THE INDUSTRIAL TRIBUNALS 

CASE REF:	1273/07

CLAIMANT:	Tony Meenan		

RESPONDENT:	Western Health & Social Care Trust		

DECISION ON REMEDY

The unanimous decision of the tribunal is that the claimant is entitled to compensation amounting to £13,158.00 from the respondent; for the failure of the respondent to observe the terms of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002 (hereinafter called “the Regulations”), in its failure to short list the claimant for a post for which he had applied.

Constitution of Tribunal:

Chairman:		Mr Cross	

Panel Members:	Mr Crawford
			Ms Hamilton	

Appearances:

The claimant was represented by Ms Maguire of the Law Centre.

The respondent was represented by Mr O’Reilly, Barrister-at-Law, instructed by Central Services Agency.

Evidence

1.	The tribunal heard evidence from the claimant and Mr Durkhan, an accountant on behalf of the claimant.

Matters considered by the tribunal

2.	The purpose of this hearing was to consider the appropriate financial compensation to be awarded to the claimant arising out of the tribunal’s decision, issued to the parties on 11 April 2008, that he had been the subject of unfair treatment in breach of the Regulations. The tribunal in paragraph 35 of its decision calculated the loss of the claimant up to 28 April 2008, the date when the claimant’s fixed term contract was set to expire. However the respondent has placed the claimant in a further fixed term contract, running from the termination of the previous one to 20 November 2008. The salary for this post exceeds his previous salary, so there is no loss at present under this contract. The loss will occur for the claimant from 20 November, if his fixed term contract is not renewed and he does not get another job and thus mitigate his loss.

3.	In paragraph 36 of its said decision, the tribunal referred to the state of uncertainty in the Northern Ireland Health Service at present, with the consequent cutting of posts and redundancies expected. In paragraph 37 the tribunal warned the claimant that his loss was the loss of a chance to achieve a certain post and that he had no guarantee that he would be appointed to the post, as he was only one of a number of aspiring candidates. The claimant’s representative suggested that she would go through the application details of all the applicants for the post, who had been short listed and compare those details with those of the claimant, who had been wrongly excluded from the short list. By this method the clamant would endeavour to demonstrate that he would have been appointed to the post in question. The tribunal declined to adopt this means of trying to ascertain the likelihood of the claimant being successful in his application for the post. The tribunal, whilst it had details of the job description and particulars of the other applicants for the post, did not feel that it had the knowledge of what the interviewers would have been looking for, or the experience of the respondent’s business, to embark on such an exercise. Furthermore at an interview applicants will present in a variety of ways and it would be wrong for a tribunal to try and gauge the likelihood of the applicant being successful or otherwise in his application for any given post. 

4.	The guidance that was adopted by this tribunal in dealing with the compensation payable to the claimant was that laid down in the Regulations and the assistance given by the English Employment Appeal Tribunal in the case of Ministry of Defence v Cannock and others [1994] IRLR 509. 

5.	Regulation 7(8) of the Regulations states, “Where a tribunal orders compensation under paragraph 7(b), the amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard to –

(a)	the infringement to which the complaint relates, and

(b)	any loss which is attributable to the infringement”

Regulation 7(9) goes on to state that, “the loss shall be taken to include –

(a)	any expenses reasonably incurred by the complainant  in consequence of the infringement, and 

(b)	the loss of any benefit which he might reasonably be expected to have had but for the infringement.”

Regulation 7(10) states that an applicant in a case of infringement of the Regulations shall not be entitled to compensation for injury to feelings.
6.	The Regulations also state in Regulation 7(11) that an applicant has a duty to            mitigate his loss in the same way as he would if he was bringing proceedings at common law.

7.	The tribunal was always aware that this was compensation for the loss of a chance to obtain a certain post and what the claimant had to be compensated for was that loss, and not loss flowing from failure to hold the post for a number of years, which would be the case if he had been, for instance, unfairly dismissed.

8.	The tribunal took into account the evidence of the claimant’s efforts to mitigate his loss, including possible emigration to Canada and other countries. He has also applied for various posts in the Northern Ireland Health Service. The tribunal took into account the fact that the claimant has continuing parenting responsibilities as a single parent. The tribunal is satisfied that the claimant has shown a continuing attempt to mitigate his loss. Indeed, since the date of the hearing of the main issues in this case in March 2008, the claimant has secured a further fixed term contract with the respondent.

9.	The claimant gave evidence to show the extent of his loss as a result of his not being appointed to the post to which he aspired and which is the subject of this claim. This included future loss of wages and pension contributions which would have been made by the respondent. These losses were projected into the future and were based on the assumption that the claimant would have been successful in acquiring the post in question. This however is, as the tribunal continue to remind itself, compensation for loss of a chance. In this connection the tribunal received guidance from Mr Justice Morrison in the case of Ministry of Defence v Cannock, referred to above, in connection with the awarding of compensation for loss of a chance.

10.	Morrison J said. “We suggest that tribunals do not simply make calculations under various different heads, and then add them up and award the total sum. A sense of due proportion involves looking at the individual components of any award and then looking at the total to make sure that the total award seems a sensible and just reflection of the chances which have been assessed.”

11.	Bearing all this in mind the tribunal holds as follows. The claimant has fixed term employment until 20 November 2008. On the assumption that the reorganisation of the NI Health Service means that he will take 9 months to find suitable employment, he should be compensated on that basis for his loss of future wages. So far as future pension loss is concerned the tribunal hold that within two years of the completion of his present fixed term contract, the claimant should be able to have secured work with a similar pension, or with a wage high enough to allow him to purchase his own pension. The claimant’s compensation for lost wages and pension contributions is thus based on these assumptions.

12.	Working on Mr Justice Morrison’s advice, set out above, and taking these components into account, the tribunal calculate a sum of £16600.00 being 9 months wages at the monthly net rate of £1844.00, as the wages element. Two years pension contributions would amount to £9500. This calculation is based on an agreed pension calculation of the annual gross wage of £30277.00 x 0.157 = £4750.00 per annum x 2 = £9500

13.	The tribunal hold that the claimant had a 50 % chance of being appointed to the post to which he aspired but for which he was wrongly not short listed. The compensation components will thus be discounted by this percentage as follows.

14.	Loss of wages to 28 April 2008 ( see para 36 main decision)         216.00
Future loss of wages                                                                    16600.00
Loss of Pension contributions                                                        9500.00
                                                                                                            ___________
                                                                                                                  £26,316.00
	     50% thereof is £13,158.00
	     
The tribunal award compensation to the claimant of £13,158.00.

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

Chairman:

Date and place of hearing: 2 July 2008, Strabane

Date decision recorded in register and issued to parties: