Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1813/17

 

 

CLAIMANT: Radoslaw Tabor

 

RESPONDENT: Crawford Cleanwell Limited

 

 

 

DECISION

 

The decision of the tribunal is as follows:-

 

1. The proper name of the respondent is Crawford Cleanwell Limited, who trade as the Cleanwell Group and the title of these proceedings is amended accordingly.

 

2. The claimant's claims of unlawful wage deductions and breach of contract are
well-founded. T he tribunal orders the respondent, Crawford Cleanwell Limited, to pay to the claimant the total sum of £281.25 in compensation, computed as set out at the conclusion of this decision.

 

 

Constitution of Tribunal:

 

Employment Judge (sitting alone): Employment Judge Sheehan

 

 

Appearances:

 

The claimant appeared and represented himself.

 

The respondent appeared and was represented by Mrs Anne Crawford, a Director of the respondent company.

 

 

REASONS

 

1. By claim dated 12 April 2017 and received in the Office of Industrial Tribunal and Fair Employment Tribunal (OITFET) on 19 April 2017, the claimant made claims against the respondent, in regard to notice pay, arrears of pay, redundancy pay and breach of contract. The respondent presented a response to the tribunal on 31 May 2017, in which the respondent accepted that they had not complied with the legal requirements prescribed by law and while willing to pay redundancy monies and some arrears of pay due and owing to the claimant they disputed any liability for wages accruing from the 9 January 2017 until the claimant's employment was terminated with effect on 19 January 2017. At some date between the receipt of the response and the Case Management Discussion held on 31 July 2017, the claimant had been paid by the respondent monies owing in respect of redundancy. The sum of money owed to the claimant for arrears of pay for hours worked on
17 December 2016 was also paid in advance of the hearing. Accordingly, the tribunal had to determine the remaining complaints concerning unlawful deduction of wages for the period 9 January 2017 to 19 January 2017 as well as damages sustained as a result of the respondent's alleged breach of contract in failing to lawfully "lay off" the claimant if such action was required or to terminate the claimant's employment with notice or payment in lieu of notice.

 

2. The tribunal heard oral evidence from the claimant and from the respondent's representative, Anne Crawford, a Director of the respondent. An initial issue for determination was the proper identity of the respondent as the Statement of Main Terms and Conditions of Employment produced to the tribunal at hearing included reference to "Cleanwell Group Limited" but named in the section for employer's name and address "The Cleanwell Group". After having heard evidence from the respondent that in fact the respondent had changed the name of the company and the employer should be recorded as Crawford Cleanwell Limited, the tribunal ordered the respondent at the completion of the oral evidence that documentary proof should be provided to the tribunal of the correct name of the claimant's employer, which could include certificate of incorporation. There was correspondence, following the completion of the oral hearing, which culminated in submission by the respondent, under cover of letter dated 2 October 2017, of documentary evidence of registration with Her Majesty's Revenue and Commissioners (HMRC) of the company Crawford Cleanwell Limited which was allocated a specific Employer PAYE reference. The numbers on that record of registration appear as the Employer PAYE reference on the P45 and P60 documents furnished to the claimant during his employment for the tax years 2014/2015, 2015/2016 and 2016/2017. Accordingly the tribunal determined on the balance of probabilities that the correct name of the claimant's employer at the time of the termination of his employment in January 2017 was Crawford Cleanwell Limited and the title of the proceedings is amended accordingly.

 

3. In consequence of the oral and documentary evidence adduced at hearing, the tribunal made the following findings of fact, upon the balance of probabilities:-

 

3.1 The claimant, a Polish national, was employed from 30 October 2013 as a cleaner mainly at the designated site of CIPFA at Bridge Street, Belfast. The claimant's employment was permanent upon satisfactory completion of a six month probation period. At the material time, early December 2016, his contractual hours per week were 7.5 hours with wages being paid fortnightly in arrears.

 

3.2 It was not disputed that the claimant, at least by August 2014, had been provided with a Statement of Main Terms and Conditions which included a number of relevant contractual terms for when a situation arose concerning temporary stoppage of work. The Statement of Main terms and Conditions contained the following paragraph:-

 

"12 vi. Layoff

 

Where work is temporarily stopped for any reason beyond the control of the employer, you may be temporarily laid off without payment, other than statutory allowances to which you may be eligible. Promptly upon work becoming available again, you will be notified of the date on which your work will be restarted. Where you have been laid off under this rule your employment shall, for contractual purposes, be deemed to have been continuous throughout the period of lay-off."

 

3.3 The Statement of Main terms and Conditions also contained the paragraph:-

 

"18 Notice Period

 

(i) The period of notice you are required to give in the event of termination of employment is as follows ... more than one month's continuous service 2 weeks.

 

(ii) The period of notice you are entitled to receive in the event of termination of employment is as follows ... more than two years' service but less than 12 years' service 1 week per completed year of service to a maximum of 12 weeks. ..Resignation information MUST be provided in writing to your (Supervisor/Manager/Head of Department) in compliance with the above stated notice requirements ... In certain circumstances the company reserves the right to pay salary in lieu of the entire period of notice or any unexpired period therefore ... Failure to give Cleanwell Group notice of termination as specified in this Statement is a breach of your contract of employment. In the event that you terminate your contract of employment without giving the notice required and in the event of loss or damage to the company as a result of this breach legal action may be taken to compensate Cleanwell Group for the loss of damage suffered."

 

3.4 The claimant had limited language skill in English and had nominated a fellow Polish national to be the conduit for communication between him and his employer. On 8 December 2016 a text was sent by another Director of the respondent,
Michael Crawford, to the claimant's nominated work colleague advising the CIPFA contract was moving elsewhere and the final clean required would be on
17 December 2016. An enquiry was made by text initially as to what was to occur regarding the claimant. The initial response from the respondent was "Maybe i find job for him".

 

3.5 On 9 December 2016 a text was received by the claimant's nominated work colleague from Michael Crawford advising of a job on Airport Road for 15 hours cleaning during morning hours. It was not in dispute that the 15 hour cleaning contract on Airport Road was discussed at a meeting held between Michael, the claimant and his work colleague on 13 December 2016. There was a dispute between the witnesses as to why the claimant did not avail of these alternative contractual hours. The respondent failed to make any record of discussions with the claimant regarding alternative work placements. The only evidence provided by the respondent was of a hearsay nature; allegedly obtained the day before the tribunal hearing by the respondent's representative from Michael Crawford but no note had been made of that conversation. Unfortunately neither Michael Crawford or the nominated work colleague of the claimant had been requested to attend to give evidence direct to the tribunal. The tribunal found more credible the claimant's evidence that no firm offer of that 15 hour contract was made to him by Michael Crawford. There was no reference to the refusal of such an offer of hours in the response filed to the claimant's claim and there appeared to be little reason why the claimant would not accept such an offer.

 

3.6 At the meeting on 13 December 2016 the respondent indicated to the claimant that they had no immediate work to offer the claimant and it was agreed the claimant would avail of accrued holidays for the three weeks commencing on
19 December 2016. The respondent indicated it would hopefully identify some work for the claimant by early January 2017. There was no notice of termination or notice of intent to make him redundant issued to the claimant on 13 December 2016. No notice of intent to "lay off" the claimant in the circumstances was ever issued to the claimant despite the provisions in the claimant's statement of main terms and conditions.

 

3.7 At the material time, the claimant was aged 48 years and he had been continuously employed for 3 years. The claimant commenced paid holiday leave, as evidenced by pay slips provided at the hearing, on 19 December 2016. His leave period ended on 6 January 2017. The tribunal inspected wages records adduced in evidence and determined that the claimant's gross weekly pay was £54.00 and the net weekly pay was £54.00, as the claimant's earnings were apparently insufficient to require deductions by the employer in respect of national insurance or income tax. The hourly rate was based on the national minimum wage.

 

3.8 During or following the termination of the claimant's holiday leave the claimant was not contacted by the respondent directly regarding any alternative work placement. At an unknown date after 8 January 2017 Michael Crawford communicated with the claimant's nominated work colleague, about a possible one hour per week contract for cleaning work for the claimant. The claimant did not find that a suitable or adequate replacement for his 7.5 hour per week contractual entitlement. The claimant requested that his refusal of that contractual variation or replacement be communicated to Michael by his nominated work colleague.

 

3.9 The claimant was not offered any further hours of work following 6 January 2017. The claimant's employment continued as despite a reference to a "last day at work" being 17 December 2016, that statement was undermined by the express agreement to avail of holiday leave with an expressed hope from the respondent to identify work early January 2017. The lack of a P45 and the comments made in an email sent by the respondent dated 24 January 2017 support the conclusion that the claimant's employment was continuing up to 19 January 2017. No payment was tendered to the claimant by the respondent in respect of his contractual entitlement of 7.5 hours per week. The respondent company had ceased to carry on business at the location the claimant was mainly employed to clean. There also had been a reduction of work available for cleaners employed by the respondent including the loss of the premises which was the main task allocated to the claimant. However the respondent did not consider placing the claimant on notice of possible redundancy or initiating the "lay off" contractual provision which existed in the main terms and conditions between these parties because the respondent hoped to identify alternative work in due course. The respondent, after the claimant had communicated his refusal of the offer of one hour work a week, appeared to expect the claimant to agree to receive no payment if no hours of work were offered by the respondent to the claimant. As a result of the respondent's actions the claimant received no payment as wages from 6 January 2017 until his employment was terminated by the respondent. In mid-January 2017, the claimant approached the relevant Agency seeking Job Seeker's allowance {JSA}. As a result of his visit the claimant requested from the respondent proof of termination of his employment, namely a P45 as an application for state benefits could not be processed without that document.

 

3.10 The claimant requested the respondent terminate his employment as he was not offered his contractual hours or payment in respect of his contractual entitlement of 7.5 hours per week. The claimant requested the respondent pay him redundancy in these circumstances. The respondent issued no variation of the main terms and conditions of employment. The respondent appeared reluctant to offer the claimant redundancy as evidenced by an email dated 24 January 2017 from Anne Crawford to the claimant's nominated work colleague, stating that the respondent "didn't want" to terminate the claimant's employment and that they were "still looking for work for Radek". Eventually the claimant submitted a claim to the tribunal as no redundancy payment had been paid. On 7 June 2017 the claimant was paid by the respondent monies representing his entitlement to a redundancy payment as well as payment for two hours' cleaning the claimant completed on 17 December 2016.

 

3.11 The tribunal does not need to make any other findings of fact for the purposes of reaching a decision in the case.

 

THE APPLICABLE LAW

 

4. The Employment Rights (Northern Ireland) Order 1996 (hereinafter referred to as "the 1996 Order") provides at Article 170 (1) (b) that an employer shall pay a redundancy payment to any employee of his if the employee is dismissed by reason of redundancy or is eligible for a redundancy payment (subject to provisions at articles 184 to 187) by reason of being laid off or kept on short time (as defined at Article 182 and 183).

 

4.1 The 1996 Order provides at Article 126 of the 1996 Order that an employee has the right not to be unfairly dismissed by his employer. Article 127(1)(c) states an employee is dismissed by his employer if the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct. Article 130 of the 1996 Order provides for the test of fairness concerning the dismissal by an employer. It is for the employer under the provisions of Article 130(1) (a) to show the reason (or, if more than one, the principal reason) for the dismissal, and under Article 130(1)(b), that it is either a specified reason as set out in Article 130 (2) or some other substantial reason of a kind such as to justify the dismissal. The specified (potentially fair) reasons for dismissal that are set out in Article 130(2) include, amongst others, redundancy. If a tribunal makes a finding of unfair dismissal, and an order for re-engagement or re-instatement is inapplicable, a tribunal may make an order for compensation including both a basic award and a compensatory award. Under Article 153 of the 1996 Order the basic award is calculated with reference to the effective date of termination of employment. For the compensatory award under Article 157 of the 1996 Order, the compensatory award is such amount as the tribunal considers just and equitable having regard to the loss sustained by the complainant in consequence of the dismissal, insofar as that loss is attributable to action taken by the employer.

 

4.2 The Employment (Northern Ireland) Order 2003 ("the 2003 Order") amended the 2006 Order and included provisions, respectively, under Article 17(1) to (4), in relation to non-completion of statutory procedure: adjustment of awards by industrial tribunals and under Article 23, in relation to procedural fairness in unfair dismissal. The Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 also apply. Notwithstanding subsequent changes to the statutory provisions, the dismissal and disciplinary proceedings remain unchanged. Article 130A(1) of the 1996 Order (as amended by the 2003 Order) provides that an employee who is dismissed, whether or not his dismissal is unfair or regarded as unfair for any other reason, is to be regarded as being unfairly dismissed if a statutory dismissal and disciplinary procedure (as set out in the 2003 Order) applies in relation to the dismissal, the procedure has not been completed, and the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements. Schedule 1 to the 2003 Order sets out the statutory dispute resolution procedures which apply to dismissal and disciplinary procedures. Part 1 of Schedule 1 provides for standard and modified dismissal and disciplinary procedures. Article 17(3) of the 2003 Order provides for an adjustment of compensation as follows:- " If, ... it appears to the industrial tribunal that-” the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies, the statutory procedure was not completed before the proceedings were begun, and the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer to comply with a requirement of the procedure, it shall ... increase any award which it makes to the employee by 10 per cent and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50 per cent" . There are multiple jurisdictions set forth in Schedule 2 to the 2003 Order including Article 45 (unauthorised deductions and payments), Article 145 (unfair dismissal) and Article 198 (redundancy payments) from the 1996 Order. There is also listed the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 (referred to as the 1994 Order) for breach of employment contract and contractual monies owed at or arising from termination of employment. However the statutory dismissal procedure has not been extended to include disputes under Article 45 or the 1994 Order.

 

4.3 In regard to the claimant's claim of unlawful wages deductions, Article 45(1) of the 1996 Order provides that: " 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 that: " 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". The Court of Appeal for England and Wales in the case of Delaney v Staples (t/a De Montfort Recruitment) [1991] ICR 331, held that there was no valid distinction to be drawn between a deduction from a sum due, and non-payment of that sum, as far as the relevant statutory provision was concerned. Article 59 of the 1996 Order provides that the definition of "wages", in relation to a worker, means: "... any sums payable to the worker in connection with his employment, including - (a) any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise...", subject to certain statutory exceptions which do not apply to the facts of this case.

 

4.4 The 1996 Order, Article 118, provides a statutory minimum period of notice required to be given by an employer to terminate the contract of employment of an employee. In the absence of evidence of enhanced contractual terms, this minimum statutory notice is deemed to be incorporated into any contract of employment. It is a breach of contract on the part of any employer to fail to provide either pay in lieu of notice or the due notice on termination of employment. A breach of contract claim may be brought under the terms of the 1994 Order. This enables employees to recover sums due under contracts of employment which arise or are outstanding upon termination of any employment.

 

4.5 Article 60 of the 1996 Order - Right to guarantee payment

 

(1) Where throughout a day during any part of which an employee would normally be required to work in accordance with his contract of employment the employee is not provided with work by his employer by reason of-”

 

(a) a diminution in the requirements of the employer's business for work of the kind which the employee is employed to do, or

 

(b) any other occurrence affecting the normal working of the employer's business in relation to work of the kind which the employee is employed to do,

 

the employee is entitled to be paid by his employer an amount in respect of that day.

 

(2) In this Order a payment to which an employee is entitled under paragraph (1) is referred to as a guarantee payment.

 

4.6 Article 63 of the 1996 Order - Limits on amount of an entitlement to guarantee payment

 

(1) The amount of a guarantee payment payable to an employee in respect of any day shall not exceed £25.90 (relevant cap from
14 February 2016)

 

4.7 Article 64 of the 1996 Order - Contractual remuneration

 

(1) A right to a guarantee payment does not affect any right of an employee in relation to remuneration under his contract of employment ("contractual remuneration").

(2) Any contractual remuneration paid to an employee in respect of a workless day goes towards discharging any liability of the employer to pay a guarantee payment in respect of that day; and, conversely, any guarantee payment paid in respect of a day goes towards discharging any liability of the employer to pay contractual remuneration in respect of that day.

(3) For the purposes of paragraph (2), contractual remuneration shall be treated as paid in respect of a workless day-”

 

(a) where it is expressed to be calculated or payable by reference to that day or any part of that day, to the extent that it is so expressed, and

 

(b) in any other case, to the extent that it represents guaranteed remuneration, rather than remuneration for work actually done, and is referable to that day when apportioned rateably between that day and any other workless period falling within the period in respect of which the remuneration is paid.

 

4.8 Article 182 of the 1996 Order - Meaning of "lay-off" and "short-time"

 

(1) For the purposes of this Part an employee shall be taken to be laid off for a week if-”

 

(a) he is employed under a contract on terms and conditions such that his remuneration under the contract depends on his being provided by the employer with work of the kind which he is employed to do, but

 

(b) he is not entitled to any remuneration under the contract in respect of the week because the employer does not provide such work for him.

 

(2) For the purposes of this Part an employee shall be taken to be kept on short-time work for a week if by reason of a diminution in the work provided for the employee by his employer (being work of a kind which under his contract the employee is employed to do) the employee's remuneration for the week is less than half a week's pay.

 

THE TRIBUNAL'S DETERMINATION

 

5. In this case, the tribunal notes that the respondent failed to exercise the power to "lay off" the claimant from his employment with effect from 9 January 2017, being the week immediately occurring after the claimant's agreed period of paid holiday leave finished. Further by failing to initiate a "lay off" in accordance with statute the respondent failed to direct its mind to any payment due to the claimant. The result was the claimant was neither provided with a guarantee payment nor any payment reflecting his contractual hours as wages.

 

5.1 Undoubtedly there was diminution in the requirements of the employer's business for cleaners at the relevant time. There was some indication, but solely orally, that the lack of contractual hours was anticipated to be temporary. However there was no agreed or specific review date for the contractual situation pertaining to the claimant notified to the claimant. (See Abercrombie v AGA Range Master Ltd (2013) IRLR 953). I am satisfied, on the evidence available to this tribunal, that the claimant was not consulted nor did he agree to receiving no payment in respect of his contractual hour's entitlement where no offer of contractual hours was made to him. It was not clear to this tribunal that he fully understood why the lack of payment or hours of work had been imposed.

 

5.2 I am satisfied that during the relevant period from 9 January 2017 until the
19 January 2017 when the claimant requested the respondent terminate the claimant's contract of employment by reason of redundancy, the claimant could have been placed on "short time working" as defined in Article 182 of the 1996 Order when he was offered one hour a week in place of a 7.5 hour week. As confirmed in Harvey on Industrial Relations and Employment Law Section E para 1943:-

 

"The employer has no unilateral right to impose a period of short time working. He needs to be able to point to a term of the contract, express or implied, which allows him to vary or reduce the normal working hours. Failing that, any attempt to impose a period of short time working will be a breach of contract, and probably a repudiatory breach to boot. If there is a repudiatory breach, the employee may either quit, claim constructive dismissal, and seek redundancy payment on the basis that he is dismissed by a reason of redundancy. ( Millar v Hamworthy Engineering Ltd (1986) IRLR461) or else he may affirm the continued existence of the contract, remain in employment for the time being, and then utilise the time LOST provisions."

 

5.3 These LOST provisions are contained in Articles 183-187 of the 1996 Order. They are somewhat technical, not only in relation to time limits but also in relation to the giving of relevant written notice of intention to claim. On the facts as found by this tribunal, as set out above, I am satisfied that neither the claimant nor the respondent activated, at any time, the LOST provisions.

 

5.4 The claimant did not terminate his contract of employment and claim constructive dismissal on the grounds that the respondent, by failing to make him any payment in respect of his contractual entitlement, had breached his contract in such a way that constituted a repudiatory breach entitling him to terminate his contract in response to the said breach. The claimant did not press the respondent to conduct a redundancy selection procedure amongst all the relevant cleaning staff.

 

5.5 The employment was terminated without notice or pay in lieu of notice by the employer on 19 January 2017. Paragraph 12 (i) of the claimant's statement of main terms and conditions contracted the claimant to work 7.5 hours per week. The same paragraph reserved the right of the respondent to review shift pattern/normal working hours from "time to time to suit business and/or customer requirements". However in the event that such an action was required the respondent undertook that an employee "will be consulted as soon as is reasonably practicable". The same provision only permitted the loss of one or all of the above hours for the stated reason, namely, a failure to maintain standards. The tribunal concluded that those standards related to cleaning duties or working procedures practices and requirements set out in the statement of main terms and conditions. The respondent belatedly accepted that there was in fact a redundancy situation arising out of the loss of the cleaning contract for the CIPFA premises where the claimant had worked prior to his holiday leave in December 2016. It appeared to this tribunal once no alternative work placement arose following 9 January 2017, the respondent should have been considering "lay off" as provided for in paragraph 12 (vi) of the statement of main terms and conditions or redundancy. As a result of the respondent failing to even consider "lay of" or the contractual entitlement due to the claimant, there was in fact no warning of redundancy given in early January 2017 and no prior consultation on the employer's part concerning the claimant's selection for redundancy.

 

5.6 The law on termination of employment for grounds of redundancy is well-settled. The general law is in accordance with the guidelines as set out in the case of Williams  v Compair Maxam Ltd [1982] IRLR 83 EAT, which were approved by the Court of Appeal in Northern Ireland in Robinson  v Carrickfergus Borough Council [1983] IRLR 122. The general importance of adhering to procedural safeguards has been emphasised by the House of Lords (per Lord Bridge) in the case of Polkey  v AE Dayton Services Ltd [1987] IRLR 503 . It is sufficient to say that as a result of the respondent's inaction on their contractual obligations there was no proper warning and no consultation of redundancy provided to the claimant. Further there was very little evidence produced by the respondent, other than a text concerning possible one hour per week cleaning, of the endeavours made by the respondent to explore possible re-deployment or any other course of action. The scarcity of information made it impossible for the tribunal to assess whether warning and consultation would have been utterly futile. In these matters the tribunal normally looks to issues of procedural fairness. The respondent can perhaps be considered somewhat fortunate that the claimant made no allegation of unfair dismissal, given the lack of process or meetings preceding the claimant requesting the respondent to bring his employment to an end.

5.7 No statutory dismissal procedures were invoked by the respondent in effecting the termination. Such a failure, had there been a claim of unfair dismissal before the tribunal, would make the claimant's dismissal automatically unfair under the provisions of Article 130A of the 1996 Order. This tribunal does not have to consider the relevance of the failure to follow the statutory dismissal procedure in respect of the claimant's claims for unlawful deductions of wages and breach of contract.

 

6. There is no dispute between the parties that the respondent failed to pay the claimant any monies for the period running from the 9 January 2017 to the 19 January 2017 when the claimant was still in the employment of the respondent. The tribunal has concluded on the balance of probabilities that this failure to pay the claimant wages for that period is an unlawful deduction of the claimant's wages. Further this unlawful act led to the claimant pressing the respondent to regularise his employment/contractual situation, even if it was not phrased in those terms. The respondent terminated the claimant's employment on 19 January 2017 without notice for the reason that the company had a redundancy situation within the meaning of Article 174 of the 1996 Order. While no redundancy payment was tendered by the respondent upon issuing the P45, prior to the hearing before the tribunal the claimant received the redundancy monies due in respect of his three years of service from the respondent.

 

7. The claimant also brought a breach of contract claim under the 1994 Order. This enables employees to recover sums due under contracts of employment which arise or are outstanding upon termination of any employment. The claimant had a contractual entitlement to notice of one week per completed year of service (other than in a case of dismissal by the employer for gross misconduct by the employee) under his statement of main terms and conditions of employment. The tribunal concluded that the claimant was entitled to three weeks' pay in lieu of notice when he was dismissed by the respondent, without notice.

 

8. The claimant made the submission in the letter dated 16 August 2017 from his Trade Union, which was forwarded to the respondent by email in advance of the hearing date, that the claimant believed that as his hourly rate of pay was aligned with the national minimum wage, any award in respect of his claim for payment of wages or notice pay should be in accordance with the current national minimum wage applying from April 2017; £7.50 in place of the rate being paid to him at the date of dismissal, £7.20. Section 17 of the National Minimum Wage Act 1998 (hereinafter referred to as the 1998 Act) provides:-

 

17 Non-compliance: worker entitled to additional remuneration.

 

(1)           If a worker who qualifies for the national minimum wage is remunerated for any pay reference period by his employer at a rate which is less than the national minimum wage, the worker shall be taken to be entitled under his contract to be paid, as additional remuneration in respect of that period, the amount described in subsection (2) below.

 

(2) That amount is the difference between-”

 

(a) the relevant remuneration received by the worker for the pay reference period; and

 

(b) the relevant remuneration which the worker would have received for that period had he been remunerated by the employer at a rate equal to the national minimum wage

 

9. This tribunal has concluded, in light of the provision made in Section 17 of the 1998 Act set out above, the claimant, in respect of pay in lieu of contractual notice, should receive from the respondent a sum of £168.75 (7.5 hours x £7.50 = £56.25 x 3 = £168.75).

 

10. At the time of the dismissal, the claimant's last payment in respect of wages was received in relation to the agreed holiday leave ending on week commencing
6 January 2017. A further two working weeks, short of one day, occurred prior to the respondent terminating the claimant's employment with effect on 19 January 2017. This tribunal concluded, reflecting s17 of the 1998 Act, a week's pay at the hourly rate of £7.50 amounted to £56.25. The claimant was owed two weeks' pay which amounts to £112.50 (£56.25 x 2 = £112.50).

 

11. The tribunal finds the claimant's claims in respect of unlawful deduction of wages and breach of contract (failure to pay wages in lieu of notice) successfully made out. The tribunal makes an award of compensation in favour of the claimant against the respondent, Crawford Cleanwell Ltd and Orders that respondent to pay to the claimant as follows:-

 

(a) Award for failure to pay wages in lieu of notice

 

£56.25  x 3  = £168.75.

 

(f) Unpaid Wages due

 

£56.25  x 2  = £112.50.

 

Total Award

The total award is £281.25.

Recoupment of Benefit from Awards

 

12. The Employment Protection (Recoupment of Job Seeker's and Income Support) Regulations (Northern Ireland) 1996 do not apply to the awards made in respect of this claimant.

 

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

 

 

Employment Judge:

 

 

Date and place of hearing: 29 August 2017, Belfast.

 

 

Date decision recorded in register and issued to parties: