THE INDUSTRIAL TRIBUNALS

CASE REF:  6609/09

CLAIMANT:		Nigel Darling

RESPONDENT:		Nortel Networks UK Ltd (in administration)

REASONS

Constitution of Tribunal:

Employment Judge:	Employment Judge Buggy

Members:			Mr E Grant
Mr B Hanna

Appearances:

The claimant was not present or represented.

The respondent was not represented.

1.	A hearing in respect of this unfair dismissal claim, both in relation to liability and in relation to the amount of compensation, was held on 5 April 2017.  

2.	We announced our decision at the end of the hearing.  At the same time, we gave reasons for our decision orally.

3.	The effect of paragraph (3) of Rule 30 of the Industrial Tribunals Rules (“the Rules”) can be summarised as follows.  Where oral reasons for a Decision have been provided, written reasons must be provided, if requested by one of the parties within the time limit which is set out in Rule 30.  

4.	The claimant did write to the Office of the Industrial Tribunals, in an email dated 10 May 2017, which was within the relevant time limit.  We have treated that email as a request for written reasons.  

5.	Our reasons are as follows.

6.	We were satisfied that this was an unfair dismissal, in light of the uncontroverted contention, in the claimant’s claim form, that no consultation took place, with the claimant or with his representatives, at any time prior to the time when the dismissal took place.

7.	Unfair dismissal compensation, in the circumstances of this case, consists only of two components:  a basic award and a compensatory award.  

8.	The claimant is not entitled to a basic award because he has already received a payment in respect of redundancy pay:  See paragraph (4) of Article 156 of the Employment Rights (Northern Ireland) Order 1996 (“ERO”).  

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

10.	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.” 

11. 	Accordingly, pursuant to Article 157(1), the claimant was clearly entitled to recover, by way of compensatory award, in respect of any loss sustained by him, provided that two conditions were met in relation to any such loss:

			(1)	Any such loss had to be sustained in consequence of the dismissal.

			(2)	Any such loss had to be attributable to the dismissal.

12.	The claimant has not proven that, during any relevant period, he sustained any financial loss in consequence of the dismissal.  

13.	In the claimant’s email of 10 May 2017, he raised the following point:

		“I am still utterly at a loss as to how “unfair dismissal” has morphed into “loss of earnings”.  We were all unfairly dismissed, therefore we should all get the same pay out!  Please explain if how this is wrong.”

14.	Our explanation in relation to that query is as follows.  The claimant obviously considers that it would be more just if the law on unfair dismissal compensation focused on the degree of injustice sustained, by reason of the dismissal, by any particular claimant (as distinct from focusing on the extent of the financial loss sustained by that claimant as a result of that dismissal).  

15.	However, an industrial tribunal does not have the discretion to decide what the law should be.  Instead, we are under an obligation to apply the law as it is.  

16.	The law in relation to the assessment of the amount of compensatory awards in unfair dismissal cases is, in all relevant respects, quite clear:  The amount of the compensatory award has to be based on the amount of financial loss, resulting from the dismissal, which the claimant can prove.  

17.	Unfair dismissal legislation provides compensation only in respect of pecuniary losses:  see Dunnachie v Kingston upon Hull City Council [2004] ICR 1052, especially at paragraph 22 of the judgment.  Accordingly, as a general rule, an employee who is unfairly dismissed can only recover, by way of compensatory award, in respect of the loss which is the outcome of the unavailability of alternative employment (employment which can be obtained in place of the employment from which the claimant was dismissed).

18.	That general rule is subject to one relevant exception.  It is settled law that an employer which unfairly dismissed an employee is liable, as part of the compensatory award, for any loss sustained by that employee by reason of subsequent unfitness for work, if that unfitness has occurred as a consequence of the dismissal, “in so far as that loss is attributable to action taken by the employer”.  (See, for example, Dignity Funerals Ltd v Bruce [2005] IRLR 189). Relevant legal principles are set out in the “Decision on remedies” of an industrial tribunal in Wylie v RFD Ltd [2009] NIIT/9466/03IT [decision issued on 09 April 2009].  A copy of the Wylie decision is being sent to the claimant along with these reasons.     

19.	In this case, the claimant did not prove that, at any time after the date of the relevant dismissal, he was unfit for work as a result of the dismissal.   

20.	On 30 March 2017, the claimant had provided a written statement, in advance of the hearing to the Office of the Industrial Tribunals.  In that written statement, he drew attention to what he asserted were the negative psychological effects, and the general misery, which he had suffered as direct or indirect results of the relevant dismissal.  

21.	As we pointed out in our Decision, the assertions in that document provide an impressively eloquent and forthright reminder of the negative effects which can occur within the context of a redundancy-related dismissal.  However, we did not read that document as indicating that the claimant had suffered financial loss as a result of any illness which was a consequence of the relevant unfair dismissal.  

22.	Whenever an employee loses his job, he also loses the statutory protections which his length of service with the relevant employer has helped to create.  (For example, an employee cannot complain of unfair dismissal, as a general rule, until he has been employed by the relevant employer for at least a year; and an employee cannot obtain a redundancy payment unless he has been employed by the relevant employer for at least two years).  For those reasons, even in the absence of any proof of any relevant loss, we awarded the sum of £350 to the claimant on account of “loss of statutory rights”.  

Employment Judge:       

Date and place of hearing:  5 April 2017, Belfast. 	

Date decision recorded in register and issued to parties: