Gray v Jameson Roofing Specialists Li... [2010] NIIT 01902

THE INDUSTRIAL TRIBUNALS

Case Ref: 1902/10

CLAIMANT: Spencer Gray

RESPONDENT: Jameson Roofing Specialists Limited

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed, that notice pay was due to him and that he be awarded the sum of £3,081.12.

Constitution of Tribunal:

Chairman: Mr William A Palmer

Members: Mr Brendan Heaney

Mr John McAuley

Appearances:

The Claimant represented himself.

The Respondent was represented by Mr Robert Joseph Jameson, its Managing Director.

Cases Heard Together

1. This case was heard with that of Mr Thomas Liggett (Mr Liggett) (Case Ref: No: 1864/10IT), whose claim against the respondent is similar to that of the claimant’s. A separate decision will be issued in Mr Liggett’s case.

The Claim

2. The claimant claimed that his selection for redundancy was unfair and that he did not receive the amount of notice pay due to him. We shall consider the claim of unfair selection under each of the separate provisions relating to ordinary unfair dismissal and automatic unfair dismissal. The notice pay claim is a breach of contract one and we have the jurisdiction to deal with it under the provisions of the Industrial Tribunals Extension of Jurisdiction (Northern Ireland) Order 1994.

Evidence

3. Evidence was given, on behalf of the respondent, by Mr Robert Joseph Jameson, its Managing Director (Mr Jameson) and Mr William Trimble (Mr Trimble). The claimant gave evidence on his own behalf. Documents were also submitted.

The Title to the Proceedings

4. With the consent of the parties, we ordered that the name of the respondent be amended to “Jameson Roofing Specialists Limited”.

The Standard of Proof Applied

5. The standard of proof applied by us in reaching conclusions is the balance of probabilities.

The Facts

The Respondent’s Business and the Claimant’s Employment

6. The respondent is engaged in the roofing business and also undertakes work connected to the removal of asbestos from buildings.

7. The claimant, a roofer, commenced employment with the respondent in 2001 and his employment ceased on 2 April 2010. His date of birth is 17 June 1971.

Redundancy

8. Mr Jameson told us that in March 2010 there was a downturn in work, caused by a customer company going into liquidation. We accept that the liquidation led to a decline in work. However, it is clear that the recession also played a role: in the document, dated 22 March 2010 and signed by the claimant and Mr Jameson and referred to later, it is stated, in the first sentence, that for some time the respondent had been “experiencing a considerable downturn due to the current recession.” We are satisfied that a redundancy situation arose in March 2010 and that it was necessary for the respondent to make redundancies. There was insufficient work to keep all the roofers (of which there were approximately 15) employed. However, our considerations, in respect of the dismissal, do not end there.

9. The respondent’s Management Group (the Group) met on 22 March 2010 to consider redundancies. The group consisted of Mr Jameson, Mr Timothy Jameson (Mr Jameson’s son and General Manager of the respondent), Mr Wesley Jameson (Asbestos Manager), Mr Paul Hill (Quantity Surveyor) and Mr Jim Quinn (Contracts Manager). This was the first time that the respondent was required to consider redundancies since its establishment in 1974. There was a concentration on those engaged in the type of roofing carried out by the claimant. Each employee was considered on the basis of timekeeping, skills, workmanship and capabilities. The Group also had before them the training and disciplinary records of those engaged in roofing. We consider that these were also taken into account, otherwise there would have been no point in having them before them during the exercise. The Group came up with 5 names and listed 4 out of the 5 for redundancy. Those listed were the claimant, Mr Liggett, Mr Trimble (a relation of Mr Jameson’s) and Mr Simon Mulgrew (who was a trainee). The 5^th person was Mr Mullan. Mr Jameson told us that what tipped the Group in favour of making the claimant redundant was his attitude to “foreign nationals” employed by the respondent. Mr Jameson said that, on at least 5 occasions, he had to “bring” the claimant “into the office” regarding “abuse” given by the claimant to foreign nationals. In cross-examination the claimant stated that being brought into the office had occurred on only one occasion. Mr Jameson denied that it was on one occasion only. We are satisfied that Mr Jameson did speak to the claimant on 5 occasions about his treatment of fellow workers, who were of nationalities other than his. We are satisfied that no formal internal proceedings were taken with regard to the conduct. No written warnings were issued to the claimant. There was nothing placed on record. Mr Jameson told us that all in the Group knew of the claimant’s conduct in dealing with other nationalities. We consider that they knew of this conduct because Mr Jameson told them. It appears to us that the claimant was simply given a telling off by Mr Jameson and that no concrete steps were taken to assist him in correcting his conduct. It may be that on a scale of seriousness, the claimant’s conduct was at the lower end. However, having said that one would have expected that a good employer would have taken some action. We consider that the manner in which the conduct was dealt with (no disciplinary action, no warnings, no training) would have led a reasonable employee to believe that his conduct was not a matter of any great seriousness and certainly not a matter to be taken into account in a redundancy situation. Indeed, there was nothing on the disciplinary record (which was before the Group) with regard to the conduct. The claimant’s conduct was something outside that record. It seems to us, therefore, that the Group breached its own terms by considering something outside the disciplinary record.

10. On the evening of 22 March 2010, Mr Jameson called the claimant to the office. He was told of his redundancy and also told that he could be put on, what Mr Jameson referred to as, “short term notice”. This, Mr Jameson explained to us, meant that the claimant would go on to public benefits for up to 12 weeks’ and that after that time the respondent would take the claimant back into its employment. The claimant did not accept this suggestion and said that he would take redundancy, which we consider to be a reasonable choice. What Mr Jameson referred to as a “proposition”, was put to the claimant. This proposition was that redundancy money would be paid, but not the full amount of notice pay: the claimant would receive only one week’s pay in lieu of notice. A document (the document) was drawn up by the respondent. It is dated, 22 March 2010, and was signed by both Mr Jameson and the claimant, probably on the following day. The document is in the following terms:

“You will be aware for some time that we have been experiencing a considerable downturn of work due to the current recession. Further to the discussion we have had today we will regrettably be terminating your employment on Friday next 26^th March. Wages for your last week of work and Easter holiday pay will be paid on 1^st April.

In our discussion we explained the company’s current lack of work and financial circumstances and it was agreed that one week’s notice and payment of redundancy for the number of years served would be acceptable to you.

You will be entitled to a redundancy payment of £3,243.24-based on 9 years service and your age = 9 weeks”.

11. At the discussion referred to above, there was no exchange of views on, for example, retraining or alternative employment. The claimant had no input. The position was, as the claimant states in his originating application, that he was presented with a fait accompli.

12. Mr Jamison told us that, on 25 March 2010, he spoke to the claimant and Mr Liggett and told them that some new work had come in and that they did not have to leave on 26 March 2010: in other words their employment could continue. In cross-examination by Mr Gray, Mr Jameson agreed that it was his son, Mr Timothy Jameson, who had spoken to Mr Liggett and the claimant on 25 March 2010. There was a dispute as to what Mr Timothy Jameson had said to Mr Liggett and the claimant, namely, whether he had said that their employment could continue indefinitely or whether he asked them to work for one week beyond their finishing date of 26 March 2010. In the event, the claimant and Mr Gray did work for 1 week beyond their original finishing date, namely, until 2 April 2010. We did not hear from Mr Timothy Jameson and, therefore, we accept that he had asked the claimant and Mr Liggett to work for 1 further week only, that is, until 2 April 2010.

13. The respondent did not have any in-house expertise in industrial relations. Mr Jameson was not aware of the statutory procedures, to which we shall refer to later. He did not seek, nor did he receive, any expert advice in relation to the dismissal of employees through redundancy.

14. No procedures were gone through by the respondent. We accept that the respondent is a small firm. However, we consider that its size and the resources available to it does not absolve it from, for example, at least explaining the respondent’s situation to the claimant, warning him of possible redundancy, consulting with him to give him an opportunity of commenting on the selection criteria and to hear any views he might have on, for example, retraining: nor does its size and resources absolve it from observing the statutory procedures.

15. The claimant received £3,243.24 in respect of the redundancy payment. He had 9 years’ reckonable service and was in receipt of £360.36 gross per week.

Notice Pay

16. Under this sub-head we deal with the document, under which, it will be recalled, the claimant agreed to forego part of his entitlement to notice pay.

17. Article 245 (1) of the Employment Rights (Northern Ireland) Order 1996 (the Order of 1996) provides as follows;

“Any provision in an agreement (whether a contract of employment or not) is void in so far as it purports -

(a) to exclude or limit the operation of any provision of this Order, or

(b) to preclude a person from bringing any proceedings under this Order before an industrial tribunal.”

18. Article 245 (2) of the Order of 1996 makes provision for exceptions to the general rule set out above, but none is applicable in this case.

19. We consider, and hold, that the agreement is a void one under the provisions of Article 245 (1) of the Order of 1996. Also, we consider that it would be unfair to hold the claimant to the agreement about notice pay contained in the document. He was not given ample opportunity to consider the matter fully or seek advice, before endorsing the document.

20. The claimant, therefore, is entitled to pursue a contractual claim in respect of the balance of notice pay due to him by virtue of Article 118 of the Order, which sets out, inter alia, the rights of an employee to minimum notice.

Automatic Unfair Dismissal

21. The respondent clearly contemplated dismissing the claimant. There is no reason why the Standard Procedures (the Procedures) would not have applied in this case. The Procedures, which are given effect by Article 15 (1) of the Employment (Northern Ireland) Order 2003 (the Order of 2003) and are contained in Schedule 1 (Part 1) to that Order, apply in this case. Briefly, they require that an employer contemplating dismissing an employee take a number of steps involving the employee. The employer must, for example, set out in writing “the employee’s alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing ……the employee.” The Procedures were not followed by the respondent, in this case.

22. Consequences flow from the failure of an employer to follow the Procedures. Article 130A (1) the Order of 1996 makes provision for automatic unfair dismissals and provides as follows:

“(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 [Order of 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.”

23. A further consequence is that the compensatory award made to the claimant may be enhanced. Article 17 (3) of the Order of 2003 provides as follows:

“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 procedure was wholly or mainly attributable to failure by the employer to comply with a requirement of 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.”

24. Paragraph 4, referred to above, provides, insofar as relevant:

The duty under paragraph…3 to…make an increase does not apply if there are exceptional circumstances which would make [an] increase of that percentage unjust or inequitable, in which case the tribunal may make no …increase or [an] increase of such lesser percentage as it considers just and equitable in all the circumstances.”

25. We hold that the claimant was automatically unfairly dismissed and also that there are no “exceptional circumstances”, as set out above.

Ordinary Unfair Dismissal

26. The provisions that we have to consider, in this case in relation to ordinary unfair dismissal, are contained in Article 130 (1), (2) and (4) of the Order of 1996. The reason for the claimant’s dismissal was redundancy. That being so we set out (immediately below) only the relevant parts of the provisions referred to.

“(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

(a) ………..

(b) ……….

(d) ………..

(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 administration resources of the employer’s undertaking) the employer acted reasonably 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.”

27. We have already determined that the reason for the dismissal was redundancy. We must then consider the fairness provisions contained in Article 130 (4) above. In the light of our findings with regard to the circumstances of the dismissal, we consider that the dismissal was unfair.

Compensation

Notice Pay

28. This is a contractual claim and is brought under the provisions of the Industrial Tribunals Extension of Jurisdiction (Northern Ireland) Order 1994.

Article 15(1) of the Order of 2003, states that Schedule 1 to that Order shall have effect. In Schedule 1 the grievance procedures are set out at paragraphs 6 to 8. Regulation 6 (1) (a) of the Employment (Northern Ireland) Order (Dispute Resolution) Regulations (Northern Ireland) 2004 provides, insofar as relevant, as follows:

“The grievance procedures apply, in relation to any grievance about an action by the employer that could form the basis of a complaint by an employee to a tribunal under-

(a) a jurisdiction listed in Schedule 2 [of the Order of 2003]”

In Schedule 2 to the Order of 2003, one of the jurisdictions listed is the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994.

In relation to the notice pay claim, the claimant set out his grievance in writing to the respondent. No action was taken by the respondent. The provisions contained in Article 17(3) Order of 2003, therefore, apply (see Paragraph numbered 23 above in relation to these provisions). We do not consider that “exceptional circumstances” exist that would make an enhancement in compensation “unjust or inequitable”.

The claimant was entitled 9 weeks’ notice. He was given notice on the evening of 22 March 2010. Had he worked the notice period, the last day of his employment would have been 24 May 2010. The only notice worked was the week on which notice was given and the extra week worked at the request of Mr Timothy Jameson: of the 45 working days (the notice period, using a 5 day working week) the claimant worked for a total of 9 days. This leaves 36 days outstanding, namely 7 and one fifth weeks. In respect of this period we award the claimant £2,080.80 (Nett pay of £289.00 per week x 7.2).

The statutory procedures, which have been in place for some time, were not followed. In the circumstances of this case, we consider that the enhancement should be 40%. We, therefore, increase the award to £2,913.12.

Basic Award

29. On termination of his employment the claimant had 9 years’ reckonable service. He is, therefore entitled to 9 weeks’ pay, which amounts to £3,243.24 (360.36 x 9). However, he received this amount in respect of redundancy, which is deducted from the basic award. The award, therefore, is nil in respect of the basic award.

Compensatory Award

30. In determining the compensatory award we follow the duty imposed upon us by Article 157 (1) of the Order of 1996, which, in brief, states that this award shall be such amount as we consider just and equitable in all the circumstances. In this case, in order to fulfil our duty, we must consider whether dismissal would have occurred notwithstanding the respondent’s failure to follow any procedures whatsoever. We are unable to make a determination on this, one way or the other. We, therefore, follow the suggestion made by the EAT in Sillifant v Powell Duffryn Timber [1983] IRLR 91, at paragraph 22, where it is stated:

“There is no need for an ’all or nothing’ decision. If the Industrial Tribunal thinks there is a doubt whether or not the employee would have been dismissed, this element can be reflected by reducing the normal amount of compensation by a percentage representing the chance that the employee would still have lost his job.”

31. We shall firstly set out the award on a full liability basis, and then we shall deal with the percentage deduction.

32. We award £300 in respect of loss of employment rights.

33. We find that the claimant found work on 3 May 2010. He was, therefore, out of work for 4 weeks. He found work reasonably quickly. His loss amounts to £1,156 (4 weeks at £289 nett loss per week). However, we have to consider the basic amount (that is, without reference to the enhancement) that we have awarded in respect of notice pay. Where an employee has been unfairly dismissed and has been paid a sum in lieu of notice and obtains employment during the notice period, he/she does not have to account for earnings received during that period. (Norton Tool Co. Ltd v Tewson [1972] IRLR 86). However, in the case under consideration, the claimant was not paid a sum in lieu of notice and did not find employment for 4 weeks of the notice period. We consider that Babcock Fata Ltd v Addison [1987] IRLR 86, holds that Norton does not apply in a case such as this. We, therefore, deduct the basic amount awarded for those 4 weeks in respect of notice pay. This leaves a balance of nil, in respect of loss of wages.

34. With regard to the chances of the claimant being made redundant had he being given an opportunity to respond and have his say, we would put these at 60% and, therefore, reduce the £300 to £120. The statutory procedures were not followed by the respondent. In the circumstances, we increase the £120 by 40% and make an award of £168, in respect of the compensatory award.

35. The total amount awarded to the claimant is £3,081.12 (which is the notice pay award plus the compensatory award).

Recoupment

36. The claimant did not receive benefits and, therefore, recoupment does not arise.

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

Chairman:

Date and place of hearing: 30 November 2010 and 6 December 2010, at Belfast.

Date decision recorded in register and issued to parties:

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Gray v Jameson Roofing Specialists Li... [2010] NIIT 01902_10IT (28 February 2011) URL: http://www.bailii.org/nie/cases/NIIT/2011/01902_10IT.html Cite as: [2010] NIIT 1902_10IT, [2010] NIIT 01902_10IT

Industrial Tribunals Northern Ireland Decisions