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 telescopic forklift driver from November 2021 until December 2022. On 9th December 2022, the claimant was informed verbally by his manager that his position was ending and it would finish at 5pm that day. For the days after this dismissal any remaining work on site was completed by another employee temporarily brought in on general duties and no replacement telescopic forklift driver was engaged.
An advisor of the claimant wrote to the respondent on 19th December raising grievances about the failure to follow process as well as the failure to provide holiday entitlement and a written statement of conditions. A meeting took place between the claimant and respondent following this in which the claimant was advised that no further payment was due to him and the only other alternative work was as a general labourer which the claimant was not interested in. The Tribunal found this to be a reasonable response.
The claimant brought a claim for unfair dismissal.
Outcome:
The Tribunal, unsurprisingly, found that the dismissal was automatically unfair. This was on the basis that the statutory dismissal procedure was not carried out. This failing was wholly attributable to the failure of the respondent.
The Tribunal went on to consider if the claimant would have been fairly dismissed had the correct process been carried out. The Tribunal accepted that there was a redundancy situation as a result of the diminishing need for employees to carry out telescopic fork lift duties. That would have been a prima facie fair reason for dismissal and even with a consultation and proper process the claimant would have been fairly dismissed had that been the case. As a result, the Tribunal awarded a basic award of £2,200 but did not grant any compensatory award due to the likelihood that the dismissal would be fair had the proper procedure been carried out.
Further payments were made for one day outstanding holiday pay and two week’s pay for the failure to provide a written statement of employment particulars.
Practical Guidance for Employers:
Considering the non-compliance with the statutory processes, the respondent has got off lightly in this situation. The fact that the Tribunal examined the process and found that the claimant would have been dismissed in any event significantly reduced the award due. That should not be a reason for employers to neglect the statutory processes but actually demonstrates the need to ensure compliance and foresight in making these decisions. If that approach had been taken it would have avoided the stress and cost, in terms of time, of having to go to the Tribunal.
NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/
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