Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    798/14

 

CLAIMANT:            Darren Thomas Mullan   

 

 

RESPONDENT:      1. Glassworks Ireland Ltd (In Liquidation)

                              2. Seamus Laverty

 

 

DECISION

 

(A)           All of the claimant’s claims against the first-named respondent (“the Company”) are well-founded.

 

(B)            It is ordered that the Company shall pay to the claimant the following sums:

 

          (1)      £162 in respect of holiday pay

 

          (2)      £3,872 in respect of notice pay

 

          (3)      £5,260 in respect of the Company’s failure to carry out the consultation duties which are imposed by regulation 15 of the Transfer of Undertakings (Protection of Employment) Regulations (2006) (“TUPER”) and

 

          (4)      a nominal amount of £1 in respect of unfair dismissal.

 

(C)     It is declared that the Company is liable to make the claimant a payment of £5,260 in respect of redundancy pay.

 

(D)     The second-named respondent (Mr Laverty) is jointly and severally liable in respect of the TUPE consultation claim.  Accordingly, it is ordered that Mr Laverty shall pay to the claimant the sum of £5,260 as compensation in respect of the failure of the Company to carry out the duties imposed by regulation 15 of TUPER.

 

 

Constitution of Tribunal:

 

Employment Judge:         Employment Judge Buggy  

 

Members:                        Mr A Burnside

                                        Mr P Loughlin

 

 

Appearances:

 

The claimant was represented by Mr B Mulqueen, Barrister-at-Law.

 

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

 

Mr Laverty was represented by Mr A Scullion, Barrister-at-Law.

 

 

REASONS

 

1.       In these proceedings, the claimant made claims against the Company in respect of holiday pay, notice pay, redundancy pay and unfair dismissal, and a claim for compensation for breach of regulation 15 of TUPER; he also made all of the same claims against Mr Laverty.

 

2.       It was clear, and no participating party denied, that the Company would be liable to the claimant in respect of holiday pay, notice pay, redundancy pay and unfair dismissal, even if any relevant relevant transfer (any “relevant transfer” within the meaning of TUPER which is relevant in the present context) had occurred,  if the transferor under that transfer was the subject of a voluntary winding up process at the time of that transfer.

 

3.       The parties had agreed between them that the sums due in respect of holiday pay, notice pay and redundancy pay were as specified above, and the tribunal was satisfied that those sums were due.

 

4.       The tribunal was satisfied that there had been no attempt to discharge the duties which are imposed by regulation 15 of TUPER.   Mr Scullion realistically accepted, and Mr Mulqueen agreed, that £5,260 was the sum which ought to be awarded in respect of the failure to discharge the regulation 15 duties.

 

5.       The obligation to discharge the regulation 15 duties was an obligation which was owed by the Company, not by Mr Laverty.  However, the effect of paragraph (9) of regulation 15 is that Mr Laverty is jointly and severally liable with the Company in respect of the regulation 15 compensation.

 

6.       It was agreed between the participating parties, and the tribunal concluded, that there had been a relevant relevant transfer, from the Company to Mr Laverty.

 

7.       The participating parties are agreed, and the tribunal concluded, that the creditors’ meeting in respect of the winding up of the Company took place on
7 February 2014, that the liquidator was appointed on that date and that the relevant transfer occurred on 31 March 2014. Accordingly, the participating parties also accepted, and the tribunal also concluded, that at the time of that relevant transfer, the process of winding up the Company had already begun.  (See Regulations 4 and 7 of TUPER; see paragraph (7) of Regulation 8 of TUPER; and see Secretary of State for Trade and Industry v Slater [2007] IRLR 928). Against that background, and for those reasons, the parties agreed, and the tribunal concluded, that regulations 4 and 7 of TUPER are inapplicable in the circumstances of this case.

 

8.       The claimant is not pursuing any claim for a compensatory award in respect of unfair dismissal.  Accordingly, we have made a nominal award of £1 in respect of unfair dismissal.

 

9.       We granted Mr Laverty leave to present a late response.  Such a response was presented.

 

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

 

 

 

 

Employment Judge:      

 

 

Date and place of hearing:         18 August 2014 and 24 September 2014, Belfast.       

 

Date decision recorded in register and issued to parties: