Title: FAIR EMPLOYMENT TRIBUNAL
Author: irtusetup
Last saved by: joe.ury
Company: DED

THE INDUSTRIAL TRIBUNALS

CASE REF:    1830/10

CLAIMANT:	Nicholette Elizabeth May Kerr

RESPONDENT:	Jenny Farrell

DECISION

The decision of the tribunal is as follows:-

(1)	The respondent has made an unlawful deduction from the claimant’s wages in respect of one week’s pay for a “lying week”.

(2)	The respondent has failed to pay two days holiday pay due to the claimant.

(3)	The tribunal finds the claimant’s claims to be well founded and orders the respondent to pay the claimant the total sum of £259.84.

Constitution of Tribunal:

Chairman (Sitting alone):	Mr J V Leonard

Appearances:

The claimant appeared and represented herself at the hearing.

The respondent did not appear nor was she represented at the hearing.

REASONS

(1)	The claimant brought claims of breach of contract, unpaid holiday pay, and wage deductions before the tribunal on the foot of a claim.  In a response to the said claim, the respondent conceded that two days holiday pay were owed to the claimant but contended that, in addition to this, pay in respect of one working day was also owed.  The claimant’s contention that she was owed wages for a “lying week” was not directly addressed by the respondent in the response form.  Accordingly, the tribunal had to determine whether the claimant’s claims were 
well-founded and if so the appropriate amount of compensation.

(2)	The respondent had entered a response to the claim but did not appear at hearing.  The tribunal is satisfied that a notice of hearing was dispatched to the respondent on 24 August 2010.  Accordingly the respondent was duly notified of the date, time and place of the hearing.

(3)	The tribunal heard oral evidence from the claimant and considered the documentation including the claim and response forms.

THE TRIBUNAL’S FINDINGS OF FACT

(4)	In consequence of the oral and documentary evidence before it the tribunal, in brief, made the following findings of fact material to the issues in the case:-

	1.	The claimant was employed by the respondent.  She worked five days a week normally although her hours of work varied from one week to the next.  The parties were in agreement that the appropriate net pay per day was £37.12.

	2.	The claimant commenced employment with the respondent on or about 29 March 2010 and the employment came to an end on 7 May 2010.  The wage agreed was at a rate of £6.50 per hour.  It was agreed that the claimant would work a “lying week” at the start of employment and therefore one week’s wages would be due to her upon termination.

	3.	At the time of termination there was outstanding and due to the claimant pay in respect of two days leave untaken (over bank holidays) and also the “lying week”.

	4.	The total amount in question therefore is equivalent to seven days net pay at £37.12 per day, the sum of £259.84.  That sum remained unpaid and outstanding upon termination of the employment and had not been paid by the time of the hearing.

THE APPLICABLE LAW

(5)	The Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) applies.  By Article 45 of the 1996 Order an employer shall not make a deduction from wages of a worker employed by him unless the deduction is authorised by statute or a relevant provision of the worker’s contract or the worker has previously signified in writing his consent to the making of the deduction.  A failure to pay wages on any occasion constitutes a deduction from wages.

THE TRIBUNAL’S DECISION

(6)	At the time of termination of employment there was owed to the claimant by the respondent, firstly, five days pay in respect of the “lying week” and also two days holiday pay.  The rate of pay per day in each case is £37.12 and therefore seven day’s pay is due and outstanding.

(7)	The tribunal therefore finds the claimant’s claims to be well-founded and orders the respondent to pay to the claimant the total sum of £259.84.

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

Chairman:

Date and place of hearing: 5 October 2010, Belfast.

Date decision recorded in register and issued to parties: