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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Doyle v Toals Bookmakers [2017] NIIT 00866_17IT (28 September 2017)
URL: http://www.bailii.org/nie/cases/NIIT/2017/00866_17IT.html
Cite as: [2017] NIIT 866_17IT, [2017] NIIT 00866_17IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 866/17
CLAIMANT: Una Doyle
RESPONDENT: Toals Bookmakers
DECISION
The claimant's claim in respect of holiday pay is dismissed.
(1) The claimant is not entitled to pursue a claim for holiday pay having entered into a CO3 agreement in Case Number 2452/15.
(2) The tribunal would otherwise have extended time in order to entertain the claimant's claim for holiday pay.
Constitution of Tribunal:
Employment Judge (sitting alone): Employment Judge Wimpress
Appearances:
The claimant was represented by Mr Pat Moore of PM Associates.
The respondent was represented by Mr McGettigan of Peninsula Business Services Ltd.
SOURCES OF EVIDENCE
1. The tribunal received an agreed bundle of papers which was further supplemented during the course of the hearing. The tribunal also heard oral evidence from the claimant, Ms Nicola Sarah Hamilton and Mr Gary Thomas Toal.
THE CLAIM AND THE RESPONSE
2. The claimant brought a claim for holiday pay and notice pay against the respondent. It transpired that the claim in respect of notice pay was erroneous and it was not pursued. The respondent resisted the claim on the basis that it was out of time having not been brought before the end of a period of three months from 1 October 2016 which was the claimant's effective date of termination ("EDT"). Furthermore the claimant had compromised all claims she could have brought when she entered into a CO3 agreement in a previous claim against the respondent (Case Number 2452/15). The respondent also denied the substance of the claimant's claim.
THE ISSUES
3. (1) Whether the claimant is entitled to pursue a claim for holiday pay having entered into a CO3 agreement in a previous case against the respondent.
(2) Whether the tribunal has jurisdiction to hear the claimant's claim for holiday pay on the basis that it was not presented within time.
THE FACTS
4. The claimant was employed as a Shop Manager by the respondent at its Toomebridge site from late 1998 until her employment ended on 1 October 2016. She had previously worked as a clerk for the respondent in the Ballymena area from January 1997.
5. The claimant brought her first claim (2452/15 IT) against the respondent which comprised complaints of sex discrimination and disability discrimination. At paragraph 10.1 of the claim form the claimant had the opportunity to tick a number of boxes if she wished to include claims in respect of holiday pay, unpaid leave or any other matter of this nature. The claimant did not tick any of the boxes. It is material to note that the claimant had the benefit of professional advice at this time, P M Associates. Mr Morgan of that firm had charge of the matter at that stage.
6. The claimant's first case was listed for hearing on 3 October 2016. Mr Toal, the respondent's Managing Director and Ms Hamilton, the respondent's Human Resources Manager were in attendance. The claimant had been off work on sick leave for almost three years prior to the date of hearing of her discrimination claim.
7. On the day of the hearing the parties were able to resolve their dispute with the assistance of a Labour Relations Agency conciliation officer and a CO3 agreement was drawn up to this effect. On 21 October 2016 the tribunal issued a decision on claim 2452/15 IT signed by an Employment Judge on 4 October 2016 in the following terms:
"The claim is dismissed following notification of a conciliated settlement entered into between the parties with the assistance of the Labour Relations Agency. The settlement includes an agreement by the claimant to refrain from continuing these proceedings."
8. In the event the CO3 agreement was not concluded until 25 November 2016. The terms of this document are of critical importance to these proceedings and it is therefore necessary to set it out the relevant provisions in full. It read as follows:
"We the undersigned have agreed:
1. The Respondent shall offer and the Claimant shall accept £6,500 (six thousand, five hundred pounds) and a factual reference in the terms attached in full and final settlement of these proceedings and of all other claims if any, within the jurisdiction of the conciliation officer, which the Claimant could have brought against the Respondent arising out of the terms of her Contract of Employment or out of the termination of that Contract. This settlement does not affect any rights the claimant may have in relation to personal injuries or accrued pension rights.
2. The effective date of termination is 1 October 2016.
3. Payment of the sum specified will be made within 14 days of the date of this agreement.
4. The Respondent makes no admission of liability.
5. It is agreed between the parties that this settlement and the terms thereof shall remain confidential and shall not be publicised by either party or their representatives.
6. The Claimant agrees to refrain from continuing these proceedings.
7. This agreement constitutes a certificate in writing as per Article 21A Industrial Tribunals (Northern Ireland) Order 1998."
The CO3 form also includes the following statement by the Conciliation Officer:
"I hereby certify that the Labour Relations Agency has taken action under Article 20 of the Industrial Tribunals (Northern Ireland) Order 1996 and we hereby certify that a compromise has been reached in this case as set out herein and which for the purposes of Article 21A is a relevant document."
9. On 29 December 2016 the claimant's husband, Gregg Doyle, discovered the claimant's final pay slip in a cupboard in their house. The payslip was dated 27 October 2016 and it included a reference to holidays which it stated were untaken and amounted to 86 days. The claimant promptly made contact with her representative and an interview was arranged in early January 2017. As a result a letter was sent by P M Associates to the respondent on 9 January 2017 in the following terms :
"You will remember that the recent tribunal case between our Client and the Respondent (Toals bookmakers) was settled in October 2016. Our client received her payment in November 2016. However her P45 and outstanding holiday pay was not included, and as of today she has not received them.
You will know in your HR capacity that holiday pay is still accrued whilst an employee is on sick leave.
Would you be so good as to furnish our client with her outstanding holiday pay and her P45 as soon as possible.
If Mrs Doyle does not hear from you by Friday 20 th January 2017, we will lodge an ET1 form [in] the Office of Industrial Tribunals on this matter."
10. No reply was made to this letter and on 9 February 2017 a claim form was issued seeking holiday pay and notice pay. A response form was filed on 20 March 2017 resisting the claim in the terms set out in paragraph 2 above.
11. The agreed bundle of papers for the present hearing included three medical reports on the claimant by her general practitioners (Dr A Johnston & Dr A Watterson) dated 24 November 2015, Dr C Guinan, Clinical Psychologist dated 18 December 2015 and Dr Brian Mangan, Consultant Psychiatrist dated 9 May 2016. The claimant was diagnosed with Post Traumatic Stress Disorder and a chronic depressive illness. The most recent report by Dr Mangan indicated that if the claimant's grievance with her employer was resolved to her satisfaction he would expect her depressive illness to gradually resolve over the next two years.
12. In her evidence in chief the claimant gave evidence that she was aware of her entitlement to annual leave which she thought amounted to 25 or 26 days and to accrued annual leave. In subsequent questioning it transpired that she may not in fact have been aware of her entitlement to accrue holiday leave and she gave evidence that no-one had explained it to her. The claimant stated that she was also aware that she had not taken holidays and that she was too ill to think about holidays having been hospitalised after having a breakdown. The claimant went on to state that as she was too ill to work the question of holidays did not arise. In relation to the signature of the CO3 agreement the claimant gave evidence that she was under a large amount of stress at the time. According to the claimant she was asked to sign it and was told that it was to do with her resignation. It was not explained to the claimant that she could not bring a claim for unpaid leave. The claimant normally received details of her pay by email and she was shocked when her husband found her final payslip in December 2016.
13. The claimant was questioned about her medical condition and stated that she was due to see her psychiatrist in September 2017. Dr Mangan had retired and she was seeing his replacement. It was suggested to the claimant that Dr Mangan expected her condition to improve once the grievance with her employer had resolved. The claimant responded that chronic Post Traumatic Stress Disorder doesn't stop and that she still had nightmares and flashbacks. It is clear that the claimant was distressed when giving her evidence and she stated that she would not have been before the tribunal if the payslip had not been discovered by her husband.
14. The respondent's witnesses gave evidence as to their understanding of what the CO3 agreement embraced. Mr Toal gave evidence that he was strongly advised that he should accept the settlement as the claimant would have no further claims against the respondent and that it took into account notice pay, holiday pay and anything in the future. He also recalled Ms Hamilton telling him that he would be mad not to accept that deal. Ms Hamilton gave evidence that she asked Mr Warnes of Peninsula Business Services Ltd whether the proposed settlement included notice pay and holiday pay and he informed her that it did. Ms Hamilton understood that the agreement covered everything that was owed to the claimant. Ms Hamilton did not dispute that untaken holiday leave had been accrued by the claimant although she put this at 67 days rather than 86 days as contended for by the claimant.
THE LAW
15. The claim for holiday pay falls to be considered under both the tribunal's contractual jurisdiction and as an unlawful deduction from wages.
Breach of Contract
"Proceedings may be brought before an industrial tribunal in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for sum due in respect of personal injuries) if -
(a)
the claim is one to which Article 57(2) of the No. 2 Order
[Article 5(2)of the Industrial Tribunals (NI) Order 1996] applies and in respect of which a court in Northern Ireland would under the law for the time being in force have jurisdiction to hear and determine an action;
(b) the claim is not one to which Article 5 applies; and
(c) the claim arises or is outstanding on the termination of the employee's employment."
17. Time limits for breach of contract claims by employees are dealt with in Article 7 of the 1994 as follows:
"7. An industrial tribunal shall not entertain a complaint in respect of an employee's contract unless it is presented -
(a) within the period of three months beginning with the effective date of termination of the contract giving rise to the claim; or
(b) is no effective date of termination, within the period of three months beginning with the last day upon which the employee worked in the employment which has terminated; or
(c) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within whichever of these periods is applicable, within such further period as the tribunal considers reasonable."
Unauthorised Deduction from Wages
18. Article 45(1) of the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order") provides as follows:
"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 (b) the worker has previously signified in writing his agreement or consent to the making of the deduction".
Article 45(3) of the 1996 Order provides as follows:
"Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion".
19. Time limits for complaints to industrial tribunals insofar as relevant N.I. are addressed in Article 55 of the 1996 Order as follows:
"55. (1) A worker may present a complaint to an industrial tribunal -
(a) that his employer has made a deduction from his wages in contravention of Article 45 (including a deduction made in contravention of that Article as it applies by virtue of Article 50( 2)),
...........
(2) Subject to paragraph (4), an industrial tribunal shall not consider a complaint under this Article unless it is presented before the end of the period of three months beginning with -
(a) in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or
(b) in the case of a complaint relating to a payment received by the employer, the date when the payment was received.
(3) Where a complaint is brought under this Article in respect of -”
(a) a series of deductions or payments, or
(b) a number of payments falling within paragraph (1)(d) and made in pursuance of demands for payment subject to the same limit under Article 53(1) but received by the employer on different dates, the references in paragraph (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received.
(4) Where the industrial tribunal is satisfied that it was not reasonably practicable for a complaint under this Article to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.
............."
SUBMISSIONS
20. The tribunal had the benefit of helpful oral submissions by bath representatives. The tribunal was referred to the following cases - Hilton UK Hotels Ltd v Cecelia McNaughton EATS/0059/04, Royal National Orthopaedic Hospital Trust v Howard 2002 [2002] UKEAT 861_01_1408, IRLR 849 EAT, Plumb v Duncan Print Group UKEAT 2015-0071 and Stringer [2009] UKHL 31.
21. On behalf of the claimant Mr Moore submitted that the holiday pay claim was not captured by the CO3 agreement and it did not manifest itself until 29 December 2016 when the claimant's husband brought it to her attention. Therefore time did not commence to run until 29 December 2016 and it is within the 3 month time frame. He also pointed out that there had been no previous claim in respect of holiday pay. In the alternative if the appropriate starting date was the EDT (1 October 2016) or the date of the payslip (27 October 2016) it was not reasonably practicable to submit the claim within 3 months because firstly the claimant was not aware that she was owed holiday pay and secondly she was suffering from a significant impairment. Mr Moore further submitted that the claim form was lodged as soon as possible after the 2017 letter. Although the claimant had professional advisers she did not raise it with them until late December 2016 and arranged to meet with them early in the New Year. The claimant only realised that she had a case in respect of holiday pay a couple of days after the 3 months had elapsed from the EDT and made contact with her professional advisers very quickly. The claim was filed approximately one month out of time.
22. Mr Moore pointed out that the respondent's witnesses accepted that holiday leave was accrued but not paid and that the claimant had accrued 67 days of untaken leave. Mr Moore submitted that the claimant's holiday pay entitlement amounted to 86 days. The claimant was not aware of her entitlement to holiday pay and therefore this constituted a future claim. Mr Moore submitted that holiday pay should have been specifically included in the CO3 agreement and that its wording was of a catch-all nature and was not unequivocal.
23. On behalf of the respondent Mr McGettigan stated that the previous discrimination claim was submitted at a time when the claimant was still employed by the respondent but that the circumstances changed significantly on the first day of the tribunal hearing when the EDT was agreed thus bringing about the termination of the claimant's employment. Mr McGettigan therefore submitted that the discrimination claim form could not therefore be looked at in isolation. By mutual consent the EDT was agreed as 1 October 2016 and this explained why the first paragraph of the CO3 agreement was drafted as it was. There were effectively two halves to the CO3 agreement - (1) These proceedings and (2) All other claims. Mr McGettigan submitted that it was surprising that the claimant was not aware of her right to accrue annual leave but that even if she was not she would surely have been aware of her entitlement to annual leave in the 2016 year.
24. Mr McGettigan submitted that the claim to holiday leave was not a future claim and that the Hilton case only covered claims that the claimant could not have been reasonably aware of namely claims that might arise in the future. Mr McGettigan submitted that finding a payslip in the back of a cupboard did not convert this claim into a future claim. Furthermore it was open to the claimant and her professional adviser to examine the pay slip which was provided on 27 October 2016 before the CO3 agreement was finally signed. Thus even if 86 days was owed this had been compromised by the CO3 agreement. Mr McGettigan submitted that it was clear from the language of the CO3 agreement what had been compromised.
25. Mr McGettigan also drew attention to the case law on annual leave in particular Stringer which provided for a maximum carry-over of 4 weeks and Plumb which imposed an 18 month time limit for back payment of holiday pay, an increase from the previous 15 month limit. On this basis Mr McGettigan submitted that holiday was excluded for 2014 and a portion of 2015 which meant that the claimant's entitlement was limited to one and a half years.
26. Mr McGettigan submitted that the relevant starting point for the calculation of time was the claimant's EDT of 1 October 2016 and that it was reasonably practicable for the claimant to have brought her claim for holiday pay within time. The claimant relied on her ill-health and the medical reports which formed part of her previous discrimination claim. Dr Mangan didn't expect an improvement in the claimant's condition until her case was resolved but the claimant was nonetheless able to pursue her discrimination case in spite of her medical condition, was aware of time limits, had professional representation and was able to bring her discrimination claim within time. It was therefore reasonably practicable for the claimant to have brought her holiday pay claim within time and her health was not a feature in preventing her from doing so. However, instead of submitting a claim form within time a letter was sent on her behalf on 11 January 2017. While this might represent good practice the claimant ought to have issued her claim within time. She did not and as a result it was time barred. Mr McGettigan submitted that if his arguments in relation to time were not accepted the holiday pay claim had been compromised as part of the previous claim and if the compromise agreement was to be looked behind holiday pay should be limited to 18 months.
27. In reply Mr Moore submitted that Plumb was no more than a persuasive authority in Northern Ireland and that the claimant was entitled to 28 days annual leave. Mr Moore was unable to say whether holiday pay had been discussed with the claimant in the context of her previous claim as it was dealt with by his former colleague Mr Morgan who was no-longer with PM Associates. Mr Moore accepted that the claimant did not resign until the CO3 agreement was signed off.
CONCLUSIONS
28. The relevant legal principles are set out in Hilton UK Hotels Ltd v Cecelia McNaughton and Royal National Orthopaedic Hospital Trust . The former judgment is concerned with a compromise agreement whereas the latter arose in the context of an ACAS conciliated settlement which is the equivalent of a Labour Relations Agency conciliation here. The following passage from Hilton UK Hotels Ltd v Cecelia McNaughton neatly covers the whole terrain.
"If the parties seek to achieve such an extravagant result that they release claims of which they have and can have no knowledge whether those claims have already come into existence or not, they must do so in language which is absolutely clear and leaves no room for doubt as to what it is they are contracting for. We can see no reason why as a matter of public policy a party should not contract out of some future cause of action. But we take the view that it would require extremely clear words for such an intention to be found."
Fifthly, when interpreting a parties' contract, the terms of the parties' contract may be such that it is permissible to consider parole evidence as to the state of knowledge of the parties at the time that the contract was made (see e.g. Jacobs v Scott (1899) 2F (HL) 70)."
29. At the core of this case is the CO3 agreement. It is clear that its terms cover all of the potential claims that the claimant could have brought in her first claim form. It is also of crucial importance to appreciate the context in which the CO3 agreement was drawn up and agreed. Although the focus of the first claim was clearly on discrimination a central ingredient of the CO3 agreement was the claimant's EDT which brought about the termination of her employment with the respondent. Thus the claimant and her adviser ought to have been aware that they were not simply engaged in resolving a discrimination case but were dealing with all of the consequences of her employment coming to an end.
30. Furthermore, the claim form which was filed on behalf of the claimant in her discrimination case makes specific provision for other types of claim to be included. The claimant and her professional adviser did not include a claim for holiday pay in the claim form. This does not however prevent such claims from being included in a conciliated settlement.
31. Paragraph 1 of the CO3 states in clear terms what is covered by it and what is not. All claims within the jurisdiction of the conciliation officer, which the claimant could have brought against the respondent arising out of the terms of her contract of employment or out of the termination of that contract are clearly included. Rights that the claimant may have in relation to personal injuries or accrued pension rights are equally clearly excluded. The claim in respect of holiday pay clearly falls within the former and is thus included unless it could be regarded as a future claim. In view of the case law and in particular Hilton UK Hotels Ltd v Cecelia McNaughton I am not persuaded that the claim for holiday pay constitutes a future claim. Rather it was at best an unrealised present claim. I therefore accept Mr McGettigan's submission that the claim in respect of holiday pay does not qualify as a future claim.
32. I am prepared to accept that the claimant may not have been aware of a potential claim for holiday pay. Having been on sick leave for the best part of three years it is unlikely that holiday pay or accrued holiday leave would have been to the forefront of her mind particularly in view of the state of her mental health. The tribunal would have expected a competent professional adviser to have established the possible existence of a claim of this nature when taking instructions from the claimant. The relevant professional adviser, Mr Morgan, is no-longer with PM Associates and the tribunal did not receive any evidence as to what if any consideration was given to holiday pay in the context of the discrimination claim. Having read the claim form and the response form in the discrimination case I can understand how this might have been overlooked given the bigger issues which were in play. Be that as it may the CO3 form was drafted to include all possible claims arising. The respondent's witnesses believed that any holiday pay claim was covered by the CO3 agreement.
33. At the heart of the matter is the terms of the written agreement. I am satisfied that the CO3 agreement properly construed includes holiday pay. No issue would ever have been raised about holiday pay but for the chance discovery of a payslip by the claimant's husband. That discovery does not of itself entitle the claimant to bring a new claim in respect of monies which she believes that she is entitled to. Nor does it qualify as a future claim for the reasons outlined above.
34. If contrary to my decision the claim was viable I would have extended time on the basis that it was not reasonably practicable for her complaint to be presented within 3 months of the termination of her employment. I consider that the claimant acted promptly as soon as she realised the existence of a potential claim for holiday pay and the proceedings were issued on her behalf as soon as practicable thereafter. I am also mindful of the claimant's ongoing medical condition which continues to affect her wellbeing and that the CO3 agreement was not finally concluded until 25 November 2016. While there is force in the respondent's submission that the pre action stage should have been skipped in view of the time that had already elapsed it is good practice to issue a pre action letter and I would not be disposed to refuse to extend time in circumstances where the claimant had clearly been acting on the basis of professional advice.
35. It is therefore not necessary for me to decide whether the claimant's entitlement would have been 67, 86 days or any other period.
36. In summary therefore and addressing the issues set out in paragraph 3 the tribunal's decision is as follows:
(1) The claimant is not entitled to pursue a claim for holiday pay having entered into a CO3 agreement in Case Number 2452/15.
(2) The tribunal would otherwise have extended time in order to entertain the claimant's claim for holiday pay.
37. It is in many ways regrettable that the payslip was discovered as it has served to raise false hopes and to prolong the claimant's engagement in employment related proceedings which as is apparent are not conducive to her good health.
38. The claimant's claim in respect of holiday pay is dismissed.
Employment Judge:
Date and place of hearing: 15 August 2017, Belfast.
Date decision recorded in register and issued to parties: