THE INDUSTRIAL TRIBUNALS

CASE REF:	803/08 IT

CLAIMANT:		Derek Alexander Heaney	

RESPONDENT:	Cunningham Stone Ltd (in administration)	

DECISION
The unanimous decision of the Tribunal is that the claimant was unfairly dismissed by the respondents and that the respondents pay the claimant the sum of £39,867 compensation. 

Constitution of Tribunal:
Chairman:		Miss P Sheils
Members:		Mrs Teresa Madden
			Mr Norman Wilkinson

Appearances:

The claimant appeared and represented himself.

There was no appearance from the respondent.  However a letter was received from John Hanson of KPMG, administrators dated 8 December 2008 giving consent to the claimant to proceed with his claim.

The Claim and the Response

1.	The claimant lodged a claim to the Industrial Tribunal on 2 June 2008.  The claimant claimed that he had been unfairly selected for redundancy and additionally claimed £2652 outstanding notice pay.  
The respondent lodged a response on 10 July 2008.  This response indicated that no grievance procedure had been activated.  That the “applicant” was selected for redundancy, that he was selected under the scoring system used and that the claimant was aware of the company’s difficulties and need to make cut backs given the current market conditions.  Additionally the respondent has indicated that the employees agreed to accept two weeks’ notice pay and this was contained in the claimant’s contract of employment.
Sources of Evidence
2.	The Tribunal heard from the claimant.  The Tribunal was also furnished with documentation including correspondence from the respondents, pay slips and the claimant’s Contract of Employment.
Findings of fact
The Tribunal found the following facts proved on the balance of probabilities;  
3.	The claimant worked for the respondents from 28 July 1997 until his employment was terminated on 7 March 2008.  The claimant was employed as a saw operator, automatic edge polisher.  The claimant worked 39 hours per week and his take home pay was £259.59.  The claimant was 48 when he commenced his employment and was 59 when his employment was terminated.  
4.	The respondent employed a total of 60 workers and in the yard where the claimant worked approximately 20 workers. Some of the work was managed in two separate shifts.  However the claimant was not a shift worker and worked a fixed period of time, namely 8.00am to 4.30pm.  The claimant received £1 per hour less than the shift workers.
5.	The claimant and the other employees were made aware during the recession that the company was cutting down on shift workers.  The claimant stated that employees were advised that they would have to attend individual meetings held by the company to hear about potential redundancies.  The claimant stated that he understood these meetings were meetings at which some workers were being told they were being made redundant.  However the claimant stated that he was not anxious about attending his meeting in that he did not believe that he would be made redundant.  
6.	In or about late February 2008 the claimant attended a meeting between himself and the company.  During the meeting, which lasted no longer than two minutes, the claimant was advised that he was being paid off. The claimant also stated that another shift worker who had been with the respondent company “barely two years” was put into his job as replacement.
7.	The claimant received a redundancy payment of £4,950.  He additionally received a payment of £663, two weeks’ notice pay.
8.	On 2 May 2008 the claimant wrote to the respondent and asked the following questions; the written reasons for his dismissal, if selection criteria were followed and what that criteria were and an explanation for his notice pay.  
9.	By letter dated 22 May the respondents wrote to the claimant and advised that the reason for the redundancies was to “reduce the number of employees to allow us to move from two shifts to one.  In relation to the criteria, a scoring system was used to establish who we should make redundant.
“In relation to your notice under your contract which you agreed to be employed you agreed to accept two weeks notice.  You have been paid two weeks notice and therefore as far as we are concerned you have been paid in full.”
The claimant claimed Jobseekers’ Allowance for a period of six weeks. The claimant was not entitled to any further monies on the basis of his age.
The Law
10.	The Tribunal had reference to the Employment Rights (Northern Ireland) Order 1996 and in particular Article 126 which states –
a.	An employee has the right not to be unfairly dismissed by its employer.
Article 130
(1)	In determining for the purposes of this part whether the dismissal of an employee is fair or unfair it is for the employer to show –
(a)	The reason or if more than one the principle reason for the dismissal and
(b)	That it is either a reason falling with paragraph 2 or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2)	A reason falls within this paragraph if it – , at (c) the employee is made redundant
Article 130 goes on to state that at 13(4) where the employer has fulfilled the requirement to paragraph 1, the determination of the question whether the dismissal is fair or unfair (having regard to the reasons shown by the employer –
(a)	Depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee and
(b)	Shall be determined in accordance with equity and the substantial merits of the case.
It is for the employer to show whether in the circumstances dismissal of an employee for redundancy is fair or reasonable. 
The Tribunal’s Conclusions 
11.	The Tribunal was unable to reach a conclusion that the dismissal of the claimant in these circumstances was fair or reasonable based on the evidence from the claimant and the want of evidence from the respondents. The Tribunal noted that the respondents’ response to the claim was merely that the claimant had been made redundant by virtue of his having fallen foul of a scoring system that had been applied to him.  
12.	There was no further evidence from the respondents to indicate how the selection criteria had been drafted or decided or whether the selection criteria had been properly applied to the claimant. Further the Tribunal also noted that there was no evidence from the respondents to refute the claimant’s version of the procedures that had been followed in his redundancy. 
13.	On the basis of the evidence before it the Tribunal concluded that the claimant had been unfairly dismissed by reason of his redundancy.
14.	The Tribunal also noted that the claimant had signed a contract of employment which indicated that his notice period would be limited to two weeks.  However, it is accepted law that contracts of employment may not be glued to statutory minimum provisions.  
15.	Accordingly with reference to Article 118 of the Employment Rights (Northern Ireland) Order 1976 the Tribunal concluded that the claimant was entitled to an additional 8 week period of notice.
Compensation
16.	Article 152 of the Employment Rights (Northern Ireland) Order 1996 provides that where a Tribunal makes an award of compensation that award shall consist of a basic award and a compensatory award.

The Basic Award
17.	This is calculated by reference to the statutory formula. In this case the basic award = 1 1/2 weeks x 10 x 260 = £3,900
The Compensatory Award
18.	This is to be assessed by the Tribunal in line with the provisions of Article 157 of the Order and is to be 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.”
The “loss sustained by the claimant” is set out in paragraph (2) of this Article.
The Tribunal concluded in this case that the claimant was entitled to such figure that reflected his loss of pay from the date of his dismissal until the date of the hearing, less any relevant deductions, namely 
£260.00 x 54 = £14,040
Plus loss of statutory rights £500 
Less redundancy pay £4,950
Less notice pay £663.00
=£8,927
19.	The Tribunal also noted that the claimant was 59 at the time of his redundancy and that it appeared unlikely that the claimant would be able to secure future work. Accordingly the Tribunal concluded that on this basis the claimant would be entitled to an award for future loss representing the period from the date of the claimant’s dismissal until the date of his retirement, 6 years. 
20.	However the Tribunal took account of the fact that the respondent company was in administration and that therefore the claimant was more likely than not to have been made redundant before his retirement date. The Tribunal noted the claimant’s evidence that the respondent company appeared to him to be “working away” and, although the Tribunal accepted that this appearance could include the respondents’ position that the company was in administration, the Tribunal concluded that in the circumstances of this case it was possible that the claimant could have remained in work during this period and been made redundant at a date in the future. The Tribunal set this period of future loss, curtailed by the inevitability of redundancy, at two years.
£260.00 x 104 = £27,040
Total Compensation = £39,867
Recoupment
21.	This is a relevant decision for the purposes of recoupment
Recoupment of benefit received by the claimant. 
The Employment Protection (Recruitment of Jobseekers Allowance and Income Support) Regulations (Northern Ireland) 1996 apply in this case. Rule of these Regulations require the Tribunal to set out
(a)	the monetary award;
(b) 	the amount of the prescribed element, if any;
(c) 	the dates of the period to which the prescribed element is attributable ; and
(d) 	the amount if any by which the monetary award exceeds the prescribed element.
22.	Rule 4 (Paragraph 2 of these Regulations also state where the Industrial tribunal at arriving at a monetary award makes a reduction on account of the employee's contributory fault or on account of any limit imposed by or under the 1992 Act or the 1996 Act, a proportionate reduction shall be made in arriving at the amount of the prescribed element.
23.	The prescribed element is that amount of the monetary award which represents a raise of pay, or compensation for loss of earnings, up to the date of the Tribunal hearing. In this case that period runs from the date of the dismissal, which in this case runs from the 7 March 2008 until the date of the hearing, 23 March 2009, a period of 54 complete weeks., less deductions = £8,427.  
Accordingly the amount by which the monetary award exceeds the prescribed element in this case is £39,867 less £8,927 = £30,940
24.	The attached Recoupment Notice forms part of the decision of the tribunal.
This is a relevant decision for the purposes of the Industrial Tribunals (Interest) (Northern Ireland) Order 1990.

Chairman:

Date and place of hearing:	23 March 2009, at Belfast	

Date decision recorded in register and issued to parties:

25.	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 Jobseekers’ Allowance and Income Support) Regulations (Northern Ireland) 1996. 
 	£	
(a) Monetary award	39,867	
(b) Prescribed element	8,927	
(c) Period to which (b) relates:	7 March 2008 –
 23 March 2009, 	
(d) Excess of (a) over (b)	£30,940	
2.	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 Jobseekers’ 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 Jobseekers’ 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.