Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 873/17

 

 

 

CLAIMANT: Amanda Smith

 

 

RESPONDENT: Department for the Economy

 

 

 

REASONS (FOR LIABILITY DECISION)

 

Constitution of Tribunal:

Employment Judge: Employment Judge Buggy

Members: Mrs C Stewart

Mr I Rosbotham

 

Appearances:

The claimant was self-represented.

The Department was represented by Mr McEvoy, Barrister-at-Law.

 

REASONS

 

1. The claimant was employed in a Card Land shop in Newtownards for several years until 25 January 2017. On that date she received an email, notifying her of her dismissal, with immediate effect, from that employment. According to that email, redundancy was the reason for the dismissal.

 

2. In March 2017, the company which used to be known as Greetings International Ltd ("Greetings International") went into compulsory liquidation.

 

3. The claimant applied to the respondent Department ("the Department"), in its role as the statutory guarantor in respect of certain employment debts. In that application, she asserted that, in January 2017, Greetings International had dismissed her from the relevant employment, and she sought payments in respect of holiday pay, notice pay and redundancy pay.

 

4. The Department rejected that application. In doing so, the Department acted in good faith and in a manner which was consistent with the limited information which was then available to the Department.

 

5. The rejection was entirely based on the following:

 

(1) It seemed to the Department that, with effect from 24 October 2016, the claimant may have been dismissed as an employee of Greetings International and may then have been offered and accepted an offer of employment from another firm, GIS Staff Ltd ("GIS"), whereby she continued to work in the same shop, at the same pay, doing the same job as she had already been doing at the beginning of October 2016.

 

(2) It seemed to the Department that, on or about 24 October 2016, there may have been a "TUPE" transfer, in October 2016, from Greetings International to GIS, of an entity (the Newtownards Card Land shop) to which the claimant was assigned at the time of that transfer.

 

6. The claimant appealed against those rejection decisions, pursuant to Articles 205 and also pursuant to Article 233 of the Employment Rights (Northern Ireland) Order 1996 ("the ERO").

 

7. The main hearing of those appeals took place on 25 September 2017.

 

8. We decided that the appeals were well-founded.

 

9. At the end of the hearing, we informed the participating parties of the outcomes of the claimant's appeals, and of the main reasons for those outcomes. At the same time, we told the parties that we would provide written reasons in due course. These are those written reasons.

 

10. The Department accepted that the appeals should be successful if this claimant had not ceased to be employed by Greetings International in October 2016 and if there had been no TUPE transfer, of a relevant entity, at around that time.

 

11. These appeals have been successful, in this case, because we were satisfied that the claimant did not cease to be an employee of Greetings International in October 2016, or at any time prior to the date of the purported dismissal in January 2017; because we were satisfied that the claimant's employment with Greetings International continued between October 2016 and 25 January 2017; and because we were satisfied that there was no TUPE transfer.

 

12. The propositions that the claimant was dismissed by Greetings International in October 2016, and that she immediately thereafter became an employee of GIS, are both based upon the wording of a letter which Greetings International sent to the claimant on or about 24 October 2016.

 

13. We looked carefully at the terms of the letter of 24 October 2016. We were satisfied that that letter did not constitute an unambiguous notification of dismissal by Greetings International and that it did not constitute an unambiguous offer of employment by GIS. Instead, we were sure that a reasonable reader, reading the letter within the relevant context (the context of the relationship between the claimant and Greetings International in October 2016) would have concluded that the relevant letter was merely informing the claimant of new administrative arrangements, which Greetings International was making, in relation to the sourcing and processing of her salary, in respect of the claimant's continuing employment, by Greetings International, in the Newtownards Card Land shop.

 

14. We were also sure that there was no TUPE transfer of the Newtownards shop, in October 2016 or at any time prior to 25 January 2017, from Greetings International to GIS. We were so satisfied, mainly because of the cumulative effect of the following findings of fact, which we made during the process of deciding these appeals.

 

(1) Throughout October 2016 and until 25 January 2017, the Newtownards Card Land shop was the entity to which the claimant was assigned, for TUPE purposes.

 

(2) Between 1 October 2016 and 25 January 2017, there was no transfer, from Greetings International to GIS, of any of the relevant shop's staff.

 

(3) Throughout the same period, the relevant shop premises continued to be in the hands of Greetings International.

 

(4) Throughout that period, there was no transfer of the brand name, to GIS.

 

(5) Throughout that period, there was no transfer of machinery, or of furniture, from Greetings International to GIS.

 

 

 

 

 

Employment Judge:

 

 

Date and place of hearing: 25 September 2017, Belfast.