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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McGarvey v Momentum Support Limited David Ferguson Momentum Support Limited David Ferguson Momentum Support Limited David Ferguson [2013] NIIT 00412_12IT (22 January 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/412_12IT.html
Cite as: [2013] NIIT 00412_12IT, [2013] NIIT 412_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REFS: 412/12
413/12
414/12
CLAIMANTS: 1. Jennifer McGarvey
2. Rosemary Norton
3. Rebecca Parsons
RESPONDENTS: 1. Momentum Support Limited
2 David Ferguson
DECISION
The decision of the tribunal is that the tribunal does not have jurisdiction to hear this claim under the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006.
Constitution of Tribunal:
Chairman: Miss E McCaffrey
Members: Mr H Stevenson
Mr J Law
Appearances:
The claimants were represented by Mr G McLaughlin.
The respondents were represented by Mr Sean Doherty, Barrister-at-Law, instructed by Tughans Solicitors.
THE ISSUE
1. These claims were brought by the claimants in relation to the transfer of their employment from Loreto College, Coleraine to Momentum Support Limited the first named respondent. Each of the claims lodged was in identical terms and the type of complaint was briefly stated as “Breach of TUPE regulations.” The details of the claim said only “In addition to breaking TUPE Regulations denied representation for the grievance procedure.”
2. The issue of representation for the grievance procedure was dealt with in a previous decision issued by the tribunal on 4 September 2012.
3. At the outset of this hearing, which was intended to deal with the substantive matter of the claim, the respondents’ representative raised the issue of whether the tribunal had jurisdiction to deal with the claim and the tribunal agreed to hear submissions in relation to that issue as a preliminary matter.
4. In the absence of any specific allegations in the claim forms, Mr McLaughlin clarified that the claimants’ claims were first, that there have been no consultations in relation to the transfer of their employment in the first instance from Loreto College to the respondent. Secondly, the claimants alleged that since their transfer to work for the respondent, they worked the same hours but had more work to do and they were expected to adhere to uniform policy about which they were unhappy. It was confirmed that they continued to work at Loreto College for the first-named respondent.
5. In light of this, Mr Doherty indicated that while the complaints appeared to be a complaint under Regulation 4 (4) of the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006 (“the Service Regulations 2006”), their claim was in fact in relation to an alleged variation of their contract. He stated the Service Regulations 2006 did not actually give any cause of action in relation to an alleged variation of contract. The only grounds for a claim under Regulation 7 of the Service Provision Regulations 2006 are for unfair dismissal of an employee following a service provision change, if the sole or principal reason for dismissal is the transfer itself or a reason connected with the transfer which is not an economic, technical or organisational reason entailing changes in the workforce. He reminded the tribunal that it has only the jurisdiction conferred on it by statute and that it has no inherent jurisdiction, unlike the High Court. The Service Provision Regulations 2006 do not provide for an individual to bring a claim before an Industrial Tribunal in relation to an alleged unilateral variation of their contract and he asserted that in a case such as this, the claimants should bring a claim for breach of contract before the County Court or the High Court as appropriate. Both these courts have the inherent jurisdiction to deal with such matters.
DECISION
6. We considered these matters carefully and having re-read the Service Provision Regulations 2006, we are satisfied that there is nothing in those regulations to ground a claim in relation to an alleged variation of contract and therefore we believe that we do not have jurisdiction to deal with this matter.
7. We agree that Service Provision Regulations 2006 give an employee dismissed due to a service change provision the right to bring a claim of unfair dismissal.
8. Equally, if an employee suffers a change of conditions which is to his material detriment and constitutes a fundamental breach of contract, he or she may resign in response to those changes and claim constructive dismissal. An individual may also complain in relation to failure to consult in relation to any proposed change of conditions. However the Service Provision Regulations 2006 do not provide for an individual to bring a claim before an Industrial Tribunal in relation to an alleged unilateral variation of their contract. The jurisdiction of the Industrial Tribunals is prescribed by statute. The tribunal therefore cannot assume jurisdiction in a case of alleged unilateral variation of contract if such jurisdiction is not conferred upon it by the Service Provision Regulations 2006. In such a case the claimants should bring their claim for breach of contract before the County Court or the High Court as appropriate.
9. Given the vagueness of the original claim forms, we have also considered the possibility that the claimants have a claim in relation to the failure by the respondents to consult. However, the remedy in relation to this matter lies principally against Loreto College who are not joined as a party in these proceedings. Secondly, the claimants’ employment was transferred to the respondent on 1 July 2011. Their claims were lodged only on 1 March 2012, well outside the three month time limit for bringing a claim in relation to failure to consult. We are satisfied that any claims for failure to consult are well out of time and for both these reasons, we cannot consider these claims.
Chairman:
Date and place of hearing: 17 December 2012, Belfast.
Date decision recorded in register and issued to the parties: