Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REFS: 1246/16

1471/16

 

 

CLAIMANT: Heather Burns

 

 

RESPONDENT: Peace Haven Care Services Limited

 

 

COUNTERCLAIM

 

CLAIMANT: Peace Haven Care Services Limited

 

 

RESPONDENT: Heather Burns

 

 

DECISION

The claimant is awarded £300.56 in respect of her claim for holiday pay and £807.22 in respect of the respondent's failure to give her a statement of her main terms and conditions of employment.

 

The Tribunal dismisses the counterclaim.

 

The Tribunal makes an award of £2,006.40 in costs under Rule 41 on the basis that the respondent had behaved unreasonably and that the bringing or conducting of the proceedings by the paying party has been misconceived.

 

 

Constitution of Tribunal:

 

Employment Judge: Employment Judge Wimpress

 

Members: Mr N Jones

Mr I Foster

 

 

Appearances:

 

The claimant was represented by Mr Paul O'Kane of McShanes Solicitors.

 

The respondent was represented by M s Mary O'Hanlon

 

 

SOURCES OF EVIDENCE

 

1. The tribunal received an agreed bundle of documents which was supplemented with further documents during the course of the hearing and heard eviden ce from the cl aimant. No witnesses were called to give evidence on behalf of the respondent.

 

 

THE CLAIM AND THE RESPONSE

 

2. The claimant brought claims in respect of holiday pay, breach of contract, sick pay and failure to provide written terms and conditions of employment. The respondent disputed all of these claims and made a counterclaim in respect of the claimant's failure to work out her notice period. The most significant aspect of the dispute between the claimant and the respondent was in relation to the amount of holiday pay that the claimant was entitled to. We therefore set out the parties' respective contentions in relation to holiday pay in full:

 

Claim Form

 

"I was employed for 9½ months with the Respondent. During that time, I received only two days holiday pay. Based on an entitlement of 28 days leave over a twelve month period I believe that in total, I was entitled to 22 days holiday for my period of service and that therefore I am still owed 20 days holidays."

 

Response Form

"On 06/05/16 the Claimant was paid £892.44 into her Bank Account in relation to 18.5 days Holiday Pay which had not been used or taken upon leaving her employment on 11/03/16. Ms. Burns (the claimant) was also paid other holiday pay prior to this payment. All remaining Holiday pay was paid to the Claimant on 06/05/16."

 

THE ISSUES

 

3. (1) Whether the claimant was paid the correct holiday pay.

 

(2) Whether the claimant was entitled to sick pay and if so how much.

 

(3) Whether the respondent was liable for breach of contract.

 

(4) Whether the respondent had failed to provide written terms and conditions of employment and if so what award should be made in respect of same.

 

(5) Whether the respondent's counterclaim was valid.

 

(6) Whether the claimant was entitled to costs.

 

THE FACTS

 

4. On 1 June 2015 the claimant commenced employment with the respondent as a domiciliary care assistant. The proprietor of the business is Ms Mary O'Hanlon. The job involved attending to the care needs elderly clients in their homes. The claimant was paid £1614.44 gross per month and received £1326.25 per month net pay. The claimant was entitled to 28 days annual leave. Under the terms of her contract she was required to make a request in writing for any period of leave of two weeks or more. The claimant gave evidence that although she enjoyed the role as a domiciliary care assistant she was unhappy with her job for a number of reasons and that she felt burnt out.

 

5. The claimant's contract of employment required her to give four weeks' notice. On 11 March 2016 the claimant left her employment without giving notice. At the time that the claimant gave notice she was mid-way through a two week period of sick leave having been signed off work for two weeks due to lower back pain. The claimant secured a new job in a similar role with another care provider within three weeks of leaving the respondent's employment on 21 March 2016.

 

6. In the weeks following her resignation the claimant did not receive holiday pay or statutory sick pay and therefore sought legal advice. She retained Mr O'Kane who sent a pre proceedings letter to the respondent on 13 April 2016. The letter stated that unless the outstanding monies were paid within ten days an application (claim) would be made to the Tribunal and that if this proved necessary the claimant would pursue a claim for damages for failure to provide written terms and conditions of employment as required by the Employment Rights (NI) Order 1996.

 

7. Mr O'Kane did not receive a reply to his letter and as a result a claim was submitted to the tribunal office dated 28 April 2016. The claim as set out was comprised of four elements - (a) failure to provide written terms and conditions of employment; (b) failure to pay outstanding holiday pay; (c) failure to pay sick pay and (d) breach of contract.

 

8. On 10 May 2016 Ms O'Hanlon sent the claimant her final payslip, P45 and P60. The payslip gave a net pay £932.25 which was comprised of statutory sick pay of £88.45 and holiday pay of £892.44. Deductions totalled £48.64. No evidence was adduced by the respondent about the payment of "other holiday pay prior to this payment" as referred to in the response form.

 

9. The respondent filed a response dated 7 June 2016 in which it refuted all of her claims including a claim in respect of failure to provide written terms and conditions of employment. The respondent contended that the claimant had been paid all that she was entitled to and was given a copy of her contract of employment. As set out at paragraph 2 above the respondent stated that on 8 May 2016 the claimant was paid £892.44 in relation to 18.5 days Holiday Pay which had not been used or taken upon leaving her employment on 11 March 2016 and the claimant was also paid other holiday pay prior to this payment. In relation to the claim in respect of breach of contract this was refuted and in addition the response stated that as the claimant did not work any of her four week notice period the respondent would be entitled to seek compensation for breach of contract against the claimant due to the fact that she commenced employment with another employer during the four week notice period that she should have been working her notice period. Under the heading of Breach of Contract the respondent stated that there was no substance to any of the malicious and defamatory allegations made by the claimant.

 

10. The respondent's contention in relation to breach of contract was accepted by the tribunal office as a counterclaim and the parties were informed of this by the tribunal by letter of 20 June 2016. The claimant's solicitor was advised that any response to the counterclaim must be presented within 28 days.

 

11. On 22 June 2016 the claimant's solicitor sent a 'without prejudice' letter to Ms O'Hanlon. The letter acknowledged the payment made by the respondent in respect of holiday pay and sick pay. The letter noted that the response was being treated as a counterclaim and advised that the claimant was prepared to accept the payment made in full and final settlement of her claim subject to the counterclaim being withdrawn.

 

12. On 8 July 2016 the claimant's solicitor filed a response to the counterclaim. The response maintained that the claimant was not provided with written terms and conditions of employment and in the absence of same denied that the claimant was obliged to work a four week notice period and if she was the respondent did not sustain any loss. A copy of the 'without prejudice' letter of 22 June 2016 was provided in respect of which privilege was waived and the response reiterated the claimant's offer to accept the payments made in full and final settlement of her claim subject to the counterclaim being withdrawn. The response also contended that the counterclaim was without merit and an abuse of process and that if it was pursued the claimant would make an application to the Tribunal for an order striking out the counterclaim on the grounds that it was scandalous, vexatious or misconceived.

 

13. The claimant did not at this time seek further particulars of the alleged loss sustained by the respondent due to the claimant's failure to work out her notice period.

 

14. A Case Management discussion was convened on 8 August 2016 in the course of which the claimant's solicitor repeated the claimant's offer to forego the balance of her claim on the basis that the respondent withdrew the counterclaim. Ms O'Hanlon did not attend and it would appear that she had advised the tribunal that she would be on holiday abroad. The Case Management discussion was therefore postponed to 30 August 2016.

 

15. A further Case Management discussion by way of telephone conference took place on 30 August 2016. Ms O'Hanlon indicated that she wished to pursue the counterclaim and the respondent was ordered to furnish precise details of the alleged loss by 5 September 2016. In addition, the claimant was ordered to furnish precise details of the amount allegedly due to her by the same date. The case was listed for hearing on 14 October 2016. The claimant's solicitor made clear that he viewed the counterclaim as being vexatious/unreasonable/misconceived and indicated that an application for costs would be made if it was pursued. Ms O'Hanlon contended that the claimant had received a contract, that her allegations were false, that she did not give any notice and had commenced employment with another employer within the notice period which caused staffing problems. The claimant's solicitor indicated that he would not be on record to deal with the counterclaim. Unsurprisingly the Employment Judge suggested that both parties might wish to obtain guidance and/or discuss a resolution of the issues with the Labour Relations Agency. Finally, the Employment Judge ordered the claimant to provide the respondent with the date on which she commenced employment with another employer.

 

16. By letter dated 5 September 2016 the claimant's solicitor informed the respondent that the balance of the claim against the respondent was £391.58 taking into account the direct payment of £932.25 made to the claimant and that the claimant commenced employment with her new employer on 21 March 2016. On the same day the respondent emailed the claimant's solicitor with a breakdown of the costs that it incurred as a result of the claimant failing to work her notice period. The respondent assessed the loss at £2,194.23 which was said to be based on a rate of £12.00 per hour for a supervisor to complete the claimant's duties over the four weeks. We note in passing that although the breakdown includes the figure that a care assistant would be paid for the hours in question no allowance is made in respect of the saving that accrued to the respondent as a result of not having to pay the claimant during this period namely £1,461.49. Accordingly, taking these figures at face value for present purposes, the respondent's loss would come out as £732.74. Nor do the respondent's figures take into account the claimant being on sick leave during the first week of the notice period which meant that a substitute or stand in would have been required in any event.

 

17. On 7 September 2016 a Notice of Hearing was issued to the parties. Two paragraphs of the Notice are of particular relevance in the circumstances of this case. On the first page of the Notice the following appears:

 

"You are responsible for ensuring that all witnesses you wish to call can attend on the day of hearing."

 

On the second page it states as follows:

 

"Unless there is good reason, no application for postponement due to non-availability of witnesses or for other reasons will be granted. Any request for a postponement should be made in writing to the Secretary of the Tribunals without delay, stating full grounds."

 

18. On 21 September 2016 the claimant's solicitor emailed the tribunal office and advised that he had been instructed in relation to the counterclaim and would be appearing at the hearing on 14 October 2016.

 

19. On 26 September 2016 the claimant's solicitor wrote to the tribunal office and advised of his intention to pursue an application for costs against the respondent in the event of the counterclaim being dismissed. The letter and an accompanying email set out the history of the case and grounds for the application which were that the respondent in conducting the proceedings (both in defence of the original case and in the pursuance of a counterclaim) had acted vexatiously or unreasonably or that the bringing or the conduct of the proceedings by the respondent had been misconceived. It was also contended that the counterclaim was unmeritorious and had been belatedly brought by the respondent for its own purposes and was effectively an abuse of process. The correspondence was also stated to be brought pursuant to the requirements of Rule 11 and in compliance with Rule 11(4) a copy of the letter had been sent to the respondent.

 

20. Also on 26 September 2016 the claimant's solicitor wrote to the respondent and requested a copy of the contract that was allegedly furnished to the claimant together with details of the alleged loss of £2,194.23 including the identity of the supervisor involved and proof of payment to the supervisor of salary during the claimant's notice period.

 

21. On 30 September 2016 Ms O'Hanlon wrote to the claimant's solicitor and advised that the claimant's claim was groundless and that costs would be sought at the forthcoming hearing on the basis that she had behaved frivolously, vexatiously and unreasonably in the pursuit of clearly groundless proceedings and that she had failed to reimburse the respondent for the financial loss suffered. Ms O'Hanlon also indicated that the respondent expected to incur significant costs by reason of attending the forthcoming hearing in relation to the counterclaim for breach of contract and for legal advice obtained with regard to the matter. The claimant's solicitor responded by email of 4 October 2016 and stated that the claimant intended to defend any costs application pursued against her on the grounds that any such application was unmeritorious and misconceived. On 10 October 2016 the tribunal office advised that an Employment Judge had directed that all relevant matters including, if appropriate cost applications, would be dealt with at the full hearing.

 

THE HEARING

 

22. At the outset the hearing Ms O'Hanlon sought an order for the discovery of documents in relation to the claimant's new employer. We decided not to make such an order as the application was made very late in the day but indicated that if the documents were relevant and available we would look at the matter again. Ms O'Hanlon then applied for an adjournment until the documents were made available. Mr O'Kane responded by providing a copy of a letter from the claimant's new employer and contract which appeared to have been signed by the claimant on 22 March 2016. Mr O'Kane also pointed out that a copy of this letter was sent to the respondent on 5 September 2016 and no issue was taken about it by the respondent. In these circumstances we were satisfied that there was no need to adjourn the hearing.

 

23. The hearing therefore proceeded and the parties' representatives both made opening submissions. The claimant's solicitor indicated that the correct amount had been paid in respect of statutory sick pay and that therefore this aspect of the claim was not being pursued. The claimant then gave her evidence in chief and was cross-examined by the respondent's representative largely on the basis of the documents contained in the agreed bundle. The claimant gave evidence in relation to each head of claim that was being pursued and in relation to the respondent's counterclaim. In relation to holidays the claimant gave evidence that she had taken two days paid annual leave. No other witnesses were called on behalf of the claimant.

 

24. Shortly after commencing her cross-examination of the claimant Ms O'Hanlon sought an adjournment of the hearing to enable her to secure the attendance of a witness. The witness in question was said to be the supervisor whom it was claimed carried out the claimant's work after she left her job. This witness was no longer employed by the respondent. The claimant's solicitor opposed the application on the basis that the respondent had known for some time what the issues in the case were and had plenty of opportunity to call witnesses to attend the hearing and must bear the consequences. He also emphasised that the claimant was a low earner who was funding representation herself and an adjournment would cause hardship to her. The Tribunal refused the application for an adjournment and the hearing continued.

 

25. In relation to the alleged failure to provide written terms and conditions of employment Ms O'Hanlon sought to advance the case in cross-examination that the claimant was provided with a copy of her written terms and conditions of employment at her induction. The agreed bundle included a list of the material that the respondent contended was provided to the claimant at that time. Ms O'Hanlon strongly suggested to the claimant that she was given a copy of her written terms and conditions of employment during the induction and attention was drawn to a counter signature by an S B Conlan to this effect. The claimant denied receiving a welcome pack. While the claimant's recollection of induction was rather vague in parts she was adamant that she was not given a copy of her contract. The claimant gave cogent and convincing evidence that if she had been given this document she would have kept in a cupboard at her home which she used for all important documents such as insurance policies or tax returns and that it was not there.

 

26. The claimant accepted that she had signed her contract and that she was aware of the requirement to give four weeks' notice. The claimant felt bad about not giving notice but could not work for the respondent any longer.

 

27. In relation to the counterclaim Ms O'Hanlon sought to support the respondent's case by putting forward the suggestion that the respondent had difficulty in recruiting care staff at short notice due to vetting requirements and the requirements of Access NI. However, as with the rest of the respondent's case no evidence was called in support of this contention.

 

28. Towards the end of the cross-examination of the claimant Ms O'Hanlon indicated that she was not proposing to call any witnesses to support the case that was put to the claimant in cross-examination. Nor was she prepared to submit herself as a witness which was somewhat surprising given that she was the manager of the business and therefore might have been expected to be able to give some evidence that might have substantiated the defence to the claim. Thus the claimant was cross-examined on the basis of documents which were never put in evidence or proved. No issue was made by Mr O'Kane about this during the cross-examination of the claimant.

 

29. When asked about this Ms O'Hanlon claimed that she did not know that she could call witnesses but this sits ill with her earlier application to adjourn the proceedings in order to secure the attendance of witnesses at which juncture no mention was made of this gap in her knowledge. It also flew in the face of the clear wording of the Notice of Hearing and is surprising to say the least given her involvement in two Case Management discussions the latter of which made explicit reference to the exchange of witness statements. Ms O'Hanlon went on to state that she had consulted an employment lawyer rather late in the day who had been unable to take on her case due to an existing commitment and who had advised her to seek an adjournment. The Tribunal was unable to accept that Ms O'Hanlon was unaware of the ability to call witnesses. The Tribunal therefore decided that the hearing should proceed to a conclusion. As there were no further witnesses the Tribunal invited the representatives to make closing submissions.

 

30. Mr O'Kane provided the tribunal with a calculation of the claimant's entitlement to holiday pay. The calculation was based on the claimant having accrued 22 days leave based on her period of employment and her net pay for the last twelve weeks of her employment. This produced an average net daily rate of pay of £59.65. As referred to at paragraph 4 above the claimant took two days paid annual leave and according to Mr O'Kane the appropriate multiplier was therefore 20. By this method the holiday pay claimed £1,193.00 is arrived at. [£59.65 x 20 = £1,193.00]. While it is correct that £892.44 was paid into the claimant's Bank Account, no evidence was produced as to any earlier payment in respect of holidays as referred to in the respondent's response.

 

31. The respondent did not dispute the claimant's daily rate of pay. Nor did it explain or call evidence as to how it arrived at the view that the claimant was owed 18.5 days holiday pay. Ms O'Hanlon simply expressed confidence in the figure for holiday pay contained in the response form and did not seek to put forward an alternative calculation. It occurred to the Tribunal that Ms O'Hanlon might be able to give evidence about this herself in support of the respondent's calculation but she was not willing to do so as this was not part of her role.

 

SUBMISSIONS

 

32. At the conclusion of the hearing both parties made closing submissions. On behalf of the claimant Mr O'Kane made the following submissions:

 

(1) Written Terms and Conditions of Employment

Mr O'Kane submitted that it was not sufficient for an employee to have access to written terms and conditions of employment - a copy must be provided. The respondent had not given evidence as to what had happened. In the absence of oral evidence from the respondent the Tribunal should not accept the documentary evidence relied upon by the respondent and should accept the claimant's evidence on this matter whom Mr O'Kane submitted was a truthful witness.

 

(2) Holiday Pay

The respondent had not sought to oppose the claim for holiday with any oral evidence.

 

(3) Statutory Sick Pay

 

It was agreed that this had been paid.

 

(4) Counterclaim

 

Mr O'Kane submitted that some matters were not in dispute -

 

(i)             The respondent did not make any payment to the claimant until legal correspondence was instituted.

 

(ii)           There was no response to the letter of claim and a counterclaim was not raised at any stage.

 

The figure clamed in respect of the counterclaim only emerged at the Case Management Discussion on 5 September 2016. This was very late in the day and suggests that the counterclaim was an afterthought. Mr O'Kane submitted that the claim in respect of the supervisor's hours was not legitimate as the supervisor would have been working for the respondent anyway and as the claimant was on sick leave during the first week of the notice period no monies were recoverable in respect of this period. Mr O'Kane also drew attention to the total absence of any evidence from the respondent in relation to the counterclaim and poured scorn on the suggestion that there was insufficient time to secure the attendance of witnesses given that Ms O'Hanlon was the owner of the business and that she and another member of its management were in attendance and could have given evidence about the counterclaim. Mr O'Kane submitted that in these circumstances no credence could be given to the counterclaim and that the Tribunal should have no difficulty in dismissing the counterclaim in its entirety.

 

33. Mr O'Kane drew attention to the sequence of events and in particular the efforts made on behalf of the claimant to resolve the proceedings. Mr O'Kane submitted that the respondent had behaved vexatiously and unreasonably. Mr O'Kane submitted that his letter of claim dated 22 June 2016 was the crux of the matter and also drew attention to his letter of 26 September 2016 in which it was stated that the claimant would seek costs if the counterclaim was dismissed. Mr O'Kane placed reliance on the respondent's failure to reply to the letter of claim. Mr O'Kane submitted that the counterclaim was unmeritorious and drew attention the respondent's pursuit of the counterclaim to the hearing without any effort to resolve the matter and its refusal of the offer to settle. Mr O'Kane placed reliance on Kopel v Safeway Stores PLc [2003] IRLR 753 [ Volume 4 of Harvey on Industrial Relations and Employment Law at paragraph 1077] in relation to the impact of the refusal of an offer to settle. Mr O'Kane further submitted that the respondent had behaved vexatiously in its conduct of the case by the delay in making payment to the claimant; by bringing a counterclaim after the claimant had filed her claim; by stating in its response that there was no substance to any of the malicious and defamatory allegations made by the claimant, an allegation which was refuted by the claimant, and the bringing of a hopeless counterclaim. In making this submission Mr O'Kane relied on a number of authorities referred to at paragraph 1073 of Harvey :

 

In Attorney General  v Barker [2000] 1 FLR 759, [2000] 2 FCR 1 at paragraph 19 Lord Bingham CJ described the term 'vexatious' as follows-

 

"The hallmark of vexatious proceeding is in my judgment that it has little or no basis in law (or at least no discernible basis); that, whatever the intention of the proceedings may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any likely gain to accrue to the claimant, and that it involves an abuse of the process of the court, meaning by that a use of the court process for the purpose or in a way which is significantly different from the ordinary and proper use of the court process."

 

In Marler v Robertson [1974] ICR 72 at 76 Sir Hugh Griffiths described vexatious conduct as follows -

 

"If an employee brings a hopeless claim not with any expectation of recovering compensation but out of spite to harass his employers or for some other improper motive, he acts vexatiously, and likewise abuses the procedure. In such cases the tribunal may and doubtless usually will award costs against the employee....."

 

Mr O'Kane pointed out that this was the other side of the coin with the employer behaving in this manner.

 

34. Mr O'Kane also drew attention to Kescas v Governors of All Saints Church of England School [1991] ICR 493 EAT [paragraph 1074 Harvey] in which costs were awarded in a discrimination case in which the claimant was motivated by resentment and spite in bringing the proceedings. Mr O'Kane also referred to Beynon v Scadden [1999] IRLR 70, EAT [ paragraph 1074 of Harvey] as authority for the proposition that the terms vexatious and unreasonable were interchangeable. In contrast Mr O'Kane submitted that the claimant acted reasonably in being prepared to dis-engage and give up the difference in holiday pay and her claim in respect of the failure to provide her with a copy of her contract of employment. Mr O'Kane submitted that there were elements of harassment in the respondent pursuing an unmeritorious counterclaim and that it was an appropriate case to award costs under Rule 40(3).

 

35. As to the amount of costs, Mr O'Kane submitted that there were three elements to costs. Mr O'Kane accepted that it would be inappropriate to seek costs in respect of the early part of the case when the claimant and respondent were setting out their stalls in the claim form and response. Mr O'Kane further accepted that it was legitimate for the respondent to defend the case up until the letter of 22 June 2016. That date, he submitted, was the tipping point and beyond that the respondent's behaviour was unreasonable and vexatious. On this basis Mr O'Kane claimed twelve hours work from that date up until the hearing and five hours for the hearing at the legal aid rate of £152.00 per hour which produced a total amount of £2,584.00 plus VAT based on seventeen hours' work.

 

Respondent's Submissions

 

36. On behalf of the respondent Ms O'Hanlon made the following submissions.

Counterclaim

 

Ms O'Hanlon submitted that it was a very clear cut case. The claimant did not complete her four weeks' notice and went to work for another employer. It was therefore not unreasonable to bring a breach of contract counterclaim. The respondent gave consideration to doing so during the notice period.

Written Particulars of Main Terms and Conditions of Employment

 

Ms O'Hanlon submitted that the documents produced showed that the claimant was given her contract of employment. It was listed in the claimant's welcome pack and an employee has to be given all of the documents listed in the welcome pack in order to start employment. Thus Ms O'Hanlon sought to refute the claimant's denial of receiving the welcome pack by asserting that the claimant could not commence employment without receiving one and there was no reason not to provide a contract of employment to an employee. Ms O'Hanlon also submitted that during induction the claimant was given a password and she used this to complete online training.

 

Costs

Ms O'Hanlon submitted that the respondent did not act unreasonably in bringing the counterclaim in respect of the cost of a replacement worker and that the Tribunal should not award costs to the claimant.

 

The Law

 

37. Breach of Contract

 

The Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 confers jurisdiction on industrial tribunals to hear claims for breach of contract. Articles 3 and 4 make provision for claims by employees and employers respectively as follows: -

 

" 3.   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 a sum due, in respect of personal injuries) if—

 

(a) the claim is one to which section 131(2) of the 1978 Act applies and which a court in England and Wales would under the law for the time being in force have jurisdiction to hear and determine;

 

(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.

 

4.   Proceedings may be brought before an industrial tribunal in respect of a claim of an employer for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries) if—

 

(a) the claim is one to which section 131(2) of the 1978 Act applies and which a court in England and Wales would under the law for the time being in force have jurisdiction to hear and determine;

 

(b) the claim is not one to which article 5 applies;

 

(c) the claim arises or is outstanding on the termination of the employment of the employee against whom it is made; and

 

(d) proceedings in respect of a claim of that employee have been brought before an industrial tribunal by virtue of this Order".

 

38. Holidays

 

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. 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.

 

39. Employment Particulars

 

Article 33 of the Employment Rights (Northern Ireland) Order 1996 imposes an obligation upon employers to provide an employee with an initial statement of employment particulars and a written statement of any subsequent changes to any of those particulars.

 

Article 27 of the Employment (Northern Ireland) Order 2003 ("the 2003 Order") provides that the tribunal shall make a minimum award of either two weeks gross pay, or if, in all the circumstances it considers it just and equitable to do so, four weeks gross pay where the tribunal finds in favour of the claimant in respect of proceedings in any of the matters listed in Schedule 4 of the 2003 Order. Schedule 4 includes unfair dismissal, redundancy payments, breach of contract, unauthorised deductions and Working Time Regulations . The duty to make such an award does not apply if there are exceptional circumstances which would make an award or increase unjust or inequitable.

 

CONCLUSIONS

 

40. The respondent called no witnesses to substantiate the case that it sought to promote. Instead Ms O'Hanlon relied on documents contained in the hearing bundle to challenge the claimant's evidence in cross-examination. We have carefully considered the claimant's evidence and we are satisfied that she gave truthful and uncontradicted evidence on the key points at issue. Having regard to the normal rules of evidence it is clear that the oral evidence of the claimant must prevail over the unsubstantiated case put forward on behalf of the respondent.

Holiday Pay

 

It was not disputed that 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 1 June 2015 during the respondent's holiday year (1 April 2015 - 31 March 2016 which overlapped a leap year) and up until she handed in her notice she had been employed for 284 days of it. The claimant took 2 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 284/366) - 2 = 20 days x £59.65 net = £1,193.00. We therefore arrive at the same amount as Mr O'Kane but by a slightly different method. From this figure we must deduct the payment of £892.44 made by the respondent in respect of holiday pay. This gives a total due of £300.56 in respect of holiday pay.

Employment Particulars

 

We are also satisfied that the claim in respect of the failure to provide a statement of the claimant's main terms and conditions of employment is made out and that 2 weeks pay is the appropriate award to make under this heading. An award has been made in respect of the breach of Working Time Regulations claim and when these proceedings were initiated on 28 April 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 and in the absence of any evidence of exceptional circumstances being placed before the Tribunal, we increase the award to the claimant by an amount equal to two weeks' pay, £807.22. We 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.

 

Breach of Contract/Counterclaim

 

The respondent was understandably aggrieved by the claimant's failure to work out her notice period but no evidence was called to substantiate the respondent's case in relation to either the counterclaim or the alleged loss. Ms O'Hanlon asserted that it was necessary to use a member of staff at supervisor level to cover the claimant's work at a higher rate of pay at £12.00 per hour. The figure claimed is considerably inflated both on this basis and because it does not take account of the saving of notice pay. Nor was any evidence adduced to support the assertions made by Ms O'Hanlon as to the difficulty in securing a replacement care assistant. In view of the absence of evidence to substantiate the counterclaim it must be dismissed.

Costs

 

41. Unlike proceedings in, for example, the High Court or the County Court, tribunal costs do not follow the event. The award of costs is governed by Rule 40 of the Rules of Procedure which, insofar as relevant, provides:-

"(2) A tribunal or chairman shall consider making a costs order against a paying party where, in the opinion of the tribunal or chairman (as the case may be), any of the circumstances in paragraph (3) apply. Having so considered, the tribunal or chairman may make a costs order against the paying party if it or he considers it appropriate to do so.

 

(3) The circumstances referred to in paragraph (2) are where the paying party has in bringing the proceedings, or he or his representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by the paying party has been misconceived. ... ."

 

42. Mr O'Kane sought costs on behalf of the claimant on the basis that the respondent had, in conducting the proceedings acted vexatiously or otherwise unreasonably and that the bringing and/or conducting of the counterclaim had been misconceived in other word that it had no reasonable prospect of success.

 

Rule 41 of the Rules of Procedure, insofar as relevant and material, provides:-

 

"(1) The amount of a costs order against the paying party shall be determined in any of the following ways -

 

(a) the tribunal may specify the sum which the paying party must pay to the receiving party, provided that sum does not exceed £10,000;

 

(b) the parties may agree on a sum to be paid by the paying party to the receiving party and if they do so the costs order shall be for the sum so agreed;

 

(c) the tribunal may order the paying party to pay the receiving party the whole or a specified part of the costs of the receiving party with the amount to be paid being determined by way of detailed assessment in a county court in accordance with such of the scales prescribed by county court rules for proceedings in the county court as shall be directed by the order.

 

(2) The tribunal or chairman may have regard to the paying party's ability to pay when considering whether it or he shall make a costs order or how much that order should be.

 

(3) For the avoidance of doubt, the amount of a costs order made under paragraph (1)(b) or (c) may exceed £10,000."

 

In Article 2(1) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, 'misconceived' is defined as including no reasonable prospect of success.

 

43. When considering an application for costs under Rule 40(2) and (3) the Tribunal must apply a two-stage process. Firstly, the Tribunal has to consider whether it has been established that the relevant party has satisfied the terms of Rule 40(3) - namely whether paying party or his representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by the paying party has been misconceived. A Tribunal then has to consider whether to exercise its discretion to make an order for costs.

 

In addition to the authorities cited by Mr O'Kane there are a number of others that we consider to be of relevance. In the case of Peat & Others v Birmingham City Council [UKEAT/0503/11], Mr Justice Supperstone noted that for a party to succeed in arguing for costs on the basis of unreasonable conduct, it was not necessary to show that the other party had no reasonable prospect of success. In his judgment he held, on the facts of the case, if the claimant's solicitors had engaged with the issues and the costs warnings letters, they would have likely have appreciated that the claimant's reasonable prospect of success was so thin that it was not worth going to the hearing.

 

As set out in Harvey at, Paragraph 1047, Section P1:-

 

"Considering whether to award costs in respect of a party's conduct in bringing or pursuing a case which is subsequently held to lack merit, the type of conduct that will be considered unreasonable by a Tribunal will obviously depend on the facts of the individual case and there can be no hard and fast principle applicable to every situation. In general, however, it would seem that the party must at least know or to be taken to have known that his case is unmeritorious (see Cartiers Superfoods Ltd v Laws [1978] IRLR 315) ... ."

 

As stated in Harvey at Paragraph 1052.07:-

 

"A costs warning letter will not of course necessary result in an Order for Costs being made where the party giving the warning is ultimately successful in obtaining a judgment in his favour. Whether it will do so will depend on the facts. But if a well-argued warning letter is sent, failure by the claimant to engage properly with the points raised in it can amount to unreasonable conduct and if a case proceeds to a hearing and the respondents are successful for substantially the reasons that were contained in the letter. A good example of this is Peat v Birmingham City Council [UKEAT/0503/11]."

 

44. It is clear to the Tribunal that this is a case which should never have made it as far as a contested hearing. The blame for this lies clearly with the respondent. We consider that the respondent's behaviour was unreasonable in a number of ways:

 

(i)            It failed to respond to the letter of claim.

 

(ii)           It refused a reasonable offer to settle the proceedings made on 22 June 2016.

 

(iii)          It brought an unmeritorious, unsubstantiated and inflated counterclaim.

 

(iv)          The respondent did not call any witnesses to either substantiate its defence of the claim or to make good its counterclaim. The notion of calling witnesses appears to have been something of an afterthought which prompted two adjournment applications during the course of the hearing both of which were refused.

 

(v)           The cost warnings given by the claimant's solicitor at the Case Management discussion on 30 August 2016 and a letter dated 26 September 2016 warning that an application for costs would be made on the basis that the respondent in conducting the proceedings (both in defence of the original case and in the pursuance of a counterclaim) had acted vexatiously or unreasonably or that the bringing or the conduct of the proceedings by the respondent had been misconceived and that the counterclaim was unmeritorious and had been belatedly brought by the respondent.

 

We prefer to regard this conduct as unreasonable rather than vexatious. We also regard point (iii) above as falling under the description of conducting the proceedings being misconceived and point (iv) as constituting unreasonable conduct of the proceedings by the respondent and its representative.

The respondent ought to have settled the claimant's modest case at an early stage before making a wholly unsubstantiated counterclaim. But for the counterclaim the issue of costs would in all likelihood never have arisen. The respondent was certainly entitled to contest the case initially and point to the behaviour of the claimant in leaving her job without giving the required 4 weeks' notice or 3 weeks allowing for sickness and leaving the respondent in the lurch. While there may have been some basis for a counterclaim, it was clearly overstated.

 

Having regard to all of these factors we have decided to exercise our discretion to award costs but not at the amount claimed. We consider that the appropriate award in respect of costs is £1,672.00 plus VAT based on 5 hours hearing time and 6 hours preparation time. We consider that irrespective of the respondent's behaviour the claimant would undoubtedly have engaged her solicitor for a number of hours between 22 June 2016 and the hearing date in any event.

 

We therefore consider that the appropriate award to make in respect of costs is £1,672.00 plus VAT at £334.40 giving a total of £2,006.40.

 

AWARD

Balance of Holiday pay £ 300.56

Employment Particulars - 2 weeks wages £ 807.22

Total £1,107.78

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

 

 

 

 

 

Employment Judge:

 

 

Date and place of hearing: 14 October 2016, Belfast

 

 

Date decision recorded in register and issued to parties: