Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REFS: 5446/18

5447/18

5448/18

 

 

 

CLAIMANTS: Nigel Wilson

Alisdair Taylor

Mark Robert Johnson

 

 

RESPONDENTS: 1. Ashland Chemicals & Hygiene Supplies Ltd

2. Ian Ashfield

 

 

 

DECISION

(1) The decision of the tribunal is that the claimants, at all relevant times, were employed by the first-named respondent Ashland Chemicals & Hygiene Supplies Ltd.

 

(2) The second-named respondent is dismissed as a respondent to these proceedings.

 

(3) The decision of the tribunal is that the claimants' claims of wages, holiday pay and notice pay were lodged outside the statutory time limit and the tribunal has no jurisdiction to deal with same.

 

(4) The tribunal awards Mr Nigel Wilson £809.00 in respect of redundancy pay.

 

 

 

Constitution of Tribunal:

 

Employment Judge (sitting alone): Employment Judge Orr

Appearances:

 

The claimants appeared in person and were not represented.

 

The first-named respondent was not represented.

 

The second-named respondent was represented by Mr S McGranaghan, Solicitor, O'Reilly Stewart Solicitors.

 

BACKGROUND

 

1. The claimants, at the relevant times were employed at a workplace in Ballykelly, County Derry/Londonderry. It is common case between the parties that on 7 December 2017 the business of Ashland Chemicals & Hygiene Supplies Ltd, (first-named respondent) ceased to operate.

 

2. At a Case Management Discussion on 22 October 2018, it was agreed between the parties (the claimants and both respondents) that the claimants were owed the following:-

 

Mr Nigel Wilson

 

1. £270.00 in respect of wages.

2. £432.00 in respect of holiday pay.

3. £416.00 in respect of notice pay.

4. £809.00 in respect of redundancy pay.

Mr Alisdair Taylor

 

1. £270.00 in respect of wages.

2. £718.00 in respect of holiday pay.

3. £245.00 in respect of notice pay.

Mr Mark Robert Johnson

 

1. £270.00 in respect of wages.

2. £394.00 in respect of holiday pay.

3. £245.00 in respect of notice pay.

 

3. The claimants issued tribunal proceedings against Ashland Chemicals & Hygiene Supplies Ltd and Mr Ian Ashfield. The second-named respondent Mr Ian Ashfield asserts that he did not employ the claimants and that the correct respondent is Ashland Chemicals & Hygiene Supplies Ltd.

 

4. It is common case between the parties that Mr Nigel Wilson's claim in relation to redundancy pay has been brought within the requisite statutory time-limit under Article 199 of the Employment Rights (Northern Ireland) Order 1996 namely before the end of the period of six months beginning with the relevant date.

 

ISSUES

 

5. The issues to be determined by the tribunal are as follows:-

 

(1) Who is the claimants' employer and the correct respondent to these proceedings?

 

(2) In respect of the claimants' claims for wages, holiday pay and notice pay, have these claims been issued within the relevant statutory time-limit, namely, "before the end of the relevant period of three months ... or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for a complaint to be presented before the end of the relevant period of three months".

 

THE RELEVANT LAW

 

The Employment Rights (Northern Ireland) Order 1996 (as amended) provides, in so

far as is relevant to these proceedings:

 

6. Article 3(1) In this Order "employee" means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

 

(2) In this Order "contract of employment" means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

(3) In this Order "worker" means an individual who has entered into or works under (or, where the employment has ceased, worked under)-”

(a) contract of employment, or

(b)        any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;

and any reference to a worker's contract shall be construed accordingly.

(4) In this Order "employer", in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed.

(5) In this Order "employment"

(a) in relation to an employee, means (except for the purposes of Article 206) employment under a contract of employment, and

(b) in relation to a worker, means employment under his contract;

and "employed" shall be construed accordingly."

 

7. Article 45 (1) provides:

"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".

 

8. Article 45(3) provides:

"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".

 

9. Article 59 (1) of the 1996 Order provides, in so far as is relevant, the definition of "wages" -

 

"..... 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...",

 

10. Article 55 provides

(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...........

(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,

...

 

(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.

 

Working Time Regulations (Northern Ireland) 2016, provides, in so far as is relevant:

 

11. Regulation 43 (2) Subject to regulation 44, an industrial tribunal shall not consider a complaint under this regulation unless it is presented-”

(a)       before the end of the period of three months........... beginning with the date on which it is alleged that the exercise of the right should have been permitted ........; or

(b)       within such further period as the tribunal considers reasonable in a case where it is satisfied that the was not reasonably practicable for the complaint to be presented before the end of that period of three months.

 

RELEVANT FINDINGS OF FACT AND DECISION

 

12. The factual circumstances in relation to the termination of the claimants' employment are not disputed between the parties. Furthermore the amounts due and owing to the claimants as set out above are not disputed and have been agreed between the parties.

 

13. Mr Alisdair Taylor was employed from 9 September 2016 in an office administration role. Mr Nigel Wilson was employed from 30 March 2015 as a Warehouse Operator/Driver and Mr Mark Johnson was employed as a Warehouse Operator/Driver from August 2016.

 

14. It was common case that on 7 December 2017, Mr Ashfield advised the claimants that the business was closing with immediate effect.

 

15. The tribunal was referred to a considerable number of documents including the claimants' payslips, bank statements, statement of main terms and conditions, application forms, auto enrolment letters, P60s, P45s and HMRC correspondence; throughout all these documents, the relevant reference to the employer was "the company" or "Ashland Chemicals" or "Ashland Chemicals Hygiene Supplies" or "Ashland Chemicals Hygiene and Hygiene Supplies Limited".

 

The tribunal in particular, considered the following to be relevant:

 

a.     Mr Taylor's application for employment, dated 10 January 2016 to Ashland Chemicals Hygiene Supplies states:-

 

"Dear Mr Ashfield

 

In response to the opportunity of the position of Office/Accounts Administrator within your company, (tribunal's emphasis) I am enclosing my CV for your review".

 

b.     The STATEMENT OF MAIN TERMS AND CONDITIONS OF EMPLOYMENT contained the following words "this Statement sets out the terms and conditions which Ashland Chemicals, (tribunal's emphasis) Unit E, Aghnaloo Industrial Estate, BT49 OHE employs ..."

 

Throughout this document and its appendices - reference is made to "the company" under the various sub-paragraphs, for example, under the heading " Customary Holidays" it states, " the company (tribunal's emphasis) recognises the following 10 Customary Holidays with pay".

 

c.     The induction checklist commences: - "Introduction to the Company" (tribunal's emphasis) which has been signed by both Mr Wilson and Mr Taylor.

 

d.     A witness statement signed by Mr Johnston, in relation to a personal injury claim of a fellow employee, contained the statement, "I have been employed by Ashland Chemicals (tribunal's emphasis) since August 2016 but I had previously worked for them for nine months in 2015".

 

e.     Mr Taylor's bank statements recorded his wages as being paid by Ashland Chemicals, his payslips identified his employer as "ASHLAND CHEMICALS & HYGIENE", his P60 stated "ASHLAND CHEMICALS & HYGIENE" and his P45 identifies his employer as "ASHLAND CHEMICALS & HYGIENE".

 

f.      Mr Johnson's payslips identified his employer as "ASHLAND CHEMICALS & HYGIENE" and his P45 identifies his employer as "ASHLAND CHEMICALS & HYGIENE".

 

g.     Mr Wilson's bank statements recorded his wages as being paid by Ashland Chemicals, his payslips identified his employer as "ASHLAND CHEMICALS & HYGIENE" and his P45 identifies his employer as "ASHLAND CHEMICALS & HYGIENE".

 

h.     A photograph of the first-named respondent's premises showed a large sign above the entrance door which stated "Ashland Chemicals & Hygiene Supplies Ltd".

 

i.       Mr Johnson received a first written warning dated 20 November 2015 on company letterhead which stated "Ashland Chemicals & Hygiene Supplies Ltd". The warning related to smoking in the "company vehicle" and was signed by Mr Ashfield as Managing Director. Mr Johnson signed this document.

 

j.       By letter dated 11 July 2017 all claimants received information in relation to automatic enrolment into a workplace pension as follows:-

"(1) Automatic enrolment is new legislation which means that all employers must enrol their workers into a workplace pension scheme automatically. I am writing to you to inform you about this new legislation and that it affects "ASHLAND CHEMICALS & HYGIENE" from 1 October 2016.

(2) All employees working for "ASHLAND CHEMICALS & HYGIENE" need to be enrolled into a workplace pension scheme if they are not already in one."

 

16. In cross examination each of the claimants confirmed that the documentation in relation to their employment at all times referred to "Ashland Chemical" or "Ashland Chemicals & Hygiene" or "Ashland Chemicals & Hygiene Ltd" as their employer. All claimants accepted in cross-examination that HMRC records confirmed their employer to be Ashland Chemicals & Hygiene Supplies Ltd.

17. The claimants contended that omission, in some of the documentation referred to above, to include the word "limited" alongside the company name, in some way affected their understanding of the identity of their employer. All claimants confirmed to the tribunal that no documentation existed which identified
Mr Ian Ashfield as their employer.

18. Mr Wilson and Mr Johnson accepted in cross-examination that the company was their employer.

19. Given the above findings of fact, the tribunal determines that at all relevant times the claimants were employed by Ashland Chemicals and Hygiene Supplies Limited and not Mr Ian Ashfield.

 

 

Time Limit Issue

 

20. The time-limit for bringing claims in relation to breach of contract, unlawful deduction from wages and holiday pay under the Working Time Regulations are substantially the same specifically:-

"An Industrial Tribunal is not entitled to consider a complaint of unlawful deduction from wages unless it is presented to the tribunal;

(a) before the end of the period of three months, beginning with the deduction, or

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months".

 

21. The issues to be determined in respect of the relevant time-limits are as follows:-

 

(1) Were the claims presented before the end of the time-limit of three months?

 

(2) Is the tribunal satisfied that it was not reasonably practicable for the claims to be presented before the end of that primary time-limit?

 

(3) If the tribunal is so satisfied, was the claim presented within such further period as is reasonable?

 

22. The claimants were advised on 7 December 2017 that their employment was being terminated due to the cessation of the first named respondent's business. Therefore, the time limit to lodge their claims in the Tribunal office expired on
7 March 2018. The claims were presented on 20 March 2018.

 

23. It is not disputed that the claimants were advised by Mr Ashfield on
7 December 2017 to contact the company accountant and to complete a redundancy payment application. It is clear from the evidence that Mr Taylor took the lead in relation to this process and that the claimants completed their respect forms together. The evidence of Mr Wilson and Mr Johnson was that they were relying on Mr Taylor in relation to bringing their claims before the tribunal and indeed their application to the Redundancy Payments Branch.

 

24. It was Mr Taylor's evidence that he went to Mr Ashfield sometime after having received a letter dated 27 February 2018 from the Northern Ireland Redundancy Payments Branch which confirmed that the respondent was not insolvent and that

"we cannot make any payments to you until you have taken all reasonable steps to obtain payment from your employer; this includes applying to an Industrial Tribunal claiming the payment from your employer".

25. Mr Taylor was unable to confirm when he received the letter from the Redundancy Payments Branch or the date that he had gone to Mr Ashfield - his evidence was that it was either 3 or 5 March 2018 and in his claim to the Tribunal dated
20 March 2018 he states he received the letter on 2 March 2018. He also confirmed, in evidence, that he contacted the job centre to obtain the tribunal forms but was unfortunately provided with the incorrect forms - namely those for GB and it was only when he attempted to find an address to lodge the tribunal forms that he became aware of this mistake. He then searched on-line, located the correct NI forms, downloaded same and lodged with the tribunal via post on
20 March 2018. His evidence to the tribunal was that he did not seek to submit the claims online, he had taken advice from Limavady Community Development and he had foolishly made a mistake regarding the time limit.

26. The tribunal was not provided with a copy of the incorrect forms that had been forwarded to ACAS however the certificate of "early conciliation" from ACAS confirmed receipt of an early conciliation certificate notification on 14 March 2018.

27. What is reasonably practicable is a question of fact and a matter for the tribunal to decide. The onus of proving that presentation in time was not reasonably practicable rests with the claimant in any case.

28. The Court of Appeal in Palmer and Another v Southend-on-Sea Borough Council (1984) ICR 372, concluded that "reasonably practicable" does not mean reasonable, which would be too favourable to employees, and does not mean physically possible, which would be too favourable to employers, but means something like "reasonably feasible".

29. The EAT in Trevelyans (Birmingham) Ltd v Norton (1991) ICR 488 held that when a claimant knows of his or her right to complain of [unfair dismissal], he or she is under an obligation to seek information and advice about how to enforce that right.

30. The claimants were aware, after receipt of letter dated 27 February 2018 from Redundancy Payments Service that the redundancy payments branch was not making any payment to them and that they had to enforce their rights elsewhere including through an Industrial Tribunal as per the contents of that letter. In his claim form and in evidence, Mr Taylor was clear that upon receipt of the correspondence from Redundancy Payments Branch he understood that he had to issue "employment/tribunal proceedings". It was therefore incumbent on him and the other claimants to make reasonable enquiry as to what was required of them. There was no evidence before the Tribunal of the claimants collectively or individually making reasonable enquiry in relation to bringing a tribunal claim or the requisite time limits for doing so. Mr Taylor clearly had knowledge of an actionable claim as he approached the job centre and Limavady Community Development Initiative for advice; he made online searches for the NI tribunal forms and downloaded and printed these for each claimants. Mr Taylor confirmed that he downloaded and printed the NI tribunal claim forms from an online source but was unable to identify this source. He provided no explanation to the tribunal as to why he did not submit the claim online and accepted that he was possibly aware that he could submit the claim on-line but failed to do so. The tribunal finds that each claimant was aware after receipt of the letter dated 27 February 2018 that they had to enforce their rights through an Industrial Tribunal as per the contents of that letter as they were not receiving any payments from the Redundancy Payments Service.

31. The claimants did not provide evidence of any practical impediment to lodging the claims or evidence of why it was not "reasonably feasible" for them to present their claims within the 3 month period. The claimants have been unable to satisfy the tribunal that it was not reasonably practicable for them to present their claims within the statutory time limit. Furthermore there was no explanation as to why the claim forms were not lodged until 20 March 2018 when the claimants became aware from 5 March 2018 (at the latest) of the requirement to bring tribunal proceedings.

 

32. Accordingly the claimants' claims of holiday pay, notice pay and unauthorised deductions from wages were not presented within time and the tribunal has no jurisdiction to hear these claims.

 

 

 

 

 

Employment Judge:

 

 

Date and place of hearing: 8 November 2018, Belfast.

 

 

Date decision recorded in register and issued to parties: