Title: FAIR EMPLOYMENT TRIBUNAL
Author: irtusetup
Last saved by: joe.ury
Company: DED

THE INDUSTRIAL TRIBUNALS 

CASE REF:    640/13 

CLAIMANT:	Stephen Thomas Douglas

RESPONDENT:	First Choice Selection Services Ltd

DECISION

The decision of the Industrial Tribunal is that the application for review is granted. The award of £700 made in the decision of the tribunal issued on 1 August 2013 in favour of the claimant is revoked.

Constitution of Tribunal:

Chairman:	Miss E McCaffrey

Members:	Mr F Murtagh
	Mr H Fox

Appearances:

The claimant appeared in person.

The respondent was represented by Mr T Sheridan, Peninsula Business Services Ltd.

1.	Following the issue of a decision by the tribunal on 1 August 2013, when we unanimously awarded the claimant the sum of £700.00 representing four weeks’ gross pay by way of compensation for the failure of the respondent to provide written terms and conditions of employment, an application for review was received on behalf of the respondent.  The application for review was on the basis that the Industrial Tribunal had made an award in favour of the claimant which, in the respondent’s view, it was not entitled to make.

2.	Article 27 of The Employment (Northern Ireland) Order 2003 provides as follows:-

		“27	(1)	This Article applies to proceedings before an industrial tribunal relating to a claim by an employee under any of the jurisdictions listed in Schedule 4.

			(2)	If in the case of proceedings to which this article applies  -

				(a)	the industrial tribunal finds in favour of the employee, but makes no award to him in respect of the claim to which the proceedings relate; and

				(b)	when the proceedings were begun the employer was in breach of his duty to the employee under Article 33(1) or 36(1) of the Employment Rights Order (duty to give a written statement of initial employment particulars or of particulars of change),

			The tribunal shall, subject to paragraph (5), make an award of the minimum amount to be paid by the employer to the employee and may, if it considers it just and equitable in all the circumstances, award the higher amount instead.

			(3)	If in the case of proceedings to which this article applies  -

				(a)	the industrial tribunal makes an award to the employee in respect of the claim to which the proceedings relate; and

				(b)	when the proceedings were begun the employer was in breach of his duty to the employee under Article 33(1) or 36(1) of the Employment Rights Order the tribunal shall, subject to paragraph (5) increase the award by the minimum amount and may, if it considers it just and equitable in all the circumstances, increase the award by the higher amount instead.

			(4)	In paragraphs (2) and (3)  -

				(a)	references to the minimum amount are to an amount equal to two weeks’ pay; and

				(b)	references to the higher amount are to an amount equal to four weeks’ pay.

			(5)	The duty under paragraph (2) or (3) does not apply if there are exceptional circumstances which would make an award or increase under that paragraph unjust or inequitable.“

3.	Succinctly this means that no award can be made in relation to an employer’s failure to provide written terms and conditions of employment unless the tribunal also makes a finding in favour of the claimant in relation to another claim.  The relevant claims are set out in Schedule 4 to the 2003 Order and include claims of sex discrimination, disability discrimination, unfair dismissal, redundancy payments, age discrimination, breach of contract, breach of the working time regulations and so on.

4.	In effect, Mr Sheridan says that the tribunal did not therefore have jurisdiction to make an award to the claimant in relation to the respondent’s failure to provide written terms and conditions of employment, given that we had already found that we could not in this case make an award to the claimant for untaken holiday pay.

6.	The application for review was made under Rule 34 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (as amended).

7.	The application is made on the basis that the tribunal erred in law in the decision which it made and that it would therefore be in the interests of justice to review the decision under Rule 34(3)(e).

8.	We believe that this is correct.  The claimant pointed out that part of the reason he had not taken his holiday pay was because he had not been given his written terms and conditions of employment.  We have considerable sympathy with the claimant’s position in relation to this matter and we have made it clear to Mr Sheridan at the hearing that we would wish him to impress on his clients their responsibilities as employers to ensure that they facilitate, rather than obstruct, staff taking their 
full-paid holidays.  The legislation is however in place and we are obliged to follow it.  We therefore revoke the Order made in our earlier decision, awarding compensation to the claimant in relation to this matter, as we believe that it would be in the interests of justice to do so.

Chairman:

Date and place of hearing:      30 August 2013, Belfast.

Date decision recorded in register and issued to parties: