Worthingtons Commercial Solicitors in Belfast have agreed to write an email every two months exclusively for Legal-Island email subscribers. These emails cover what, in the opinion of the writers, are the recent Northern Ireland employment cases that will most interest employment law practitioners.

This email focuses on a single case, which included automatic unfair dismissal and a maximum compensatory award and should act as a reminder for all employers to keep records if they wish to be in a position to refute an employee's allegations.

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Richard Vance v Charles Hurst Ltd Case Ref 1501/10

Automatically unfair dismissal by reason of taking parental leave attracts statutory maximum compensatory award.

The Tribunal found that the Claimant was entitled to the statutory maximum compensation from the Respondent in respect of this unfair dismissal claim, £65,300.00, unanimously concluding that the real reason that a redundancy process was commenced with the claimant was because he had taken parental leave in Christmas 2009 and had stated his intention to take further leave, rendering the dismissal automatically unfair.

The Claimant’s loss of earnings to the date of hearing was £30,908.90 and given that the Claimant had made efforts to mitigate his loss and was still endeavouring to do so, the Tribunal awarded future loss of earnings for a further 12 months in the sum of £38,420.99. The total compensatory loss was £69,329.80 and the Claimant was awarded the statutory maximum award available from 7 March 2010, £65,300.00.

The Claimant had worked for the Respondent since leaving school and at the date of his dismissal on 8 March 2010 he had almost 20 years' service and was at that time employed as centre manager for the Lexus Showroom in the respondent’s Boucher Road, Belfast, site.

It was accepted that the respondent was suffering financial difficulties because of market conditions and that the Lexus franchise was making substantial losses in the period from 2008 to the claimant’s dismissal and beyond. Understandably the claimant had sought reassurance from his manager, Mr Haining, this would not affect his position. He obtained those reassurances.

In December 2009, during the period when Lexus was making substantial losses, the claimant asked Mr Haining for parental leave. He wished to spend some time with his young family and sought two weeks leave over the Christmas period. Mr Haining asked for documents to support the request, including birth certificates for the children. The claimant provided these documents to HR and took the leave. Nothing was said to him at the time.

In and around January 2010 this situation apparently could no longer be maintained and the respondent decided that the claimant’s position must be made redundant. The tribunal concluded that the reason for the redundancy situation was the claimant’s availing of parental leave for the following reasons:

(a) The tribunal heard no evidence as to what, if anything, triggered the need for the redundancy process to commence in mid-January 2010.

(b) Although this decision was taken in mid-January 2010 the claimant was not informed of being at risk until 15 February 2010 and there then followed a process which Mr Haining had anticipated could be completed within two weeks, although in fact it took slightly longer.

(c) The meeting of 15 February 2010 at which the claimant was told his position was at risk immediately followed the accounts review meeting on 10 February 2010 where Mr Haining made comments about stopping parental or paternity leave.

(d) Mr Haining made no secret of his disappointment and disapproval of those who would take leave around the busiest times of the car business’ year and those who would take leave in a business which was under-performing, as clearly the Lexus franchise was.

(e) From an audio tape of the meeting of 19 February 2010 and the comments made by Mr Haining it was the tribunal’s conclusion that Mr Haining’s mind was made up at that point. He told the claimant that it was 99.9% certain his redundancy would go through, told the claimant that no alternatives to that redundancy had been considered, and went on to tell the claimant ‘welcome to the new world’ and that he would lose no sleep over his decision. When the claimant sought to open up discussion on alternatives, Mr Haining changed the subject.

(f) The claimant was keen to continue his discussions with Mr Haining with whom he perceived he had a good relationship. Mr Haining, however, was keen to push this process through as quickly as possible and in his absence arranged for Ms Senescal to come across from England to conduct a further consultation meeting.

(g) Mr Haining told the claimant he had not discussed the matter with anyone else. In fact, he had already discussed it with a Mr Devitt seeking to bring Lexus back under Mr Devitt’s control.

(h) There was no explanation for the delay in telling the claimant that his position was at risk and no documents appeared to exist to identify the respondent’s reasoning. Having apparently delayed the commencement of the redundancy process for a month he then would not allow the claimant to make any delays in the process.

(i) The claimant was excluded from the discussions held by Mr Haining with managers about the new wages structure.

(j) On appeal no serious attempt was made to investigate the claimant’s concerns regarding parental leave.

(k) The claimant was placed in a selection pool of one. No consideration was given to, at the very least, extending the pool to the Toyota franchise which already had a shared existence with the Lexus franchise and operated with a shared service and parts managers. Effectively the proposals for re-organisation would place Lexus back under the control of the Toyota general manager.

(l) There was a consistent feature of this case, which was the lack of records and notes kept by the respondent.

Full case decision on the OITFET website:
http://forms.employmenttribunalsni.co.uk/OITFET_IWS/DecisionSearch.aspx

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The main content of this email was provided by Louise McAloon of Worthingtons Commercial Solicitors in Belfast. Louise works exclusively in employment law and should anyone have any queries she may be contacted on 028 90 434015. Website:
http://bit.ly/9NE0Ia

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RELATED EVENTS

Louise's colleague, Maxine Orr, will be speaking at this year's Equality Law in Northern Ireland Update 2011 on 6 October:
http://bit.ly/ndq8YY

Other speakers:

* Dr Tony McGleenan BL
* Beverley Jones, Partner, Jones Cassidy Jones
* Rosemary Connolly, Principal, Rosemary Connolly Solicitors
* Gareth Walls, Partner, A&L Goodbody
* Carol Mc Clean, Solicitor Consultant, Directorate of Legal Services, Business Services
* Barry Fitzpatrick, Deputy Director, NICEM

Maxine will also be speaking at the 2011 Annual Review of Employment Law on 8 and 23 November:
http://bit.ly/pXqAjC

Other speakers - too numerous to mention!

Go online now for full programme and speaker details.

Legal-Island
9 August 2011

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