Pragmatic approach adopted by NI Tribunal in considering Culpability Uplift

31 March 2015

In the recent case of Kathleen Doherty v Castle Hotels N.I. Ltd (CASE REF: 1093/13) the Office of Industrial Tribunal and Fair Employment Tribunal for Northern Ireland considered the law relating to unfair dismissal, and of particular interest to employers also considered the appropriate uplift to be applied where the employer/respondent has failed to comply with the Statutory Dismissal Procedures (also referred to as the "Culpability Uplift").

In the subject case the Claimant was an employee of the Respondent and on 6th March 2013 she received correspondence stating that due to the economic downturn in the hotel industry she 'could not be maintained in her current role in the company'. Believing herself to have been unfairly dismissed the claimant contacted the respondent in an attempt to recover unpaid wages and notice pay, which was denied. Within a very short period the Hotel ceased to operate as a going concern, however the respondent continued in existence. The claimant presented a claim  for  unfair dismissal, arrears of pay, holiday pay, notice pay and breach of contract against the respondent. The Tribunal found that the respondent had failed to comply in any way with the statutory dismissal procedure when it dismissed the claimant for redundancy without notice, and accordingly found the dismissal to be automatically unfair.

The tribunal recognised that the 'culpability' in failing to employ the statutory procedures was of primary importance. Authorities quoted by the Tribunal noted that ordinarily uplifts of 40-50% were made against employers who had failed to comply with the statutory dismissal procedures. In this instance the Tribunal took cognisance of the financial reality of the respondent's situation, and given the fact the Hotel ceased to operate as a going concern by on or about 10 April 2013, the tribunal limited the uplift to 10% in the circumstances.

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