.  The claimant had expressed surprise that the respondent had been able to produce a transcript of this meeting as he had not seen Mr Barnes take any notes.  It emerged at the hearing that the meeting had been recorded by Mr Barnes and a transcript prepared of the recording.  The claimant had not been advised of this and no copy of the transcript had been provided to him following the meeting for clarification.  Mr Barnes indicated that he was satisfied that it was an accurate record of what had occurred at the meeting.  We found this transcript difficult to follow, because there were few complete sentences in it and some of the comments were extremely unclear.

7.	The claimant indicated that he was unhappy about the matrix because he was not provided with scores for any of his colleagues and not given any opportunity to challenge the markings he had been given.  He was told that there were four people who were being interviewed, who were the four nearest to him in terms of score.  The claimant asked for details of the scores of individuals who were nearest to him in marks and “not going”, but was refused this, even on an anonymised basis.  Mr Barnes asserted he had gone through the matrix with the claimant, but on further questioning, agreed that he had not gone through it line by line, or explained the basis of the scoring.

8.	There were a number of issues which the claimant disputed in relation to his scores on the matrix and which were in turn disputed by Mr Barnes, both at the hearing and at the redundancy meeting.

9.	(a)	The Gray Lady

	Referred to as ‘WCU’ in the matrix, the Gray Lady was a vehicle which had an attached water jet and power washer.  The claimant suggested that he should have been awarded marks under this heading as he drove the vehicle when completing power washing jobs.  The respondent’s case in relation to this was that water jetting carried a necessary qualification and skill set and it was only those employees who had the necessary qualification who were given points under this heading.  Mr Barnes’ evidence was that it has been “agreed” that the claimant would not be competent to take the Gray Lady out to monitor cleaning jetting lines, for camera surveys or unblocked lines.  On further questioning, it emerged that this ‘agreement’ had been between Mr Barnes and other managers.  The claimant disputed this issue but did not produce any evidence that he had a relevant qualification in relation to the matter.

10.	(b)	Oil Spill Response  

	The claimant noted that on the matrix, that there was a space for ‘oil spill response’ which could attract up to 10 points.  He had not received any score for this and nor had any of the other individuals in the ‘Others’ group.  No-one in the “others/general” group scored anything for oil spill response, while within the HGV drivers group, Rab Wilson and Alfie King both scored one point.  When Mr Barnes was asked about this, he indicated that the score was operated on a binary system so that people either had the qualification or not and were scored 1 or 0 accordingly.  This however did not reflect points available in the heading of the matrix form nor did it reflect the actual scoring given to individuals in different categories.  The scores did not then add up properly either, in that anyone who had an oil spill response qualification was awarded only one point rather than the 10 possible points which, on Mr Barnes’ evidence, they should have received.

11.	It was the claimant’s evidence that he had attended quite a number of oil spills and had been involved in helping to clear these up.  He agreed that he was quite often one of a team, but disagreed that those teams were always supervised by either Mr Kennedy (who had the oil spill qualification) or one of the other managers who also had the qualification.  We accept the claimant’s evidence on this point as we found Mr Barnes’ evidence on this issue rather unclear.  The main priority as regards oil spills seemed to be to comply with the contractual response time, so it was urgent to get someone (whether qualified or not) out to the site of the spill quickly.  While on occasions it is clear directions were given via telephone to workers called out to spills, it was not at all clear to us that a qualified oil spill response engineer was always onsite to give directions in relation to these matters.  Indeed Darren McGowan’s evidence to the tribunal was that he was sent to deal with an oil spill in a river and was simply given a diagram by one of the managers as to what he had to do, but received no other direct supervision.  We are therefore not satisfied that the marking for oil spills was clear and objective, as no evidence was adduced to show the qualification of those who scored points under this heading.  Nor was it clear why there were potentially 10 points to be scored if points would only be scored by those who had the necessary qualifications.

12.	(c)	Skip Operation  

	The claimant suggested that he should have been given points for operating the skip.  He conceded that he did not have any form of qualification in relation to this matter and he agreed that he had only driven the skip lorry on one occasion.  The respondent’s evidence was that the claimant drove a skip lorry on one particular occasion because Mr Greg Wilson (a qualified skip operator) was not permitted to drive the vehicle as he was suffering from narcolepsy.  The claimant agreed that Mr Wilson had accompanied him, but indicated that he, not Mr Wilson, had operated the skip on that occasion.  The respondent was not in a position to refute this, given that Mr Wilson was not called to give evidence in relation to the matter.

13.	(d)	Scores of other Drivers  

It emerged after the matrices were provided to the claimant that he was one of four individuals who had been made redundant.  The others were Davy Barr, Alfred King and William Barr.  The claimant’s final score was 27 points, Davy Barr’s score was 21 points, Alfred King had 26 points and William Barr had 18 points.  Although Mr Barnes indicated that it was the group of “Others/general” who were being considered for redundancy, only three of those made redundant were from that group.  Mr King was one of the HGV drivers but was interviewed and subsequently selected for redundancy.  

14.	It was also put to Mr Barnes that on a previous matrix used to consider people for temporary layoff, there were a number of other additional employees identified to us during the hearing who had lower scores than the claimant and yet were not identified in May 2014 as being at risk of redundancy.  Mr Barnes had no answer for this.

15.	It was also noted that Rab Duff, a CTC engineer who was in the ‘One Man Van’ group scored 27, the same as the claimant and yet did not appear to be considered for redundancy.  He was not interviewed and nor were any of the other employees in the three groups.  Mr Barnes was of the view that they still had enough work for Mr Duff, but he did not clarify what work that was.  Mr Duff had only security clearance for CTC, which was the contract the respondent had lost.

16.	(e)	Driving Skills

Under the heading of driving skills there were potentially 15 points which could be scored.  Five points were awarded for an HGV licence, five points were awarded for the ability to drive a 7.5 ton vehicle and five points for the ability to drive a 3.5 ton vehicle.  The claimant scored 10 points as he was qualified to drive a 7.5 ton vehicle and a 3.5 ton vehicle.  His colleague John Lynch scored 15 points.  However at the time of the selection for redundancy in early May 2014 Mr Lynch did not hold an HGV licence.  He had completed the theory part of the HGV test but not the practical part and did not in fact complete this until the end of May 2014.  Mr Lynch’s ordinary driving licence at that time did not qualify him to drive a 7.5 ton vehicle and he could only do this once he had completed his HGV qualification.  His score therefore was 10 points higher than it should have been.  Had he not been given those 10 points, his score would have been 26 rather than 36 and he would therefore have scored lower than the claimant.  Mr Barnes indicated that he had accepted email correspondence from the driving assessors as evidence that Mr Lynch was obtaining his HGV licence.  When he was asked if he had checked these qualifications, he indicated that there were copies of employees’ driving licences on their file.  It was not clear however that these were ever checked.  

17.	(f)	Appeal

The claimant was challenged in relation to his failure to appeal the decision to make him redundant.  He said in his evidence that he felt that Mr Barnes’ body language at the redundancy meeting indicated that there was not much point in him lodging an appeal.  It was put to him that there would be the opportunity for him to appeal and that he had failed to do so.  The record of the redundancy meeting notes that the claimant asked, “How would it be if I appealed this?”.  Mr Barnes’ reply was as follows:-

	“What would happen then is I would inform them this afternoon.  First of all the meeting would happen this afternoon for a decision to be made, then I will telephone you this afternoon when the decision is made.  If you decide to appeal at this stage I will let the parties know.  You will probably still be on gardening leave during the appeal process and then once the appeal date is arranged it will be Stephen Kennedy or Eric Barnes dealing with the appeal.  I cannot deal with the appeal as it has to be a different party at a higher level as we go along.”

18.	The claimant then said, “Okay, so I would be as well appealing it then wouldn’t I?” and the reply was, “It’s up to yourself”.  The claimant then said, “Well you can write it down, Colin” to which Mr Barnes replied, “It’s up to yourself”.  This to us infers the claimant intended to appeal, and Mr Barnes at that meeting did not suggest the appeal had to be in writing.

19.	We assume the claimant was subsequently advised that he had been selected for redundancy, although no copy of any letter which was sent to him in relation to this matter was opened to us during the hearing.  We were not given any direct evidence by the claimant as to how he was actually told of his redundancy, apart from the meeting with Mr Barnes, nor did Mr Barnes refer to any dismissal letter notifying the claimant of his right to appeal in his evidence.  

20.	Following the end of the claimant’s employment with the respondent on 27 May 2014, the claimant commenced employment as a caretaker / cleaner on 11 September 2014.  His pay in this job is £252.71 per week net.  His evidence was that he generally worked overtime while employed by the respondent, supplementing his basic pay by earning £160.00 per month on top of his basic wage.  This was not disputed by the respondent.  Occasionally the claimant was also called out to jobs overnight during the last year of his employment with Dyno Rod and received a call out payment of £150.00 on each occasion.  The respondent’s evidence was that there was a second series of redundancies made in the autumn of 2014 and that at this stage John Lynch was also made redundant.  They therefore submitted that even if the claimant had not been selected for redundancy in May 2014, it was highly likely that he would have been made redundant in the autumn of 2014.

The Relevant Law  

21.	The relevant law in relation to unfair dismissal is to be found at Article 130 of the Employment Rights (Northern Ireland) Order 1996 which provides as follows:-

“Article130(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show:-

(a)	the reason (or, if more than one, the principal reason) for the dismissal; and

(b)	that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

22.	(2)	A reason falls within this paragraph if it ‒

(a)	relates to the capability or qualifications of an employee for performing work of a kind which he was employed by the employer to do;

(b)	relates to the conduct of the employee; 

(c)	is that the employee was redundant; or

(d)	is that the employee could not continue to work in a position which he held without contravention (either on his part or that of his employer) of a duty or restriction imposed by or under a statutory provision ...

	(4)	In any other case where the employer has fulfilled the requirements of paragraph (1) the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) ‒

(a)	depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b)	shall be determined in accordance with equity and the substantial merits of the case; 

Article 130A Procedural Fairness

(1)	An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if:-

	(i)	One of the procedures set out in Part I of Schedule to the Employment (Northern Ireland) Order 2003 (dismissal and disciplinary procedures) applies in relation to the dismissal;

	(ii)	the procedure has not been completed; and

	(iii)	the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with this requirement.

	(2)	Subject to paragraph (1) failure by an employer to follow up a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure ...”

23.	In relation to redundancy, it is well established in case law that a proper consultation must be undertaken in advance of a decision to make redundancies.  The leading case in the matter is Williams  v  Compair Maxam Ltd [1982] IRLR 83 which was affirmed by the Northern Ireland Court of Appeal in Robinson  v  Carrickfergus Borough Council [1983] IRLR 122.  The guidance given by Browne–Wilkinson J in the Employment Appeal Tribunal in Williams was as follows:-

		“(a)	Employers must give as much warning as possible of impending redundancies so as to enable the union (where applicable) and employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and, if necessary, find alternative employment in the undertaking or elsewhere.  

		 (b)	Employers must consult unions on the redundancy procedure and seek to agree with the union the criteria to be applied in selecting the employees to be made redundant.

		(c)	Whether or not an agreement as to the criteria to be adopted has been reached with the union, employers will seek to establish criteria for selection which so far as possible do not depend solely on the opinion of the person making the selection, but which can be objectively checked against such things as attendance record, efficiency of the job, experience or length of service.  

		 (d)	Selection must be made fairly in accordance with these criteria and employers should consider any representations made by the union (or if appropriate the individual concerned) as to such selection.

		 (e)	Employers must seek to establish whether, instead of dismissing an employee, he could be offered alternative employment.”

24.	The position was summed up by Lord Bridge in the decision of the House of Lords in Polkey  v  Dayton Services Ltd [1988] ICR 142 where he held as follows:-

	“In the case of redundancy an employer will not normally act reasonably unless he warns and consults any employee affected or their representative, adopts a fair basis in which to select for redundancy and takes such steps as may be reasonable to avoid or minimise redundancy by redeployment within his own organisation.”

25.	We were also referred to the decision in Software 2000 Ltd  v  Andrews and Others [UKEAT/0533/06/DM] which dealt with the question of whether the tribunal is bound to consider whether a fair dismissal might have occurred if proper procedures been followed.  It was held that:-

	“The question is not whether the tribunal can predict with confidence all that would have occurred; rather it is whether it can make any assessment with sufficient confidence about what is likely to happen, using its common sense, experience and sense of justice”.  

In Alexander and Hatherley  v  Bridgen Enterprises [2006] ICR 1277, the employer was in financial difficulties and therefore implemented a criteria system for assessment for who was to be made redundant.  Giving judgment in that case Mr Justice Elias held that:-

	“The question here is whether the tribunal could properly adopt such a working hypnosis ... Other employees might have been selected ahead of the appellants.

	We do not accept that.  The tribunal concluded that it was plain that whatever criteria had been adopted, the employers would have been seeking to dismiss the weaker performers amongst the group of welders.  The tribunal had evidence about the performances of all those in the relevant group considered for selection.  It found in terms that these were the least skilled and least able and moreover, notwithstanding Mr Gallagher’s defective assessment in relation to others, that his marks here were justified and appropriate ... this was no mere speculation but was a conclusion rooted in solid evidence”.

26.	The pool for redundancy:  The question of how a redundancy pool should be defined was clarified by Mr Justice Mummery in Taymech  v  Ryan [1994] UKEAT 633_94_1511 where he stated:-

	“There is no legal requirement that a pool should be limited to employees doing the same or similar work.  The question of how the pool should be defined is primarily a matter for the employer to determine.  It would be difficult for the employee to challenge it where the employer has genuinely applied his mind to the problem.”

Reasons and Decision

27.	The issue for the tribunal to decide was whether the claimant was unfairly dismissed when he was selected for redundancy in May 2014.  The first matter we have to consider is whether we are satisfied that there was a redundancy situation at the time.  We heard evidence from Mr Barnes that the respondent had lost a significant contract which ended in April 2014.  We were also aware that the Amey contract which was to run on to November 2015, had work scheduled for 2014 which had already been completed in the Spring of 2014.  We are therefore satisfied that there was a reduction in work being carried out by the respondent and as a result, there was indeed a redundancy situation.

28.	The next matter we need to consider is whether the redundancy procedure adopted by the employer in this matter was a proper and fair one.  It is also well established in case law and in the Labour Relations Agency’s Code of Practice on Redundancy Procedures, that the employer should take certain preliminary steps before moving to compulsory redundancy.  They should consider alternative steps such as short time working or inviting applications for job share, with a review to avoiding redundancy.  It is usual, and considered good practice, to invite employees to consider whether they wish to apply for voluntary redundancy, and to consider any such applications before moving to compulsory redundancy.  It is also considered good practice to consider redeployment to any possible vacancies within the respondent organisation in advance of compulsory redundancy.  It does not appear that any of this was done in this particular situation by the respondent, although Mr Barnes indicated that short time working was not considered viable.  He did not enlarge on why this was the case.  

29.	In relation to the procedure adopted by the respondent, Mr Barnes indicated first of all that they had prepared a new matrix for scoring of staff, because they had previously used a matrix to decide on short term working and considered that the new matrix provided would be fairer.  There was however a certain amount of confusion over this matrix as well.  Mr Barnes for example indicated that an employee could score up to 10 points in relation to being qualified to deal with oil spills, yet only one point appears to have been awarded and that to very few members of staff.  There seems to have been a policy that the oil spill qualification was mainly held by members of management, rather than operatives.  Mr Barnes then explained that the intention was to mark on a ‘binary system’, i.e. that you either have the qualification or you did not.  This does not explain why there were a potential 10 points for this qualification, or why other matters set out in the matrix could score up to 5 points.  

30.	There was no explanation given to those who were interviewed as to the basis for the points being awarded.  We know that points were awarded to John Lynch in relation to holding an HGV licence when he did not (at that time) actually hold an HGV licence.  Mr Barnes agreed the details of the driving licences for employees were on their files, but that he had not gone to check them.  It also appears that Mr Barnes and his fellow managers gave the claimant a certain score in relation to the ‘Gray Lady’ on the basis that they were satisfied he would not be capable of dealing with water jetting, but this was not discussed in any detail with the claimant.  It also seemed to us that there was a certain amount of confusion over the qualifications which were held and whether or not these were paper qualifications or skills.  We were not satisfied therefore that the scoring of staff on the matrix was carried out in an objective and a verifiable basis.  Accordingly it is our view that the entire matrix and scoring system in this process was flawed.

31.	We are also of the view that the procedure adopted by the employer in interviewing only the four lowest scoring members of staff was also flawed.  The whole idea of interviewing staff in relation to an impending redundancy is to consult with them and to clarify whether their scores on the matrix are accurate.  Not only would it be possible that the claimant’s score might have increased had there been a proper consultation meeting; it is also possible that the scores of some of his colleagues may have decreased had they been interviewed and consulted.  While Mr Lynch’s case is a very obvious example, there may have been others.  We do not know for sure because we do not have the information in relation to the others.  We do know however that the claimant scored the same as Rab Duff, one of the “one man van” drivers.  When Mr Barnes was asked why Mr Duff was not also interviewed, his answer was that that they still had work for Mr Duff to do.  He did not enlarge on this and it is not clear to us why this should be the case, because Mr Duff, unlike the claimant, was security cleared only for the CTC contract, which was the contract which had been lost.  It is possible therefore that had other employees been interviewed and their scores carefully analysed, that the outcome of the redundancy process might have been different.

32.	We must also consider whether, if a proper procedure had been followed, the claimant would still have been made redundant in May 2014.  There is no evidence before us to suggest that he would have been.  In the first place Mr Lynch would have scored 10 points less than his score of 36, indicating that he would have scored lower than the claimant.  Secondly, if there had been an evaluation between Mr Duff and the claimant it is possible that the claimant’s job would have been saved and Mr Duff at that stage would have been made redundant.  We cannot say for sure, but there is nothing to show us clearly that the claimant would in any event have been made redundant.

33. 	The respondent also argued that the claimant would have been made redundant in October 2014, when the second round of redundancies took place.  The only information which was put forward in relation to this was that Mr Lynch was made redundant in October 2014 and that others were made redundant at that time.  	We were not told whether the same procedure was used for redundancies in October as had been used in May 2014.  If it was, then the system was still flawed.  Applying the ruling in Alexander v Bridgen Enterprises (paragraph 25 above), we do not have sufficient information before us to show that the claimant would, in all probability, had been made redundant in October 2014 and we are unable therefore to make any finding to that effect.  

34.	It is therefore our finding that the claimant was unfairly selected for redundancy in May 2014 in that the respondent failed to use a proper objective procedure for selecting staff for redundancy and on this basis we find that the dismissal was unfair.  We cannot say with any certainty that if a proper procedure had been followed the claimant would in any event been dismissed, either in May 2014 or October 2014.  Accordingly it is our finding that the claimant was unfairly dismissed, and the respondent is liable to pay him damages accordingly.

35.	The schedule of loss put before us quite properly took account of the fact that the claimant had been paid a redundancy payment which is to be offset against the basic award of compensation awarded in an unfair dismissal case.  In this case, the basic award and the redundancy payment are the same amount, and therefore there should be no award in relation to the basic award.  

36.	In relation to the compensatory award, we believe the correct amount would be as follows.  The claimant’s net pay while working for the respondent was £253.00 per week.  He was dismissed on 27 May 2014 and the date of the tribunal hearing was 3 December 2014, a period of 27 weeks.  

The compensatory award therefore should be made up of the following amounts:-

Loss of basic salary to date of tribunal –
27 weeks from 27 May to 3 December x £253 per week	£6,831.00

			Loss of statutory rights						£   300.00

			Loss of overtime pay (average £160 per month) x 5 months	£   800.00
			
			Total compensatory award						£7,931.00

	We are satisfied that the claimant was given his proper notice period and he did not give any evidence that he had not been paid during his notice period.  There was a claim for loss of call out payments, but we consider it inappropriate to make any award in relation to this as these appear to be sporadic and not part of the claimant’s regular pay.

	The claimant started work in a new role on 11 September 2014.  His net pay in that job is £252.71 per week and at the date of the hearing he had worked for 12 weeks from 11 September to 3 December 2014.  The compensatory award is therefore to be offset by the following amount:-

									    £252.71 x 12 = 	£3,032.52

The balance compensatory loss to the date of hearing is therefore 	£4,898.48.

37.	Future Loss: - In relation to future loss, the claimant is earning slightly less in his new job, namely 29p per week.  We consider it appropriate to award him an amount of 52 weeks of future loss, namely £15.08 for the year.  

We also consider it appropriate to make an award in relation to loss of overtime for 12 months to be calculated as follows:-

									£160.00 x 12 = 	£1,920.00

We therefore order the respondent to pay to the claimant the total sum of £6,833.56 as set out above.

38.	The claimant had included a claim for failure to provide a written statement of particulars of contract in the schedule of loss.  However this was not included as part of his claim before the tribunal and accordingly we cannot make any award for this.

39.	The respondent sought a reduction in the amount of the compensatory award, on the basis that the claimant had not followed the statutory procedures in that he had not lodged an appeal.  Under Article 17 of the Employment (Northern Ireland) Order 2003, any award made to an employee may be reduced or increased, depending on whether the employee or the employer has failed to comply with steps in the statutory dismissal procedures.  Article 17(2) provides as follows:-

	“172 (2) 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 is 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 employee –

(i)	to comply with a requirement of the procedure, or 

(ii)	to exercise a right of appeal under it, 
it shall, subject to paragraph (4), reduce any award which it makes to the employee by 10%, and may, if it considers it just and equitable in all the circumstances to do so, reduce it by a further amount, but not so as to make a total reduction of more than 50% ...

(4)	The duty under paragraph 2 (or 3) to make a reduction or increase by 10% does not apply if there are exceptional circumstances which would make a reduction or increase on that percentage unjust or inequitable in which case the tribunal may make no reduction or increase or a reduction or increase of such lesser percentage as it considers just and equitable in all the circumstances.”

40.	The respondent sought a reduction in the award, on the basis that the claimant had failed to lodge an appeal.  As we have set out above, any correspondence to the claimant in relation to his right of appeal was not opened to us.  It is clear from the transcript of the redundancy meeting however that the question of an appeal was discussed between the claimant and Mr Barnes and that the claimant at that stage seemed to wish to pursue an appeal.  Indeed he said to Mr Barnes, “Well, then, Colin, write it down”, which to us infers that he wished Mr Barnes to treat him as having lodged an appeal.  We are conscious that the claimant was not in a clerical job, he was working as a general operative for a company specialising in industrial cleaning.  From this we surmise that he was not usually dealing with a lot of paperwork, and that it would be reasonable for him to tell Mr Barnes verbally that he was seeking an appeal.  Mr Barnes did not, in that conversation, make it clear to the claimant that he would need to lodge an appeal in writing.  On the basis of the information before us, we accept that the claimant indicated he wished to appeal the decision to make him redundant, but did not seem to pursue it. In all the circumstances, we consider that these are exceptional circumstances which would make a reduction of the award to the claimant unjust or inequitable in this case.  We consider it appropriate not to make any reduction in the award to the claimant in this case.  

41.	Accordingly it is our finding that the claimant was unfairly dismissed and that the respondent shall pay to the claimant the amount of £6,833.56 as calculated at paragraphs 41-43 above.  No information was given to us in relation to any benefits received by the claimant while unemployed, and we do not therefore consider it appropriate in this case to make any order for recoupment. 

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

Employment Judge

Date and place of hearing:	3 December 2014, Belfast		

Date decision recorded in register and issued to parties: