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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Grainger v Castle Hotels N.I. Ltd [2015] NIIT 2462_10IT (26 February 2015)
URL: http://www.bailii.org/nie/cases/NIIT/2015/2462_10IT.html
Cite as: [2015] NIIT 2462_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REFS: See attached list
CLAIMANTS: Grainger & Others
(See attached list)
RESPONDENT: Castle Hotels N.I. Ltd
DECISION
The unanimous decision of the tribunal is that:-
(i) The tribunal declares the claimants, as workers, have each had unauthorised deductions made by the respondent from their wages and each said claim is therefore well-founded.
(ii) The respondent is ordered to pay to each of the claimants the total sum deducted from their wages, as set out in the said schedule in Paragraph 4 of this decision.
Constitution of Tribunal:
Employment Judge: Employment Judge N Drennan QC
Members: Mr J Boyd
Ms E McFarline
Appearances:
The claimants were represented by Mr M O’Brien, Barrister-at-Law, instructed by P Fahy & Company, Solicitors.
The respondent did not appear and was not represented.
Reasons
1.1 These claims were brought by each of the claimants for unauthorised deductions from their wages during the course of their employment at the Lough Erne Hotel (‘the Hotel’). The background to these claims is set out in a decision made by the tribunal on a pre-hearing review, which was issued to the parties on 4 February 2014 under the name Catherine Claire Grainger v 1. Lough Erne Hotel Ltd; 2. Department of Employment and Learning; 3. Castle Hotels N.I. Ltd (300/11). Catherine Claire Grainger, was the ‘lead’ claimant for the purposes of the pre-hearing review and is the first claimant in these proceedings, as set out above. The said decision has not been the subject of any appeal by any party. For the avoidance of any doubt, the claimants in the present proceedings adopted and relied upon the decision in the pre-hearing review and the reasons therein, for the purposes of their claims in the present proceedings against the respondent. In summary, the decision on the pre-hearing review, found that there was a relevant transfer, pursuant to the Transfer of Undertakings (Protection of Employment) Regulations (Northern Ireland) 2006 (‘TUPE Regulations’) from Markville Trading Ltd (‘Markville’) to ACEC Enterprises Ltd (‘ACEC’) on or about 30 April 2010/1 May 2010. Both Markville and ACEC employed each of the claimants, as workers, at the Hotel at various dates, to which further reference will be made elsewhere in this decision.
Following the transfer from Markville to ACEC, the claimants were subsequently employed by Castle Hotels N.I. Ltd, the respondent to the claims in the present proceedings.
The respondent, in its response denied liability for these claims, dated 3 October 2013. The response was provided by Alan Castle, the then managing director of the respondent. In the said response, it was accepted that, at all material times there was a relevant transfer, pursuant to the TUPE Regulations from ACEC to the respondent on or about 11 November 2011. If it had been necessary to do so, the tribunal would have followed and adopted the reasons set out in the decision on the pre-hearing review that there was such a transfer between ACEC and the respondent. In light of the foregoing the tribunal was satisfied, if there was any unauthorised deductions of the claimants’ wages by either Markville and/or ACEC, when the claimants were employed by them, the respondent would be liable in respect of same, pursuant to the TUPE Regulations. It is to be noted Alan Castle appeared and represented the respondent at the pre-hearing review.
1.2 The respondent did not appear and was not represented at the hearing in respect of the present proceedings. Notice of Hearing was issued to the respondent, on foot of an Order for Substituted Service made by the Vice President, dated 31 October 2014.
1.3 In accordance with Rule 27(5) of the Industrial Tribunals Rules of Procedure, in the absence of the respondent, the tribunal, before it determined the issues in these proceedings, considered all information in its possession which had been made available to it by the parties, including the response of the respondent, dated 3 October 2013, referred to previously.
2.1 Article 45 of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) provides as follows:-
“(1) An employer shall not make a deduction from wages of a worker employed by him unless —
(a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or
... .”
2.2 Article 56 of the 1996 Order provides as follows:-
“56. Where the tribunal finds a complaint under Article 55 well-founded, it shall make a declaration to that effect and shall order the employer –
(a) In the case of a complaint under Article 55(1)(a) to pay to the worker the amount of any deduction made in contravention of Article 45.
... .”
2.3 Article 59 of the 1996 Order provides as follows:-
“(1) In this Part ‘wages’ in relation to a worker, means any sums payable to the worker in connection with his employment, including –
(a) any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise.
... .”
2.4 The Working Time Regulations (Northern Ireland) 1998 provide that the statutory annual leave entitlement of four weeks may only be taken in the leave year to which it relates. Under the said Regulations, the employer and the worker can agree to carry over any additional statutory leave into the next year (but not beyond) by means of a relevant agreement. There was no evidence before the tribunal of any such relevant agreement, as defined under the Regulations. However, by way of contrast, contractual leave in excess of the statutory entitlement may be carried forward provided there is an agreement between the employer and employee pursuant to the contract of employment under which the employee is employed (see IDS Handbook on Working Time Page 100).
3.1 Having heard the oral evidence of each claimant and considered the oral submissions of their representative, the tribunal, insofar as relevant and material for the determination of these claims, made the following findings of fact, as set out in the following sub-paragraphs.
3.2 Markville employed each of the claimants, as a worker pursuant to the 1996 Order, from on or about 1 December 2008. ACEC then employed each of them from on or about 30 April 2010/1 May 2010 and the respondent employed each of the claimants from on or about 11 November 2011, in the position/role set out in the said schedule in Paragraph 4. of this decision.
3.3 Each of the claimants was entitled to 28 days’ holiday each year. The holiday year was from 5 April to 4 April each year. Each of the claimants, for the purposes of these proceedings, calculated their period of annual leave to which they were entitled from the ‘holiday book’, which was kept in the office of the Hotel and in which they set out the dates of leave taken by each of them. In the case of sixth claimant, Caroline Smith, it was agreed with her employer, Markville, at the relevant time, that because of her role as cook, she was allowed to carry over any leave over 28 days into the following year. Similarly, in the case of the eighth claimant, Robert Wilson Irvine, it was also agreed with his employer, Markville, at the relevant time, because of his role as night porter, he was allowed to carry over any leave over 28 days into the following years. As set out in the said schedule, both the sixth claimant and the eighth claimant carried over into the following year an additional period of leave over the said 28 days.
4. Schedule
(1) Catherine Claire Grainger – Senior Receptionist
Unpaid wages
31.12.2009 – 06.01.2010 £ 250.50
25.02.2010 – 03.03.2010 £ 250.50
04.03.2010 – 10.03.2010 £ 250.50
12.04.2010 – 01.05.2010 £ 751.50
Unpaid holiday pay (Holiday year April 2009/April 2010)
23 days @ £50.10 per day £1,152.30
Total : £2,655.30 (net)
(2) Kathleen Doherty - Housekeeper
Unpaid wages
31.12.2009 – 06.01.2010 £ 202.50
25.02.2010 – 03.03.2010 £ 202.50
04.03.2010 – 10.03.2010 £ 202.50
12.04.2010 – 01.05.2010 £ 607.50
Unpaid holiday pay (Holiday year April 2009/April 2010)
16 days @ £40.50 per day £ 648.00
Total : £1,863.00 (net)
(3) Frances Jean Coulter – Full-time Waitress
Unpaid wages
31.12.2009 – 06.01.2010 £ 180.62
25.02.2010 – 03.03.2010 £ 193.98
04.03.2010 – 10.03.2010 £ 193.98
12.04.2010 – 01.05.2010 £ 581.94
Unpaid holiday pay (Holiday year April 2009/April 2010)
19 days @ £38.80 per day £ 737.12
Total : £1,887.64 (net)
(4) Caroline Maguire - Receptionist
Unpaid wages
31.12.2009 – 06.01.2010 £ 267.19
25.02.2010 – 03.03.2010 £ 267.19
04.03.2010 – 10.03.2010 £ 267.19
12.04.2010 – 01.05.2010 £ 801.57
Unpaid holiday pay (Holiday year April 2009/April 2010)
26 days @ £53.44 per day £1,389.39
Total : £2,992.53 (net)
(5) Ann Smith – Functions Manager/Kitchen Assistant
Unpaid wages
31.12.2009 – 06.01.2010 £ 288.00
25.02.2010 – 03.03.2010 £ 288.00
04.03.2010 – 10.03.2010 £ 288.00
12.04.2010 – 01.05.2010 £ 864.00
Unpaid holiday pay (Holiday year April 2009/April 2010)
16 days @ £57.20 per day £ 915.20
Total : £2,643.20 (net)
(6) Caroline Smith - Cook
Unpaid wages
31.12.2009 – 06.01.2010 £ 264.70
25.02.2010 – 03.03.2010 £ 264.70
04.03.2010 – 10.03.2010 £ 264.70
12.04.2010 – 01.05.2010 £ 794.10
Unpaid holiday pay (Holiday year April 2009/April 2010)
36 days
(28 days together with some 8 days allowed to be carried over)
@ £52.94 per day £1,905.84
Total : £3,494.04 (net)
(7) Collette Josephine Gillen – Receptionist/Bar Manager
Unpaid wages
31.12.2009 – 06.01.2010 £ 180.00
25.02.2010 – 03.03.2010 £ 180.00
04.03.2010 – 10.03.2010 £ 180.00
12.04.2010 – 01.05.2010 £ 540.00
Unpaid holiday pay (Holiday year April 2009/April 2010)
16 days @ £36.00 per day £ 576.00
Total : £1,656.00 (net)
(8) Wilson Robert Irvine – Night Porter
Unpaid wages
31.12.2009 – 06.01.2010 £ 262.59
25.02.2010 – 03.03.2010 £ 262.59
04.03.2010 – 10.03.2010 £ 261.21
12.04.2010 – 01.05.2010 £ 783.63
Unpaid holiday pay (Holiday year April 2009/April 2010)
32 days
(28 days together with 4 days allowed to be carried over)
@ £52.52 per day £1,680.58
Total : £3,250.60 (net)
5.1 The respondent, having made the unauthorised deductions from the wages of each of the claimants, as set out in the said schedule, the tribunal finds the claims of each of the claimants well-founded and so declares; and the tribunal orders the respondent to pay to each of the claimants the said total sum deducted from their wages, as set out in the said schedule in Paragraph 4. of this decision.
6.1 This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Employment Judge
Date and place of hearing: 29 January 2015, Belfast
Date decision recorded in register and issued to parties:
List of Claimants/Respondent – Grainger & Others v Castle Hotels N.I. Ltd
CASE REFS: 2462/10
300/11
CLAIMANT: Catherine Claire Grainger
RESPONDENT: Castle Hotels N.I. Ltd
CASE REFS: 2458/10
305/11
CLAIMANT: Kathleen Doherty
RESPONDENT: Castle Hotels N.I. Ltd
CASE REFS: 2457/10
304/11
CLAIMANT: Frances Jean Coulter
RESPONDENT: Castle Hotels N.I. Ltd
CASE REF: 2502/10
CLAIMANT: Caroline Maguire
RESPONDENT: Castle Hotels N.I. Ltd
CASE REFS: 2459/10
302/11
CLAIMANT: Ann Smith
RESPONDENT: Castle Hotels N.I. Ltd
CASE REFS: 2461/10
303/11
CLAIMANT: Caroline Smith
RESPONDENT: Castle Hotels N.I. Ltd
CASE REFS: 2460/10
301/11
CLAIMANT: Collette Josephine Gillen
RESPONDENT: Castle Hotels N.I. Ltd
CASE REFS: 2456/10
306/11
CLAIMANT: Wilson Robert Irvine
RESPONDENT: Castle Hotels N.I. Ltd