Industrial Tribunals Northern Ireland Decisions

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Cite as: [2014] NIIT 429_14IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 429/14

CLAIMANT: James Kevin Busby

RESPONDENT: Signage (NI) Ltd

DECISION

(A) The respondent is liable to make a redundancy payment of £3,780 to the claimant.

(B) The claimant’s notice pay claim against the respondent is well-founded. It is ordered that the respondent shall pay to the claimant the sum of £1,208 in respect of that claim.

Constitution of Tribunal:

Employment Judge (sitting alone): Employment Judge Buggy

Appearances:

The claimant was self-represented.

The respondent was debarred from participating in the proceedings, because it had not presented a response.

REASONS

1. The respondent company (“the company”) was originally named in these proceedings as “Signage Ltd” but, on the basis of the claimant’s testimony, I am satisfied that the proper title of the respondent is “Signage (NI) Ltd” and the title of these proceedings has been amended accordingly.

2. In these proceedings, the claimant makes claims in respect of notice pay and redundancy pay.

3. I was satisfied that, for many years, until 19 December 2013, the claimant was employed by the respondent company, Signage (NI) Ltd, and that he was dismissed, by reason of redundancy, without notice, on 19 December 2013.

4. I was satisfied that, at the date of his dismissal, the claimant was 46 years of age.

5. I was satisfied that, at the time of his dismissal, and for more than a year beforehand, the claimant was entitled to gross weekly pay of £216 and net pay of £196.94.

6. I was satisfied that, at the date of dismissal, the claimant had been employed for at least 15 years. I was not satisfied that, at that date, he had been employed for more than 15 years. (See below).

7. The redundancy payment in this case is calculated on the following basis. Gross pay was £216 per week. The claimant was aged 46 at the time of dismissal. He was employed for 15 years at the time of dismissal.

8. The amount awarded to the claimant in respect of notice pay is based on the following. Notice pay was allowed for 12 weeks. The claimant’s net weekly pay entitlement in December 2013 was £196.94. I notionally deducted £71 from the £196 per week, to allow for the fact that the claimant had an entitlement to Jobseekers Allowance from the date of dismissal until February 2014. I took account of the fact that the claimant was working as a taxi driver from February 2014 onwards. I calculated that, in respect of the first eight weeks of the notice period, the loss sustained by the claimant on account of the lack of notice amounted to £1,008. I calculated that, during the remainder of the 12 week notice period, the loss sustained by the claimant by reason of the lack of notice amounted to approximately £200 overall.

9. Until November 2012, the claimant had been working full-time hours for the company and at that time was contractually entitled to £360 gross pay per week. However, in November 2012, his hours were reduced, and his pay was reduced, to the level of weekly pay which he was still receiving at the time of his dismissal. Accordingly, from November 2012 onwards, he always worked for those reduced hours and for that reduced weekly pay. In November 2012, he was told that his hours would be increased, and his pay would accordingly be increased, if the economic situation got better. However, in light, in particular, of the fact that the reduced hours, and the reduced pay, lasted for a year, I consider that I am obliged to treat the claimant’s weekly hours and weekly pay as having been contractually altered. Therefore, unfortunately, I must calculate the claimant’s redundancy pay and notice pay on the basis of the post-November 2012 weekly pay.

10. The claimant told me that, throughout the entire period of five years ending on the date of his dismissal, the company had been failing to make payments to HMRC in respect of deductions for income tax and national insurance in respect of his wages. However, he told me (and I accept) that those omissions had not occurred at his request, and that he had not known until October 2013 that they were occurring at all.

11. The company was controlled by the claimant’s brother. The claimant says that the two of them have not been in conversation together since the closure of the business. The claimant was not a shareholder in the company. He was not a director of the company either.

12. An extraordinary feature of this case is that, in his industrial tribunal claim form, the claimant specified that he had been employed in the company since March 1998; but, during the course of his oral testimony, he told me that he now believed he had been employed in the company since March 1995. He did not provide me with any satisfactory explanation for that change. He said that the reason why he was now saying that he started in 1995 was because, in conversation with him, the mother of his child had recently told him so. I invited him to call that individual as a witness. He agreed to seek to do so. However, in a subsequent email, date 8 May 2014, he stated that his ex-partner “cannot attend for work commitment reasons”. In the same email, he also stated the following:

“As I have no other evidence or witnesses to offer I would ask for the decision to be made on information already given”.

13. During the course of the hearing, I had already told the claimant that if no further oral testimony, from witnesses other than himself, was forthcoming, the likelihood was that I would decide that he had only been employed from March 1998.

14. I find the claimant’s change of tack, regarding the start date, to be very unsettling. I find it very hard to believe (although it is by no means impossible) that he genuinely has difficulty in remembering whether he started in 1995, 1996, 1997 or 1998, It is surprising, to say the least, that no witness, who can corroborate the claimant’s current assertion (that he started with the company in 1995) became available to give evidence to that effect. It is also surprising that the claimant has no documentation whatsoever to support the contention that he started with the company in 1995.

15. However, these are uncontested proceedings.

16. It is unlikely that the company will have funds to make payments pursuant to this Decision.

17. The current position is that the Redundancy Payments Service (“the RPS”) has no power to make payments to the claimant in respect of notice pay. They will not acquire those powers unless and until the company becomes formally insolvent. In the event of the RPS at some date in the future acquiring the power to make payments to the claimant in respect of notice pay, and in the event of the claimant then making an application to the RPS pursuant to that power, it would be open to the RPS, in those circumstances, if it thought it necessary or appropriate to do so, to make an application for an out-of-time review of this decision; in such circumstances, I would give careful consideration to any such application.

18. The RPS currently does have power to make payments to the claimant in respect of redundancy pay. No doubt, the claimant will now look to the RPS in its role as the statutory guarantor, to make payments to him in respect of redundancy pay.

19. In the present proceedings, the redundancy pay claim has been brought only against the company. Because the RPS has not participated in the present proceedings, it will not be bound by the outcome of these employee-versus-employer proceedings. (See Secretary of State for Employment v Global Elastic Tread Co Ltd [1979] IRLR 327 and the concluding remarks in the EAT judgment in Jones v Secretary of State for Employment [1982] ICR 389).

20. However, in the context of the claimant’s future application to the RPS in respect of redundancy pay, my formal determination, as set out above, that redundancy pay is due to the claimant from the company, is nevertheless an important development in his favour. That is because of the effect of Article 201(1)(a) of the Employment Rights Order 1996, which provides that, if the employer is not formally insolvent, the employee cannot receive a payment from the RPS, in respect of a redundancy payment, unless that employee has “taken all reasonable steps” to recover the payment from the employer. In practice, “all reasonable steps” is usually construed by the RPS as including the pursuit of tribunal proceedings against the employer.

21. Against that background, and in those circumstances, and in light of the fact that the claimant’s claim for a redundancy payment is not contested by the respondent, I consider it appropriate to conclude that the company is liable to make redundancy payment to the claimant in respect of the entire period from March 1998 until December 2012.

22. The RPS will no doubt carefully consider any application which this claimant may now make to that service in respect of redundancy pay. No doubt, in carrying out its process of assessment in relation to any such application, the RPS will have regard to the claimant’s HMRC contributions record, and to his social security benefits record (if any). Nothing in this Decision should be construed as involving any implication that I have concluded that the claimant has been in any way untruthful in giving evidence in these proceedings. (For the purpose of determining the issues in this case, it has been unnecessary for me to arrive at any definitive conclusion in respect of that aspect of the matter).

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

Employment Judge:

Date and place of hearing: 2 May 2014, Belfast

Date decision recorded in register and issued to parties:

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