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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Cullen v Dr Stephen McKenna formerly tr... [2013] NIIT 00784_13IT (21 August 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/784_13IT.html
Cite as: [2013] NIIT 784_13IT, [2013] NIIT 00784_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 784/13
CLAIMANT(S): Fiona Cullen
RESPONDENT(S): Dr Stephen McKenna formerly trading as Belfast
Orthodontic Clinic
DECISION
The unanimous decision of the tribunal is that an unlawful deduction of £347.87 was made by the respondent from the claimant’s wages. The tribunal awards an additional amount of £635.74 due to the respondent’s failure to comply with the provisions of Article 33 of the Employment Rights (NI) Order 1996, making a total award of £983.61. The title of the proceedings is amended to state the correct name of the respondent.
Constitution of Tribunal:
Chairman: Ms J Knight
Panel Members: Mr H McConnell
Mr P Archer
Appearances:
The claimant appeared and represented herself.
The respondent appeared and was represented by Ms Sinead O’Flaherty BL in capacity of the respondent’s wife.
Issues
1. The tribunal had to determine:
i. Whether the respondent had unlawfully deducted the sum of £347.87 from the claimant’s wages.
ii. Whether the respondent had given the claimant a written statement of particulars of employment in compliance with its obligations under Article 33 of the Employment Rights (Northern Ireland) Order 1996.
Evidence
2. The tribunal considered the written and oral evidence of the parties and documentation to which it was referred during the course of the hearing. The tribunal declined, after hearing submissions by the parties, to read a written witness statement of Ms Tammy Cardwell on behalf of the respondent. The tribunal considered that it could give no weight to her evidence as she was not present at the hearing and could not be cross examined by the claimant. The tribunal also declined to hear evidence from the parties which had no relevance to the issues which it had to determine.
The Law
Right not to suffer unlawful deductions
3. Article 45(1) of the Employment Right’s (Northern Ireland) Order 1996 (“the 1996 Order”) provides that an employer shall not make an 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.
4. Article 45(2) of the 1996 Order defines a “relevant provision”, in relation to a workers contract. This means a provision of the contract comprised either –
(a) In one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or
(b) In one or more terms of the contract (whether express or implied and if express whether oral or in writing) the existence and or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.
Right to Statement of Employment Particulars
5. Article 33 of the 1996 Order provides that where any employee begins employment with employer, the employer shall give to the employee a written statement of particulars of employment, within two months of the beginning of his employment.
6. The statement of initial employment particulars must contain the particulars set out in Article 33 (3) such as rates of pay and holiday entitlement. This also includes the length of notice of which the employee is obliged to give and entitled to receive to terminate his contract of employment [Article 33(4)(e)] and any collective agreements which directly effect the terms and conditions of the employment including, where the employer is not a party, the persons by whom they were made [Article 33(4)(j)].
7. A statement under Article 33 may refer the employee for particulars of any of the matters which must be stated, to the provisions of some other document which is reasonably accessible to the employee. Specifically Article 34 (3) provides a statement under Article 33 may refer the employee for particulars of either of the matters specified in paragraph 4(e) of that Article to the law or to the provisions of any collective agreement directly affecting the terms and conditions of the employment which is reasonably accessible to the employee. A collective agreement is defined by Article 2 (2) of the Industrial Relations (Northern Ireland) Order 1992 as “any agreement or arrangement made by or on behalf of one or more Trade Unions or one or more employers or employers’ associations and relating to one or more of the matters mentioned in paragraph 4”.
8. Article 27 of the Employment (Northern Ireland) Order 2003 (“the 2003 Order”) provides that where an employer fails to comply with its obligation under Article 33 of the 1996 Order, a tribunal shall make a minimum award of either two weeks gross pay or if in all the circumstances it considers it is just and equitable to do so, four weeks gross pay.
Notice Periods
9. Where a contract does not specify the notice period to be given by an employee who wishes to terminate their employment the minimum notice period set out in Article 118 (2) of the 1996 Order will apply. An employee who has been continuously employed for one month or more must give not less than one week’s notice of termination. In calculating the notice period no account may be given to a fraction of a day. In cases of oral notice of dismissal, unless the contract provides otherwise, a notice given during the working day cannot take effect until the following day. This rule also applies to a written notice of dismissal, unless there is an express term in the agreement dealing with when notice starts, or the agreement that notice is to start immediately can be construed from the wording of the contract and the dismissal/resignation letter set in the factual matrix of the case Wang -v- University Of Keele EAT [2011] IRLR 542.
Facts and Conclusions
10. The tribunal found the following relevant facts to be proven on a balance of probabilities:
11. The claimant was employed by the respondent as a dental nurse from 6 August 2012 until her resignation with effect from 25 January 2013. The claimant’s gross weekly pay was £317.87 for a 37.5 hour week worked over five days. She was paid monthly.
12. The claimant was given a copy of the respondent’s Employee Handbook on 2 August 2012 before she started her employment and she signed a form on 9 August 2012 to confirm that she had read and understood the content of the Employee Handbook and accepted that it formed “part of her contract of employment”.
13. In January 2013 the claimant obtained alternative employment which commenced on 28 January 2013. She verbally informed the respondent of this and handed a letter of resignation to him on 21 January 2013 around lunch time purporting to give one week’s notice of the termination of her employment. Upon receiving this information the respondent told the claimant that she should refer to the Employee Handbook. The respondent’s case was that the claimant was contractually required to give him a minimum of two weeks’ notice of the termination of her employment.
14. The Employee Handbook did not at that time specify the length of notice of termination of employment required by the respondent from his employees. The relevant provision in the Handbook in the section entitled “TERMINATION OF EMPLOYMENT”, Paragraph C TERMINATING EMPLOYMENT WITHOUT GIVING NOTICE stated:
“If you terminate your employment without giving or working the required period of notice, as indicated in your individual statement of main terms of employment, you will have an amount equal to any additional costs covering your duties during the notice period not worked deducted from any termination pay due to you. This is an express written term of your contract of employment. You will also forfeit any contractual accrued holiday pay due to you over and above your statutory holiday pay if you fail to give or work the required period of notice”.
The Employee Handbook was subsequently revised in July 2013 to specify that employees are required to give four weeks’ notice of termination.
15. Although the Employee Handbook referred here and at various other places, for example under the heading of annual holiday entitlement, to “your individual statement of main terms of employment”, the respondent accepted that the claimant was not in fact ever provided with such an individual written statement. The respondent also accepted that there was no other document in existence at that time setting out the notice periods required by him from employees. The tribunal determined that contents of the Employee Handbook did not comply with the requirement to provide the claimant with a statement of all of the employment particulars as is required by Article 33(4) of the 1996 Order.
16. The respondent’s case was that the claimant was well aware prior to her resignation that there was a mandatory notice period of two weeks. The claimant was aware that two other employees had respectively given the respondent four weeks and two months’ notice of their intention to resign and before handing in her notice, she checked Employment Handbook. The tribunal does not consider that the claimant could reasonably be expected to infer from this that there was a minimum two week notice requirement. Before handing in her notice, she sought advice from the Labour Relations Agency and was advised that as there was no notice period specified in the Handbook, she was required by statute to give one week’s notice.
17. The tribunal did not find credible the respondent’s evidence that the claimant was told by the respondent at her job interview on 23 July 2012 that she would be required to give two weeks’ notice. The tribunal preferred the claimant’s evidence that the issue of notice was discussed solely in the context of what notice she was required to give to her previous employer which it considers is corroborated by the contents of the (undated) letter of offer of appointment. It was further suggested that the two week notice requirement was contained in what the respondent described as a “collective agreement”, agreed at a staff meeting, although he conceded crucially that this was not in writing, would have been agreed at a time prior to the employment of the claimant but was not communicated in writing to the claimant. There was no record or other evidence, apart from the respondent’s own evidence, to confirm the existence of this agreement. None of the respondent’s employees belong to a Trade Union. It is clear that this does not fall within the statutory definition of a collective agreement. The tribunal was satisfied on a balance of probabilities that the claimant was not aware of any two week notice requirement and accepted her evidence that the respondent had no further communication with her prior to the termination of her employment.
18. The claimant finished her employment at the end of the working day on 25 January 2013. She subsequently received her pay slip dated 31 January 2013 which itemised a number of deductions, in addition to tax and national insurance, including an “adjustment” of £30.00 and £317.87 in “lieu of notice”. A further deduction of £560.00 was made to refund the respondent for fees for training courses attended by the claimant which is not disputed by the claimant.
19. The respondent informed the claimant by email dated 9 July 2013 that the deductions were made because she only gave 4.5 days notice in total instead of 10 working days as she was contractually required to do. “The £317.87 represents one whole week or five working days or ten clinical sessions which you failed to complete. The £30.00 represents one session (approximately one tenth of £317.00) which you failed to complete”. The respondent’s case was that the claimant’s failure to give two weeks’ notice caused considerable disruption to and inconvenienced him and other members of staff in the practice, leading to a shortfall in staff and adversely affecting the smooth running of the practice.
20. The tribunal is satisfied from these facts that there was no written contractual provision or oral agreement between the parties requiring the claimant to give two weeks’ notice of the termination of her employment and therefore she was required to give the statutory minimum of one week’s notice of termination provided for in Article 118 (2). However in effect the claimant gave only four days notice instead of five days notice (the claimant’s working week) as the tribunal must disregard the half day worked by the claimant by the time she handed in her notice on 21 January 2013. The claimant’s notice period would have expired on Monday 28 January 2013.
21. The Tribunal noted the basis upon which the respondent is contractually entitled to make a deduction where an employee fails to give proper notice. The relevant contractual provision, set out in full in paragraph 14 above, only entitles the respondent to deduct “an amount equal to any additional costs covering your duties during the notice period not worked ...” There was no evidence before the tribunal that the respondent incurred any “additional costs” to cover the claimant’s duties on 28 January 2013. This being the case the tribunal determines that the respondent was not contractually entitled to make any deduction and it follows that the respondent has made an unlawful deduction of £347.87 from the claimant’s final salary payment. The tribunal further determines that the respondent was in breach of his duty to the claimant under Article 33 of the 1996 Order in that he failed to provide written particulars of the length of notice the claimant was obliged to give to terminate her contract of employment and other matters. The tribunal awards the claimant, pursuant to Article 27 of the 2003 Order, the minimum award of two weeks’ gross pay amounting to £635.74. The tribunal does not consider that it would be just and equitable to increase this amount. The respondent is therefore ordered to pay the claimant compensation totalling £983.61.
22. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) (Northern Ireland) Order 1990.
Chairman:
Date and place of hearing: Belfast on the 24 July 2013
Date decision recorded in register and issued to parties: