THE INDUSTRIAL TRIBUNALS 

CASE REF:	1569/08

CLAIMANT:                       Philip McMullan

RESPONDENTS:	1.	Ballyclare Glass and Glazing 
			2.	Kenny Higgins 
3.	Samuel Higgins

DECISION
The decision of the tribunal is that the claimant was unfairly dismissed by the respondent and that the respondent is to pay to the claimant £23,876.00 in respect of unfair dismissal, loss of statutory rights and notice pay. 

Constitution of Tribunal:
Chairman:  			Mr Wimpress	
Members:			Mrs Gilmartin
	         			Mr Rosbotham

Appearances:
The claimant was unrepresented and appeared on his own behalf.
The respondent did not appear and was not represented.

The Claim and the Response
1.	The claimant filed a claim in the tribunal office on 27 October 2008 in which he made claims seeking compensation in respect of unfair dismissal and notice pay.  A response was received from a firm of accountants T B Millar & Co dated 19 December 2009 which only stated that the first named respondent was receiving advice from the Lismore Group a licensed insolvency practitioner.  This response was rejected by the tribunal on 22 January 2009 at the pre-acceptance stage because it did not indicate on what grounds it wished to resist the claim or the details of the grounds of such resistance.  The Lismore Group wrote to the tribunal Office on 17 February 2009 enclosing a circular to creditors dated 23 January 2009.  We shall return to the contents of this document later.  The second and third named respondents were joined to the proceedings following a case management discussion on 21 April 2009 but neither filed a response. None of the respondents appeared at the hearing of this matter.  As the tribunal was satisfied that the respondents had been duly notified of the date and place of hearing, the tribunal decided that it would be appropriate, having regard to Rule 27 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, to proceed with the hearing in the respondent’s absence and to determine the matter on the basis of the oral and documentary evidence presented on behalf of the claimant and the material received from the Lismore Group. 
Sources of Evidence
2.	The tribunal heard oral evidence from the claimant and received a handwritten document from the claimant in which he detailed his loss of earnings.
The Issues
3.	(1)	whether the claimant was unfairly dismissed.
(2)	what compensation was due to the claimant if the tribunal found that he was unfairly dismissed.
(3)	whether the claimant was entitled to additional notice pay.
The Facts
4.	The claimant’s date of birth is 26 November 1969.  The claimant commenced employment with the respondent in August 2004.  The firm at that time comprised the second and third named respondents who were the proprietors and the claimant.  Three years later in 2007 the proprietors engaged their brother in law Mr Brolley who had previously worked elsewhere on his own account.  This caused the claimant to worry about his job security and he raised this concern with the proprietors who told him that Mr Brolley was self employed and that his job was secure.  The claimant was told that Mr Brolley had been brought in because they were busy and that he would return to working on his own account.
5.	On Friday 29 August 2008, Mr Kenny Higgins told the claimant that he was being made redundant and that he was to serve one week's notice.  Mr Higgins told him that the business was doing badly and having spoken to his accountant the business was reverting to the two brothers.  No mention was made of Mr Brolley.  Mr Higgins handed the claimant a week's pay and told him that he would receive four week's redundancy as he had been with them for four years.  The claimant did indeed receive this amount of redundancy pay.
6.	The claimant was not advised of his potential redundancy in writing, was not  invited to a meeting about it and was not informed of any right to appeal.
7.	The claimant did not receive a P45 despite requesting it several times.  He also took it up with the Lismore Group which referred him back to Ballyclare Windows and Glazing Ltd and through the Citizens Advice Bureau.  The claimant was also refused full notice pay on the spurious basis that he had submitted a two week sick line due to a back injury that he sustained in work.  The claimant had had problems with his back before and from experience knew that a couple of weeks would cure it.
8.	The claimant accepted that there had been a drop in business but he was still very busy up until the date of his dismissal.
9.	According to the document submitted by the Lismore Group the directors of Ballyclare Windows and Glazing Ltd were advised on 13 November 2008 that the company should cease trading and it did so immediately.  The document also stated that the company had four employees including the two directors and PAYE was operated for all four employees.  However, the material before the tribunal suggests that the company is not insolvent and according to the claimant the business is still operating from the same premises but has changed its name to Ballyclare Glass and Glazing.   
10.	The claimant’s average monthly gross pay was £1864.63 and his average take home pay was £1,627.14.  The claimant did not seek Jobseekers Allowance and started working on his own account in October 2008 doing small fitting jobs. The claimant works from home and operates mainly in the Belfast area.  The claimant earned £3,097.24 in total from his new business over the eight months between losing his paid employment and the tribunal hearing.

THE LAW
11.	The relevant statutory provisions are found in Articles 130, 130A, 170, 174 and 197 of the Employment Rights (Northern Ireland) Order 1996, Article 17 of the Employment (Northern Ireland) Order 2003, the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 and the Industrial Tribunal Extension of Jurisdiction (Northern Ireland) Order 1994.  Article 17 of the Employment (Northern Ireland) Order 2003 is of particular importance in the present case as it makes provision for increasing awards for non compliance with the statutory procedures as follows:- 

17.  - (1)	This Article applies to proceedings before an industrial tribunal relating to a claim under any of the jurisdictions listed in Schedule 2 by an employee.

(2)	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 employee - 

(i)	to comply with a requirement of the procedure, or

(ii)	to exercise a right of appeal under it,

it shall, subject to paragraph (4), reduce 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, reduce it by a further amount, but not so as to make a total reduction of more than 50 per cent.

(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  
procedure was wholly or mainly attributable to failure by the employer to comply with a requirement of the procedure,

it shall, subject to paragraph (4), increase any award which it makes to the employee by 10 per cent and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50 per cent.

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

(5)	Where an award falls to be adjusted under this Article and under Article 27, the adjustment under this Article shall be made before the adjustment under that Article.

12.	Accordingly, if an employer wishes to dismiss an employee for redundancy or any other reason, it must go through the statutory dismissal procedure.  The procedure stipulates that the employer must set out in writing the reason for the proposed action, must invite the employee to a meeting for the matter to be discussed, must communicate the decision to the employee and advise of the right to appeal.  If the right to appeal is exercised by the employee there must be another meeting and the outcome must be communicated to the employee.  All meetings and actions must take place at a reasonable time and place.  
13.     	If the failure to follow the statutory procedure is because the employer is at fault the tribunal must increase its award for unfair dismissal by 10% and may increase that award by a percentage up to 50%.  

14.	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 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, or
 
(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.
 
  (5) 		Where the employee is taken to be dismissed for the purposes of this Part by virtue of Article 128, Paragraph (4)(a) applies as if for the words “acted reasonably” onwards there were substituted the words “would have been acting reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee if she had not been absent from work, and”.
 
      	   (6)    	Paragraphs (4) and (5) are subject to Articles 131 to 139 and 144.

15.   Procedural fairness

130A.—(1)	An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if—

(a)	one of the procedures set out in Part I of Schedule 1 to
      the Employment (Northern Ireland) Order 2003
      (dismissal and disciplinary procedures) applies in relation
      to the dismissal,
    
           (b) the procedure has not been completed, and

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

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

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

16.  Article 174 of the Order provides:-
 
(1)		For the purposes of this order an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to – 
 
(a)  the fact that his employer has ceased or intends to cease –

(i)	   to carry on the business for the purposes of which the employee was employed by him, or

(ii)	   to carry on that business in the place where the employee was so  employed by him, or

         	(b)  the fact that the requirements of that business— 

        (i)     for employees to carry out work of a particular kind, or

       (ii)     for employees to carry out work of a particular kind in the
                place where the employee was employed by the
                employer,
 have ceased or diminished or are expected to cease or diminish.

(2) 	For the purposes of paragraph (1) the business of the employer together with the business or businesses of his associated employers shall be treated as one (unless either of the conditions specified in sub-paragraphs (a) and (b) of that paragraph would be satisfied without so treating them). 

(6)  In Paragraph (1) “cease” and “diminish” mean cease and diminish either 
permanently or temporarily and for whatever reason.

CONCLUSIONS

17.	The claimant's evidence clearly establishes that he was dismissed.  Once a dismissal is established the burden of proof is on the respondent to show that the dismissal is fair. The standard dismissal procedures apply and include requirements to notify the employee in writing, hold a meeting with him and arrange an appeal if necessary.  

18.	In relation to the selection pool criteria, the burden lies on the respondent 
to demonstrate that it has taken into account the characteristics of its employees when deciding whom to select.  The employer should set out why there is a redundancy situation, the selection criteria and any assessment of the employee in order to prevent automatic unfair dismissal. There is no direct evidence from the respondent about this at all.  Such evidence as there is clearly points towards the decision being based on familial connections rather than any proper criteria.

19.	The respondent entirely failed to comply with the statutory dismissal   
procedures and in all the circumstances we consider it just and equitable to uplift the award by twenty percent.

20.  	We have no way of knowing whether the claimant would have retained his job had the statutory dismissal procedure been followed.  The evidence establishes that there was a diminution in business that necessitated reducing the workforce by one man.  We can however take account of the claimant’s evidence that he had been working for the respondents for three years before Mr Brolley arrived on the scene and there is nothing to suggest that the claimant performing his work in anything other than an entirely satisfactory manner.  Accordingly there is no reason to suppose that on a proper application of the statutory procedure the claimant would have lost his job rather than Mr Brolley.

21.  	As stated above, the Lismore Group informed the tribunal office that the directors of Ballyclare Windows and Glazing Ltd were advised to cease trading and, according to the Lismore Group, it did so immediately.  It is clear however that the business is not insolvent and we are satisfied on the basis of the claimant’s evidence that the second and third named respondent are continuing to operate their business under a new name, Ballyclare Glass and Glazing.  In the absence of contrary evidence we are satisfied that there has been a relevant transfer of the undertaking under the Transfer of Undertakings (Protection of Employment) Regulations 2006 and that Ballyclare Glass and Glazing is to be regarded as the claimant’s employer for the purposes of these proceedings.  We therefore amend the title of the proceedings by substituting Ballyclare Glass and Glazing for Ballyclare Windows and Glazing Ltd.   Mr Kenny Higgins and Mr Samuel Higgins have already been joined to the proceedings and will therefore be liable in respect of any award that is made irrespective of what name they are operating under.

AWARD

22.	Basic Award

£330 x 1 x 4						             £1,320.00

Compensatory Award

£375 x 35						          	 £13,125.00

Less actual earnings 					   £3,097.00

						Sub-total        £11,348.00

Future Loss

£287 x 26							  £7,462.00

                                                               Sub-total        £18,810.00

20% uplift for failure to follow statutory procedures         £3,762.00   

Notice Pay (£368 x 3)					  £1104.00

Loss of Statutory Rights					     £200.00

						Sub Total      £23,876.00

				      TOTAL AWARD	 £23,876.00

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

Chairman:

Date and place of hearing:   1-2 June 2009, Belfast

Date decision recorded in register and issued to parties: