Brinks Ireland Ltd v Hines

Factual and Procedural Background

This appeal arises under Article 22 of the Industrial Tribunals (Northern Ireland) Order 1996 and Order 60B Rule 1. The appellant, Company A, challenges a decision of an industrial tribunal dated 30 November 2012, which found that the Respondent, the Claimant before the Tribunal, had been unfairly dismissed and awarded compensation of £51,281.52 plus costs of £4,000.

Company A operates internationally and employs staff in both parts of Ireland. The Claimant was employed by Company A in the Belfast area from November 2000, initially as a cash-in-transit driver and later as a first line maintenance engineer (FLM engineer), mainly servicing ATM machines under a contract with Bank B.

In January 2011, Company A lost the Bank B contract to another entity, Company B. Company A was uncertain whether the Transfer of Undertakings (Protection of Employment) Regulations ("TUPE") applied or whether redundancies would result. Company A believed three FLM engineers, including the Claimant, would be affected.

In March 2011, Company A's General Manager informed the affected engineers of the contract loss and risk of redundancy, indicating only one FLM position would remain after a selection process. The Claimant was informed in mid-March that TUPE applied, that his role was not redundant, and that if he did not transfer to the new contractor, he would not be entitled to redundancy. The Claimant unsuccessfully applied for the remaining FLM post.

Disputes arose over the applicability of TUPE, with Company A maintaining it applied based on legal advice, while Company B and others contended it did not. Despite Company B’s objections, the Claimant was instructed to report to Company B in April 2011 but was told to leave immediately, causing embarrassment and humiliation.

The Claimant subsequently obtained alternative part-time employment and lodged a claim with the Industrial Tribunal in July 2011, naming Company A and Company B as co-respondents. During proceedings, it was accepted that Company B's position on TUPE was correct and that Company A had been mistaken in applying TUPE.

The Tribunal concluded that the Claimant was dismissed based on the erroneous belief that TUPE applied, which did not constitute a potentially fair reason for dismissal. The Tribunal found the dismissal unfair and alternatively automatically unfair due to the absence of any procedural compliance by Company A.

The Claimant claimed an uplift in compensation under article 17(3) of the Employment (Northern Ireland) Order 2003 for failure to follow statutory procedures, and the Tribunal awarded the maximum 50% uplift.

Legal Issues Presented

1. Whether the Claimant had been dismissed within the meaning of the Employment Rights (Northern Ireland) Order 1996, and if so, the precise date of dismissal.
2. Whether the dismissal was an express dismissal or a constructive dismissal, and the implications of this distinction for the application of statutory procedures and compensation uplifts.
3. The appropriateness of the Tribunal’s failure to apply a Polkey reduction in compensation for unfair dismissal.
4. The correctness of the Tribunal’s assessment of compensation and the application of statutory uplifts under article 17(3) of the Employment (Northern Ireland) Order 2003.

Arguments of the Parties

Appellant's Arguments

• The Tribunal erred in finding a dismissal had occurred on 15 April 2011; the actual dismissal was a repudiatory breach by Company A occurring on 18 April 2011.
• The situation was one of constructive dismissal, which arises by operation of law and does not engage the statutory procedures that would trigger a compensation uplift.
• The Tribunal failed to properly consider whether the dismissal was potentially fair on grounds of redundancy and did not assess the likelihood or duration of any consultation period, thus misapplying principles from Software 2000 Limited v Andrews.
• The Tribunal’s compensation assessment was flawed, as it engaged in speculation without evidence regarding redundancy and consultation periods.

Respondent's Arguments

• The dismissal was accepted by Company A and was correctly treated by the Tribunal as an actual dismissal, not constructive dismissal.
• The statutory uplift under article 17(3) was properly applied since Company A failed to follow any statutory procedure.
• According to Software 2000 Limited, the burden is on the employer to provide evidence if it contends the employee would have been dismissed anyway; no such evidence was provided by Company A.
• The Tribunal’s decision to apply the maximum 50% uplift was neither perverse nor irrational given the procedural failures.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Software 2000 Limited v Andrews [2007] IRLR 568	Employer bears burden of adducing evidence if claiming employee would have ceased employment anyway; Tribunal may reject unreliable evidence.	The court relied on this precedent to affirm that without reliable evidence from Company A, no Polkey reduction could be applied to compensation.

Court's Reasoning and Analysis

The court acknowledged that dismissal may occur either by express termination or by constructive dismissal (repudiation by the employer). The distinction affects whether statutory procedures for dismissal apply, influencing compensation uplifts.

The Tribunal had proceeded on the assumption of an express dismissal on 15 April 2011 without detailed analysis of the nature or timing of dismissal. The appellant's argument that dismissal was constructive and occurred on 18 April 2011, while the respondent contended it was an express dismissal, was not resolved by the Tribunal.

The court remitted the issue back to the Tribunal to clarify the nature and date of dismissal with appropriate submissions or evidence, and to explain any decision regarding statutory uplifts.

Regarding compensation, the court held that the Tribunal correctly rejected any Polkey reduction because Company A failed to provide reliable evidence that the Claimant would have been dismissed anyway, consistent with Software 2000 Limited v Andrews.

Holding and Implications

The court REMITTED the matter to the Tribunal for further consideration of the precise nature and date of dismissal and the appropriateness of any statutory uplift in compensation. The Tribunal is directed to clearly state its reasons for any decision on these issues.

The direct effect is that the Tribunal must revisit and clarify its findings on dismissal and compensation uplift with additional evidence or submissions. No new precedent was established by this decision.