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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Hamilton v Department for Employment and ... [2012] NIIT 01035_12IT (25 January 0 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/1035_12IT.html
Cite as: [2012] NIIT 1035_12IT, [2012] NIIT 01035_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1035/12
CLAIMANT: Caoimhe Ann Hamilton
RESPONDENT: Department for Employment & Learning
DECISION
The unanimous decision of the tribunal is that the claimant’s appeal is allowed.
Constitution of Tribunal:
Chairman: Mr P Buggy
Members: Mr D Hampton
Mr B Hanna
Appearances:
The claimant was self-represented.
The respondent Department was represented by Mr P McAteer, Barrister-at-Law, instructed by The Departmental Solicitor’s Office.
REASONS
1. At the hearing, we issued our decision orally. At the same time, we gave oral reasons for our decision. Accordingly, what follows is by way of summary only. The claimant was employed by TLR Resourcing Ltd (“TLR”) until on or about 22 December 2011, when that company went into administration. TLR subsequently went into liquidation. Soon after Christmas 2011, many of the security contracts, which had been held by TLR, were taken over by Select Management & Security Ltd (“Select”).
2. Pursuant to certain provisions of the Employment Rights (Northern Ireland) Order 1996 (“the Order”), the Department for Employment & Learning (“the Department”) acts as the statutory guarantor in respect of certain debts which are owed by employers to their employees.
3. In the context of the collapse of TRL, the claimant made claims, in these proceedings, against the administrator of TLR, in respect of wages, holiday pay, unfair dismissal, and a protective award. On 14 August 2012, those claims were dismissed, on the basis that the administrator was never the claimant’s employer and, accordingly, could not be liable in respect of claims which could only be pursued against the employer.
4. The claimant made an application to the Department in the Department’s role as statutory guarantor. That claim was refused. In these proceedings, the claimant appeals against that refusal. This is our Decision in respect of that appeal.
5. In its response to this appeal, the Department made the following points:
“The claimant was an employee of [TLR] until 23 December 2011. She applied to the Department for payments from the National Insurance Fund … by way of an RP1 application … on the basis that she had been made redundant by her employer. Shortly after the purported termination of her employment by [TLR] the claimant began working for [Select].
The claimant’s application was assessed and subsequently rejected by the Department. The claim is resisted on the following grounds.
The claimant was not in fact made redundant but rather her employment transferred to [Select] from [TLR] as part of a relevant transfer of undertakings within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations 2006.
The continuity of employment and the employment rights of the claimant have been preserved, her employment has not been terminated and she is not entitled to redundancy or specific insolvency payments from the National Insurance Fund.
Any claims for arrears of pay (not payment from the National Insurance Fund), holiday pay or other outstanding contractual debts should be directed towards [Select]. [Select] also have a further interest in the matter in that if the Department is correct and the claimant’s employment has transferred to [Select] it is inter alia obliged to recognise the Claimant’s continuity of employment. … ”
6. Accordingly, the Department’s resistance to this appeal is based on the proposition that there has been a relevant transfer, within the meaning of the Transfer of Undertakings (Protection of Employment ) Regulations 2006 (“TUPER”) and that the claimant was assigned to the transferred entity.
7. This case is one of a considerable number of cases which have been brought as a result of the collapse of TLR.
8. Out of all those cases, three cases, including this case, were selected as “lead” cases. This case was heard alongside the two other “lead” cases. The two “lead” cases were the case of Herridge (1131/12) and Elliott (960/12).
9. It was agreed, by all the parties, in all of the “lead” cases, that evidence given in one of the “lead” cases should be regarded as evidence in all of the “lead” cases.
10. It was also agreed, by this claimant and by the Department, that, at this stage of the case, the tribunal should decide only whether the claimant’s appeals should be granted or refused; and that, if the claimant’s appeals were granted, she and the Department would do their best to agree issues in relation to remedies; and, accordingly, the tribunal did not need to deal with remedies at this stage of the case.
11. In her claim form, the claimant provided details of her claim in the following terms:
“On 23rd December 2011 while at work in [TLR], where I worked as the Northern Ireland Recruitment and Security Manager, I was made redundant by the [administrators of TLR] who issued me with a redundancy letter dated 22nd December 2011.
[The administrators] issued with me with a claim form RP1 which I completed and returned to [them] as requested.
On 26th December 2011 I was offered a job by [Select]. I accepted this job and began work for [Select] on 26th December 2011.
I received a letter from [the Department] dated 11th May 2012 rejecting my application because in the Department’s view the business in which I was employed was transferred to a new employer.
I received an additional letter from [the Department] dated 31st May 2012 stating that I would receive a cash payment of £692.69 arrears of pay.
I was the [Northern Ireland] Recruitment and Security Manager for [TLR]. This position required me to manage all recruitment staff, security staff and office administration staff ensuring that both recruitment and security targets were met. I also managed the major recruitment and security contracts.
At [Select], I am an Operations Manager which requires me to manage all their security contracts and security staff. I no longer work in recruitment.
I was made redundant from [TLR] (a recruitment company) and now carry out a very different role in a security company.
I feel I have been wronged by [the Department] due to their failure to acknowledge that I was made redundant and their refusal to pay my full arrears of pay, holiday pay and notice pay. I also feel the extremely long time they took to make their decision was unacceptable and added more stress to this already highly stressful situation.
…
I no longer work in recruitment or manage office-based staff. … ”
12. It was agreed between the claimant and the Department that her appeal should be allowed if the tribunal concluded that there had been no relevant transfer (within the meaning of TUPER), or if the tribunal concluded that there had indeed been a relevant transfer, but that the claimant had not been assigned to the transferred entity at the time of that transfer.
13. The claimant’s appeal has been allowed, against the following background and for the following reasons.
14. The tribunal has concluded that there was a relevant transfer of that part of TLR which dealt with security contracts. The tribunal has not concluded that there was any relevant transfer of that part of TLR which dealt with recruitment contracts.
15. We have concluded that the claimant was not assigned to the part of TLR which dealt with security contracts. Instead, she was the overall manager of the overall TLR business in Northern Ireland (as distinct from being part of the “human stock” of the security part of the business).
16. In Gale v Northern General Hospital [1994] IRLR 292, the Court of Appeal was considering whether a particular employee could properly be regarded as having been assigned, for TUPE purposes, to a particular entity, which (it was accepted) had been the subject of a relevant transfer. The court concluded that, in deciding whether a particular employee was assigned to a transferred entity, the key question was whether or not she was part of the “human stock” of that entity.
17. In this case, we were satisfied that this claimant was not part of the human stock of that part of the TLR business which consisted of providing security services. Instead, she was assigned to the overall TLR business, which, very roughly, was split approximately 50/50 between the security and recruitment business.
18. The implications of the foregoing are as follows. The claimant was dismissed by TLR, without notice, on or about 22 December 2011. She was entitled to be paid her wages by TLR to the date of dismissal. She was entitled to receive payments from TLR in respect of accrued holiday leave entitlements which, at that point, had not yet been taken. TLR was liable to her in respect of any loss sustained by her as a result of that company’s failure to provide due notice of the termination of employment.
19. We considered that the Department’s response had to be construed as including an assertion that the claimant’s application to the Department was also refused because of the effect of the Service Provision Change Regulations (“SPCR”). We reject that assertion also. We are satisfied that there was a service provision change (within the meaning of the SPCR) of the security business, but we are not satisfied that there was a service provision change of the recruitment part of the business. On the question of assignment (for the purposes of the SPCR), our conclusions are identical to the conclusions which we arrived at in respect of TUPER assignment.
20. The claimant and the Department should now promptly discuss whether, as a result of this Decision, the Department has any outstanding liabilities to the claimant.
Chairman:
Date and place of hearing: 3 – 4 September 2012, Belfast
Date decision recorded in register and issued to parties: