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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Murphy v Department for Employment and ... Department for Employment and ... [2014] NIIT 430_14IT (01 August 2014)
URL: http://www.bailii.org/nie/cases/NIIT/2014/430_14IT.html
Cite as: [2014] NIIT 430_14IT
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THE INDUSTRIAL TRIBUNALS
CASE REFS: 430/14
431/14
CLAIMANTS: 1. Margaret Murphy
2. Catherine Martina McDonnell
RESPONDENT: Department for Employment and Learning
DECISION
In each of these two cases, I have decided that the claimant’s redundancy pay, for the purposes of her application under Article 201 of the Employment Rights (Northern Ireland) Order 1996 (“ERO”), should be calculated on the basis of a weekly gross salary of £162. The precise amount due to the claimant pursuant to Article 201 will be decided during a future hearing if that amount is not now promptly agreed between the parties.
Constitution of Tribunal:
Employment Judge (sitting alone): Employment Judge Buggy
Appearances:
Each claimant was self-represented.
The respondent was represented by Mr Neil Cruikshanks.
REASONS
1. I announced my decisions at the end of the hearing. Accordingly, what follows is by way of summary only.
2. These are two appeals, which have been brought under Article 205 of ERO. These two appeals were heard together.
3. In each instance, the relevant claimant had made a redundancy payment claim to an industrial tribunal, against the relevant employer, pursuant to Article 198 of ERO. In each instance, that claim had been successful. In each instance, the relevant industrial tribunal (the Employment Judge who heard the relevant Article 198 redundancy payment claim) calculated the amount due from the employer, in respect of redundancy, on the basis of a salary of £162.50 per week. Both of the Article 198 claims were undefended.
4. The employer has no funds to pay the amount of either of the Article 198 awards.
5. Each claimant made an application to the respondent Department, in the Department’s role as the statutory guarantor in respect of redundancy pay. In each instance, the application was made under Article 201 of ERO. In each instance, the application was successful. However, in each instance, the amount paid by the Department was calculated on the basis of gross weekly earnings of £62.79 per week (rather than gross weekly earnings of £162.50 per week).
6. The Department was not bound by the outcomes of either of the Article 198 applications: See my Decision in Orr v Department for Employment and Learning (Case reference number 1629/11, decision issued on 5 January 2012), at paragraph 10.
7. In each instance, after the Article 198 Decision was issued, the Department assessed the amount due to the relevant claimant pursuant to Article 201, and decided that her Article 201 application should be assessed on the basis that her gross weekly pay entitlement, during the relevant period, was only £62.79 (and not £162 per week).
8. In each of these appeals, there was no dispute between the appellant and the Department that the relevant claimant had been entitled to gross pay of £162 until April 2014. In each instance, the only issue between the appellant and the Department was whether or not she was still entitled to pay of £162 during the period from 8 April 2013 until the date of termination of her employment, which was 26 June 2013.
9. In each instance, having received sworn oral testimony from each of the claimants and from Ms Lorraine Fegan (the Chairperson of the unincorporated entity which constituted the employer), I was satisfied that there had never been an effective variation of the contract, whereby the relevant claimant’s contractual entitlement had been reduced from £162 per week to £62 per week. (I probably would not have been satisfied on that point if I had not received Ms Fegan’s testimony).
10. I was satisfied as to the following facts. In March 2013, the employer was aware that it was fast running out of money. Accordingly, as a cost-cutting exercise, the employer told each of these claimants that, from the beginning of April, her hours would be reduced, so that, from then onwards, she would only be paid £62 per week. At the same time, each claimant was given a new draft contract, and asked to sign it. The new draft contract limited the relevant claimant’s contractual working hours, so that, on the basis of the proposed revised contract, she would be entitled only to £62 per week. I am satisfied that Ms McDonnell never signed the draft contract. I am satisfied that, although Ms Murphy did sign the draft contract, she only did so on 26 June 2013, at a time when the termination of her employment had already taken effect. (The appellants were both dismissed, without notice, on 26 June 2013). I am satisfied that, in essence, at that point, Ms Murphy was signing the contract, not for the purpose of regulating her employment relationship with the employer, but rather as a basis of facilitating, as she thought, the making of payments, by the Department, in relation to the employment debts which had come into existence either before the termination of the employment relationship, or at the time of termination.
11. In deciding this case, I have had regard to the statements of principle which are to be found in Henry v London General Transport Services [2002] IRLR 475, at paragraphs 20-22.
12. It is true that, for several weeks after the new contracts had been offered to these claimants, they continued to work for the employer, and they continued to work for the reduced number of hours contemplated in the proposed new contracts. However, they did so only for a relatively brief period.
13. Furthermore, in each of these cases, the implication of the employer asking the relevant claimant to sign a new contract was that the employer was contemplating that the new contractual provisions would become legally effective only when the new contract had been signed.
14. As each of the claimants understands, the Department has no power to make payments to the claimant in respect of any employment debt, other than redundancy pay, unless and until every member of the relevant management committee of the employer becomes formally insolvent.
15. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Employment Judge:
Date and place of hearing: 20 May 2014 and 20 June 2014, Belfast.
Date decision recorded in register and issued to parties: