Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2010/369_10IT.html
Cite as: [2010] NIIT 369_10IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 7599/09 and 369/10

CLAIMANT: Paul Murray

RESPONDENTS: 1. Fisher Metal Group Limited (In administrative

receivership)

2. Fisher Metal Engineering LLP (formerly known as

WR Fisher LLP)

3. Department for Employment and Learning

DECISION

(A) In this Decision, “the old employer” is Fisher Metal Group Limited. The claimant’s “TUPE consultation” claim is well-founded and it is ordered that the claimant shall be paid the sum of £3,367 in respect of that claim, and that the old and new employer shall have joint and several liability 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 claimants’ other 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:-

(1) the sum of £2,754 in respect of a redundancy payment;

(2) the sum of £1,813 in respect of pay in lieu of notice;

(3) the sum of £950 in respect of unpaid wages; and

(4) the sum of £673 in respect of accrued holiday pay.

Constitution of Tribunal:

Chairman: Mr P Buggy

Members: Ms N Wright

Dr D Mercer

Appearances:

The claimant was represented by Mr N Gillam, Solicitor of Donnelly Kinder Solicitors.

There was no appearance on behalf of either of the employers.

The Department was represented by Mr P McAteer, Barrister-at-Law, instructed by the Departmental Solicitors 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. The old employer went into administrative receivership in the Summer of 2009. At around that time, the claimant received notification from the new employer that he was to be placed on temporary lay-off. The claimant was never subsequently told, either orally or in writing, either by the old employer or by the new employer, to resume work. He did receive his P45, later during 2009, from the administrative receiver of the old employer.

5. The claimant made 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, in respect of the employers, to making the following claims.

7. First, he makes a claim in respect of redundancy payment, in respect of pay in lieu of notice, in respect of holiday pay 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 £2,754 in respect of a redundancy payment;

(2) The sum of £1,813 in respect of pay in lieu of notice;

(3) The sum of £950 in respect of unpaid wages;

(4) The sum of £673 in respect of accrued holiday pay; and

(5) The sum of £3,367 in respect of the TUPE consultation claim.

9. Thirdly, the claimant made statutory appeals in relation to the decisions of the Department (whereby the Department had refused the applications which the claimant had made, in the context of the Department’s role as statutory guarantor).

10. Both the claimant and the Department agreed that there had been a TUPE transfer, whereby the relevant entity (an entity to which the claimant was assigned in the summer of 2009) had been transferred to the new employer.

11. We are satisfied that the contentions of the claimant and of the Department in that context are correct. We are satisfied that, in the summer of 2009, the new employer started to pay the claimant’s wages and that the old employer ceased to pay his wages. We are satisfied, that beforehand and afterwards, the claimant was carrying out the same work, at the same premises, using the same tools, under the same immediate supervision, and that he was producing outputs for the same circle of customers.

12. Because of the conclusions which we have reached in respect of the TUPE transfer issue, it follows that all claims, other than TUPE consultation claims, against the old employer, must be dismissed. Any relevant liabilities, other than TUPE consultation liabilities, owed to this claimant by the old employer, will have transferred, by operation of 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.

13. On the basis of the oral testimony of the claimant, we are satisfied that he was made redundant and that he was due the sum specified above in respect of redundancy; that he was dismissed without written notice and that he is due the sum specified above in respect of notice pay; that he is due the sum specified above in respect of unpaid wages; that he is due the sum specified above in respect of holiday pay; and that he is entitled to the amount specified above in respect of TUPE consultation.

14. It has not been suggested to us, in the context of this case, that any trade union was recognised, either by the old employer or by the new employer, in respect of collective bargaining, or that either of the two employers had any relevant employee forum. We are satisfied that nobody consulted with the claimant, or with any of the other workers in the relevant entity, in respect of the TUPE transfer.

15. 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 Regulations 15).

16. 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.

17. We note that no effort at all was made to comply with the consultation obligations in this case, either by the transferor or by the transferee. That is why we have awarded the full 13 weeks’ pay.

18. 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 outcome of any statutory applications which the claimant may make to the Department in future (in the Department’s role as statutory guarantor) arising out of any possible failure on the part of the new employer to comply with the obligations which have been imposed upon it by this Decision.

19. 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 2010, Belfast.

Date decision recorded in register and issued to parties:

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