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Industrial Tribunals Northern Ireland Decisions

You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Trotter v Franklin Trading Ltd [2008] NIIT 299_08IT (12 December 2008)
URL: http://www.bailii.org/nie/cases/NIIT/2008/00299.html
Cite as: [2008] NIIT 299_8IT, [2008] NIIT 299_08IT
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THE INDUSTRIAL TRIBUNALS


CASE REF: 299/08



CLAIMANT: Sharon Rose Trotter


RESPONDENTS: 1. Daniel Magennis

2. Franklin Trading Limited



DECISION


The unanimous decision of the tribunal is that the claimant was dismissed with one week’s notice from the employment of the second-named respondent on the grounds of redundancy. The claimant is entitled to a redundancy payment in the sum of £3,610.25. The second-named respondent is also ordered to pay to the claimant the sum of £1,944.14 as monies due and owing in respect of the second-named respondent’s breach of contract in failing to pay monies in lieu of notice. In total the second-named respondent is ordered to pay to the claimant the sum of £5,554.39.


The tribunal declares that the first-named respondent is dismissed from the proceedings as he was not the claimant’s employer at the relevant date of termination of her employment.



Constitution of Tribunal:


Chairman: Ms Sheehan


Members: Mr. D Edmont

Mr J McDonnell



Appearances:


The claimant was not represented but appeared at hearing.


The respondents submitted no response to the claim. There was no appearance by the respondents on the day of hearing.



  1. The claimant in her complaint lodged with the tribunals claimed that she had been dismissed with one week’s notice from her employment as a catering assistant in January 2008. She had received a P45 from Franklin Trading Limited but was unsure of the exact identity of her employer. There had been a number of changes of employer since she commenced employment with Bewleys in 1990. There was no statutory dismissal procedure followed by her employer. There had been no written notice given nor pay tendered in lieu of notice.


  1. The respondents did not submit any response to the claim, which was served upon them under cover of letter dated 10 March 2008 c/o David McQuillan of 6 Murray Street, Belfast, and Waterstones, Fountain Street, Belfast.


Issues


  1. The issues for the tribunal to determine were:-


(a) the correct identity of the claimant’s employer at the time of dismissal;


(b) whether the respondents dismissed the claimant as a result of redundancy and if so, the amount of redundancy payment due to the claimant; and


(c) whether the respondent employer was in breach of contract in failing to tender pay in lieu of notice and what damages, if any, the claimant was due in respect of such breach.


  1. The tribunal as a three person panel had heard evidence from the claimant and received documents at a hearing on 4 September 2008. It had been necessary to adjourn that hearing to allow the claimant to produce to the tribunal documents that would clarify the issues that fell to be determined. When the tribunal reconvened on 25 September 2008, Mr McDonnell was unavailable to sit as a member. The claimant was advised of her right under Regulation 5 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 and in accordance with Regulation 5(3) waived her right to a hearing by a three person panel and consented to the two members present hearing and disposing her claim.


Facts


  1. The tribunal having heard the evidence of the claimant and considering all the documentation before it found the following facts.


  1. The second-named respondent became the employer of the claimant sometime after June 2006 and before the end of October 2006. The claimant’s employment was ’transferred’ to the second-named respondent and is a ‘relevant transfer’ within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations 1981. The commencement date of the claimant’s employment is 17 September 1990. The claimant held the position of catering assistant throughout her employment lasting seventeen years in total. The claimant was based in a café at Waterstones Bookshop at the time of termination of her employment.


  1. The tribunal between the two dates of hearing had received a communication from the first-named respondent indicating he was aware of the proceedings and was a director of the second-named respondent.


  1. At the outset of the claimant’s employment with Bewleys she had been employed as a full-time employee contracted to fulfill 40 hours a week. Over the period of her employment her hours had been varied – without any formal contractual documentation being issued to the claimant. The claimant at no time challenged or objected to the variations in the hours allocated to her by her employer. The claimant had no breaks in her employment despite a number of changes of employer. By the date of dismissal the claimant’s net weekly pay varied depending on the number of hours worked. The hours varied from 30 hours or more per week. The pay-slips provided to the tribunal for the thirteen weeks previous to her dismissal on 20 January 2008 show the claimant’s weekly average net pay amounted to £176.74 and her gross weekly pay was £206.30.


  1. The claimant was absent from work on Saturday 12 January 2008 when a letter was read out to staff from Carson & McDowell, Solicitors, addressed to the first-named respondent, Daniel Magennis trading as Tikki Café, Waterstones. The letter placed him on notice of termination of his tenancy of the premises. The employment of all staff in the café, including the claimant, was terminated with effect from 20 January 2008. .


  1. The claimant received no written notice of the employer’s intention to terminate her employment. There was no evidence before us that any contract issued to the claimant contained a redundancy procedure. The second-named respondent failed to tender to the claimant any payment in lieu of notice – on the basis of her seventeen years of service and their failure to furnish any notice other than one week.


  1. The claimant found alternative employment, which commenced on 15 February 2008 for a similar weekly wage as that paid by the second-named respondent.


Applicable Law



  1. The Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 (‘the 1994 Order’) provides at Article 3 that proceedings might be brought before an Industrial Tribunal in respect of a claim of an employee for the recovery of damages or any other sum (save damages for personal injuries) where the claim arises or is outstanding on the termination of the employee's employment. Thus, under this provision, an employee may bring a claim for pay in lieu of notice outstanding on termination of a contract, or indeed for any other contractual sum or sums claimed as properly due on termination. Article 118 of the Employment Rights (Northern Ireland) Order 1996 [‘the 1996 Order’] provides that an employee is entitled to notice of termination of her employment, up to a maximum of twelve weeks if that employment is twelve years or more. Article 118(3) of the 1996 Order provides that this entitlement may be waived and payment made in lieu of notice. Article 123(5) provides that if an employer fails to give the notice required by Article 118 the rights conferred by Articles 199 to 122 (dealing with rights and payments during the notice period) shall be taken into account in assessing liability for breach of contract.


13. The relevant legislation in respect of redundancy payment entitlement is found at Articles 170, 171, 174 and 175 of the Employment Rights (Northern Ireland) Order 1996.


14. Article 170(1)(a) provides that an employer shall pay a redundancy payment to any employee of his if the employee is dismissed by the employer by reason of redundancy.


15. Article 171(1)(a) provides, subject to the provisions referred to therein, for the purposes of this part an employee is dismissed by his employer if (and only if) the contract under which he is employed by the employer is terminated by the employer (whether with or without notice).


16. Article 174(1)(a)(ii) provides that an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to the fact that his employer has ceased or intends to cease to carry on that business in the place where the employee was so employed.


17. In establishing a redundancy payment calculation, the Tribunal is required to establish the ‘relevant date’ pursuant to Article 180 of the 1996 Order. Article 197 of the 1996 Order provides the formula of calculation of a redundancy payment.


18. Article 190 of the 1996 Order provides that an employee does not have any right to a redundancy payment unless he has been continuously employed for a period of not less than two years ending on the relevant date.


19. Article 199 of the 1996 Order provides for the time within which a claim for a redundancy payment must be made. Article 199(1) provides an employee does not have any right to a redundancy payment unless before the end of the period of six months beginning with the relevant date:-


(a) the payment has been agreed and paid;


(b) the employee has made a claim for the payment by notice in writing given to the employer;


(c) a question as to the employee's right to, or the amount of, the payment has been referred to an industrial tribunal; or


(d) a complaint relating to his dismissal has been presented by the employee under Article 195.


20. Article 130A of the Employment Rights (Northern Ireland) Order 1996 states that an employee such as the claimant who has been dismissed shall be regarded as unfairly dismissed where the statutory dismissal and disciplinary procedure applied in respect of the dismissal; was not completed by the respondent and the non-completion is wholly attributable to the failure of the respondent to comply with the statutory requirements. Redundancy payments is one of the jurisdictions to which the requirement to carry out this procedure applies by virtue of the provisions of the Employment (Northern Ireland) Order 2003. Article 130A(2) states that failure by an employer to follow the statutory dismissal and disciplinary procedure shall not be regarded for the purposes of Article 130(4) of the Employment Rights (Northern Ireland) Order 1996 as by itself making the employer’s action unreasonable and therefore unfair if the employer can show that the employee would have been dismissed had the procedure been followed. In determining that question the tribunal has had regard to the provisions of Article 130 of the Employment Rights (Northern Ireland) Order 1996. It provides that it is for the respondent to show:-


  1. the reason for the dismissal of the claimant; and


  1. 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”.


21. The reasons set out in Article 130(2) encompass amongst others redundancy.


22. Regulation 4 of the Transfer of Undertakings (Protection of Employment). Regulations 1981 states, that the transfer of a business will not have the effect of terminating the contract of employment of any person employed by the transferor of the business in circumstances such as appears in this case namely where a going concern sustains a change of employer but the place, nature of the business and employees remain the same.


Conclusions


23. It is clear that the second-named respondent ceased to trade from the place of business that the claimant had been working at. The claimant with all the employees based at that café had their employment terminated for the same reason and on the same date. The provisions of Article 174 (1)(a) are satisfied.


24. The claimant was employed with a series of employers ending with the second-named respondent. The tribunal has no evidence before it to undermine her contention that she had a seamless history of employment with a number of ’relevant transfers’ of the business occurring during the years of her employment. The claimant is deemed to have continuous employment under the provisions of the Transfer of Undertakings (Protection of Employment) Regulations 1981 which applied to the series of transfers pertaining to her employment from the date of initial employment. The claimant has therefore been employed in excess of two years and is entitled to a redundancy payment. (Article 190 of the 1996 Order.)


25. The claimant would have been entitled to pay in lieu of notice for the unexpired portion of the claimant's contractual or statutory notice. The claimant was given actual notice of dismissal on 12 January 2008 and her last day of employment was 20 January 2008. She was therefore given effectively eight working days' notice of termination. The tribunal is unable to conclude from the facts that the claimant was entitled to any contractual notice beyond that provided for by statute under Article 118 of the 1996 Order, where the claimant would have been entitled to one week's notice for each year of continuous employment, up to a maximum of 12 weeks. The claimant received one week’s notice therefore leaving a claim of damages equating to 11 weeks pay in lieu of notice.


26. The ’relevant date’ pursuant to Article 180(2)(b) of the 1996 Order is 20 January 2008.


27. The claimant submitted her claim to the Office of the Industrial Tribunal and Fair Employment Tribunal on 12 February 2008, thereby satisfying the requirements of Article 199(1)(c) of the 1996 Order.


Remedy


28. The claimant is deemed to have worked for the second-named respondent for seventeen years. The claimant has one year’s service where she was aged over 41 years of age (but under 64 years of age) and sixteen where she was aged under 41 but over 21 years of age. Under Article 197 2(a) the claimant is therefore entitled to one and a half weeks pay for the last year of her employment and one week’s pay for the other sixteen years. The claimant’s weekly pay does not exceed the maximum weekly amount permitted by statute at the date of redundancy The tribunal determines that the claimant is entitled to receive payment from the second-respondent calculated as follows:-


£206.30 x 16 = £3,300.80


£206.30 x 1.5 = £ 309.45


This amounts to a total payment of £3,610.25 in respect of redundancy.


29. The tribunal considered the provisions for adjustment of awards where there has been non-completion of statutory procedure as detailed in Articles 17, 23 and 29 of the Employment (Northern Ireland) Order 2003. There was a clear flouting of the Statutory Dismissal and Disciplinary Procedure by the second-named respondent. The tribunal considered the provisions of Article 17 of the 2003 Order and determined that to enhance any award in respect of the redundancy or breach of contract would ‘be unjust or inequitable’ to the second-named respondent as clearly there were financial issues that led to the sudden and practically immediate cessation of the second-named respondent’s business. The tribunal considered this economic situation could and did amount to ‘exceptional circumstances’ within the meaning of Article 17(4) of the 2003 Order.


30. The tribunal was satisfied on the balance of probabilities that the claimant was contractually entitled to at least the statutory maximum of 12 weeks notice or pay in lieu of notice where her employment was terminated by her employer. The effective date of termination of her employment was 20 January 2008. It was on that date that the breach of contract occurred and loss was suffered by the claimant. While the tribunal noted that the claimant had, as required by law, attempted to mitigate her losses by seeking alternative employment, the tribunal considered that in the circumstances the claimant suffered her damage on 20 January 2008 and therefore is entitled to damages reflecting the loss of 11 weeks pay in lieu of notice. The tribunal determined that sum as £176.74 x 11= £1,944.14.


31. The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996 do not apply to this decision as the claimant made no claim for jobseeker’s allowance or income support during the period she was out of employment.


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








Chairman:



Date and place of hearing: 25 September 2008, Belfast



Date decision recorded in register and issued to parties:


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