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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Moran v Peter Armstrong-Woodruff, t/a ... Department for Employment and ... Peter Armstrong-Woodruff, t/a ... Department for Employment and ... Peter Armstrong-Woodruff, t/a ... Department for Employment and ... [2012] NIIT 00144_12IT (26 January 0 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/144_12IT.html
Cite as: [2012] NIIT 00144_12IT, [2012] NIIT 144_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REFS: 144/12
145/12
680/12
CLAIMANTS: 1. Mairead Moran
2. Claire McGrattan
RESPONDENTS: 1. Peter Armstrong-Woodruff, t/a Euroclean
2. Department for Employment and Learning
CLAIMANT: 3. Margaret Patricia Lutton
RESPONDENTS: 1. Peter Armstrong-Woodruff, t/a Wrays The Cleaners
2. Department for Employment and Learning
DECISION
The unanimous decision of the tribunal is that the first and second-named claimants were made redundant and the Tribunal orders the first named respondent to pay them redundancy payments as set out below.
The unanimous decision of the Tribunal is that the third named claimant was not made redundant and her claim for a redundancy payment fails.
Constitution of Tribunal:
Chairman: Ms P Sheils
Members: Mr H Stevenson
Mr P Archer
Appearances:
The claimants appeared and represented themselves.
The first-named respondent represented himself.
The second-named respondent was represented by Mr N Cruikshanks on behalf of DEL.
TITLE OF PROCEEDINGS
The Tribunal amended the title of the cases to that shown above.
THE FIRST & SECOND CLAMAINTS:
MS MAIREAD MORAN & MS CLAIRE MCGRATTAN
1. Ms Moran (date of birth: 19 July 1971), was employed by the first-named respondent on 6 November 2005 until 25 November 2011. She was employed by him as a dry-cleaner and worked for him at premises, called Euroclean, in Queen’s Street, Belfast.
2. Ms McGratton (date of birth: 3 October 1981), was employed by the first-named respondent on the same date in November 2005 until 23 November 2011. She was employed by him as a Manager and worked at the premises called Euroclean in Queen’s Street, Belfast.
3. The first-named respondent owned a number of dry-cleaning businesses. One of these was in Belfast called Euroclean at premises at Queen’s Street. The others were at premises in Banbridge, Portadown and Lurgan. The premises at Banbridge and Portadown were owned by a family called Wray. The premises in Lurgan were owned by a Ms Preston but all three businesses were known and traded as “Wrays The Cleaners”.
4. It was common case and agreed
that on or about 18 November 2011 the
first-named respondent advised both claimants that he had to close the shop and
that they were consequently being made redundant.
5. It was also common case and agreed between the parties that the first-named respondent advised the claimants that he was unable to pay them any redundancy pay as he was bankrupt.
THE TRIBUNAL’S CONCLUSIONS
6. Accordingly, the Tribunal concluded that the claimants had been made redundant by the first-named respondent and the Tribunal ordered the first-named respondent to pay each of them as follows:-
Ms Mairead Moran: £ 696.00
Ms Claire McGrattan: £1,522.50
THE THIRD CLAIMANT: MRS MARGARET PATRICIA LUTTON
7. Ms Lutton (date of birth: 25 June 1951), was employed by the first-named respondent on 6 May 2006 until 23 November 2011. She was employed as a shop assistant and worked for the first-named respondent in premises at Lurgan called “Wray’s the Cleaners”.
8. Mrs Lutton claimed that she had first become aware that the first-named respondent was in difficulties when an employee in the Portadown branch contacted her to see if the first-named respondent had spoken to her yet. That employee told the claimant that the Portadown staff had been advised that the business was being closed down.
9. The first-named respondent did not speak to the claimant on this matter until she approached him on Friday, 18 November, and asked him if he had anything to tell her.
10. It was agreed that at this point the first-named respondent told the claimant that he had bad news and maybe good news. The bad news was that the business was to close on 23 November. The good news was that he was trying to get someone to take over the Lurgan branch.
11. In the event, the first-named respondent was unsuccessful in this, and the business closed on 23 November 2011. On that day the first-named respondent paid the claimant her outstanding wages. The claimant returned to the shop on Friday, 25 November to ensure that a particular customer received her dry-cleaning, the money for which was credited to the first-named respondent’s bank account. The first-named respondent paid the claimant a sum of money in cash for this work when that customer left and the claimant closed the doors of the premises.
12. During the course of that weekend the claimant received a telephone call from a member of staff of the Portadown branch (referred to only as Charlie) and was asked if she would be interested in starting to work in the shop under new management. The claimant agreed to this. She attended the shop premises on Monday, 28 November and cleaned it thoroughly. She stated that she had not been paid for this work by the first-named respondent nor by anyone else.
13. The claimant also attended the
premises on Tuesday, 29 November, to clear out the remaining dry-cleaning
stock and again was not paid for this either by the
first-named respondent or anyone else. The first-named respondent did not
challenge these facts.
14. The first-named respondent confirmed that he had provided the claimant with a letter confirming that she had been made redundant. The claimant stated that she requested this so that she could take the letter with her to the Job Centre on the Monday following the closure of the business.
15. The first-named respondent also provided the claimant with her P.45 sometime in December 2011.
16. The claimant produced her P.60 for tax year 2011-2012 which showed total earnings in that year of £1,325.44.
17. The claimant stated that she commenced a new job with a new employer on 1 December 2011. It was not disputed that the claimant had begun working in her new job on a three day week basis and that she was earning slightly more money per hour than she had previously been. The claimant stated that her new employer was Mr Robert McCurdy.
18. The first and second-named respondents submitted that a transfer of undertakings had taken place and that therefore no redundancy had taken place.
19. For his part, the first-named respondent stated that he believed a transfer of undertakings had taken place. In this regard he relied on the fact that a number of events had taken place that suggested such a transfer.
20. For their part, the second-named respondent submitted that a transfer did occur and relied on the same points to support this.
21. The first-named respondent stated that his business had been a victim of the recession and of a subsequent dispute between himself and the owners of the premises at Banbridge, Lurgan and Portadown. He stated that he had thought the dispute was “resolvable” but accepted that it had required him to close the business at all three premises.
22. He stated that it had been agreed between him and the Wrays that all premises would close on Monday, 28 December and the last day of trading would be Friday, 25 November.
23. However, the first-named respondent subsequently discovered that a staff member had arranged to meet Mr Wray at the Banbridge premises on Thursday, 24 November. However, the first-named respondent was unable to provide any evidence or detail of that meeting.
24. The first-named respondent went to all three premises on Saturday and discovered that the locks had been changed. He went to the shops again on Monday and there were notices on each saying “Under New Management” and the Portadown and Banbridge premises were trading.
25. The first-named respondent stated that when he went to the Lurgan shop that Monday, he spoke to the Landlady (Ms Preston). He returned keys to her and he stated that she advised him that the claimant was on her lunch break. The first-named respondent concluded from this that the claimant was working there that day.
26. The claimant disputed that the first-named respondent’s visit had been on Monday. She stated the visit had occurred on Thursday, 1 December, her first day in her new job.
27. The first-named respondent
also stated that he had made arrangements with a
dry-cleaning engineer to strip out the premises in Banbridge and Portadown of
equipment but before this was done the equipment had been seized by the Wray’s.
The first-named respondent stated that this had happened only to the shops at
Banbridge and Portadown and that he had taken most, if not all, of the assets
from the Lurgan shop himself.
28. It was not disputed that most
of the employees continued working in the Portadown, Banbridge and Lurgan shops
under new ownership/management after the
first-named respondent had ceased to trade on 25 November 2011.
THE LAW
29. The Tribunal considered the Transfer of Undertakings Regulations 2006 as amended and relevant case law.
The Regulations
“A relevant transfer
3 - (1) These Regulations apply to—
(a) a transfer of an undertaking, business or part of an undertaking or business situated immediately before the transfer in the United Kingdom to another person where there is a transfer of an economic entity which retains its identity;
………….
(4) Subject to paragraph (1), these Regulations apply to—
(a) public and private undertakings engaged in economic activities whether or not they are operating for gain;
(b) a transfer or service provision change howsoever effected notwithstanding—
(i) that the transfer of an undertaking, business or part of an undertaking or business is governed or effected by the law of a country or territory outside the United Kingdom or that the service provision change is governed or effected by the law of a country or territory outside Great Britain;
(ii) that the employment of persons employed in the undertaking, business or part transferred or, in the case of a service provision change, persons employed in the organised grouping of employees, is governed by any such law;
(c) a transfer of an undertaking, business or part of an undertaking or business (which may also be a service provision change) where persons employed in the undertaking, business or part transferred ordinarily work outside the United Kingdom.”
The Tribunal also considered relevant case law, in particular Spijkers v Gebroeders Benedik Abbatoir CV [1986] CMLR 296 (referred to here as the Spijkers case) and Spaceright Europe Ltd v Baillavoine [2011] EWCA CIV 1565 CA (referred to here as the Spaceright case).
THE TRIBUNAL’S CONCLUSIONS
30. The Tribunal noted that the first and second named respondents based the defence of their claims, that there had been a relevant transfer in this case, on the bases that much of the assets belonging to the first-named respondent had transferred ownership, by seizing, to the Wray’s at the end of November 2011 and that most of the staff were still working in the shops which continue as going concerns and to trade as “Wray’s the Cleaners”.
31. The first-named respondent gave no evidence that he had been involved in any negotiations in respect of any potential transfer. His evidence was that he had been actively looking for a new buyer but had not succeeded.
32. The first-named respondent reached the conclusion that a transfer had taken place, after the event, when aspects of the arrangements he had made with the Wray’s changed. This was when he recalled seeing one of his ex- employees speaking to one of the Wray’s in the last week of his ownership of the business and the sudden lock changes and the appearance of the new signs on the shop windows.
33. There was no evidence presented to the Tribunal by either respondent of the identity of the transferee. Assets may have been transferred to the Wray’s but this was the result of an on-going and separate dispute between the first named first-named respondent and the Wray’s. The claimant continued to work at her previous premises under a new employer, Mr McCurdy, not the Wray’s.
34. The Tribunal concluded that there was sufficient evidence to reach a conclusion that a transfer had taken place “by operation of law”, as per the Regulations. The Tribunal also noted that the Spijkers case held that a transfer could occur without any contractual link between the transferor or transferee by which this Tribunal understood to include any prior or post agreement.
35. Additionally the Tribunal took into account the Spaceright case. This case held that in a case of dismissal where there has been a relevant transfer the employment protections offered by the transfer held good, even if the identity of the transferee was unknown prior to or post the transfer. This Tribunal concluded that the fact that the identity of the transferee here was unknown did not preclude the fact of the transfer.
36. Accordingly the Tribunal concluded in light of the fact that a transfer had taken place the claimant had not been made redundant and her claim for a redundancy payment fails. No order lies in respect of the notice pay claimed. In view of the conclusion of the Tribunal the first named respondent is not liable for outstanding holiday pay.
37. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 15 August 2012, Belfast.
Date decision recorded in register and issued to parties: