Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1572/16

 

 

 

 

CLAIMANT: Brenda McDaid

 

 

RESPONDENTS: 1. Pipesketch Ltd

2. Patrick Doherty

 

 

DECISION

The claimant's unauthorised deduction, breach of contract, and breach of Working Time Regulations claims as follows are well founded:

Wage arrears £ 945.79

Statutory Sick Pay £1,061.40

Notice pay £ 327.99

Holiday pay £ 393.60

The respondent when proceedings were commenced was in breach of its duty to provide a written statement of employment particulars in respect of which an award of £807.30 is made.

The respondent shall pay the claimant £3,536.08 in total.

 

Constitution of Tribunal:

Employment Judge (sitting alone): Ms M Bell

 

Appearances:

The claimant appeared in person.

The respondents did not appear and were not represented.

 

1.         The claimant in her claim complained that the respondents had failed to pay her arrears of wages, notice pay, Statutory Sick Pay and holidays accrued due to her, on termination of her employment.

 

2.         No response was presented by either respondent and both were debarred from taking any part in the proceedings save as provided in Rule 9 of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.

 

3.         On the claimant's evidence she was employed by the first named respondent, the second named respondent is accordingly dismissed as a respondent in these proceedings.

 

ISSUES

 

4.         The issues for the tribunal were:

 

-        Has the respondent failed to pay the claimant wages and Statutory Sick Pay due?

 

-        Is the claimant entitled to payment in lieu of notice?

 

-        Has the respondent failed to pay the claimant in lieu of accrued holidays?

 

-        What loss has the claimant suffered?

 

EVIDENCE

 

5.         The tribunal considered the claim, documentation handed in by the claimant and heard the claimant's oral evidence.

 

FINDINGS OF FACT

 

6.         The claimant commenced employment with the respondent as an Accounts Administrator on 26 October 2015. The claimant was employed to work
39 hours per week, Monday to Friday, for a salary of £21,000 gross per annum. The claimant worked a lying week and was to be paid weekly. The claimant's net pay was £327.99 approximately per week.

 

7.         Whilst the drawing up of employee terms of employment was one of the matters the claimant was hired in to deal with, attendance to it was postponed repeatedly by the respondent. No written statement of employment particulars was provided to the claimant by the respondent at any time.

 

8.         The claimant was entitled to 28 days paid holiday per holiday year between
1 September and 31 August in the following year. The claimant took 11 days paid holiday between 26 October 2015 and her effective date of termination of
3 June 2016.

 

9.         No provision was agreed for the payment of enhanced contractual sick pay in excess of Statutory Sick Pay.

 

10.      The respondent, on 18 February 2016, paid wages due for the previous week (work done to 11 February 2016, week 46) to the claimant. Whilst payslips for weeks 47, 48, and 49 were thereafter processed, payment was not received by the claimant for net wages due amounting to £749 approximately. The claimant was then unwell for at least four days in a row in respect of which, after three waiting days, she was due to receive payment of two days Statutory Sick Pay from the respondent. A payslip in respect of payment due for week 50 made up of three day's pay and two days statutory sick pay was prepared (although not processed with the Inland Revenue), by the claimant on behalf of the respondent. No payment in respect of wages or sick pay was received by the claimant from the respondent after 18 February 2016 despite requests by the claimant for same.

 

11.      The claimant again became too ill to work from 9 March 2016 and notified the respondent immediately. Continuous sick lines were thereafter submitted by the claimant to cover twelve weeks of absence but no payment of Statutory Sick Pay was received. No dispute was or has at any time been raised by the respondent in connection with the claimant's entitlement to Statutory Sick Pay.

 

12.      The claimant toward the start of June 2016 began to feel better and agreed with the respondent that she would start back to work before expiry of her most recent sick line however thereafter considered her attempts to fix her return date were being frustrated by the respondent's managing director's apparent avoidance of her phone-calls and messages. The claimant was ready and willing to work again from the start of June 2016.

 

13.      After seeking advice from the Labour Relations Agency the claimant wrote to the respondent on 3 June 2016 tendering her resignation without notice and sought payment of wage arrears, outstanding Statutory Sick Pay, and accrued holidays.

 

14.      Despite assurances given thereafter by the respondent to the claimant that payment outstanding to her would be forthcoming and a request that the claimant reconsider her resignation, no payment was received. On 21 June 2016 the claimant confirmed to the respondent that her resignation stood.

 

15.      The claimant's effective date of termination was 3 June 2016.

 

16.      The claimant presented a claim to the Industrial Tribunal on 1 July 2016.

 

THE LAW

 

Wages, Sick Pay and Notice

 

17.      Under the Industrial Tribunal Extension of Jurisdiction Order (Northern Ireland) 1994 an employee may bring a claim for damages for breach of his contract of employment or for a sum due under that contract, or any other contract connected with his employment, before an industrial tribunal if the claim arises out of or is outstanding on termination of his employment.

 

18.       A worker may present a complaint to an Industrial Tribunal under Article 55 of the Employment Rights (Northern Ireland) Order 1996 that his employer has made a deduction from his wages (including for Statutory Sick Pay) in contravention of his right under Article 45 not to suffer unauthorised deductions. A deduction occurs when the employer pays less than the amount due on any given occasion and includes a failure to make any payment.

 

19.      Statutory Sick Pay is a benefit which an employer is responsible for paying to a qualifying employee who falls ill for a period of four days or more. It is payable after three waiting days for up to twenty eight weeks at a current rate of £88.45. Periods of sickness eight weeks or less apart may be linked. Statutory Sick Pay should normally be paid at the same time and in the same way as wages would have been paid. A dispute in connection with qualification for entitlement to Statutory Sick Pay is a matter for determination by HM Revenue and Customs.

 

20.      In general, so long as an employee offers his services and is ready and willing to work then he is entitled to payment under his contract of employment save where there is an express or implied specific term to the contrary.

 

21.       Minimum notice entitlements are required to be given by an employer or employee to terminate the contract of employment under Article 118 of the Employment Rights (Northern Ireland) 1996 save where the contact is terminable without notice by reason of the conduct of the other party. For an employee continuously employed for one month or more but less than two years the minimum notice required by either party to terminate is otherwise one week. An employee may be entitled to terminate the contract without notice by reason of the employer's conduct where there is a significant breach of contract in response to which the employee leaves without delay.

 

Holidays

22.      The Working Time Regulations (Northern Ireland) 2016 provide under Regulations 15 and 16 for a worker to have minimum leave in a year of 5.6 weeks.

 

23.      Under Regulation 17 of the 2016 Regulations where the proportion of leave taken by the worker is less than the proportion of the leave year which has expired, his employer shall make him a payment in lieu of leave in accordance with paragraph (3) therein which sets out a formula to be used in the absence of provision in a relevant agreement.

 

Failure to Provide Written Statement of Particulars of Employment

 

24.      Article 33 of the Employment Rights (Northern Ireland) Order 1996 requires that where an employee begins employment with an employer the employer shall give to the employee a written statement of particulars of employment not later than two months after the beginning of the employment.

 

25.      Under Article 27(3) of The Employment (Northern Ireland) Order 2003, the tribunal has a duty where it makes an award to the employee in respect of the claim to which the proceedings relate (for jurisdictions specified in Schedule 4 which include claims of the type raised by the claimant in these proceedings) and when the proceedings were begun the employer was in breach of his duty to give the employee a written statement of particulars of employment, to increase the award by a minimum of two week's pay (save where there are exceptional circumstances which would make an award or increase unjust or inequitable) and may, if it considers just and equitable in all the circumstances, increase the award by the higher amount instead equal to four week's pay.

 

APPYLING THE LAW TO FACTS FOUND

 

26. The tribunal on consideration of all the evidence before it is satisfied on a balance of probabilities that:

 

Wages and Sick Pay

27. The claimant has suffered a series of unlawful deductions from wages and a breach of contract resulting in loss arising from the respondent's failure to pay wages due and Statutory Sick Pay for sickness absence in respect of which her entitlement was not in dispute, as follows:

 

3 weeks' net wages (Weeks 47, 48 and 49) = £ 749.00

3 days' net pay (Week 50 £327.99/5 x 3) = £ 196.79

£ 945.79

 

12 weeks' Statutory Sick Pay (to start of June 2016 at £88.45) = £1,061.40

 

Notice

28. The claimant on 3 June 2016 terminated her contract under which she was employed without delay in response to a significant breach of contract by the respondent in failing to pay wages due and failure to accommodate her return to work when she was ready and willing to work, circumstances in which she was entitled to do so by reason of the employer's conduct and as a result of which she has suffered a financial loss equivalent to one week's net pay which she would otherwise have been entitled to, to terminate her employment. The respondent shall pay compensation of £327.99.

 

Holidays

 

29. The claimant who was employed to work five days per week was entitled to
5.6 weeks paid holidays, being 28 days per annum. The claimant commenced employment on 26 October 2015 during the respondent's holiday year (1 September 2015 - 31 August 2016 which overlapped a leap year) and up to her effective date of termination on 3 June 2016 had been employed for 222 of it. The claimant had already taken 11 days paid holidays during the holiday year. The claimant is accordingly entitled to a payment in lieu of leave in accordance with Regulation 17 of the 2016 Regulations as follows:

 

(28 x 222/366) - 11 = 6 days x £65.60 net = £393.60

 

Failure to Provide Written Statement of Particulars of Employment

30. Awards have been made in respect of the claimant's unauthorised deduction, breach of employment contract and breach of Working Time Regulation claims and when these proceedings were begun on 1 July 2016 the respondent was in breach of its duty to give the claimant a written statement of employment particulars. Accordingly under Article 27(3) of the 2003 Order, in the absence of evidence of exceptional circumstances before the tribunal, but taking into account that the drawing up of written statements of employment particulars was one of the matters the claimant had been engaged to attend to but was postponed repeatedly by the respondent and that the claimant was then absent for almost three month towards the end of her employment, I increase the award to the claimant by an amount equal to two weeks' pay, £807.30. I do not consider that it would be just and equitable in the circumstances to increase the award to the higher amount equal to four weeks' pay.

Summary of Compensation Awarded

 

31. Wage arrears £ 945.79

Statutory Sick Pay £1,061.40

Notice pay £ 327.99

Holiday pay £ 393.60

Failure to give written statement £ 807.30

 

TOTAL £3,536.08

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

 

 

Employment Judge:

 

 

Date and place of hearing: 13 October 2016, Belfast.

 

 

Date decision recorded in register and issued to parties: