Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 1624/07

CLAIMANT: Geraldine Doherty

RESPONDENTS: 1. Beige Game Trading Ltd t/a The Waterfoot Hotel and

Country Club

2. Department for Employment and Learning, Redundancy

Payments Service

The Decision of the Industrial Tribunal is:

(i) the name of the first respondent shall be amended to Beige Game Trading Ltd trading as the Waterfoot Hotel and Country Club;

(ii) the Department for Employment and Learning shall be joined as a second respondent to the proceedings in accordance with the request of the Department to be joined; and

(iii) that the claimant was made redundant by the first named respondent who accordingly is liable to pay her compensation in lieu of notice pay and redundancy pay totalling £5,508.72. Due to the insolvency of the first named respondent, the tribunal orders the first and second named respondents to pay the sum of £5508.72 to the claimant.

Constitution of the Tribunal

Chairman: Miss E McCaffrey

Panel Members: Mr McKnight

Mr Kearns

Appearances:

The claimant appeared in person with her husband who spoke on her behalf.

The first-named respondent had not entered any response, did not appear and was not represented.

The second-named respondent was represented by Mrs Patricia Baird.

DECISION

The Issues

1. As a preliminary issue, we order that the correct name of the first-named respondent shall be amended to Beige Game Trading Limited t/a The Waterfoot Hotel and Country Club, the evidence being a copy of the winding up order made in respect of the respondent company of 17 January 2008. Secondly, we order that the Department for Employment and Learning shall be joined as a respondent to the proceedings in accordance with the Department's request made by letter dated 4 February 2008.
2. The main issue for the tribunal to decide was the entitlement of the claimant to a redundancy payment, notice pay and any holiday pay to which she was entitled under her claim.

The Facts

3. The tribunal considered the claim form issued by the claimant and the evidence produced by the claimant and by the second named respondent. On the basis of the evidence received we make the following findings of fact.
4. The claimant was employed by the first named respondent as a restaurant manager. Her employment commenced on 24 November 1989 and ended on 4 July 2007. She had been given notice two days earlier that, as she put it, "she would not have a job" after 4 July 2007. She worked 40 hours per week and was paid £210.00 per week gross, £179.10 per week net. At the date of her actual dismissal, the claimant was 36 years old but had she been allowed to work her notice which would have ended on 26 September 2007, she would at that stage have been aged 37. She asked her employers about redundancy but was told that "the accountant was dealing with it". She wrote a letter to her employers and asked for a reply within 4 weeks but did not receive any response.
5. The claimant gave evidence that she normally received 24 days per year holiday entitlement and that the holiday year ran from January to January. She had already taken 12 days holiday prior to her dismissal and accordingly she had in fact taken all the holidays to which she was entitled at that stage.
6. Following the termination of her employment, the claimant sought alternative work but at the date of the hearing had been unsuccessful in finding any work. She had claimed income support and this claim was processed along with her husband's claim for income support. Mr Doherty's claim for income support was increased by £34.70 per fortnight from 13 July 2007 until 4 October 2007, when the money paid to him was reduced substantially; we have no explanation as to why.

The Relevant Law and Decision

7. The legislation in relation to the right to a redundancy payment and to notice of termination of employment (or pay in lieu of notice) is to be found in the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order").
8. Taking the claim for pay in lieu of notice first of all, this is to be found in Article 118 of the 1996 Order which provides as follows:-

"118-(1) The notice required to be given by an employer to terminate the contract of employment with the person who is being continuously employed for one month or more –

(a) is not less than one week's notice if his period of continuous employment is less than two years;

(b) is not less than one week's notice for each year of continuous employment if his period of continuous employment is two years or more but less than twelve years, and

(c) is not less than twelve weeks' if his period of continuous employment is twelve years or more."

9. In the event that an employer is unable for some reason to allow the employee to work their full notice as specified in the 1996 Order, the employee is entitled to be paid in lieu of notice. In this case the claimant had worked for the employer for 17 years and accordingly was entitled to 12 weeks' notice. Given that her net pay was £179.10 per week, she was entitled to a payment of £2,148.72 in respect of notice pay.
10. In respect of redundancy payment, the claimant was 37 at the date when her notice (had she been allowed to work it) would have expired. Accordingly, in calculating her redundancy payment we have taken account the fact that she had 17 years complete service of which 15 were over the age of 22 and two were under the age of 22. Accordingly she is entitled to 16 weeks' pay at £210.00 per week (gross) making a total of £3,360.00. This is calculated in accordance with the provisions of Article 197 of the 1996 Order. Mrs Baird argued that these sums should be offset by the amount of benefit received by the claimant's husband on her behalf, but we can see no legal basis for recoupment of such sums under the 1996 Order or the Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations (Northern Ireland) 1996.
11. In accordance with the provisions of Article 201 of the 1996 Order and Article 227 and following of the 1996 Order, the second named respondent is now liable to make the appropriate payments to the claimant.
12. The tribunal therefore orders as follows:-

1. That the name of the first named respondent shall be amended to read Beige Game Trading Limited trading as The Waterfoot Hotel and Country Club.

2. That the Department for Employment and Learning be added as the second named respondent.

3. That both respondents are ordered to pay to the claimant the following sums:-

Notice pay 12 weeks @ £179.06 per week = £2,148.72

Redundancy payment 16 weeks @ £210.00 per week = £3,360.00

Total award = £5,508.72

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

Chairman:

Date and place of hearing: 20 March 2008, Londonderry.

Date decision recorded in the register and issued to the parties: