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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Gordon v Roy Orr and Amanda Orr t/a Mou... Bemack Ltd Roy Orr and Amanda Orr t/a Mou... [2013] NIIT 443_13IT (19 December 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/443_13IT.html
Cite as: [2013] NIIT 443_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REFS: 443/13
518/13
CLAIMANTS: 1. Stephanie Gordon
2. Sandra Roberta Waddell
RESPONDENTS: 1. Roy Orr and Amanda Orr t/a Mourneview Garage
2. Bemack Ltd
DECISION
It is the decision of the tribunal that the first-named claimant is owed a payment in the sum of £358.56 in respect of holiday pay for the leave year commencing on 1 January 2012 and running to 17 September 2012. The second claimant is entitled to a payment in the sum of £306.00 in respect of the 10 days of leave accrued but untaken for that part of the leave year running from 1 January 2012 to 17 September 2012. The second respondent is ordered to pay these sums to the respective claimants.
Constitution of Tribunal:
Chairman (sitting alone): Ms W A Crooke
Appearances:
Both claimants appeared in person and represented themselves.
Mr R Orr, one of the first-named respondents appeared in person and represented himself and his wife, while Mr B McKay of the second respondent appeared on behalf of Bemack Ltd.
SOURCES OF EVIDENCE
1. There were miscellaneous papers before the tribunal.
2. Ms Gordon, Ms Waddell, Mr Orr and Mr McKay gave evidence on their own behalf.
THE CLAIM AND THE DEFENCE
3. The claimants claimed that they were entitled to the balance of their holiday pay for that part of the leave year commencing on 1 January 2012 and running to 17 September 2012 which represented the period when the first respondents were owners of Mourneview Garage. Mr Orr, while he initially accepted that holiday pay was due, said that he did not have to pay it. Mr McKay confirmed that he had paid holiday pay to the two claimants for that part of the leave year running from 18 September 2012 to 31 December 2012. He also produced a photocopied document dated 21 September 2012 and contended that this meant that the holiday pay claims of the claimants had to be paid by the first respondents.
THE RELEVANT LAW
4. (a) The relevant law in respect of entitlement to holiday pay is found in the Working Time Regulations (Northern Ireland) 1998.
(b) The law in relation to Transfer of Undertakings is found in the Transfer of Undertakings (Protection of Employment) Regulations 2006.
(c) It was accepted by all the parties that a transfer of the undertaking known as Mourneview Garage had taken place between the first and second respondents.
ASSESSMENT OF EVIDENCE
5. The tribunal faced some difficulty in reaching its decision in this case. Initially, at least, both claimants informed the tribunal that they were making their claim to an entitlement of approximately 80 hours of holiday pay each. This was based on what they had been told by an unnamed third party who was formerly the employee of Mr Orr in a different business to the one which was the subject of the proceedings before the tribunal. She was not being produced to give direct evidence. The evidence of the claimants about “contractual” entitlement was unsatisfactory and the tribunal has considered the claims of the claimants with reference to statutory entitlement only.
6. Mr Orr was unable to quantify what the liability was to these claimants as he insisted that he was a partner in the business “in name only” and had no day-to-day knowledge of the running of the business. He was in fact more interested in ventilating the problems financial and otherwise that were facing himself and his wife. Mr Orr was an unsatisfactory witness in that he objected to the evidence of the claimants without producing any satisfactory objective evidence to support his contentions.
7. While Mr McKay appeared to the tribunal as being essentially a very honest witness, his basis for saying that the first respondents should pay the holiday pay rested on a photocopied “sheet” signed by him and Mr and Mrs Orr dated 21 September 2012 which appeared to be part of a greater document which was not produced to the tribunal. No original legal documentation relating to the transfer of the undertaking to the second respondent was produced to the tribunal. I have disregarded this “sheet” as I required to see complete documentation and a single photocopied sheet carries very little evidential weight.
FACTS FOUND
8. The business known as Mourneview Garage was operated by the first respondents from in or around 15 November 2009 to 17 September 2012.
9. The first respondents underwent financial difficulties and their bank refused to allow them to continue to trade, but gave them the opportunity to lease out the premises.
10. The premises were leased to the second respondent on the basis of certain financial and other arrangements, which are largely irrelevant to the issue of holiday pay and have been disregarded for the purposes of reaching this decision.
11. The photocopied document, dated 21 September 2012, between the first and second respondents contained a clause as follows:-
“With respect to the employees, any holiday pay owing to each and every employee from 1 January 2012 until the close of business on Sunday, 16 September 2012 shall be payable by the landlord.”
12. On this basis, Mr McKay said that the second respondent was not liable for the outstanding holiday pay, and the tribunal noted that Mr McKay had paid the entitlement of the claimants for that part of the holiday year commencing on 18 September 2012 and running to 31 December 2012.
CONCLUSIONS
13. It is settled law that most employees (including part-time employees) are entitled to receive 28 days of holiday in a leave year.
14. It is also settled law that by virtue of Regulation 4(i) of the Transfer of Undertakings Regulations all transferring employees are entitled to have their terms and conditions of employment transferred intact to the transferee (in this case the second respondent Bemack Ltd). Any arrears of pay unpaid before the transfer also pass to the transferee, as after a transfer any contract of employment takes effect as if it were made between the employee and the transferee.
15. The documentation before me was unsatisfactory so I have calculated the entitlement of each claimant in accordance with the Working Time Regulations (Northern Ireland) 1998 as follows:-
(a) Stephanie Gordon
Ms Gordon worked approximately 16 to 18 hours per week. In the leave year commencing 1 January 2012 she gave evidence that she had not taken any holidays and this is to a certain extent supported by the payslip she provided for the period 10 August 2012 to 16 August 2012. For the reasons stated I have preferred this claimant’s evidence that she took no holiday in this leave year, to that of Mr Orr who claimed he knew nothing of the running of the business.
Ms Gordon had not kept any personal record of the exact number of hours that she had worked but on the basis that she worked 18 hours per week her statutory entitlement for a full leave year would be 100 hours and 48 minutes of holiday, which I have rounded up to 101 hours. Ms Gordon did not work a full leave year before the transfer and I have calculated that portion of the leave year before the transfer as being 8.5 months. To find the monthly figure, I have calculated as follows:-
101 hours ÷ 12 x 8.5 = 71 hours 54 minutes (rounded up to 72 hours)
The total entitlement for the period in the leave year 1 January 2012 to 17 September 2012 falling before the transfer is 72 hours.
From the limited information before me I have concluded that it was more likely than not that this claimant did not pay PAYE and NI contribution. Ms Gordon’s rate of payment before the transfer was £4.98 per hour, therefore, her entitlement to holiday pay under the Working Time Regulations (Northern Ireland) 1998 for that part of the leave year running from 1 January 2012 to 17 September 2012 is calculated as follows:-
72 hours x £4.98 = £358.56.
(b) Mrs Waddell
Although Mrs Waddell had produced some contract documentation, Mr Orr disputed that it represented her terms of employment with the first respondent. Ms Waddell indicated that of her working week of 37½ hours she usually worked in or around 7½ hours per day. She had taken holidays and said that 10 days of entitlement remained with a portion of the year from 1 January 2012 to 17 September 2012. She is also entitled to a total yearly amount of 28 days holiday and I have calculated her holiday entitlement as follows:-
Total holiday entitlement x fraction of year - holiday taken.
28 days x 8.5/12 - 10 days = 9.83 (rounded up to 10 days)
Mrs Waddell’s hourly rate before the transfer was £6.00 per hour.
10 days @ 7.5 hours per day @ £6.00 = £450.00
From this, I have deducted tax at the rate of 20% and NI Contribution at the rate of 12% (£144.00) the net amount of holiday pay due is therefore £306.00.
16. The second respondent is ordered to pay these sums to each claimant.
17. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 25 September 2013, Belfast.
Date decision recorded in register and issued to parties: