Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2004/4594_03.html
Cite as: [2004] NIIT 4594_3, [2004] NIIT 4594_03

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THE INDUSTRIAL TRIBUNALS

CASE REF: 4594/03

APPLICANT: Mary Josephine Newman

RESPONDENT: Mrs Maura McCay (Proprietor), T/A Curtains & Covers

DECISION

The unanimous decision of the tribunal is that the application be dismissed.

Appearances:

The applicant was represented by Mr A Caher, of Campbell & Caher, Solicitors.

The respondent was represented by Mr M Wolfe, Barrister at Law, instructed by Holmes & Moffitt, Solicitors.

Summary Reasons

It was agreed between the parties that the tribunal should deal, by way of preliminary, with the issue as to whether the contract of employment in the case was tainted with illegality to such an extent as to deprive the tribunal of jurisdiction.

The respondent's evidence was that the applicant approached her for part-time work. She knew that the applicant had relevant experience in a business similar to that of the respondent, known as Libby's, and she interviewed her with a view to recruiting her. When pay came to be discussed a wage was agreed but the applicant made a condition that she should be paid in cash and net. The respondent found this unusual but as the applicant's hours were comparatively short the amount involved was below the PAYE threshold. The arrangement was adhered to and any time in the early stages that any National Insurance contribution was payable on behalf of the applicant, the respondent paid it. This amounted to a matter of pennies only in the first year of employment. As time went on the respondent asked the applicant to extend her hours. The applicant agreed to do so at the rate of £6.00 per hour but again indicated that for the 30 hours she was now going to work she expected to receive £180.00 in her hand in cash. The respondent was not happy but agreed to make this payment, making clear that £90.00 would be put through the books and that the remaining £90.00 would be undeclared. According to the respondent the applicant did occasionally receive a cheque as part of her wages and that her other staff, including her sister and her daughter, were usually paid by cheque.

According to the applicant she approached the respondent for work. She had worked previously in different jobs in the Public Sector where she was paid by a cheque and with pay-slips. She had subsequently trained at Libby's. She then approached the respondent for work, pay was discussed and a rate per hour agreed with which she was happy. There was no discussion as to the means of payment. The respondent said that she would take care of her stamp etc. She did not insist on being paid in cash as she had not been paid in cash by the previous business with which she had trained. That was the applicant's initial evidence but she then stated that between finishing training and taking up employment with the respondent she attended at Libby's, perhaps covering the shop or watching her former employer at different times and that it might be that she was carrying out duties in her shop. The applicant stated during her employment with the respondent that she was paid in cash on Friday afternoons. Later in her employment she was asked to increase her hours.

At no time did the applicant receive any contract of employment nor did she receive any pay-slips, the only discussion about tax and National Insurance had been at the time of original recruitment. They had been no talk about it after that and she assumed that the respondent was doing right by her and with the tax people.

There was some support for the respondent's evidence that the applicant had asked to be paid in cash from the fact, supported by the books, that the applicant was the only person who was consistently paid in cash and that the usual way with other staff was to pay by cheque. The respondent also gave evidence that the applicant requested she should be paid cash net as she had been in her previous employment. The applicant denied this on the basis that she had not been paid in her previous employment. The tribunal found the applicant's evidence as to her activities with her previous employer to be unconvincing. Given the applicant's previous experience of working where she was paid by cheque and with proper pay-slips, the tribunal found unconvincing the applicant's denial of any suspicion or concern about the fact that she was paid in cash without any kind of record or statement of deductions. The tribunal also considered that it would be unusual for negotiations about pay to be finalised on the basis of a net rate per hour. Having considered all the evidence the tribunal considers that of the respondent to be more convincing and finds that the applicant was complicit in what was accepted to be a clear illegality and that, accordingly, her claim must fail.

Chairman:

Date and place of hearing: 20 May 2004, Belfast

Date decision recorded in register and issued to parties: