Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    205/15

 

 

 

CLAIMANT:                      Paul Martin Robinson

 

 

RESPONDENT:                John McDermott, t/a Pipeline Services

                                       

 

 

DECISION UPON A PRE-HEARING REVIEW

 

 

Constitution of Tribunal:

 

Employment Judge (sitting alone):      Employment Judge Murray

 

 

 

Appearances:

 

The claimant represented himself.

 

The respondent represented himself.

 

 

 

 

1.       The issue to be determined at the PHR was whether the statutory time-limits for the claimant’s claims should be extended.

 

2.       The claimant’s claim was for seven days’ holiday pay under both the breach of contract jurisdiction and the Working Time Regulations jurisdiction of the tribunal.

 

3.       The effective date of termination of his employment contract was 1 August 2014 and the claim form was presented to the tribunal on 11 February 2015.  The claim was therefore presented outside the three month time-limit.

 

4.       The claimant had worked for Maurice Flynn and Sons as a plumber on a contract with Housing Associations.  That contract was won by Dean Martin who subcontracted to Mr McDermott the respondent in this case.

 

5.       The claimant was employed by Maurice Flynn until 31 July 2014 and had worked for Mr Flynn for approximately nine months.  He was told to attend the respondent’s premises on 1 August 2014 and when he attended that day he was told that his services were not required.  The claimant was paid by the respondent on 14 August 2014, one week’s pay in lieu of notice.  It was at that point that the claimant realised that he had not been paid for his accrued holidays which were due to him.

 

6.       I considered the oral evidence of the claimant, correspondence to which I was referred together with information from Mr McDermott and delivered the following decision orally at the hearing:

 

                    “The issue before me is whether to extend time for the claimant’s claim for breach of contract in respect of unpaid holiday pay.  The claimant’s claim is for seven days’ holiday money.  He received £333.00 net for a five-day week, and therefore pro-rata his claim is for approximately £466.00.

 

                    The claimant has given evidence to me of how he transferred from his previous employer Maurice Flynn and Son to Dean Martin who subcontracted to Mr McDermott trading as Pipeline Services.  The claimant was told to report for work on 1 August 2014 to Mr McDermott and was told on that day that he would not be needed and was paid one week’s pay in lieu of notice on 14 August 2014.

 

          The claimant then tried to obtain his holiday pay from the respondent and was batted between the three companies in phone calls and because of letters from Mr McDermott which culminated in the respondent’s letter of 19 December 2014 which outlined Mr McDermott’s understanding of the position.

 

                    The claimant says that he pursued matters further until he was advised by the Vine Centre advice worker that he could make a claim which he did on 11 February 2015.

 

                    I am satisfied from the contents of the letter of 19 December 2014 that the claimant was misled about the legal position.  Mr McDermott said that he obtained the information in his letter through his payroll clerk who had looked up a Government website.  I have no reason to doubt Mr McDermott’s sincere belief in the correctness of what he told the claimant in his letter.  I note the letter says in very robust and clear terms what the respondent said the legal position was.  Mr McDermott candidly accepted that he had not actually taken legal advice at the time of the letter, yet in the letter it repeatedly states that legal advice had been taken.  The latter referred to the information he received from the payroll clerk who had looked at websites.

 

                    TUPE situations are notoriously complex at the best of times.  I am therefore not surprised that the claimant, whose job is as plumber, was confused about his position in circumstances where TUPE is at play and three organisations were involved in what essentially was a series of transfers. 

 

                    The claimant took advice from an advice centre (not a CAB) and I accept that no-one alerted him to time-limits until shortly before he lodged his claim.  I am satisfied that the claimant was misled (albeit apparently innocently) by his employer.  He was therefore wrongly sent repeatedly to the other organisations in the hope and expectation that the matter would be sorted out.

 

                    In all the circumstances the claimant has therefore satisfied me that it was not reasonably feasible to present his claim in time and I am also satisfied that he moved within a further reasonable period to lodge his claim.  I therefore extend time to 12 February 2015.  The claim form is therefore now in time and the case will be listed on the merits”.

 

7.       The case will now proceed to be listed.

 

 

 

 

 

 

Employment Judge:      

 

 

Date and place of hearing:         21 May 2015, Belfast.      

 

 

Date decision recorded in register and issued to parties: