Industrial Tribunals Northern Ireland Decisions

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Cite as: [2010] NIIT 372_10IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 7595/09 and 372/10

CLAIMANT: Derek Murphy

RESPONDENT: 1. Fisher Metal Group Limited (in administrative receivership)

2. Fisher Metal Engineering LLP (formerly known as
WR 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”) and against Fisher Metal Engineering LLP (“the new employer”) are both well-founded. It is ordered that the claimant shall be paid the sum of £3,562 in respect of those claims and it is declared that the old employer and the new employer have joint and several liability in respect of that amount.

(AA) None of the claimant’s other claims against he old employer is well-founded. Accordingly all of those claims are dismissed.

(B) The following “other” claims (claims other than the TUPE consultation claim) which the claimant has made against the new employer are well-founded. It is ordered that the new employer shall pay the following sums to the claimant:

(i) £4,802 in respect of a redundancy payment;

(ii) the sum of £2,740 in respect of pay in lieu of notice; and

(iii) the sum of £1,096 in respect of unpaid wages.

(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: Ms N Wright

Dr D Mercer

Appearances:

The claimant was represented by Mr N Gillam, Solicitor of Donnelly and 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. In the United Kingdom, the law relating to transfer of undertaking has been implemented by 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 a mechanism by which a failure to inform or consult can be the subject of an industrial tribunal complaint.

3. The claimant was employed by the old employer. The old employer went into administrative receivership in July 2009. The claimant subsequently received notification from the new employer that it was placing him on temporary lay-off. The claimant was never subsequently contacted, either by the old employer or by the new employer, to resume work. He did receive his P45, near the end of 2009, from the administrative receiver of the old employer.

4. 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.

5. In these proceedings, the claimant now confines himself to making the following claims.

6. First, he makes a claim in respect of TUPE consultation, in respect of a redundancy payment, in respect of pay in lieu of notice (or in the alternative, in respect of failure to pay wages) and in respect of holiday pay, against the old employer.

7. Secondly, he makes the same claims against the new employer. He claims £4,802 in respect of a redundancy payment; he claims £2,740 in respect of pay in lieu of notice (or, in the alternative, the same sum in respect of unpaid wages); he claims £1,096 in respect of accrued but unpaid holiday pay; and he claims £3,562 in respect of TUPE consultation failures.

8. Thirdly, the claimant has made statutory appeals in relation to the decisions of the Department (whereby the Department, in its statutory guarantor role, refused the applications which the claimant had made to the Department).

9. Both the claimant and the Department were agreed that there had been a TUPE transfer whereby the relevant entity (the entity to which the claimant was assigned in Summer 2009) had transferred to the new employer. We are satisfied that the contentions of the claimant and of the Department in that context are correct. We are satisfied that there was a TUPE transfer, of the relevant entity, in May 2009. We are satisfied that, both before and after 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 which benefitted the same circle of customers.

10. Because of the conclusions which we have reached in respect of the transfer issue, it follows that, apart from the TUPE consultation claim, all of the claims against the old employer must be dismissed. Any relevant liabilities, other than TUPE consultation liability, which had been owed to this claimant by the old employer will have transferred, at the time of the relevant transfer, 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.

11. On the basis of the oral testimony of the claimant, we are satisfied that he was made redundant, that he was dismissed without notice, and that he is due the amount claimed by him in respect of accrued but unpaid holiday entitlements.

12. It has not been suggested to us that any trade union was recognised, either by the old employer or by the new employer, in respect of collective bargaining, or that either employer 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.

13. Regulation 15 of TUPER provides, at paragraph (8), that where an industrial tribunal finds the complaint against the 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).

14. 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.

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

16. 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 by 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 in future make 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 us by this Decision.

17. 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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