Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    2743/14

 

 

 

CLAIMANT:                      Christopher Neil Curran

 

 

RESPONDENT:                Patricia Doherty, t/a Delacroix Inn

 

                                       

 

 

DECISION

 

(A)     The claimant’s claim in respect of notice pay is well-founded.  It is ordered that the respondent shall pay to the claimant the sum of £330 in respect of notice pay.

 

(B)     The claimant’s unfair dismissal claim is well-founded and it is ordered that the respondent shall pay to the claimant the sum of £6,220 in respect of unfair dismissal.  (That amount is made up of a basic award of £2,625 and a compensatory award of £3,595).

 

 

Constitution of Tribunal:

 

Employment Judge (sitting alone):      Employment Judge Buggy

 

Appearances:

 

The claimant was self-represented.

 

The respondent was debarred from participating in the proceedings, because she had not presented a response in these proceedings.

 

 

REASONS

 

1.       The claimant was employed as a part-time barman at the Delacroix Bar, on the Buncrana Road, in Derry/Londonderry, from 1 October 1979 until 7 October 2014.  With effect from the latter date, he was dismissed.  The respondent originally named by the claimant in these proceedings was “Delacroix Bar”.  However, on the basis of the claimant’s evidence in these proceedings, I am satisfied that his true employer was Ms Patricia Doherty.  The title of these proceedings has been altered accordingly.

 

2.       The respondent’s son, Mr Liam Doherty, had a managerial role in the bar.  He told the claimant that he was sacked because of alleged misconduct “pertaining to taking photographs of [Bar] patrons and posting them on [Facebook].  However, Mr Liam Doherty also provided the claimant with a note, which purported to “... confirm that Christopher Curran was laid off from the Delacroix [on ... 7 October]  2014”.  On 8 December 2014, the respondent became bankrupt.  Prior to his dismissal, the claimant was not given any written statement of the particulars of the relevant alleged disciplinary allegation, and he was not invited, prior to dismissal, to attend any disciplinary hearing.

 

The claims

 

3.       In these proceedings, the claimant makes claims in respect of notice pay and in respect of unfair dismissal. 

 

Unfair dismissal (Liability)

 

4.       In post-dismissal discussions with the claimant, Mr Liam Doherty indicated that alleged misconduct was the reason for the claimant’s dismissal.  However, in correspondence which was issued to the claimant, “lay-off” has been given as a reason for the dismissal.  For perfectly understandable reasons, the respondent has not participated in these proceedings.

 

5.       However, because of that non-participation, the respondent has not shown the reason for dismissal, and that it is one of the potentially fair reasons for dismissal which are specified at paragraph (2) of Article 130 of the Employment Rights (Northern Ireland) Order 1996 (“ERO”).

 

6.       Article 130(1) of ERO provides that, in determining for the purposes of the unfair dismissal legislation whether a particular dismissal of an employee is fair or unfair, it is for the employer to show that the reason was a potentially fair reason falling within one of the categories listed at paragraph (2) of Article 130.  That has not been done in this case.  Accordingly for that reason alone, the dismissal is unfair.

 

7.       The dismissal is also unfair because of a failure to follow the requirements of the statutory dismissal procedure.

 

8.       Article 15 of the Employment (Northern Ireland) Order 2003 (“the 2003 Order”) provides that the statutory dismissal and disciplinary procedures are to have effect.  The statutory dismissal procedure is one of those procedures.  Schedule 1 of the 2003 Order sets out the requirements of the statutory dismissal procedure. 

 

9.       At Step 1, the procedure requires that the employer must set out in writing the employee’s alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.  It also provides that the employer must send the statement, or a copy of it, to the employee, prior to any disciplinary hearing.  None of that was done in this case.     Step 2 of the statutory dismissal procedure provides that a disciplinary hearing must take place before any dismissal.  That was not done in this case either.

 

10.     Because of the two shortcomings identified at paragraph 9 above, there has been a substantial failure to comply with the statutory dismissal procedure.  Article 130A of ERO provides that a dismissal is to be regarded as automatically unfair if the statutory dismissal applies, and that procedure was not completed, and non-completion of the procedure was wholly or mainly attributable to failure on the part of the employer to comply with its requirements.  I am satisfied that, because of the two shortcomings identified at paragraph 9 above, there has been a substantial failure, on the part of the employer, to comply with the requirements of the statutory dismissal procedure.  I am also satisfied that she was solely responsible for that failure.  For that reason also, this dismissal was unfair.

 

The notice pay claim (Liability)

 

11.     The claimant was provided with no notice of his dismissal.  He had worked continuously in the Delacroix Bar for more than 12 years. 

 

12.     Article 118 of ERO provides that, as a general rule, an employer is required to give an employee 12 weeks’ notice, of the termination of that employee’s employment, if the employee has continuous service of 12 years or more.  There are exceptions of that general rule.  Only two of those exceptions are actually or potentially relevant in the circumstances of this case.

 

13.     The first relevant exception occurs in situations in which, under the particular contract of employment, the employer is conferred with a contractual right to terminate the contract in the event of a particular breach of contract by the employer.  I am unaware of any such contractual right in this case. 

 

14.     Secondly, a duty to give notice does not arise if there has been repudiatory contract on the part of the employee.  In the context of a notice pay claim, such repudiatory contract is usually referred to as “gross misconduct”.

 

15.     In deciding whether a particular allegation of gross misconduct, or of generally repudiatory conduct, is made out, a tribunal has to decide for itself what actually happened (as distinct from deciding whether an employer had reasonable grounds for that employer’s belief as to what happened).  Furthermore, in the present context, I am not concerned with the subjective intentions of the employee.  Instead, I have to decide whether the employee’s behaviour has been such as would lead a reasonable person to conclude that the employee is repudiating the contract.

 

16.     It is an implied term of every contract of employment that neither party will, without reasonable and proper cause, behave in a manner likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.

 

17.     The term “gross misconduct”, in the sense in which that term is used in common law, has never been defined in legislation.  Instead, the scope of that concept has emerged from the case law. 

 

18.     That case law has been developing at least since the 19th century, and it has produced a bewildering welter of individual instances.  Many of those individual instances were affected by the social mores of the time when the relevant case was decided.  Throughout much of that case law, it is difficult to discern any overall guiding principles.

 

19.     In Neary v Dean of Westminster [1999] IRLR 288, Lord Jauncey of Tullichettle analysed the case law on common law gross misconduct.  At paragraph 22 of his judgment, he concluded (in the context of a case in which it was being alleged that the claimant had breached an implied “trust and confidence” term of the employment contract) that there will not be gross misconduct at common law unless the conduct of the relevant employee has undermined the trust and confidence between an employer and employee to such an extent that the employer should no longer be required to retain the employee in his employment.

 

20.     Lord Jauncey made it clear that he regarded gross misconduct as necessarily involving a repudiatory breach of the contract of employment, when he commented (at paragraph 20 of the judgment) as follows:

 

                    “The question of whether or not there has been a repudiatory breach of that duty justifying instant dismissal must now be addressed ...”.

 

          Therefore, in determining whether gross misconduct at common law has occurred, the acid test now is whether or not the relevant employee, through his behaviour, is to be regarded as having engaged in contractually repudiatory conduct.  (So, in essence, gross misconduct has ceased to be an exotic and distinct species of termination all on its own.  Instead, the concept of gross misconduct is now recognised to be merely an aspect of the overall law of contractual repudiation).

 

21.     The implications are as follows:

 

          (1)      In deciding whether particular conduct constitutes gross misconduct in common law, which would entitle the employer to summarily dismiss, it may well be important to look at how reprehensible the conduct is.

 

          (2)      It may also be relevant to consider whether, and to what extent, the conduct has actually undermined trust and confidence between the employer and employee.

 

          (3)      However, in the end, the acid test is whether or not the relevant conduct, objectively judged, demonstrated an intention on part of the claimant to repudiate his contract of employment, or constituted a fundamental breach of contract.

 

22.     I accept that the claimant’s account, at paragraphs 15-17 of paragraphs 7.4 of his industrial tribunal claim form, is accurate.  In particular, I accept the following.   The claimant did take a particular photograph of a particular patron of the Bar and he did place it on Facebook.  The photograph was removed immediately when “it was established that it may have caused some offence”.  The practice of taking photographs of patrons of the Bar had been a longstanding one.  That practice was known of by Management.  At the time that the particular photograph referred to above was placed on Facebook, the claimant had been unaware of any Management policy in that connection.

 

23.     In all the circumstances, I am not satisfied that the relevant act (the placing of the photograph on Facebook) constituted a repudiatory breach of contract.  On the basis of the information available to me during the course of these proceedings, it does not seem to me that the relevant conduct was very seriously reprehensible.  (As soon as the claimant became aware that there was concern about the placing of the photograph on Facebook, he removed it).  Against that background, it does not seem to me that the claimant’s conduct undermined the trust and confidence between employer and employee to such an extent that the employer, in those circumstances, ought no longer to have been required to retain this employee in her employment.

 

24.     Against that background, and for those reasons, I am sure that the claimant’s notice pay claim is well-founded.

 

The evidence

 

25.     I had some doubts about the apparent implausibility of some of the evidence of the claimant in relation to his working pattern and economic activities during the years prior to dismissal and during the period after the dismissal.  However, the claimant’s evidence is uncontroverted in these proceedings.  In relation to any factual issue in this case, I have had to decide on the basis of the balance of probabilities, and the claimant certainly did not have to prove anything beyond a reasonable doubt.  In those circumstances, and against that background, and for those reasons, I have accepted, for the purposes of determining the issues in this case, that the claimant’s accounts of his working pattern and other economic activities is, in all material respects, accurate.

 

Notice pay (Compensation)

 

26.     A notice pay claim is a claim for breach of contract.  Pursuant to such a claim, a claimant is entitled to recover damages in respect of any loss sustained by him as a result of the failure to provide due notice.  In this case, the claimant should have been provided with 12 week’s notice.  That was not done.  Accordingly, in the circumstances of this case, the claimant is entitled to 12 week’s net pay, less
12 weeks of Jobseekers Allowance.  The weekly net pay was £101.  The weekly amount of Jobseekers Allowance was £73.50.  The difference between those two sums is £27.50.  Therefore, the claimant is entitled to £330 compensation in respect of notice pay. 

 

Unfair dismissal (compensation)

 

27.     Unfair dismissal compensation consists of a basic award and a compensatory award. 

 

28.     I am satisfied that the claimant’s gross weekly pay and net weekly pay, when employed in the Bar, was £100.96 per week.

 

29.     The claimant’s gross (and net) wage at the time of dismissal was approximately £101.  At that time, he had continuous service of more than 20 years and was aged 53 years of age.  Accordingly, he is entitled to a basic award of £2,625.

 

30.     The claimant says that, since his dismissal in October 2014, he has been unsuccessful in obtaining any work at all.  I have some doubts as to whether the claimant has, throughout the period since his dismissal, done enough to mitigate his loss.  However, the onus of proof, in relation to mitigation, is not upon the claimant in an unfair dismissal claim.  Instead, the onus of proof is on the respondent.  The respondent has not proved that the claimant has failed to mitigate his loss.

 

31.     However, that is not the end of the matter.  Compensatory awards in unfair dismissal claims have to be assessed pursuant to Article 157(1) of ERO.  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”.

 

32.     Accordingly, regardless of the mitigation of loss issue, there is also an issue as to whether the claimant has proven, to the requisite standard, that the loss claimed by him is a loss which has occurred in consequence of the dismissal and that it is loss which is attributable to action taken by the employer.

 

33.     In other words, the issue is whether the loss in question was caused by the unfair dismissal or by some other cause.  In Whelan v Richardson [1998] IRLR 114, the point was made that, in the context of a claim for an unfair dismissal compensatory award, assessment of loss has to be judged on the basis of the facts as they appear at the date of the assessment hearing (the date on which the tribunal or employment judge carries out the assessment in respect of the loss which is the subject of the claim).  In Whelan, Judger Peter Clark set out the following principles:

 

                              “...

 

                    (2)      Where the applicant has been unemployed between dismissal and the assessment date then, subject to his duty to mitigate and the operation of the recoupment rules, he will recover his net loss of earnings based on the pre-dismissal rate.  Further, the industrial tribunal will consider how long the loss is likely to continue so as to assess future loss.

 

                    ...”

 

34.     The claimant has recovered compensation in respect of the employer’s failure to give him 12 weeks’ notice.   Accordingly, I have concluded that the claimant is not entitled to recover any compensation in respect of the first 12 weeks’ of unemployment. 

 

35.     Therefore, the applicable period (the period in respect of which unfair dismissal compensation is being awarded in this case) began on 29 December 2014.

 

36.     The claimant, in my view, is entitled to recover loss at the rate of £101 per week for all of the 21 weeks from 29 December 2014 until 22 May 2015.  Accordingly, the figure in respect of past loss amounts to £2,121.

 

37.     I consider that, if the claimant makes reasonable efforts to obtain employment in the meantime, he will have obtained a job at £101 per week by 28 June 2015.  Accordingly, I award £505 for future loss (5 weeks at £101 per week).  The sum of the figures awarded in respect of past loss (£2,121) and future loss (£505) is £2,626.  To that sum, I add £250, as compensation in respect of loss of statutory rights.  The sum of £2,626 and £250 is £2,876. 

 

38.     It will be noted that, in calculating the amount of a compensatory award, no account is taken of any benefits payable in relation to a relevant period.  This is because of the effect of the Recoupment Regulations.  (See below).

 

39.     Article 17 of the Employment (Northern Ireland) Order 2003 (“the 2003 Order”) applies to unfair dismissal claims in general and, in particular, applies to the unfair dismissal claim in this case.  Paragraph (3) of Article 17 is in the following terms:

 

                    “(3)     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 was not completed before the procedures were begun, and

 

                              (c)      The non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer [to comply with the requirement of the procedure],

 

                    It shall, subject to paragraph (4), increase any award which it makes to the employee by 10 per cent and may, if it considers it 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 per cent”.

 

40.     Paragraph (4) of Article 17 frees an industrial tribunal from that general Article 17 duty (to uplift by at least ten per cent) but only “... if there are exceptional circumstances which would make ... [an] increase of that percentage unjust or inequitable ...”.

 

41.     I know of no circumstances in this case in this case which would make an increase of 10 per cent unjust or inequitable.

 

42.     The purpose of Article 17 is essentially punitive.  In deciding on the appropriate amount of the uplift, it is important to have regard to the employer’s degree of culpability, and to the nature and gravity of the breach.  It is also appropriate to have regard to the size and resources of the employer, at least in circumstances similar to the circumstances of this case.

 

43.     This was a small business.  The breaches of the statutory procedure were of fundamental importance.

 

44.     Against that background, and for those reasons, I have decided that an uplift, pursuant to Article 17 of the 2003 Order, of 25 per cent is appropriate.

 

45.     The amount specified at the end of paragraph 37 above (£2,876), when uplifted by 25 per cent, amounts to £3,595.

 

46.     Accordingly, the position is as follows.  I have made a basic award of £2,625.  I have made a compensatory award of £3,595.  (So, the overall unfair dismissal award is £6,220, which is the sum of £2,625 and £3,595). 

 

47.     The compensatory award of £3,595 was arrived at in the following way:

 

          (1)      I have made no award in respect of the period of 12 weeks beginning on the date of dismissal.  (See paragraph 34 above).

 

          (2)      I have awarded £2,121 in respect of past loss, in respect of the period beginning on 29 December 2014 and ending on 22 May 2015.

 

          (3)      I have awarded future loss, in respect of the period from 22 May 2015 until 28 June 2015, amounting to £505.

 

          (4)      The sum of the amounts specified at sub-paragraph (2) and (3) above is £2,626.  To the latter amount, I have added £250 as compensation in respect of loss of statutory rights.

 

          (5)      That figure of £2,876 (£2,626 plus £250) has been the subject of a 25 per cent Article 17 uplift.  (See paragraph 44 above).

 

          (6)      When that uplift is applied, the total amount of the compensatory award is £3,595.

 

General comment

 

48.     At the end of the heating on 18 March, I told the claimant that I expected to be able to issue this Decision within three weeks.  That has not happened.  The Decision has not been issued until more than nine weeks elapsed.  I apologise for giving the claimant false hope of an early written Decision; that was unrealistic, in light of other work commitments, and in light of the complexity of some of the legal issues in this case.

 

Next steps

 

49.     The claimant does not seem to be optimistic that he will obtain any sum from the estate of the respondent, who is bankrupt.  However, he should in any event send a copy of this Decision to the trustee in bankruptcy, Mr Ronan Duffy of McCambridge Duffy LLP, 35 Templemore Business Park, Northland Road, Derry/Londonderry. 

 

50.     The claimant should also now submit an RP1 form to the Redundancy Payment Service.  That Service has the power to make payments to the claimant in respect of notice pay and in respect of the basic award element of the unfair dismissal conversation.  (However, the Service has no power to make any payment in respect of the compensatory award element of the unfair dismissal compensation). 

 

Recoupment of benefit from awards

 

51.     The Recoupment Regulations apply.  Attention is drawn to the notice below, which forms part of this Decision.  The prescribed element is £2,121.  The prescribed period is the period from 29 December 2014 until 22 May 2015.  The amount by which the unfair dismissal monetary award exceeds the prescribed element is £4,099.

 

 

A jurisdictional bar?

 

52.     Article 258(3) of the Insolvency (Northern Ireland) Order 1989, provides, in effect, that, after the making of a bankruptcy order, no person who is a creditor of the bankrupt in respect of a debt provable in the bankruptcy, shall, before the discharge of the bankrupt, commence any action or other legal proceedings against the bankrupt except with the leave of the High Court.

 

53.     On the other hand, if a claim has already been commenced in an industrial tribunal against a person who, during the course of those proceedings, becomes bankrupt, the tribunal has jurisdiction to entertain the claim, but the tribunal has a discretion to stay the proceedings.

 

54.     If I have discretion not to stay these proceedings, I decline to stay the proceedings.  The staying of these proceedings would provide no advantage to the other creditors (creditors other than this claimant), but it would impose a considerable disadvantage upon this claimant. 

 

55.     Why the disadvantage to the claimant?  Because if, and only if, he obtains an industrial tribunal unfair dismissal award, the Department for Employment and Learning (in that Department’s role as the statutory guarantor in respect of certain employment debts) will become empowered to make the claimant a payment in respect of the basic award element of the unfair dismissal award.

 

56.     Were these proceedings commenced after the making of the bankruptcy order?  And is an unfair dismissal claim a debt provable in the bankruptcy?  I am not certain about the proper answers to those questions.  Those questions involve some difficult issues of law.  Accordingly, I am willing to entertain these claims (because it is far from obvious that I do not have jurisdiction).

 

57.     In approaching the jurisdictional issue, I have had regard to comments which were made by the English Court of Appeal in Radakovits v Abbey National Plc [2009] EWCA Civ 1346, at paragraph 22 of the judgment, in the following terms:

 

          “... It is true that a tribunal cannot exercise jurisdiction by concession and equally, in an appropriate case, the tribunal will be obliged to raise the issue of jurisdiction even though it has not been identified by the employers.  An obvious example is ... where, on the face of the application, it is out of time.  Tribunals have properly to guard against exercising a jurisdiction when the statutory conditions are not met.  But they are not bloodhounds who have to sniff out potential grounds on which jurisdiction can be refused.   ...”

 

58.     In this case, the claimant lodged his claim form on 8 December 2014.  On the same day, the respondent was adjudicated bankrupt.  As a matter of law, did the respondent’s bankruptcy precede the commencement of these proceedings?  That is a complex and difficult legal question, in my view.  I know of no case law, which is binding upon me, and which would therefore constrain me, on the basis of my limited knowledge of the relevant factual circumstances, to decide that I have no jurisdiction to entertain this claim.  Therefore, in line with the spirit of the quotation from Radakovits, I decided to entertain these claims of notice pay and unfair dismissal.

Interest on industrial tribunals awards

 

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

 

 

 

 

 

 

 

Employment Judge

 

 

Date and place of hearing:         18 March 2015, Belfast

 

 

Date decision recorded in register and issued to parties: