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.
Background:
The claimant was employed as a Travel Consultant from October 2017 until termination in September 2020. There was never any written statement of particulars. As a result of the pandemic, the claimant was placed on furlough leave. On 1st September 2020, the director of the respondent company telephoned the claimant informing her that she was being made redundant. The claimant was given three weeks’ notice. There was no written communication of the dismissal, no proposals for redundancy selection or invitation to a meeting. The other Travel Consultant was retained by the respondent.
The claimant did receive a redundancy payment of £1030.50 from the respondent. A claim was presented for unfair dismissal.
Outcome:
The Tribunal found that the statutory dismissal procedures were not carried out. The decision to dismiss by way of phone call meant that there was a failure to comply with Step 1 of the statutory procedure and there was also a failure to offer an appeal, which falls under Step 3. The Tribunal did consider whether the claimant would have been dismissed if the procedures had been followed. The Tribunal found that there was a redundancy situation in which one of the Travel Consultants was to be made redundant. As there were two Travel Consultants, it was found that there was a 50% chance that the claimant would have been fairly dismissed had the process been carried out properly.
As for remedy, there was no basic award due to the redundancy payment already received. A compensatory award was made of £4,446.20 but this was reduced by 50% by way of Polkey Deduction before being uplifted by 10% due to the failure to follow statutory procedures. An award of £458 was also made as a result of the failure to provide a written statement of particulars.
Practical Guidance for Employers:
Yet again this case demonstrates the importance of following the statutory procedures in disciplinary/dismissal situations. The pandemic did not allow for any special system or for employers to avoid the statutory processes. As a result, this was a clear case of automatic unfair dismissal. The award was limited by virtue of the Polkey Deduction yet employers could avoid this completely by ensuring that the right processes are put in place.
NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/
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