Industrial Tribunals Northern Ireland Decisions

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Leyden v Martin O'Neill t/a Magennis's Bar [2007] NIIT 116_04 (5 March 2007)
URL: http://www.bailii.org/nie/cases/NIIT/2007/116_04.html
Cite as: [2007] NIIT 116_4, [2007] NIIT 116_04

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THE INDUSTRIAL TRIBUNALS

CASE REF: 116/04

CLAIMANT: Patrick Leyden

RESPONDENT: Martin O’Neill t/a Magennis’s Bar

DECISION

The unanimous decision of the tribunal is that the respondent to pay to the claimant the sum of £7,820.50 in respect of a basic award, notice pay and outstanding wages as set out below.

Constitution of Tribunal:

Chairman: Mr Davey

Members: Ms A Hamilton

Mr M Grant

Appearances:

The claimant was represented by Mr J Bowers, of Belfast Unemployed Resource Centre.

There was no appearance by or on behalf of the respondent.

Reasons

1. The matter had come before the tribunal previously but had not been finally disposed of. There had been no appearance by the respondent then. In the circumstances the tribunal considered it appropriate to deal with the matter in the respondent’s absence taking into account the response and the statements contained therein.

2. The claimant’s evidence to the tribunal, which the tribunal accepted, was that he had been a barman for some 30 years. He had worked in the Blackthorn Bar which then had been taken over by Mr Mark Byrne, the owner of Magennis’s Bar. At that stage Mr Byrne moved him to Magennis’s Bar to work. After he had been there for approximately a year he had fallen sick and was hospitalised. Before he returned to work he had a heart attack. It had been the practice during his employment that if he was off sick he, like another employee, was paid full pay during sickness. When he was sick in October 2003, Mr Byrne honoured this arrangement and continued to pay him full pay until 16 November 2003. At that point Magennis’s Bar was taken over by Mr Martin O’Neill. The claimant received from Mr Byrne a P45 with his payslip which included his full pay. He went to Magennis’s Bar and asked the manager what the reason for the P45 was the manager informed him that Mr O’Neill was disputing his entitlement to full pay while sick. However Mr O’Neill did pay him statutory sick pay at that time and continued to do so thereafter. It was indicated to him by the manager that if he brought his contract of employment showing that he was entitled to full pay the matter might be different. He had no written contract of employment at any time. He sought advice and delivered a letter concerning the pay issue to Mr O’Neill. He was told that this was a threatening letter and that he should leave the bar. He followed this up with a further letter seeking an appeal as it was his view that he had been dismissed. There was no reply to this letter. Payment of statutory sick pay continued until six months had elapsed. At that point the claimant received a letter from Mr O’Neill saying that that was the end of the statutory sick pay period and that there would be no further money at all. The claimant’s sickness continued. During 2005 the bar closed.

3. The tribunal considered whether there had been a dismissal on the first occasion that the claimant had attended Magennis’s Bar after his sickness. It concluded that there had not. The possibility of paying full pay had been left open and Mr O’Neill had continued to pay statutory sick pay. However the tribunal considered that Mr O’Neill’s behaviour at that time coupled with the letter indicating that there would be no further money at the conclusion of the statutory sick pay period amounted to a dismissal at that time. That dismissal was unfair in that there had been no discussion, no investigation of the claimant’s health and no question of appeal. Accordingly the claimant is entitled to a basic award.

4. The claimant was given no notice. As he was still “on the sick” the provisions of Article 122 of the Employment Rights (Northern Ireland) Order 1992 are engaged and he was entitled to notice pay. As his period of employment with Mr O’Neill and his previous employers was in excess of 20 years he was entitled to 12 weeks notice.

5. The tribunal is satisfied that there was a term implied by custom and practice in the claimant’s contract that he would be paid properly during sickness and not merely paid statutory sick pay. This had happened with at least one other employee and the wages slips produced by the claimant established that it was being done during this particular period of sickness. In the tribunal’s view any period for payment at a rate above statutory sick pay had to be reasonable. In the tribunal’s view a reasonable period would have been that he would be paid 13 weeks at full pay and a further 13 weeks at half pay. Mr Byrne had already paid him four weeks at full pay, so as from the time Mr O’Neill took over he would have been entitled to a further nine weeks at full pay and a further 13 weeks at half pay.

6. The claimant was born on 5 December 1955. He was dismissed at the conclusion of the statutory sick pay period of six months, namely on 19 April 2004 accordingly he had eight years service when he was above the age of 41 and a further 12 years service when he was between 22 and 41 years old. His gross weekly wage at the relevant time was £260.00 or £191.00 net. He is accordingly entitled to a basic award calculated as follows, namely:-

8 x 1 ½ x £260.00 + 12 x £260.00 making £6,240.00

7. The claimant, as set out above, is entitled to 12 weeks notice pay given his length of service at his net weekly rate, namely:-

12 x £191 making £2,292.00

8. The claimant is also entitled to full and half pay during his period of sickness. During that time credit must be given for the statutory sick pay paid. Accordingly the claimant is entitled to unpaid wages as follows:-

9 weeks at £191.00 + 13 weeks at £95.50 = £1,719.00 +

£1,241.50

£2,960.50

Less 22 weeks at £76 per week = £1,672.00

Total £1,288.50

9. The total amount due amounts therefore to:- £6,240.00

£2,292.00

£1,288.50

Total £9,820.50

The respondent has already paid the sum of £2,000.00, leaving a balance outstanding of £7,820.50.

10. The claimant claimed outstanding holiday pay and loss of pension rights but no evidence was given to the tribunal concerning these matters and accordingly these claims are dismissed. The claimant also claimed that he had not been given written reasons for dismissal. However, he had made no written request for such reasons and accordingly that claim is dismissed also. The claimant was not fit to work at any time following his sickness prior to the bar closing so no question of any further compensatory award arises.

11. Recoupment

No question of recoupment arises.

12. Interest

This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 21 December 2006, Belfast

Date decision recorded in register and issued to parties: