Burns v Department of Social Developme... Department of Social Developme... [2011] NIIT 01559

THE INDUSTRIAL TRIBUNALS

CASE REF: 1559/10

2174/10

CLAIMANT: Patrick Burns

RESPONDENT: Department of Social Development

(Child Maintenance and Enforcement Division)

DECISION (REMEDY)

It is the unanimous decision of the tribunal that the claimant be awarded the sum of £69,100.00 as compensation for his constructive dismissal by the respondent. The tribunal also declares that the claimant is entitled to receive the sum of £459.00 in respect of a total of 7.5 days of holiday pay outstanding which was agreed by the parties at the time of the liability hearing.

Constitution of Tribunal:

Chairman: Ms W A Crooke

Members: Mr J E Martin

Miss M E Bailey

Appearances:

The claimant was represented by Mr Neil Richards, Barrister-at-Law, instructed by Higgins Holywood Deazley Solicitors.

The respondent was represented by Mr Michael Potter, Barrister-at-Law, instructed by the Departmental Solicitor’s Office.

SOURCES OF EVIDENCE

1. The claimant gave evidence on his own behalf.

2. There was a bundle of documents before the tribunal.

THE RELEVANT LAW

3. The relevant law in relation to assessment of compensation for unfair dismissal is found in Article 152 and following and most particularly in Article 157 of the Employment Rights (Northern Ireland) Order 1996. Article 157(1) states as follows:-

“Subject to the provisions of this Article and Articles 158, 160 and 161, the amount of a 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 insofar as that loss is attributable to action taken by the employer.”

Additionally, the tribunal considered the following case law:-

Simrad Ltd v Scott [1997] IRLR 147.

Hibiscus Housing Association Ltd v McIntosh [2009] UKEAT 0534 08 2107.

Orthet Ltd v Vince-Cain (Respondent) [2004] IRLR 857.

The tribunal also considered the booklet of guidelines prepared by a committee of Chairmen of Employment Tribunals, the Government Actuary and a member of his Department, a third edition entitled “Compensation for loss of pension rights”.

4. The tribunal in assessing the compensation had to apply a three-stage test and this test was set out in the case of Simrad v Scott. In that case, Lord Johnston said as follows at paragraph 6:-

“... the process is a three-stage one, requiring, initially, factual quantification of losses claimed; secondly, but equally importantly, the extent to which any or all of those losses are attributable to the decision or action taken by the employer, which is usually the same thing, the word “attributable” implying that there has to be a direct and natural link between the losses claimed and the conduct of the employer in dismissing, on the basis that the dismissal is the causa causans of the particular loss and not that it simply arises by reason of a causa sine qua non, ie, but for the dismissal the loss would not have arisen. If that is the only connection, the loss is too remote. The third part of the assessment in terms of the reference to the phrase “just and equitable” requires a tribunal to look at the conclusions they draw from the first two questions and determine whether, in all the circumstances, it remains reasonable to make the relevant award. It must again be emphasised, however, that what is to be considered under the third test already has to have passed the second. Finally, it has to be observed that while the facts relating to a question of mitigation will frequently bear upon the question of causative link, mitigation is essentially an equitable plea to be judged in the context of reasonableness at common law and thus on not too fine a balance. Accordingly, the issue of mitigation will feature in the application of the third test rather than the second, and sub-section (4) of the section merely directs the tribunal as to the proper approach to mitigation if that is what is being considered.”

FINDINGS OF FACT

5. These are made on the basis of the claimant’s evidence given in connection with the remedies hearing.

6. Initially, although there was no medical evidence to support the claimant’s contention, the claimant suffered some form of depression as an immediate result of the termination of his employment by way of constructive dismissal. Mr Potter, while acknowledging the lack of medical evidence, did not dispute the claimant’s evidence on this point.

7. The claimant made a number of efforts to find a job and as a background to the jobs that he considered, the tribunal considers it important to note that the claimant had two O Levels and a first stage Banking Exam by way of qualifications. As against this, the claimant was an EOII in terms of substantive rank in the Civil Service at the time of termination of employment but had enjoyed a period of acting-up as an EOI and indeed had sat a Staff Officer board. The result of this board was that if he had been applying for a Staff Officer general position as opposed to a specific area of appointment, he scored 14 marks above the level required for appointment as a Staff Officer. The claimant had 10 completed years of service with the respondent at the time of termination and his general work background was in the field of administration and banking.

8. The claimant provided a letter from the Social Security Agency dated 21 February 2011 which showed that he had made an effort to investigate the possibilities of employment with the following entities:-

	Date	Description of Job Search
	1 April 2010	Noel Darragh, NDS.
	15 April 2010	Weidr Moore, W Moore.
	29 April 2010	Lindsay Distribution, Tech, Training and Employment Agency.
	13 May 2010	Labour Relations Agency, CEA, Papers, Training and Employment Agency.
	10 June 2010	Casual work, Teletech.
	24 June 2010	Orchard Taxis, Antrim Road, CABS.
	8 July 2010	Two driving jobs; Lidl and Spar.
	22 July 2010	Helper’s Ref 922775 and 924806, Papers, Training and Employment Agency.
	5 August 2010	Costa Coffee, Park Inn.
	19 August 2010	Famac, Macautos, Papers, Training and Employment Agency.
	2 September 2010	Millfield Tech, Scope Industrial Estate, Papers, Training and Employment Agency.

The claimant was not successful in any of these applications.

Additionally, the claimant provided a copy of his looking for work Social Security Agency Booklet to cover the period from 19 July 2011 to 29 August 2011.

9. The net result of the claimant’s search for employment was that his initial optimism that he would soon find a comparable job was misplaced and a job at the level of responsibility and income that he had enjoyed previously with the respondent was not going to be available to him. The Social Security Agency asked him to consider further education. As a result the claimant attended an Access Course which was run by Belfast Metropolitan College which provided him with a certificate in Foundation Studies, Humanities/Social Sciences in June 2011 and furthermore, the claimant has been offered a place to study for a degree in History at Queen’s University Belfast in the school of History and Anthropology. The claimant provided written evidence that he was required to register for the course virtually immediately after this hearing.

10. The claimant had planned to continue to develop his career within the Northern Ireland Civil Service and fully expected to ascend the ladder of promotion as far as the level of Deputy Principal. As a result of his termination of employment, the claimant found that he was not able to get a comparable job to the one from which he had been constructively dismissed. The claimant, as evidenced by the type of jobs that he looked for, which we have set out in paragraph 9 above, was prepared to lower his sights and consider less well paid remuneration within the salary range of £11,000.00 - £14,000.00. Once again, he had no success in finding a job in this salary range. The claimant projected that upon successful completion of a degree he would be interested in a job involving Public Sector political research perhaps at the Northern Ireland Assembly. This was because politics were of interest to the claimant. He did not rule out the possibility of seeking opportunities to pursue further post-graduate studies. Neither did he rule out the possibility that he would once again work in the Northern Ireland Civil Service in particular and the Public Sector generally but he indicated that his views of the Northern Ireland Civil Service were tainted by his experience, to the extent that he had totally lost faith in the Northern Ireland Civil Service.

11. The claimant did not demonstrate that he had applied for any jobs during the period of his access course with Belfast Metropolitan College. This is because it was a condensed course which was effectively two years work contracted into eight months of study. Successful completion of the access course entitled him to a place in Queen’s University Belfast. The tribunal accepts the claimant’s evidence that he had to give all his concentration to his studies. Given the claimant’s lack of qualifications, it is possible that he could have pursued another course whereby he spent two years gaining extra O Levels and a further two years to obtain qualifications at AS and A2 Level. Effectively, the claimant could be argued therefore, to have done in one year, what other students take four years to complete in terms of making themselves eligible for university education. Therefore, the claimant has in respect of the access course period mitigated his loss.

CONCLUSIONS

12. Mr Potter agreed the basic award calculation put forward on behalf of the claimant which was as follows:-

	Basic Award (Unfair Dismissal) Length of Service at effective date of termination 23 March 2010:	10 complete years (24 January 2000 - 23 March 2010).
	Age at effective date of termination:	40 years old (Date of Birth: 25 April 1969).

Relevant multiplier

(1) For the age at which the service took place was within the band (of
22-41 years), the multiplier is 1.

(2) Gross weekly pay as at effective date of termination: £390.10 (subject to weekly statutory maximum of £380.00 at the time of effective date of termination).

(3) Basic Award = 10 years x 1 x 380 = £3,800.00.

COMPENSATORY AWARD (UNFAIR DISMISSAL)

Immediate Loss

(a) Loss of Statutory Rights: £500.00

Mr Potter did not dispute this figure was appropriate in the circumstances of the claimant’s service.

(b) Immediate Loss of Earnings to Date of Tribunal

Mr Potter’s argument was that the tribunal should only compensate the claimant from the effective date of termination to the date upon which he commenced his access course. His argument was that the tribunal could only compensate for loss that was attributable to the employer’s unlawful act. In “broad brush” terms the claimant has to be awarded what is just and equitable. Adopting the three-stage process set forth in the case of Simrad v Scott Mr Potter argued that the tribunal should take the following steps:-

First, there should be a factual quantification of the losses claimed. The tribunal considers that this has been established by the Schedule of Loss. Secondly, there should be a consideration of the extent to which any or all of the losses are attributable to actions of the employer. Thirdly, the tribunal should consider within its just and equitable jurisdiction what is the appropriate award. Mr Potter argued that on the facts of this case the tribunal should only award compensation under the immediate loss heading of its award from the effective date of termination to the start of the claimant’s course with Belfast Metropolitan College. He contended that to award more was not properly attributable to the actions of the employer and furthermore that the claimant had made no real effort to get a job and that he was just going through the motions to comply with Jobseekers’ Allowance requirements. Mr Potter’s essential contention was that based on the case of Simrad v Scott there was a remoteness in that case in terms of time. This arose because the claimant in that case had lost her job as an Electronic Technician and had taken a job which was more lowly paid with no career prospects. Eventually she decided to retrain as a Nurse and embarked on a three year course of study for which she received a grant. At paragraph 8 of that decision Lord Johnston said as follows:-

“... we do not find it easy to determine whether or not, in a particular case, the decision to embark upon a nursing career is sufficiently directly linked to the original dismissal to meet the test of attribution, bearing in mind that there was an intervening period of employment at a lower rate of pay from that being earned in the employment of the respondent, which on any view of the matter is recoverable loss. With some hesitation, we have come to the view that it is too remote, both in time and content, to be directly linked to the dismissal...”

(c) In that case the Employment Appeal Tribunal essentially found that the claimant’s decision to make a career change was not properly attributable to the conduct of her employer.

In opposing these arguments Mr Richards relied on the case of Orthet Ltd v Vince-Cain in which the Employment Appeal Tribunal found that the Employment Tribunal did not err in awarding compensation to the applicant for loss of earnings during a four year period when she was, or was to be, a University student re-training. The tribunal did not err in finding that the applicant had not failed to mitigate her loss. It was entitled to find that the decision by the applicant to change careers was a reasonable step, in circumstances in which the employers were unable to prove that there was suitable work which the applicant could and should have taken and the tribunal found that if such work became available, the applicant would abandon her course.

13. It is settled law that the burden of proof in considering the issue of whether or not the claimant has failed to mitigate his loss lies with the respondent. In this case, there was no evidence laid by the respondent to support Mr Potter’s contention that the claimant would have been eligible (at the very least) for a wide number of jobs and that he had decided to simply make a career change, and was seeking to have this funded by his former employer. Consequently, the tribunal found unanimously that the respondent has not discharged this burden of proof. We find that the claimant by seeking to complete the access course has by that very fact mitigated his loss, when compared with the more traditional route to University education. Given that Mr Potter essentially accepted that the claimant had to some extent mitigated his loss in the period of the immediate aftermath of his termination of employment up to commencing the course, by accepting that the claimant was not required to immediately lower his sights and further that he had suffered some form of depression, we also find that the claimant made efforts to mitigate his loss in this period.

Mr Potter argued that the claimant should have tried to apply for jobs during the period of his access course. The claimant gave evidence that he had to concentrate on his course. The tribunal does not find it unreasonable that the claimant (with his background lack of formal qualifications) had to throw all his energy into successfully completing this course.

14. The question before the tribunal was essentially whether or not the claimant’s decision to go to further education was directly attributable to the actions of the employer. Mr Potter argued that the cases of Simrad v Scott, Hibiscus Housing Association Ltd v McIntosh, and Orthet Ltd v Vince-Cain were all cases that essentially turned on their own facts and all the tribunal could do was to follow the three stage test set out in the decision of Lord Johnston in the case of Simrad Ltd v Scott. We have already found that there has been a factual quantification of the losses claimed. Now looking at the issue of attribution to the dismissal we find that there was a direct and natural link between the losses claimed and the conduct of the employer in constructively dismissing the claimant. The claimant, by reason of his lack of formal education, was not able to find a comparable job. As a direct result of that failure, he was forced to consider returning to education to make himself more marketable in the employment market. Part of the rationale in the case of Simrad v Scott appeared to be that a period of employment of the claimant, at a lesser salary, made the decision to retrain as a nurse more remote in terms of time and content. We distinguish the Simrad case from the current case on that basis. There was no intervening period of employment. We find that the decision to go into further education was a direct result of the respondent constructively dismissing this claimant who happened to have very few formal qualifications.

15. We have already considered the issue of mitigation in respect of the search for alternative employment and the attending the access course. We also consider that a place to study for a degree at Queen’s University is a suitable form of mitigation of loss given the claimant’s evidence that a comparable job to that which he lost would require him having a Third Level degree qualification. Whilst, there was some suggestion in the tribunal’s discussion of the application of the facts to the authorities that the respondent’s arguments in respect of attributability would have been different had the claimant decided to read for a mathematical degree or a degree in any related discipline, the tribunal does not consider that it has received enough evidence to allow it to conclude that the actual subject of the degree is in any way a relevant factor. Certainly, there was no evidence led by the respondent to show that:-

a. a Third Level degree qualification was not necessary;

b. the type of subject studied was in any way relevant to potential eligibility for future employment.

Having considered the potential award for immediate loss and future loss purely in terms of loss of income, we now turn to considering the issue of future loss in relation to pension loss. The tribunal had before it agreed figures for the valuation of the claimant’s Civil Service pension in respect of what he could have expected to receive at the age of 60 years had he not been dismissed and on that basis a calculation of the value of that pension in accordance with the guideline booklet entitled “Compensation for Loss of Pension Rights”. What the tribunal did not have and in the circumstances of this case, it is hardly surprising, was evidence about what future pension the claimant might expect to receive upon returning to the workforce. The tribunal does not doubt that the claimant will have pension provision made on entering a new job, and that he will be, given the age of 45 years upon return to the workforce, able to have a further working life of 20 years. We do not however consider that the claimant should be awarded his total pension loss claim of £89,338.90, because we consider there is a very good chance that on the facts above stated he will be able to accrue pension rights at some stage of employment on completion of his degree. Therefore, we do not consider that it would be just and equitable to award him the full figure of compensation under this head of loss as claimed and we have considered that it would be just and equitable to award him the pension loss for a period of four years which equals the period of his access course and his three year degree course. These are steps in further education that the claimant had to take due to the actions of the respondent and we consider that the respondent should compensate the claimant for the loss of pension accrual equalling the period of four years further education. Consequently, we calculate the immediate loss and future loss as follows:-

Loss of Earnings

Average weekly earnings at effective date of termination 23 March 2010 (net full pay rate = £306.00 per retrospective 2009 pay settlement dated 28 September 2010).

· Loss of Earnings from EDT 23 March 2010 to start of access course at Belfast Metropolitan College 13 September 2010.

	Relevant period:	25 Weeks
	Average weekly earnings (net):	Nil (Actively seeking work, in receipt of Jobseekers Allowance.)
	Loss:	£306.00 - 0 = £306.00 (x 25 Weeks = £7,650.00)

· Loss of Earnings from start of access course at Belfast Metropolitan College 13 September 2010 to date of tribunal 23 February 2011.

	Relevant period:	23 Weeks
	Average weekly earnings (net):	Nil (In full-time education and supported by family.)
	Loss:	£306.00 - 0 = £306.00 (x 23 Weeks = £7,038.00)
	Total immediate loss of earnings:	£7,650.00 + £7,038.00 = £14,688.00

FUTURE LOSS OF EARNINGS

16. Given the three years of the future loss will be for the duration of the intended degree course at Queen’s University Belfast, we consider that it is just and equitable to refuse to compensate the claimant for the lengthy various periods of university holidays. Accordingly:-

· Loss of Earnings from date of tribunal 23 February 2011 to graduation from intended Queen’s University degree course July 2014.

Relevant period:	175 Weeks
Projected period of part-time working in University vacations:
2011 - 2012, Christmas, Easter and Summer	= 2 + 2 + 16 Weeks	=	20 Weeks	=	Total of 40 Weeks
2012 - 2013, Christmas, Easter and Summer	= 2 + 2 + 16 Weeks	=	20 Weeks
Adjusted relevant period:	175 - 40 Weeks			=	135 Weeks
Loss:	£306.00 - £0.00 = £306.00 (x 135 Weeks = £41,310.00)

FUTURE LOSS (LOSS OF PENSION)

17.

· Civil Service Pension Figures on the basis of the information submitted for the claimant.

	Deferred pension payable at age 60 following dismissal:	£0.00 £2,367.74
	Deferred lump sum payable at age 60 following dismissal:	£7,103.22
	Projected pension payable at age 60 if no dismissal:	£0.00 £7,116.17
	Projected lump sum payable at age 60 without dismissal:	£21,348.51

· Proposed calculation prior TSO guide

	Loss of future pension rights:	a - b - c where:-
		a = Value of prospective final salary pension rights up to normal retirement age in the former employment (if claimant had not been dismissed).
		b = Value of accrued final salary pension rights to date of dismissal from former employment.
		c = Value of prospective final salary pension rights to normal retirement age in new employment.

18. Assuming the claimant will not secure new pensionable employment or will do so but on a money purchase and not final salary basis and that no withdrawal factors are appropriate:-

a.	= £7,116.17 x TSO guide relevant multiplier of 16.77	=	£119,338.17
b.	= £2,367.74 x TSO guide relevant multiplier 12.67	=	£29,999.27
c.	Nil	=	Nil
Total pension loss (a - b - c):		=	£119,338.17 - £29,999.27
		=	£89,338.90

b. As already concluded, these figures are based on pension loss at the age of 60. Accordingly, we consider it just and equitable to restrict the pension loss to the period of the four years of further education. As the figures contended for by the claimant’s counsel are in respect of a period of further working of 20 years from the age of the claimant at dismissal which was 40 years, we are awarding that proportion of the 20 years that is represented by the 4 years of further education which is ¹/₅ or 20% of the total pension loss claimed. £89,338.90 ÷ 5 = £17,867.78. We have also made a deduction to reflect accelerated receipt in the amount of 2.5% of this figure which is £446.70 and so net pension loss = £17,421.08.

SUMMARY OF COMPENSATION

19.	Basic Award:		£3,800.00

	Compensatory Award

	Loss of statutory rights:		£500.00

	Immediate Loss

	Loss of earnings (a)

	23 March 2010 (EDT) to 13 September 2010 being:- £306.00 x 25 weeks	=	£7,650.00

	Loss of earnings (b)

	13 September 2010 (access course) to 23 February 2011 being:- £306.00 x 23 weeks	=	£7,038.00

	Sub-total: Immediate loss of earnings (a) and (b) = £7,650.00 + £7,038.00	=	£14,688.00

	Future Loss

	23 February 2011 - July 2014

	Net period is 135 weeks

	£306.00 x 135 weeks	=	£41,310.00

	Pension Loss

	Net figure for loss at 60 years	=	£89,338.90

	£89,338.90 ÷ 5	=	£17,867.78

	Deducted £446.70 for accelerated receipt

	£17,867.78 - £446.70	=	£17,421.08

	Total Compensatory Award

	Loss of Rights:		£500.00

	Immediate Loss:		£14,688.00

	Future Loss (earnings):		£41,310.00

	(pension):		£17,421.08


			£73,919.08

20. The attention of the parties is directed to the recoupment notice attached to this decision. The immediate loss period is from the effective date of termination on 23 March 2010 to the date of the tribunal which is 23 February 2011, a total of 48 weeks. The claimant was in receipt of benefit at the rate of £135.00 paid fortnightly. Furthermore, the tribunal has noted that the claimant has been in receipt of Jobseekers’ Allowance from in or around 27 June 2011 to 13 September 2011 which is a period of 12 weeks presumably at the same rate.

The claimant received Jobseekers’ Allowance at rate of £67.50 over 60 weeks.

£67.50 x 60	=	£4,050.00
Personal Allowance	=	£6,475.00
The first £2,475.00 is tax free.
The next £37,400.00 is taxable @ 20%.
The balance of £33,544.00 is taxable @ 40%.
£37,400.00 @ 20%	=	£7,480.00
£33,544.00 @ 40%	=	£13,417.60
		£20,897.60

Grossed Up Compensatory Award is:		£94,816.68
Apply statutory maximum of:		£65,300.00
Add Basic Award:		£3,800.00
Total Unfair Dismissal Compensation is:		£69,100.00

HOLIDAY PAY

21. Despite the fact that the respondent agreed the amount of holiday pay outstanding at the time of the liability hearing being 12 May 2011, the tribunal noted that it had not been paid as at 15 September 2011 being the date of the remedy hearing. Accordingly, the tribunal calculates the claimant’s holiday pay as follows:-

	Net weekly wage at effective date of termination £306.00.
	£306.00 x 52 = £15,912.00 being the yearly net wage of the claimant.
	£15,912.00 over 260 days = £61.20 daily net based on a five day working week.
	£61.20 x 7.5 days = £459.00.

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

Chairman:

Date and place of hearing: 15 September 2011, Belfast.

Date decision recorded in register and issued to parties:

	£
(a) Monetary award	£69,100
(b) Prescribed element	£18,360
(c) Period to which (b) relates:	23 Mar 2010 – 23 Feb 2011 27 June 2011-13 Sept 2011
(d) Excess of (a) over (b)	£50,740

Industrial Tribunals Northern Ireland Decisions

Case Ref No: 1559/10

CLAIMANT: Patrick Burns

RESPONDENT: Department of Social Development

ANNEX TO THE DECISION OF THE TRIBUNAL

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	Industrial Tribunals Northern Ireland Decisions
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