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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Vauls v Andrew Waring Carrie Waring Carrie on with Colour (Norther... [2011] NIIT 00441_11IT (20 October 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/00441_11IT.html
Cite as: [2011] NIIT 00441_11IT, [2011] NIIT 441_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 441/11
CLAIMANT: Rachel Vauls
RESPONDENTS: 1. Andrew Waring
2. Carrie Waring
3. Carrie on with Colour (Northern Ireland) Ltd
DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed by reason of asserting her statutory right to the national minimum wage and orders the respondents to pay the claimant the sum of £1,234.80.
Constitution of Tribunal:
Chairman: Ms P Sheils
Members: Ms M Galloway
Mr W Irwin
Appearances:
The claimant appeared and represented herself.
The respondents were represented by Mr Noel Gibson, accountant.
The Claim and the Response
1. The claimant lodged a claim form on the 6 January 2011 claiming that she had been dismissed by the respondents by reason of her request to be paid the statutory minimum wage appropriate to her age.
2. The respondents presented a response on the 20 February 2011 agreeing that they had dismissed the claimant but not for any reason of her request to be paid the appropriate minimum wage. The respondents claimed that they had dismissed the claimant for being late on several occasions, breaching client confidentiality, breaking equipment, causing harm to clients, bullying and theft.
Sources of Evidence
Oral Evidence
3. The tribunal heard oral evidence from:-
The claimant;
Andrew Waring;
Carrie Waring;
Colin Thompson, Course Tutor, The Academy Hair and Beauty Training School;
Collette Steele, Managing Director, The Academy Hair and Beauty Training School.
Documents
4. The tribunal was given a small bundle of documents and was referred to a number of miscellaneous documents during the hearing.
Findings of Relevant Facts
5. The tribunal found the following facts agreed or proven on the balance of probabilities:-
The claimant, whose date of birth is 20 August 1989, was an NVQ student at the Academy Hair and Beauty Training School in Belfast (“the Tech”) from September 2009 until 19 November 2010. The claimant was attending a course which is covered by the Apprenticeship Northern Ireland Scheme. To qualify for the course, students had to be over 18, be employed with an employer and attend the Tech one day per week.
6. The Apprenticeship Northern Ireland Scheme provides that apprentices aged under 19 or in the first year of an apprenticeship must be paid at least £2.50 per hour and those over 19 and those who have completed at least one year of their apprenticeship must be paid the full national minimum wage rate applicable to their age.
7. The tribunal noted that the first and second named respondents were aware of the fact that the claimant had been employed elsewhere prior to her joining them and that during this prior employment the claimant had been on placement from her Tech course. When the claimant began her course in September 2009 she was aged 20. She secured an employment placement with Glo Beauty and Tanning. In February 2008 the claimant spoke to Mr Waring and told him that she wanted to change her employment placement and to come and work with him and Mrs Carrie Waring at Carrie on with Colour (Northern Ireland) Ltd.
8. Mr Waring stated that he and Mrs Waring were happy for the claimant to come to work for them. The claimant stated that Mr Waring had asked her to have someone from the Tech to confirm this position to him.
9. Mr Waring stated that although he had suggested that the claimant check out the position with the Tech regarding the possibility of taking up an employment placement with him, he was unaware of the fact that the claimant was in her second year of employment placement. Mr Waring stated that no-one from the Tech had told him that the claimant was commencing her employment placement with them at a point when she had already completed some seven months of her course/apprenticeship.
10. Mrs Waring also stated that she was unaware of the fact that, at the time of her appointment with them, the claimant was some months through her course at Tech and that her placement with them would be for any time less than two years. Mrs Waring added that indeed if she had known that the claimant would qualify for the national minimum wage during her first year of placement with them that she would not have agreed to have employed her at all.
11. The parties signed “a delivery agreement”, under the Apprenticeship Northern Ireland Scheme. This document was presented to the tribunal who noted that the claimant’s employer was Carrie on with Colour, that Mr Waring was the “Employer Contact”, that Mrs Waring was the “Contact for Learner”, and that the duration of the claimant’s placement was two years. This document was signed by the claimant, Mr Waring, and in the presence of and by Ms Julie Martin, on behalf of the Academy of Hair and Beauty, (the Tech).
12. The tribunal heard evidence from Mrs Steele, Managing Director of the Academy Hair and Beauty. Mrs Steele stated that all delivery agreements would automatically indicate duration of placement as two years as this reflected the length of the placement required for the course in question. Mrs Steele also stated that this did not necessarily indicate that the duration of time required by the claimant to stay with that specific placement was two years.
13. Mrs Steele also made it clear that it happened frequently that students changed placements during their two year apprenticeship period but it was commonly known by employees and employers that these changes did not signify the restart of the apprenticeship period.
14. Also, Mrs Steele rejected the respondents’ assertion that they were not aware of the fact that the claimant had already commenced her two year apprenticeship period. Mrs Steele explained that the delivery agreement was signed by the respondents and the claimant in the presence of the Tech’s Placement Officer, Julie Martin, whose responsibility it was to advise each of the parties of their rights, responsibilities and obligations under the delivery agreement and the duration of the placement.
15. The tribunal noted that both Mr and Mrs Waring had previous experience of employing employees as placement trainers and of employing apprentices. Both the first and second named respondents were familiar with the delivery agreement document and the system operated by the Tech to monitor and review the progress of such employees working for them.
16. The tribunal did not accept that the respondents believed that the claimant was joining them for a placement period of two years. The first and second named respondents were both aware that the claimant’s employment with them was directly linked to her course at Tech and that it was part of an employment placement scheme that was in conjunction with her course which like all such courses, had begun in September. The respondents’ familiarity with this type of arrangement would have informed them of this. Also, the respondents were fully aware that the claimant was leaving another placement to join them and that the claimant had been on this placement for some months prior to her joining them.
17. At the outset of her employment with the respondents in February 2009 the claimant was advised by the respondents that she would not be paid by them for the first two weeks and that she would receive money from DEL through the college. However there was no mechanism within the college to make any payments to students who were on placements and the claimant received no payment for these two weeks.
18. The respondents disputed that they had told the claimant this but accepted that for the first two weeks the claimant had worked for them in what they described as, in a voluntary capacity. No explanation was given for this arrangement and there was no reference to such an arrangement in the delivery agreement document.
19. The respondents initially offered the claimant 30 hours per week for £40.00, as recommended as suitable by the college, but after discussions between them the parties agreed that the claimant would work 40 hours for £100.00, a rate of £2.25 per hour.
20. The claimant stated that in November 2010, when she realised that she ought to be in receipt of the national minimum wage, she contacted the college to clarify this. The claimant stated that she had had a conversation with her course tutor, Mr Colin Thompson. The claimant stated that she had explained her position to him and that he had agreed that the claimant should be in receipt of the minimum wage.
21. The claimant also stated that she told Mr Thompson that the respondents had reduced her working hours from 40 hours to 30 hours per week and also her wages from £100.00 to £40.00 on account of her having been late. The claimant stated that Colin Thompson undertook to speak to the respondents on the claimant’s behalf in relation to these matters.
22. The claimant stated that Mr Thompson had told her that he would contact the respondents on her behalf. The claimant stated that the following day Mr Thompson rang her and told her that he had spoken to Mr Waring and that the claimant was to “go into work as normal”.
23. The claimant was quite detailed in her account of her meeting at the college with Mr Thompson. She stated that having spoken to other staff members first, one of these had taken Mr Thompson out of a class he was teaching to take part in the discussion about the claimant’s difficulties.
24. The tribunal heard evidence from Mr Colin Thompson. Mr Thompson stated that he had no recollection about any meeting where he had been taken from his class to attend and stated that the meeting as described by the claimant did not happen.
25. However, Mr Thompson recalled a conversation he had had with the claimant in February 2011, after which he stated that he had contacted the respondent, Mr Waring, to discuss the claimant’s progress. Mr Thompson stated that he had not at any stage spoken to Mr Waring about the claimant’s entitlement to the minimum wage.
26. Mr Waring recalled having had a conversation with Mr Thompson prior to the claimant’s dismissal. In this conversation Mr Waring stated that he and Mr Thompson had discussed the claimant’s progress and the substandard quality of her work. Mr Waring stated that this conversation was consistent with the claimant’s work progress reports as completed by the college. Mr Waring did not make any reference as to whether any aspect of the claimant’s wages had been discussed during this conversation.
27. The tribunal noted that the conversation Mr Thompson recalled was in February 2011. As this was after the claimant’s dismissal the tribunal concluded that this recollection was unhelpful.
28. The tribunal found that Mr Thompson had made contact with the respondents, through Mr Waring, prior to the claimant’s dismissal and as a result of an approach to him to do so by the claimant. The tribunal concluded that it was more than likely that Mr Thompson had raised all of the issues the claimant had requested him to do. In reaching this conclusion the tribunal rejected Mr Thompson’s evidence as unhelpful and noted the fact that Mr Waring was silent as to the reference to the discussion about the claimant’s rate of pay.
29. In the event the claimant attended work as normal after she received the telephone call from Mr Thompson to do so. However, on her return on the 19 November 2010 she was greeted by Mr Waring who asked her to sign documents entitled “Employee Warning Notice” purporting to relate to various episodes of misconduct and then dismissed her for “bad timekeeping and customer complaints”.
30. Mr Waring advised the claimant that he had been in contact with the college in relation to her progress at work and between that and her poor timekeeping, including being late that morning, he was dismissing her. Mr Waring told the claimant that she could sign the written notices if she wanted to and she did.
31. The written warning notices referred to three separate occasions of misconduct which had allegedly occurred on the 15 October 2010, the 9 November 2010 and the 19 November 2010. Each notice had been completed by Mrs Waring who had downloaded the pro forma document from the web. They were completed before the claimant arrived into work and she was presented with all three for the first time that morning. The claimant was told that she could sign these forms if she wanted to and she did.
32. Mrs Waring had inserted the detail of each of the complaints onto the forms and had dated the forms prior to any discussion about any of the incidents with the claimant. Mr Waring accepted that although the claimant had signed the forms dated the 15 October and the 9 November 2010 she had only done so on the morning of her dismissal.
33. Mr Waring stated that the two earlier notices had been completed at the time of the alleged misconducts, that the claimant had been shown these at the relevant times but that the warnings had not been actioned by him as they had decided to “move on”.
34. The tribunal had sight of the written notices. In the first notice dated the 15 October 2010 and under the heading “Action to be taken” the word “Warning” had been ticked and under the heading “Consequence should incident occur again” the words “2nd warning” had been inserted.
35. In the second notice dated 9 November 2010, issued for a different act of alleged misconduct, under the heading “Action to be taken” the word “Warning” had been ticked and scored out and the word “Dismissal” had been ticked. Under the heading “Consequence should incident occur again” the words “Final Warning” had been inserted.
36. In the third notice and under “Action to be taken” the word “Warning” had been ticked and scored out and the word “Dismissal” had been ticked. Under the heading “Consequence should incident occur again” the word “Dismissal” had been inserted.
37 At the hearing Mr Waring accepted that he had not conducted the claimant’s dismissal in line with any procedures and stated that he had gone about it the wrong way.
38. In light of the inconsistencies in the three notices and the way in which they were compiled and post dated and in light of Mr Waring’s admission of his failure to have adhered to any procedure, the tribunal concluded that the notices had been fabricated and had been drawn up for the purposes of the dismissal on the 19 November 2010.
39. In reaching this conclusion the tribunal also took into account that fact that the respondents had stated in their response that their reasons for dismissing the claimant were many and various and included lateness, poor work performance, breach of client confidentiality, causing physical injury to a client, damage to the respondent’s property, misuse of company laptop, bullying of other staff and theft.
40. The tribunal noted that the respondents’ response went on to stress that all allegations would be proven at the hearing and that the allegation of theft was supported by a crime reference number.
41. However, the tribunal also noted a document submitted by the respondents at hearing entitled “Statement of Case”. The tribunal noted that in this document the respondents referred only to allegations of bad timekeeping, unsatisfactory work performance and customer complaints.
42. The tribunal noted the following about each of these allegations:-
· that the alleged breach of client confidentiality was supported only by an undated letter from someone the respondents purported to be an offended client;
· that there was an updated letter from another purported client referencing a burn injury as of July 2009 and that there was no other evidence in relation to this;
· that there was no further detail in relation to damage to the respondents’ property, misuse of company laptop, bullying of other staff or theft. The tribunal particularly noted that the allegations of theft were not supported by any reference to a crime reference number.
43. For her part the claimant accepted that she had been late on occasions and had been spoken to about this at the time. The claimant stated that she had been asked to sign three alleged disciplinary records at the time of her dismissal. Otherwise, the claimant refuted all other allegations.
44. Accordingly the tribunal concluded that the other allegations made against the claimant were unproven. Additionally the tribunal concluded that these allegations had been fabricated to distract from the real reason the respondents had dismissed the claimant.
The Law
45. Article 135 of the Employment Rights (Northern Ireland) Order 1996 extends the right of an employee with less than one year’s service not to be unfairly dismissed in circumstances where the dismissal is the result of the employee’s having asserted the statutory right to receive the national minimum wage.
46. The terms of Article 135 are:-
“135A The national minimum wage.
(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that—
(a) any action was taken, or was proposed to be taken, by or on behalf of the employee with a view to enforcing, or otherwise securing the benefit of, a right of the employee’s to which this Article applies; or
(b) the employer was prosecuted for an offence under section 31 of the National Minimum Wage Act 1998 as a result of action taken by or on behalf of the employee for the purpose of enforcing, or otherwise securing the benefit of, a right of the employee’s to which this Article applies; or
(c) the employee qualifies, or will or might qualify, for the national minimum wage or for a particular rate of national minimum wage.
(2) It is immaterial for the purposes of sub-paragraph (a) or (b) of paragraph (1)—
(a) whether or not the employee has the right, or
(b) whether or not the right has been infringed;
but, for that paragraph to apply, the claim to the right and, if applicable, the claim that it has been infringed must be made in good faith.
(3) The following are the rights to which this Article applies—
(a) any right conferred by, or by virtue of, any provision of the National Minimum Wage Act 1998 for which the remedy for its infringement is by way of a complaint to an industrial tribunal, and
(b) any right conferred by section 17 of the National Minimum Wage Act 1998 (worker receiving less than national minimum wage entitled to additional remuneration).”
THE TRIBUNAL’S CONCLUSIONS
47. The tribunal concluded that the claimant had been dismissed by reason of her alerting the respondents that she was entitled to be paid the higher rate of the national minimum wage. This decision was reached on the tribunal’s applying of the facts found to the law.
48. In reaching this conclusion, the tribunal took into account that no action had been taken against the claimant in respect of any of the allegations made against her by the respondents prior to her alerting them to the fact that she was entitled to receive the national minimum wage after September 2010.
49. The tribunal also took into account the fact that some of the spurious allegations were not referred to after appearing in the response and that none, apart from the claimant’s lateness, was proven at hearing. The tribunal noted the seriousness of some of the allegations, eg, theft, criminal damage, causing client harm in May 2010 and concluded that if these allegations had been true, action would have been taken against the claimant prior to September 2010.
50. Compensation
Entitlement to minimum wage from respondents September 2010
Period of time between this and date of dismissal 9 weeks
Potential earnings per week £237.20
Earnings received per week £100.00
Loss per week £137.20
Total loss for relevant period £137.20 x 9 = £1,234.80
The claimant received no benefits. The claimant obtained another job on the 2 December 2010 so no future loss is applicable.
Accordingly the tribunal orders the respondents to pay the claimant the sum of £1,234.80.
51. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 25 May + 27 June 2011, Belfast.
Date decision recorded in register and issued to parties: