Mullin v PG McGillion Motors Ltd [2009] NIIT 132

THE INDUSTRIAL TRIBUNALS

CASE REF: 132/09IT

CLAIMANT: Joseph Mullin

RESPONDENT: PG McGillion Motors Ltd

DECISION

The unanimous decision of the tribunal is that the respondent unfairly dismissed the claimant and the tribunal orders the respondent to pay to the claimant compensation amounting to a total of £1,626.31.

Constitution of Tribunal:

Chairman: Mr J V Leonard

Panel Members: Mr Uel Adair

Mr Bill Irwin

Appearances:

The claimant: The claimant appeared and represented himself.

The respondent: Mr J Fox, Solicitor of Barry Fox, Solicitors, appeared and represented the respondent

Reasons

1. The tribunal heard oral evidence from the claimant and from Mr Brian McGillion, managing director of the respondent company. In addition, there was an agreed bundle of documents and certain additional documents were included therewith by agreement. The tribunal had the benefit of oral submissions by or on behalf of the parties upon conclusion of the hearing and had regard to all of the foregoing in reaching its determination in the case.

The Issue

2. In his claim to the tribunal made by claim form dated 15 December 2008, the claimant claimed that he was unfairly selected for redundancy and consequently unfairly dismissed. He contended that the statutory redundancy procedures were not applied correctly and as a result he was not given an opportunity to contest his dismissal. Certain other potential claims on the claimant’s part emerged during the course of the hearing and after hearing submissions in regard to that, the tribunal directed that the claimant’s case be confined to that case made out in the originating claim form. In a response to the claim dated 20 February 2008 (which date the tribunal believes is indeed an error and which ought perhaps to have read “20 February 2009”, for it was received by the Office of Tribunals on that latter date) the respondent conceded that the respondent company had employed the claimant and that the claimant had been dismissed from employment on grounds of redundancy. The respondent denied that the claimant had been unfairly selected for redundancy and unfairly dismissed and it was denied that the respondent had failed to follow proper statutory procedures. An explanation was afforded as to the reasons for the stated redundancy and the process followed in regard to the redundancy and it was contended that the claimant had received his full financial and other entitlements. Accordingly, the issue for the tribunal was whether or not the claimant’s claims as set forth in the originating claim form were to be upheld by the tribunal and, further to that, whether the statutory procedures applicable to dismissals had been followed by the respondent. If the claimant’s claims were determined as made out in full or in part, the tribunal had to determine the issue of appropriate remedy, including compensation.

The Tribunal’s Findings of Fact

3. In consequence of the oral and documentary evidence before it, the tribunal on the balance of probabilities determined the following material facts:-

(a) The respondent is a long-established motor dealership and the business includes car sales, parts sales, servicing, repairs and warranty work to business and members of the public. The respondent company has been a family-run business since 1976. Mr Brian McGillion was appointed a company director in 2003 and Mr McGillion’s wife, Mrs Karen McGillion, a fellow director in 2007. The general manager of the company was a Mr Paul Coyle.

(b) The commencement year of the claimant’s employment by the respondent was initially stated by Mr McGillion to be 2004 but after some further questioning and noting the response to the claimant’s claim, it was conceded by Mr McGillion that the claimant’s commencement date of employment was accurately stated in his claim form as being 4 August 2003. The claimant’s background is that he is a graduate of Queen’s University Belfast with a B.Sc. in Mechanical Engineering. After graduating, the claimant pursued a career in IT and computers before joining the respondent in August 2003. The claimant’s date of birth is 20 October 1976.

(c) The claimant’s initial role upon taking up the employment was to assist the parts and service manager, and the claimant’s previous IT experience was regarded as being valuable to the respondent. It appears that the claimant’s working relationship with the respondent’s management was uneventful for a considerable period of time. However, in his evidence to the tribunal, the claimant described pressures of work and changing job roles and he stated that from time to time an overly critical approach was taken to his work on the part of Mr McGillion. Up to May 2008, the claimant had been the respondent’s parts and sales manager. The claimant stated that in practice his function in a relatively small family-run company was flexible, and there was overlapping between various functions. The warranty work was until recent times conducted by an employee working on a part-time basis. However that employee apparently became ill and eventually was unable to continue with that warranty work.

(d) The economic downturn affected the business in 2008. The tribunal is satisfied from the evidence that there were genuine difficulties being experienced by the business in terms of cash flow, with revenue streams being substantially reduced in comparison to earlier trading years.

(e) In May of 2008, a management decision was taken to appoint the claimant as parts manager with IT duties. The claimant’s existing annual salary at that time was £14,000 gross. The new salary arrangements were that he was to be paid £12,000 a year gross with £1,000 extra for training responsibilities and £1,000 for IT responsibilities. On a weekly basis, the claimant’s gross wage was £308.35 per week and his nett wage was £245.77. This restructuring of his job function was seemingly agreed to by the claimant without difficulty. There was also some discussion at the time about a possible bonus for successful parts sales targets being attained, but nothing definite was agreed in that regard. As this was a small family company, the claimant also continued to look after some managerial sales duties and to direct work to the mechanics.

(f) A Mr Brian Coyle, a relative of the general manager Mr Paul Coyle, had worked for the company previously and he had left in October 2007. Mr Brian Coyle was re-engaged by the respondent, as the tribunal understands it, on 5 August 2008 and his job title was “workshop controller”. This appears to have been a function which included the roles of service manager and after sales manager. There is no evidence that that post was ever advertised or trawled externally or internally. Mr Brian Coyle also attended to warranty administration work. The previous part-time employee referred to above who had been responsible for that ceased to work for the company in May 2008, as the tribunal understands it.

(g) The claimant endeavoured to take leave which was his entitlement towards the end of 2007, but this was refused for some reason. Quite understandably, the claimant felt that he was entitled to carry over this untaken leave to the following leave year, 2008. Mr McGillion’s evidence was that there was no settled policy concerning carry-over of leave; that appeared to be entirely at management discretion. There seems to have been a dispute or difference of opinion regarding the taking of leave. This occurred a short time before the claimant was due to go on vacation in July 2008. It appears that there was a misunderstanding on the part of Mr McGillion regarding the precise dates of the claimant’s request for leave. Notwithstanding the claimant seemingly resolving any misunderstanding, nonetheless this left a lingering atmosphere of difficulty and friction between the claimant and Mr McGillion.

(h) The claimant’s evidence, which the tribunal notes was not directly controverted by Mr McGillion, was that Mr McGillion had been particularly critical of the claimant’s work in the short period of time prior to his departure on vacation. That leave was scheduled to commence on Friday 15 August 2008. There were somewhat heated discussions between Mr McGillion and the claimant concerning issues in respect of VAT returns and stock taking (which the claimant contended he did not have time to do on account of other pressing job duties) and discussions also centred round the claimant’s wages and deductions, with the claimant querying his wages as he had not ever received any wages advice documentation. The claimant also raised the issue of the lack of a written contract of employment in discussions at the time.

(i) When the claimant returned from vacation some two weeks later, he felt that Mr McGillion was “avoiding him”, as he put it to the tribunal. On the morning of 1 September 2008, the claimant was summoned to a meeting in Mr McGillion’s office. Present there were the directors and Mr Paul Coyle, the general manager. Mr McGillion informed the claimant that his post no longer existed. He was informed of his entitlement to apply for a new post. That post was to be created by an amalgamation of the business manager’s role with that of the parts manager and a sales role. It seems that it was explained to the claimant that two roles were redundant, these being the parts manager’s role, which was then occupied by him, and the business manager’s role which was then occupied by a Ms Laura Patton. However, as the tribunal understands it from the further evidence of Mr McGillion the respective roles of the parts manager, a sales person’s role (then occupied by a Mr Mal Houston) and business manager and a service technician’s role (then occupied by a Mr Tony Gillespie) were all to be affected by company restructuring and consequent redundancies.

(j) Regarding the status of the claimant from 1 September 2008, in view of the significance of the matter the tribunal questioned both the claimant and Mr McGillion regarding the position of the claimant upon the announcement of the redundancy of his post on 1 September 2008. The tribunal has no doubt that Mr McGilllion’s intention and his understanding of the situation was that the claimant was being effectively dismissed from his post on 1 September 2008, that is to say dismissed from his employment in the post with the respondent with effect from that day. The claimant was also of that understanding. There therefore seems to have been a summary termination of the claimant’s contract of employment with effect from 1 September 2008. In making this finding of fact, the tribunal is reliant upon the clear and unambiguous statement of the intention of the parties and their clarification and explanation of the status of the claimant with effect from 1 September 2008, as evidenced by both the claimant and also by Mr McGillion.

(k) The best the tribunal can understand of what happened next is that the claimant seems to have been then immediately re-engaged on a temporary basis by the respondent, pending his being interviewed for the new post. That interview took place on 15 September 2008. Also interviewed that day, prior to the claimant, was Mr Mal Houston. The interviews were conducted by Mr and Mrs McGillion. At the outset of his interview, the claimant raised an issue regarding an earlier indication that he had been given that there was going to be an independent person present at the interview. He was concerned that that would be the case in view of the friction which had existed with Mr McGillion prior to his departure on vacation. No other person was present.

(l) A series of prepared questions were put to the claimant (and it seems to Mr Houston) and answers were recorded in manuscript by Mrs McGillion. The evidence is that later that day Mr McGillion typed up the answers on his computer by adding these in typeface to the existing typed questions. To the document thus produced, manuscript scoring was also added. This recorded in handwriting the individual scoring of the two candidates. The claimant’s final scoring emerged at a total of 40 out of an available scoring of 110. Mr Houston’s scoring was a total of 70 out of 110. Mr Houston was thereafter appointed as the successful candidate. On the 19 September 2008 Mr McGillion met with the claimant and provided to him a final statement of wages. He took from the claimant his car keys and effectively the claimant was escorted off the respondent’s premises in a perfunctory manner. Mr McGillion explained to the tribunal that the reason for him taking this approach was that the claimant was aggrieved concerning his dismissal and the outcome of the recruitment for the post.

(m) Upon these events transpiring, the claimant took advice from his local Citizen’s Advice Bureau and he wrote a letter of grievance to the respondent dated 7 October 2008. In that letter he claimed that he had been unfairly selected for redundancy and he raised the issue of unfair dismissal and the respondent’s stated failure to follow the statutory procedures in respect of dismissals. He also requested details of his wages upon leaving. In a letter dated 10 October 2008, Mr McGillion replied to the claimant, stating that in May 2008 the claimant’s role with the respondent had changed within the aftersales department to selling parts only. Responsibilities included training and IT requirements. The redundancy of the post of parts manager, sales executive and technician were explained and it was contended that it was completely wrong of the claimant to state that he would have to compete for his existing post. It was contended that this was a new role that would amalgamate the car sales and the parts role. The interview on 15 September 2008 was mentioned and the fact that the claimant had been informed on 16 September 2008 that he had not been selected. The redundancy terms were outlined. It was contended that the post was terminated on grounds of redundancy.

(n) The respondent paid to the claimant on 19 September 2008 his final wages. The tribunal inspected the copy of the final wages statement and noted that this referred to gross wages with reference to the weekly pay figure of £308.35 with the exception of one amount which was described as being a “bonus payment”. The statement then indicated what appeared to be statutory deductions for tax and national insurance and at the end indicated the final net wages figure of £3,129.46. The information contained in that final wages statement showed that included in the foregoing figure was one week’s wages described as “weekly paid”(sic), followed by “bonus payment” of £232.70, “redundancy payment” of five weeks’ pay, “notice of redundancy” of three weeks and “holiday pay” of two weeks.

(o) After his dismissal from employment, the claimant remained unemployed for a brief period but did not claim any state benefits. He was fortunate enough then to gain alternative employment with effect from 20 October 2008. The claimant confirmed to the tribunal that his remuneration in that new employment was greater than that with the respondent (£330.00 for the gross wage and the nett wage was £270.00) and that no loss had been sustained by him as a consequence of the dismissal after the date of 20 October 2008.

(p) The tribunal did not need to determine any further material facts for the purposes of its decision in this case.

The Applicable Law

4. In respect of the law in regard to unfair dismissal, the Employment Rights (Northern Ireland) Order 1996 (hereinafter referred to as “the 1996 Order”) provides at Article 126 of the 1996 Order that an employee has the right not to be unfairly dismissed by his employer. Article 130 of the 1996 Order provides for the test of fairness concerning the dismissal by an employer. It is for the employer to show the reason (or, if more than one, the principal reason) for the dismissal, and that it is either a specified reason as set out in Article 130 or some other substantial reason of a kind such as to justify the dismissal. In the application of this statutory guidance, the leading authority remains the case of Iceland Frozen Foods Limited v Jones [1982] IRLR 439. If a tribunal makes a finding of unfair dismissal, and an order for re-engagement or re-instatement is inapplicable, a tribunal may make an order for compensation including both a basic award and a compensatory award. Under Article 153 of the 1996 Order the basic award is calculated with reference to the effective date of termination of employment. For the compensatory award under Article 157 of the 1996 Order, the compensatory award is such amount as the tribunal considers just and equitable having regard to the loss sustained by the complainant in consequence of the dismissal, insofar as that loss is attributable to action taken by the employer.

5. The Employment (Northern Ireland) Order 2003 ("the 2003 Order") amends the 2006 Order and includes provisions, respectively, under Article 17(1) to (4), in relation to non-completion of statutory procedure: adjustment of awards by industrial tribunals and under Article 23, in relation to procedural fairness in unfair dismissal. Article 130A (1) of the 1996 Order (as inserted by the 2003 Order) provides that an employee who is dismissed, whether or not his dismissal is unfair or regarded as unfair for any other reason, is to be regarded as being unfairly dismissed if a statutory dismissal and disciplinary procedure (as set out in Part 1 of Schedule 1 of the 2003 Order) applies in relation to the dismissal, the procedure has not been completed, and the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements. Article 154(1A) of the 1996 Order provides that the basic award in any automatically unfair dismissal pursuant to Article 130A (1) must amount to at least four week’s pay unless that would be unjust to the employer.

In relation to redundancy, Article 174 of the 1996 Order specifies that where the requirements of a business for an employee to carry out work of a particular kind have ceased or diminished, then the employee is to be deemed dismissed by reason of redundancy. Article 197 of the 1996 Order provides for computation of the amount of the redundancy payment with reference to the age and length of service of an employee.

6 The detail of the foregoing provisions of the 2003 Order, recording the tribunal's own emphasis in bold lettering, is as follows:-

"17. —

This Article applies to proceedings before an industrial relating to a claim under any of the jurisdictions listed in Schedule 2 by an employee.

(3) If, ..... it appears to the industrial tribunal that—

the 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,

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.

(4) The duty under paragraph (2) or (3) to make a reduction or increase of 10 per cent does not apply if there are exceptional circumstances which would make a reduction or increase of that percentage unjust or inequitable, in which case the tribunal may make no reduction or increase or a reduction or increase of such lesser percentage as it considers just and equitable in all the circumstances.”

23. —

(1) Part XI of the Employment Rights Order (unfair dismissal) shall be amended as follows.

(2) After Article 130 there shall be inserted—

“Procedural fairness

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 I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (dismissal and disciplinary procedures) applies in relation to the dismissal,

(b) the 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.

(2) Subject to paragraph (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.

(3) For the purposes of this Article, any question as to the application of a procedure set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under Article 17 of that Order.”

7. Schedule 1 to the 2003 Order sets out statutory dispute resolution procedures. Part 1 of Schedule 1 provides for standard and modified dismissal and disciplinary procedures. The standard procedure (as that would apply to any redundancy dismissal which is the reason for the dismissal stated by the respondent in this case) is that the employer must set out in writing the circumstances which lead him to contemplate dismissing the employee. 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. The meeting must take place before action is taken, (except in a case where disciplinary action consisting of suspension applies which is inapplicable in this case). The meeting must not take place unless (a) the employer has informed the employee what the basis was for including in the statement as above, the ground or grounds given in it, and (b) the employee has had a reasonable opportunity to consider his response to that information. The employee must take all reasonable steps to attend the meeting. 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. If the employee does wish to appeal, he must inform the employer. If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting. The employee must take all reasonable steps to attend the meeting. The appeal meeting need not take place before the dismissal action takes effect. After the appeal meeting, the employer must inform the employee of his final decision.

8. The Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (“the 2004 Regulations”), at Regulation 3 provide for the application of the standard disciplinary and dismissal (and the modified dismissal) procedures, the former being when the employer contemplates dismissing the employee (and the latter post-dismissal). Regulation 4 provides for situations where these statutory procedures do not apply and Regulation 5 provides for situations where the parties are to be treated as complying with these statutory procedures.

The Tribunal’s Determination of the Issues

9. It is clear from the commonly-admitted facts that there was a summary dismissal of the claimant by the respondent with effect from 1 September 2008. The tribunal does not believe that Mr McGillion’s evidence in that regard is confused or mistaken. Taken together with the evidence of the claimant, the tribunal is quite certain that there was such a summary dismissal, without notice and without engaging in the normal warning and consultation procedures which must normally precede the dismissal of an employee in a redundancy situation. In submissions to the tribunal, the claimant has contended that this was a “sham redundancy” and has provided the explanation to the tribunal that friction between himself personally and Mr McGillion resulted in the situation being arranged by the respondent’s management which would inevitably result in the termination of his employment.

10. Irrespective of possible motivation, the fact remains that this was a summary dismissal generally without regard to proper and fair procedure both in terms of the long-established procedures and also, more particularly, without regard to the statutory procedures which are mentioned above. In his letter of grievance to the respondent, the claimant expressly “flagged” the statutory procedures. Notwithstanding that, no post-dismissal grievance hearing was afforded by the respondent’s management. The tribunal takes account of that in the decision which follows. In the normal course of things, the tribunal would regard this as being an automatically unfair dismissal, in view of the non-adherence to the statutory procedures and to the provisions of Article 130A of the 1996 Order.

11. The tribunal was not appraised of any written documentation concerning a review of the workforce and the identification of posts for redundancy nor informed of the thinking behind the identification and selection of these posts for redundancy by the respondent’s management. It must be stressed that it is not the tribunal’s task (and there is plenty of settled law on this point) to investigate the financial reasons which might underpin the decision to commence a redundancy process, provided that process is not an obvious sham. However, it is always useful for the tribunal in these situations to be appraised of some of the basic working out and thinking underlying the redundancy process in order to counter the suggestion, which there is indeed in this case, that this was a “sham” redundancy designed to get rid of the claimant.

12. The respondent’s management did devise an interview structure, seemingly with set questions which were put to the two internal candidates who had applied for the post. There was no external advertising or recruitment. The tribunal notes that the claimant appeared to accept that the fellow employee, Mr Houston, was interviewed before him and that the same questions were put to Mr Houston by the interviewers as were put to the claimant. Mr McGillion’s evidence was of the responses being recorded in manuscript and later typed up by Mr McGillion with manuscript scoring (which had been recorded at interview) being added thereafter. The tribunal has some concerns regarding Mr McGillion’s evidence in that regard. When the tribunal questioned him about why manuscript scoring had been inserted on the second (typewritten) document when the scoring was already apparent from the dealings earlier in the day, the response of Mr McGillion was that his IT skills did not extend to typing the scores onto the document.

13. The tribunal does note the claimant’s observation, made in his submissions, that Mr Brian Coyle, a relative of the general manager, was recruited to the company without any competition in early August 2008 at a time when it is contended by the respondent that the company was facing financial difficulties which resulted in foregoing posts being made redundant. The tribunal therefore notes that a senior employee was recruited to be service manager at a time when other posts were being made redundant, without any invitation to existing employees to apply for that post or external recruitment. The claimant however did concede that aspects of the post recruited for in mid-September were beyond his personal experience, for example, the warranty work. He was unable to verify the accuracy, fairness or otherwise of the assessment of the scoring by the directors in respect of his interview and Mr Houston’s.

14. The foregoing process which was engaged in by the respondent after 1 September 2008, is to some extent of little material significance when one looks at the fact of the dismissal of the claimant by the respondent with effect from the foregoing date. The respondent has confirmed that the claimant was dismissed on that date and has stated that redundancy was the reason for that dismissal. Redundancy is a potentially fair reason for dismissal. Accordingly the tribunal has to determine whether such a dismissal was fair or unfair in the light of the statutory provisions set forth above.

15. The tribunal looks the submissions made on behalf of the respondent, by the respondent's representative, that this is a case where this tribunal should have regard to the statutory position as is applies after the implementation of the 2003 Order’s amendments to the 1996 Order and the tribunal ought to take heed of the effect of these so-called "Polkey reversal” which has been brought about by the effect of Article 130A (2) of the 1996 Order, as amended. Whilst it was accepted by the respondent’s representative in submissions that there had been an effective dismissal of the claimant by the respondent on 1 September 2008, nonetheless it has been submitted that in such a situation as this the tribunal is obliged to make an assessment as to whether or if the employer had followed fair procedure in the case it would have indeed made any difference to the dismissal of the claimant as an outcome. In order to succeed in the argument that the following of fair and proper statutory and other procedures would have “made no difference” in practical terms (the so-called “Polkey reversal”, as it has come to be known), the onus is upon any employer to satisfy the tribunal that even if fair and proper procedures (in the case of any redundancy dismissal the normal process of warning and consultation which is required) had been followed, this would have made no difference to the inevitable dismissal to the claimant. However, the tribunal has regard to the meaning of the words “a procedure” in Article 130A (2). It is clear to the tribunal that this does not include the statutory procedures which are set forth in Schedule 1 to the 2003 Order. This only arises when the statutory procedure has been complied with, not when there had been non-compliance. The effect of this is that the so-called “Polkey reversal” argument is not available to any employer who has failed to follow the statutory procedures set forth in the Schedule to the 2003 Order. Thus the respondent's argument cannot succeed in this regard.

16. Therefore the decision of the tribunal upon the issue of unfair dismissal in this case is easily arrived at by means of the tribunal concentrating its focus upon these statutory procedures. In this case, the employer made no endeavour to engage in the statutory procedures mentioned above. Responsibility for the omission rests entirely with the respondent. As a consequence, the tribunal determines that the respondent is in breach of the statutory duty imposed under the 2003 Order and the 2004 Regulations.

17. As the respondent is in breach of the statutory procedure, Article 130A (1) of the 1996 Order provides that the claimant is to be regarded as unfairly dismissed by the respondent. That being the case, this disposes of the issue of unfair dismissal to be determined in the matter. In the light of this finding of unfair dismissal, the tribunal now turns to the matter of remedy. The claimant claimed compensation only and the remedies of re-instatement or re-engagement are not applicable. The material facts of the claimant’s employment and the duration are set out above and referred to further below for of the purposes of calculation of any award.

Basic Award for Unfair Dismissal

18. The tribunal determines that a basic award is applicable. The claimant’s gross pay in the employment with the respondent was £308.35 per week (that figure is below the statutory maximum threshold applicable at the time). The claimant had been continuously employed for five years at the date of dismissal (from 4 August 2003 to 1 September 2008) and he was aged 32 years. The redundancy payment received is taken account of in computation of any basic award.

£308.35 x 5 (multiplier) = £1,541.75

Less redundancy payment received £308.35 x 5 = £1,541.75

Balance = nil

Compensatory Award for Unfair Dismissal

19. The claimant’s nett pay in the employment with the respondent was £245.77 per week. After a brief period of unemployment during which the claimant did not sign on for state benefits, the claimant did enter into employment with effect from 20 October 2008 at a wage that meant that no continuing loss subsisted thereafter. Accordingly, the tribunal felt that it was inappropriate to award compensation for loss for the relevant period of four weeks (from 20 September 2008 until 20 October 2008). That takes account of the re-engagement of the claimant for a period of three weeks at the same wage by the respondent from 1 September 2008 until his final dismissal on 19 September 2008. The applicable loss calculation is therefore as follows:-

£245.77 x 4 weeks = £983.08

The tribunal’s award for loss of statutory rights = £250.00

Statutory Enhancement of Award for Unfair Dismissal

20. The tribunal now turns to a consideration of potential enhancement of compensation on account of the breach of the statutory dismissal procedure by the respondent in this case. As mentioned above, the statutory provisions provide for a mandatory enhancement of compensation by a figure of 10% (unless that would be unjust or inequitable) and the tribunal has a further discretion to enhance compensation up to a figure of 50%. In determining this issue, the tribunal gave consideration to the leading cases upon the matter, these including Metrobus v Cook [2006] UKEAT/0490, Aptuit (Edinburgh) Ltd v Kennedy [2006] UKEAT/0057, Cex Limited v Lewis [2007] UKEAT/0013 and McKindless Group v McLaughlin [2008] IRLR 678. Following in particular the latter case, McKindless, the tribunal believes that it must exercise its discretion by reference to some particular facts or circumstances surrounding the failure to complete the statutory procedure which can properly be regarded as making it just and equitable that the award should be lifted above the prescribed mandatory 10%. In this case, on the facts, it appears to be the case that, put simply, the respondent entirely failed to follow and to complete the statutory procedure, with no attempt to have any regard whatsoever thereto. Under these circumstances, having considered the matter, the tribunal believes that it is just and equitable to award an uplift in compensation amounting to 40%. The tribunal thus makes an enhancement to the award of 40% under these circumstances.

THE TOTAL AWARD OF COMPENSATION

Basic Award:- £nil.

Compensatory Award:- £983.08

Enhancement:- £393.23

Award for loss of statutory rights:- £250.00

Total:- £1,626.31

21. Recoupment of Benefit from Awards

The claimant did not receive any social security benefits to which the Employment Protection (Recoupment of Job Seeker’s and Income Support) Regulations (Northern Ireland) 1996 apply. Therefore this does not apply.

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

Chairman:

Date and place of hearing: 14 August 2009 Limavady

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Mullin v PG McGillion Motors Ltd [2009] NIIT 132_09IT (03 December 2009) URL: http://www.bailii.org/nie/cases/NIIT/2009/132_09IT.html Cite as: [2009] NIIT 132_9IT, [2009] NIIT 132_09IT

Industrial Tribunals Northern Ireland Decisions

“Procedural fairness