Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 1252/05

CLAIMANT: Edward Harper

RESPONDENTS: 1. Gerard O'Hare

2. CDI Security Limited

DECISION

The decision of the tribunal is that the second named respondent unfairly dismissed the claimant. The second named respondent is ordered to pay to the claimant the sum of £2,127.80. The first named respondent is dismissed from the proceedings, as he was not the employer of the claimant within the meaning of Article 2 of the Employment Rights (Northern Ireland) Order 1996.

Constitution of Tribunal:

Chairman: Ms Sheehan

Members: Mr Young

Ms May

Appearances:

CLAIMANT: The claimant appeared in person.

RESPONDENT: The second named respondent was represented by the first named respondent, the Managing Director of the second named respondent company.

1. The claimant lodged a complaint on the 5 September 2005 with the Office of Industrial Tribunals and Fair Employment Tribunal stating he had been unfairly dismissed from his employment on 31 August 2005 as a security officer. The first named respondent contended that the second named respondent was the employer of the claimant prior to the dismissal. The second named respondent claimed in their Notice of Appearance that on 12 August 2005 they advised the claimant they had lost the contract for the provision of security services at the location where the claimant was mainly based. The second named respondent contended that the claimant was not dismissed by it. The second named respondent contended that another company, namely Northsec Security Services Limited dismissed the claimant having obtained the contract for provision of security services with Newry and Mourne Health & Social Services Trust (hereinafter referred to as the Trust). This contract followed from a public tender process.

Sources of Evidence

2. The tribunal received a bundle of documents, which were identified as "R1". The tribunal heard evidence from the claimant and Gerard O'Hare.

Issues

3. The issue for the tribunal to determine was (a) was there a dismissal of the claimant and if so, by whom and (b) whether the respondent's decision to terminate the claimant's employment at that time was "fair" within the provisions of Article 130 (4) of the Employment Rights (Northern Ireland) Order 1996. The fairness of the termination of employment was to be determined on the basis of whether it was a decision that fell within the "band of reasonable responses" having applied that test to the circumstances of this case and the procedure used by the employer in reaching the decision to dismiss.

The Facts

4. Having analysed the evidence before it insofar as same is relevant to the issues set out above, the tribunal came to the following findings of fact:-
5. The claimant was employed as a security officer for 21 hours a week, by the second named respondent from March 1996 until on the 4 September 2005 he received his P45 dated 1 September 2005 in the post from the second named respondent. Throughout his employment with the second named respondent the claimant had a written statement of terms and conditions of employment, which included a condition regarding flexibility by employees concerning allocation of sites for which the second named respondent had contractual responsibility. In his years with the second named respondent the claimant worked at three different sites, but from June 2004 he had been based at the Daisy Hill site. The claimant's nett weekly pay was agreed by the parties at £148.00, but on the hourly rate stated in evidence as £4.59 an hour for 21 hours, it did not appear possible for that agreed figure to be accurate.
6. The second named respondent company produced documents regarding a tender process for the provision of security at a number of locations the property of the Trust (hereinafter referred to as the Contract). The Contract was to cover the period 1 April 2005 to 31 March 2008. The tender documentation appeared to have been signed on the 15 February 2005 on behalf of the second named respondent. The tender covered the provision of security services to a number of locations by mobile patrols and two manned/static security one at the Accident and Emergency based at Daisy Hill Hospital and another location known as the Dromalane Complex. There was no indication on the tender documents produced at hearing that the Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE) applied to the Contract.
7. The second named respondent had won the tender for a similar security contract for the preceding three-year period ending on the 31 March 2005. It was not clear to the tribunal why the tender process did not lead to the appointment of the successful tender on or before 1 April 2005, but as a result of the failure to appoint from the tendering process by the 1 April 2005, the second named respondent was requested by the Trust to continue the provision of security at a number of sites on a month to month basis. The second named respondent agreed to do so.
8. By June 2005, the second named respondent knew that it had been unsuccessful in obtaining the Contract arising from the February 2005 tender submitted. A company named Northsec Security Services Limited was the successful tender. At that time in June 2005, the second named respondent was advised by the Trust that 31 August 2005 would be the last day that their services for the provision of security would be required. The second named respondent at that stage did not notify their employees situated at the sites affected of any likely changes in their employment status.
9. It is clear from the work diary for the managing director of the second named respondent, Gerard O'Hare, produced to the tribunal at hearing that there are entries regarding personnel from Northsec on each of the first three days of August 2005. The tribunal accepted the evidence of Mr O'Hare that on 2 August 2005, he contacted Northsec Security Services Ltd by telephone. Mr O'Hare spoke to a Gary Vennard of Northsec. Mr O'Hare believed there were employees of his company employed in the provision of security on the sites affected by the Contract who should be transferred to the employment of Northsec under the Transfer of Undertakings (Protection of Employment) Regulations 1981, as amended. Northsec did not agree with the second named respondent that a "transfer" within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations 1981 was to occur on the 1 September 2005. Mr O'Hare didn't contact the Trust to advise of this differing view of the employment status of those persons currently providing security services at the various Contract locations.
10. While the second named respondent stated in their notice of appearance lodged with the Office of Industrial Tribunals in November 2006, that Mr O'Hare had on the 12 August 2005 "specifically spoke with the claimant at his office on that date to advise him that the second named respondent had not been successful in being awarded the security contract with the Health Trust. At hearing Mr O'Hare accepted that this was incorrect. The claimant had been on holiday at that date. It was clear that while the claimant was on holiday, the second named respondent continued to provide security at the Daisy Hill location. It was also clear from diary entries in August 2005 that employees of the second named respondent were moved around sites.
11. The tribunal heard conflicting evidence on when and how the claimant was advised of the termination of the involvement of the second named respondent for the provision of security at the Daisy Hill site as well as a number of other sites. Having heard both witnesses on this issue the tribunal concluded on the balance of probabilities that while the claimant had heard rumours in June 2005 it was not until his return from holiday in mid August 2005 that he was informed of the situation by his employer, the second named respondent. The claimant returned a telephone message asking him to contact the second named respondent and spoke to a Finbar Rogers, an office employee with the second named respondent.
12. Finbar Rogers advised the claimant that the contract for security at Daisy Hill was coming to an end. The claimant indicated in the conversation with Finbar Rogers that he wished to be placed elsewhere by the second named respondent. Mr Rogers did not advise the claimant that there would be a problem regarding his wish to be relocated but did instruct him to report to Daisy Hill on the 31 August 2005, which was the claimant's first day back to work after his annual leave.
13. On 31 August 2005 the claimant reported to Daisy Hill where he was met by staff from the Trust and Northsec Security Services Ltd who advised him as the second named respondent was no longer contracted to carry out services at the site the claimant was required to leave the premises.
14. On 1 September 2005 the claimant called to the premises of the second named respondent and on the advice of Mr O'Hare obtained an application form for claiming unfair dismissal. The claimant returned to the premises of the second named respondent on the 2 September 2005. At the claimant's request Mr O'Hare by asking a series of questions recorded the claimant's responses in the application form and furnished it to the claimant for signature. The tribunal considered the conflicting evidence from both witnesses as to whether the claimant knew what had been written on the application form. The tribunal concluded whether the claimant read the form before signing it or had the form read to him it was clear that he understood that the application concerned action being taken against Northsec Security Services Ltd, as evidenced by his letter to the Office of Industrial Tribunals and Fair Employment Tribunal received 21 September 2005 requesting the first and second named respondent be joined to these proceedings.
15. The claimant received in the post on 4 September 2005 from the second named respondent his P45. The claimant made a number of unsuccessful attempts to speak to Mr O'Hare.
16. In late September 2005 there appeared to be communications between the second named respondent and Northsec Security Services Limited but no documentation or evidence was place before the tribunal to support the contention of the second named respondent that the site at Daisy Hill was an "undertaking" within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations 1981. There were various communications between the claimant, solicitors instructed on behalf of Northsec Security Services Ltd and the Office of the Industrial Tribunals and Fair Employment Tribunal which culminated in a Case Management Discussion in June 2006 when the claimant insisted that he wished to withdraw proceedings against Northsec Security Services Ltd and proceed solely against the first and second named respondents.
17. There was no evidence produced to assist the tribunal in determining whether "the entity in question retains its identity post August 2005 and that "entity" refers to "an organised grouping of persons and assets facilitating the exercise of an economic activity which pursues a specific objective (Suzen (1997) IRLR 255) or that there was a "stable economic entity whose activity is not limited to performing one specific works contract (Rygaard [1996] IRLR 51).
18. In November 2005 Northsec Security Services Ltd made the claimant an offer of employment. The hourly rate proposed by Northsec was a higher rate than he had been earning with the second named respondent. However the claimant refused the offer, as Northsec Security Services Ltd would not recognise his eight and a half years service with the second named respondent. In October 2005 the claimant commenced work on a part-time basis as a self-employed taxi driver. The claimant's income on his own evidence equalled his earnings while in the employment of the second named respondent.

The Law

19. The tribunal considered the provisions of Article 130 of the Employment Rights (Northern Ireland) 1996. It was clear to the tribunal that the claimant did not resign from his employment with the second named respondent. While the second named respondent contended that the claimant's employment was terminated as a result of a transfer of undertaking between itself and Northsec Security Services Ltd, it failed to bring to the tribunal evidence to support such a contention on a balance of probabilities. It was not in dispute that the service provided by the second named respondent was on a month-to-month basis since the end of their contract on 31 March 2005. Equally the second named respondent did move its employees between sites – employees were not employed to a particular site. Unlike many instances of re-tendering, there appeared to be no mention in the tender documentation that TUPE would apply. The existence of a transfer within the meaning of TUPE was clearly an issue between the parties and always appeared to be disputed by Northsec Security Services Ltd, as evidenced by the appearance submitted on their behalf on 28 September 2005. Accordingly the tribunal concluded that the action of the second named respondent in forwarding to the claimant by post his P45 was an act notifying the claimant that his employment with them was terminated with immediate effect.
20. The tribunal considered the date of effective termination of the claimant's employment, which fell to be determined by the tribunal, as either party to the tribunal did not produce the P45. As the second named respondent gave no notice of termination, the date of termination is governed by Article 129 of the Employment Rights (Northern Ireland) Order 1996, which is the date the "termination takes effect".
21. The date on which an employee receives his P45 from his employers has nothing whatsoever to do with the date on which employment terminates - London Borough of Newham v Ward [1985] IRLR 509. The effective date of termination of a contract of employment cannot be earlier than the date on which an employee receives knowledge that he is being dismissed – McMaster v Manchester Airport plc [1998] IRLR 112. Where dismissal is communicated to an employee in a letter the contract of employment does not terminate until the employee has actually read the letter or had a reasonable opportunity to read it – Brown v Southall & Knight [1980] IRLR 130. When the tribunal looked closely at the actions of the second named respondent and in particular the timing of forwarding of the P45, the tribunal in all the circumstances of this case and taking into account the case law detailed above determined that the effective date of termination of the claimant's employment is the 4 September 2005. The effective date of termination of the claimant's employment with the second named respondent predated the commencement of Article130A of the same Order.
22. The tribunal has had regard to the provisions of Article 130 of the Employment Rights (Northern Ireland) Order 1996. It is for the respondent to show:-

(i) The reason for the dismissal of the claimant; and

(ii) that it is a reason falling within Article 130 (2) of the Employment Rights (Northern Ireland) Order 1996 or "some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held".

The reasons set out in Article 130 (2) encompass amongst others conduct, redundancy and capability, assessed by reference to health or conduct. Where the respondent has established the reason, the tribunal must determine whether the employer acted reasonably or unreasonably in treating that reason as a sufficient reason for dismissing the claimant having regard to the circumstances of this case and it "shall be determined in accordance with equity and the substantial merits of the case".

23. The second named respondent did not raise redundancy as a reason for their conduct. Indeed no reason substantial or otherwise was given for their action in terminating the claimant's employment without notice or explanation, other than the loss of a contract, which they knew, was oncoming some months previous.
24. The claimant sought compensation only as a remedy. The tribunal considered Articles 17 to 20, 146, 152, 153, and 157 to 162 of the Employment Rights (Northern Ireland) Order 1996. There was no evidence before the tribunal to lead to the conclusion on the balance of probabilities that had the respondent followed a fair procedure that the claimant would have been dismissed in any event. The claimant had a clear disciplinary and attendance record prior to his sudden termination in September 2005. The tribunal did not consider that the actions of the claimant in any way contributed to his dismissal. The claimant found himself, according to his evidence, employment as a taxi driver by mid October 2005 (say 15 October 2005) when his financial loss ceased. The claimant's date of birth is 16 April 1960, which made him 35 years when first employed by the second named respondent and 45 years when his employment was ended. Accordingly the claimant had 4 years service at one and a half weeks gross wage and five years service at a week's gross wage. While the parties agreed that the weekly nett wage was £148, evidence was given by the claimant at hearing that he worked at 21-hour week at £4.59 an hour. On the information given with regard to the hourly rate the claimant's gross weekly rate appeared to the tribunal to amount to a weekly wage of £96.39. The tribunal is unaware how the figure of £148 nett weekly is reached on the basis of the information furnished at hearing. Equally the tribunal noted that the claimant would have been entitled to nine weeks notice or pay in lieu. In light of the fact that the claimant obtained alternative employment by mid-October 2005 the tribunal determined that a just and equitable sum as a compensatory award was at a minimum his notice pay. The tribunal therefore concluded that the award to the claimant should be calculated as follows:-

Basic Award (as per Article 154)

11 weeks pay @ £96.39 £1,060.29

Compensatory Award

Loss of Income from effective date

Of termination of employment (4 September 2005)

Reflecting his loss of notice pay

9 weeks at £96.39 £ 867.51

Loss of statutory rights £ 200.00

Total Award £2127.80

25. The Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations (Northern Ireland) 1996 apply to this decision. The claimant received income support during the period he was out of employment at £45 a week. The dates of the prescribed element are 4 September 2005 until 15 October 2005. The amount by which the monetary award exceeds the prescribed element is (6 weeks @ £45.00 equals £270.00) £1,857.80. The attention of the parties is drawn to the notice below which forms part of the decision of the tribunal.
26. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 20 June 2007

Date decision recorded in register and issued to parties: