Industrial Tribunals Northern Ireland Decisions

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Cite as: [2013] NIIT 01883_12IT, [2013] NIIT 1883_12IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1883/12

CLAIMANT: Nitin Kumar Shah

RESPONDENT: Kamrul Jjman, also known as Kamrul Juman otherwise Jaman, trading as “Star Bengal Restaurant”

DECISION

The unanimous decision of the tribunal is as follows:

The proper respondent is Kamrul Jjman, also known as Kamrul Juman or Jaman, trading as “Star Bengal Restaurant”.

The claimant’s respective claims of unfair dismissal, pay in lieu of notice and of no statement being provided of reasons for dismissal are not made out and are dismissed.

The tribunal finds that the claimant was subject to unlawful wages deductions, non-payment of holiday pay and was not provided with written itemised pay statements and, further, was not paid the statutory minimum wage throughout the employment by the respondent.

The tribunal Orders the respondent to pay to the claimant the total sum of £5,101.76 in compensation, computed as follows:-

National Minimum Wage deficiency: £3,545.28

Holiday Pay Due: £1,361.92

Wages Otherwise Due: £194.56

Total: £5,101.76

Constitution of Tribunal:

Chairman: Mr J V Leonard

Members: Mr C McIlwaine

Mr J McKeown

Appearances:

The claimant appeared and represented himself.

The respondent was represented by Mr F Gilmore of Frank Gilmore & Company.

REASONS

THE ISSUES FOR DETERMINATION AND THE EVIDENCE

1. By claim dated 17 September 2012 the claimant made claims against the respondents respectively named: (1) Star Bengal Restaurant, and (2) Kamrul J Jaman, in regard to unfair (“instant”) dismissal, unlawful deduction of wages, no statement of reasons being provided for dismissal, no holiday pay, no notice or pay in lieu of notice. Also in his claim the claimant made reference to his not being paid the (statutory) minimum wage and to breach of a statutory right. The claimant also made claims which concerned an allegation that the employer had allegedly involved himself with the claimant's “private life”, as it was put, and reference to the employer allegedly not employing enough staff to cover weekends or even daily work. In respect of these latter two complaints, the tribunal determined that it had no statutory jurisdiction. In the respondent's written response to these respective claims, Mr Frank Gilmore, of Frank Gilmore and Company, an accountant acting on behalf of the respondent, by letter dated 17 October 2012 to the tribunal, made reference to an alleged assault made upon the respondent's restaurant manager. Mr Gilmore indicated in the letter that this alleged assault was being investigated by the police. Mr Gilmore’s letter on behalf of the respondent further alleged that the claimant would come into the respondent's restaurant during the claimant's own (non-working) time to watch “the Bengladeshi Satilite TV system” (sic) and it was also contended that the claimant’s hours of employment, as stated in the claimant's claim, were incorrect. There was also a reference made to the working tax credit system. At the outset of the hearing it was clarified that the respondent's response and defence to these proceedings also included the defence that there had been no dismissal of the claimant by the respondent. It was contended that the claimant had left work himself after an altercation and that, upon advice from the police, the claimant had not returned to the workplace. The respondent's case was thus that the employment had come to an end in this manner, without there having been any dismissal of the claimant by the respondent. Accordingly, the tribunal had to determine these foregoing issues.

2. The tribunal at hearing heard oral evidence from the claimant. The tribunal also heard oral evidence from witnesses who included Mr Julhas Uddin (an employee of the respondent), Mr Shamshun Choudhury (stated to be the “manager” of the respondent's restaurant - although the tribunal noted that Mr Choudhury himself took issue with that description), Mr Kamrul Jjman, also known, so the tribunal understands, as Kamrul Juman, otherwise Jaman, (the proprietor of the “Star Bengal Restaurant”) and Mr Frank Gilmore (the respondent’s accountant). In regard to the witness evidence, Mr Gilmore presented the case on behalf of the respondent. After part of the respondent's case had been put by means of the evidence of Mr Uddin, Mr Gilmore indicated that he did not intend to call anyone other than his first witness, Mr Uddin. However, as these other persons were present in the tribunal hearing room and as these were adjudged by the tribunal to be potential witnesses of some value, the tribunal, of its own motion, determined that the other persons mentioned above might be of value to the tribunal in clarifying matters of fact and pertinent issues and thus might be of assistance to the tribunal in reaching a proper, informed, determination. These witnesses were accordingly called by the tribunal under the powers available to the tribunal in that regard in order to give evidence for the purposes of assisting the tribunal in its determination of the case. The tribunal was provided with some documentation by Mr Gilmore concerning wages records and also the tribunal was provided by the claimant with some documentation in respect of the claimant's subsequent employment after employment with the respondent came to an end. The tribunal is compelled to make the observation at this point (and with some regret) that it found a considerable amount of oral evidence in the case to be quite unsatisfactory. The tribunal harboured significant concerns that part of the oral evidence provided lacked cogency and credibility and that some of the witnesses were being far from candid. In such circumstances the tribunal’s task in determining the facts was made somewhat onerous. Matters of significance were thus determined by adjudicating upon which parts of the evidence, on balance, were to be preferred, based upon an assessment of the relative credibility of various witnesses. Any material facts were accordingly determined on that basis. The tribunal shall make further observations below in respect of this.

3.1 In consequence of the oral and documentary evidence adduced, the tribunal made the following findings of fact, upon the balance of probabilities:-

In April 2011 the claimant, who was unemployed at the time, was contacted by the owner of the Star Bengal Restaurant, Mr Kamrul Jjman, otherwise Kamrul Juman, otherwise Kamrul Juman (hereinafter referred to as “the respondent”). The tribunal noted that in the wages documentation, a P60, and the letter from Mr Gilmore, the second name was given as “Jjman” but the claimant referred in his claim form to the name as “Jaman” and the respondent gave his name as “Juman” to the tribunal. Having heard evidence in that regard, the tribunal's determination is that the respondent was the sole proprietor of “Star Bengal Restaurant” and the sole employer of the claimant. Thus the tribunal finds that the respondent above named is the proper respondent in the matter. Some basic terms of employment were orally agreed between the respondent and the claimant and the claimant commenced employment in the respondent's restaurant, the “Star Bengal Restaurant”, which was located at 108 Abbey Street, Bangor, County Down, working as a waiter. The respondent's evidence (which was supported by Mr Gilmore in his evidence) was that the employment of the claimant indeed did not commence until 1 February 2012. However, the claimant's steadfast contention in his evidence was that his employment by the respondent had commenced on 1 April 2011. The claimant rejected this February 2012 starting date put forward by the respondent as being incorrect. Accordingly, there was a clear disparity in evidence between the two sides as to the proper commencement date. The tribunal was required to resolve this conflict. Examining the totality of the evidence, and specifically the evidence upon this important point, and in doing so conducting a careful examination of the relative credibility and consistency of the evidence of the various witnesses, the tribunal preferred the claimant's evidence when set against the evidence of the respondent and the other witnesses. The tribunal came to this conclusion, unanimously, for reasons of clarity, cogency and consistency both in respect of the totality of the evidence and also when examining evidence concerning the specific matter of employment commencement date in the case.

3.2 At the outset of this employment, it seems to have been orally agreed between the parties that the claimant would work for six months without the benefit of any paid annual leave. Then, having done so, the claimant would be contractually entitled to one week of paid annual leave. It seems to have been agreed that this would be the case until the end of the first 12 months of work with the respondent. Leaving aside for the moment issues of statutory protection of employment rights, the tribunal is quite clear that this was the arrangement actually agreed between the claimant and the respondent. Thus, the claimant was to have worked for a full 12 months and in that time was to have been entitled to only one week’s paid annual leave up to the end of the first year of service. It was abundantly clear to the tribunal that the claimant, for his own part, had no notion whatsoever of his statutory rights to paid annual leave. It must be observed, at this point, that notwithstanding considerable endeavours having been made on the part of various statutory and voluntary agencies to communicate to appropriate persons in various sectors of industry and commerce any employer’s statutory obligations towards employees or workers, it is troubling that the distinct impression gained by the tribunal in this case was that it was regarded by the respondent (and by implication his advising accountant) as being acceptable to afford to any employee merely one week of paid annual leave throughout the first full year of employment. The claimant did indeed take leave, going to India for a period commencing on 21 January 2012, and returning from India in or around 18 February 2012. That period of absence, however, was dealt with by the respondent as unpaid leave and there was no evidence that the claimant received any paid annual leave throughout this employment.

3.3 There were, regrettably, other significant and indeed fundamental issues of conflict in the evidence. The next issue of conflict concerned whether the respondent required the claimant to attend work for six days in each week or for a lesser number. The claimant was insistent that he worked for the respondent for six days each week, commencing at 3.30 pm and working until 11.30 pm each working day, with one day off each week, normally in the early part of the week. The respondent's corresponding contention was that the employment was for three days only each week. The tribunal notes that the respondent was afforded the opportunity to provide a clear account to the tribunal of the precise arrangement agreed in respect of the claimant's working days and hours in each working week and how these were specifically arranged and managed. This opportunity included affording an explanation (in reference to the wages records produced by Mr Gilmore) of the stated increase in working time at the start of the new tax year in April 2012 (in this respect see paragraph 3.6 in decision). The respondent gave no explanation and his evidence was vague and unspecific. The tribunal, once again, finds it regrettable that there was a significant evidential conflict upon such fundamental an issue. Having considered all of the evidence, the tribunal resolved this conflict, without difficulty, by preferring the evidence of the claimant. This is so for reasons of cogency and consistency in assessing the comparative evidence of the claimant and of the respondent and the other witnesses. The tribunal encountered difficulties with the general and specific credibility of the respondent's evidence and of the other witnesses who supported the respondent's position. The tribunal's determination is that the claimant worked for the respondent for six days each week (from 3.30 pm to 11.30 pm), being a total of 48 hours in each working week. The claimant was paid each week, in cash, at the end of the working week, the sum of £240.00 in respect of this 48 hour working week. This equates to pay of £5.00 per hour. At times in his oral evidence to the tribunal, the claimant appeared to suggest that he was paid £220.00 each week, but the tribunal believes that the correct figure was £240.00 per week as stated in his application to the tribunal.

3.4 Regarding the claimant's contention concerning the absence of any statement in writing of employment particulars, the respondent did not controvert that suggestion. No written terms and conditions of employment were ever afforded to the claimant at any stage throughout this employment by the respondent. Again, it appears that the respondent as an employer had a complete lack of comprehension of any statutory entitlement available to employees in that regard.

3.5 Another significant issue of conflict emerging in the case concerned whether or not the claimant ever received written itemised wages records (“payslips”). Like the other employees, the claimant was paid by the respondent weekly in cash, either on a Sunday or on a Monday, according to the respondent's evidence. The tribunal found the evidence of Mr Uddin, the respondent’s only directly called witness, to be lacking in credibility. Mr Uddin maintained in his evidence to the tribunal that he always received payslips with his pay and that had retained all of these and kept these payslips at home. When invited by the tribunal to return to his home over the lunchtime recess and to revert to the tribunal in order to produce these payslips after lunch, the tribunal noted Mr Uddin’s response to this request and the explanation given by him for his being unable to do so. Mr Uddin mentioned, variously, child-care responsibilities preventing him doing so and that his partner kept these payslips. The tribunal assessed Mr Uddin’s explanation as inherently lacking in credibility. The same inherent lack of credibility also rose in respect of the evidence of the restaurant manager, Mr Choudhury, who clearly stated in his evidence that he always got payslips posted out to him each week, separately to his pay, which pay he stated was given to him personally in cash at the end of each working week. Mr Choudhury maintained that he had received all of these payslips in the post, on a week-by-week basis, since he had started working for the respondent in 2004. The tribunal specifically noted that Mr Choudhury did not mention any exception to this weekly practice of posting out to him these payslips. In contrast to this, for his part, Mr Gilmore, as the respondent's accountant, stated that he prepared all of these payslips for the respondent's employees. When asked how he got the information in order to prepare these wages records, he said that this information was telephoned through to him by the respondent. He stated that the initial practice had been to post out payslips to the various employees. Mr Gilmore stated that the arrangement was that two or three payslips, relating to various weeks (in other words not just one week), would be placed together in one envelope and posted out to the employees. Mr Gilmore further stated that the practice then changed (at some indeterminate date); an employee in his accountancy practice came up with the idea of e-mailing these payslips to the respondent instead of posting these out directly to the employees. The arrangement then was that the respondent would print off these payslips, which payslips were then to be enclosed by the respondent in the wages envelopes containing the weekly cash payments to employees. It is notable that the respondent made no mention whatsoever of this practice in his evidence to the tribunal to corroborate that suggestion from Mr Gilmore.

3.6 Mr Gilmore maintained in his evidence to the tribunal that full wages records were maintained by him on computer and that all payslips had been processed and copies existed in respect of all of the respondent's employees. Mr Gilmore produced a series of copied payslips in respect of the claimant covering a total of 28 weeks. The last two of these had a nil value. Mr Gilmore stated that he kept all of the respondent‘s employees’ wages records, including copies of any payslips, in his office. When invited by the tribunal to return to his office, which was locally-based in Belfast, over lunchtime, in order to obtain and to produce in the afternoon to the tribunal these various wages records and, specifically, these payslips in respect of the other employees of the respondent (aside from the claimant), the tribunal noted Mr Gilmore’s explanation as to why he could not do so. Mr Gilmore stated, variously, that he had an early afternoon appointment that day and was not returning to his office and that he was very busy preparing last-minute tax returns and did not have sufficient time to attend to this request by the tribunal. The tribunal, in the course of discussing this issue, also invited Mr Gilmore, alternatively, to have a staff member send these other payslip records to the tribunal, either by fax or by email, during the lunchtime recess. The tribunal noted Mr Gilmore's explanation as to why this could not be done, and that he employed no member of staff to do this. Despite the forgoing, Mr Gilmore, as mentioned, did produce to the tribunal what he stated to be true copies of the claimant's payslips. This documentation contained information that the claimant’s weekly earnings for the week ending 24 February 2012 and the subsequent six weeks (called “week 46” to “week 52” presumably coinciding with the tax year weeks) indicated weekly gross earnings of £94.24 (with no statutory or other deductions) in respect of a stated working week of 15.5 hours. The remainder of this documentation (called “week 1” to “week 19”, the latter being dated 17 August 2012) indicated weekly gross earnings of £145.92 (with no statutory or other deductions) in respect of a stated working week of 24 hours. There were a further two payslips, (called “week 20” and “week 21”) having a nil value. The pay rate for all of the foregoing was stated to be £6.08 per hour. As mentioned above, there was no account given to the tribunal as to how the working hours appeared to increase from 15.5 to 24 hours each week with effect from the start of the tax year 2012. Indeed, Mr Gilmore stated to the tribunal that his advice to all of his clients was not to afford working hours in excess of 16 hours each week.

3.7 Without difficulty, the tribunal discounts Mr Gilmore’s evidence in regard to the forgoing payslips and documentation as inherently lacking in credibility. Taken together with the other evidence of the witnesses, which again was found to be significantly lacking in credibility for the reasons stated, the tribunal’s finding is that the claimant at no time throughout the course of his employment ever received any payslips, either at the time that he was being paid in cash at the end of each working week, nor indeed at any other time and by any other means of transmission. The wages records produced to the tribunal by Mr Gilmore had certainly never been seen by the claimant. The tribunal is concerned not only in respect of the credibility of the evidence heard from the respondent and the other witnesses, including Mr Gilmore, but also that there appears to have been a fundamental issue regarding the proper maintenance of wages records and the provision of itemised wages documentation to employees in respect of the respondent's employment of staff generally. The failure to provide payslips to the claimant throughout his employment departs from the statutory requirement in that respect. Where all of this places the respondent's business is a matter, perhaps, for other authorities to address.

3.8 On a date which the claimant stated to be a Friday, and which the tribunal believes to be Friday 17 August 2012 (but which the claimant stated to be 18 August 2012) there appears to have occurred a significant conflict between the restaurant manager, Mr Choudhury, and the claimant. This resulted in a physical confrontation between the two men. That confrontation was quite freely admitted to by the claimant in his evidence. The full extent of the confrontation, in physical terms, and the responsibility for things gave rise to a further conflict in the evidence between the claimant and Mr Choudhury. However, to a large extent this is immaterial for the reason that the claimant did quite candidly concede that he was (at least to an extent) at fault. He did concede that he had done something in the workplace which he ought not to have done. The reason for this confrontation (characterised by the claimant as being a “personal reason”) is, once again, largely immaterial to the tribunal's determination in this case.

3.9 The police were called to the restaurant shortly after the incident. The claimant left the restaurant some 20 minutes or so after the confrontation had taken place. The claimant contended that Mr Choudhury had produced a knife and had threatened him with the knife and that Mr Choudhury then had stated, not to the claimant directly but to others present, “Tell him to get out of the restaurant!” The claimant indicated to the tribunal that he regarded these words spoken by Mr Choudhury as being words of dismissal. Mr Choudhury denied both the allegation that he had produced a knife and threatened the claimant and also denied that he had uttered these words or indeed any similar words in these terms. He also stated that he did not have any authority to dismiss the claimant from employment.

3.10 The claimant it seems returned to the restaurant on the following Sunday. He identified this as Sunday, 20 August 2012 (again, the tribunal understands that the correct date was Sunday, 19 August 2012). The claimant’s stated purpose in returning to the restaurant was to collect outstanding wages owing to him. The claimant had not received any pay for the four days worked in that week. The police were again called to the restaurant and spoke with the claimant some minutes later. At that time the claimant was waiting outside the restaurant in a car. The police, according to the claimant's evidence, instructed the claimant to stay away from the restaurant. The claimant agreed to do so. At no stage thereafter did the claimant return to the restaurant. He did however telephone the respondent seeking money which he stated was due to him. The respondent’s position on this was that the claimant would not be paid any outstanding wages until the police investigation had fully concluded.

3.11 That police investigation appears to have proceeded and concluded (possibly in December 2012) with the claimant receiving what the tribunal understands to be an informal police caution. After this, there was no further police action taken and certainly no criminal prosecution proceeded thereafter. The claimant did not return to work in the restaurant and he had no further communication with the respondent after his telephone call requesting outstanding wages, save in the context of these tribunal proceedings. The claimant then arranged other employment. He did not sign on for state benefits but gained this other employment a short time later. For the reasons stated below, the subsequent employment does not need to concern the tribunal. The tribunal does not need to make any other findings of fact for the purposes of reaching a decision in the case.

THE APPLICABLE LAW

4.1 In regard to the claimant’s claim of unlawful wages deductions, Article 45 (1) of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) provides that: "An employer shall not make a deduction from wages of a worker employed by him unless – (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction". Article 45(3) of the 1996 Order provides that: "Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion". The Court of Appeal in England in the case of Delaney –v- Staples (t/a De Montfort Recruitment) [1991] ICR 331, held that there was no valid distinction to be drawn between a deduction from a sum due, and non-payment of that sum, as far as the relevant statutory provision was concerned. Article 59 of the 1996 Order provides that the definition of “wages”, in relation to a worker, means: "... any sums payable to the worker in connection with his employment, including - (a) any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise...", subject to certain statutory exceptions which do not apply to the facts of this case.

4.2 In regard to the claimant’s claim of breach by the respondent of the working time statutory provisions, Regulation 13 of the Working Time Regulations (Northern Ireland) 1998 as amended by the Working Time (Amendment) Regulations (Northern Ireland) 2007 (“WTR”) applies and the tribunal may make an appropriate order. WTR provides that a full-time worker is entitled to 5.6 weeks paid annual leave (or to pay in lieu thereof). However, if a worker fails to take, or attempt to take, annual leave entitlement within a particular leave year, not as the result of any impediment such as sickness or denial by the employer of the opportunity for leave, the right is lost and no right to payment in lieu arises. This is so whilst the worker remains in employment. The same appears to be true on termination; so a worker who, without any inhibition from the employer or supervening impediment such as ill health, takes less than his or her entitlement in each of a succession of leave years cannot on termination of employment claim the entire balance of pay in lieu of under-claimed holidays as a series of unlawful deductions. This is distinguishable to the issue of what happens to annual leave when an employee is on sick leave (see the decision of the European Court of Justice on a referral by the House of Lords in Stringer and Others -v- HM Revenue and Customs and Schultz-Hoff v Deutsche Rentenversicherung Bund [2009] IRLR 214 ECJ). Failure to pay holiday pay under the WTR can constitute an unauthorised deduction from wages under the 1996 Order, Article 45, as holiday pay falls under the definition of wages. As the claimant worked a six day week, he would be entitled to the statutory maximum of 28 days annual leave per year. As there was no leave year specified the tribunal is entitled to deem the leave year to have commenced one calendar year before the termination date.

4.3 Articles 33 and 36 of the 1996 Order require an employer to provide an initial statement in writing of employment particulars and also covering any subsequent changes to particulars.

4.4 The Employment (Northern Ireland) Order 2003 ("the 2003 Order") amended the 2006 Order. Notwithstanding subsequent changes to the statutory provisions, the dismissal and disciplinary proceedings remain unchanged. These provisions include, specifically, at Article 27 of the 2003 Order, the specification that the tribunal shall make a minimum award of either two weeks’ or, if in all the circumstances it considers it just and equitable to do so, four weeks’ gross pay, if there is a breach of the requirement to provide such a written statement of employment particulars by the employer. This entitlement applies only where the tribunal finds in favour of any claimant in respect of proceedings concerning specific statutory entitlements. These specified entitlements include unauthorised wages deductions, breaches of the national minimum wage provisions, breach of contract, and breach of working time regulations provisions.

4.5 Article 40 of the 1996 Order, requires any employer to provide written itemised pay statements to the employee containing the information specified in Article 40 (2).

THE TRIBUNAL’S DETERMINATION

5. In this case, the tribunal has been faced with quite regrettable and significant conflicts in the evidence. As a consequence, substantial concern has arisen concerning witness credibility in the case. What is clear from the entirety of the evidence in the matter, critically assessed, is that the claimant commenced employment on 1 April 2011 (not 1 February 2012) and that the claimant was employed for six days each week, the working hours each day being 3.30 pm until 11.30 pm. That is 8 working hours each day, or 48 hours per week. The tribunal does not accept as credible the evidence of the other witnesses, who variously endeavoured to speak in support of the respondent to the effect that the claimant only worked for three days each week. The claimant was paid each week, in cash, at the end of the working week, the sum of £240.00 in respect of this 48 hour working week. This equates to a nett pay amount of £5.00 per hour. For the avoidance of any doubt in the matter, the tribunal does not make any finding that the claimant wished this employment to be anything other than conducted fully in accordance with the law and in compliance with all material statutory provisions, as the claimant stated to the tribunal at the outset of his evidence. The tribunal accordingly does not determine any illegality of contract as far as the claimant is concerned arising out of these circumstances of employment and arising out of the claimant receiving a cash payment, at the end of each week, of the foregoing amount of £240.00.

6. Dealing, firstly, with the claimant’s claim of unfair dismissal, the facts are that a significant confrontation took place between the claimant and the restaurant manager. If the specific words, as claimed by the claimant, were indeed spoken by the manager, the tribunal’s finding is that these specific words do not constitute unambiguous words of dismissal. This is so even if the manager had power to dismiss the claimant, the existence of which dismissal power was strenuously denied by the manager. On one construction, these words (if spoken at all) were uttered by the manager with a view to bringing a significant confrontation to an end. Accordingly the tribunal does not determine that any words constituting unambiguous words of dismissal were spoken. The tribunal’s determination is that neither the respondent nor anyone acting for or authorised by the respondent expressly dismissed the claimant from employment either by words or by actions having the effect of terminating the employment contract. What appears to have occurred is that after this confrontation had taken place the claimant left the workplace. The claimant did not return to work, notwithstanding that there would have been nothing otherwise preventing him doing so the following working day, which was a Saturday and not the claimant's day off that week. The claimant did return on the Sunday in an endeavour to collect his outstanding wages but not to attend work. On that occasion the police advised (or warned) the claimant to stay away from the workplace. The claimant did so pending the police determination of the matter proceeding (which concluded in December 2012 after the police caution had been administered). The tribunal’s best interpretation of what occurred is that, after this confrontation in the restaurant, for his own reasons the claimant sought other employment. Constructive dismissal was not expressly claimed by the claimant. Nonetheless, the tribunal had better make the observation there is no evidence supporting constructive dismissal, upon the facts. The claimant did not thereafter sign on for state benefits; he then commenced other employment a short time afterwards. Looking at all of this, the tribunal’s unanimous determination is that there was no dismissal of the claimant by the respondent. Accordingly no unfair dismissal case arises and the claimant’s claim in that regard is not made out and that part of the claimant's claim is dismissed. The same applies to the respective claims for pay in lieu of notice and of no statement of reasons for dismissal and the claimant’s claims in that regard are not made out and are dismissed,

7. Examining then the claimant’s claim for unlawful deduction of wages and the other outstanding elements of the claim, there have been significant breaches of the statutory provisions mentioned above. The tribunal does not accept the veracity of the payslips in respect of the claimant produced by Mr Gilmore on behalf of the respondent. The claimant’s express claim in these proceedings was for notice pay, holiday pay, and for other payments which he categorised in his claim form as: “I always get less paid than normal pay”. He expressly made reference to the fact that he was not on the “ min wage - (statutory right) ”, as he put it. Thus claimant expressly raised the contention he was not paid in accordance with the National Minimum Wage rate. The working a week of 48 hours resulted in a cash payment, received at the end of each week, of £240.00. This equates to £5.00 per hour. The National Minimum Wage rates are based on gross pay. Without evidence from the respondent of the true weekly wages with any appropriate deductions that may have been applicable, the tribunal's determination is that the claimant was clearly paid less than the statutory minimum wage. The National Minimum Wage applicable is computed by reference to the actual employment period with relevant wage rates from time to time. The employment commenced on 1 April 2011. At that time the minimum wage rate was £5.93 per hour. That rate subsisted until 1 October 2011 when the rate increased to £6.08 per hour. That latter rate applied until the end of the employment in August 2012. Whilst it seems that at no point throughout this employment did the claimant expressly bring this statutory minimum wage issue to the respondent's attention prior to the bringing of this case before this tribunal, the tribunal certainly has a general obligation to ensure statutory compliance. It is therefore appropriate, notwithstanding that the claimant has failed specifically to make any oral submissions to the tribunal concerning the precise amount that should be afforded to him to account for the disparity between pay actually received and statutory minimum wage entitlement, that the tribunal must afford to the claimant appropriate compensation against the respondent in respect of any breach of these statutory wage provisions. The tribunal finds the claimant's complaint of breach of statutory minimum wage provisions to be well-founded and the award of compensation which follows is computed on the basis of that finding.

8. Dealing then with the complaint about breach of WTR, it appears from the evidence that the claimant received no paid annual leave whatsoever throughout the course of this employment. The claimant was permitted to take a period of leave to travel to India and he spent the equivalent of four working weeks away from work, in India, but this was unpaid leave. The difficulty for the claimant is that he has not asserted his entitlement to paid annual leave until the time of these proceedings. In relation to annual leave, Regulation 13 of WTR applies and the tribunal may make an appropriate order. Leave to which a worker is entitled may be replaced by a payment in lieu where the worker’s employment is terminated (see Regulation 13A of WTR). However, leave to which a worker is entitled may normally only be taken in the leave year in respect of which it is due (subject to the exception mentioned in paragraph 4.3 above).

9. Thus Regulation 13 of WTR provides that a full-time worker is entitled to 5.6 weeks paid annual leave (or to pay in lieu thereof). However, if a worker fails to take, or attempt to take, annual leave entitlement within a particular leave year (not as the result of any impediment such as sickness, or denial by the employer of the opportunity for leave) the right is lost and no right to payment in lieu arises. On termination, if the worker has taken less than his or her entitlement in a previous leave year, that cannot be added to any leave entitlement for the current year to enable the worker on termination of employment to claim the entire balance of pay in lieu of under-claimed holidays as a series of unlawful deductions. As mentioned, this is distinguishable from what happens to annual leave when an employee is on sick leave, that being of course inapplicable to this case. As the claimant worked a six day week, his entitlement (which would otherwise be greater) has to be reduced to the statutory maximum of 28 days’ annual leave per year as provided by WTR. As there was no leave year specified, the tribunal is entitled to deem the leave year to have commenced one calendar year before the termination date. The claimant’s entitlement is thus to 28 days’ paid annual leave for the leave year, ending with the date of the employment contract coming to an end, that being 18 August 2012. Accordingly, as he received no paid leave whatsoever, the claimant is entitled to 28 day's pay, at the full rate provided for by the statutory minimum wage. This wage deficiency constitutes, in effect, an unlawful deduction of wages under Article 45 (1) of the 1996 Order. The tribunal finds the claimant's claim in that regard to be well-founded.

10. The tribunal makes a declaration that the respondent has failed, as required by Article 40 of the 1996 Order, to provide written itemised pay statements to the claimant.

11. Articles 33 and 36 of 1996 Order require the provision of written employment particulars. Article 27 of the 2003 Order applies to proceedings before tribunal relating to the claims set forth in Schedule 4 to the 2003 Order. This entitlement applies only where the tribunal finds in favour of any claimant in respect of proceedings concerning specific statutory entitlements. In this case these specified entitlements in regard to which the tribunal has found in favour of the claimant include: unauthorised wages deductions, breaches of the statutory minimum wage provisions and breach of WTR provisions. That being the case, where the claimant's claim includes Articles 33 and 36 of 1996 Order and the respondent has been determined to be is in breach of the duty to provide the required statement of employment particulars, the tribunal is required to make one of the specified awards unless there are exceptional circumstances which would make such an award unjust or inequitable. The award is, at the tribunal’s discretion, either two or four weeks’ (gross) pay. In this case the tribunal does not determine that there are any exceptional circumstances which would make such an award unjust or inequitable. It is manifestly clear that the claimant is entitled to an award for the reason that, here, the tribunal observes a respondent employer who has had no regard whatsoever to the statutory rights of this employee. The tribunal accordingly, examining the conduct of the respondent in this case, determines that it is just and equitable to make an award of four weeks’ pay under these particular circumstances. This is included in the computation of the award set out below.

12. Accordingly, the tribunal finds part of the claimant’s claim to be well-founded in that the respective claims for unlawful deduction of wages, no holiday pay, and breach of the statutory minimum wage regulations, are successfully made out. The tribunal makes an award of compensation in favour of the claimant and against the respondent and Orders the respondent to pay to the claimant money computed as follows:-

National Minimum Wage.

The employment commenced on 1 April 2011. The claimant was paid £5.00 per hour.

(a) The National Minimum Wage was £5.93 per hour from 1 October 2010 to 30 September 2011. The difference per hour (underpayment throughout period) is £0.93. The hours worked per week were 48. Weeks from 1 April 2011 until 30 September 2011 = 26 weeks.

The underpayment = 48 hours x 26 weeks x £0.93 = £1,160.64

(b) The National Minimum Wage was £6.08 per hour from 1 October 2011 to 30 September 2012. The difference per hour (underpayment throughout period) is £1.08. The hours worked per week were 48. Weeks from 1 October 2011 until (termination date) 18 August 2012 = 46 weeks

The underpayment = 48 hours x 46 weeks x £1.08 = £2,384.64

Holiday Pay

28 days’ pay due (calculated at National Minimum Wage rate of £6.08 per hour (as September 2011 part-month rate disparity is de minimis). £6.08 x 8 hours = £48.64 per day.

28 days x £48.64 = £1,361.92

Unpaid Wages (due for week commencing Monday 14 August 2012)

4 days x £48.64 = £194.56

TOTAL AWARD: £5,101.76

13. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (NI) 1990.

Chairman:

Date and place of hearing: 15 January 2013, Belfast.

Date decision recorded in register and issued to parties: