Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1091/15

 

 

 

CLAIMANT: James Reid

 

 

RESPONDENT: Darryl Davis t/a Connoisseurs Bakery

 

 

DECISION ON REMEDY

The decision of the tribunal is that the claimant is awarded the following sums:

 

(1)           The sum of £378.17 for holiday pay.

(2)           The sum of £16,396.85 for unfair dismissal.

 

Constitution of Tribunal:

 

Employment Judge: Employment Judge Murray

 

Members: Mrs S Doran

Mr I Rosbotham

 

Appearances:

 

The claimant was represented by Mr R Cushley, Barrister-at-Law, instructed by O'Reilly Stewart Solicitors.

 

The respondent represented himself.

 

 

REASONS

 

1. By a decision of this tribunal promulgated to the parties on 14 December 2015 the claimant was successful in his claims for notice pay, holiday pay and unfair dismissal. A monetary award for notice pay was made in that decision.

 

2. The remedy hearing for holiday pay was reconvened to enable the parties to submit a recalculation.

 

3. The remedy hearing for the unfair dismissal claim was listed separately from the main hearing for the following principal reasons:

 

(1)           Remedy and liability were to have been dealt with at the hearing in November 2015. Part of the claimant's claim was that he had suffered psychiatric problems which he attributed wholly to the actions of the respondent in dismissing him. For this reason the claimant claimed a substantial figure for loss of wage because he said he was unable to seek work due to his medical incapacity.

 

(2)           On the first morning of hearing the respondent stated that he had requested copies of the claimant's notes and records to show that the claimant had a substantial pre-existing psychiatric medical history which was relevant to the issues in the case. The respondent told us at that stage that he had been refused access to the GP notes and records and medical history as he had been told that they were irrelevant to the issues before the tribunal. Mr Cushley rightly conceded that these issues were relevant to the remedies part of the hearing and submitted that there would, however, be difficulties in obtaining the medical notes and records in time for the hearing. It was therefore agreed by the parties that the hearing would proceed on liability only with remedy to be assessed at a further hearing if required. The fault for the split hearing therefore lay with the claimant's side.

 

(3)           The decision was issued to the parties on 14 December 2015 and immediate efforts were made to list the remedy hearing. The earliest date to suit all the parties was 19 April 2016. In preparation for that hearing the claimant obtained a psychiatric report from Dr Loughrey which is dated 9 April 2016 and that was sent to the respondent by post on Friday 15 April 2016.

 

4. The tribunal heard evidence from Dr Loughrey, the consultant psychiatrist retained by the claimant for the purposes of this hearing. For the purposes of his report, which was also before the tribunal, Dr Loughrey analysed the claimant's GP notes and records and he noted relevant entries in relation to the claimant's mental health issues. The tribunal also heard evidence from the claimant.

 

HOLIDAY PAY CALCULATION

 

5. The claimant is awarded the sum of £378.17 in respect of outstanding holiday pay calculated as follows.

 

Net weekly wage: £232.00

Days worked per week: 4 days

Daily rate of holiday pay: £58.00

 

Period Days Owed Amount

January to December 2013: 1.5 days £ 87.00

January to December 2014: 22.4 days £1299.20

January to 20 March 2015: 4.8 days £ 278.40

 

TOTAL: £1664.60

 

Received: £1286.43

 

Balance due: £ 378.17

UNFAIR DISMISSAL

 

6. The case of Dignity Funerals Limited v Bruce [2005] IRLR 189 (Court of Session) sets out the approach to be adopted by a tribunal in cases where a claimant claims that he is medically unfit to work because he was dismissed. The relevant principles from this decision are as follows:

 

(1) The tribunal must consider two main questions: whether the claimant's dismissal was one of the causes of the claimant's wages loss and, if it was, what level of compensatory award would be just and equitable in the circumstances. The first question is one of fact and the second question is one of discretion.

 

(2) If it can be shown that the depressive illness was caused by the dismissal and that this prevented the claimant from working, then a full award for loss of earnings should be made.

 

(3) In contrast, if the dismissal is one of two or more concurrent causes of the claimant's loss then it is up to the tribunal to decide on a just and equitable award which would be less than an award of the full loss of wage.

 

(4) It is for the tribunal to find the extent to which the depression was caused by the dismissal and then to look at the extent to which this prevented the claimant from finding work.

 

7. The tribunal found the following facts relevant to the calculation of the loss of wage element of this claim.

 

8. Dr Loughrey was clear in his evidence that the claimant is currently unfit to seek work due to his medical condition, namely a moderate depressive episode. It was Dr Loughrey's opinion that the claimant would be fit for a phased return by the end of 2016, that is, approximately nine months from the date of the remedies hearing and that the claimant would be fit to return to a full return to duties as a baker in 12 months, that is, by April 2017.

 

9. It is our finding that it would not be just and equitable to find the respondent liable for the full extent of the claimant's current incapacity for the following principal reasons.

 

10. It is clear from the medical evidence that the causes of the claimant's mental health problems go back many years and the claimant was therefore vulnerable. It appears that the effect of the major stressors at various points in his life over the previous very long period built on each other so that he was vulnerable to further stressors. One of the causes of the exacerbation in the claimant's difficulties was his dismissal following breach of contract.

 

11. The breach of contract involved was a failure to deal with the grievance between September 2014 and March 2015. It was our finding that that, of itself, amounted to a breach of contract which justified the claimant resigning and treating himself as dismissed. We also found that that was a last straw event related to a previous breach of contract (which did not itself lead to the claimant resigning) which occurred in August 2014. That event was the threatening behaviour at a meeting with Mr Carnduff.

 

12. The meeting in August 2014, and its effect, is not something that can sound in damages as that was not the repudiatory breach of contract which led to the dismissal; rather that was the breach of contract which meant that the later last straw event amounted to a breach of contract. We wish to therefore make it clear that it is not relevant in our deliberations on the extent of the respondent's liability, to look at the effect of the meeting in August 2014 on the claimant's mental health at that time. Our assessment involves considering the effect of the dismissal on the claimant's mental health so it is a question of causation: to what extent did the dismissal (as opposed to any adverse treatment prior to that) cause the claimant to be ill and thus unfit to work.

 

13. The effect of the meeting of August 2014 is however relevant to our consideration of whether there were several causes of the claimant's incapacity and whether there were concurrent causes of his continuing incapacity.

 

14. For ease of calculation we have decided to reduce the period for wage loss rather than to reduce compensation by a percentage. We take as our starting point the phased return period outlined by Dr Loughrey, that is, nine months from the date of the remedies hearing with a full return to work as a baker likely in 12 months.

 

15. The following factors are relevant to our decision to discount that period both in line with the apportionment principle and to arrive at just and equitable compensation.

 

(1) The causes of the claimant's mental health issues are multifactorial as set out in the medical evidence and his mental health difficulties are longstanding.

 

(2) Dr Loughrey did not have a copy of our decision at the time he examined the claimant and provided his medical report. In the remedies hearing, when Dr Loughrey was apprised of the reasons for our decision, he agreed that the causes of the claimant's incapacity are multifactorial and complex. His firm prognosis and diagnosis related to the claimant's current incapacity and the length of time he will remain incapacitated. The exercise that we must engage in is different to that engaged in by Dr Loughrey. There is no dispute the claimant has been, and is, incapacitated and the period of likely future incapacity is not in dispute. What is in issue is the extent to which the respondent should be liable to compensate him for the full extent of his medical incapacity from the date of dismissal.

(3) It was clear from the claimant's evidence to us in the remedies hearing, and from his discussions with Dr Loughrey, that a major issue for the claimant in going forward is his strongly held belief that he was victimised by the respondent because he took a personal injury claim and was, essentially, "hounded" out of his job because of that. We specifically rejected that as part of his claim on liability and held in his favour on entirely different grounds. It is therefore, our finding that this is one of the major issues underlying the claimant's mental health problems and, as it relates to a matter which we have found did not occur, the respondent's liability to pay compensation should be reduced accordingly. That element of his continuing mental health issues is not therefore something for which the respondent can be held liable no matter how sincerely the claimant may hold that view.

 

(4) The claimant has a fear that the respondent will tarnish his reputation about his competence as a baker. We decline to take this into account given our findings on the deficiencies in the claimant's competence. The claimant's claim to us essentially was that, following his accident at work, Mr Davis started to raise spurious issues about his competence and performance. As set out in our decision on liability, we rejected that claim and we found that there were legitimate reasons to raise issues about his performance as a baker given the deficiencies admitted by the claimant. In these circumstances we have no evidence that Mr Davis would spread any baseless stories about the claimant. It is for the claimant to decide what type of work he wants to return to and if for any reason unrelated to his dismissal by the respondent it is more difficult to find work as a baker, it is not just and equitable for us to increase the loss of wage award to take account of that.

 

(5) It is clear from the medical evidence that, when the claimant attended with an Occupational Psychologist in 2013 (for reasons unrelated to the events in this claim) he was considering leaving the bakery trade and obtaining other work. In evidence to us the claimant said that at the time of that report he was so unhappy with the respondent he wanted to leave and would have considered any job. It was his evidence to us that the Psychologist suggested the jobs of Care Assistant and Hospital Porter. It appears that Care Assistant would require training and that the claimant with his dyslexia would be unlikely to be acceptable for that type of work. The claimant was clear to us that he wants to return to the bakery trade.

 

(6) It is also clear from the medical notes that the tribunal process has been one of the more recent stressors for the claimant. Now that the claim has gone in his favour and the remedy hearing has finalised, that stressor will disappear.

 

(7) The remedy hearing had to be split from the liability hearing because the claimant's side attended the hearing without the relevant medical notes and records and/or medical evidence to deal with the effect of the medical incapacity on the future loss calculation. It was therefore the claimant's side's fault that the remedy hearing had to be listed at a later stage and this, in turn, led to the four-month gap between the remedy hearing and the liability hearing. The calculation of loss between the date of dismissal and the hearing was therefore extended by four months due to the actions of the claimant's side and we have decided that it is just and equitable to take account of that in relation to assessing the length of time for future loss.

 

(8) There was a further delay in issuing the decision due to the necessity of obtaining documentary proof of the benefits received by the claimant. This should have been provided for the remedies hearing but was not provided until 6 June 2016. This delay was the claimant's side's fault and that delay should not operate to extend the period for wages loss.

 

16. The claimant claimed one year's future loss. Taking account of the factors set out above, we have decided that it is just and equitable to award loss of wage for three months from the date of the remedies hearing, that is, to 19 July 2016. This also takes account of the fact that we do not hold the respondent liable for all of the claimant's incapacity from the date of dismissal. We have ignored the DLA received on the basis that it is received on top of earnings.

 

 

 

 

17. CALCULATION

 

Holiday Pay: Due: £ 1,664.50

Received: £ 1,286.43

Balance: £ 378.17

Unfair Dismissal

Gross Weekly Wage: £270.40

Net Weekly Wage: £232.00

Net Daily Rate: £58.00

ESA rate: £102.15

 

Age at date of dismissal: 52

Commencement date: 11 December 2011

Date of dismissal (EDT): 20 March 2015

Date of Hearing: 19 April 2016

Basic Award

3 full years x 1 ½ = 4.5 @ £270.40 £ 1,216.80

 

Compensatory Award :

- Loss of Statutory Rights £ 500.00

- Loss of Earnings

 

from EDT 20 March 2015 to 19 April 2016

56 weeks @ £232.00: £12,992.00

 

from date of hearing; 19 April to 19 July 2016

13 weeks x £232.00: £ 3,016.00

 

Less ESA: 13 x 102.15: £ 1,327.95

 

Net loss: £ 1,688.05

 

Total Compensatory Award : £15,180.05

 

Summary

 

Basic Award: £ 1,216.80

 

Compensatory Award: £15,180.05

TOTAL: £16,396.85

Statement for Recoupment

A.    Compensatory award: £15,180.05

B.    Prescribed element i.e. loss of wage relating

to the period between the EDT 20 March 2015

and the date of hearing 19 April 2016: £12,992.00

A-B= £ 2,188.05

The Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations 1996, as amended, apply to this decision. Your attention is drawn to the attached Recoupment Notice, which forms part of this decision.

 

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

 

 

 

Employment Judge:

 

Date and place of hearing: 19 April 2016 at Belfast.

 

Date decision recorded in register and issued to parties: