1386_10IT
THE INDUSTRIAL TRIBUNALS
CASE REFS: 1386/10
1555/10
CLAIMANT: Roberta Manna
RESPONDENT: Vera McCourt
DECISION
The tribunal directs that the appropriate respondent is Vera McCourt and that she now is the sole respondent; the case against Alberta Hird is therefore dismissed. The tribunal unanimously finds that the respondent is liable to pay to the claimant £237.45 by way of unpaid sick pay and £143.20 by way of four days’ holiday pay plus £182.00 by way of gratuity money withheld from the claimant . The respondent is further ordered to pay to the claimant (£288.00 for failure to supply the claimant with a written statement of her particulars of employment and £288.00 for failure to provide the claimant with an itemised pay statement). The respondent is further ordered to pay to the claimant the sum of £144.00 by way of two weeks’ notice pay.
Constitution of Tribunal:
Chairman: Mr Trevor Browne
Members: Mrs Mary-Jo McReynolds
Ms Gail Ferguson
Appearances:
The claimant appeared and represented herself.
The respondent did not attend and was not represented.
THE ISSUES
1. The tribunal had to determine whether the respondent had failed to pay any or the appropriate amount of statutory sick pay on behalf of the claimant; whether she had failed to pay any or an appropriate amount of holiday pay and notice pay; and whether she had supplied the claimant with a written statement of the particulars of her employment or itemised payslips, in time or at all.
FINDINGS OF FACT
2. The tribunal received oral and written evidence and made the following findings of fact:
(1) The claimant was employed by the respondent from September 2007 until April 2010 as a catering assistant at the Belfast Indoor Bowling Stadium, where the respondent held the catering franchise. It was common case that this is seasonal work, running from September until Easter each year. The catering then substantially ceased during the late spring and summer until the start of the indoor bowling season in September, although there was limited catering during the summer months. The tribunal finds that the responsibility for the treatment of the claimant ultimately rests with the respondent, and that the case against Alberta Hird is misdirected. The tribunal therefore orders that the respondent Vera McCourt is the appropriate respondent, and directs that the case against Alberta Hird be dismissed, although much of what occurred was carried out by her.
(2) The respondent in her written response to the initial claim described her working arrangements as “non-traditional”, stating also that the claimant’s employment duties were set out on the regular rota-sheets, as displayed on the walls of the kitchens.
(3) The tribunal finds that this approach is at best haphazard, and falls substantially short of any reasonable attempt to regularize what are important issues for any employee to know.
(4) The mere fact of operating a “non-traditional” business does not absolve the respondent of her duty to frame the terms and conditions of employment or of the itemisation of her pay. The tribunal finds that the respondent was in breach of her duty to provide the claimant with a written statement of her terms and conditions of employment and itemisation of her weekly pay. The tribunal also formed the view that “non-traditional” seems to have become shorthand for fast and loose behaviour by the respondent regarding her duties to the claimant.
(5) The aspect of itemisation of weekly pay also relates to another aspect of the claimant’s claim, namely her statutory sick pay. The tribunal finds from the written evidence produced by the claimant that the only information provided as to her weekly pay was sporadic, and was written on ‘post-it’ notes. Those notes indicate that amounts were deducted by the respondent for National Insurance contributions. It became apparent that those amounts had not been passed on by the respondent when the claimant discovered that she was not eligible to receive statutory sick pay. The tribunal therefore finds that the respondent was in breach of her duty to pass on the deductions made; she is therefore liable to pay to the claimant the three weeks’ sick pay the claimant had to go without because of this failure by the respondent.
(6) The tribunal found the claimant to be an honest and straightforward witness, and accepts her evidence that she was not paid for four days’ holiday taken by her after Christmas, for which she received no payment. The tribunal is also satisfied that a Christmas gratuity of £182.00 left specifically for the claimant was misrepresented to her by the respondent as her week’s pay, and should properly have been paid to her on top of such amount. The tribunal finds that the respondent therefore owes such payment to the claimant.
(7) The claimant resigned from her employment in April 2010, her last working day being 22 April, with her end date being 3 May, in accordance with her statutory right to two weeks’ notice pay. The tribunal accepts the claimant’s version of events as to not receiving the relevant amount of notice pay, supported by the fact that, despite the respondent’s assertion otherwise, she still sent the claimant her P45.
CONCLUSIONS AND AWARD
3. In view of the tribunal’s findings, the respondent is ordered to pay to the claimant the following amounts:
Three weeks’ statutory sick pay: 3 x £79.15 = £237.45
4 days’ holiday pay = £143.20
Unpaid gratuity = £182.00
2 weeks’ statutory notice pay entitlement = £144.00
Failure to provide written particulars of employment £288.00 being two weeks pay, which in the opinion of the tribunal is the appropriate level in all the circumstances; the tribunal similarly awards £288.00 for failure to provide an itemised pay statement for the same reason.
The respondent is therefore ordered to pay to the claimant a total of £1,282.65.
The tribunal accepts the claimant may be owed holiday pay in addition to that already awarded above, which also is accepted by the respondent, but has insufficient information upon which to quantify it. The tribunal directs that the claimant is to supply such information within four weeks of the issuing of this decision. In the absence of such information being received within that time, her claim for unpaid holiday pay other than that already awarded will be dismissed.
4. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 12 October 2010, Belfast.
Date decision recorded in register and issued to parties: