Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:   2092/13

 

 

 

CLAIMANT:              Alyson McIlroy       

 

 

RESPONDENT:      Metro Travel Ltd, t/a Breakaway Travel Ltd   

 

 

 

DECISION

The unanimous decision of the tribunal is that the respondent is ordered to pay to the claimant the sum of £5,756.90.

 

Constitution of Tribunal:

Chairman:                Miss E McCaffrey

Members:                 Mr F Murtagh

                                    Mr E Miller

 

           

Appearances:

The claimant appeared in person.

 

The respondent had submitted a response but was not represented at the hearing.

 

 

ISSUES

 

1.         The issues for the panel to consider were:-

 

(1)       whether the claimant had been unfairly dismissed by the respondent,

 

(2)       whether she was entitled to any award in relation to arrears of pay/unlawful deductions from wages, and

 

(3)       whether the claimant was entitled to a payment in lieu of holidays accrued but not taken.

 

 

 

THE FACTS

 

2.         This is one of four claims all brought against the same respondent.  The claimant commenced employment with the respondent on 1 July 2012.  She had previously worked for the Co-Operative Travel Agency located in the same premises and agreed with Brian White, a Director of the respondent company that her pay would be £9.04 per hour (the same rate as before) and that she would work three days a week i.e. 24 hours per week.  Her hourly rate was confirmed in the written contract which was produced by the respondent.  The tribunal notes that the name of the respondent given in the claimant’s claim form is “Brian White” and secondly, “Metro Travel, trading as Breakaway Travel”.  The response form lodged by the respondent  gives the correct name of the respondent as “Metro Travel Ltd”.  The contract of employment which the claimant produced to the tribunal gives the name of the employer as “Metro Travel Ltd trading as Breakaway Travel” and we note the name of the employer on her payslips is given as “Breakaway Travel Ltd”.  Accordingly we amend the name of the respondent to read “Metro Travel Ltd., trading as Breakaway Travel Ltd”.  The response form was lodged in the case of Amanda Kane (2101/13), but seems to refer to all four claimants.  Accordingly, we have treated the response as being the same for all four claims.

 

3.         On 9 September 2013 Brian White called all staff to a meeting at the respondent’s premises.  He advised them that the business was closing and that they would all receive one week’s pay in lieu of notice which they did receive.  At the date of the hearing the respondent company is still active.

 

4.         However, the claimant was not satisfied that she had received all she was entitled to.  She indicated that the pay she had received was not accurate due to the fact that the respondent’s premises were open from 9.00 am to 5.30 pm and the staff had an unpaid lunch break of 30 mins.  She worked 24 hours a week, but was actually paid for 22.5 hours.  She had also agreed with Mr White she should receive commission at the rate of 10% on individual sales but never received any commission.  She indicated that she and other members of staff had approached Mr White about this some time before the business closed.  He indicated that finances were difficult and asked them to wait for the payment which they had reluctantly agreed to do.

 

5.         Written contracts of employment had been issued to the claimant and her colleagues.  This contract specified that once employed for more than one month, an employee was entitled to one month’s notice if they had up to five years’ service.  The contract also specified that the claimant was entitled to 20 days paid leave per annum plus eight bank holidays, pro-rata for part-time employees.

 

6.         The claimant was aged 49 at the date of dismissal.  She found new employment commencing on 2 January 2014 and is currently earning more than she previously did.  She claimed Jobseekers Allowance from 1 October 2013 to 31 December 2013 and received £71.40 per week.

 

RELEVANT LAW

 

7.         Employees have the right not to be unfairly dismissed as set out in Article 130 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”).  In relation to issues of procedural unfairness the appropriate provisions are to be found in Article 130A which provides as follows ‒

 

“Article 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 1 to 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 ...”

 

8.         The Statutory Disciplinary and Dismissal procedure set out in Schedule 1 of the 2003 Order comprises three stages: a letter from the employer to the employee setting out the alleged misconduct and inviting the employee to a disciplinary meeting at which he is entitled to be accompanied; the disciplinary meeting at which the employee is entitled to be heard and to reply to the allegations against him; a written decision to the employee and the appropriate right to appeal a decision.  Article 17(3) of the Employment (Northern Ireland) Order 2003 makes provision for the uplift of awards in a case to which the statutory procedures apply, but they have not been followed due to the failure of the employer.  The tribunal should increase the award by 10% and may, in situations where it considers it just and equitable to do so, increase it by up to 50%. 

 

Written Terms and Conditions of Employment

 

9.         An employee is entitled to receive written terms and conditions of employment by virtue of Articles 33(1) and Article 36(1) of the 1996 Order.  By Article 27 of the 2003 Order, where the tribunal finds that no contract has been provided, it shall award two weeks’ gross pay and they award up to four weeks’ gross pay if it considers it just and equitable to do so.

 

The Right Not to Suffer Unauthorised Deductions

 

10.      Under Article 45 and following of the 1996 Order an employee has the right not to suffer unauthorised deductions from his wages unless the deduction is required or authorised to be made by virtue of the statutory provision or provision of the orders contract or the worker has previously signified his agreement in writing or consent to the making of the deduction.

 

11.      Article 55 of the 1996 Order specifies that a worker may present a complaint to an Industrial Tribunal in relation to deductions from wages and that complaint must be presented before the end of the period of three months beginning with the date of the deduction.  If a complaint is brought in respect of series of deductions, then a reference to the deduction or payment is to the last deduction of payment in respect of which a complaint is made.

 

Minimum Wage

 

12.      Under the National Minimum Wage Act 1998 workers are to be paid at least national minimum wage for the current year.  For the years at issue in relation to these claims for the year from October 2011 the rate was £6.08 per hour and from October 2012 the rate was £6.19 per hour.  The rate was increased again in October 2013.

 

Decision and Reasons

 

13.      The claimant in this case was unfairly dismissed by the respondent in that she was dismissed with one week’s pay in lieu of notice but without the respondent having gone through the relevant statutory disciplinary and dismissal procedures.  We are also satisfied that she had agreed with the respondent that she would be paid at the rate of £9.04 per hour and, having checked her payslips and heard her evidence, we are satisfied that she was paid only for 22.5 hours per week and not for her full hours of employment.  The respondent did not attend and we have no evidence before us which persuades us that, even if the correct procedures had been followed, the claimant would have been dismissed in any event.

 

14.      On the basis of the claimant’s evidence we are also satisfied that while she had taken some of her annual leave during the year she was entitled to a further six days leave due when dismissed on 9 September 2013.

 

15.      We are also satisfied that the claimant was entitled to receive commission. However, because of lack of information which the claimant has been able to obtain about the actual commission due, we cannot make any award in that regard.

 

16.      In relation to the various claims which the claimant made we make the following awards:-

 

(1)        Unfair dismissal

 

Basic award

 

The claimant had been employed for one complete year and was aged 49 on the date of dismissal.  We are satisfied that the correct rate of her pay should have been £216.96 gross. 

 

1½ weeks by £216.96                                              =                      £  325.44

 

Loss of earnings

 

7 October to 31 December 2013               

 

12 weeks @ £216.96                                               =                      £2,603.52

 

Uplift for failure to carry out the

statutory disciplinary and dismissal

procedures 10%                                                       =                      £   292.90

 

Loss of statutory rights                                            =                      £   300.00

 

(2)        Unlawful deductions from wages

 

            The claimant indicated that she had agreed with the respondent that she would be paid £9.04 per hour and this is reflected in her contract of employment.  She was also to work 24 hours per week but her payslips reflect that she was paid for only 22.5 hours per week.  On this basis we calculate that her monthly pay (gross) should have been £940.16 whereas in fact she was paid £858 per month, a difference of £82.16 per month.  As she had worked for the respondent for 14 months we calculate arrears of pay to which she is entitled are £1,150.24 (gross).

 

            This amount is subject to deductions for tax and

national insurance                                                  =                      £1,150.24

 

(3)       Notice pay

 

The claimant’s contract of employment entitled her to four weeks’ notice pay but she received only one week’s pay in lieu of notice.  We therefore believe that she is entitled to three weeks’ pay in lieu of notice which we calculate as follows:-

 

£216.96 x 3                                                                =                      £650.88 (gross)

 

This amount is subject to deductions for tax and national insurance.

 

(4)        Holiday pay

 

The claimant was entitled to six days holidays accrued but not taken at the date of termination of her employment.  We calculate her daily rate of pay as follows:-

 

            £216.96 ÷ 3 = £72.32 x 6 = £433.92                     

 

TOTAL           £5,756.90                 

 

The claimant received Jobseekers Allowance from 1 October 2013 until to 31 December 2013.  The Recoupment Regulations apply in relation to this period which is the protected period.  The amount of the award which relates to the protected period is £2,603.52.  The compensatory award exceeds the protected award by £3,153.38.

           

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

 

 

Chairman:

 

 

Date and place of hearing:          26 February 2014, Belfast.          

 

Date decision recorded in register and issued to parties: