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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Hempton v Touchline Automative [2011] NIIT 01973_10IT (16 May 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/1973_10IT.html
Cite as: [2011] NIIT 01973_10IT, [2011] NIIT 1973_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REFS: 1973/10
2357/10
CLAIMANT: Jordan Hempton
RESPONDENT: Touchline Automative
DECISION
The unanimous decision of the tribunal is that the claimant suffered an automatically unfair dismissal and a breach of contract. The respondent also failed to pay him the national minimum wage and to provide him with a written statement of his particulars of employment and written particulars of the reason for his dismissal. He is entitled to compensation as follows;-
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For |
unfair dismissal: |
£21,431.25 |
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For |
notice pay: |
£224.60 |
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For |
holiday pay: |
£898.40 |
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For |
no written particulars of employment: |
£449.20 |
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For |
not getting written particulars of reason for dismissal: |
£449.20 |
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|
|
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For |
not getting minimum wage: |
£4,579.55 |
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|
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Total: |
£28,032.20 |
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Constitution of Tribunal:
Chairman: Mr B Greene
Members: Mr P Killen
Mr B Gunn
Appearances:
The claimant was represented by Mr Samuel Martins of the Employment Law Service at Harrow in Middlesex.
The respondent was neither in attendance nor represented.
Source of Evidence
1. The tribunal heard evidence from the claimant and on his behalf Mrs Joanne Hempton and Colin Hagen. The tribunal also had regard to the responses entered by the respondent to both claims and to two documents amounting to 11 pages and a written submission of three pages.
Claim and Defence
2. The claimant claims unfair dismissal; breach of contract in relation to holiday pay and wrongful dismissal; that he had not been provided with written particulars of his contract of employment; that he had not been given written reasons for his dismissal; unauthorised deductions from his wages; failure to pay his wages; and failure to pay the rate due under the National Minimum Wage Act.
The respondent denied the claimant’s claims in their entirety and asserted that the claimant was not an employee of the respondent.
The tribunal was satisfied that the respondent had been notified of today’s hearing.
The Issues
3. (1) Did the respondent infringe the Working Time Regulations by failing to give the claimant paid holidays to which he was entitled?
(2) Did the respondent provide written reasons for the claimant’s dismissal?
(3) Did the respondent provide to the claimant a written statement of the main terms and particulars of his employment?
(4) Did the claimant receive the notice pay to which he was entitled?
(5) Was the claimant’s hourly rate below the legal minimum wage?
(6) Did the respondent breach the statutory dismissal procedure and thus render the claimant’s dismissal automatically unfair?
(7) Was the claimant unfairly dismissed?
(8) If the claimant succeeds in any of his claims what is the appropriate remedy?
(9) Was the claimant an employee of the respondent?
Findings of Fact
4. (1) The claimant was born on 23 August 1989.
(2) The respondent is a small business engaged in car body work.
(3) Riverpark Training is a sub-contractor for Belfast Metropolitan College for car body work repairing.
(4) The claimant while receiving training with Riverpark Training achieved an NVQ2. Having achieved an NVQ2 the student progresses to employment.
(5) While a student with Riverpark Training Colin Hagen was the claimant’s tutor. After achieving the NVQ2 Mr Hagen found the claimant a job with a business known as Hugh McGrady Accident Repair to continue his apprenticeship. By reason of the economic climate the claimant was paid off by Hugh McGrady Accident Repair.
(6) Through another apprentice working for the respondent Colin Hagen became aware that the respondent was seeking another apprentice. Mr Hagen was aware that the claimant had been paid off by Hugh McGrady Accident Repair. He contacted the claimant and told him to contact Nigel Cousins the owner of the respondent business.
(7) To enable the claimant to continue his apprenticeship to conclusion Belfast Metropolitan College organises a written delivery agreement between the apprentice, his employer and the college. An agreement between all three is signed at the start of the continuing apprenticeship.
(8) Among the terms of the delivery agreement the employer undertakes to;-
(a) employ the apprentice for the duration of the apprenticeship in accordance with a contract of employment between the employer and the apprentice,
(b) to provide the apprentice with experience, facilities and training as discussed and agreed with the apprentice,
(c) to pay the apprentice the appropriate rate for the job in line with the national minimum wage regulations,
(d) to agree a personal training plan with the employer and Belfast Metropolitan College’s nominated representative, and
(e) to release the apprentice to attend college training.
When the NVQ award for successfully completing the apprenticeship is made the Belfast Metropolitan College pays a sum to the employer.
(9) Mr Cousins agreed to take on the claimant as an apprentice. He did not sign the written delivery agreement despite being asked to do so several times by Mr Hagen. Save for one occasion he did not release the claimant to attend the college. He paid the claimant less than the minimum wage.
(10) Despite the absence of a delivery agreement the claimant began working for the respondent on 4 March 2009. He started working from 8.30 am to 5.00 pm Monday to Friday. Around August 2009 the respondent asked the claimant to work from 7.30 am to 5.00 pm. On a number of occasions the claimant had to work to 7.00 pm. After his hours had been increased on average the claimant worked 46.5 hours per week. The claimant was dismissed by the respondent on 17 May 2010.
(11) The claimant was paid £125.00 cash in hand when he started. When his hours increased he got an extra £25.00 per week. His hourly rate is calculated at £3.01 before his hours were increased and £3.22 once his hours had been increased.
(12) During his period of employment the claimant received 20 days of unpaid leave. Leave could only be taken with the consent of the respondent.
(13) The claimant had concerns about his treatment by Nigel Cousins who periodically ignored him. The claimant also felt that because he could drive he was used to deliver and pick up cars which reduced his time to gain training and experience in body repair work. He was not permitted to use his mobile phone in work.
(14) The claimant was paid £150.00 per week. The two other apprentices received £180.00 per week.
(15) The claimant never received a written statement of his employment particulars. Nor did he receive any payment slips with his wages.
(16) On 17 May 2010 the respondent sent the claimant to Downpatrick for an appointment for a PSV test of the respondent’s van. Before arriving in Downpatrick the van broke down. The claimant missed the appointment. When he reported that to Nigel Cousins he was dismissed and Mr Cousins told him if he didn’t get the van back he would inform the police and he would not be able to collect his tools and tool box.
(17) The claimant returned the van with the assistance of a friend of his parents at a cost to him of £110.00.
(18) Shortly thereafter the claimant, accompanied by his father, attended at the respondent’s business. At that meeting Nigel Cousins reaffirmed the claimant’s dismissal. He permitted him to collect his tools.
(19) A week later Nigel Cousins phoned the claimant and offered him his job back. The claimant said he would have to think about it. Nigel Cousins replied using strong language that if he had to think about it he did not have a job. The claimant wanted to think about it because of the respondent’s previous bad treatment of him.
(20) By letter of 4 August 2010 the claimant wrote to the respondent and asked him why;-
(a) he dismissed him,
(b) paid him less than the minimum wage,
(c) refused to pay him any holiday entitlement,
(d) refused to pay him his notice pay, and
(e) refused to give him a contract of employment.
The respondent did not reply to this letter.
(21) The claimant registered for employment with the Social Security Agency on 18 May 2010. Since then he has sought employment through friends, the job market, the Belfast Telegraph and the Down Recorder. Despite applying for a number of jobs he has not yet been successful.
(22) The national minimum wage was per hour £4.77 from 1 October 2008 and £4.83 from 1 October 2009. From 1 October 2009 the claimant’s net weekly wage ought to have been £224.60. The gross figure is unknown to the tribunal.
(23) From 18 May 2010 to 12 January 2011 the claimant received £1681.43 in benefit.
(24) The respondent denies that the claimant was an employee of the respondent. It asserts that the claimant provided services on a casual basis and was never led to believe that he was an employee of the respondent.
The Law
5. (1) To show that a dismissal is not unfair an employer must show the reason for the dismissal and that it is one of the statutory reasons that can render a dismissal not unfair and that in all the circumstances the employer acted reasonably in treating it as a sufficient reason for dismissing the employee (The Employment Rights (Northern Ireland) Order 1996 Article 130).
(2) A dismissal is automatically unfair if a dismissal has occurred without the statutory dismissal procedure being completed and that failure is wholly and mainly the employer’s fault (Article 130A The Employment Rights (Northern Ireland) Order 1996).
(3) Where the dismissal procedure is applicable and has not been completed wholly or mainly through the employer’s fault the industrial tribunal shall increase the award by at least 10% and up to 50% if the tribunal considers it just and equitable to do so. Similarly the tribunal may refuse to make any uplift if it considers it just and equitable to do so (Article 17(3) and (4) The Employment Rights (Northern Ireland) Order 2003).
(4) A tribunal shall award a minimum of two weeks’ gross pay or four weeks’ gross pay if it considers it just and equitable where the employer has failed to provide a written statement of particulars of employment (Article 27 The Employment Rights (Northern Ireland) Order 2003).
(5) An employee with one year’s service is entitled to a written statement of reasons for dismissal within 14 days of making such a request (Article 124 (The Employment Rights (Northern Ireland) Order 1996).
(6) Where an employer has breached Article 124 an employee is entitled to a declaration to that effect and two weeks’ pay. (Article 124 The Employment Rights (Northern Ireland) Order 1996).
(7) An employee is entitled to one week’s notice of termination where he has been continuously employed for less than two years but in excess of one month. (Article 118 The Employment Rights (Northern Ireland) Order 1996).
(8) Under the Working Time Regulations from 1 April 2009 a worker is entitled to 5.6 weeks paid annual leave which amounts to 28 days for someone working five days per week (Regulation 13, as amended, Working Time Regulations (Northern Ireland) 1998).
(9) A worker is entitled to be paid in respect of any period of annual leave to which he is entitled at the rate of a week’s pay in respect of each week of leave (Regulation 16 Working Time Regulations (Northern Ireland) 1998).
(10) Employee means an individual who has entered into or works under or has worked under a contract of employment. A contract of employment means a contract of service or apprenticeship whether expressed or implied and whether oral or in writing (Article 3 The Employment Rights (Northern Ireland) Order 1996).
(12) In deciding whether a person is an employee or self-employed three questions are to be answered according to the decision in Readymix Concrete (South East) Limited v Minister of Pensions and National Insurance [1968] 1 ALL ER 433;-
(a) did the worker undertake to provide his own work and skill in return for remuneration?
(b) was there a sufficient degree of control to enable the worker fairly to be called an employee?
(c) were there any other factors inconsistent with the existence of a contract of employment? (Harvey on Industrial Relations and Employment Law A1 [39]).
(13) A worker is to be paid at least the national minimum wage (Section 1 National Minimum Wage Act 1998).
(14) Where a worker has been paid less than the national minimum wage the worker is entitled to be paid under his contract the difference between what he received and the relevant national minimum wage (Section 17 National Minimum Wage Act 1998).
(15) An employee is entitled to be paid any sum due to him on the termination of his employment (Article 3 The Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994).
Application of the Law and Findings of Fact to the Issues
6. (1) The tribunal is satisfied the claimant was an employee of the respondent. In so concluding the tribunal took into account the following matters;-
(a) The claimant did undertake to provide his own work in return for remuneration from the respondent.
(b) The respondent exercised control over the claimant in terms of hours worked, tasks done, attendance at Belfast Metropolitan College, holidays, even use of his mobile phone whilst at work.
(c) The claimant believes himself to have been an employee of the respondent.
(d) The respondent dismissed the claimant, affirmed the dismissal then offered the claimant his job back.
(e) Failure of the respondent not to sign the delivery agreement is not fatal as the terms were otherwise applied, albeit incompletely.
(2) The claimant is entitled to be paid the national minimum wage. The respondent failed to pay that throughout his employment. The claimant is entitled to the difference between what he received and what he should have received. The tribunal measures the loss as follows;-
From 4 March 2009 to 5 August 2009
22 x (£1.76 (£4.77 - £3.01) x 41.5) = £1,606.88
From 6 August 2009 to 30 September 2009
7.86 x (£1.55 (£4.77 - £3.22) x 46.5) = £566.51
From 1 October 2009 to 17 May 2010
32.14 x (£1.61 (£4.83 - £3.22) x 46.5) = £2,406.16
Total: £4,579.55
(3) The respondent has not provided to the claimant a written statement giving particulars of the reasons for the claimant’s dismissal. The tribunal awards the claimant two weeks’ pay which it assesses at £449.20 (£4.83 x 46.5 (x 2)).
(4) The claimant is entitled to one week’s notice pay which the tribunal assesses, in keeping with the National Minimum Wage, at £224.60.
(5) The claimant is entitled to be paid for his 20 days leave which the tribunal measures at £898.40 (£224.60 x 4).
(6) The claimant is entitled to two weeks’ gross pay for not receiving a written statement of his terms and conditions of employment. In the absence of any evidence about the claimant’s gross wage the tribunal awards £449.20 (£224.60 x 2).
(7) The respondent has not adduced any evidence as to the reason for the claimant’s dismissal. The dismissal is therefore unfair.
(8) The statutory dismissal procedure was not applied.
(9) The non-completion of the statutory dismissal procedure was wholly or mainly attributable to the respondent.
(10) Accordingly the respondent’s failure to complete the statutory dismissal procedure amounts to an automatic unfair dismissal under Article 130(A) The Employment Rights (Northern Ireland) Order 1996.
(11) In relation to the automatically unfair dismissal finding the tribunal considers that there should be an uplift of 50%. In so concluding the tribunal was influenced by the fact that the failure by the respondent to implement the statutory dismissal procedure was absolute and there are not any special circumstances advanced in evidence to make the uplift unjust or inequitable.
(12) The claimant is entitled to compensation for unfair dismissal as set out below. In addition to the loss to the date of hearing the tribunal allows a future loss of 26 weeks.
(13) The tribunal is satisfied that the claimant has attempted to mitigate his loss.
BASIC AWARD
£112.30 x 1 = £112.30
COMPENSATORY AWARD
From 18 May 2010 to 25 January 2011
£224.60 x 36 = £8,085.60
FUTURE LOSS
26 January 2011 to 27 July 2011
£224.60 x 26 = £5,839.60
= £13,925.20
LOSS OF STATUTORY RIGHTS
£250.00
UPLIFT OF 50% = £7,143.75
TOTAL COMPENSATION = £21,431.25
PRESCRIBED PERIOD
Is from 18 May 2010 to 12 April 2011.
PRESCRIBED AMOUNT
(£21,431.25 - £10,556.20 (£224.60 x 47)) = £10,875.05
(14) The tribunal does not make any Polkey reductions as it is not clear that the claimant would have been dismissed had proper procedures been applied.
(15) The claimant suffered a breach of his contract of employment when he did not receive his holiday pay, notice pay and the minimum wage.
(16) This is a relevant decision for the purposes of the Industrial Tribunals (Interests) Order (Northern Ireland) 1990.
(17) Your attention is drawn to the notice below which forms part of the decision of the tribunal.
Chairman:
Date and place of hearing: 25 January 2011, Belfast.
Date decision recorded in register and issued to parties:
Case Ref No: 1973/10
2357/10
CLAIMANT: Jordan Hempton
RESPONDENT: Touchline Automative
ANNEX TO THE DECISION OF THE TRIBUNAL
STATEMENT RELATING TO THE
RECOUPMENT OF JOBSEEKER’S
ALLOWANCEIINCOME -RELATED EMPLOYMENT AND SUPPORT ALLOWANCE/
INCOME SUPPORT
1.
The following particulars are given
pursuant to the Employment Protection
(Recoupment of Jobseeker’s Allowance and Income Support) Regulations Northern
Ireland) 1996; The Social Security (Miscellaneous Amendments No.6) (Northern
Ireland) 2010.
£
(a) Monetary award £28,032.20
(b) Prescribed element £10,875.05
(c) Period to which (b) relates: 18 May 2010 — 12 April 2011
(d) Excess of (a) over (b) £17,157.15
The claimant may not be entitled to the whole monetary award. Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance, Income-related Employment and Support Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department of Social Development has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance, Income-related Employment and Support Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department. The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.
2. The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing. When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.
3. The claimant will receive a copy of the
recoupment notice and should inform the Department of Social Development in
writing within 21 days if the amount claimed is disputed. The tribunal cannot
decide that question and the respondent, after paying the amount under (d) and
the balance (if any) under (b), will have no further liability to the claimant,
but the sum claimed in a recoupment notice is due from the respondent as a debt
to the Department whatever may have been paid to the claimant and regardless of
any dispute between the claimant and the Department.