THE INDUSTRIAL TRIBUNALS  

CASE REF:    153/12 

CLAIMANT:	Stephen Woods

RESPONDENT:	Z Lift UK Limited t/a Zepro UK

DECISION

It is the unanimous decision of the tribunal that the claimant was unfairly dismissed, that the respondent in breach of contract did not give the claimant his full holiday entitlement and that when proceedings were commenced the respondent was in breach of its duty to provide the claimant a written statement of employment particulars.  The respondent shall pay the claimant £16,459.80.

Constitution of Tribunal:

Chairman:	Ms M Bell

Members:	Mr M Grant
	Mr D Hampton

Appearances:

The claimant appeared and represented himself.

The respondent was represented by Mr T Caher of Campbell & Caher Solicitors.

1.	The claimant in his claim complained that he had been unfairly dismissed by the respondent and was owed holiday pay for thirty five days.

2.	The respondent in its response resisted the claimant’s claims.

3.	At the outset of the hearing it was agreed that the claimant was employed by and the correct title of the respondent is Z Lift UK Limited t/a Zepro UK.  The title of the respondent in these proceedings is accordingly amended from ‘(1) Vincent Marmion Zepro (UK) Carrier Transicold NI (2) Zepro UK Ltd t/a Carrier NI (3) Z Lift (UK) Ltd’ to ‘Z Lift UK Limited t/a Zepro UK ’.

ISSUES FOR TRIBUNAL

4.	The issues before the tribunal were:-

	(1)	Was the claimant unfairly dismissed?

		(i)	Was the dismissal automatically unfair for failure to follow the statutory disciplinary and dismissal procedures?

	Otherwise, 

		(ii)	Was the dismissal unfair under ordinary principles?

			a)	Has the respondent shown the reason for dismissal?

			b)	Was it for a reason relating to the conduct of the claimant?

			c)	Did the respondent act reasonably in treating the conduct as a sufficient reason for the dismissal?  That is:

•	Did the respondent have a reasonable suspicion amounting to a belief in misconduct of the claimant, reasonable grounds upon which to sustain the belief, and at the stage the belief was formed on those grounds had the respondent carried out as much investigation into the matter as was reasonable in all the circumstances?

•	Was the misconduct in question a sufficient reason for dismissing the employee?

	(2)	Was there a breach of contract by the respondent in respect of holiday entitlement as a result of which the claimant has suffered a loss?

	(3)	Was the respondent in breach of its duty to give the claimant a written statement of particulars of employment when the proceedings were begun?

EVIDENCE

5.	The tribunal considered the claim, an agreed bundle of documentation from the respondent and further loose documentation provided by both parties, heard oral evidence from Mr Vincent Marmion, Northern Ireland manager of the respondent company, Ms Sue McCartney, office manager for the respondent in Northern Ireland and from the claimant.

FINDINGS OF FACT

6.	The respondent sells services, maintains refrigeration transport equipment and is a franchisee for two international companies, Carrier, and Zepro Tail Lifts.

7.	The claimant, born on 9 January 1972, commenced employment with the respondent as a refrigeration engineer on 18 April 2005.  The claimant was employed to work 40 hours per week and could be required to work overtime and frequently did, the respondent was not obliged to provide the claimant overtime.  During his employment the claimant’s hourly gross rate of pay was increased on two occasions, initially from £8.00 per hour to £9.00 and subsequently to £10.50 although the claimant could not remember when these increases came into effect.  At the time of his dismissal the claimant’s basic weekly pay was approximately £420.00 gross being £330.00 net.

8.	The respondent employed in Northern Ireland in total three employees in administration including Mr Marmion, and four in servicing, including the claimant.

9.	At no time was the claimant provided by the respondent with a written statement of employment particulars, written job description or duties, written guidance on the procedure to be followed by an engineer for attending call out requests, a disciplinary procedure, or any guidance on conduct that might warrant summary dismissal.

10.	Following enquires in August 2010 made by Ms McCartney after she joined the company it transpired that engineers in each holiday year running from 1 January to 31 December had not been receiving their full holiday entitlement of eight public holidays and 20 annual days, being 28 days in total, but had been receiving eight public holidays, three bank holidays, three days at Christmas and ten further annual days, amounting to 24 days.

11.	The claimant wrote letters to the respondent on 13 September 2010 and 19 September 2011 seeking payment in respect of holiday entitlement not received which he believed to be seven days per year based on the assumption that bank holidays were in addition to rather than included in his 20 days annual holiday, although the respondent disputes ever having received the claimant’s correspondence.

12.	The respondent at hearing provided a schedule prepared from its records setting out the claimant’s annual holiday entitlement from 2005 to 2011 including days used, days not taken, payments made and the final balance of holidays owing to the claimant.  The claimant in his evidence stated that he was not sure which statutory days he was entitled to and the tribunal accepts the respondent’s evidence that bank holidays were not intended to be given in addition to the 20 days annual holiday entitlement.  No dispute was raised by the claimant in respect of the respondent’s record of actual holidays taken.  The tribunal accordingly finds that in the 2005 holiday year the claimant took 16 days holidays being one more day than his pro rata holiday entitlement of 15 days for that year.  In each of the holiday year’s 2006, 2007, 2008 and 2009 the claimant received four less days holiday than he was entitled to.  In 2010 the claimant received six less days holiday than he was entitled to and these were carried over to the 2011 holiday year.  Including days carried the claimant had on termination of his employment a balance of 14 days holidays accrued due but not taken for the 2011 holiday year.  Overall during his employment the claimant did not receive 29 days of his contractual holiday entitlement.  In his final pay the claimant received payment for 18 days holiday and an additional five days pay for time not worked.

13.	The respondent operates a 24 hour breakdown service.  The claimant was on call to attend out of hours breakdown call outs one week in four and was paid an additional £100.00 gross for being on call on top of his basic pay.  Overtime was paid for actual breakdown call outs attended at a rate of time or time and a half depending on the time of day.

14.	On Mr Marmion’s evidence the on call service means that anyone phoning after hours will get an engineer who is expected to react appropriately and attend a call out if from a known customer, however, that they would not attend anyone, but would respond depending on who it was.  Mr Marmion stated that initially engineers were verbally told who to go out to and who not to, if there was a problem to phone and over time the engineer would get to know the customers.  No guidance was given by the respondent to engineers as to the possible consequence of a failure to comply with a callout request or to provide good customer service.

15.	Order numbers are normally issued by customers after a job is done and the cost worked out by Ms McCartney for inclusion on the respondent’s invoice to the customer, although it was the practice of some customers to issue start up order numbers by way of permission for the respondent to carry out work on their unit.

16.	On 15 August 2011 Ms McCartney placed on the wall of the respondent’s canteen a memo addressed to all staff members from the respondent’s managing director, Mr Noel Lacey stating, ‘No work to be carried out for any account in 3 months plus column without clearance from Brendan or myself.  Any work carried out without this clearance is ground[s] for instan[t] dismissal.’  This memo caused the engineers great concern and so Ms McCartney spoke with the respondent’s head office in Dublin to find out which of its customer’s accounts were more than three months in arrears after which she placed a list beside the memo in the canteen of approximately six customers whose accounts were over three months in arrears at that time.  This list did not include the respondent’s customer Hireco.  On Ms McCartney’s evidence the engineers did not know what to do and that she told them that it was a directive from the owner of the business and if she was an engineer that she would not be attending callouts.  The next day after an engineer informed a customer that he could not attend a call pursuant to the instruction given, Ms McCartney, Mr Marmion and the respondent’s accountant in Dublin discussed the matter and subsequently informed the engineers to disregard Mr Lacey’s instruction and to leave it to the office to get money in.

17.	The claimant gave evidence that following Mr Lacey’s memo about debtor’s that he was told by Ms McCartney that he should ask customers for order numbers to put onto his job sheets if the customer did not have a maintenance contract with Carrier, this was however disputed by Ms McCartney.  Ms McCartney gave evidence that in relation to the later appeal hearing and her reason for not being present, that she felt that the claimant had become confused with the ‘debtors letter’ issued by Mr Lacey.  The tribunal find that there was genuine confusion on the claimant’s part as to what was needed for him to attend a breakdown call out and that he believed he in certain circumstances needed to obtain an order number although this may not have been the actual instruction given.

18.	On 30 November 2011 Mr Graham of Hire Co Trailer Rentals received a telephone call from Mr Dereck Sawyer of Sawyers Transport in respect of a trailer on hire from Hire Co and asked Mr Graham to arrange for someone to go out to it because there was a problem with the fridge engine and he was concerned that the load could deteriorate.  As it was a Carrier engine on the trailer and the respondent was an agent for Carrier, Mr Graham rang the respondent’s breakdown service.

19.	At 11.25 pm on 30 November 2011 the claimant who was on call received a telephone call from Mr Graham of Hire Co Trailer Rentals, a customer of the respondent known to the claimant, requesting breakdown assistance to the fridge trailer in Sawyers transport, Omagh.  The terms of the conversation that followed between Mr Graham and the claimant are in dispute.  The claimant alleges that he asked Mr Graham was the fridge on contract to the respondent, that Mr Graham said it was not, that he asked for the trailer number which he did not recognise and so subsequently told Mr Graham that he would need an order number to attend and advised him to ring back when he got one but that he received no further calls.  This is in conflict with Mr Graham’s evidence that after he confirmed to the claimant that none of their vehicles were under contact with the respondent that the claimant said ‘I’m not going away down there’, that he was shocked at the claimant’s response, put to the claimant that the trailer was loaded and asked the claimant ‘what am I going to do’, to which the claimant replied ‘I don’t know, I’m not going down to it.’

20.	Mr Graham following his conversation with the claimant telephoned the respondent’s main competitor and arranged for them to send an engineer out.

21.	On 31 October 2011 Mr Graham telephone Mr Marmion and relayed to him the incident which had occurred the previous evening, Mr Marmion asked Mr Graham to detail the matter in an email to him.  Mr Graham then sent Mr Marmion an email stating,

		‘Vincent

		Just to make you aware of my disappointment last night to your after hours breakdown service you provide.

		I rang your breakdown line at around 11.30pm last night as I had a twin evap fridge fleet no.6496 at Omagh Meats with a problem of cutting out & wouldn’t freeze. 
		
		I spoke to your on call service engineer to arrange for him to go out, & was shocked by his reply & his attitude to say he wasn’t going.

		I advised him that this was fully loaded & asked him what I was going to do , & his reply was I don’t know what you may do but I’m not going down there.

		At this stage I had to ring TTP thermoking & ask if they would go to it….

		I hardly slept a wink all night worrying about this.

		Derek also commented at one stage Carrier [are] in all the time trying to sell him units & he said he will never have one in his fleet again.

		I’m sure you will agree that this is unacceptable service.’

22.	The claimant was called to a meeting with Mr Marmion on 31 October 2011; Ms McCartney was present and took minutes.  Mr Marmion asked the claimant what had happened regarding the phone call from Hire Co about a breakdown to which the claimant replied that he had asked for an order number for the call out, that ‘Ricky’ would not provide one and the claimant told him he would not be attending without an order number for the job as he had been told not to attend breakdowns without an order number, when asked what his attitude was to the customer the claimant said that he had no attitude with the customer but did tell him that he would not be attending the breakdown without an order number.  The claimant was advised that he was to be suspended with full pay for one week pending investigation.

23.	Following his meeting with the claimant Mr Marmion contacted Mr Graham to query if he had been asked for an order number.  Mr Graham emailed Mr Marmion at 2.25 pm stating,

		‘At no time was I asked for an order no. I was asked was it under contract only which I replied no. 

		I could have issued an order no. had I been asked.

 		I would have said quote the reg: as after hours this is sufficient.

		The only thing I was told was he wasn’t attending.’      

24.	On Mr Marmion's evidence he made the decision to dismiss the claimant following receipt of confirmation from Mr Graham that no order number was requested.

25.	On 1 November 2011 the claimant wrote to the respondent after seeking legal advice stating ‘....  To clarify the details of the telephone conversation, I informed the customer that I needed an Order Number before I could attend the breakdown, and was neither rude nor ignorant to the customer.  This practice of requested Order Numbers is a direct instruction from management in the past, and I have never been told that this practice is no longer correct....’  The claimant requested that the suspension be removed with immediate effect and no further disciplinary action be taken.

26.	On 4 November 2011 the respondent wrote to the claimant confirming that it was considering taking disciplinary action against him with regard to, ‘the following circumstances:  On Sunday 30th October 2011 you refused to attend a fridge breakdown call from Hire Co to Sawyers premises in Omagh.’  The claimant was invited to attend a disciplinary hearing on 10 November 2011.

27.	The claimant accompanied by a work colleague attended the disciplinary meeting with Mr Marmion and Ms McCartney present to take notes on 10 November 2011.  The meeting lasted ten minutes.  At the outset of the meeting as recorded in the minutes, Mr Marmion informed the claimant that his refusal to attend a breakdown called in by Hire Co was considered to be an act of gross misconduct and that the outcome would be dismissal and a statement of reasons for dismissal dated 10 November 2010 was then handed to the claimant.  When the claimant stated that he did not feel the decision was right Mr Marmion told him that there was no point in further discussing the incident as he had already stated that dismissal on the grounds of gross misconduct had been decided, the claimant again stated that he had asked for an order number, that he always did so for customers whose units were not on contract and that as per the minutes, ‘Ricky was the one with the attitude problem, not him.’  Mr Marmion again advised the claimant to speak to his solicitor as the Company’s decision was made.

28.	The claimant wrote to the respondent on 16 November 2011 to appeal the decision to dismiss him and set out, ‘... In mid September 2011 staff were told by Sue McCartney not to attend any breakdowns even those who had an existing contract with the company.  A few days later Sue met with the staff again and said we should attend breakdowns with companies who had a contract and we should only attend those with no contract if they gave an order number.

	On 30/10/11 at 11.30 pm I received a call from Hire Co to attend a breakdown.  I asked the caller if the breakdown was on contract and he said it wasn’t so I asked him for an order number.  When the person asked if I was refusing to attend I said ‘No, I’m not refusing but I can only attend if you give me an order number’....’ 
    
29.	On 24 November 2011 the claimant accompanied by a work colleague attended an appeal hearing which took place between 10.30 am and 10.36 am conducted by Mr Marmion and Ms Jill Clarke present to take minutes.  Ms McCartney choose not to attend the claimant’s appeal meeting on her evidence because she felt that he had stated in his appeal letter that she had instructed him not to attend breakdowns from customer’s without contracts and felt that he had confused this with the letter about debtors and that she should accordingly not sit in.  At the meeting the claimant as recorded in the minutes again stated that he, ‘did not refuse to go to the call out and I’m not saying that he is lying but I asked for an Order Number....’ and that, ‘Noel Lacey put a notice on board in canteen and Tim turned down Dawsons and Carrier UK and I feel [I] am being unfairly treated.  I have never been given anything to say what to do when called out and what the procedure is.’  Before the hearing concluded Mr Marmion produced a bag of copper piping and put to the claimant that when a stock check was done, ‘these were in yours, how did it get there?’  The claimant asked what Mr Marmion meant and was asked why he had copper in his van at which the claimant referred to having the, ‘Copper piping from G & A’, and having used certain pieces of it, ‘To pull cables through’, and, ‘Tightening belts’.  Mr Marmion concluded the meeting and confirmed that they would be in touch with the claimant.
 
30.	On Mr Marmion’s evidence he thought the claimant had been stealing from the premises and this probably was taken into account in his decision on appeal to uphold the decision to dismiss.

31.	By letter dated 28 November 2011 Mr Marmion confirmed that the claimant’s dismissal still stood ,in summary because; it was not correct that Ms McCartney told staff not to attend breakdowns without an order number;  they had job sheets where the claimant had attended units not on contract ten times between 27/08/10 and 29/08/11 without an order number or personal instruction; the claimant made no mention at his first interview of asking Hireco to call him back; there should be no issue contacting Mr Marmion’s mobile and it was not diverted to the breakdown phone; Mr Graham had given a statement that at no time was he asked for an order number ;and for the reasons set out in Mr Marmion’s dismissal letter to the claimant.

32.	The respondent had never previously received a complaint from a customer about an engineer refusing to attend a breakdown callout.

33.	The claimant’s disciplinary record was clear save for a verbal warning given to him in relation to a fall out he had had with a manager of Asda a number of years previously. 

34.	As shown by job sheets completed by the claimant he did attend breakdown call outs without order numbers, however the tribunal find credible his explanation that these were in respect of units with which he was familiar because they had recently had works carried out upon them or were units in respect of which he had received authorisation to do work upon during working hours and as such had no concern that the respondent would not recover payment.

35.	On the claimant’s undisputed evidence working relations between Mr Marmion and him were not good and there was some animosity.

36.	Confusion and concern was caused by Mr Lacey’s memo in August 2011 as to the possibility of instant dismissal where the respondent might not recover payment for call out work done for certain customers, despite its subsequent withdrawal.  Whilst it may not have been actually required of him by the respondent, the tribunal consider there was genuine confusion on the claimant’s part resulting from Mr Lacey’s memo in August and consequently, added to further by the absence of any clear written guidance as to what was required of him, it was his belief that he needed to request an order number in certain circumstances from customers to guarantee payment and keep himself right. 

37.	The claimant did not endeavour to make any enquiries of the respondent as to whether he should respond to Mr Graham’s call in the absence of an order number, despite the unit being loaded and great potential loss to the customer, the load being worth in the region of £50,000.

38.	The claimant sought by way of remedy compensation only.

THE LAW

Statutory Minimum Procedures and Unfair Dismissal

39.	The Employment (Northern Ireland) Order 2003 at Schedule 1 sets out the statutory dismissal and disciplinary procedures to be followed as a bare minimum, where applicable, by an employer contemplating a dismissal.  The standard procedure consists of three steps:

	Step 1: statement of grounds for action and invitation to meeting

	1.—	(1)	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. 

		(2)	The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter. 

	Step 2: meeting

	2.—	(1)	The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension. 

		(2)	The meeting must not take place unless— 

		(a)	the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and

		(b)	the employee has had a reasonable opportunity to consider his response to that information.

		(3)	The employee must take all reasonable steps to attend the meeting. 

		(4)	After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it. 

	Step 3: appeal

	3.—	(1)	If the employee does wish to appeal, he must inform the employer. 

		(2)	If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting. 

		(3)	The employee must take all reasonable steps to attend the meeting. 

		(4)	The appeal meeting need not take place before the dismissal or disciplinary action takes effect. 

		(5)	After the appeal meeting, the employer must inform the employee of his final decision.

40.	By virtue of Article 126 of the Employment Rights (Northern Ireland) Order 1996 an employee has the right not to be unfairly dismissed by his employer.  Article 130 sets out how the question of whether a dismissal is fair or unfair is to be determined, however under Article 130A (1) an employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if –

	(a)	One of the procedures set out in Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Procedures) applies in relation to the dismissal, 

	(b)	Procedure has not been completed, and

	(c)	The non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.  

41.	Where an Industrial Tribunal finds that the grounds of a complaint of unfair dismissal are well-founded the Orders it may make by way of remedy are set out at Article 146 of the 1996 Order and include reinstatement, or re-engagement, and otherwise compensation.  How compensation is to be calculated is set out at Articles 152 to 161 of the 1996 Order. For the purpose of calculating a basic award of compensation for unfair dismissal the amount of a week’s pay was capped at £400 at the claimant’s effective date of termination under Article 23 of the 1996 Order.

42.	Under Article 157 of the 1996 Order 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 the action taken by the employer.  The overriding duty on a tribunal in respect of the compensatory award is to award 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.

43.	Harvey on Industrial Relations and Employment Law/Division D1 Unfair Dismissal under speculative loss where a dismissal might have occurred sets out that, ‘In some cases it is difficult to be certain whether the dismissal would have occurred had the employer acted fairly.  Classically this problem arises in circumstances where the employer has failed to act fairly because he has failed to apply certain procedural safeguards which might, had they been applied, have led to the employee retaining his job’ and in summary that in Polkey v AE Dayton Services Ltd [1987] IRLR 503, [1988] ICR 142, HL Lord Bridge indicated that tribunals can reflect fairness to the employee by reducing the compensation.  This can reflect the chance that the employee might not have lost his job had fair procedures been adopted.’

44.	At Harvey paragraphs:

	[2551]

	‘Where evidence is adduced as to what would have happened had proper procedures been complied with, there are a number of potential findings a tribunal could make.  In some cases it may be clear that the employee would have been retained if proper procedures had been adopted.  In such cases the full compensatory award should be made.  In others, the tribunal may conclude that the dismissal would have occurred in any event.  This may result in a small additional compensatory award only to take account of any additional period for which the employee would have been employed had the proper procedures been carried into effect (see eg Mining Supplies (Longwall) Ltd v Baker [1988] IRLR 417, [1988] ICR 676).  In other circumstances it may be impossible to make a determination one way or the other.  It is in those cases that the [employment] tribunal must make a percentage assessment of the likelihood that the employee would have been retained, as suggested in Sillifant v Powell Duffryn Timber Ltd [1983] IRLR 91.’

	[2556]

	‘A similar example is Panama v London Borough of Hackney [2003] IRLR 278, CA in which the Court of Appeal had to consider an appeal from a decision of an employment tribunal in which a finding had been made that the overwhelming probability was that, if a fair procedure had been followed, the claimant would have been found guilty of gross misconduct and would have been summarily dismissed. The Court of Appeal held that when assessing this question the tribunal must also ask itself not only whether such a dismissal would have taken place but also whether it would have been fair.  In that case the Court of Appeal considered that any dismissal for fraud would not have been fair because the necessary evidence was not available to the tribunal to enable it to reach such a view.’

45.	Under Article 154(1) of the 1996 Order where an employee is regarded as unfairly dismissed there is provision at Article 17 of the 2003 Order for an uplift to be applied to awards in proceedings before an industrial tribunal relating to a claim under any of the jurisdictions listed in Schedule 2 [which include Article 145 of the 1996 Order (Unfair Dismissal)] by an employee where it appears to the industrial tribunal that a claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies, the statutory procedure was not completed before the proceedings were begun, and the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer to comply with a requirement of the procedure, in which case it shall (subject to paragraph (4) therein) increase any award which it makes to the employee by 10% 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%.

Breach of contract

46.	Under the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 an employee may bring a claim for damages for breach of his contract of employment or for a sum due under that contract or any other contract connected with employment before an Industrial Tribunal if the claim arises or is outstanding on termination of his employment.

Failure to provide written statement of employment particulars

47.	Article 33 (1) of the 1996 Order requires that where an employee begins employment with an employer the employer shall give to the employee a written statement of particulars of employment.

48.	Under Article 27(3) of The Employment (Northern Ireland) Order 2003, where the industrial tribunal makes an award to the employee in respect of the claim to which the proceedings relate (being any of those listed in Schedule 4 including unfair dismissal and breach of contract) and when the proceedings were begun the employer was in breach of his duty to the employee under Article 33(1) of the 1996 Order the tribunal shall increase the award by the minimum amount, being equal to two weeks gross pay, and if it considers just and equitable in all the circumstances, increase the award by the higher amount instead, being equal to four weeks gross pay.

APPLICATION OF LAW TO THE FACTS FOUND

49.	It was acknowledged in closing submissions on behalf of the respondent that if the tribunal were of the view that under his contract of employment the claimant was entitled to holiday pay then the claimant had wrongly been denied holidays and was entitled to payment as set out in the schedule of holidays submitted.  It was also accepted that there should be a finding of unfair dismissal as the respondent was in breach of statutory requirements because at the outset of the disciplinary meeting Mr Marmion had already made the decision to dismiss, but based on Polkey principles Mr Caher submitted that the conduct of the claimant was such that it would have been inevitable that he would have been dismissed even if correct procedures had been followed, that the claimant’s evidence as to his mitigation of loss was unsatisfactory and that no compensation should be paid in the circumstances. Mr Woods stated that he felt he had been unfairly treated by the respondent and had a ‘black mark’ put against his name.

50.	The tribunal on consideration of all the evidence and submissions made is satisfied on a balance of probabilities as follows:

Breach of contract

51.	In breach of contract the respondent failed to give the claimant his full contractual holiday entitlement .The tribunal is persuaded that the claimant has suffered a financial loss as per the respondent’s schedule, which after taking into account payments made to the claimant on termination of his employment leaves a balance equivalent to 6 days holidays amounting to £396.00 gross, being approximately £297.00 net.  The respondent shall pay the claimant £297.00 in respect thereof.

Statutory Minimum Procedures and Unfair Dismissal

52.	The standard procedure under the statutory dismissal and disciplinary procedures was applicable however Mr Marmion reached the decision to dismiss the claimant before holding a disciplinary meeting and informed the claimant of his decision at the outset of the disciplinary meeting before the claimant had an opportunity to explain his case or further enquiry was made of him.  At the appeal hearing, which if dealt with properly could have potentially remedied defects in the disciplinary hearing, also conducted by Mr Marmion, the matter of copper piping left in the claimant’s van was raised for the first time without prior notice. On Mr Marmion’s own evidence he suspected that the claimant had been stealing from the premises but had not mentioned it before because he thought he needed more proof and did not consider that it was grounds on its own [to dismiss], he did not consider the claimant’s explanation in respect of the piping at the appeal hearing was satisfactory and that this probably played a part in his decision to uphold his earlier decision to dismiss the claimant.  No prior investigation was carried out, statement of grounds for action or invite to a disciplinary meeting in respect thereof was provided to the claimant before the matter of the copper piping being raised at the appeal hearing. 

53.	The tribunal finds that the claimant’s dismissal was automatically unfair under Article 130A (1) of the 1996 Order, the non-completion of the dismissal and disciplinary procedures being wholly attributable to the failure by the respondent to comply with its requirements.  

54.	The tribunal also considers that in the alternative that the claimant’s dismissal was unfair under Article 130 of the 1996 Order under ordinary principles.  The tribunal consider applying the objective standard of the hypothetical reasonable employer, that in the circumstances of the case the respondent did not act reasonably in treating the conduct of the claimant as a sufficient reason for the dismissal.  Of note in particular, whilst the respondent may have held the belief that the claimant was guilty of some misconduct the respondent had not carried out as much investigation into matters as was reasonable in all the circumstances at the time that belief was formed and in any event on conclusion of the appeal hearing.  There was also a lack of clear guidance relating to procedures to be followed by engineers in respect of callouts, an absence of any disciplinary procedure providing examples of conduct which could warrant summary dismissal or any explicit disciplinary rule or instruction warning that such a breach could lead to dismissal.  Confusion and concern was caused by Mr Lacey’s memo in August 2011 as to the possibility of instant dismissal where the respondent might not recover payment for call out work done for certain customers, despite its subsequent withdrawal.  Whilst it may not have been actually required of him by the respondent, the tribunal consider there was genuine confusion on the claimant’s part resulting from Mr Lacey’s memo in August and it was his genuine belief that he needed to request an order number in certain circumstances from customers to guarantee payment and keep him right. 

COMPENSATION FOR UNFAIR DISMISSAL

55.	The tribunal accordingly orders the respondent to pay the claimant compensation as follows:-

	Basic Award

	Calculated in accordance with Article 153 of the 1996 Order: 

	6 years  x  1  x  £400.00 	=	£2,400.00

	Compensatory Award

	The overriding duty imposed upon a tribunal is to award compensation which is just and equitable in the circumstances.  Whilst there is some likelihood that even had the required procedural safeguards been followed by the respondent that the claimant may still have lost his job, the tribunal do not consider that such a dismissal would have been a fair one in particular in light of the absence of written procedures and or explicit warning to guide the claimant in respect of conduct which could warrant dismissal and the absence of any investigation in respect of the copper piping.  For the purpose of assessing remedy only whilst the tribunal find the claimant credible and consistent in his explanation that he did not go out to the call because he asked for an order number which he believed was required of him, the tribunal find that he however contributed to an extent to his dismissal by failing in the circumstances to make any enquiry of the respondent as to whether he should respond to Mr Graham’s call in the absence of an order number irrespective of whether awaiting a return call.  The tribunal is not persuaded that the claimant’s attempts to mitigate his loss have been shown to be unreasonable or his conduct such that compensation should be reduced to nil to reflect this under Polkey principals.  Overall the tribunal considers a reduction of the compensatory award by twenty percent just and equitable in all the circumstances.

	Loss of Earnings

	Effective date of termination (the week’s pay paid on termination having been set off against holiday entitlement) up to the date of hearing, that is, 10/11/11- 1/06/12, say

	29 weeks @ £330 net  	=	 £9,570.00

	Loss of on call allowance, say 7 weeks@ £75 net  	=	    £525.00

	Loss of statutory rights		    £300.00
	
	Future loss

	The tribunal note the claimant in his attempts to find employment since his dismissal considered that he had been hampered by the fact of his dismissal and as such the finding of the dismissal as unfair should improve his prospects in successfully obtaining employment, that the claimant was placed on the reserve list following interview with Banbridge District Council on 10 May 2012 as a temporary waste collection operative and currently awaits a response in respect of a position for a fire technician recently applied for.  The tribunal considers that with reasonable endeavor it would be reasonable to expect the claimant to secure equivalent employment within a further three month period.  Accordingly the tribunal finds it just and equitable to award the claimant compensation for 13 weeks future loss.

	13 weeks  x  £330 net 	=	  £4,290.00

	Total compensatory award before reduction	=	£14,685.00
	
	Less 20 %		 -£2,937.00

	Balance compensatory award =		£11,748.00

	Uplift under Article 17

	Considering the seriousness of the breaches of the statutory procedure, size and status of the respondent the tribunal consider a percentage uplift of 10% is just and equitable.

	Total compensatory award before uplift 	=	£11,748.00

	10% uplift 	=	  £1,174.80

	Total compensatory award after uplift   	=	£12,922.80

Written statement of particulars of employment 

56.	When these proceedings were begun, in respect of which the tribunal has made an award for breach of contract and unfair dismissal, the respondent was in breach of its duty to the claimant under Article 33(1) of the 1996 Order to provide a written statement of employment particulars.  The tribunal considers it just and equitable to award the claimant an amount equal to two weeks pay in respect thereof.  The respondent shall pay the claimant £840.00 in respect thereof.

Recoupment

57.	The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996; The Social Security (Miscellaneous Amendments No. 6) (Northern Ireland) 2010 and your attention is drawn to the attached notice.

(a)  Monetary award	£16,459.80	
(b)  Prescribed element	£8,883.60	
(c)  Period to which (b) relates:	10 November 2011 – 1 June 2012	
(d)  Excess of (a) over (b)	£7,576.20	

CONCLUSION

58.	The tribunal finds that the claimant was automatically unfairly dismissed by the   respondent under Article 130A (1) of the 1996 Order, that the respondent in breach of contract did not give the claimant his full holiday entitlement and that when proceedings were commenced the respondent was in breach of its duty to provide a written statement of employment particulars.  The respondent shall pay the claimant the following compensation:-

	BREACH OF CONTRACT:	     £297.00

	BASIC AWARD:	  £2,400.00

	COMPENSATORY AWARD:	£12,922.80

	FAILURE TO PROVIDE WRITTEN PARTICULARS OF EMPLOYMENT:	     £840.00

	TOTAL:	£16,459.80

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

Chairman:

Date and place of hearing:	22 May and 1 June 2012, Belfast.

Date decision recorded in register and issued to parties:

Case Ref No:    153/12

CLAIMANT:		Stephen Woods		

RESPONDENT:	Z Lift UK Limited t/a Zepro UK

ANNEX TO THE DECISION OF THE TRIBUNAL

STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S
ALLOWANCE/INCOME–RELATED EMPLOYMENT AND SUPPORT 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 Social Security (Miscellaneous Amendments No.6) Regulations (Northern Ireland) 2010.

	£	
(a)  Monetary award	£16,459.80	
(b)  Prescribed element	£8,883.60	
(c)  Period to which (b) relates:	10 November 2011 – 1 June 2012	
(d)  Excess of (a) over (b)	£7,576.20	

	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, Income-related Employment and Support 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, Income-related Employment and Support 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.