Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

CASE REF: 1943/07

CLAIMANT: Robert Buchanan

RESPONDENT: Sean Devine Construction

DECISION

The decision of the tribunal is that the claimant was made redundant by the respondent and was not given proper notice of termination of his employment. The tribunal therefore orders the respondent to pay to the claimant the sum of £2,511.00.

Constitution of Tribunal:

Chairman: Miss E McCaffrey

Panel Members: Mr McKnight

Mr Kearns

Appearances:

The claimant appeared in person.

The respondent was presented by Mr Jason Horsfield, Manager.

The Issue:

1. The issue for the tribunal to consider was whether the claimant was made redundant by the respondent or whether he had unreasonably refused a suitable offer of alternative employment contrary to Article 176 of the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order"). The tribunal also had to consider whether the claimant was entitled to payment in lieu of notice because of the respondent's failure to give him proper notice contrary to Article 118 of the 1996 Order.

The Facts:

2. The Tribunal heard evidence from the claimant and from Liam McKinney and from Ignatius Quinn, two of the respondent's staff. On the basis of the evidence heard and the correspondence between the parties which was produced to the Tribunal, we make the following findings of fact.
3. The claimant was employed by the respondent as a forklift driver. He started work for the respondent on 12 April 2002 and his employment ended on 17 August 2007. His gross pay was £370.78 per week and his net pay was £287.00. None of this was disputed.
4. The claimant returned from annual holidays on 6 August 2007. The following day Liam McKinney, one of the respondent's managers, came to the site where the claimant was working at the time at Sion Mills. Mr McKinney told workers on the site that work at the Sion Mills site was coming to an end and that everyone would move to a construction site at Derrylin, County Fermanagh. The claimant had a discussion with Mr McKinney and Ignatius Quinn the foreman in the site office. The manager explained to the claimant that the site was winding down because the houses on the site were not selling and the claimant was being offered work in Derrylin. The claimant said that he would need to think about it. He had been aware a few months previously that there was an offer of work at the Derrylin site but he did not feel that it was suitable for him.
5. The claimant's evidence was that his parents were elderly and infirm and as such he preferred to work closer to home. He indicated that during his employment with the respondent, he had been able to work at sites close to his home at Eglinton, first of all in the Waterside area of Londonderry, in Strabane and at Sion Mills which was approximately 30 miles from home. He indicated that he was able to take his car to and from work which meant that if there was an emergency at home, he was able to get home promptly.
6. The claimant's evidence was that if he accepted the job in Derrylin he would have to leave home at 6 o'clock in the morning to meet a minibus in Strabane which would then take him to Derrylin to start work on the site. He also believed that his journey home would be considerably longer in that he would only get back to Strabane after 6 and it would be at least 7 o'clock before he got home in the evenings. Given his responsibilities for his parents, he believed that this was not viable from his point of view.
7. The claimant's evidence was that the journey to Derrylin from Londonderry was 79 miles each way and would take about one and a half hours, but the respondent's evidence was that the journey from Strabane to the site at Derrylin would take only about an hour and a quarter. This was at variance with the claimant's estimate and the panel from their own knowledge of the journey involved and the road conditions respectfully prefer the claimant's estimate in relation to the time for the journey.
8. The following day the claimant advised Mr Quinn that he would not be able to accept the offer of work in Derrylin as it would be too long a day due to his family circumstances. There was a discussion about when the claimant would finish work and while this was initially discussed for 10 August, it was decided that he would finish on Friday 17 August 2007. The respondent did not offer the claimant the opportunity to work out his full notice and there appears to have been no discussion of this.
9. Following this the claimant wrote a letter dated 31 August 2007 to the respondent and he asked in that for details of his pay in lieu of notice. The respondent replied by letter dated 6 September indicating that the claimant had not been made redundant, that work was offered to him at the Derrylin site which the respondent declined. The letter went on to say that no payment in lieu of notice had been made because the claimant did not work out his notice but chose to leave with immediate effect. In a further letter dated 20 September 2007 to the respondent, the claimant set out in detail the reasons why he had not accepted the offer of work at the Derrylin site and indicating that he had already explained all of this.
10. The claimant was paid all outstanding wages that he was owed but his "lying week" was paid only on 23 August after his employment actually ended. The respondent's actually then paid the claimant a further two weeks' net pay on an ex gratia basis, which they said was to cover outstanding holidays and was as a gesture of good will, although they had already set out in their letter of 6 September 2007 that the claimant had in fact been over paid for holidays.
11. The respondent's witnesses Mr McKinney and Mr Quinn both gave evidence on behalf of the respondent but neither of them suggested that there had been any discussions or consultations carried out with the claimant or with the two other forklift drivers on the site in relation to their possible redeployment at the Derrylin site.

The Relevant Law and Decision

12. The relevant law in relation to this matter is to be found in Articles 118 and Article 174 and following of the 1996 Order.

In relation to notice pay, Article 118 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 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."

13. Accordingly, since the claimant had been employed by the respondent for five years at the date of his termination of employment, and he was aged over 22 for each of those years, he is entitled to five weeks' notice of termination of employment. He was actually given just under two weeks' notice of termination of employment and therefore he is entitled to be paid for the three weeks for which he was not paid, at the rate of his net pay of £287.00 per week.
14. In relation to the award of a redundancy payment, the 1996 Order sets out in detail the situation where an employee is made redundant, and is entitled to receive a redundancy payment and the circumstances of which a claimant would lose entitlement to redundancy pay because he has refused a reasonable offer of alternative employment.
15. It is the respondent's contention that the claimant was offered alternative employment and refused to take it and is therefore not entitled to redundancy payment. The legislation is set out in Article 176 of the 1996 Order which provides as follows:-

"176—(1) This Article applies when an offer (whether in writing or not) is made to an employee before the end of his employment –

(a) to renew his contract of employment or

(b) to reengage him under a new contract of employment, with renewal or reengagement to take effect either immediately on, or after an interval of not more than four weeks' after, the end of his employment

"(2) Where paragraph (3,) is satisfied the employee is not entitled to redundancy payment if he unreasonably refuses the offer.

"(3) This paragraph is satisfied where

(c) the provisions of the contract as renewed, or the new contract, as to –

(i) the capacity in place in which the employee would be employed and

(ii) the other terms and conditions of his employment, would not differ from the corresponding provisions of the previous contract or

(d) those provisions of the contract as renewed, or of the new contract, would differ from the corresponding provisions of the previous contract but the offer constitutes an offer of suitable employment in relation to the employee."

16. Tolley's Employment Law Service makes it clear that the suitability of alternative employment is not statutorily defined and will be a question of fact in each case for the tribunal. The learned authors of Tolley point out that an employer will be well advised to discuss all proposed changes for each employee and ask their views and suggestions. The reasonableness of the refusal is looked at from the employee's point of view at the time of the refusal. The authors of Tolley refer to the decision in Spencer and Griffin v Gloucestershire County Council [1985] IRLR 393, a decision of the Court Appeal of England and Wales. There the Court of Appeal stated that the suitability of the employment and the reasonableness of the employee in refusing it are interrelated issues. Factors affecting the suitability include such matters as pay, loss of status, loss of fringe benefits, place of work and change and hours of work and their likely affect on the employee's health. There is a duty on the employer to offer suitable alternative work, even if this may involve a loss of status or may be less convenient for the employee.
17. However, in this particular case the employee had over a number of years been able to work for the respondent at various locations but always within travelling time of less than one hour from his home, which he considered reasonable. The alternative offer of employment which he refused would have involved his travelling time almost doubling to two hours each way. He also made the point that he would not be able to use his own transport, but would be relying on the employer's transport. So in the case of an emergency, if he needed to get home quickly to tend to his parents, he would be unable to do so because first of all he did not have his own car available and secondly because the journey would be much longer. The tribunal is satisfied that Mr Buchanan did make his employers aware of this difficulty in accepting their alternative offer of work and that the employer did not consider any other possible deployment.
18. The panel is also satisfied from the evidence that has been given that there were actually no other construction sites operating at the time when the claimant's employment was terminated and that therefore he was made redundant and as such is entitled to a redundancy payment at the maximum level of £330.00 per week for the five years of service which he carried out for the respondent.
19. Accordingly the tribunal orders the respondent to pay to the claimant the following amounts:-

Notice pay

3 weeks notice not paid and not worked

£287.00 per week for three weeks = £ 861.00

Redundancy payment

5 years service at the maximum £330.00 per week = £1,650.00

Total = £2,511.00

It is the tribunal's finding that the two weeks' pay paid to the claimant by the respondent were made as an ex gratia payment as a gift in relation to his years of service and so we are not applying any deduction in relation to that amount.

20. We further make the comment that the claimant in this matter had not raised any issue in relation to his lack of written terms and conditions of employment, but there was a clear lack in this regard. Clear written terms and conditions of employment, particularly in relation to the issue of mobility of workers, would have benefited both parties. Further the respondent appears to have taken no steps whatsoever to carry out the usual procedures in relation to selection for redundancy or to consult with the workforce in relation to redundancy, which the tribunal finds deplorable, given the importance of such procedures to good industrial practice and relations.
21. 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: