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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Watt v Fisher Metal Group Limited (in... [2010] NIIT 7592_09IT (09 November 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/7592_09IT.html
Cite as: [2010] NIIT 7592_09IT, [2010] NIIT 7592_9IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 7592/09
CLAIMANT: John Watt
RESPONDENTS: 1. Fisher Metal Group Limited (in administrative receivership)
2. Fisher
Metal Engineering LLP (formerly known as
WR Fisher LLP)
DECISION
(A) The claimant’s “TUPE consultation” claims against Fisher Metal Group Limited (“the old employer”) and against the new employer are both well-founded. It is ordered that the old employer and the new employer shall have joint and several liability in respect of that claim and that the claimant shall be paid the sum of £3,554 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 the claimant’s 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:-
(i) the sum of £2,046 in respect of a redundancy payment;
(ii) the sum of £1,094 in respect of unpaid wages; and
(iii) the sum of £875 in respect of 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 and Kinder Solicitors.
There was no appearance of behalf of either of the employers. The Department of Employment and Learning (“the Department”) was represented by Mr P McAteer, Barrister-at-Law, instructed by the Departmental Solicitor’s Office.
REASON
1. At the end of this 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 on 8 July 2009. The claimant received notification from the new employer that he was to be placed 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 in late 2009, from the administrative receiver of the old employer.
5. 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 employment debts). That application was unsuccessful.
6. In these proceedings, the claimant’s claims against the employers consist of the following.
7. He makes a claim in respect of redundancy payment, he makes a claim in respect of unpaid wages (or, in the alternative, for pay in lieu of notice), he makes a claim for holiday pay and he makes a claim in respect of TUPE consultation. All of those claims are made against the older employer and against the new employer.
8. The amounts of the claims are as follows. The TUPE consultation claims are, in each instance, for the sum of £3,554. The redundancy payment is for £2,046. The sum of £1,094 is claimed in respect of pay in lieu of notice or, alternatively, in respect of unpaid wages. The sum of £875 is claimed in respect of accrued holiday pay entitlements.
9. The Department participated in these proceedings, pursuant to its entitlements under Rule 51 of the Industrial Tribunals Rules of Procedure (“the Rules”). The claimant provided sworn oral testimony on his own behalf.
10. The claimant and the Department were agreed that there had been a TUPE transfer, whereby a relevant entity (an entity to which the claimant was assigned) was transferred to the new employer in May 2009.
11. 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 in May 2009.
12. 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 for the same circle of customers. The name on his wages pay slip changed in the Summer of 2009; the old employer (then known as WR Fisher LLP) replaced the old employer on the pay slip.
13. On the basis of the oral testimony of the claimant, we are satisfied that he is entitled to be paid all of the amounts which he claims.
14. It has not been suggested, in the context of these proceedings, that any trade union was recognised either by the old employer or by the new employer, in respect of collective bargaining. Furthermore, it has not been suggested that either the old employer or the new employer had any relevant employee forum. We are satisfied that nobody consulted with the claimant, or with any of the other workers in the firm, 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 Regulation 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. 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: