Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2014/1856_13IT.html
Cite as: [2014] NIIT 01856_13IT, [2014] NIIT 1856_13IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1856/13

CLAIMANT: Gemma Armstrong

RESPONDENT: Aine Yates

DECISION

The unanimous decision of the tribunal is that the claimant’s claim of unfair dismissal is well-founded and her claim in relation to failure to supply written terms and conditions of employment is well-founded. Her claims in relation to holiday pay and no pay slips are not well-founded and are dismissed. We order the respondent to pay to the claimant the sum of £235.22 as set out in the body of this decision.

Constitution of Tribunal:

Chairman: Miss E McCaffrey

Members: Mr J Devlin

Mr I Atcheson

Appearances:

The claimant appeared in person and represented herself.

The respondent appeared in person and was represented by her husband, Mr Yates.

1. On the basis of the evidence heard from the claimant and the respondent, and the documentation produced to us by both the claimant and the respondent, we are satisfied that the claimant was continuously employed by the respondent from 6 April 2010 until her dismissal on 26 July 2013. She worked 10 hours per week and was paid £61.90 per week. At the date of her dismissal, the claimant was aged 28 years old.

2. We gave an oral decision at the end of the hearing and our reasons were given at that time.

3. The following is a summary of our decision in relation to this matter and the amounts which we order as payable:-

(1) Unfair Dismissal

We are satisfied that the claimant was dismissed by the respondent on or about 25 July 2013. The respondent agreed that she had summarily dismissed the claimant. The claimant had been working for the respondent as a child-minder and had taken the respondent’s children to Portrush for the day without seeking the respondent’s permission or authority for doing so and had kept the children out all day while the respondent expected them back at lunchtime.

(2) The respondent failed to follow the statutory dismissal procedure and for this reason we find that the dismissal was an automatically unfair dismissal contrary to Article 130A of the Employment Rights (NI) Order 1996 and the claimant is entitled to an uplift of between 10% and 50% on the award. We consider in this case an award of 20% is appropriate.

(3) After her dismissal the claimant was receiving benefit of £71.00, which was more than the amount she received when working for the respondent, and so we make no award for continuing loss. Accordingly we order the respondent to pay to the claimant the following amount:-


Basic Award: Three weeks’ pay i.e	£61.90 x 3	=	£185.70

Notice Pay:	The claimant is entitled to three weeks’ notice, i.e., 3 weeks x £61.90	=	£185.70

Uplift on award for failing to following the Statutory Dismissal and Disciplinary Procedures 20%.		=	£74.28

Sub Total:			£445.65

(4) We consider that the claimant contributed considerably to her dismissal in that she failed to discuss with the respondent whether the respondent was happy for her to take the children to the seaside and to keep them out all day. The respondent’s evidence was that if she had known of the claimant’s plan to take the children to the seaside she would have refused her permission. We consider the claimant’s action a serious breach of trust which constituted serious misconduct and we consider that it would be just and equitable to reduce the award made to the claimant by 75%. The balance award for unfair dismissal is therefore £111.42.

(5) Failure to provide written terms and conditions of employment:

The respondent frankly admitted that she had failed to provide written terms and conditions of employment. The respondent is a hairdresser running a business from her home. The claimant helped out in the hairdressing salon and helped look after the respondent’s children. In the circumstances we believe that it would be just and equitable to make an award of two weeks’ pay for failure to provide written terms and conditions of employment. We therefore order the respondent to pay to the claimant the sum of £123.80.

4. Failure to provide payslips

No payslips were provided to the claimant while she was working for the respondent. Full payslips were subsequently provided. The remedy for failing to provide written payslips is an award of up to 13 week’s amount of the difference between gross and net pay. In this case the claimant was not liable for tax or National Insurance on her week’s pay and there is therefore no difference between her gross and net pay. Accordingly there is no award to be made.

5. Holiday Pay

6. Under the Working Time Regulations, the entitlement of an employee is to take paid holiday during the current leave year. The only circumstances in which a claimant can be paid for leave accrued but not taken is when he or she leaves her employment in the course of that leave year. Accordingly, we do not accept the claimant’s claim that she is seeking an amount in respect of holidays untaken for the previous 11 years. In any event we have not found the claimant was continuously employed by the respondent for 11 years.

7. Taking the year during which the claimant’s employment was terminated, as she worked 10 hours per week, and the normal working week is approximately 40 hours, we believe that her entitlement to paid holiday is a quarter of the statutory minimum of 28 days, i.e. seven days. She had worked almost to the end of July, i.e., ⁷/₁₂^ths of the year and her holiday entitlement up to the date of her dismissal was therefore four days. It was agreed that she had been paid for three days holiday she had taken in June and for three or four days bereavement leave following the death of family members. Accordingly, we are satisfied that the claimant had taken any holiday entitlement she was due and her claim for unpaid holiday is therefore dismissed.

8. In total, we order the respondent to pay to the claimant the sum of £235.22 as set out above.

9. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 28 January 2014, Belfast.

Date decision recorded in register and issued to parties:

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