Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2010/07395_09IT.html
Cite as: [2010] NIIT 07395_09IT, [2010] NIIT 7395_9IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 07395/09

CLAIMANT: James Schofield

RESPONDENT: R & K Haulage Ltd

DECISION

The decision of the tribunal is that the respondent owes the claimant £1974 in respect of unauthorised deductions from wages and breach of contract as set out in this decision.

Constitution of Tribunal:

Chairman (Sitting Alone): Mr N Kelly

Appearances:

The claimant appeared in person and was unrepresented.

The respondent did not enter a response and did not appear.

(1) The respondent is a limited company, R & K Haulage Ltd, a small haulage contractor based in Portadown.

(2) The claimant is a HGV driver, living in Preston.

(3) The claimant was employed by the respondent from 28 August 2009 – 29 September 2009.

(4) The respondent agreed to pay the claimant £500 per week net for a five day week from Monday to Friday and £100 net for any shift worked on a Saturday or Sunday. Wages were to be paid every four weeks in arrears.

(5) The respondent told the claimant that national insurance and income tax deductions would be made on his behalf “at the end of the year”.

(6) On 27 September 2009, the claimant was told that the respondent was closing down its English operation and that there was no work for him for the time being. The respondent stated that he might have more work before Christmas. He was asked to work an additional nightshift and did so. No oral or written notice was given of his dismissal and he was not paid in lieu of notice.

(7) The claimant was told that his wages would be paid into his bank on Friday, 2 October 2009. This did not happen.

(8) The claimant states that the respondent is still in business and is still operating normally. There is no indication to the contrary.

(9) The normal pattern of pay was to be either a cheque for £400 and a cash payment of £100, or a cheque for £300 and a cash payment of £200.

(10) At the respondent’s request, the claimant paid for diesel for the respondent’s vehicle, to be reimbursed later. The amount paid was £274. This was not reimbursed by the respondent.

(11) The claimant was not paid for the nightshift on 27 September at £100. He was not paid for the three days up to that date. The only payments he received in respect of four week’s wages at £500 per week and 3 day’s additional overtime at £100 per day were separate payments of £350, £650 and £250 respectively.

DECISION

(12) I expressed concern during the course of the hearing that a contract which involved part of the wages being paid by cheque and part being paid in cash, where no regular deductions were to be made in respect of income tax and national insurance, and where there were no wages slips, might be regarded as an illegal contract and therefore unenforceable in a tribunal The general rule in this respect was expressed by the Court of Appeal in case of Hall v Woolston Hall Leisure Ltd [2001] ICR 99;

“There can be no doubt but that under English law, a claim, whether in contract or in tort, may be defeated on the ground of illegality or, in the Latin phrase, ex turpi causa non oritur actio.”

(13) However, after observing the claimant giving evidence and after listening to the evidence of his colleague, Brian Reid, I am not prepared to take the drastic step of excluding the claimant from remedy in the circumstances of this case. There has been no response and therefore no evidence from the employer. On the balance of probabilities, I accept that the claimant expected income tax and national insurance to be paid by the respondent and that the claimant had not actively participated in an illegal contract.

(14) The total amount of wages due in this case is £2,400. The claimant is also entitled to £274 in respect of unpaid expenses as a breach of contract and £500 in respect of unpaid notice pay. The claimant is not due any money in respect of holiday pay, giving the length of service. The claimant received payments of £300, £250, and £650. The amount outstanding is therefore £1,974. The tribunal directs the respondent to pay the claimant this sum.

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

Chairman:

Date and place of hearing: 11 January 2010, Belfast.

Date decision recorded in register and issued to parties:

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