Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    2373/14

 

 

 

CLAIMANT:                      Emmet Dysart

 

 

RESPONDENT:                Alan Glendinning t/a A G Automotive

                                       

 

 

DECISION

 

The unanimous decision of the tribunal is that:-

 

(i)       the claimant was employed by the respondent as an apprentice;

                            

(ii)      the claimant was automatically unfairly dismissed by the respondent for the reasons set out at paragraphs 38-42 below.  The tribunal has decided it would be appropriate to reduce the award to the claimant to nil, for the reasons set out at paragraphs 43-46 below.

 

(iii)      the respondent is ordered to pay the claimant the sum of £45.92 in respect of holidays accrued but not taken.

 

(iv)     the respondent did not provide the claimant with itemised payslips.  The tribunal does not consider it appropriate to make any award to the claimant in this regard, as we are not satisfied that any unnotified deductions were made.

 

 

Constitution of Tribunal:

 

Employment Judge:         Employment Judge McCaffrey

 

Members:                        Mr J Hughes

                                        Mr A Burnside

 

Appearances:

 

The claimant was represented by his father Mr Dominic Dysart.

 

The respondent was represented by Ms L Clarke, Barrister-at-Law, instructed by PA Duffy and Company Solicitors.

 

Issues

 

1.               The issues for the tribunal to consider were:

 

(1)           Was the claimant employed by the respondent as an employee or under a contract of apprenticeship?

 

(2)           Was the claimant unfairly dismissed by the respondent when the respondent terminated his employment or his apprenticeship on 19 September 2014?

 

(3)           Were the statutory disciplinary and dismissal procedures followed?  If not, would the employee nevertheless have been dismissed had proper procedures been followed?

 

(4)           Did the claimant by his actions contribute to his dismissal, and if so, would it be just and equitable to reduce any award in his favour?

 

(5)           Did the respondent pay the claimant for holidays and if so, did he pay him for all holidays due?

 

(6)           Did the respondent fail to give the claimant itemised pay statements?

 

 

Applications for amendments

 

2.       After discussion with the parties, and with their consent we amend the name of the respondent to read Alan Glendinning t/a A G Automotive.

 

3.       The respondent’s representative applied to amend the response form to clarify their assertion that the claimant was employed as an apprentice rather than an employee.  We heard submissions from both Miss Clarke on behalf of the respondent in relation to this matter and from the claimant’s representative.  Given that the claimant’s representative agreed that if the claimant had not been working for the respondent he would not have been able to go back to the North West Regional College to complete his course, we accepted that the claimant was an apprentice, and agreed to the amendments sought by the respondent.

 

Facts

 

4.       The tribunal heard evidence from the claimant and from the respondent.  We also heard evidence from Mr David Kane, an employee of the respondent.  There were numerous documents also opened to us in the course of the hearing.  On the basis of the evidence received, we make the following findings of relevant facts.  We would also observe that we found the respondent in this matter to be a genuine individual and found his evidence to be reliable and sincere.  There were a number of respects however where the evidence of the claimant was shown to be unreliable, and this is reflected in our decision.

 

5.       In 2011 the respondent was approached by the claimant’s father to see if the claimant could be placed with the respondent for two days a week at his car body repair workshop in Portstewart.  The claimant wished to undertake a course in car body repair at the North West Regional College (“NW College”) at the Springtown Campus, commencing on 13 October 2011.  The course was described in the paperwork shown to us as a “programme-led apprenticeship” which would run for a period of two years.  The claimant was to study at the NW College three days per week and work two days per week for the respondent.  His place at the NW College was dependent on having a placement.  At this stage the respondent’s responsibility as “employer” was to provide a placement, experience and training. The “supplier” was the NW College, which provided training for the claimant and the claimant was identified as the “participant” in the programme led apprenticeship.  At this stage the respondent had no obligation to pay the claimant, who received £40 per week and travel expenses to travel back and forth to the NW College for study.  The Delivery agreement signed by all parties in October 2011 specifically provides: “It is understood the agreement does not constitute a contract of employment between any of the participating persons or organisations”. 

 

6.       The respondent said that although he was clearly told by the College authorities that he was not obliged to pay the claimant, he felt that it was not fair for someone to work without being paid and he therefore paid the claimant initially £25 per day.  In the second year of the apprenticeship, he paid the claimant £30 or £40 per day.  At the end of the second year, the initial agreement expired, but a new service delivery agreement entitled Apprenticeships NI was signed, dated 2 September 2013.  The respondent’s understanding was that this agreement was to run for another two years to enable the claimant to finish his training.  While the content of the agreement was broadly similar to the previous documentation, the employer’s responsibilities specifically included an obligation:

 

“To employ the Apprenticeships NI participant for the duration of the apprenticeship on the terms and conditions set out in a separate contract of employment”. 

 

7.       There was also included an obligation to pay the Apprenticeships NI participant the appropriate rate for the job in line with the National Minimum Wage regulations.  In return the “participant” (i.e. the claimant) was obliged to comply with the terms and conditions of the apprenticeship, including any conditions of employment laid down by the employer. He was also obliged:

 

“to behave at all times in a responsible manner and in accordance with Health and Safety; and to promote the best interests of the employer”.

 

8.       Again the agreement ends with a final paragraph which includes the words:

 

                    “It is understood that the agreement does not constitute the basis of a contract of employment between any of the participating persons or organisations.”

 

9.       We accept that the respondent at this stage agreed to employ the claimant as an apprentice for the term of the apprenticeship.  The respondent said that he understood this to be two years and the claimant did not say anything different, so we accept the agreement was for two years.  Accordingly the agreement would have ended on 1 September 2015, two years after it commenced.  The respondent did not produce written terms and conditions of employment and we assume therefore that these were not provided to the claimant.

 

10.     The respondent said that although he was not sure whether he was obliged to employ the claimant over the college holidays, he did this in any event.  The business was closed for two weeks at Christmas and two weeks in July and the claimant was paid for these holidays.  The claimant initially disputed this, saying that he was not paid for these periods.  However when payslips from the respondent’s records were produced showing that he had been paid, the claimant then conceded that he had been paid over Christmas holidays 2013 and the July holidays in 2014.  It should be added that the respondent agreed that payslips had not been provided to his employees.  He noted they were prepared by the accountant and were available if staff required them.

 

11.     The respondent indicated that there was very limited contact between him and the tutors at the NW College.  Although they were supposed to be in contact with him on a monthly basis, he only received a visit occasionally.  He said that in September 2013, Joan Crosslé from the NW College came to see him regarding the new service agreement.  At that stage she explained to the respondent that the main difference now was that the respondent was to pay the claimant.  She later sent him the appropriate apprenticeship rates which at the time were approximately £2.60 per hour.  The respondent’s comment was that this made no great difference to him as he was already paying the claimant above apprenticeship rates.  At this point the claimant was to spend four days per week working with the respondent and one day per week at college.  During her visit,  the respondent took the opportunity to tell Ms Crosslé that he felt the claimant was not getting on as well as he would like.  He expressed concerns about the claimant’s general attitude, his lack of interest in his work and the fact that he had not progressed beyond a basic level in terms of his skills.  Ms Crosslé then called the claimant into the office and spoke to him on his own without the respondent present.  The respondent indicated that both he and his employee David Kane took time to show the claimant how to do various things and this was not disputed.  He said that he would expect the claimant to have been able to do ISOPON work which he believed the claimant should have picked up in the first six months of his apprenticeship but the claimant was not capable of doing the work in his third year.  The respondent had told Miss Crosslé about the problems of the claimant doing ISOPON work and that he could not let the claimant do a panel on the side of a car because he was not capable of doing it properly.  He had concerns about the quality of instruction the claimant was receiving at NW College, as the claimant regularly said  they “did nothing” much on his days at College   The respondent indicated that he let the claimant strip and build the cars, but he had to check everything the claimant did because he felt that the claimant was unreliable.  He said he was initially reluctant to tell the claimant off, but felt he was unresponsive to being taught how to do things.

 

12.     The respondent had built up his business and was an experienced body repair engineer, having carried out this work for approximately eight years before going into business on his own account for the last 10 years.  His evidence was that he carried out insurance work for garages and for members of the public direct.  He worked customising cars and also carried out body repair work and re-spraying of cars for some of the larger garages and dealerships.  He made the point, which we accept, that it was important for him to present a good impression to customers and to members of the public. 

 

13.     In the summer of 2014 the respondent became increasingly concerned in relation to the claimant’s errors at work, both in terms of their number and seriousness.  First of all, the respondent indicated that work was being done on a BMW car on behalf of a dealership close to Ballymena.  After the work was complete, the claimant was directed to replace the wheels on the vehicle, ensure that the wheel nuts were properly tightened by machine and to tighten the wheel nuts manually afterwards to check they were tight.  The respondent then took the vehicle to drive it back to the dealership garage.  While on the Coleraine bypass, he felt a knocking noise and realised when he pulled in that all the wheels were loose.  As he had no wheel brace in the car, he had to ring a customer who lived nearby and who he knew might have a wheel brace.  The respondent was understandably annoyed and concerned that the car had been left in a dangerous state and he was also concerned that he had given a bad impression to the customer he had had to contact for help.

 

14.     The respondent said that he had spoken to the claimant about this matter the following Monday morning but got no response from the claimant.  The claimant denied that the respondent had spoken to him about this.  Mr Kane (who also worked for the respondent repairing cars) confirmed that he had been present when the respondent gave instructions to the claimant about refitting the wheels and that the respondent phoned him later that evening to say the wheels were loose.  On balance, we accept the respondent’s account of this incident.  We certainly do not accept the claimant’s response which was, “It must have been lies, what Alan said.”

 

15.     In the middle of August 2014, the respondent was carrying out some work to a highly modified and customised car.  The customer had spent a considerable amount of money on the car and had asked for it to be resprayed.  He also wanted the four wheels painted.  The cost of painting the wheels was £600-700 per wheel and they had to be painted with specialist paint and baked in an oven.  The respondent and the claimant were aware that these wheels could be tacky when cooling down after being “baked”.  The claimant was directed to lift the wheels out of the oven and put them into the respondent’s van so that he could have them fitted.  The claimant had specifically been told to be careful with the wheels so that the new paint was not marked.  When the respondent looked at the wheels in the van, he could see that the paint had been pushed and marked and it appeared that the claimant had rested the spokes of the wheels on his trousers when moving them.  The respondent then had to phone around to try to get further (expensive) paint to repaint the wheels, and they had to be sanded down and repainted.  This took extra time and caused significant expense to the respondent.   The respondent texted the claimant but got no response.  He then spoke to the claimant the next day about this matter.  Mr Kane confirmed he had been present at this conversation and that the claimant had denied his error.  At the hearing, the claimant conceded he had damaged the paint on the wheels.  The claimant’s response at the time was that he was just doing what he was told.  The respondent pointed out to the claimant that he had known the wheels had to be “perfect” and told him that this could not go on, that he was being given a last chance.

 

16.     On 3 September the claimant was specifically instructed to fit two small bumper valances back on to a car which was having bumper repairs.  The claimant had been asked to rebuild the bumper and the respondent thought this was a straightforward job which the claimant could not get wrong.  The next day when the car had already been returned to the customer, the respondent noticed the two valances still sitting on the bench in the garage.  When he pointed this out to the claimant the respondent’s evidence was that the claimant shrugged his shoulders, giving the impression that he did not care.

 

17.     A week later the claimant had been asked to carry out repairs to a Toyota Corolla which had suffered side damage and rear bumper damage.  David Kane carried out the metal repairs as the claimant was not competent to do this work.  There was a hole in the side skirt which needed plastic welding, which was work the claimant had done before.  The claimant in fact sanded down the rear bumper and repaired small dinges, but not the large ones.  He ignored a hole which he apparently thought was a jack point.  The respondent pointed out that all the bodywork needed to be cleaned but there was still mud on the rear valances on the bumper.  Rubber needed to be removed before priming and this had not been done.  When the respondent started to prime the vehicle, he saw that there were large ripples on the back bumper which should have been repaired by the claimant.  The respondent’s view was that this was a simple task but that he and David Kane then had to start to redo the work.  He indicated that the claimant had spent all day carrying out this work which should only have taken a couple of hours and which he should have been competent to do.  The result was that the car was delayed in being returned to the customer.  The respondent repeated, and Mr Kane confirmed, that both of them had shown the claimant how to carry out priming and how to carry out basic tasks repeatedly.  When it was put to the claimant that his work on the Toyota Corolla was below standard, he did not make any response.  The respondent was left with the impression that in spite of their efforts, the claimant was making no effort in showing any interest in his work. 

 

18.     Mr Kane confirmed that both he and the respondent had done their best to train the claimant and to show him how things should be done properly.  His view was that the claimant was a good young man but he felt that he should have been able to “do more” after three years.  In his words he felt the claimant hadn’t “moved on”, hadn’t learnt enough and had failed to grasp his training.  The claimant’s father, who was representing him, put it to both the respondent and Mr Kane that they had failed to tell him or the claimant about the shortcomings in the claimant’s work.  We accept the evidence given by the respondent and Mr Kane that the claimant was repeatedly spoken to about his work and that after the incident with the painted wheels, the claimant was told it was his last chance.  We also accept that when Mr Dysart spoke to the respondent, it was in the garage in front of customers.  The respondent did not want to complain about the claimant in public, so he said the claimant was doing, “Alright”.

 

19.     On or about 12 September, after the incident with the Toyota Corolla, the respondent said that he felt that there were too many mistakes and that he could not cope with the claimant any further.  In Ms Crosslé’s absence on sick leave, he spoke by telephone to Paul Harrison from the NW College and told him all the difficulties he had with the claimant.  The respondent said that continuing with the claimant was causing him a great deal of stress.  His evidence was that Mr Harrison had indicated that the College would get the claimant a placement elsewhere and that the respondent should “let him go”.  Mr Harrison suggested that he would speak to the claimant the following Thursday when he was in the College and he then phoned the respondent back after that discussion.  Mr Harrison had asked the claimant what he could do and told the respondent that the claimant had indicated he could do quite a lot of “stuff” which the respondent said that the claimant was not actually competent to do.  Mr Harrison agreed that he would get the claimant another placement.

 

20.     The day after the second phone call was 19 September 2014.  On that day, work had been completed on a VW Polo car at the respondent’s workshop.  The claimant was asked to wash the car prior to the customer coming to collect it.  He did not however check that the boot was properly closed.  As a result when the respondent opened the boot to show the customer the work that had been completed there was a pool of water in the boot of the car.  The respondent was understandably embarrassed by this.  He was frustrated that the claimant could not carry out a simple task like this competently.  In his words, everything the claimant did had to be redone. 

 

21.     On 19 September, the respondent decided following his conversation with Paul Harrison and the events of that day, that he would tell the claimant that he would have to look for another placement.  He was aware that the claimant did not speak to him that day and the respondent himself was busy with customers.  He intended to speak to the claimant before the claimant left the premises after the other staff had left.  However the claimant left without the respondent speaking to him.  The respondent tried to phone the claimant to speak to him and subsequently texted him asking him to call him.  The claimant phoned the respondent shortly after seven o’clock that evening.  The respondent explained to the claimant that he had spoken to Paul Harrison, that the placement was not working out and that he didn’t feel that the claimant wanted to do the work.  The respondent advised the claimant that Paul Harrison would get him a placement elsewhere and that he would “talk to him later”. 

 

22.     The respondent then went home and received a phone call from the claimant’s father which lasted 53 minutes.  The respondent described Mr Dysart’s behaviour as “abusive” and the call included comments such as “I hope this happens to your children” and “I’ll get you in the long grass”.  Mr Dysart also indicated, “We will take you to court”.  At that stage the respondent told Mr Dysart that if the claimant wanted another job that he could come back to work, but Mr Dysart simply asked for the claimant’s P45.  Mr Dysart did not give evidence in this case, although he was present and we accept the unchallenged evidence of the respondent on this point.

 

23.     The claimant had alleged that the respondent had employed someone else in his place around the same time as the claimant was let go.  The respondent indicated that this was not the case, they had been particularly busy at work and he had then been approached by a young man named Brian Moore who had been in the coach building trade.  As work was behind, the respondent took Mr Moore on on a part-time basis initially and then, when Mr Moore had finished his notice period with his other employers, he came to work for the respondent full-time.  The respondent was clear, and we accept, that there was sufficient work for another person and he was content to have Mr Moore work for him.

 

24.     We also found the claimant’s evidence to be unreliable in relation to the forms which were supposed to be completed on a weekly basis and submitted to the NW College in order for the claimant to receive his weekly allowance of £40.00 and expenses.  After the claimant’s placement with the respondent was terminated and these proceedings commenced, the respondent contacted the NW College to obtain copies of some paperwork.  He was provided (amongst other things) with copies of the claimant’s attendance sheets for his placement which the respondent was supposed to have countersigned.  He was clear that a number of these forms were signed with his name but that the writing was not his.  The claimant’s explanation for this was that the respondent had told him after a couple of weeks at College that either he or his father should countersign these forms, that he didn’t need to sign them.  The respondent was adamant, and we accept, that he did not give this instruction to the claimant.  His evidence was that he would never tell anyone to forge his signature and that he would have had no problem in signing the form for the claimant on a weekly basis.  We accept the respondent’s evidence in this regard and we find the claimant’s evidence unreliable and unconvincing: we can see no good reason either why the claimant or his father would agree to sign the form using the respondent’s name.

 

25.     Following this the claimant found an alternative placement with Giovanna Coach Works based at Greysteel.  This commenced on 8 October 2014.  The claimant’s evidence was however that this had finished two months later.  The respondent had approached Mr Seamus Moore of Giovanna Coach Works to clarify why his placement had finished and Mr Moore had supplied a letter which started,

“To whom it may concern,

 

          Emmet Dysart was employed by Giovanna Coach Works on a trial basis from 8/10/2014 until 8/12/2014.  We do not continue his employment as we didn’t feel he met the requirements and standard of a third-year apprentice.  His standard weekly pay was £162.82.

 

Yours sincerely”

 

At the time of the hearing, the claimant did not indicate that he had found any new work.

 

THE RELEVANT LAW

 

Apprenticeship or employee?

 

26.     Article 3 of the 1996 Order provides as follows:-

 

                    “3(1)   In this Order, “employee” means an individual who has entered into or works under (or where employment has ceased, worked under) a contract of employment.

 

                    (2)      In this Order, contract of employment means the contract of service or apprenticeship, whether expressed or implied, and, if it is express, whether oral or in writing”. 

 

27.     This confirms that apprenticeship contracts such as that under which the claimant was employed are covered by the 1996 Order.

 

As we have found that the claimant was employed under a contract of apprenticeship, we must take account of the law relating to apprenticeships.  The traditional “master-apprentice” relationship is less common today, but the essential features of a contract of apprenticeship are still that the apprentice contracts to be called a trade or calling and the employer contracts to train him during the fixed-term of the apprenticeship.  However the days when an apprentice paid a premium to be taught a trade and lodged with his master while being trained are long gone.   The tripartite relationship between individual, employer and training organisation which categorises the so called “modern apprenticeship” (such as that in this case) has caused the courts some difficulty.  However the Court of Appeal in England and Wales found in Flett v Matheson [2006] EWCA Civ 53 that a modern apprenticeship satisfies the statutory definition of a contract of apprenticeship.  Given that the employer pays the individual and allows him or her time off for study, it does not matter that the academic component is provided by a third party.

 

28.     In this case, the important feature of an apprenticeship is that an apprentice cannot be dismissed merely on notice during the fixed term of his apprenticeship, nor can he usually be dismissed for misconduct which would justify dismissal of a servant at common law.  However it may be reasonable to dismiss if the apprentice’s behaviour is so bad that it is impossible to teach him the trade.  In Learoyd v Brook [1891] 1QB 431, A.L. Smith J had to consider an action by guardians of an apprentice for breach of covenant by his master for failing to keep, teach and maintain the apprentice.  The master defended the case on the basis that the apprentice was a habitual thief, and his business was that of a jeweller and pawnbroker.    Smith J held that:

 

“Where an apprentice by his own wilful act prevents a master from teaching him, the master can set this up as a defence when sued upon his covenant to keep, teach and maintain the apprentice, irrespective of the question of whether the apprentice has performed his obligations under the deed or not ...  The apprentice by his own acts has put it out of the power of the master to carry out what he had contracted to do”.

 

29.     Unfair Dismissal

 

It is well established that the claimant has the right not to be unfairly dismissed as set out in Articles 130 and following of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”).  Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides as follows:

 

“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 -

 

                    (a)      relates to the capability or qualifications of the employee for performing work of a kind which he was employed by the employer to do,

 

                              (b)      relates to the conduct of the employee,

 

                              (c)      is that the employee was redundant, or

 

                              (d)      is that the employee could not continue to work in the position which he held without contravention (either on his part or that of his employer) of a duty or restriction imposed by or under a statutory provision …”

 

30.     In relation to the issue of procedural fairness, the appropriate provisions are to be found in Article 130A which provides as follows:-

 

“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.”

 

31.     The statutory disciplinary and dismissal procedures set out in Schedule 1 of the 2003 Order comprise three stages: a letter from the employer to the employee, setting out the alleged misconduct and inviting the employee to a disciplinary meeting at which he is entitled to be accompanied; the disciplinary meeting at which the employee is entitled to be heard and to reply to the allegations against him; a written decision to the employee and if appropriate, the right to appeal the decision.

 

32.     Article 17(3) of the Employment (Northern Ireland) Order 2003 makes provision for the uplift of awards in a case to which the statutory procedures apply, but they have not been followed due to the failure of the employer.  The tribunal should increase the award by 10% and may, in situations where it considers it just and equitable to do so, increase it by up to 50%.

 

 

The legislation in relation to awards for unfair dismissal is set out at Article 152 and following of the 1996 Order which sets out provision for the calculation of the basic award and compensatory award.  Articles 154(1A) and (1B) provide that:-

 

          “Where –

 

(a)    an employee is regarded as unfairly dismissed by virtue of Article 130ZG or 130A(1) (whether or not his dismissal is unfair or regarded as unfair for any other reason;

 

(b)    an award of compensation falls to be made under Article 146(4); and

 

(c)    the amount of the award under Article 152(1(A)) [the basic award] ... is less than the amount of four weeks’ pay,

 

          the industrial tribunal shall, subject to paragraph (1B), increase the award under Article 152(1)(a) to the amount of four weeks’ pay.

 

(1B).   An industrial tribunal shall not be required by paragraph (1A) to increase the amount of an award if it considers that the increase would result in injustice to the employer”.

 

33.     In relation to reductions to the basic award, Article 156(1) provides that where the tribunal finds that the complainant has unreasonably refused an offer by the employer which (if accepted) would have the effect of reinstating the complainant in his employment in all respects as if he had not been dismissed, the tribunal shall reduce or further reduce the amount of the basic award to such extent as it considers it just and equitable having regard to that finding.

 

34.     Article 156(2) provides that where the tribunal considers that any conduct of the claimant before the dismissal (or, where the dismissal was with notice before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to an extent, the tribunal shall reduce or further reduce that amount accordingly.  Similar provisions relating to the reduction of the compensation award for contributory fault are to be found in Article 157(6).  The amount of any reduction for contributory fault is a matter for the industrial tribunal hearing the case.

 

35.     The tribunal must also consider whether it is appropriate to consider any reduction in the award on the basis of that, if the statutory dismissal procedures had been followed, the claimant would in any event have been dismissed under the ruling of the House of Lords in Polkey (see paras 43, 44 following).

 

Holiday pay

 

36.     All employees are entitled to a minimum of 28 days’ paid holiday per year (pro-rata) under Regulation 30 of the Working Time Regulations 1998 (as amended).  The only situation where an employee can be paid in lieu of holiday accrued but not taken is if his employment ends in the course of the leave year.

Failure to provide an itemised pay statement

 

37.     The right to receive an itemised pay statement is set out in Article 40 of the 1996 Order.  The objective of the legislation is to ensure that employers account for PAYE tax and national insurance on pay to their staff and that employees can see clearly that this has been done.  The remedy reflects this.  Article 44(4) of the 1996 Order provides:-

 

                      “Where on a reference in a case in which paragraph (3) applies, the tribunal further finds that any unnotified deductions have been made from the pay of the employee during the period of 13 weeks immediately preceding the date of the application for the reference (whether or not the deductions were made in breach of the contract of employment), the tribunal may order the employee to pay the sum not exceeding the aggregate of the unnotified deductions so made.”

 

Otherwise the remedy is simply an order that the payslips be produced.

 

Reasons and Decision

 

A.              Unfair Dismissal

 

38.     In considering our decision we have taken the first three questions set out at the Issues part of this decision (see para 1 above) together. 

 

39.     We are satisfied, on the basis of the documentation provided to us and on the basis from the information provided by the respondent and by the claimant, that the claimant was employed by the respondent as an apprentice under a fixed term contract from 2 September 2013 to 1 September 2015.  At the date his employment ended, the claimant had already completed one year of this agreement, and the claimant was therefore in the second and final year of the apprenticeship.  We are satisfied also that this agreement was a new agreement following the initial period of apprenticeship, and that the claimant was not previously an employee of the respondent, as set out in the delivery agreement of September 2011.

 

40.     The next issue to consider is whether the claimant was unfairly dismissed.  In considering this matter we must consider whether the statutory disciplinary and dismissal procedures were followed, and it is clear from the frank evidence given by the respondent that they were not.  The statutory disciplinary and dismissal procedures were introduced in Northern Ireland in 2005 and remain in place, although they have been repealed in Great Britain.  It is important that an employee knows when they have done something wrong and, if they are to be disciplined or ultimately dismissed, they need to understand the charges against them, have an opportunity to respond to those at a meeting and indeed have an opportunity to appeal the outcome.  The failure of the respondent to follow the statutory procedures renders the claimant’s dismissal automatically unfair under Article 130A(1) of the 1996 Order.  There are however some other factors which we consider relevant to the issue of remedy. 

 

41.     We accept the evidence of both the respondent and Mr Kane, that the claimant was repeatedly spoken to by both of them and shown how to do things correctly.  We accept that he was given numerous verbal warnings and was told after the wheel painting incident that he was on his last chance.  We accept that the incidents described by the respondent occurred, and we also make it clear that we consider that a number of these incidents (set out at paragraphs 13-20 above) were serious.  The most serious of all was the incident where the claimant failed to tighten the wheel nuts on a car after refitting the wheels.  This was so incompetent and reckless on his part that it was dangerous.  The worst case scenario was that someone who was driving the car could have been injured or killed had one of the wheels fallen off due to the claimant’s negligence.  In our view this behaviour alone would have warranted dismissal of the claimant for gross misconduct.  The fact that the respondent was willing to give the claimant another chance after this incident shows his patience and perseverance in the face of the claimant’s unwillingness to show any interest or aptitude for the work.  Applying Learoyd v Brooke we find that the claimant had, by his own acts, put it out of the power of the respondent to teach him the trade. 

 

42.     We also note that the respondent had spoken to the claimant’s tutor at the NW College before taking any action and, in essence, followed the advice he was given by the tutor.  While this does not justify the respondent’s action, it does give some explanation and in our view, confirms that the respondent made every effort to treat the claimant fairly. 

 

43.     In principle therefore this is a case where the minimum basic award of four weeks’ pay should be made to the claimant.  In considering an award of compensation however we are obliged to consider the ruling of the House of Lords in Polkey v AE Dayton Services Ltd [1987] IRLR 503 where their Lordships said as follows:-

 

                    “In judging whether what the employer did was reasonable, it is right to consider what a reasonable employer would have had in mind at the time he decided to dismiss as a consequence of not consulting or not warning as provided for in the Code of Practice.  If the employer could reasonably have concluded in the light of the circumstances known to him at the time of dismissal that consultation or warning would be utterly useless, he might well act reasonably even if he had not served the provisions of the Code.  Failure to observe the requirement of the code relating to consultation or warning will not necessarily render a dismissal unfair.  Whether in any particular case it did so is a matter for the industrial tribunal to consider in the light of the circumstances known to the employer at the time he dismissed the employee”.

 

44.     We also of course take account of the fact that since the date of the Polkey decision, the statutory disciplinary and dismissal procedures have been introduced.  We are however also aware of the decision of the Employment Appeal in England in Goodin v Toshiba Tec Relation Information Systems SA [U&KEAT/0271/08/JOJ.  In that case the claimant had been made redundant following a consultancy exercise.  The industrial tribunal hearing his case at first instance were satisfied that the respondents had shown that, had a fair procedure been followed, they would still have dismissed the claimant.  They further went on to find that there was a breach of the statutory dismissal procedures in that there had been no step one letter and a failure at step two, in that the claimant had not been given the precise scores awarded to him or his ranking in the list of engineers.  The tribunal therefore went on to say in its decision that they were going to reduce any compensation by 100% under the principles in Polkey.  The Employment Appeal Tribunal found that the tribunal was entitled to reduce compensation by 100% in an automatic unfair dismissal case where the breaches of procedure would have made no difference to a decision to dismiss.  They noted that the level of compensation and Polkey issues were very much a matter of discretion for the industrial jury to fix.

 

45.     We have considered this matter carefully.  We note that in this case we are bound to make a minimum award of four weeks’ gross pay to the claimant unless that award would result in an injustice to an employer (Article 154(1)(a) of the 1996 Order).  We are conscious that exception could apply particularly in cases of fraud or dishonesty, or where the employer has been at some type of loss.  In this case we are conscious that the employer has been put at considerable loss because of the claimant’s behaviour.  The most obvious example is the case where the claimant smudged expensively painted wheels with the result that the work had to be redone at additional cost and inconvenience to the employer.  The respondent’s evidence, which was not credibly disputed, was that anything the claimant had done effectively had to be redone.  We are also satisfied that the claimant was given numerous verbal warnings, and that the respondent’s decision to dismiss the claimant came after having taken advice from his college tutor.  In this situation, we consider it would be unjust to penalise the employer further and so we reduce the minimum basic award by 100% to nil. 

 

46.     In relation to the compensatory award, and applying the principles of Polkey and Goodin v Toshiba as set out above, we are satisfied that it is appropriate to reduce the compensatory award in this case.  We are satisfied that, had the claimant followed the statutory dismissal and disciplinary procedure the claimant would in any event have been fairly dismissed.  We are satisfied that the incident where the claimant failed properly to refit the wheels on the BMW car was an act of gross misconduct for which he could justifiably have been summarily dismissed.  We are satisfied as well that this incident and other acts of misconduct referred to by the respondent at paragraphs 13-20 above, taken together, led to the claimant’s dismissal.  We found the claimant’s account of these incidents unconvincing and we believe that the claimant’s own actions were completely responsible for his dismissal.  We therefore reduce the compensatory award and the basic award by 100% for the claimant’s contributory fault. 

 

Holiday Pay

 

47.     Under the Working Time Regulations, employees are entitled to a minimum of 28 days leave per week (pro rata).  In the claimant’s case he worked four days per week for the respondent which means his annual leave entitlement would have been 22.4 days (four fifths of the annual entitlement).  We were not told by the respondent or the claimant as to any particular date for the beginning of the leave year and we assume therefore that in the claimant’s case his leave year commenced at the start of his contract i.e. 2 September 2013.  We are satisfied that the claimant was paid for at least the bulk of his holidays in 2013-2014.  The claimant did not give any evidence that he had sought to take any other holidays, and we are conscious that the only provision in the Working Time Regulations which allows for payment for holidays accrued but untaken is in relation to holidays which are not taken in the course of a leave year when the employment ends.  Any holidays accrued but untaken up to 1 September 2014 cannot be the subject of a claim by the claimant at this stage: he must either use his holiday or lose it.  For the period from 2 September 2014 until the date of the termination of claimant’s employment, it is our finding that he was entitled to one day’s leave which had accrued but was not taken.  On the basis that his gross pay was £183.68 per week for a four day week, his daily pay was £45.92 and we order the respondent to pay to the claimant the sum of £45.92 in respect of accrued but untaken holiday.

 

Itemised Payslips

 

48.     As set out at paragraph 37 above, the legislation in relation to itemised payslips is in place to ensure that employers account properly for PAYE, tax and national insurance on pay to their staff and that employees can see that this has been done.  Article 44(4) provides that where the tribunal finds that any unnotified deductions have been made from the pay of the employee during the 13 weeks immediately before his application to the tribunal, the tribunal may order the employer to pay the employee a sum not exceeding the aggregate of the unnotified deductions so made.  In this case, and on the basis of the payslips produced to us, we are satisfied that the appropriate deductions were in fact made and were reported to the appropriate authorities.  We trust the respondent will in future ensure that itemised payslips are provided to his employees.  Given that the remedy under Article 44(4) is a discretionary one, and that we are satisfied that all relevant deductions had been notified to the appropriate authorities so the claimant is not at any disadvantage or loss, we do not consider it appropriate to exercise our discretion to order the respondent to make any further payment in this regard. 

 

49.     In summary, this is a case where the claimant unfortunately did not make the most of the opportunity given to him by the respondent to learn a trade.  The respondent as far as we can see, made every effort to teach the claimant and treated him generously, especially in the early part of his apprenticeship when there was no obligation to pay him.  The respondent failed to comply with the statutory dismissal procedures in part due to misleading advice given to him by the claimant’s tutor but we are satisfied that the claimant was also well aware of the shortcomings in his work.  In our view, it is not appropriate to penalise the respondent further.

 

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

 

 

 

 

 

Employment Judge:      

 

Date and place of hearing:  8 January 2015, Belfast.                  

 

Date decision recorded in register and issued to parties: