Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  9845/18

 

 

CLAIMANT:              Jolene Francey

 

RESPONDENTS:   1.         Kevin Connolly

                                    2.         Simone Cairns

 

 

DECISION

 

1.            The tribunal is unanimously satisfied that the claimant was dismissed from her employment by the respondents on the ground of redundancy.

 

2.            The tribunal is unanimously satisfied that failure to follow or complete a procedure set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 was wholly or mainly attributable to a failure by the respondents to comply with its requirements.

 

3.            The claimant was therefore unfairly dismissed for the purposes of Article 130A of the Employment Rights (Northern Ireland) Order 1996.  The tribunal orders the respondents to pay to the claimant the sum of £500.

 

4.            The tribunal is unanimously satisfied that the respondents failed to pay to the claimant her notice pay.  The respondents are therefore ordered to pay to the claimant the sum of £125.

 

5.            The tribunal is unanimously satisfied that the respondents owe to the claimant payment for 18.96 hours of her holiday pay entitlement.  The respondents are therefore ordered to pay to the claimant the sum of £113.73.  

 

 

Constitution of Tribunal:

 

Employment Judge:                      Employment Judge Browne

 

Members:                                         Mrs E Gilmartin

                                                            Mr I Atcheson

 

 

Appearances:

 

The claimant represented herself.

 

The respondents represented themselves.

 

 

 

 

EVIDENCE AND FACTS FOUND

 

1.            The claimant worked for the respondents from the end of August 2016 until 30 June 2018 in their children’s play centre business, run by them as an unincorporated partnership, at rented premises.

 

2.            On 29 June 2018, the claimant was on holiday in Portugal with her family when she was informed by the second respondent that the business was closing with immediate effect.  The explanation from the second respondent was that she did not want to get in to debt.

 

3.            The claimant had tried to contact her the previous day after worrying messages from work colleagues.

 

4.            The claimant had asked the second respondent at least a month earlier about the security of her job, as she had a number of concerns arising from her own observation of the business.  The second respondent had assured her that there was no need to worry.

 

5.            The claimant had completed only one year’s full service; she accepts that she is not entitled to a redundancy payment.

 

6.            No notice payment was paid to the claimant; the respondents’ answer to this was that she could not have worked her notice period of one week because she was abroad on holiday.

 

7.            On 29 June, the claimant was paid two weeks’ holiday pay.  It was her case that the respondents still owed her 18.96 hours’ holiday pay, less an unexplained overpayment made on 21 September 2018.  The claimant told the tribunal that she made a point of recording her holidays, which practice previously had enabled her to tell the second respondent that she had overpaid the claimant.

 

8.            The respondents produced documentary evidence, which they claimed was a record of her holiday entitlement, but were unable to produce the source of that information.

 

9.            There was also a dispute between the parties about the claimant’s P45, which she claimed had not been forwarded to her, making it impossible to claim any benefits.

 

10.         The respondents told the tribunal that the decision to close the business came as a result of the landlord suddenly unilaterally increasing the rent, to a level which they could not afford.  This explanation stood in stark contrast to the response form submitted by the first respondent in reply to the claimant’s initial complaint to the tribunal.  In it, he stated: “the landlord revoked our lease due to rent arrears”.    

 

THE LAW

 

11.         Article 130 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) provides that:-

 

“(1)      In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –

 

(a)       the reasons (or, if more than one, the principal reason) for the dismissal, and

 

(b)       that it is either a reason falling within Paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

 

(2)       A reason falls within this paragraph if it –

 

...

 

(c)       is that the employee was redundant,

 

...

 

(4)       Where the employer has fulfilled the requirements of Paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –

 

(a)       depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

 

(b)       shall be determined in accordance with equity and the substantial merits of the case.”

 

12.         A redundancy is defined in Article 174 of the 1996 Order as follows:

 

“174(1)    for the purposes of this Order an employee who is dismissed shall be taken to be dismissed by reason of redundancy if a dismissal is wholly or mainly attributable to –

 

(a)       the fact that his employer has ceased or intends to cease –

 

(i)       to carry on the business for the purposes of which the employee was employed by him, or

 

(ii)     to carry on that business in the place where the employee was so employed, or

 

(b)       the fact that the requirements of that business –

 

(i)       for employees to carry out work of a particular kind, or

 

(ii)     for employees to carry out work of a particular kind in the place where the employee was employed by the employer,

 

have ceased or diminished or are expected to cease or diminish.”

 

13.         Article 130A of the 1996 Order is concerned with the procedural fairness of dismissals.  Employees are regarded as unfairly dismissed if the statutory dismissal procedure was not complied with and the failure to comply was attributable to the employer.

 

14.         By Article 130A (1) of the 1996 Order where the statutory dismissal procedure is applicable in any case and the employer is responsible for non-completion of that procedure, the dismissal is automatically unfair.  A tribunal is required to consider whether the dismissal is automatically unfair under article 130A even where this issue has not been specifically raised by the claimant - see Venniri v Autodex Ltd (EAT 0436/07).

 

15.         When considering the termination of any employment the employer must follow the three-step procedure set out in Schedule 1 of the 2003 Order.  Paraphrasing that schedule, the procedure for a redundancy dismissal is:-

 

“(i)       The employer must set out in writing the circumstances which lead him to contemplate dismissing the employee as redundant, and must send a copy to the claimant and invite the employee to a meeting to discuss it.

 

(ii)        There must be a meeting.  The employee must be told of the decision and of his right to appeal.

 

(iii)       If the employee wishes to appeal, there must be an appeal meeting and the employee must be told of the decision.”

 

CONCLUSIONS

 

16.         The tribunal considered the claimant to be a much more credible and compelling witness than the respondents.  This was supported by the disparity between the documentary evidence of the first respondent’s response form and what the respondents told the tribunal as to the circumstances of the closure of the business.

 

17.         Those circumstances disclosed a clear picture of the business being in financial difficulties for some time, as evidenced by the failure to pay rent.  The claimant’s own observations had made her sufficiently concerned to ask about it.

 

18.         It therefore must have been known to the respondents that there was an increasing likelihood of the business having to close, but they took no steps to inform the claimant or any other member of staff, in a timely manner or at all.

 

19.         Whilst the demise of the entire business might have been inevitable, the complete lack of any consultation or warning meant that the claimant was unable to seek other employment until the business was closed while she was away on holiday.

 

20.         The tribunal is satisfied that the claimant was dismissed from her employment by reason of redundancy.

 

21.         The tribunal is also satisfied that, whilst the claimant would still have been dismissed by reason of redundancy, the respondents failed to comply with any steps as required by Schedule 1 to the 2003 Order, and that the failure to do so was wholly attributable to the respondents.

 

22.         The tribunal has been unable to identify any injustice to the respondents in awarding the automatic statutory amount of four weeks’ pay.  The respondents are therefore ordered to pay to the claimant the sum of £500, being 4 x £125.

 

23.         The tribunal also orders the respondents to pay £125, representing the one week’s notice pay to which she was entitled due to her completion of one full year of service.

 

24.         The tribunal accepts the claimant’s figures regarding unpaid holiday pay as being correct.  It considers that the document produced by the respondents was based upon guesswork, with no reliable evidence to support it

 

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

 

 

 

Employment Judge:

 

 

Date and place of hearing:          22 November 2018, Belfast.

 

 

Date decision recorded in register and issued to parties: