Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2009/6558_09IT.html
Cite as: [2009] NIIT 6558_09IT, [2009] NIIT 6558_9IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 06558/09

CLAIMANT: Sandra (Alexandra L) Sheridan

RESPONDENTS: 1. Classic Sports & Travel Options LLP

2. Brendan McGinn

DECISION

The decision of the tribunal is that the claimant was made redundant by the first-named respondent and is entitled to the redundancy payment and other payments set out in the schedule hereto amounting to £5,477.75, under the provisions of the Employment Rights (Northern Ireland) Order 1996 (hereinafter called “the 1996 Order”).

Constitution of Tribunal:

Chairman (sitting alone): Mr Cross

Appearances:

The claimant appeared in person and was not represented.

The first-named respondent did not appear and was not represented

The second-named respondent was represented by Ms Mary Gallen, Solicitor, of Worthingtons, Solicitors.

Evidence

1. The tribunal heard the evidence of the claimant.

Findings of fact

2. The parties agreed and the tribunal find, that the employer of the claimant was the first-named respondent (hereinafter referred to as the respondent). The second-named respondent was a partner in the limited liability partnership which was known as Classic Sports & Travel Options LLP. Mr McGinn is accordingly dismissed from the claim.

3. The claimant who was born on 9 August 1951, was employed by a Mr McGuigan on 27 May 1998, to work as a travel agent in Mr McGuigan’s business. On 28 August 2008, Mr McGuigan’s business was taken over by the respondent, with no change to the claimant’s contract of employment, save that her employer was from then the Limited Liability Partnership, which had been formed by Mr McGuigan and Mr McGinn.

4. The respondent’s business suffered a downturn in business in the early part of 2009 and in April 2009, the office was closed and the business was carried on from the home of Mr McGinn until it ceased to trade on 30 April 2009.

5. An Insolvency Practitioner, Mr P Gill, was consulted by the respondent but at the time of this hearing no action has been taken to liquidate the respondent.

6. Throughout her employment, first with Mr McGuigan and subsequently with the respondent, the claimant had no written contract of employment. However she worked 40 hours each week, at yearly salary of £17,000.00, being a monthly gross salary of £1,416.66, (net £1,278.13), until in February 2009, when the business was showing severe problems, her hours were reduced to 26 per week. The claimant was told that this was a temporary measure to get the business over its difficulties and that her contract of employment was not being altered. The claimant accepted this situation and continued to work for the respondent under this new arrangement. Her gross and net salary on these reduced hours was £920.00 and £795.00 per month respectively. Her gross weeks pay was £212.30 (net per week £183.46).

7. The claimant has not received her P45 although her employment did terminate on 30 April 2009. The claimant continued to work on a part-time basis to help tidy up the affairs of the business, until 15 May 2009. Since then the claimant has not sought Jobseekers Allowance.

The law

8. Under Article 170(1) of the 1996 Order an employee who is made redundant is entitled to a redundancy payment, calculated in accordance with the provisions of the said Order. The amount of the payment is determined in accordance with Article 197, which provides a formula for payment related to the amount of a weeks pay which was received by the claimant, on what is described as ‘the relevant date’. The ‘relevant date’ is defined in Article 180 of the 1996 Order as, in the case of employment terminating by notice, the date on which the notice expired. (Article 180(2)(a)).

9. This date for calculation of a redundancy payment may produce anomalies. Harvey Division C1 Paragraph 838 states, that this will occur, “particularly where there has been a change in the rate of pay, perhaps in an unsuccessful attempt to forstall the employer’s imminent insolvency followed shortly thereafter by redundancy, but that is an inevitable consequence of a method of calculation that focuses on the present or immediate past”. This passage from Harvey follows the decision of the House of Lords in Barry v Midland Bank plc [1999] IRLR 581.

Decision

10. The tribunal finds that the claimant is entitled to a Redundancy Payment as set out in the Schedule hereto, calculated on her employment from 27 May 1998 to 30 April 2009, her employment having been continuous for that period by reason of the provisions of The Transfer of Undertakings (Protection of Employment) Regulations 2006. The Redundancy Payment will be calculated on a 26 hour week and not on the claimants original 40 hours. This unfortunately results in a smaller redundancy payment but the tribunal is guided in this by the case of Barry v Midland Bank referred to above.

11. The claimant is entitled to 10 weeks notice, under the provisions of Article 118 of the Employment Rights (Northern Ireland) Order 1996. She did in fact work for part of that notice period.

12. The claimant is entitled to her unpaid holiday pay.

13. The above sums are set out in the following schedule:-

Schedule

Redundancy Payment

1.5 weeks pay for 10 years employment (£212.30 x 1.5 x 10) = £3,184.50

10 weeks Notice Pay paid net of tax at £183.46 x 10 = £1,834.60

Unpaid holiday pay 2.5 weeks at £183.46 net of tax = £ 458.65

Total £5,477.75

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

Chairman:

Date and place of hearing: 21 October 2009, Belfast.

Date decision recorded in register and issued to parties:

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