The respondent, Nortel Networks UK Ltd entered into administration by order of the English High Court on 14 January 2009. The administrators originally refused to grant permission in respect of the pursuit of any employees’ claims but employees were subsequently given approval to pursue any claims.

This claimant was one of the Northern Ireland employees of Nortel who were dismissed, ostensibly on the ground of redundancy, in March 2009. The claim was not contested and the tribunal had to decide the amount of any compensation. The tribunal extensively considered the principle emanating from Polkey v AE Dayton Services Ltd [1987] UKHL 8 that a compensatory award may be reduced if a respondent can demonstrate that the employee would have been dismissed anyway. Since this claim was not contested the tribunal was not in possession of a proper foundation for any reduction of the amount of the compensatory award, on account of any possibility that, even if the claimant had not been unfairly dismissed

The most favourable aspect of the judgment by the tribunal was the uplifting of the award pursuant to Article 17 of the Employment (Northern Ireland) Order 2003. In echoing the judgment of the English Court of Appeal in Wardle v Credit Agricole Corporate and Investment Bank [2011] IRLR 604 (based on the analogous English provisions), the tribunal allowed itself to increase the award by 45%. The tribunal made various references to the fact that such a large organisation would have been aware of the need to comply with the statutory provisions.

Practical lessons

The fact that this claim was uncontested for financial reasons makes for an untypical judgment, but what is clear is that the tribunal did not feel constrained by the Wardle decision in making a large uplift in the award. The chairman indicated that Wardle appeared to insinuate that an uplift should not exceed £7,500 but noted that the actual uplift in that case was significantly higher. The ultimate uplift in this case was £19,547. Reference was made to the proportionality of any uplift, but what is clear is that an employer does not comply with a statutory procedure may well be liable for an uplift of up to 50%.