Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:   6952/09

 

 

 

CLAIMANT:                      Brenda Donaghy

 

 

RESPONDENT:                Eavan Kennedy t/a EK Eyewear

 

 

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed and it is ordered that the respondent shall pay to the claimant the sum of £7,326 compensation in respect of that unfair dismissal.

 

Constitution of Tribunal:

Chairman:    Mr P Buggy

Members:    Ms V Walker

                    Mr J Nicholl

 

         

Appearances:

The claimant was represented by Mr K McCabe.

 

The respondent was represented by Mr M McEvoy, Barrister-at-Law, instructed by MKB Russells Solicitors.

 

REASONS

 

1.              The respondent runs an optician’s practice.  She is a sole practitioner.  The claimant was employed by the respondent as a receptionist.  The claimant was the respondent’s only full-time employee.  She was employed by the respondent from April 2004 until June 2009.

 

2.              According to the claimant, her employment came to an end because she was dismissed by the respondent.  According to the respondent, the claimant’s employment came to an end because she resigned.

 

The issues, the arguments and the evidence

 

3.              The claimant does not suggest that she has been constructively dismissed.  Therefore, as Mr McCabe realistically recognises, the claimant’s claim of unfair dismissal is not well-founded if she resigned.

 

4.              The respondent’s clear position is that the claimant resigned.  Accordingly, the respondent does not put forward any reason for any “dismissal” of the claimant.  Furthermore, if the claimant was dismissed, no dismissal process was followed.  Accordingly, Mr McEvoy realistically recognises that if the claimant was dismissed, this was an unfair dismissal and it was an automatically unfair dismissal (in the sense in which that term is used in the context of Article 130A of the Employment Rights (Northern Ireland) Order 1996, which is referred to in this Decision as “the 1996 Order”). 

 

5.              The claimant gave evidence on her own behalf.  The respondent gave evidence on her own behalf.  We also saw a bundle of documents, consisting of over 150 pages.  (We told the parties that, for evidential purposes, we would not take account of any document in the bundle unless our attention had been drawn to that particular document by one or more of the parties).  We also saw some miscellaneous documents which were provided to us during the course of the hearing.

 

The facts (liability)

 

6.              For ease of reference, and in order to minimise avoidable duplication, we have set out some findings of fact in other paragraphs of this Decision.  However, this paragraph contains many of the findings of fact which are generally relevant, or which are relevant to the liability issues which we have determined:-

 

(1)            The claimant was recruited by the respondent in April 2004, as her then employer was “selling up”.  She continued to work for the respondent for five years thereafter.  They had a very good relationship, both professionally and personally.  In the months leading up to the termination of the claimant’s employment in June 2009, the claimant felt that there was more and more pressure on her to perform better, even though she also felt that she was giving 100% to the job.  Because of other commitments, the respondent was not always promptly and readily available to discuss the claimant’s concerns (in relation to those matters) with the claimant.

 

(2)            On 4 June 2009, a week before the termination of the claimant’s employment, she had a conversation with the respondent in relation to a Marketing Report.  During the course of that conversation, the claimant made reference to the respondent’s reaction to the death of her parents.  That remark was made in the heat of the moment.  The claimant had not meant to hurt the respondent.  However, the respondent was deeply hurt by that remark.

 

(3)            Next morning, the respondent told the claimant that she was on a verbal warning.  No procedure was followed.  She simply came into the practice and told the claimant that she was on a verbal warning.

 

(4)            The claimant’s reaction to this was as follows.  She considered herself to have an impeccable 30 year work record.  She felt she had done nothing to deserve a verbal warning.  She was most upset by the warning.  She told the respondent that she was going to contest the warning by all means possible.  She came to the conclusion that she probably was no longer wanted in the practice.

 

(5)            Over the ensuing week, she became more and more stressed.  On Saturday 13 June, she decided to raise the issue again and to tell the respondent how stressful the situation was.

 

(6)            The respondent accepted that the claimant was stressed and indicated that she (the claimant) would need to go and see her doctor.  She told the claimant to go home and that she (the respondent) would contact the claimant later.

 

(7)            She did contact the claimant by phone later that afternoon.  During the course of that conversation, she told the claimant that she (the claimant) did not need to come back to work.  She also stated that the issues between the claimant and the respondent could be resolved through a Compromise Agreement within a week or by the middle of the following week at the latest.  She asked the claimant to give her the claimant’s solicitor’s details.

 

(8)            Less than a week later, she sent the claimant, by post, a draft Compromise Agreement.  Under that Compromise Agreement, the claimant would receive a sum of money from the respondent in return for abandoning any claims, arising out of the termination of her employment, which might otherwise have been available to her.  The terms of the draft Compromise Agreement had not been agreed with the claimant. 

 

(9)            Later that week, the respondent sent the claimant a cheque, a pay-slip and her P45.  She promptly returned both the cheque and the payslip.

 

(10)        It will be helpful at this point to consider the facts in somewhat greater detail.

 

(11)        The respondent was always very concerned with customer care.  She was always concerned about the possibility of losing business.  In early 2009, she arranged for a Retail Therapy Mystery Shopping Report to be compiled.  According to the report, the subjective impression of the Mystery Shopper was that the “first impression”, created by the receptionist, was “very poor”.  The Shopper “felt” that it was difficult to get answers, from the claimant, to their queries.  The Shopper “thought” that the claimant’s customer service was “all very poor”.  The Shopper’s experience “in store” was “not very pleasant”.

 

(12)        The respondent was very upset about the report.  She provided the claimant with a copy of the report on 3 February 2009.  At that time, there was a brief constructive conversation between the claimant and the respondent. 

 

(13)        According to the response which was presented in these proceedings, the claimant admitted on 5 February 2009 that there was a problem with her demeanour/attitude towards customers which required improvement.  We accept that this was the respondent’s genuine understanding of what the claimant was saying during the 5 February meeting.  However, the reality is that the claimant never accepted that she had “a problem”, in those stark terms.

 

(14)        Later during the first half of 2009, the claimant achieved an excellent outcome for the practice in an NHS inspection, and was “applauded” for this success by the respondent.

 

(15)        A second Mystery Shopper’s Report was commissioned.  This related to a visit to the practice on 27 May 2009.  The report was received by the respondent in early June 2009.  She was alarmed by its findings.

 

(16)        Again, the report was couched in subjective terms:

 

(a)                  According to the Shopper the receptionist’s service was “lacking in warmth and enthusiasm”. 

 

(b)                  When the Shopper asked if the business was definitely open, the claimant, according to the Shopper, almost “rolled her eyes”. 

 

(c)                  According to the Shopper, the claimant was very knowledgeable but “she lacked warmth and most definitely lacked in selling skills”.

 

(17)        On 4 June 2009, at 6.30pm, the respondent asked the claimant to read this second report.

 

(18)        The respondent told the claimant, as a reaction to that report, that she (the respondent) could assist the claimant in the areas of merchandising, product knowledge etc, but that she was unable to teach the claimant to be warmer, or to give a friendly impression.  The respondent asked the claimant to reflect on the issues raised in the report.  The respondent also told the claimant on that occasion that the perception gained by customers, as a result of the claimant’s style, was, in the view of the respondent, having a very detrimental effect on the business.

 

(19)        In that context, the claimant asserted that she was under pressure in the business at times.  However, we are satisfied that she did not accept that she was at fault.

 

(20)        On that occasion, the claimant made a remark to the effect that, if she (the claimant) was not the person for the respondent’s business she would have to go.  The respondent’s reaction was to assure the claimant that there was no question of her being asked to go.  However, the respondent also made it clear that what the respondent regarded as the poor level of customer service could not continue.  A further discussion was scheduled to take place on either Saturday 6 or Tuesday 9 June 2009.

 

(21)        The two women did have a discussion about the matter at around 5.30pm on 9 June.  During that discussion, the respondent asked the claimant to take the Mystery Shopper Report home with her, so that it could be discussed the following day.  The claimant declined to do so.  She said she wasn’t taking work stress home.  The respondent reacted by telling the claimant that, on reflection, she (the respondent) was “very worried” about the consequences of the claimant’s reception style for the respondent’s business.

 

(22)        The claimant’s reaction was indicative of stress, frustration and considerable unhappiness.  She told the respondent that she could do no more for her in this job.  She said that she felt that she gave 200%.  She said that she felt that there was always negativity and an atmosphere.  She suggested that it was time for the parties to go their separate ways.  She asserted that the respondent’s attitude was that whatever she (the claimant) did was not good enough.  She was very dismissive of the Mystery Shopper Report.  She also talked about “this” being “the end of the line”.  We are satisfied that, when the claimant talked about it being time for the parties to go their separate ways, and when she talked about it being the end of the line”, she was merely expressing herself in colourful language, and was not announcing an unequivocal, or unconditional, or immediate, intention to terminate the contract of employment.

 

(23)        She went on to make a remark to the effect, that if she had a penny for every complaint she heard about the respondent, she would be wealthy; that the respondent persistently made excuses for the respondent’s own behavioural failures, that the respondent “brought her down” and that the respondent “was the problem”.  However, the most significant remark which the claimant made at that time was a remark to the effect that “there was always something with the respondent”, whether there was the commitment of training for a marathon or her parents having just died. 

 

(24)        The respondent was deeply hurt as a result of this remark about the deaths of her parents.  In our view, from a subjective point of view, that reaction was both understandable and appropriate, although we ourselves are satisfied that the claimant’s remarks in relation to the deaths of the respondent’s parents were made in the heat of the moment and were not intended to offend the respondent. 

 

(25)        On the following morning, the respondent told the claimant that she was giving her a verbal warning.  The claimant reacted angrily. 

 

(26)        On 11 June 2009, the claimant told the respondent that she had sought advice about the verbal warning and that as a result of that advice, she (the claimant) knew that what the respondent had done was “completely illegal”.

 

(27)        On Friday 12 June 2009, the claimant was off sick.  The two women communicated that day through texting.  By that stage, they were both alive to the possibility that they would end up in an industrial tribunal.  Accordingly, the tone and content of the texts reflects their awareness in that regard.

 

(28)        The claimant returned to work on the morning of Saturday 13 June 2009.  The respondent’s enquired about the claimant’s health.  At 1.15 pm, the claimant approached the respondent, indicating that she had been speaking again to her advisor and that she really needed to know what was happening in relation to the verbal warning.  She stressed that she wanted to clear her name. 

 

(29)        She told the respondent that, because of the stress, she (the claimant) was unwell.  Accordingly, she would be going on sick leave as and from Monday.

 

(30)        During the 9 June meeting, the claimant asserted that if she left, the respondent “… will not find someone who can do the job I do”. 

 

(31)        During the course of that same meeting, the claimant promised the respondent that she would not walk out of the job.  She wasn’t like that, she explained, so she would stay on, train the replacement staff member up, and she would not leave the place in the lurch.  She said that she was someone with a conscience.

 

(32)        The respondent’s reaction to those remarks was to tell the claimant that if she had decided her intentions, she would be better to put this in writing, to formalise the decision, because that would keep both herself and the respondent right; the rest of it could be worked out later.

 

(33)        What was happening here was that the claimant was talking about the parties going their separate ways, without committing herself to such an outcome.  However, the respondent was interpreting those remarks as constituting a firm intention on the part of the claimant to resign.  Such an interpretation was not a reasonable interpretation of what the claimant had said and done.

 

(34)        During the Saturday meeting, when the claimant said that she wouldn’t be coming back to work (that she would be remaining off on the sick) until the verbal warning issues had been resolved by a tribunal, she threatened the respondent that any such proceedings would be “messy” from the respondent’s point of view.  In that context, she said that she (the claimant) was a reasonable person who did not want to ruin anyone or anyone’s business.  She didn’t want to “go down that route”.

 

(35)        At this point, the respondent put up her hand and said “Brenda, I want to ask you a question.  Please answer this as honestly as you can.  Do you want to work here with me?”.

 

(36)        The claimant’s response was that, until a week ago, she would have said “yes” but now she wasn’t sure.

 

(37)        The respondent asked the claimant what did she want and she said that she wanted her reputation back and she wanted a couple of months salary to help her find a new job.

 

(38)        The context of those remarks was that the claimant was reacting to queries from the respondent as to what it would take to terminate the contract of employment upon an agreed basis.  She was not offering to terminate her employment.  She was not terminating her employment there and then.  She was not unequivocally telling the respondent that her employment would be voluntarily terminated by her, regardless of the relative generosity or the relative meanness of any financial offer which might be forthcoming from the respondent.

 

(39)        However, again, there was some wishful thinking on the part of the respondent.  Her interpretation was that the claimant was unequivocally and unconditionally offering to resign.  The respondent said that she would have to seek advice about this.  The claimant said that she needed to know today.  The respondent construed this as a demand on the part of the claimant to know about the arrangements for the claimant’s resignation.  In reality, what the claimant mainly wanted to know about was the mechanism by which the verbal warning could be undone.

 

(40)        The respondent told the claimant that the first time that she could meet with her advisor would be at 3.30pm on the same day, after the opticians had closed.

 

(41)        However, she had a cancelled appointment.  As a result, she was able to speak to her advisor at an earlier stage during the day.  She phoned the claimant about 4.30 pm.

 

(42)        During the course of that call, she told the claimant that she had sought advice and that: “as you have decided to move on, the best way for an amicable parting between us is by way of a Compromise Agreement”.  She asked the claimant if she knew what a Compromise Agreement was.  The claimant said “that is what I want”.

 

(43)        However, the reality is that there was a misunderstanding between the two women.  By the time of the 4.30pm. phone call, the respondent knew that a Compromise Agreement is the  mechanism whereby a contract of  employment is ended on a basis that precludes the employee from pursuing employment-related matters in the industrial tribunal. Until her advisor had explained that to her, the respondent had not known what a Compromise Agreement was.

 

(44)        By the time of the 4.30pm. phone call, nobody had explained to the claimant what a Compromise Agreement was.  Accordingly, when the claimant heard the respondent talking about a Compromise Agreement, she was delighted, because she thought that the respondent was talking about a general mechanism (as distinct from a specific form of legal agreement).  She thought that, under that general mechanism, they would be able to resolve their differences on an agreed basis, and that they might even be able to move forward together.  When she took that call, the claimant was very stressed; she did not see the call as being a reaction to a perception on the respondent’s part that she (the claimant) was actually in the process of resigning.

 

(45)        On Tuesday 16 June, a Compromise Agreement was sent by the respondent’s solicitors to the claimant.

 

(46)        The claimant’s response to that communication was to send an angry text message to the respondent in the following terms:-

 

“Got ur letter no idea wats goin on with u as usual.  I made no agreement with u as usual u don’t listen to me.  U left me only one road open and that’s the road I’m taking”.

 

(47)        The letter of 16 June 2009, which was drafted by the respondent’s solicitor, was in the following terms:-

 

“I refer to our discussion on Saturday 13 June and now enclose draft Agreement about which you should seek independent legal advice.  Perhaps you would have your solicitor contact Shaun Fisher [at the address given] in relation to any matters arising”.

 

(48)        The accompanying Compromise Agreement included an “independent advisors certificate” which would have certified that the independent advisor had advised the claimant of the terms of terms of the Compromise Agreement and about its potential effects on her ability to pursue her rights before an industrial tribunal.

 

(49)        By Friday 18 June, Mr McCabe, the claimant’s representative in these proceedings, was writing to the respondent in the following terms:-

 

“I am representing Mrs Brenda Donaghy following her dismissal from your employment on Saturday 13 June 2009 [On] that date you advised Mrs Donaghy that “you do not need to come back to work” you further advised “That this can be resolved within a week – or the middle of next week at the latest – if you simply give me your Solicitor’s details.

 

I am returning documentation that you forwarded to Mrs Donaghy on 16 June 2009 [This] was received by Mrs Donaghy on 17 June 2009.

 

We are at a loss as to why you sent this letter/Compromise Agreement (presumably drafted by your Solicitor) as Mrs Donaghy neither resigned [nor] left her position as Optical Receptionist within your company.

…

 

I can advise that Mrs Donaghy will now institute proceedings alleging unfair dismissal and termination of her contract of employment”.

 

(50)        The next written communication was on 24 June 2009, when the respondent wrote to the claimant in the following terms:-

 

“I understand that a Mr Kevin McCabe has spoken with my Solicitor.  He alleges that you were dismissed by me on Saturday 13 June 2009.  This is categorically denied: our discussion on that date culminated in a clear and unequivocal agreement that your employment would terminate amicably and by mutual consent.  With this letter I enclose your P45 and a cheque in the sum of £1,832.29 …”

 

(51)        The letter of 24 June was obviously drafted by the claimant’s solicitor. 

 

(52)        It is noteworthy that the letter of 24 June does not suggest that the claimant’s employment had not terminated.

 

(53)        The letter of 24 June provoked an angry text message, which the claimant sent to the respondent on 26 June 2006.  That text message was in the following terms:-

 

“Got ur letter lol u have wats called selective hearing.  I agreed to discuss the situation with u friendly as I knew u were lookin rid of me in my heart.  Thought we cud come to an arrangement were none of us lose out?  The next thing u tell me not to come back and get a solicitor”.

 

(54)        In our view, that text message accurately reflects the claimant’s understanding on the afternoon of 13 June about the nature, purpose and context of the Friday 13 June 4.30pm phone call.  In our view, that understanding was a reasonable understanding, given what the claimant saw and heard on that date.

 

(55)        In our view, the reality of the situation is that the claimant was not resigning on that date.  Nor was she, on that date, committing herself to resignation.

 

The law (liability)

 

7.              In the course of oral argument, Mr McEvoy drew our attention to the cases of Logan Salton v Durham County Council [1989] IRLR 99, Staffordshire County Council v Donovan [1981] IRLR 108 and Birch and Humber v The University of Liverpool [1985] IRLR 165.  As those cases emphasize, it is in principle possible for a legally effective resignation to occur even if that resignation is the result of negotiation and discussion, between employer and employee, which took place against a background of concerns being expressed by the employer, either regarding the performance of the employee or regarding the future viability of the employment relationship.

 

8.              However, we consider that the main trend of the relevant case law can be summarised as follows.  If the claimant “resigns”, because of an express or implied threat of the employer to dismiss her if she does not resign, then this is a dismissal in law.  On the other hand, if the claimant resigns because she is content to resign on terms which she has negotiated and which are satisfactory to her, then (if that is the main reason for the resignation), this is a true resignation in law.  In the first situation (in which the employer’s threat is the main reason for the dismissal), the employer is really terminating the contract of employment.  In the second situation, it is the employee who is truly terminating the employment contract.

 

Conclusions (liability)

 

9.              Against the following background and for the following reasons, we are satisfied that, during the second telephone conversation of 13 June, the claimant was dismissed by the respondent. 

 

10.           The parties are agreed that the contract of employment came to an end during the course of the second 13 June telephone conversation.

 

11.           The implications of any words depend on matters such as tone, context and the precise words used.  After the event, participants in a conversation may not precisely remember the precise words used, even when they have taken the trouble to take a note of the conversation soon after it has concluded.

 

12.           In the circumstances of this case, the claimant and the respondent were best placed to know whether the contract of employment came to an end during the relevant conversation.  Both have concluded that it did.  We therefore regard that aspect of the matter as an established, agreed, factual conclusion.

 

13.           The remaining issue is whether or not the termination occurred because of dismissal or because of resignation.  (The parties are now agreed that there are only those two options, and that the employment terminated either because of dismissal or because of resignation).

 

14.           We are satisfied that the termination did occur because of dismissal.

 

15.           In arriving at that conclusion, we have taken account of all our primary findings of fact and have taken particular account of the following matters.

 

16.           First, it is highly unlikely that the claimant would have committed herself to an immediate and irrevocable resignation, at a time when the respondent had not committed herself to providing the claimant with any particular financial amount, or indeed any amount at all.  Secondly, soon after the telephone conversation, the respondent made a detailed note of what had occurred.  This note was clearly prepared in anticipation of possible litigation.  One would expect that, in that note, the respondent would carefully record any statements which supported the contention now being made (the contention that the claimant resigned).  However, that detailed record contains nothing which constitutes an explicit and unequivocal statement on the part of the claimant that she wishes to immediately and unconditionally resign.

 

Issues and arguments (remedies)

 

17.           The parties are agreed that the amount of the basic award available to the claimant in this case is £2,596.

 

18.           The parties are agreed that, subject to any Polkey deduction and subject also to any deduction in respect of any failure to mitigate loss, the loss sustained by the claimant (when due account is taken of termination payments which have actually been made) was £5,225 up to the date of hearing.  Apparently out of respect for the good relationship which the claimant and the respondent had once enjoyed, the claimant has refrained from seeking compensation in respect of any future loss beyond a period of six weeks.

 

19.           On behalf of the respondent, it is not asserted that the amount of compensation should be reduced because of contributory conduct.  However, the respondent does assert that the amount of compensatory award should be reduced to reflect the possibility that, because of the relationship breakdown, the claimant would have been fairly dismissed in due course in any event.  The respondent also argues that the claimant has failed to mitigate her loss.

 

20.           The claimant argues that the compensation should be uplifted by 50%, to reflect the failure on the part of the respondent to comply with the statutory disciplinary and dismissals procedure. 

 

The law (remedies)

 

21.           In the circumstances of this case, the claimant is entitled to recover, by way of compensatory award, the amount of her claim in respect of any financial loss which she has sustained as a result of the dismissal, subject to any reduction on the ground that she has failed to mitigate her loss, and also subject to any “Polkey” reduction; and the resulting sum has to be uplifted by the amount of any 2003 Order uplift (see below).

 

22.           On issues relating to mitigation, the onus of proof is on the respondent.

 

23.           Article 157(1) of the 1996 Order sets out the basic rule for the calculation of a compensatory award, in the following terms:-

 

“(1)     Subject to the provisions of this Article and [the provisions of certain other Articles], 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 complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer”.

 

So the award has to be “just and equitable” in all the circumstances.  The result of the latter requirement is that there can be what is often referred to as a “Polkey” deduction to reflect the fact that, even if the claimant had not been unfairly dismissed on this occasion, a fair dismissal would have occurred subsequently in any event. 

 

24.     In this general connection, see the discussion of the law in Software 2000 Ltd v Andrews [2007] IRLR 568, at paragraph 54 of the judgment, especially at paragraph 54(7)(c) of that judgment.  In the context of a tribunal taking account of the possibility that an unfairly dismissed claimant would have been fairly dismissed, for a different reason, at some future date, see Scope v Thornett [2007] IRLR 1.

 

25.           Article 17 of the Employment (Northern Ireland) Order 2003 (“the 2003 Order”) must be read in conjunction with Article 158A of the 1996 Order.  Article 158A of the 1996 Order provides that any Article 17 uplift applies only in respect of the compensatory element of an unfair dismissal award of compensation.

 

26.           The effect of Article 17(3) of the 2003 Order is that, as a general rule, if the following circumstances apply, a tribunal is under an obligation to increase any compensatory award in unfair dismissal proceedings by 10% and may, if it considers it to be 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%.

 

27.           In the present context, the relevant circumstances are that the statutory disciplinary and dismissals procedure (“DDP”) was not completed and that the non-completion was wholly or mainly attributable to failure by the employer to comply with a requirement of the DDP.

 

28.           That general rule, as set out in Article 17(3), is subject to an exception.  The exception is provided for at paragraph (4) of Article 17.  According to Article 17(4), the duty under paragraph (3) of that Article to make an increase of at least 10% does not apply if there are exceptional circumstances which would make an increase of that percentage unjust or inequitable.

 

29.           As the parties accept, a tribunal has a broad discretion when fixing the level of increase of any award.  It seems to us that, the more serious the breach, the higher should be the percentage uplift (within the overall 10 - 50% band).  However, we are satisfied that, in considering the percentage uplift, we are also entitled to take account of the degree of moral blameworthiness, in connection with the failure to follow the DDP, of the employer.

 

Conclusions (remedies)

 

30.           The agreed loss to date (subject to any Polkey or mitigation issues) was £5,225.  (See paragraph 18 above.)

 

31.           The claimant has not failed to mitigate her loss.  We have arrived at that conclusion, having had regard to the evidence of the claimant, which we consider to be accurate, about her efforts to obtain new employment.  Furthermore, we note that the claimant did obtain temporary employment for a significant part of the period which has elapsed since her dismissal.

 

32.           Applying the principles which were discussed in the Software 2000 and Thornett cases:

 

(1)            Two of us have come to the clear conclusion that if the claimant had not been unfairly dismissed in June 2009, her employment would have lasted for approximately another six or seven months and that there is a 100% certainty that the employment would have been fairly terminated at around that time.

 

(2)            The conclusion of the member of this tribunal who is in the minority on this point is as follows.  According to that member, if the claimant had not been unfairly dismissed in June 2009, her employment could have lasted for approximately six or seven months and there is a 100% certainty that the employment could have been fairly terminated at around that time.

 

          The members of the tribunal who are in the majority consider that the parties would have struggled on with the relationship for about six or seven months.  Those members think that, at that point, it would have become obvious to the parties that the employment relationship could not continue.

 

33.           Except to the extent indicated in the last preceding paragraph, the tribunal is unanimously agreed on all of the findings of fact, factual conclusions, and other conclusions in this case.  In particular, we are unanimous in our findings both on liability and on amount of compensation.

 

34.           In the present context, we have all taken account of the following matters.  We consider that, because of the imposition by the respondent of the verbal warning, and because of the comments which the claimant made in relation to the respondent’s parents, it is likely that, despite the best efforts of the two parties, the relationship would have broken down in due course.  (If there had been more people employed in the business, or if the working relationship between the two protagonists had not necessarily been so close, the difficulties in personal relations might not have greatly affected the ability of the parties to continue with the employment relationship.  However, the reality is that, in the long-term, they necessarily had to work closely, and cooperatively, together if the business was to be a success.)

 

35.           We note that the claimant’s net monthly income, which in the employment of the respondent, was £1,195.  In light of the conclusions set out at paragraph 32 and 33, we consider that the amount of the compensatory award should be reduced (by application of the Polkey principle) to £4,300.

 

36.           The 2003 Order percentage uplift (f any) must be applied to that figure of £4,300.  We consider that a percentage uplift of 10% is appropriate in the circumstances of this case.  That results in an overall compensatory award figure of £4,730.

 

37.           To that figure of £4,730 must be added the sum of £2,596 in respect of the basic award.  That makes for an overall total of £7,326.

 

38.           In deciding on a 2003 Order uplift of 10%, we have taken account of the following matters.  First, the respondent’s failure to comply with the requirements of the DDP was comprehensive.  (She did not comply with it at all.)  Secondly, her failure in that respect was based on her honest belief that she was entitled to regard the claimant as having resigned; accordingly, her moral culpability in respect of the relevant failure, was very limited.  Nevertheless, she did make a serious error in relation to an important matter; accordingly, we do not consider that there are exceptional circumstances in this case which would make an increase of 10% either unjust or inequitable.

 

Recoupment

 

39.     The Recoupment Regulations apply.  Attention is drawn to the notice below, which forms part of this Decision. 

 

Interest

 

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

 

 

 

 

 

Chairman:

 

 

Date and place of hearing:         19 – 21 January 2010, Belfast

 

 

Date decision recorded in register and issued to parties:

 

Case Ref No:   6952/09

 

CLAIMANT:                    Brenda Donaghy

 

RESPONDENT:                Eavan Kennedy t/a EK Eyewear

ANNEX TO THE DECISION OF THE TRIBUNAL

 

STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME SUPPORT

 

1.       The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.

 

 

          The claimant may not be entitled to the whole monetary award.  Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department of Social Development has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department.  The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.

 

2.       The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing.  When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.

 

3.       The claimant will receive a copy of the recoupment notice and should inform the Department of Social Development in writing within 21 days if the amount claimed is disputed.  The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the claimant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the claimant and regardless of any dispute between the claimant and the Department.