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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Denvir v Fisher Metal Group Limited (in... [2010] NIIT 00370_10IT (10 September 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/00370_10IT.html
Cite as: [2010] NIIT 00370_10IT, [2010] NIIT 370_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 370/10
CLAIMANT: John Denvir
RESPONDENTS: 1. Fisher Metal Group Limited (in administrative receivership).
2. Fisher Metal Engineering LLP (formerly known as W R Fisher LLP).
3. The Department for Employment and Learning.
DECISION
(A) The claimant’s “TUPE consultation” claim against Fisher Metal Group Limited (“the old employer”) is well-founded and it is ordered that the old employer shall pay to the claimant the sum of £5,029.44 in respect of that claim. None of the claimant’s other claims against the old employer is well-founded. Accordingly, all of those other claims are dismissed.
(B) All of the claimant’s claims against Fisher Metal Engineering LLP (“the new employer”) are well-founded. It is ordered that the new employer shall pay the following sums to the claimant:-
(i) the sum of £1,140 in respect of a redundancy payment;
(ii) the sum of £773.76 in respect of pay in lieu of notice;
(iii) the sum of £386.88 in respect of unpaid wages; and
(iv) the sum of £5,029.44 in respect of the “TUPE consultation” claim.
(C) The claimant’s statutory appeals, against the decisions, in its role as statutory guarantor, of the Department for Employment and Learning (“the Department”), are dismissed.
Constitution of Tribunal:
Chairman: Mr P Buggy
Members: Mr P Sidebottom
Mr A White
Appearances:
The claimant was represented by Mr N Gillam, Solicitor of Donnelly and Kinder Solicitors.
There was no appearance on behalf of the old employer.
There was no appearance on behalf of the new employer.
The Department was represented by Mr P McAteer, Barrister-at-Law, instructed by the Departmental Solicitor’s Office.
REASONS
1. At the end of the hearing we issued our decision orally. At the same time, we gave oral reasons for our decision.
2. Accordingly, what follows is by way of summary only.
3. In the United Kingdom the law relating to transfer of undertakings has been implemented in the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPER”). Regulations 13 to 16 of TUPER provide the legal basis for the “TUPE consultation” claims which we have referred to above. Regulation 13 sets out the duty to inform and consult. Regulation 15 provides the mechanism by which a failure to inform or consult can be the subject of an industrial tribunal complaint.
4. The claimant was employed by the old employer from February 2006, as a metalworker. The old employer went into administrative receivership on 8 July 2009. The claimant received notification from the new employer that he was to be placed on temporary lay-off. That notification was provided on 14 August 2009. The lay-off was to take effect from 17 August until 11 September 2009. The claimant was never subsequently contacted, either by the old employer or by the new employer, to resume work. He did receive his P45, in October 2009, and again in November 2009, from the administrative receiver of the old employer, citing his date of leaving as 16 August 2009.
5. The claimant made an application to the Department, for payments from the national insurance fund, in the Department’s role as the statutory guarantor (in respect of redundancy pay and in respect of certain other employment debts). That application was unsuccessful.
6. In these proceedings, the claimant now confines himself to making the following claims.
7. He makes a claim in respect of redundancy payment, in respect of pay in lieu of notice, in respect of unpaid wages and in respect of TUPE consultation, against the old employer.
8. Secondly, the claimant makes the same claims against the new employer:-
(1) the sum of £1,140 in respect of a redundancy payment;
(2) the sum of £773.76 in respect of pay in lieu of notice;
(3) the sum of £386.88 in respect of unpaid wages; and
(4) the sum of £5,029.44 in respect of the TUPE consultation claim.
9. Thirdly, the claimant has made statutory appeals in relation to the decisions of the Department, whereby the Department refused the claims which the claimant had made against the Department, in the Department’s role as statutory guarantor.
10. Both the claimant and the Department were agreed that there had been a TUPE transfer, whereby the entity, to which the claimant was assigned in May 2009, had transferred to the new employer.
11. We are satisfied that the contentions of the
old employer and of the Department in that context are correct. We are
satisfied that there was a TUPE transfer, of the
entity to which the claimant was then assigned, on 25 May 2009. The
transfer was affected by licence agreement which took effect from that date,
and which the old employer entered into with the new employer. Those
arrangements, which had been made on an interim basis in the licence agreement,
were confirmed in a formal business sale agreement which was concluded in
September 2009.
12. We are satisfied that, both before and after 25 May 2009, the claimant was carrying out the same work, at the same premises, using the same tools, under the same immediate supervision, and producing outputs for the same circle of customers.
13. Because of the conclusions which we have reached in respect of the transfer issue, it follows that the claim against the old employer must be dismissed. (Any liabilities owed to this claimant by the old employer will have transferred, by operational law, to the new employer. In any event, the claimant clearly was dismissed by the new employer, without notice, and by reason of redundancy, at a time when the claimant’s contract of employment had already transferred to the new employer.)
14. On the basis of the oral testimony of the claimant, we are satisfied that he was made redundant and that he was due £1,140 in respect of redundancy, that he was dismissed without notice and that he is due £773.76 in respect of notice pay, and that he is due £386.88 in respect of unpaid wages.
15. No trade union was recognised, either by the old employer or by the new employer, in respect of collective bargaining. We are satisfied that neither the old employer nor the new employer had any relevant employee forum. We are satisfied that nobody consulted with the claimant, or with any of the other workers in the firm, in respect of the TUPE transfer.
16. Regulation 15 of TUPER provides, at paragraph (8), that where an industrial tribunal finds a complaint against a transferor to be well-founded it may order the transferor and the transferee to pay “appropriate compensation”. (See paragraphs (7), (8) and (9) of Regulation 15.)
17. In the context of Regulation 15, “appropriate compensation” means such sum, not exceeding 13 weeks’ pay, for the employee in question as the tribunal considers just and equitable, having regard to the seriousness of the failure of the employer to comply with his duty.
18. We note that no effort at all was made to comply with the consultation obligations in this case, either by the transferor or transferee. That is why we have awarded the full 13 weeks’ pay (£5,029.44).
The statutory appeals
19. The claimant has presented no evidence in favour of his statutory appeals (against the Department’s refusals of his applications to them). Accordingly, those appeals are dismissed. It has been agreed between the claimant (through his representative) and the Department that the outcome of these appeals will have no bearing on the outcomes of any statutory applications which the claimant may make in future to the Department (in its role as statutory guarantor, arising out of any possible failure on the part of the new employer to comply with the payment obligations which have been imposed upon it by this Decision).
The other cases
20. This case (the Denvir case) is one of a group of cases (which together comprise the multiple litigation known as “Watt and Others”), all of which arise out of much the same factual context.
21. All of the other cases in the Watt multiple will be listed for hearing. The hearings of those other cases will take place on 21 October 2010.
Interest
22. This is a relevant decision for the purposes of the Industrial Tribunals (Interests) Order 1990.
Chairman:
Date and place of hearing: 31 August 2010, Belfast.
Date decision recorded in register and issued to parties: