Thomas v Nick Griffin as representative... [2011] NIIT 00771

THE INDUSTRIAL TRIBUNALS

CASE REF: 771/11

CLAIMANT: Marion Thomas

RESPONDENT: Nick Griffin as representative of the British National Party

DECISION

The unanimous decision of the tribunal is that the claimant was automatically unfairly dismissed by the respondent and the claimant is awarded £1,520.00, being four weeks’ gross pay in respect of a minimum basic award. The claimant also succeeds in relation to a claim for one week’s notice pay amounting to £291.80. The claimant is awarded £20.65 in respect of postage expenses. A further sum of £760.00 is awarded in respect of the respondent’s failure to provide a written statement of terms and conditions. The total sum payable is therefore £2,592.45. The claims in respect of overtime, holiday pay and mobile telephone expenses are dismissed.

Constitution of Tribunal:

Vice President: Mr N Kelly

Members: Mr I Carroll

Ms T Madden

Appearances:

The claimant was represented by Mr B Mulqueen, Barrister-at-Law, instructed by John McKee & Sons, Solicitors.

The respondent was represented by Mr P Harrington, of Solidarity (The Free Representation Unit).

Amendment of Title

1. At the start of the hearing, the parties agreed that the correct respondent was:-

‘Nick Griffin as representative of The British National Party’;

and the claim was amended accordingly.

Background

2. The claimant was employed by the BNP as an administrator in their call centre which was based in premises in Northern Ireland. These premises were leased to the BNP by Mr James Dowson.

Mr Dowson had some sort of management role in the call centre on behalf of the BNP but the tribunal never learned whether Mr Dowson had been an employee of the BNP.

The relationship between Mr Dowson and the BNP deteriorated and the lease terminated in late 2010. The BNP was experiencing financial difficulty. It decided to discontinue the call centre in Northern Ireland and to reduce staff numbers in England and Wales. The claimant’s employment was terminated on 21 December 2011. She claimed unfair dismissal, breach of contract and unauthorised deductions from wages.

The hearing

3. The case was heard over three days from 31 October 2011 – 2 November 2011. The tribunal heard allegations of blackmail, threats, cars being forced off the road, information being sought about political rivals, electoral malpractice, paramilitary involvement, and, that staple of modern Irish political life, the passing of money-filled envelopes in strange locations and in even stranger circumstances. This was against the backdrop of febrile media interest. Outside the tribunal building, both litigants and demonstrators enthusiastically proclaimed their outrage at each other’s presence, accompanied by banners, the exchange of unimaginative insults and, on one occasion, seasonal pyrotechnics.

However this was, in truth, a banal and ordinary employment tribunal claim alleging unfair dismissal and non-payment of holiday pay, overtime, expenses and notice pay.

4. The tribunal heard evidence from the claimant, and on behalf of the respondent:-

(i) Parish Councillor Angus Matthys who had worked with the claimant in Northern Ireland for the BNP.

(ii) Mr Ian Kitchen, a BNP activist.

(iii) Mr Adam Walker, the BNP Staff Manager since July 2010.

(iv) Mr Clive Jefferson, the BNP Treasurer.

(v) Mr Patrick Harrington of Solidarity, who was the respondent’s representative.

The issues

5. The issues which were properly before the tribunal for determination are:-

(i) Did the claimant have one year’s continuous service with the BNP (the minimum qualifying period for an unfair dismissal claim)?

(ii) Had the claimant been automatically unfairly dismissed on 21 December 2010 for the purposes of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) and the Employment (Northern Ireland) Order 2003 (‘the 2003 Order’), because the respondent had failed to comply with all or part of the statutory dismissal procedure?

(iii) If not, had the claimant, in any event, been unfairly dismissed for the purposes of Article 130 of the 1996 Order (standard unfair dismissal)?

(iv) If the claimant had been unfairly dismissed, either automatically or otherwise, what was the appropriate remedy?

(v) Was the claimant entitled to payment of one week’s statutory notice pay?

(vi) Was the claimant entitled to payment for eight days untaken annual leave?

(vii) Was the claimant entitled to payment for 21 hours’ overtime in November 2010?

(viii) Was the claimant entitled to £170.00 expenses comprising £20.65 in relation to postage and £150.00 in relation to mobile phone top-ups?

Relevant law

6. Article 130 of the 1996 Order provides:-

“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 principal reason) for the dismissal; and

(b) that it is either a reason falling within 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 –

(c) is that the employee was redundant,

(4) where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason 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.”

7. Article 130(A) of the 1996 Order provides:-

“(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 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.”

8. Article 17 of the 2003 Order provides:-

“(3) If in the case of proceedings to which this Article applies it appears to the industrial tribunal that –

(a) the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies;

(b) the statutory procedure was not completed before the proceedings were begun; and

(c) The non-completion of the statutory procedures was wholly or mainly attributable to failure by the employer to comply with the requirements of the procedure, it shall, subject to Paragraph (4), 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 more than 50%.

(4) The duty under paragraph (2) and (3) to make a deduction or increase of 10% 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.”

The potential uplift applies to the compensatory award. If a dismissal is automatically unfair for non-compliance with the statutory procedure, there is a minimum basic award of four weeks unless that would result in injustice to the employer.

9. The standard dismissal procedure is set out in full in Schedule 1 to the 2003 Order and provides for a three-stage procedure. The first stage is a written statement of the circumstances which led the employer to contemplate dismissing the employee. That written statement must be sent to the employee together with an invitation to attend a meeting to discuss the matter. The second stage is the meeting at which the employer informs the employee of the decision and notifies the employee of his/her right to appeal against the decision. The third stage is the appeal and notification by the employer to the employee of the decision on appeal.

10. In Polkey v A D Dayton Services Ltd [1988] ICR 142, Lord Bridge stated:-

“In a case of redundancy, the employer will normally not act reasonably unless he warns and consults any employees affected or their representative, adopts a fair basis on which to select for redundancy and take such steps that as may be reasonable to avoid or minimise redundancy by redeployment within his own organisation. If an employer has failed to take the appropriate procedural steps in any particular case, the one question the industrial tribunal is not permitted to ask in applying the test of reasonableness posed by Section 57(3) is the hypothetical question whether it would have made any difference to the outcome if the appropriate procedural steps had been taken. On a true constriction of Section 57(3), this question is simply irrelevant. It is quite a different matter if the tribunal is able to conclude that the employer himself, at the time of dismissal, acted reasonably in taking the view that, in the exceptional circumstances of the particular case, the procedural steps normally appropriate would have been futile, could not have altered the decision to dismiss and therefore could be dispensed with.”

11. Even where there has been an automatically unfair dismissal for non-compliance with the statutory dismissal procedure, the tribunal can reduce the award on the basis of Polkey, ie on the basis that the dismissal would, or might, have occurred anyway. HHJ McMullan QC stated in Jurys Inn Group v Tatarova [UKEAT/0295/10]:-

“What is available in any event is a Polkey reduction. The tribunal seems to have concluded that it was not open to it to make a decision, reducing compensation on the Polkey principles, given a finding of automatically unfair dismissal. It is open to it and it should have done so.”

12. Under Article 33(1) and 36(1) of the 1996 Order and Article 27 of the 2003 Order the tribunal shall make an additional award of between two and four weeks’ gross pay if the claimant has not received a proper statement of particulars of employment and if the tribunal finds in favour of the claimant in respect of certain types of claim including unfair dismissal and unauthorised deductions.

13. Part IV of the 1996 Order and the Industrial Tribunal Extension of Jurisdiction Order 1994 give the tribunal jurisdiction to determine claims of unauthorised deduction from wages and breach of contract.

Contentions of the parties

The claimant’s contentions

14. The claimant stated that she commenced work for the respondent on 20 November 2009 and that she worked continuously thereafter until 21 December 2010. She alleged that she had been automatically unfairly dismissed because the respondent had failed to comply with Steps 1, 2 and 3 of the statutory dismissal procedure provided for in the 2003 Order. She further alleged that the real reason for her dismissal had been that she had caused a particular issue to be raised at the BNP Advisory Council; namely that Mr Angus Matthys, the son-in-law of the respondent, had made a mistake in franking certain postal items and that that mistake had cost the BNP, in her estimation, £900.00. In short, she alleged that she had been dismissed on 26 October 2010 on the instructions of the respondent, had then been put on gardening leave, and had then been finally unfairly dismissed on 21 December 2010. She alleged, in particular, that redundancy was not the real reason for her eventual dismissal but, if it was the real reason, there had been an unfair procedure leading up to that dismissal. She had not been consulted properly and had not been offered relocation to Great Britain as an alternative to redundancy.

She also alleged that:-

(i) she had been given prior approval for the overtime in November and that she had worked 21 hours’ overtime for which she had not been paid;

(ii) she had received prior approval to use her personal Pay as you Go mobile telephone for business use on behalf of the respondent and that legitimate business expenditure of £150.00 had not been reimbursed;

(iii) she had eight days’ untaken annual leave during the 2010 leave year which she had been unable to take and in respect of which she had received no payment; and

(iv) she had not been given statutory notice of termination and had not been paid in lieu of that notice.

The contentions of the respondent

15. The contentions of the respondent were that the claimant had not commenced work for the respondent on 20 November 2009. She had not started work until April 2010 and therefore had not accrued the necessary 52 weeks’ continuous service to qualify for an unfair dismissal claim. The respondent denied the allegation that the claimant had been dismissed, on the instruction of Mr Griffin or at all, on 26 October 2010. The respondent further argued that the statutory dismissal procedures had been followed if the relevant correspondence were properly construed. In particular, the respondent argued that an appeal hearing had been properly offered to the claimant and that the claimant had unreasonably refused to take up that offer.

In any event, the respondent argued that a proper redundancy procedure had been followed and there had been a genuine redundancy dismissal following a proper notification and consultation procedure. Statutory notice had not been required and pay in lieu of statutory notice was not properly payable because the claimant would, in any event, have been summarily dismissed for gross misconduct if she had not been dismissed on the ground of redundancy. The claim in respect of £20.65 postage expenses was conceded. The claim in respect of mobile telephone expenses was not payable because the expenditure had not been authorised in advance and, even if it had been authorised in advance, an itemised telephone bill would have been required. The overtime claimed was not payable because the hours worked, to the extent that they had been worked, had been voluntary. No one employed by or working for the respondent in that particular exercise had been paid overtime and overtime had not been authorised.

Credibility

16. As is often the case in employment claims, the tribunal has been presented with starkly different accounts of various incidents. Again as is often the case in employment claims, the tribunal has to decide, on the balance of probabilities, and bearing in mind where the onus of proof properly rests in relation to any particular issue, which account is more credible. That necessitates an assessment of the credibility of the witnesses who gave evidence before this tribunal.

17. Regrettably, the tribunal has to conclude that significant parts of the evidence given to this tribunal, both by the claimant and on behalf of the respondent was not credible. That leaves the tribunal with the task of raking through the ashes of discredited and conflicting evidence to determine, insofar as it can, where the truth lies on each relevant issue.

18. The tribunal has serious concerns about the claimant’s credibility for the following reasons:-

(i) The claimant alleged in evidence that Mr Jim Dowson telephoned her on 26 October 2010 to tell her that he had received a telephone call from Mr Griffin to order the claimant’s dismissal because of the issue that she had raised about Mr Angus Matthys and the mistake Mr Matthys had made in the franking of post.

The first issue that concerns the tribunal is that Mr Dowson was not called by the claimant to give evidence on this point. He is her brother-in-law. Her evidence was that she is currently engaged on voluntary work for another organisation – ‘Britain First’. That voluntary work was offered to her by Mr Dowson. There was no evidence or suggestion that the claimant and Mr Dowson had fallen out or parted company in any way. No satisfactory explanation was given to the tribunal for the claimant’s failure to call Mr Dowson, if necessary with the assistance of a Witness Attendance Order, to support her claim in this respect. Secondly, the claimant gave sworn evidence that she had raised the Angus Matthys’ issue with a Mr Tom Gower, who, she stated, was at the relevant meeting of the Advisory Council to the BNP and that it ‘must have’ been discussed at the Advisory Council. Under cross-examination, the claimant stated that she ‘knew’ it had been raised at the Advisory Council. That assertion was rapidly diluted by the claimant to a statement that she ‘assumed’ it had been raised and then further diluted to a statement that she ‘did not know’ if it had been raised. Mr Gower, according to the unchallenged evidence of the respondent and according to a copy of the relevant annual report for the respondent organisation, was not a member of the Advisory Council, as the claimant had suggested. Furthermore it is not at all clear to this tribunal why what is apparently a political advisory body in a political party would have been the appropriate forum to receive or consider a complaint of a clerical error made by a junior member of mailroom staff which had cost either £900.00, on the claimant’s account, or £650.00 on the respondent’s account. This seems particularly odd in the context of a political party with annual income of approximately £2 million.

The unsupported assertions of the claimant in this respect, particularly taking into account her performance under cross-examination, are simply not credible. It does not make sense that the claimant would have raised that issue with a political advisory body rather than through normal management structures and it does not make sense that the only person who could support her version of events was not called by her to do so before the tribunal.

(ii) The claimant was asked by her counsel to describe the events of 26 November 2010. She proceeded to described a meeting in the afternoon of that day between her, Mr Walker, Mr Jefferson and Mr Kitchen which had taken place in the vicinity of the Tesco Store in Comber where £5,000.00, approximately, was given to her and where she alleged she had been held against her will for approximately one hour.

She failed, in response to that question, to mention at all an earlier meeting with the same people, in the same location, on the morning of 26 November 2010 where she had been given £2,500.00. That second meeting emerged only under cross-examination.

(iii) The claimant stated, in sworn evidence, that she had been ‘shocked’ to be told that there was a risk of redundancy.

However, the claimant had already given evidence that she had been tasked to contact various suppliers, who were owed a total of £275,000.00 by the BNP, and to negotiate easy repayment terms with those suppliers. She had already given evidence that some of these accounts had been outstanding for some months in January 2010. She went on to state in evidence that she had not been aware that the BNP had been in financial difficulties – she knew it owed people money. ‘It was a shock’ to learn that it was in financial difficulties. When it was put to her that she must have known that the BNP was in financial difficulties given the nature of her work in re-negotiating, or attempting to re-negotiate, payment terms for outstanding accounts, totalling some £275,000.00, she agreed that that was the case.

(iv) The claimant alleged that she had been held against her will for about one hour in the cab of a lorry in the vicinity of Tesco in Comber on the afternoon of 26 November 2010. That statement simply does not bear any critical scrutiny and is frankly unbelievable:-

(a) No complaint has ever been made by the claimant or by anyone on her behalf to the PSNI in relation to this incident.

(b) Even though the claimant continued to work for the BNP until 21 December 2010, no complaint was ever made by the claimant or by anyone on her behalf to the BNP or anyone in the BNP’s management structure.

(c) The claimant, on the afternoon of 26 November 2010, was waiting for and was given a large sum of cash in an envelope. This was £4,750.00 (five thousand pounds less £250.00 apparently deducted by Mr Jefferson). It is, one imagines, relatively rare for a hostage to be given money before leaving.

(d) The lorry in which this serious criminal act allegedly occurred was parked in a relatively prominent place in a shopping area during the initial stages of the Christmas shopping rush.

(e) The allegation of unlawful detention or of being held against her will was not raised by the claimant’s solicitor when the claimant’s solicitor was writing to the respondent in connection with the offer by the respondent of an appeal hearing to be held in either England or Scotland.

The only conclusion that the tribunal can rationally draw from that omission is that the claimant had not told her solicitor of this alleged unlawful detention. Had the claimant have done so, her solicitor would have raised that issue as the primary reason for the claimant not being prepared to travel to an appeal hearing at the BNP’s offices in either Wigton, Nuneaton or Ayrshire.

(f) The alleged unlawful detention does not feature at all in the claim form which was prepared with the assistance of the claimant’s solicitor.

(g) Mrs Anne Dowson, who apparently arrived with the missing BNP property and, on the claimant’s version of events, brought the unlawful detention to an end, was not called by the claimant to give evidence. Mrs Dowson is the claimant’s sister.

(v) The claimant claimed in evidence that she had been accompanied by both her sister, Mrs Dowson, and her niece, Mrs Kernaghan, to a meeting on 20 December 2010.

It would therefore follow that either or both of these witnesses would have been able to support her evidence that she had not been offered relocation to either Wigton or Nuneaton by the respondent. Neither witness was called to give evidence and no explanation was given for their non-attendance.

(vi) The claimant stated in cross-examination that there was never any possibility of her being offered relocation as an alternative to redundancy “when Jennifer Matthys would not even answer the telephone to me much less speak to me”. Almost immediately in that cross-examination, the claimant went on to state that she had felt that there might have been a genuine offer of relocation made by the respondent.

When the obvious contradiction was put to the claimant in further cross-examination, no satisfactory explanation was given by the claimant.

19. The tribunal similarly has serious concerns about the credibility that should properly be given to the respondent’s case or the respondent’s witnesses for the following reasons:-

(i) Mr Griffin was not called to give evidence.

On the case put forward on behalf of Mr Griffin as the representative for the BNP, he could easily have rebutted the claimant’s version of what had occurred on 26 October 2010 when she alleged that she had been summarily dismissed on Mr Griffin’s personal instruction to Mr Dowson. If the claimant can be criticised for failing to call Mr Dowson to back up her version of events, Mr Griffin can equally be criticised for failing to give evidence to support the case being advanced on his behalf.

(ii) Mrs Jennifer Matthys was not called to give evidence.

The bank statements, produced in evidence, by the claimant, showed that the claimant had received payments into her bank account from both Jennifer Matthys and an organisation known as ‘British Heritage’, which would appear to represent monthly salary payments from November 2009. If that were not the position, as was maintained by the respondent throughout the hearing, it would have been reasonable to expect Mrs Matthys to have been called to explain the nature of these payments. It was stated by Mr Harrington that Mrs Matthys was afraid to travel to Northern Ireland because of alleged incidents which occurred in Cumbria. If such incidents had occurred in Cumbria or indeed if other incidents had occurred in Northern Ireland, it is not clear why Mrs Matthys would have felt afraid to travel to Northern Ireland. Her husband and several of her colleagues appeared to have had no such fears.

(iii) The evidence of Mr Kitchen, Mr Jefferson and Mr Walker in relation to the afternoon of 26 November 2010 was just as unbelievable as the evidence which had been given by the claimant in relation to that afternoon.

On their undisputed evidence, they had travelled to Northern Ireland on the previous day, 25 November 2010. This would have involved a fairly lengthy journey by road and ferry. This was to collect BNP property which had been, they stated, improperly withheld by Mr Dowson in exchange for a negotiated payment in cash of £7,500.00. There was at that time, and quite possibly still is, a bitter disagreement between Mr Dowson and the BNP and indeed between Mr Dowson and the three individuals named above. The pre-arranged meeting, which took place on the evening of 25 November 2010, had not gone well. Mr Kitchen, Mr Jefferson and Mr Walker had been refused access to rooms containing the database of the BNP and the BNP accounts. They had managed to locate and take away some of their property but in addition had taken away property belonging to Mr Dowson. A further meeting was then arranged to take place on the morning of 26 November 2010. This meeting was arranged in what appears to have been a deliberately awkward location, ie in Comber town centre adjacent to Tesco, where there is no proper car park and where the respondent’s witnesses had to park in a private access road. It would have been, one presumes, much more convenient and given that the property was located there, much more sensible for the second meeting to have occurred at the office building where the previous meeting had been held on the evening of 25 November 2010. In any event, temperatures were freezing, the town centre was busy and the lorry had to be repeatedly moved, on their unchallenged evidence, to allow residents and others access to the access road. The PSNI checked the vehicle and its occupants on more than one occasion. The claimant appeared at approximately 11.00 am in the morning and demanded the return of Mr Dowson’s property from the back of the lorry. In return, the respondent’s witnesses were only given part of the BNP property which had been withheld by Mr Dowson. Following negotiations a part-payment of £2,500.00 was made to the claimant. The claimant left and did not return until much later in the afternoon. She still did not have the remaining property with her and that property, including, significantly, the computerised membership database of the BNP, did not arrive until approximately an hour later. In short, and to use the vernacular, the three witnesses for the respondent had been seriously and thoroughly messed about by Mr Dowson with whom they were engaged in a bitter dispute. They were left sitting in a lorry in freezing temperatures in a busy town centre for most of the day when their business could and should have been concluded on the previous evening as had been arranged. Despite this, the three witnesses maintained in evidence that they had engaged in inconsequential chat, that the atmosphere had been good, and that they had not been angry. Mr Jefferson, in particular, maintained with an expression of deep forbearance, that he had been ‘depressed and sad’ but definitely not angry.

The tribunal had an opportunity to observe Mr Kitchen, Mr Walker and Mr Jefferson give their evidence and it was apparent that these were not three individuals who would have easily, or with unnatural calm, tolerated being messed about to this extent and in these circumstances. In the tribunal’s opinion, Mr Jefferson more accurately described his feelings towards the claimant on the afternoon of 26 November 2010 when, under cross-examination, he described her as Mr Dowson’s ‘willing puppet’.

It simply stretches credulity beyond any reasonable breaking point for the respondent‘s witnesses to ask the tribunal to believe that they sat in the cab of the lorry radiating patience and benevolence while all this was going on. It is clear to this tribunal that the atmosphere in that lorry must have been extremely tense and that while it is not satisfied that the claimant was, as she has alleged, held against her will, it is satisfied that the attempts by the respondent’s witnesses to portray this incident as calm and relatively friendly are, on the balance of probabilities, an inaccurate representation of the facts.

(iv) Given the above, the evidence of the three respondent’s witnesses to the effect that a proper redundancy consultation meeting was conducted by Mr Walker during the course of that afternoon, while he stood partly in and partly outside the cab of the lorry with the door open in freezing temperatures is frankly absurd and not capable of rational belief.

Findings of fact and decision

20. This decision will deal with the findings of fact and decision in relation to each of the issues separately.

Date of commencement of employment

21. The claimant produced documentary evidence which was clear and entirely supportive of her version of events, ie that she commenced employment with BNP on 20 November 2010. It appeared to be common case between the parties that work on behalf of BNP had originally been conducted by a company known as ‘Adlorries’ which was a company run by Mr Dowson from the same premises. It was equally common case that the claimant had originally been employed by Mr Dowson in Adlorries and that she had moved from employment with Adlorries to employment with the BNP. The claimant produced a P45 and a P11 deduction card from Adlorries which both demonstrated that she left employment with Adlorries on 20 November 2009. She also produced bank statements which demonstrated that from November 2009 onwards, she had received payments, which would have approximated to net monthly salary, from bank accounts in the name of either Mrs Matthys or British Heritage.

The tribunal therefore concludes, on the balance of probabilities, that the claimant’s employment with the respondent commenced as she alleged in late November 2009 and that she has therefore established the minimum period of continuous service required to qualify for an unfair dismissal claim.

Was the claimant automatically unfairly dismissed?

22. The first issue to be determined is whether the respondent has established (and the onus of proof is on the respondent) that the reason for dismissal was redundancy.

The tribunal has concluded that the respondent has done so. The unsupported assertion of the claimant in respect of the alleged dismissal on 26 October 2011 is not easily reconciled with her subsequent actions in continuing to work for the respondent. The evidence from the respondent is clear and uncontested; ie there were serious financial difficulties and the contract in relation to the office building in Northern Ireland was coming to an end. The staff in Belfast, with the exception of three individuals who had originally come from England, were being made redundant. Those three individuals had accepted relocation to England. The evidence of the respondent was that all employees, other than those three individuals, had been offered and had refused relocation. The respondent stated that the position was the same in relation to the claimant. The claimant disputed that. However it is, in the view of the tribunal, proven on the balance of probabilities that employment within Northern Ireland on behalf of the BNP was to cease; that there was a genuine redundancy situation and that the reason for the termination of the claimant’s employment was a genuine redundancy situation.

23. A letter of 7 December from the respondent to the claimant, taken together with the claimant’s knowledge of the financial difficulties faced by the BNP and the pending closure of the call centre, was sufficient to comply with Step 1 of the statutory procedure required by the 2003 Order. There is a clear conflict of evidence in relation to what occurred at a meeting on 20 December 2010 and therefore a clear conflict between the parties on whether that meeting satisfied the requirements of Step 2 of the statutory procedure. The tribunal was presented with what purported to be a typed record of that meeting prepared by a Mr Mark Walker, a BNP employee. The handwritten notes on which that record was based were not presented. Mr Walker was present during the first two days of the hearing. He was not present on the third day because he had to make arrangements in connection with a bereavement. The note was therefore not proved. On the other hand, the claimant did not call Mrs Dowson or Mrs Kernaghan who, on her evidence, could have supported her version of events. Happily, however, the tribunal does not have to reach a finding in relation to Step 2 of the statutory procedure because of the finding it makes in relation to Step 3, the appeal stage. The claimant appealed against the respondent’s decision to dismiss her. The respondent offered an appeal hearing in either England or Scotland. It stated in correspondence to the claimant and to the claimant’s solicitor that expenses would be paid in respect of that appeal hearing. Expenses were not apparently to be paid in advance in circumstances where the respondent knew that the claimant was unemployed and in circumstances where the respondent knew that there was an outstanding and disputed money claim. In such circumstances it would, the tribunal believes, have been unreasonable for any respondent to expect a claimant to travel a substantial distance at significant expense without payment of travelling expenses in advance. In any event, the tribunal does not need to determine that particular issue, because Mr Walker, the respondent’s Staff Manager, wrote to the claimant’s solicitor on 4 March 2011 and, in unequivocal terms, agreed to hold an appeal hearing in Northern Ireland. He stated:-

“I will look at my diary and speak with colleagues. I will see when it would be possible to arrange a meeting in Northern Ireland. I will propose several dates shortly.”

Mr Walker did not say in that letter that he would see ‘if’ it would be possible to arrange a meeting in Northern Ireland. He stated that he would see ‘when’ it would be possible to arrange such a meeting and that he ‘would’ propose several dates. It is clear that the claimant at that point was left with the clear proposition that an appeal hearing would be heard within Northern Ireland and would be heard reasonably soon. No such appeal was heard. Mr Walker’s explanation was that he was ‘busy’ and that the tribunal proceedings then commenced. The tribunal papers were not lodged for some weeks and then were served on the respondent by letter dated 23 March 2011. The respondent would have had three weeks from the date of Mr Walker’s letter and before receiving notification of the tribunal proceedings.

24. The tribunal concludes, therefore, that Step 3 of the statutory dismissal procedure was not completed and that the failure to complete that step was wholly or mainly due to a failure on the part of the respondent.

25. The tribunal therefore concludes that the claimant was automatically unfairly dismissed for non-compliance with the statutory dismissal procedure.

Was the claimant, in any event, unfairly dismissed for the purposes of the 1996 Order?

26. If the claimant had not been automatically unfairly dismissed, the tribunal would still have concluded that she had been unfairly dismissed for the purposes of the 1996 Order.

27. The case for the respondent was that a proper redundancy notification and consultation exercise had been carried out with the claimant. Mr Walker’s evidence, supported by Mr Kitchen and Mr Jefferson, was that he had attended individual redundancy consultation exercises with the other staff employed in the Belfast call centre on the morning of 26 November 2010. On his return to the lorry, parked near the Tesco premises in Comber, he stated that it was impossible for him to sit in the lorry with both Mr Kitchen, Mr Jefferson and the claimant. He stated that he therefore stood partly outside and partly inside the lorry and that he then conducted a formal redundancy consultation meeting with the claimant and with her consent.

As indicated earlier in this decision, the tribunal finds that version of events frankly unbelievable. In the context of what must have been an extremely tense atmosphere with rising levels of frustration and anger on the part of the respondent’s witnesses, it is not credible that Mr Walker, with the agreement of the claimant, conducted a proper consultation exercise at which issues were discussed and alternatives to redundancy explored.

28. The evidence from the respondent, which is disputed by the claimant, was that the claimant was offered relocation to Wigton or Nuneaton during the meeting on 20 December 2010 and that the claimant had refused that offer. Mr Walker’s evidence was that this was the standard procedure to be adopted in relation to each of the employees in Northern Ireland. This standard procedure was undertaken on the advice of Mr Harrington. On the balance of probabilities, the tribunal accepts that it is more likely than not that Mr Harrington would have given such advice and that that advice would have been followed by Mr Walker. However, the tribunal has concluded, on the balance of probabilities, given the background to all of this and, in particular, given the current assertion of the respondent that the claimant would have been dismissed for gross misconduct in any event, that any such offer would have been less than genuine and made purely on a superficial level. The tribunal is therefore satisfied, on the balance of probabilities, that there was no real exploration of alternatives to redundancy or proper consultation in the case of the claimant.

Notice pay

29. It is common case that the claimant was statutorily entitled to one week’s notice pay if she established service in excess of one year and equally common case that notice was not given and that pay, in lieu of notice, was not paid. The respondent’s case was that she would have been summarily dismissed on grounds of misconduct in any event. This issue first emerged in the response to the claim form. The primary basis of the alleged misconduct was that the claimant had acted as Mr Dowson’s ‘willing puppet’ in contravention of her employer’s interests. There had therefore been a total breach of trust and confidence between the claimant and the respondent. The circumstances which gave rise to this alleged breach of trust would have been evident to the respondent, at the latest, on 26 November 2010. No action was taken thereafter against the claimant. No disciplinary charge was issued; she was not invited to a disciplinary meeting; she was not even advised that disciplinary action was under consideration or was a possibility. The tribunal is not satisfied that summary dismissal was in the active consideration of the respondent during the period between 26 November 2010 and the dismissal on 21 December 2010. Apart from the lack of any contemporaneous documentation, it is by no means clear that any such disciplinary charge would have resulted in the dismissal of the claimant. Her actions on 26 November 2010 were with at least the implied consent of Mr Jefferson, Mr Walker and Mr Kitchen. No one told her to go back to work on that date or to go to the staff meeting which was apparently being held at or about that time with other members of BNP staff. No one asked her what she was doing in acting as a mediator in this matter. It would appear that Mr Jefferson and Mr Walker were fully complicit in the claimant’s role as a mediator or go-between and it does not necessarily seem right that they should now regard these actions as misconduct on her part.

The claimant is therefore awarded one week’s notice pay in lieu of notice.

Holiday pay

30. The claimant was, according to the undisputed evidence of the respondent, the person who would have been responsible for maintaining holiday records for the relevant staff employed by BNP in Northern Ireland. She produced no documentary evidence to the tribunal substantiating her claim that she had eight untaken days in the relevant leave year. Under cross-examination she stated for the first time that she had taken a block of five days’ leave and then seven other days as single days throughout the year. That evidence had not been provided to the respondent at any stage before the hearing. She stated that she had no records because all those records had been sent back to the respondent. It simply is not believable that an individual in the claimant’s position, who had an active claim for outstanding holiday pay, would have sent all records back to the respondent without retaining at least a copy for her own purposes. The onus of proof lies on the claimant in this respect. She has to establish, on the balance of probabilities, that she was entitled to eight days untaken leave. She has failed to do so, in circumstances where it would have been reasonable to expect her to have retained copies of the relevant documentation and she, on her evidence, did not do so. This part of the claim must fail on the grounds that the claimant has not discharged the burden of proof which is placed upon her.

Was the claimant entitled to payment for 21 hours’ overtime in November 2010?

31. The respondent’s evidence, from Mr Jefferson, Mr Walker and, indeed, Mr Matthys was that overtime was not authorised or paid on the relevant dates in November 2010. On those days, the machine used for filling envelopes had broken down and there was a rush to complete a request for donations which was being posted out to sympathetic individuals. Volunteers were brought in to work alongside employees and, according to the respondent, it was clear to all present that their work was to be unpaid in this exercise. The evidence from the claimant was that Mr Jefferson had assured everyone, volunteers and employees alike, that the employees would be paid at overtime rates for the additional work carried out outside their contracted hours on these days. It strikes the tribunal as inherently unlikely that any employer in these circumstances would tell a mixed group of volunteers and employees that the employees, but not the volunteers, would be paid and not just paid, but paid at overtime rates. In the context of a political party in significant financial difficulty, it seems much more likely that the events occurred as described by Mr Jefferson, ie that the work was voluntary; that everybody understood it was voluntary and that no one was paid overtime.

This part of the claim therefore fails.

Was the claimant entitled to £170.00 expenses?

32. The claim in relation to postage expenses was conceded by the respondent, having had the opportunity to examine the relevant documentation and having concluded that it was a legitimate business expense.

33. The claimant also sought reimbursement of £150.00 in respect of top-up vouchers which had been used on her personal Pay as you Go mobile telephone. Her evidence was that she had been authorised to use her Pay as you Go phone to contact suppliers who were owed significant sums of money by the BNP, and to negotiate repayment arrangements. When asked whether it was likely that any employer would have authorised an employee to use a personal Pay as you Go telephone, one of the most expensive ways of communication, rather than using a landline, her response was that she sometimes had to contact these individuals out of normal office hours. It is entirely unclear how this could possibly have been the case. This was not a situation of a debt collection agency chasing debtors by contacting them at home in the evening. It was, if anything, the reverse. This was a case of a debtor organisation contacting suppliers, such as printing organisations, to re-negotiate payment terms. Such calls would, it would appear to the tribunal, have been made during normal working hours. There appears to be no reason why such calls would have been made in the evening and if so, no reason why such calls would have been made on as a Pay as you Go mobile phone. Furthermore, there is no evidence that the top up vouchers for the claimant’s personal mobile phone were depleted solely by business use. As pointed out by the respondent, it seems to the tribunal to be simply common sense and normal business practice that mobile telephone expenditure is only reimbursed on presentation of an itemised telephone bill. The claimant’s claim in this respect therefore fails.

Remedy

34. The claimant is hereby awarded £20.65 in respect of postage expenses.

35. The claimant is awarded one week’s notice pay, ie £291.80.

36. The claimant is awarded the statutory minimum payment in respect of an automatically unfair dismissal basic award of four weeks’ gross pay subject to the statutory cap of £380.00, amounting to £1,520.00.

37. The tribunal has concluded that there should be a Polkey deduction of 100% in respect of compensatory award in this case. The claimant, at no stage, indicated that she would have moved to either Wigton or Nuneaton; or indeed to any other premises of the BNP in Great Britain. When giving evidence to the tribunal the most that she could say was that she ‘would have considered it’. That statement was entirely inconsistent with her demeanour before the tribunal and with her performance under cross-examination where she made it plain that she did not regard that as a reasonable possibility given the fact that Jennifer Matthys would not speak to her. The tribunal’s conclusion is that if the claimant would have ‘considered’ relocation, such consideration would have been brief and nugatory.

38. Given the events of 26 November 2010; given the fact that the claimant had a husband who was ill; given the fact that the claimant was long-established in Northern Ireland, and given the fact that at no point did the claimant, or indeed her solicitor, suggest that she was willing to move to Great Britain, it is clear to this tribunal that, even if a correct dismissal procedure had been adopted, she would have been dismissed on the ground of redundancy in any event and with no further delay. It is particularly notable that the claimant in evidence stated that she was afraid to go Wigton for an appeal hearing because she ‘did not know the area’. When it was put to her that she had just given an answer which suggested that it was possibly unlikely that she would have been willing to relocate to that area to work full-time if she were afraid to attend for a meeting because of lack of familiarity with the area, the response was that she would have had the support of her family if she had relocated. It is not clear to the tribunal what difference that would have made to the situation.

39. If there had been no Polkey deduction or a Polkey deduction of less than 100%, the tribunal would, in any event, have taken the view that the claimant had totally failed to mitigate her loss. She has applied for no employment of any sort since her dismissal on 21 December 2010. She first signed-on with the Job Centre shortly before the tribunal hearing. Her explanation for this lack of action on her part was that her dismissal had been such a blow to her confidence that she had been unable to look for work. No medical report to that effect was produced to the tribunal. As the respondent pointed out, any employee who loses a job will suffer a blow to his or her confidence and if that alone were sufficient to remove the duty to mitigate loss, that is a situation which would apply to every unfair dismissal situation.

40. If there had been a compensatory award in respect of unfair dismissal, the statutory uplift would have been 10%. The failure to comply with the statutory procedure appears to have been caused by the respondent’s failure to appreciate that, while that procedure no longer applies in Great Britain, it remains in Northern Ireland. The respondent is not the first employer and will not be the last employer to be caught out by the growing divergence between employment law in Great Britain and in Northern Ireland. In such circumstances, the minimum statutory uplift would have been appropriate.

41. The claimant’s evidence was that she had never received a written statement of terms and conditions of service as required by Articles 33(1) and 36(1) of the 1996 Order. The respondent was not in a position to produce evidence to the contrary but argued that it would have been the claimant’s responsibility to issue employment contracts to staff in Belfast. That cannot be an answer to this issue. It is the employer’s responsibility and not the employee’s responsibility to ensure compliance with the statutory requirement.

42. The tribunal accepts, on the balance of probabilities, that no employment contract or written statement of terms and conditions had issued to the claimant and that the appropriate additional award in these circumstances is two weeks’ gross pay.

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

Vice President:

Date and place of hearing: 31 October 2011 – 2 November 2011, Belfast

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 >> Thomas v Nick Griffin as representative... [2011] NIIT 00771_11IT (16 November 2011) URL: http://www.bailii.org/nie/cases/NIIT/2011/00771_11IT.html Cite as: [2011] NIIT 00771_11IT, [2011] NIIT 771_11IT

Industrial Tribunals Northern Ireland Decisions