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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Magill v Mark Scullion Tracey Scullion [2014] NIIT 1639_13IT (07 January 2014)
URL: http://www.bailii.org/nie/cases/NIIT/2014/1639_13IT.html
Cite as: [2014] NIIT 1639_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1639/13
CLAIMANT: Raymond Magill
RESPONDENTS: 1. Mark Scullion
2. Tracey Scullion
DECISION
The unanimous decision of the tribunal is that the claimant’s claim is well-founded and it is ordered that the respondents shall pay to the claimant the sum of £250 as a remedy in respect of the failure to notify the claimant in relation to employee liability information.
Constitution of Tribunal:
Chairman: Mr P Buggy
Members: Mr B Irwin
Mr T Wells
Appearances:
The claimant was self-represented.
The respondent was represented by Ms A Brock, Solicitor of Elliott Duffy Garrett Solicitors.
REASONS
1. Any reference below to “TUPER” is a reference to the Transfer of Undertakings (Protection of Employment) Regulations 2006.
2. There was a “TUPER” transfer of a pub known as “The Yew Tree”, from the two respondents to these proceedings (as transferors) to the claimant in these proceedings (as transferee). Pursuant to that transfer, several employees at The Yew Tree became employees of the claimant. Pursuant to regulation 4 of TUPER, the claimant thereby became responsible for any entitlements of the transferred employees in respect of any holiday leave entitlements which had accrued to them prior to the transfer.
3. Three of the transferred employees took cases against the claimant in respect of these alleged accrued holiday pay entitlements. The relevant three employees, and the case references of their respective industrial tribunal proceedings, were as follows:
Lisa Louise Kearney (720/13)
Gary McCrory (1445/13)
Tracey Hollinger (1554/13)
4. Ms Kearney’s proceedings were the subject of an industrial tribunal decision which was issued on 7 August 2013. In those proceedings, Ms Kearney’s claim for accrued holiday pay was dismissed.
5. Mr McCrory’s industrial tribunal proceedings were settled, on an agreed basis. According to the terms of the settlement, Mr Magill had to pay £1,120 to Mr McCrory in respect of holiday pay.
6. In proceedings which were the subject of a main hearing on the same day as the present proceedings, Ms Hollinger made a holiday pay claim against the claimant. That holiday pay claim was dismissed.
The claim
7. In these proceedings, the claimant claims that there has been a breach by the respondents of the obligation imposed by regulation 11 of TUPER; that, as a result of that breach, he has suffered loss (in that he has had to make a holiday pay payment, by way of settlement, to Mr McCrory); and that he should be awarded “compensation” within the meaning of regulation 12 of TUPER, in respect of the breach of the regulation 11 obligation.
Time-limits
8. Before considering the substantive issues in this case, it is necessary for us to consider time-limit issues.
9. Paragraph (2) of regulation 12 provides for primary and secondary time-limits in respect of any claim in relation to a breach of regulation 11.
10. The regulation 12 primary time-limit is that the complaint must be presented before the end of the period of three months beginning with the day of the relevant transfer. The relevant transfer is this instance occurred in January 2013. The claim in these proceedings was presented only on 19 September 2013. Accordingly, the complaint in these proceedings was lodged long after the expiry of the primary time-limit.
11. Paragraph (2) of regulation 12 provides for a secondary time-limit. According to that secondary time-limit, a tribunal can consider a complaint under regulation 12 if it is lodged “within such further period as the tribunal considers reasonable” in a case where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the primary time-limit.
12. In our view, it was indeed not reasonably practicable for the complaint to be presented within the relevant primary time-limit. That is because, throughout that period, the claimant was unaware of his right to make a complaint under regulation 12. In our view, that was ignorance on his part as to his legal entitlements. In our view, that was reasonable ignorance. That reasonable ignorance made it not reasonably feasible for the claimant to present the claim in these proceedings within the relevant primary time-limit. Regulations 11 and 12 of TUPER are not very well known. They relate to aspects of employment law which are rarely encountered in practice. In those circumstances, the claimant’s ignorance as to his legal entitlements, during the primary time-limit period, was entirely reasonable.
13. A significant period elapsed between the date of the expiry of the primary time-limit and the date on which the claimant presented his claim form in these proceedings. However, throughout nearly all of the latter period, the claimant continued to be ignorant as to his legal entitlements.
14. Furthermore, the Kearney case only began in April 2013 and the McCrory and Hollinger cases only began in August 2013. Against that background, and for those reasons, we are satisfied that the “further period”, within the meaning of the relevant secondary time limit, was reasonable.
15. Accordingly, we have decided that the lateness of this claim does not deprive us of jurisdiction in this case.
Liability
16. Regulation 11 of TUPER imposes an obligation upon a transferor to notify to the transferee “the employment liability information of any person employed by him who is assigned to the organised grouping of resources or employees that is the subject of a relevant transfer …”. That information has to be made available to the transferee in writing, or it has to be made available in a readily accessible form.
17. Paragraph (2) of regulation 11 defines “employee liability information” for the purposes of that regulation. Of the information which is listed there, only the following is relevant, in the circumstances of this case:
“(b) those particulars of employment that an employer is obliged to give to an employee pursuant to [Article 33 of the Employment Rights (Northern Ireland Order 1996]”.
18. Against the following background and for the following reasons, we are satisfied that the respondent did not provide those particulars of employment to the claimant.
19. In deciding the latter factual issue we have had to decide which of two witnesses was telling the truth.
20. We have no hesitation in preferring the evidence of this claimant, on this issue, to the evidence provided by Mr William McCombe (who was a witness on behalf of the respondents in this case).
21. We were shown a document entitled “TO WHOM IT MAY CONCERN” which was undated, and which had been signed by Mr McCombe. According to Mr McCombe’s testimony in these proceedings, that document (“the relevant document”) had been left on Mr McCrory’s personnel file, prior to the date of the relevant transfer, and should still have been on that file when the business was taken over by the claimant as transferee. According to the claimant, no such document was made available to him, either at the time of the transfer, or at any time beforehand.
22. The content of the relevant document was as follows:
“As Gary’s senior manager I had a verbal agreement with him, due to his unique position within the restaurant, that unless there was someone experienced enough to cover him then he would be unable to take extended periods of leave. Gary understood and was in agreement with this arrangement.
Although Gary was able to take his rest days off on a weekly basis it was not possible for him to use up his statutory holiday entitlement. I therefore had an agreement with him that he could either be paid in lieu of his holidays and any remainder would be carried across to subsequent holiday years. Upon transfer of the property and staff contracts, this arrangement we had with Gary was made known to Mr Magill.
During my two years as Gary’s manager I was more than happy with his honesty, reliability and above all his professionalism and the pride he demonstrated towards his job”.
23. We have no doubt that this document was produced after the relevant transfer had occurred. In particular, we have noted the last sentence of the penultimate paragraph of the document, which implies that the document was produced after the relevant transfer had occurred.
24. The claimant gave evidence in
these proceedings. During the course of her
cross- examination of the claimant, Ms Brock, on behalf of the
respondents, never adverted to the existence of the relevant document. We are
satisfied that the reason for her omission to do so was that, at the time of
that cross-examination, she had not been made aware of the existence of that
document. The lack of candour shown by Mr McCombe in that regard is also a
significant reason for disbelieving his contention that the document was
provided to the claimant prior to the relevant transfer.
25. The conclusions which we have arrived at in relation to the relevant document, are conclusions which have affected our assessment of Mr McCombe’s general credibility as a witness. Accordingly, we also prefer the claimant’s evidence, to the evidence of Mr McCombe, on the question of whether or not details of the holidays already taken by employees, and of holiday entitlements as yet untaken, were put on to the personnel files of those people who were employed in the transferred entity. (According to the claimant, that never happened. According to Mr McCombe, it did happen).
26. On the basis of the findings of fact set out above, we are satisfied that there has been a breach, on the part of the transferors, of that part of the regulation 11 duty which relates to “particulars of employment”.
Remedies
27. Paragraph (3) of regulation 12 provides that, where an industrial tribunal finds a complaint under Paragraph (1) of that regulation to be well-founded:
(1) The tribunal must make a declaration to that effect.
(2) The tribunal may make an award of “compensation” to be paid by the transferor to the transferee.
28. Accordingly, we do make a declaration, to the effect that there has been a breach of the requirements of regulation 11.
29. We have a discretion as to whether to make any award of “compensation”. We have decided to make such an award, for the following reasons, and against the following background.
30. Paragraphs (4) and (5) of regulation 12 are in the following terms:
"(4) The amount of the compensation shall be such as the tribunal considers just and equitable in all the circumstances, subject to paragraph (5), having particular regard to -
(a) any loss sustained by the transferee which is attributable to the matters complained of; and
(b) the terms of any contract between the transferor and the transferee regarding the transfer under which the transferor may be liable to pay any sum to the transferee in respect of a failure to notify the transferee of employee liability information.
(5) Subject to paragraph (6) the amount of compensation awarded under paragraph (3) shall be not less than £500 per employee in respect of whom the transferor has failed to comply with a provision of regulation 11, unless the tribunal considers it just and equitable, in all the circumstances, to award a lesser sum.”
31. We consider that the primary purpose of any “compensation” awarded pursuant to regulation 12 is to provide a remedy to the transferee in respect of any loss sustained on account of a failure to comply with the requirements of regulation 11. In that connection, we note that one of the matters to which the tribunal must have regard, in assessing the amount of any compensation payable to a transferee, is the extent of any loss sustained by that transferee.
32. However, we note that any loss sustained by the transferee is only one of the matters to which the tribunal can have regard. We consider the list of matters specified at sub-paragraphs (a) and (b) of paragraph (4) of regulation 12 to be a non-exhaustive list.
33. We consider that the legitimate purposes of awarding a monetary remedy under regulation 12 includes the purpose of deterrence. We think this is implied by the provision in paragraph (5) that, regardless of the extent of loss, any compensation awarded is not to be less than £500 per employee, unless the tribunal considers it to be just and equitable to award a lesser sum. We also note that regulation 15 of TUPER also contemplates the award of “compensation” and that case law clearly shows that deterrence is the main purpose of making regulation 15 “compensation” awards.
34. Although the particulars relating to Mr McCrory’s holiday pay entitlements were not provided to the claimant prior to the transfer, it would have been sensible for him to have proactively made enquiries as to the accrued holiday pay entitlements of all the staff who were transferring to his employment. Furthermore, it would have been logical for him to have assumed that one, or several, or all, of the transferring employees may have accrued holiday pay entitlements prior to the transfer. Accordingly, we are satisfied that the claimant has sustained no loss on account of the failure to comply with the regulation 11 duty.
35. We know of no good reason for the failure on the part of the transferors to comply with the regulation 11 duties.
36. However, that failure has not resulted in any loss to the claimant.
37. Against that background, and for those reasons, we have decided not to award £500 per employee. We consider that any such award would be disproportionate.
38. However, we consider that it is appropriate to signify the tribunal’s disapproval of the transferors’ failures, by making a significant award.
39. Against that background, and for those reasons, we have decided to make an award of £250.
40. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 5 November 2013, Belfast
Date decision recorded in register and issued to parties: