Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2010/06544_09IT.html
Cite as: [2010] NIIT 06544_09IT, [2010] NIIT 6544_9IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 6544/09

CLAIMANT: Barry Flynn

RESPONDENTS: 1. Northsec Security Services Limited

2. Northsec (UK) Limited

DECISION

The decision of the tribunal is that the claimant was employed by the second named respondent at the time of his dismissal and is entitled to be paid a sum of £298.89 for a lying week’s pay and unpaid holiday pay.

Constitution of Tribunal:

Chairman: Mr Cross

(sitting alone)

Appearances:

The claimant appeared in person and was not represented.

The respondents did not appear at the tribunal and neither of them was represented.

Findings of Fact

1. The claimant was employed by the first named respondent as a security guard on a site in County Armagh. His employment on the site had started on 28 November 1997, with another company that had had the contract for the security of the site. When the claimant commenced his employment he was not paid for his first week’s work and this lying week was not subsequently paid to him. The claimant had been employed on the same site by a number of employers between 1993 and the commencement of his employment with the first named respondent. His contract of employment had reached the first named respondent through the operation of The Transfer of Undertakings (Protection of Employment) Regulations 2006, (hereinafter called TUPE) and its predecessor legislation.

2. The first named respondent went into Administration on 24 March 2009. The claimant’s pay slip for the two weeks ending on 15 March 2009, was issued to him, as on previous months by the first named respondent. From then on the pay slips were issued by the second named respondent. The last one being issued on 27 April 2009. On that date the claimant’s employment was terminated, as the second respondent lost its contract on the site where the claimant worked. No notice was given, but the claimant did have discussions with representatives of the second named respondent at Mallusk but no work was offered to him. The claimant was never given any other post in the properties guarded by the second named respondent. The claimant’s P60 was issued by and in the name of the second named respondent.

3. At the time of his dismissal however the claimant was under the misapprehension that he was still an employee of the first named respondent, as he had never received notification that his contract of employment had been transferred, and he had not noticed the change of company name on the pay slips or on the P60. It was only later, when he was in discussion with the Administrators of the first named respondent, that the transfer was discussed. When the respondent looked again at his pay slips and his P60, he noticed that his contract had been transferred some six weeks before his dismissal. At that stage the claimant requested that the second named respondent should be joined to both the claims and this was done, by order of the tribunal, on 21 October 2009.

4. Although the second named respondent is still trading in Northern Ireland it did not respond to being joined in this claim. The claimant’s claim to the tribunal was for a redundancy payment and for unpaid wages, comprising holiday pay, notice pay and the lying week. The claimant did not seek compensation for unfair dismissal.

5. The claimant was entitled to 24 days holiday pay per annum. The holiday year was from 1 May to 30 April. The claimant had taken 20 days and was thus owed 4 days when he was made redundant, for holiday that he had not taken during that holiday year.

Decision

6. The tribunal, having been informed that the claimant was paid his redundancy entitlement and notice pay by the Department for Employment and Learning (hereinafter “the Department”), holds that he is entitled to one lying week’s pay for the week that he worked at the start of his employment on 28 November 1997 and his outstanding holiday pay from the second named respondent, which was the employer of the claimant at the time of his dismissal. The contract of employment had been transferred to the second named respondent. The tribunal does not know the date of the transfer of the claimant’s contract of employment, but his last pay slip from the first named respondent is dated 15 March 2009, and the company went into Administration on 24 March 2009, so the transfer must have occurred between those dates, as the next pay slip, in the name of the second named respondent, was dated 29 March 2009.

7. Under TUPE the employer to whom the contract of employment passes on a transfer is responsible for payment of all claims that an employee may have for outstanding pay and holiday entitlement, even though the same accrued before the employment contract was transferred. Consequently the second named respondent

is liable to pay the outstanding holiday pay due to the claimant. The amount of the outstanding holiday pay is calculated as follows:-

4 days holiday due for 2008/2009 financial year

@ £33 .21 net per day = £132.84

5 days lying week pay at the same rate = £166.05

------------

£298.89

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

Chairman:

Date and place of hearing: 2 February 2010, Belfast

Date decision recorded in register and issued to parties:

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