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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Hawthorne v Mr Freddy Bryans t/a Millbrook... [2014] NIIT 114_14IT (15 April 2014)
URL: http://www.bailii.org/nie/cases/NIIT/2014/114_14IT.html
Cite as: [2014] NIIT 114_14IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 114/14
CLAIMANT: Heather Hawthorne
RESPONDENT: Mr Freddy Bryans t/a Millbrook Removals
Certificate of Correction
1. The decision issued on 15 April 2014 contained the incorrect wording, “The claimant appeared in person” which shall be replaced with “The claimant was represented by Mark Mason of Collective Business Services”.
Employment Judge: __________________________________________
Date: __________________________________________
THE INDUSTRIAL TRIBUNALS
CASE REF: 114/14
CLAIMANT: Heather Hawthorne
RESPONDENT: Freddy Bryans T/A Millbrook Removals
DECISION
The claimant has suffered unauthorised deductions from wages and a loss as a result of the breach of contract by the respondent in failing to pay the claimant wages due in the sum of £3,112.50. The claimant is entitled to £865.38 in respect of holidays accrued due on termination of her employment. When proceedings were commenced the respondent was in breach of his duty to provide the claimant with a written statement of employment particulars and shall pay the claimant £858.80 in respect thereof. The respondent shall pay the claimant in total £4,836.68.
Constitution of Tribunal:
Employment Judge (Sitting alone): Employment Judge Bell
Appearances:
The claimant appeared in person.
The respondent did not appear and was not represented.
1. The claimant in her claim complained that she had not been paid arrears of wages and holiday pay due to her on leaving her employment and was not provided with payslips or a written statement of employment particulars. At hearing the claimant confirmed in respect of her wage slips and contract of employment she sought only an award for failure to provide a written statement of employment particulars under Article 27 of the Employment Rights (Northern Ireland) Order 2003 by way of remedy.
2. No response was presented by the respondent.
ISSUES
3. The issues before the tribunal were:-
o Has the respondent failed to pay the claimant wages due? If so, what loss has the claimant suffered?
o Has the respondent failed to pay the claimant pay for holidays accrued due on termination of her employment?
o When the proceedings were begun was the respondent in breach of his duty to provide the claimant with a statement of employment particulars?
EVIDENCE
4. The tribunal considered the claim, documentation from the claimant including bank statements and heard oral evidence from the claimant.
FINDINGS OF FACT
5. The claimant met with the respondent on 31 May 2013 and agreed to commence employment with him as operations manager in charge of obtaining sales and arranging the collection and delivery of household goods between residences. The respondent agreed to pay the claimant £1,500 net per month to be paid on the fourth day of the following month by BACS transfer into her bank account. It was agreed the claimant would work forty hours per week, her hours were not set to allow flexibility to work around her family but the claimant tried to work Monday to Friday 9.00 am to 5.00 pm. The respondent provided the claimant with a laptop and printer to work from home. The claimant’s agreed holiday entitlement was to be 25 days per annum. The claimant commenced working for the respondent on 2 June 2013.
6. On 3 July 2013 the claimant received a net payment of £1,400 into her bank account for work done in June from the respondent.
7. On 8 August 2013 the claimant received a net payment of £1,400 into her bank account for work done in July from the respondent.
8. On 4 September 2013 the claimant received a net payment of £1,400 into her bank account for work done in August from the respondent.
9. On or around the 6 October 2013 the claimant became aware that there were insufficient funds in her bank account to cover her direct debits and she then discovered that no payment had been made to her by the respondent for work done in September.
10. Shortly thereafter the claimant was approached by another removal business to work for them Monday to Friday 9.00 am to 5.00 pm, she advised the respondent of this and started also to work for them on 15 October 2013. Between the 15 October and 30 October 2013 the claimant continued to work for the respondent during evenings and weekends carrying out in excess of thirty hours work per week for the respondent.
11. On 2 November 2013 following a removal crew’s failure to follow her instructions the claimant informed the respondent that she was resigning from her employment with him and sought pay outstanding to her for September 2013 which had been due to be paid into her account on 4 October 2013.
12. Payment for work done by the claimant for the respondent during October 2013 expected into her account on 4 November 2013 was not received.
13. Following examination of her bank statements the claimant subsequently became aware that net payments made by the respondent in July, August and September 2013 into her bank account were each £100 short.
14. No further payment has been received by the claimant from the respondent.
15. The claimant was not at any stage during or after her employment provided with a written statement of initial employment particulars or payslips.
16. The claimant did not take any holiday leave during her employment with the respondent.
17. To arrive at net pay of £1,500 per month, being £346.15 net per week, the claimant’s gross pay as a basic rate tax payer should, prior to tax and national insurance contributions, have been approximately £429.40 gross per week.
18. The claimant presented her claim to the Office of the Tribunals on 6 January 2014.
THE LAW
19. Under the Industrial Tribunal Extension of Jurisdiction Order (Northern Ireland) 1994 an employee may bring a claim for damages for breach of his contract of employment or for a sum due under that contract or any other contract connected with his employment before an Industrial Tribunal if the claim arises out of or is outstanding on termination of his employment.
20. Article 45 of the Employment Rights (Northern Ireland) Order 1996 provides for a worker’s right not to suffer unauthorised deductions from wages by his employer. A deduction occurs when the employer pays less than the amount due on any given occasion and includes a failure to make any payment.
21. The Working Time Regulations (Northern Ireland) 1998 as amended provide under Regulations 13 and 13A for a worker to have minimum leave in a leave year from 1 April 2008 of 5.6 weeks and in the absence of provisions of a relevant agreement for the worker’s leave year to begin on their start date where it is after 23 November 1998. Under Regulation 14(2) where the proportion of leave taken by the worker is less than the proportion of the leave year which has expired, his employer shall make him a payment in lieu of leave in accordance with the formula set out at paragraph (3) in the absence of provision in a relevant agreement. Regulation 15A provides for accrued annual leave to be rounded-up during the first year only on a month-to-month basis to the next half-day.
22. Article 33 of the 1996 Order provides that where an employee begins employment with an employer, the employer shall give to the employee a written statement of particulars of employment as provided therein. Under Article 27 of The Employment (Northern Ireland) Order 2003 in proceedings before an industrial tribunal in respect of specified jurisdictions which include unauthorised deductions and payments, and breach of employment contract and termination, if the tribunal makes an award to the employee in respect of the claim, and when the proceedings were begun the employer was in breach of his duty to the employee under Article 33 of the 1996 Order the tribunal shall increase the award by the minimum amount equal to two week’s pay 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 equal to four week’s pay instead. The tribunal’s duty does not apply if there are exceptional circumstances which would make an award or increase unjust or inequitable.
APPLYING THE LAW TO FACTS FOUND
23. Based on the claimants undisputed evidence the tribunal is on balance satisfied as follows:
Arrears of Pay
24. Under her oral contract of employment the claimant was due at the effective date of termination net outstanding wages for work done for the months of June 2013 of £100, July 2013 of £100, August 2013 of £100, September 2013 of £1,500 and October 2013 of £1,312.50 (being £750 for the first half of October worked and £562.50 [that is £750 x ¾] for the remaining half of the month when the claimant worked in excess of 30 hours per week but not her contractual 40 hours). The claimant since termination of her employment, has not been paid the balance due under her contract of employment for wages and the tribunal finds that the claimant has suffered a series of unauthorised deductions from her wages and a loss as a result of a breach of contract by the respondent in respect thereof amounting to the sum of £3,112.50.
Holidays
25. The claimant’s statutory minimum holiday entitlement under the Working Time Regulations (Northern Ireland) 1998 was 5.6 weeks per year which exceeds and so supersedes the claimant’s contractual holiday entitlement. The respondent contrary to the working time regulations has failed to pay the claimant on termination of her employment for holidays accrued due as follows;
5.6 weeks (annual leave entitlement under 1998 regulations) X 5/12 (proportion of the leave year which expired before termination date) - 0 (period of leave taken) = 2.3 weeks
Rounded up under Regulation 15A = 2.5 weeks
Average net weekly pay = £346.15
Holiday pay due: 2.5 weeks x £346.15 = £865.38
Failure to give a statement of employment particulars
26. When the proceedings were begun the respondent was in breach of its duty to provide the claimant with a statement of employment particulars and in light of the above awards and in the absence of evidence of any exceptional circumstances which would make an award unjust or inequitable or the tribunal being persuaded that it is just and equitable to award the higher amount the tribunal increases the award to the claimant by the minimum amount under Article 27 of the 2003 Order being equal to two weeks gross pay, that is, £858.80.
CONCLUSION
27. The claimant has suffered unauthorised deductions from wages and a loss as a result of the breach of contract by the respondent in failing to pay the claimant wages due in the sum of £3,112.50. The claimant is entitled to £865.38 in respect of holidays accrued due on termination of her employment. When proceedings were commenced the respondent was in breach of his duty to provide the claimant with a written statement of employment particulars and shall pay the claimant £858.80 in respect thereof. The respondent shall pay the claimant in total £4,836.68.
28. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Employment Judge:
Date and place of hearing: 25 March 2014, Belfast.
Date decision recorded in register and issued to parties: