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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Herridge v TLR Resourcing Ltd (in liquida... Select Management and Security... Department for Employment and ... [2012] NIIT 01131_12IT (11 January 0 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/1131_12IT.html
Cite as: [2012] NIIT 01131_12IT, [2012] NIIT 1131_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1131/12
CLAIMANT: William Herridge
RESPONDENTS: 1. TLR Resourcing Ltd (in liquidation)
2. Select Management and Security Ltd
3. Department for Employment and Learning
DECISION
The unanimous decision of the tribunal is that:
(A) The claimant’s claim against TLR in respect of wages is well-founded.
(B) The claimant’s claims against TLR in respect of holiday pay, notice pay, redundancy pay, unfair dismissal and in respect of a protective award, are not well-founded. Accordingly, all of those claims are dismissed.
(C) None of the claimant’s claims against Select is well-founded and accordingly all of those claims are dismissed.
(D) The claimant is refused leave to amend his claim form so as to include an SPCR consultation claim.
(E) The claimant is refused leave to amend his claim form so as to include a TUPER consultation claim.
(F) The claimant’s appeal against the Department’s wages decision is upheld.
(G) All of the claimant’s other appeals against the Department’s refusals are dismissed.
Constitution of Tribunal:
Chairman: Mr P Buggy
Members: Mr D Hampton
Mr B Hanna
Appearances:
The claimant was self-represented.
TLR was debarred from participating in the proceedings, because it had not presented a response.
Select was represented by Mr F Lavery, Barrister-at-Law, instructed by Donnelly & Wall, Solicitors.
The Department was represented by Mr P McAteer, Barrister-at-Law, instructed by The Departmental Solicitor’s Office.
REASONS
1. At the end of the hearing, we issued our decisions orally. At the same time we gave oral reasons for our decisions. Accordingly, what follows is by way of summary only.
2. In this Decision, we refer to TLR Resourcing Ltd as “TLR”, we refer to Select Management and Security Ltd as “Select”, and we refer to the Department for Employment and Learning as “the Department”.
Background
3. Shortly before Christmas 2011, TLR went into administration. Immediately afterwards, TLR purported to dismiss the claimant. He was employed by TLR as a Security Officer at that time. TLR had a contract to provide security services for NACCO Materials Handling Group Ltd (“NACCO”), at Craigavon. In his capacity as a TLR security officer, the claimant had worked there for several years. Select entered into a contract with NACCO soon after Christmas 2011. That contract continues. Under that contract, Select provides security services for NACCO, at the same site in Craigavon. Since then, the claimant has worked as a Security Officer at that site, for Select, carrying out the same services in NACCO as he had previously carried out.
The legislation
4. The Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006 (“the SPCR”) can be summarised as follows.
5. Provided that certain conditions are satisfied, the Regulations apply to “a service provision change”. In the context of the Regulations, a service provision change includes a situation in which activities cease to be carried out by one contractor (“X”) on a client’s behalf and are carried out instead by a subsequent contractor (“Y”) on that client’s behalf. In the present context, the most relevant condition is that, immediately before the service provision change, there must have been an organised grouping of employees which had as its principal purpose the carrying out of the activities concerned on behalf of the client.
6. Regulation 4(1) of the SPCR establishes a general rule (which is subject to an exception which is not relevant in the present context). According to that general rule, a service provision change shall not operate so as to terminate the contract of employment of any person who is employed by the transferor and assigned to the organised grouping of resources or employees that is subject to the service provision change; instead, according to that general rule, any such contract is to have effect after the transfer as if it had originally been made between the person so employed and the transferee.
7. Regulation 4(2) of SPCR establishes another general rule. That second rule is subject to an exception which is set out in Regulation 8 of SPCR (which we refer to below). According to that second general rule, on the completion of a service provision change, all of the transferor’s rights, powers, duties and liabilities under or in connection with any relevant contract of employment are transferred to the transferee; and any act or omission before the transfer is completed (of or in relation to the transferor) in respect of the relevant contract of employment, or in respect of a person assigned to that organised grouping of resources or employees, is to be deemed to have been an act or omission of or in relation to the transferee.
8. The relevant provisions of Regulation 8 are to the following effect.
9. If the transferor is in administration by the time of the service provision change, Regulation 4(2) does not operate so as to transfer, from the transferor to the transferee, liability in respect of some employment debts (including wages debts) which the transferor had already incurred prior to the service provision change. Instead, liability in respect of such debts becomes a liability of the Department.
10. That Departmental liability (and the consequential escape, from liability, of the transferee) is subject to some exceptions and limits, all of which are irrelevant in the present context.
11. The Transfer of Undertakings (Protection of Employment) Regulations 1996 (“TUPER”) make provision in relation to transfers which are “relevant transfers” within the meaning of those Regulations. Those TUPER provisions are, for practical purposes, identical to all the SPCR provisions which have been referred to above.
12. In some circumstances, debts owed by employers to their employees, arising out of contracts of employment, are the subject of a statutory guarantee. The statutory guarantee provisions are to be found in Chapter VI of Part XII, and in Part XIV, of the Employment Rights (Northern Ireland) Order 1996 (“the Order”).
13. In the circumstances of the present case, the potential implications of the statutory guarantee can be summarised as follows. At Christmas 2011, TLR went into administration. (It has subsequently gone into liquidation.) Accordingly:
(1) If there had been no service provision change, and if there had been no relevant transfer of the relevant entity under the transfer of undertakings legislation, the Department would have become liable for any debts owed by TLR, as at Christmas 2011, in respect of notice pay or redundancy pay.
(2) On the other hand, if there was a service provision change, within the meaning of the SPCR, or if there was a relevant transfer, within the meaning of TUPER, whereby the relevant entity (the entity to which the relevant claimant was assigned at the time of the service provision change or relevant transfer) transferred to Select, the statutory guarantee is not available to the claimant, because his contract of employment is deemed always to have continued with Select.
14. Regulation 13 of SPCR imposes an obligation upon a transferor to consult, in relation to a service provision change, those of its employees who are likely to be affected by it. If a transferor-employer has failed to consult its employees, in relation to a service provision change, a complaint can, in certain circumstances, be made by an affected individual employee, to an industrial tribunal, on that ground. Where a tribunal finds that such a complaint against a transferor to be well-founded, it must make a declaration to that effect, and it may order the transferor to make appropriate compensation to the relevant employee. The transferee is jointly and severally liable with the transferor in respect of any compensation payable pursuant to any such award.
15. TUPER includes provisions in respect of a failure by a transferor-employer to consult its affected employees; and those provisions are practically identical to the provisions which have already been mentioned above in respect of SPCR consultation failures.
The claims
16. When TLR went into administration on 22 December 2011, the administrators issued a letter to the claimant, whereby they purported to dismiss him. There had been no prior consultation with the claimant whatsoever, in advance of the issuing of that letter of “dismissal”.
17. It appears that TLR would have no funds available to pay the amount of any tribunal award of compensation.
18. An employee who seeks to invoke the statutory guarantee, but whose application is refused by the Department, has a right of appeal to an industrial tribunal.
19. The claimant made applications to the Department, in the Department’s role as statutory guarantor, for payments in respect of wages, holiday pay, notice pay and redundancy pay. Those applications were refused. In these proceedings, the claimant appeals against those refusals.
20. In these proceedings, the claimant also makes claims, against TLR, or (alternatively) Select. Those are claims in respect of:
wages,
holiday pay,
redundancy pay,
notice pay,
unfair dismissal, and
a claim for a protective award
21. The claimant has sought leave to make claims against TLR, or (alternatively) against Select in respect of an SPCR consultation claim and in respect of a TUPER consultation claim.
The course of the proceedings
22. This is one of three “lead” cases, which were heard together. (The other “lead” cases are the cases of Hamilton (1035/12) and Elliott (960/12).) It was agreed by all of the parties, in all of those “lead” cases, that evidence given in one of those “lead” cases should be treated as evidence given in all of the “lead” cases.
Conclusions
23. We were satisfied that there had been a relevant service provision change, whereby the security services formerly carried out for NACCO by TLR ceased to be carried out by TLR and were soon afterwards carried out instead by Select.
24. We were satisfied that, immediately before that service provision change, there was an organised grouping of TLR employees which had as its principal purpose the carrying out of the relevant security services for NACCO. We were also satisfied that, immediately before the service provision change, this claimant was permanently assigned to that organised grouping.
25. We are satisfied that the events and circumstances which resulted in there being a service provision change in this case also resulted in a “relevant transfer” for the purposes of TUPER.
26. According to the claimant’s contract of employment, he could be required by TLR to work at any of its sites, at the premises of any of its clients within the United Kingdom, as TLR might reasonably require from time to time. Despite that contractual provision, we were satisfied that the claimant was assigned (both for the purposes of SPCR and for the purposes of TUPER) to the part of the TLR business which carried on the NACCO contract.
27. In reality, the claimant never worked on any contract other than the NACCO contract at Craigavon. If, (contrary to the factual situation in the present case) the claimant had, from time to time, worked on other contracts, apart from the NACCO contract, we would still have regarded him as having been assigned to the NACCO contract, both for the purposes of SPCR and for the purposes of TUPER, if he had spent the majority of his time on the NACCO contract.
Implications
28. The implications of the conclusions set out above are as follows:
(1) The claimant was not dismissed.
(2) Instead, his contract continued, seamlessly, without a break.
(3) From late December 2011, the claimant became, and he continues to be, an employee of Select.
(4) In that capacity, from late December 2011 onwards, he was entitled to enjoy all the terms and conditions of employment to which he was subject on 22 December 2011.
29. Because, as a matter of law, there has been no dismissal:
(1) The claimant’s notice pay claim, his redundancy pay claim, his unfair dismissal claim and his protective award claim (both against TLR and against Select) must be dismissed.
(2) For the same reason, the claimant’s notice pay, redundancy pay, unfair dismissal and protective award appeals (against the Department) must also be dismissed.
30. Because of the interplay between Regulation 8 of SPCR and Regulation 4 of those Regulations, Select has not become responsible in respect of any wages debt which is still owed to the claimant in respect of the period up to the date upon which Select took over the NACCO contract. Instead, as the Department accepts, any such liability has instead become a liability of the Department.
31. Because the claimant’s contract of employment continued with Select (who replaced TLR as the employer), the claimant has no valid monetary claim in respect of holiday entitlements which had accrued as at 22 December 2011, in respect of holidays accrued, but as yet untaken, on that date. However, responsibility for his leave entitlements, as at 22 December 2011, has transferred to Select, and has become the responsibility of Select.
Next steps
32. This is a Decision only in relation to liability issues. (All of the parties agreed that the amounts of any sums which might become due, to this claimant, or to any of the “lead” claimants, did not have to be quantified during the course of this phase of the proceedings). We are sure that the claimant and the Department will be able to agree the amount of wages, if any, which are still due to the claimant from the Department. If, however, those two parties are unable to agree on that matter, the proceedings will have to be reconvened for a remedies hearing.
The consultation claims
33. During the course of this hearing, we also conducted a pre-hearing review, on the questions of whether or not the claimant should be granted leave to amend his claim so as to include an SPCR consultation claim and/or a TUPER consultation claims. In each instance, we have decided that the claimant should be refused leave to make such an amendment. In each instance, we refused leave because we were satisfied that, in the circumstances of this case, the relevant consultation complaint would be doomed to failure. We were satisfied that, if we allowed the claimant to pursue either or both of the consultation complaints, it was inevitable that the tribunal would conclude that it was not reasonably practicable, in the particular factual circumstances of this case, for any relevant consultation to be carried out.
Chairman:
Date and place of hearing: 3 – 4 September 2012, Belfast
Date decision recorded in register and issued to parties: