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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Moore v Jonathan Watson, t/a NI Securi... NI Security Solutions Limited [2013] NIIT 964_13IT (29 November 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/964_13IT.html
Cite as: [2013] NIIT 964_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 964/13
CLAIMANT: Cecil Moore
RESPONDENTS: 1. Jonathan Watson, t/a NI Security Solutions
2. Jonathan Watson, t/a NI Security Solutions Ltd
3. NI Security Solutions Limited
DECISION
The unanimous decision of the tribunal is that the claimant is entitled to a total amount of £15,284.64 in respect of automatic unfair dismissal, notice pay, arrears of pay, and loss of statutory rights. His claim for redundancy is dismissed.
Constitution of Tribunal:
Chairman: Mr S A Crothers
Members: Mrs S Butcher
Mrs K Elliott
Appearances:
The claimant appeared and was represented by Mr T Adams (Citizens Advice Bureau).
The respondents did not appear and were not represented. A form of response had been presented to the tribunal, signed by J Watson.
BACKGROUND
1.
(1) The claimant brought
claims alleging unfair dismissal, breach of contract, unlawful deduction from
wages and for a redundancy payment. The tribunal had to postpone the hearing
listed for 6 August 2013, and refers to the Record of Proceedings
dated 8 August 2013, appended to this decision. Robert Watson
was dismissed from the proceedings on 5 September 2013 and the second
and third named respondents were joined on the same date.
(2) As appears from the Record of Proceedings, there was considerable confusion regarding the identity of the proper respondent/respondents. Having afforded considerable time for the claimant and his representative to consider the matter and to liaise with the Labour Relations Agency, Mr Adams indicated that the claimant would be proceeding against the first respondent only. Northern Ireland Security Solutions Limited was dissolved on 10 August 2012. The tribunal is satisfied that the second and third named respondents should be dismissed from these proceedings.
THE CLAIM
2. The claimant confirmed that his claims were for a redundancy payment, breach of contract (in respect of notice pay and an amount due for two lying weeks) and unfair dismissal. The response presented to the tribunal on 2 October 2013 asserted that the claimant had been employed by NI Security Solutions Limited which was dissolved on 10 August 2012, and had received a £300 bonus payment in cash. It also alleged that he was paid up-to-date and, having been made redundant on Friday 3 August 2012 was advised to correspond with the Department of Employment and Learning in respect of a redundancy payment. The claimant denied all of these assertions and allegations and maintained that he was never employed by Northern Ireland Security Solutions Limited, and that he was employed by the first respondent effectively from May 2003.
THE REMAINING ISSUES
3. The issues before the tribunal were as follows:-
(1) Was there a transfer of an undertaking from Northern Ireland Security Solutions Limited to the first-named respondent?
(2) If so, did the claimant have continuous employment with the transferee from May 2003 until 29 April 2013?
(3) Was the claimant’s contract of employment tainted by illegality?
(4) Was the claimant unfairly dismissed?
(5) Is the claimant entitled to claim redundancy?
(6) Is the claimant entitled to a payment of a sum for notice pay and for two lying weeks?
SOURCES OF EVIDENCE
4. (i) The tribunal heard evidence from the claimant and from a work colleague, Stanley McCombe. A witness statement signed by Ronald Duff was also presented to the tribunal. As hearsay evidence, the tribunal gave such weight to this statement as it considered appropriate.
(ii) The tribunal considered relevant documentation relating to the issues in the case and proceeded to dispose of the matter in accordance with Rule 27(5) and (6) of the Industrial Tribunal Rules of Procedure 2005.
FINDINGS OF FACT
5. Having considered the evidence insofar as same related to the issues before it, the tribunal made the following findings of fact, on the balance of probabilities:-
(i) The tribunal is satisfied, on the evidence before it, that the claimant was employed by the first-named respondent (“the respondent”) from 1 April 2010, and through its predecessors, from May 2003. It is also satisfied, on the balance of probabilities, that the claimant had continuity of employment from that date until the effective date of termination of his employment by the respondent on 29 April 2013. Despite confusion in P60 documentation up to year ending April 2012, in a wage slip for week commencing 25 July 2012, and in miscellaneous correspondence, mainly from the Inland Revenue, appearing to show that the claimant was employed by NI Security Solutions Limited, there is no evidence to persuade the tribunal that this was indeed the case.
(ii) Furthermore, on the evidence before it, the tribunal is satisfied that no meeting with management took place on 3 August 2012 as alleged in the response document, or that the claimant was made redundant on that date. It is also satisfied that he did not receive any bonus payment or other payments relevant to his claim before the tribunal.
(iii) The tribunal’s findings are fortified by correspondence from Jonathan Watson to employees on 20 March 2010 stating as follows:-
“20 March 2010
Dear employees,
I would like to take this opportunity to introduce a number of changes, which we are making within the company.
New Name
From 1st April 2010, the company will be known as N I. Security Solutions.
This change is due to new management, in addition it will give us the opportunity through the introduction of new services, to ensure that we are able to maintain future employment for all are [our] staff.
We look forward to your continued support in 2010, and we appreciate your co-operation with are [our] future endeavours.
Sadly due to ill health, Robert Watson is unable to continue as managing director, of N I. Security Solutions. His experience, and expertise in our particular field is invaluable to us, and thankfully he has agreed to stay on as our Security Advisor.
From 1st April 2010, all company objectives will be authorized by N I. Security Solutions, proprietor Jonathan Watson.
We are committed to providing a high quality service to our customers, and if you have any questions regarding these changes, please do not hesitate to contact us.
Yours sincerely
Jonathan Watson”
(iv) The claimant became concerned on or about the beginning of January 2013 when he received a demand from the HM Revenue and Customs for £900 in relation to tax credits, having also lodged a claim for expenses received by the Revenue on 31 December 2012. The claimant’s concerns were heightened when, on 10 January 2013, he received correspondence from HM Revenue and Customs stating as follows:-
“Thank you for your claim for tax relief on the expenses of your employment. I received form R38, tax claim & deed of assignment on 31/12/2012.
I have only been able to agree flat rate expenses for the tax year April 6 2010 to April 5 2011. This is because we have no record of your employment with NI SECURITY SOLUTIONS in any other period.
Also we have no records of any employments for the year 2011/12 or the current tax year, 2012/13.
If our information is incorrect, please contact us to supply the missing details. We will then be able to update our records and review your claim for expenses”.
(v) Although the demand for £900 was ultimately resolved with the Revenue, the claimant brought these various matters to the attention of Jonathan Watson. The tribunal was shown print-outs of certain texts sent by Jonathan Watson to the claimant. In particular, on 28 January 2013, at 21:23 pm, Jonathan Watson texted him in the following terms:-
“NOTE: please do not turn up for duty tomorrow (tue 29 Jan) all your duties will be covered for the week as you are now suspended until further notice. We will send letter with info and date & time of meeting ASAP. Please collect letter”.
(vi) On the following day, Jonathan Watson confirmed by text that the claimant would get full pay, that all details of offences would be explained in a letter and that no more information could be given at that point as their investigation was still ongoing. On 7 February 2013, at 12:38 pm the claimant received the following text (following the literal wording and spelling):-
“Hi Cecil, you still on shift Friday days. Your no longer suspended from work I looked at all information and will be taken no more action. Ps please keep look out for HEATONS boss think there in Antrim wed, thu, fri”.
(vii) The tribunal accepts the claimant’s evidence that he was not made aware of any reason for his suspension or discipline. Correspondence from Jonathan Watson, NI Security Solutions, dated Friday 1 February 2013 reads as follows:-
“Friday 1st February 2013
RE: Suspension from duties and disciplinary hearing
Dear Cecil
You are requested to attend a disciplinary hearing on Monday 4th February at 11.00 am, at the security office at Antrim Business Park.
You are reminded of your right to be accompanied by a fellow-employee please note. However that it is your responsibility to make the necessary arrangements for such accompaniment.
If for any reason the above date or time is unsuitable, it is imperative that you contact us as soon as possible to enable alternative arrangements to be made.
Yours sincerely
Jonathan Watson
NI Security Solutions”
(viii) On 21 April 2013 at 21:15 pm, the claimant received a text to inform him that he would not be working on Monday morning and not to go on site on Monday 22 April. It further informed him that he would not be on site all week due to staff training and that he was off on full pay. A further text at 21:24 on the same date simply stated:-
“Off Monday due to new staff training (08:00-14:00)”.
(ix) On 29 April 2013 at 09:38 the claimant was informed by text as follows:-
“You are not working today and you didn’t work last week you are unemployed they are right in what they say. You will not be back working on site”.
(x) The tribunal is satisfied that a reference to “they are right in what they say”, relates to the issues of tax credits which the claimant has brought to Jonathan Watson’s attention, and to the contents of the correspondence from HM Revenue and Customs dated 10 January 2013 referred to above, in relation to the claimant’s employment status with the respondent. The claimant, together with Stanley McCombe, had requested wage slips on a regular basis but had been fobbed off by excuses from Jonathan Watson, essentially blaming his accountant for delay. The respondent as the claimant’s employer, paid him weekly in cash. The only wage slip shown to the tribunal preceded the dissolution of Northern Ireland Securities Solutions Ltd on 10 August 2012. The claimant was paid approximately the same net amount thereafter although it appears that there was a slight increase in March 2013.
(xi) The tribunal had concerns that the claimant’s contract of employment with the respondent may be tainted with illegality. Although in unwritten form, and, in all likelihood, lawful at the outset, it appears to have been illegally performed, at least from the dissolution of Northern Ireland Solutions Limited. However, even if this were to be the case, the tribunal is satisfied that the claimant did not knowingly participate in any such illegal performance. The concept of participation requires “some active participation”. Whether there is knowledge and participation is a matter of fact for the tribunal.
(xii) The tribunal also considered the fact that the claimant purported to raise a grievance by text on or around 29 April 2013 with the respondent claiming that he had been unfairly dismissed, that money was unlawfully deducted from his wages, and that his contract was breached. He also complained that tax and national insurance contributions had not been paid and that an overpayment of tax credits was as a result of the respondent’s failure to pay tax and national insurance contributions. The claimant received no response to this text.
(xiii) The tribunal is satisfied that the claimant has not established a claim for a redundancy payment. He was in fact replaced by another employee.
THE LAW
6. (1) In relation to illegal contracts the tribunal obtained valuable assistance from the Employment Appeal Tribunal decision in the case of Enfield Technical Services Limited v Payne (2007) IRLR 840. Mr Justice Elias states in paragraph 26 of his judgement as follows:
“(3) There are three categories of case where a contract may be tainted with illegality. These were identified by Lord Justice Peter Gibson in his seminal judgment in Hall v Woolston Leisure Services Ltd [2000] IRLR 587 (paras 30-31). The first is where the contract is entered into with the intention of committing an illegal act. The second is where the contract is expressly or impliedly prohibited by statute. The third – and the category relevant to these two appeals – is where the contract was lawful when made but has been illegally performed, and the party seeking the assistance of the court knowingly participated in the illegal performance.
(4) In order to fall within this third category, it is traditionally said that there are two requirements. There must be knowledge of the illegal performance and participation: see the observations of Gibson LJ in the Hall case, para 31, referring to passages from the judgments of Lord Denning MR and Scarman LJ, as he then was, in Ashmore Benson Ltd v Dawson Ltd [1973] 1 WLR 828.
(5) Implicit in the analysis of Gibson LJ is of course a third requirement, namely that the performance must be illegal. It must be a form of illegality which properly attracts the operation of the doctrine.
(6) The concept of knowledge requires that the employee must have knowledge of the facts which renders the performance illegal: Gibson LJ in Hall para 38. However, it is irrelevant whether the party appreciates that what he is doing is illegal. Ignorance of the law is no excuse, this has been reiterated on many occasions: see eg Miller v Karlinski (1945) 62 TLR 85(CA); Salvesen v Simons [1994] IRLR 52.
(7) The concept of participation … requires some active participation …
(8) In the context of unfair dismissal claims, it is now settled law that if the underlying contract of employment is illegal then it is against public policy to allow the claim to be pursued: Tomlinson v Dick Evans U DFrive Ltd. [1978] IRLR 77 (EAT) applied in Davidson v Pillay [1979] IRLR 275, both of which were cited with approval by Gibson LJ in the Hall case. Moreover, the employee cannot count any period during which he was employed under an illegal contract as part of his period of continuous employment for the purpose of obtaining the requisite continuity to pursue a claim: see Hyland v J. H. Barker (North West) Ltd [1985] ICR 861 where continuity was broken by a four week period during which the employee received a tax free benefit which both parties knew to be illegal.
(9) Whether there is knowledge or participation is a matter of fact for the Tribunal”.
(2) The law on unfair dismissal is contained in Articles 126, 127 and 130 of the Employment Rights (NI) Order 1996 (“the 1996 Order”). Article 130A of the 1996 Order provides as follows:-
“Procedural fairness
130A —(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if-
(a) One of the procedures set out in Part I of
Schedule I of the Employment (Northern Ireland) Order 2003 (dismissal and
disciplinary procedures) applies in relation to the dismissal,
(b) the procedure has not been completed, and
(c) the non-completion of the procedure
is wholly or mainly attributable to failure by the employer to comply with its
requirements.
(2) Subject to paragraph (I), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure...”
For the avoidance of doubt, Article 130A(2) of the 1996 order (the partial reversal of Polkey) does not apply where the statutory procedures have not been complied with.
(3) The statutory dismissal and disciplinary procedures which must be carried out by an employer are set out in Schedule 1 to the Employment (Northern Ireland) Order 2003.
These involve three steps:-
(1) A statement of grounds for action and an invitation to a meeting;
(2) A meeting; and
(3) Appeal.
Failure by an employer to comply with the statutory procedures means that the dismissal will be deemed to be automatically unfair in accordance with Article 130A of the 1996 Order. Furthermore, by virtue of Article 17 of the 2003 Order, any compensatory award will (save in exceptional circumstances) be increased or decreased by between 10% and 50%. In deciding whether it is just and equitable in all the circumstances to increase the uplift to a figure between 10% and the maximum of 50%, the tribunal must exercise its discretion by reference to some particular facts and circumstances surrounding the failure to complete the statutory procedure which can properly be regarded as making it just and equitable that the employer should be penalised further (McKindless v McLaughlin [2008] IRLR 678 EAT).
(4) The tribunal considered the provisions in the 1996 Order relating to redundancy and unlawful deductions from wages. It also considered the provisions in relation to breach of contract contained in the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994. Under this Order an employee can bring a breach of contract claim in respect of a number of matters outstanding on the termination of his employment. This can include a claim for a lying week or notice pay and, (where not otherwise governed by the unlawful deduction from wages jurisdiction in the 1996 Order), for arrears of pay.
(5) In relation to mitigation of loss, the onus is on the employer, as a wrongdoer, to show that the employee has failed in his duty to mitigate his loss. He must show that the claimant was acting unreasonably in failing to seek alternative work, or in turning down a job offer; and the test is objective in all the circumstances of the case. (Wilding v BT plc (2002) IRLR 524).
(6) Recoupment in accordance with the Employment Protection (Recoupment of Jobseekers Allowance and Income Support) Regulations (Northern Ireland) 1996 as amended by the Social Security (Miscellaneous Amendment No 6) Regulations (Northern Ireland) 2010 is restricted to the three benefits named – Jobseekers Allowance, Income-Related Employment and Support Allowance, and Income Support.
CONCLUSIONS
7. The tribunal, having considered the evidence and having applied the principles of law to the findings of fact, concludes as follows:-
(i) The tribunal is satisfied that the claimant was automatically unfairly dismissed without notice on 29 April 2013 and that there should be an uplift in the compensatory award pursuant to Article 17 of the 2003 Order of 50%. The claimant received no notification in writing from the respondent prior to dismissal of any alleged conduct or of any circumstances justifying his dismissal. No actual reason for dismissal was provided. Furthermore, there was no invitation given to the claimant to meet with the respondent to discuss the matter and he was not afforded any right of appeal, despite having raised what he regarded as a grievance, by text.
(ii) Alternatively, apart from automatic unfair dismissal, the onus is on the respondent to show a reason for dismissal under Article 130 of the 1996 Order. The respondent did not present himself at the tribunal to do so. The tribunal is satisfied that the dismissal was directly connected with the correspondence emanating from HM Revenue and Customs relating to tax credits and the claimant’s employment status, both of which clearly placed the respondent in considerable difficulties leading him to unfairly dismiss the claimant.
(iii) Article 118 of the 1996 Order has been breached in relation to notice of termination of employment.
(iv) The tribunal therefore awards the claimant the sum of £15,284.64 made up as follows:-
|
Basic award 13.5 x £255.30 = |
£3,446.55
|
|
Compensatory award 23.4 weeks pay from 29 April 2013 - 10 October 2013 (to include 9 weeks notice pay of £2001.78) =
|
£5,204.63 |
|
The tribunal also concludes that it is just and equitable to award the claimant a further compensatory amount in respect of future loss of 13 weeks x £222.42 =
|
£2,891.46 |
|
Uplift and compensatory award for respondent’s failure to follow the statutory procedures 50% x £6,094.31 =
[£3202.85 (£5204.63 - £2001.78 notice pay) + £2,891.46 = £6,094.31 |
£3,047.16 |
|
Amount for two lying weeks =
|
£444.84
|
|
|
|
|
Loss of statutory rights |
£250.00
|
|
TOTAL: |
£15,284.64 |
8. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 6 August 2013 and 10 October 2013, Belfast.
Date decision recorded in register and issued to parties: