Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
Claimant found to have been unfairly dismissed as the respondent did not engage in the proceedings and could not show that there was a fair reason for dismissal.
The claimant commenced employment in November 2009. During the claimant’s employment the respondent had been taken over twice. The claimant was suspended in September 2024 with pay but the claimant did not receive his pay. The claimant was informed that a disciplinary hearing would be convened relating to his misuse of a company fuel card, improper use of a company vehicle and failure to carry out his duties with competence.
The claimant attended the disciplinary hearing, but was denied representation. The claimant was subsequently dismissed and did not receive notice pay. The claimant sought to appeal but no appeal hearing was ever convened.
The respondent did not attend the hearing or take part in the proceedings.
The Tribunal outlined that the burden of proving a dismissal is fair is on the respondent. As the respondent did not attend the hearing the Tribunal could not conclude that the dismissal was fair and within the band of reasonable responses. As a result, it was found that the dismissal was automatically unfair due to the fact the claimant was not allowed a representative and no appeal was afforded to the claimant. A 30% uplift was allowed in this respect. Additionally, the Tribunal found that there were no particulars of employment ever given to the claimant and that he had not been given his notice pay or pay during the suspension.
Bearing in mind the basic award, compensatory award, unlawful deduction from wages and the uplift this led to a total award of £84,205.20. Grossing up for tax liability over £30,000 was also factored into this compensatory award.
The Tribunal had to find in favour of the claimant here as the burden of proof of proving a dismissal is fair is on the respondent. Therefore, not engaging with the proceedings means that this burden can never be discharged. This case not only demonstrates the importance of having procedures which are in line with the statutory procedure but also ensuring that there is some engagement with the process to either defend the case, settled the case or at least mitigate the award that may be made against the employer.
NI Tribunal decisions are available on the OITFET website.
Continue reading
We help hundreds of people like you understand how the latest changes in employment law impact your business.
Please log in to view the full article.
What you'll get:
- Help understand the ramifications of each important case from NI, GB and Europe
- Ensure your organisation's policies and procedures are fully compliant with NI law
- 24/7 access to all the content in the Legal Island Vault for research case law and HR issues
- Receive free preliminary advice on workplace issues from the employment team
Already a subscriber? Log in now or start a free trial
