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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Grattan v Department for Employment and ... [2011] NIIT 00920_11IT (21 September September 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/00920_11IT.html
Cite as: [2011] NIIT 920_11IT, [2011] NIIT 00920_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 920/11
CLAIMANT: Loren Grattan
RESPONDENT: Department for Employment and Learning
DECISION
(A) The claimant’s appeal against the refusal of her notice pay is dismissed because the claimant has not sustained any loss on account of any failure to provide due notice.
(B) The claimant’s appeal in respect of holiday pay is well-founded. It was ordered that the Department shall pay to the claimant the sum of £605 in respect of holiday pay.
Constitution of Tribunal:
Chairman (sitting alone): Mr P Buggy
Appearances:
The claimant was self-represented.
The Department was represented by Mr P Curran of its Redundancy Payments Branch.
REASONS
1. At the end of the main hearing, I announced my decision. At the same time, I gave oral reasons for that decision. In the present document, I provide a written record of that decision. (However, that decision has since become the subject of an application for review: see below).
2. The reasons for that decision were as follows.
3. I was satisfied that the claimant was employed by the respondent for more than one year and for less than two years, and that her employment came to an end on January 2011, at a time when she was on maternity leave.
4. I was satisfied that, at that point, she had accrued an entitlement to 8.5 days of holidays, which had not been met. I was satisfied that, towards the end of her employment, the claimant was working an average of 12 hours a week, at £6 per hour.
5. During the course of this hearing, I told the parties that I was deciding that the Department should pay the claimant the sum of £605 in respect of her notice pay entitlement, and that this sum was being calculated on the following basis: 12/40 x 28 = 8.4 days; and 8.4 x £72 (£6 x 12) = £605.
6. That was the amount which was awarded at the end of the hearing, and that is the amount which the Department is currently liable to pay to the claimant and that is the amount which it will continue to be liable to pay to the claimant unless and until that amount is varied as a result of a successful appeal or review.
7. During the course of the main hearing, it was not suggested to me (by or on behalf of the claimant, or on behalf of the respondent) that my method of calculation of the holiday pay was in any respect incorrect.
8. However, on the afternoon of the date of hearing, Mr Curran, on behalf of the Department, wrote to state that he believed that the correct amount of any holiday pay award should be approximately £371, less tax, and not the amount of approximately £600 (which was the amount which I had awarded during the hearing).
9. The parties have already been told that Mr Curran’s post-hearing communication of 16 September is being treated as an application for review of the oral decision of 16 September which (in this document ) is now being confirmed in writing.
10. A hearing in respect of that application for review will take place in the near future unless, in the meantime, the claimant and the Department are able to agree on the amount of holiday pay which is properly payable in this case.
11. The claimant and Mr Curran should now have a discussion, with a view to ascertaining whether there can be an agreed outcome to the Department’s application for review. In the context of any such discussion, the parties may find the following comments to be of interest
12. In my view, it is arguable that, in the context of any review, any holiday pay award has to be treated as being a full award, and that it cannot properly be cut down to reflect the possibility of any holiday pay entitlement having been subject to income tax. (The possibility of such tax being payable is a possibility which could have been raised, but which was not raised, during the main hearing. Furthermore, during that hearing, there was no evidence about any potential liability to tax, and I noted that the claimant’s annual salary was quite small and that she was on lengthy maternity leave at the time of her dismissal).
13. Unfortunately, and very regrettably, having studied the figures which are contained in Mr Curran’s post-hearing correspondence, my view now is that it is arguable that I have made a calculation error and that, as a result, it is arguable that the proper figure for holiday pay, at the most, is approximately £400. (It seems to be arguable that it was an error for me to use £72, instead of using £48, as the amount by which 8.4 was to be multiplied: the figure of £72 relates to the claimant’s weekly wages, whereas a day’s wages, based on an 8 hour day, would amount only to £48. The sum of £48 x 8.4 would amount to £403.20).
14.
During the course
of this hearing, the claimant confirmed that she does not wish to pursue any
claims other than the appeals/claims in respect of holiday pay and notice pay.
Accordingly, all of the other claims have been withdrawn in open tribunal.
Formal orders, dismissing all of those other claims, will be issued in due
course.
15. During the course of this hearing, the claimant made it clear that she was withdrawing the sex discrimination claim against Mr Owens, that claim having been prompted by the following set of facts. According to the claimant, Mr Owens forgot to notify her of the termination of her employment; the reason for that forgetfulness was that the claimant was on maternity leave at the time when the business closed down; that was a reason relating to her gender.
16. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 16 September 2011, Belfast.
Date decision recorded in register and issued to parties: