Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    96/15

 

 

 

CLAIMANT:                      Katherine McCammon

 

 

RESPONDENTS:              1.       Soltex Carpet (NI) Limited

                                        2.       Martin Maze

                                       

 

 

DECISION

 

The decision of the tribunal is that:

 

(1)      The claimant’s claims in respect of pay in lieu of notice, unlawful deductions of wages (arrears of pay) and holiday pay were lodged out of time, but it was not reasonably practicable for the claimant to lodge those claims within the three month time limit and accordingly I extend the time for lodgement of those claims to 21 January 2015; and

 

(2)      The first named respondent is ordered to pay the claimant the sum of £9,097.82 in respect of redundancy pay, arrears of pay, holiday pay and pay in lieu of notice, as set out at paragraph 23 of this decision.

 

 

Constitution of Tribunal:

 

Employment Judge (sitting alone):      Employment Judge McCaffrey

 

 

 

Appearances:

 

The claimant was represented by Mr Mark Mason of Collective Business Services.

 

The respondent was represented by Mr Martin Maze, a Director of the respondent company.

 

 

ISSUES

 

1.       This was a claim for a redundancy payment, notice pay, holiday pay in respect of holidays accrued but not taken and arrears of pay by the claimant who alleged that she had been made redundant by the respondent on 3 October 2014.  The respondent contested that she had been made redundant, saying that she had left voluntarily.

2.       The claimant’s last date of employment was 3 October 2015.  Her claim was lodged with the Office of the Industrial Tribunals on 21 January 2015, outside the three month time-limit for lodging a claim for pay in lieu of notice, unlawful deductions of wages (arrears of pay) and holiday pay.  Her claim in respect of redundancy pay was within the six month time-limit.  I therefore had to consider whether or not it was reasonably practicable for the claimant to lodge her claim within the three-month time-limit, or whether it would be appropriate to extend that time-limit.

 

3.       It was confirmed that the correct name of the first-named respondent is Soltex Carpet (NI) Limited and I order that the title of that respondent shall be amended accordingly.  The second-named respondent is a director of the first-named respondent and I advise that the claim against him shall be dismissed.

 

FACTS

 

3.       The claimant was employed as a PA/Office Manager by the respondent under various company names for a period of 18 years from 4 March 1996 until 3 October 2014.  She was aged 39 at the date of dismissal and she worked 25 hours per week.  Her gross pay per month was £1,217.58 and her net pay was £1,062.84.

 

4.       Mr Maze for the respondent was clear that he had some business difficulties due to the fact that the business had been slow and a couple of large orders which had been expected had not been placed in summer 2014.  As a result he conceded that there were times when the claimant had not been fully paid or payment been late and that at the date when her employment ended she was owed a total of £2,341.66 in respect of arrears of pay.

 

5.       Mr Maze agreed that he had a conversation with the claimant at the end of September in relation to the slowdown in business when he effectively told her that he had no work for her.  At the start of the following week (29 September), the claimant sent an email to Mr Maze asking for a letter confirming that she was being made redundant, an agreement about payment of the outstanding monies due to her, redundancy pay and a P45.  On 3 October 2014 the respondent signed a letter for the claimant, stating that her position within the respondent company became redundant as of that date.  The letter stated that this was due to a severe downturn in orders received and the cancellation by one of their major customers of a large contract.  At the hearing, the respondent alleged that the claimant had left voluntarily.  I entirely accept however that the claimant was told by the respondent that there was a downturn in work and that he did not have any work for her, that there was a redundancy situation and that the claimant was made redundant by the respondent.  On 6 October 2014 the claimant wrote to the respondent to make a formal request for her redundancy payment.  On 14 October the claimant emailed Mr Maze, and he replied to say that he was applying for redundancy but needed several documents to be “put together”, which he would do.  He asked her to call in to finalise the forms.

 

6.       On 29 October 2014 the claimant emailed the respondent to say that she had spoken to her accountant and had been given an RP1 form by him to make an application to the National Insurance fund for redundancy.   The claimant confirmed at the hearing that she had made this application shortly afterwards, in early November.  She received an acknowledgement from the Redundancy Payments Service for her application and then received a letter from them dated 6 January 2015.  That letter rejected her application for a redundancy payment on the basis that her employer was not legally insolvent.  It also advised her that no payment could be made to her until she had taken all reasonable steps to obtain payment from her employer, including making an application to the Industrial Tribunal claiming the payment from her employer.  The letter also contained the sentence, “Application should be made within three months of the date of this letter”.  This unfortunately was misleading because it effectively indicated that the claimant should bring her claim against her former employer within three months of the date of the letter, rather than three months of the date of her employment ending. 

 

7.       The claimant’s evidence was that she then went to a Job Centre, obtained an ET1 form, completed it and sent it off as promptly as possible.  Her claim form was indeed lodged in the Office of the Industrial Tribunals on 21 January 2015.

 

8.       In relation to the amounts allegedly due to the claimant, the respondent agreed that she was entitled to arrears of pay of £2,341.66 and that she had three days holidays accrued but untaken at the date when her employment ended.  He disputed that she had been made redundant and therefore that she was entitled to any redundancy payment from him, or that she was entitled to any notice pay.

 

9.       The claimant found alternative work approximately four weeks after her employment with the respondent ended.  She started a new job on 3 November 2014 and in that job she is earning £160.00 per week (gross), £159.10 (net).  She indicated that she had sought Jobseekers Allowance from 3 October 2014 when was made redundant until 3 November 2014 but did not give any evidence in relation to the amount she had received.

 

RELEVANT LAW, REASONS AND DECISION

 

          (1)      Time Limit

 

10.     I am satisfied that the claimant’s claim in relation to her redundancy payment is within the statutory time-limit of six months set out in Article 199 of the 1996 Order.

 

          In relation to the other claims, namely a claim for pay in lieu of notice under Article 118 of the Employment Rights Order (Northern Ireland) 1996 (“the 1996 Order”), payment for holidays accrued but untaken and arrears of pay, the time-limits for each of these claims is three months from the cause of action accrued.  The claim for pay in lieu of notice is effectively a claim of breach of the implied contractual entitlement to notice under Article 118 of the 1996 Order.  Arrears of pay are effectively unlawful deductions from wages under Article 45 of the 1996 Order and the time limit is set out in Article 55(2).  Payment may be made for holidays accrued but not taken before termination of employment under Regulation 14(2) of the Working Time Regulations (NI) 1998 Regulation 30 which allows a claim to be presented within 3 months of the date payment should be made.  In the case of the arrears of pay, the time-limit runs from three months after the last unlawful deduction of wages was made (Article 55 of the 1996 Order).

 

          In each case, the tribunal has discretion to extend time for lodging the claim if it is satisfied that it was not reasonably practicable for the claimant to lodge her claim within the appropriate time-limit.  Mr Maze was invited to make comments in relation to this matter but did not do so.  Mr Mason on behalf of the claimant referred me to the established case law in relation to the matter, in particular the decision of the Court of Appeal in England and Wales of Palmer and Saunders v Southend of Sea Borough Council [1984] IRLR 119.  The test proposed by Lord Justice May in that case was a test of “reasonable feasibility”.  He explained his reasons as follows:-

 

                    “We think that one can say that to construe the words “reasonably practicable” as the equivalent of “reasonable” is to take a view that is too favourable to the employee.  On the other hand, “reasonably practicable” means more than merely what is reasonably capable physically of being done – different, for instance, from its construction in the context of the legislation relating to factories: compare Marshall v Gotham Co Ltd [1954] AC 360.  In the context in which the words are used in the 1978 Consolidation Act, however ineptly as we think, they mean something between these two.  Perhaps to read the word “practicable” as the equivalent of “feasible” as Sir John Brightman did in [Singh v Post Office [1973] ICR 437, NIRC] and to ask colloquially and untrammelled by too much legal logic – “was it reasonably feasible to present the claim to the [Employment Tribunal] within the relevant three months?” - is the best approach to the correct application of the relevant subsection”. 

 

11.     In Palmer and Saunders a number of factors were listed which might be taken into account by the tribunal in deciding whether or not to exercise its discretion to extend time.  These included the manner of, and reason for the dismissal; whether the employer’s conciliation machinery had been used; the substantial cause of the claimant’s failure to comply with the time limits; whether there was any physical impediment preventing compliance, such as illness, or a postal strike; whether, and if so when, the claimant knew of his rights; whether the employer had misrepresented any relevant matter to the employee; whether the claimant had been advised by anyone and the nature of any advice given and whether there was any substantial fault on the part of the claimant or his adviser which led to the failure to present the complaint in time.

 

12.     In this case part of the claimant’s claim appears to be that she was not aware of her rights, or at least she thought she was pursuing them properly by making a claim to the Redundancy Payments Service in respect of her redundancy payments and other amounts due to her.  The issue of practicability and a claimant’s expressed ignorance of rights is addressed in the judgments of Lord Justice Scarman in Dedman [1977] ICR at page 64 and of Lord Justice Brandon in Walls Meat Co Ltd v Khan [1978] IRLR 499.  In Dedman, Scarman LJ indicated that if the claimant was saying he did not know his rights, relevant questions would be to consider the following:

 

                    “What were his opportunities for finding out that he has rights?  Did he take them?  If not, why not?  Was he misled or deceived?  Should there prove to be an acceptable explanation of his continuing ignorance of the existence of his rights, it would be inappropriate to disregard it, relying on the maxim “ignorance of the law is no excuse”.  The word “practicable” is there to moderate the severity of the maxim and to require an examination of the circumstances of his ignorance.”

13.     In the Walls Meat case, Brandon LJ said the following:-

 

                    “The performance of an act, in this case the presentation of the complaint, is not reasonably practicable if there is some impediment which reasonably prevents, or interferes with, or inhibits, such a performance.  The impediment may be physical, for instance the illness of the complainant or a postal strike; or the impediment may be mental namely, the state of mind of the claimant in the form of ignorance of, or mistaken belief with regard to, essential matters.  Such states of mind can however only be regarded as impediments not making it reasonably practicable to present a complaint within a period of three months, if the ignorance on the one hand or the mistaken belief of the other, is itself reasonable.  Either state of mind will, further, not be reasonable if it arises from the fault of the complainant in not making such enquiries as he should reasonably in all certain circumstances had made, or from the fault of his solicitors or professional advisers in not giving him such information as they should reasonably in all the circumstances have given him”.

 

14.     Harvey on Industrial Relations and Employment Law also refers to a more recent decision of the Court of Appeal in Marks and Spencer Plc v Williams-Ryan [2005] EWCA Civ 470 where the claimant, although she knew of the right to claim for unfair dismissal, was ignorant of the time limit.  The advice which had been given to the claimant by the employer after the ending of her employment did not mention the time limit and was therefore misleading.

 

15.     In this case I am satisfied that it was not reasonably practicable for the claimant to lodge her claim within the three month time limit.  She clearly did not rely on the employer to make payments in relation to her redundancy pay, in spite of the fact she had made a formal application to him for it.  This may well have been based on the respondent’s previous unreliability in terms of paying her wages.  She however took the initiative by completing the form and sending it to the Redundancy Payments Service.  It seems to me appropriate that she would wait for the outcome of that application before doing anything else.  She did not appear to be aware of the tribunal procedure prior to receiving the letter from Redundancy Payments in January 2015, which advised her she should make an application to the Industrial Tribunal.  That letter was also misleading, in that it suggested that the claimant’s claim to the Industrial Tribunal must be made within three months of the RPS’s letter, which was not in fact the case.  The claimant did lodge her form within less than two weeks of receiving that letter, and under the impression that she had in fact plenty of time to lodge her claim.  In the circumstances I consider it would be reasonable to extend the time limit in her favour. 

 

          (2)      Claim for redundancy payment

 

16.     The claimant worked for the respondent for over 18 years from March 1996 until 3 October 2014.  She was aged 39 at the date her employment ended.  I am satisfied that the respondent’s business had dropped off considerably due to lack of orders and that there was a redundancy situation in existence.  I am satisfied that the claimant was made redundant by the respondent from 3 October 2014 and the respondent, although he initially disputed this, conceded that he had written the claimant a letter confirming her redundancy.  I am also satisfied the claimant took the appropriate steps of making a formal application to her employer for her redundancy payment, which he has not paid to date. 

17.     On the basis that the claimant was 39 at the date of dismissal and that her gross take home pay was £280.98, I am satisfied that she is entitled to a redundancy payment made up as follows:-

 

Gross pay £280.98 x 17.5 =  £4,917.15

 

          The claimant had over 18 complete years service, 17 of which were when she was aged 22 or over and one below the age of 22 hence the multiplier of 17.5.

 

          (3)      Arrears of Pay

 

18.     The respondent agreed that he owed the claimant the amount of £2,341.66 in relation to underpayments of wages and I order the respondent to pay this amount to the claimant.

 

          (4)      Holiday Pay

 

19.     In respect of holidays accrued but untaken, the claimant agreed on cross examination that she had 22 days holidays due to 3 October 2015, of which 19 days had been taken.  Accordingly she is entitled to three days gross pay in respect of holidays accrued but not taken as follows:-

 

          £56.19 x 3  =  £168.57

 

          (5)      Notice Pay

 

20.     In respect of notice pay, the claimant was out of work for approximately four weeks and found a new job starting on 3 November 2014.  In that job her gross pay is £160.00 per week and her net pay is £159.10.

 

21.     I therefore order the respondent to pay for the claimant the following sum in respect of pay in lieu of notice:-

 

          4 weeks x £245.27                                 =        £   981.08

 

          8 weeks x (£245.27 - £159.10 = £86.17)           =        £   689.36

         

The total for notice pay is therefore                   £1,670.44

 

22.     The claimant received Job Seekers Allowance for the four weeks when she was out of work but in respect of these awards, the Recoupment regulations do not apply as the payment due to the claimant is in lieu of notice, redundancy and arrears of pay.

 

23.     In total therefore I order the respondent to pay the claimant the following amounts.

 

          Redundancy Pay                £4,917.15

          Arrears of Pay                   £2,341.66

          Holiday Pay                       £   168.57

          Notice Pay                        £1,670.44

                                                              _______

 

          TOTAL                              £9,097.82

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

 

 

 

 

 

Employment Judge:      

 

Date and place of hearing:  27 February 2015, Belfast.              

 

Date decision recorded in register and issued to parties: