Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2012/809_12IT.html
Cite as: [2012] NIIT 809_12IT, [2012] NIIT 00809_12IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 809/12

CLAIMANT: Elizabeth Sempey Wilson

RESPONDENT: Rex Humphrey t/a J. A. Humphrey Agriculture

DECISION

The decision of the tribunal is that the claimant is entitled to three days holiday pay in the sum of £208.98.

Constitution of Tribunal:

Chairman (sitting alone): Mr S A Crothers

Appearances:

The claimant was presented and represented herself.

The respondent did not enter a response to the claim.

The title of the respondent is amended to that shown above.

Issue

1. The issue before the tribunal was whether the claimant was entitled to any outstanding holiday pay, and if so, how much.

Sources of Evidence

2. The tribunal heard evidence from the claimant and considered any relevant documentation.

Findings of Fact

3. Having considered the evidence insofar as same related to the issue before it, the tribunal made the following findings of fact, on the balance of probabilities:-

(i) The claimant was employed as a Sales Manager by the respondent from

1 January 1995 until 30 November 2011. She was notified on 29 November 2011 by the respondent that her employment would finish the next day. The claimant is still upset and traumatised by the manner in which the respondent conducted her redundancy. After taking advice from the Citizens Advice Bureau she eventually received the remaining 7 weeks of the notice pay due to her on 20 January 2012.

(ii) The claimant subsequently became aware of an entitlement to outstanding holiday pay and despite contacting the respondent on several occasions up to 1 May 2012, did not receive any outstanding monies for holiday pay. The claimant presented her claim to the tribunal on 4 May 2012, and for removal of doubt the tribunal is satisfied that her claim was presented in time.

4. With assistance from both the Citizens Advice Bureau and the Labour Relations Agency, the claimant claimed £279 for three days outstanding holiday pay. This was based on a week’s gross pay of £279.22 and not the net weekly amount of £209. The claimant worked a three day week and she was paid £69.66 net per day.

5. The claimant did not have a written contract with the respondent allowing the respondent to request her, as an employee under notice, to leave immediately.

The Law

6. (i) The tribunal considered the relevant section in the Employment Rights (Northern Ireland) Order 1996 relating to notice and unlawful deductions from wages. It also considered all of the relevant provisions, including time limits, relating to breach of contract in the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994, and relevant case law.

(ii) There is nothing to prevent an employer from giving an employee a payment in lieu of notice. In some cases employers find it necessary for good commercial or employee relations reasons to ask an employee under notice to leave immediately. However, unless there is a term in the contract allowing for this, the employer will be breaking the contractual notice obligations by not allowing the employee to work out his or her notice. In such circumstances a payment in lieu of notice is given but this must cover the loss of all contractual benefits during the notice period, including holiday pay.

Conclusions

7. The tribunal carefully considered the claimant’s unchallenged evidence in arriving at its findings of fact. Having applied the relevant principles of law to the findings of fact, the tribunal concludes that the claimant is entitled to a payment for three days outstanding holiday pay calculated on a net basis at £69.66 x 3 = £208.96.

8. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 3 July 2012, Belfast

Date decision recorded in register and issued to parties:

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