Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 14147/18

 

 

CLAIMANT: Jennifer Andrews

 

RESPONDENT: Bryson Charitable Group

 

 

 

 

DECISION

 

The decision of the tribunal is that "Bryson Recycling Group Limited" is the proper respondent in these proceedings.

 

The claimant's claims against the respondent are dismissed by the tribunal in their entirety, without further Order.

 

 

 

 

Constitution of Tribunal:

 

Employment Judge (sitting alone): Mr J V Leonard

 

 

Appearances:

 

The claimant appeared and represented herself.

 

The respondent was represented by Mr Sean Doherty, Barrister-at-Law, instructed by Kennedy's Solicitors.

 

 

THE ISSUES TO BE DETERMINED AND THE EVIDENCE

 

1.             The claimant, by claim dated 24 September 2018, claimed against the respondent "Bryson Charitable Group" and a number of other named individuals. As a consequence of a Case Management Discussion in the matter which took place on 11 January 2019, the other named individuals were by Order dismissed from these proceedings and the claimant's claims were clarified by the tribunal in the Record of Proceedings of the Case Management Discussion as constituting the following:

 

" Breach of contract and failure to pay the correct rate of holiday pay. The claimant's breach of contract claims relates to failure to pay TOIL, provide BUPA healthcare benefit, life insurance and loss of contractual pension entitlement. The respondent disputes the claims in their entirety".

 

2.             In the course of the hearing, the tribunal clarified with the parties the proper identity of the sole remaining respondent in the case and it was clarified on behalf of the respondent, without objection on the part of the claimant, that the respondent is a company limited by guarantee, which would commonly be the case in respect of a charitable organisation in Northern Ireland. The company is called "Bryson Recycling Group Limited" and that is the proper respondent in these proceedings.

 

3.             The tribunal had before it an agreed bundle of documents running to some
236 pages. It had been directed at the Case Management Discussion that the case would be proceeding by way of oral evidence, rather than by written witness statement. Accordingly the tribunal heard oral evidence from the claimant, who was subject to cross-examination by the respondent's representative. Throughout this process the tribunal was referred to various documents contained within the bundle of documents. The tribunal received no additional oral evidence on behalf of the claimant nor was there any party called to give oral evidence on behalf of the respondent. The tribunal was in receipt of oral submissions upon conclusion of the evidence. and are well. This

 

4.             The tribunal accordingly had to determine these claims, as clarified in the course of the Case Management Discussion and, if any such were determined to be well-founded, the tribunal had to determine the matter of remedy, as appropriate.

 

THE TRIBUNAL'S FINDINGS OF FACT

 

5. In consequence of the oral and documentary evidence, the tribunal on the balance of probabilities made the following findings of fact material to the issues; the tribunal also includes mention of certain arguments advanced by the parties:-

 

5.1 The respondent is an organisation having charitable status and it is a company limited by guarantee. The claimant was employed by the respondent, commencing on 2 October 2017 in a role entitled "HR Business Partner". This employment was under a fixed term contract entered into on 26 September 2017. She was employed with the intention of providing maternity cover and it was anticipated that this role was to conclude in June 2018. The tribunal inspected a copy of the Statement of Particulars concerning this employment and pertaining to the claimant which included, amongst other matters, specific provisions in respect of the claimant's entitlement to join the Group Personal Pension Scheme and the contractual arrangement for the claimant taking time off in lieu ("TOIL"), which provisions shall be further referred to below. A copy of this Statement of Particulars was signed by the claimant and dated
26 September 2017. The claimant also, on 26 September 2017, signed an opt-out agreement whereby she confirmed that she would work more than an average of 48 hours per week, as required. The respondent shortly thereafter confirmed to the claimant in writing, by letter dated 27 October 2017, that with effect from 9 October 2017 the claimant would provide cover for the post of Assistant Director HRD (Operational). The tribunal shall for convenience refer to this phase of the claimant's employment with the respondent as being the "acting up" phase. Certain details applicable to this acting up phase are as stated in the said letter of 27 October 2017, which included a statement of the applicable salary, being £40,000 per annum, the provision of a car parking space and the affording of 25 days annual leave in addition to 12 statutory holidays. It is noted that the claimant takes a significant issue concerning how this acting up phase was brought to an end by the respondent. The claimant contends that there was a significant delay in informing her that this acting up phase had indeed come to an end. Her contention is that on account of the respondent's failure to communicate this adequately to her in writing in a timely way, the claimant was entitled to continuing contractual benefits at the same level as were applied during this acting up period. However, certain evidence in documentary form introduced to the tribunal, in the form of the minutes of a meeting, indicates that a specific meeting was held on 8 February 2018, which was attended by the claimant and by the respondent's Chief Finance Officer, Mr Brian McGinn. From a reading of the content of these minutes (and this is especially relevant in the context that the claimant had been complaining to management about excessive workload and about effectively "doing two jobs") it is clear that Mr McGinn in the course of that meeting confirmed that, due to tiredness and perceived excessive workload identified by the claimant, the claimant was thereafter to continue in her substantive role of Business Partner (in other words the original role for which she was engaged) and that any strategic/directorial work would be primarily managed and supported by Mr McGinn and some other named individuals. The claimant's recorded response to this suggestion contained in the minutes of the 8 February meeting was that this arrangement was a relief to her and that she would like to return to normal life and work. It is also recorded as being agreed that there would be a salary change for the claimant, thus reverting back to the original salary applicable to the role of HR Business Partner. A copy of these minutes was provided by email to the claimant on the same day and only minor issues of amendment arose (not affecting the substance of the foregoing). The claimant and other members of staff had lunch that day, 8 February, after the meeting and the evidence is that at lunch the claimant discussed with other staff members the fact that she would no longer be carrying out the dual roles of HR Business Partner together with the acting up role and that she would continue as HR Business Partner until the return from maternity leave. Further evidence from the documentation is that staff were, at that lunch, of the understanding that the claimant's reversion to her original HR Business Partner role was to take place the following week. Very soon thereafter the claimant would have noted a change in her advised remuneration to align with the role of Business Partner, only. The wages records for months numbered respectively 10 (dated 31 January 2018) and
11 (dated 26 February 2018) clearly demonstrate evidence that in addition to the "normal" monthly salary of £2,634.42, for month 10, the claimant was in receipt of a "Temp upgrade" of £698.92. In month 11 this reduces to a "Temp upgrade" amount of £225.82 (on an apportioned basis for part of that month). For the following month that "Temp upgrade" element is entirely absent. From all of this evidence and information, the tribunal's conclusion is that it was expressly agreed in the course of the 8 February 2018 meeting that the claimant would revert to her initial role as HR Business Partner and that
Mr McGinn for the respondent confirmed the amendment to the claimant's salary from £40,000 per annum to £31,613 per annum, as a consequence. The claimant could have been in no reasonable doubt about this notwithstanding her contention that she was effectively "kept in the dark" concerning this for a considerable time after. A salary adjustment form for the claimant's revised contract terms, reverting back to HR Business partner, indicated that this was effective from 12 February 2018. A formal confirmation of this revision agreement, by letter, appears to have been delayed quite possibly on account of the subsequent appointment of Ms Clare Doran as the respondent's Director of HR and Development. Ms Doran was appointed on 20 March 2018. On 9 April 2018 Ms Doran wrote to the claimant confirming that, with effect from 12 February 2018, the applicable salary had been amended from £40,000 per annum to £31,613 per annum. The claimant's contention, notwithstanding the foregoing, is that she was not informed at the time of this salary change and she consequently contends that she was entitled to contractual benefits until the time she was formally notified by letter, approximately two months later. Indeed she appears to contend, on one reading of her case, that the enhanced (acting up) salary was applicable until her contract ended. The claimant drew the attention of the tribunal to a clause in her written contract terms which provided, at paragraph 24 under the title "Variations", that any change to the claimant's terms and conditions would be notified to her in writing within 28 days of that change. If, so the claimant contended, the respondent was maintaining that the change from the acting up terms to the reduced salary terms had occurred with effect from
12 February 2018, notifying the claimant by letter dated 9 April 2018 had not occurred within the specified 28 days as stated in these contract terms. It was put to the claimant by the respondent's representative that notwithstanding this being specified in the contract nothing affected the validity of any change in terms of what had been actually agreed with the claimant, even though that change was not specified to her in writing soon thereafter and indeed within that specified period of 28 days. The tribunal proceeds upon the understanding that the claimant has disputed that latter proposition and thus that this issue has to be resolved by the tribunal.

 

5.2 The claimant was absent from employment on account of illness commencing on 26 April 2018; indeed she did not resume normal work after that date. In consequence of the claimant's contract which was in respect of a fixed term arrangement connected to the absence of a member of the respondent's staff on maternity leave and in the light of that member of staff indicating an intention to return to work around this time, the respondent endeavoured to arrange meetings with the claimant. These meetings were respectively scheduled for 23 May 2018 (notified to the claimant by letter dated
18 May 2018) and 29 May 2018 (notified to the claimant by letter dated
24 May 2018). However, these notified meetings were not attended by the claimant who it appears did not give any explanation for her failure to attend at that time. The respondent then wrote to the claimant by letter dated 29 May 2018, providing the claimant with four weeks' notice of termination of the fixed term contract under which she had been employed. The claimant's employment with the respondent duly terminated upon the expiry of that notice, on 29 June 2018. The claimant was afforded an entitlement to appeal the decision to terminate the contract, which she did after the contract termination date. In these proceedings the claimant voiced certain issues of concern regarding the appeal process. The respondent's representative submitted to the tribunal that anything which followed on from and after the date of the termination of contract and concerning the appeal process, was of no relevance to these proceedings and to the claimant's claims, as these were claims based on contract and pursued under the pertinent statutory provisions. In a letter addressed to the claimant dated 21 June 2018 Ms Claire Doran, the respondent's Director of HR & Development, set forth the respondent's position regarding the correspondence which had been then recently dispatched to the claimant by the respondent and the respondent's position regarding termination of the contract and any entitlements of the claimant arising therefrom; further copies of the recent communications were attached to that letter. The letter was indeed hand-delivered to the claimant's residential address by Ms Doran. The tribunal notes that the claimant was provided with a statement providing details of her annual leave entitlement, which was the subject of a payment amounting to £1,285.37 (gross) included in the final instalment of wages. The wages notification document was dated 27 June 2018. The claimant clarified to the tribunal that she did not dispute any of the calculations present in this statement of leave calculation, save in respect of one important point. The issue, the claimant explained, related to the applicable level of remuneration upon which the computed wages were based, but she did not challenge in any way the computation of hours in respect of which remuneration for holidays was to be paid. The tribunal accordingly had to determine the issue of whether, based upon the agreed and undisputed hours for annual leave entitled to be paid, the remuneration was correct or whether this represented an unauthorised deduction of wages.

 

5.3 In regard to the specific details of the allegations made by the claimant one such allegation was that the respondent had failed to enrol the claimant in a pension scheme. The tribunal determines as a material fact that the claimant was entitled to receive and that she was provided by the respondent with information which she had requested enabling her to join and to become enrolled in the respondent's pension scheme. This was an auto-enrolment. In this regard, the tribunal finds no evidence to support the claimant's contention that the respondent, notwithstanding being expressly requested by her to do so, failed to enrol the claimant in the relevant pension scheme. The claimant was enrolled in the respondent's Group Life Assurance Benefit Scheme and she applied to be included in that scheme by document signed by her and dated 26 September 2017.

 

5.4 A further allegation made by the claimant concerns the contention that the claimant was entitled to be provided with BUPA healthcare cover, as a contractual entitlement. This contention was rejected by the respondent who contended that there was no such contractual entitlement as part of the contract between the claimant and respondent, whether during the acting up phase or otherwise. The tribunal finds no evidence to support the claimant's position in that regard. There is no evidence of any agreed contractual entitlement to BUPA healthcare cover as a term of the claimant's contract with the respondent. The claimant appeared to contend that this entitlement arose from the time when she was receiving the enhanced pay in the acting up phase, but there is no evidence in support of this contention. A similar situation arises regarding the claimant's contention that she was entitled to a telephone allowance under contract. Again, there is no evidence of any agreed contractual entitlement to a telephone allowance as a term of the claimant's contract with the respondent.

 

5.5 A significant aspect of the claimant's claim related to the matter of contractual payments in regard to stated additional hours that the claimant said she had worked. The respondent's side encapsulated this concept within the description, "paid overtime". The respondent's position was quite straightforward: this simply did not exist as a contractual entitlement. This matter connects with the concept of TOIL. Whilst such a TOIL arrangement did indeed exist under the claimant's contract of employment and, as such, this could potentially afford to the employee a contractual right, as agreed with line management, for the employee to take time off in lieu, what was clear was that this did not create any free-standing or connected contractual entitlement to a payment of wages equivalent to any TOIL that might have been accrued. The relevant provisions are contained within paragraph 7 of the contractual terms which were signed by the claimant. These terms provide, expressly, as follows: " There is no contractual payment for additional hours worked. If it is necessary for you to work additional hours to those required under your contract, you may arrange with your Line Manager to take time off in lieu ("TOIL") at a mutually agreed time. The details of the practical parameters and arrangements for the taking of TOIL will be in line with SBU requirements and by agreement with your Line Manager. You can only accumulate TOIL hours after 15 minutes of extra work and no more than 15 hours TOIL can be accumulated at any one time. All accrued leave must be taken within one month unless otherwise in exceptional circumstances and subject to the agreement of your Line Manager." Having examined all of the evidence in the case, the tribunal's conclusion, notwithstanding the claimant's evidence that she had accumulated a very substantial amount of additional hours worked by the time the contract came to an end, is that there was no contractual right contained within the contract terms entitling the claimant to be paid a sum of money as wages, as opposed to the potential capacity, with managerial agreement, to take a limited amount of time off in lieu under any TOIL arrangement. When this was put to her in cross-examination, the claimant did concede that she accepted that nowhere in the contract did it provide for such a payment. Accordingly, there is no evidential and contractual basis for this contention on the claimant's part. Such a contractual right did not exist within the contractual arrangements made between the claimant and the respondent, notwithstanding the claimant's initial contention in that regard.

THE APPLICABLE LAW

 

6.2       The Working Time Directive, Directive 93/104/EC and Directive 2000/34/EC (which amended Directive 93/104/EC) were consolidated and replaced by Directive 2003/88/EC ("the 2003 Directive"). Article 7 of the 2003 Directive provides as follows: 1. Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave ..... in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice. 2. The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.

 

6.3 The Working Time Regulations (Northern Ireland) 1998 ("the 1998 Regulations") as amended by the Working Time (Amendment) Regulations (Northern Ireland) 2007) implement the provisions of Article 7 of the 2003 Directive in Regulation 13 in regard to annual leave. Regulation 16 relates to payments in respect of periods of leave and at 16(1)-(3) provides:

 

"A worker is entitled to be paid in respect of any period of annual leave to which he is entitled under Regulation 13 [and Regulation 13A], at the rate of a week's pay in respect of each week of leave.

 

[The 1996 Order at Articles 17 to 20] .... shall apply for the purpose of determining the amount of a week's pay for the purpose of this Regulation. ...".

 

6.4 The 1996 Order at Article 17 provides as follows:-

 

17. -”(1) This Article and Articles 18 and 19 apply where there are normal working hours for the employee when employed under the contract of employment in force on the calculation date.

 

(2) Subject to Article 18, if the employee's remuneration for employment in normal working hours (whether by the hour or week or other period) does not vary with the amount of work done in the period, the amount of a week's pay is the amount which is payable by the employer under the contract of employment in force on the calculation date if the employee works throughout his normal working hours in a week.

 

(3) .....

to support the claimant's contention that she is entitled to enhanced pay throughout the foregoing period. This contention strongly resisted by the respondent and the tribunal finds nothing to support this claim on the claimant's part. Connected to this, possibly, is the claimant's contention that she receives holiday pay at an incorrect rate. Her argument is that a portion of the holidays to have accrued pay at a rate connected to the enhanced pay rate and that the respondent, incorrectly, When an artist allegation also relates to the matter of an enhanced rate of holiday pay and the claimant's contention is that she did not receive a continuing enhanced rate of pay in respect of those specific holidays which were accrued during a period of which she was subject to the enhanced pay rate

 

4.7 The claimant contended that she was entitled, contractually, to a mobile telephone allowance and she made a specific claim for the sum of £500 in respect of that. The tribunal finds no evidence to support the claimant's contention that there was any contractual arrangement that the claimant be risk averse a sum by way of a mobile telephone allowance. The tribunal did not need to determine any further material facts for the purposes of this decision.

 

 

THE APPLICABLE LAW

 

 

 

THE TRIBUNAL'S DECISION

 

7. The applicable contract terms in this matter, in the absence of any persuasive evidence to the contrary, derive from the documentary evidence of a written contract and any associated documents, including any communications clarifying pertinent terms. The tribunal accepts, as persuasive evidence, the documentation concerning these written terms, including the amendment to the initial contract which is evidenced in the correspondence between the respondent and the claimant which provided an enhanced rate of pay and other benefits during the acting up phase. There is no basis upon which the claimant can be supported by the tribunal in advancing contentions which are at variance with these expressly agreed contractual terms or which require matters to be read into the contractual terms where there is no evidential basis to do this. Examining therefore the claimant's contentions concerning matters of contract, in turn, firstly, the tribunal's determination is that there is nothing supporting the claimant's contention that the respondent failed in affording the claimant a proper entitlement for the claimant to be enrolled in the pension scheme. There was auto-enrolment. The claimant was enrolled in the respondent's Group Life Assurance Benefit Scheme and she could have suffered no loss on that account. For that reason, the claimant's contention in this respect is not upheld by the tribunal and it is dismissed.

 

8. Secondly, the tribunal does not uphold the claimant's contention that she was entitled to be provided with BUPA healthcare cover, as a contractual entitlement. As there is no persuasive evidence to support the claimant's contention of any contractual entitlement to BUPA healthcare cover, as a term of the claimant's contract with the respondent, this contention is rejected by the tribunal and this aspect of the claimant's claim is dismissed by the tribunal. The claimant, further, contended that she was entitled as a matter of contract to a mobile telephone allowance. She made a specific claim for the sum of £500 in respect of that. The tribunal finds no evidence to support the claimant's contention that there was any contractual arrangement that the claimant would be entitled to this or to any other sum by way of a mobile telephone allowance, or by way of reimbursement. The tribunal found that this contention was not sustained upon the evidence and it is not upheld by the tribunal. T here is no persuasive evidence of any contractual entitlement to this. T he claimant's contentions regarding these matters are therefore not upheld by the tribunal and are dismissed.

 

9. Thirdly, the tribunal notes the claimant's contention that she was entitled to what has been described as "paid overtime". As there is no evidence to support the proposition that this "paid overtime" existed, as a contractual entitlement, the tribunal examined whether there might be some manner of a statutory basis, in addition to issues of contract, supporting this proposition. The claimant did not seek to present any argument for any statutory basis supporting this. In the absence of the existence of any specific contractual or statutory entitlement in this regard, the tribunal does not uphold the claimant's contention that she would be entitled to wages in respect of "overtime", notwithstanding the claimant's strenuous contention that this should be so. This contention is effectively unsubstantiated and the claimant's claim in this regard is dismissed by the tribunal. As mentioned, there did exist in the pertinent contract terms the concept of TOIL, but this afforded only a contractual right, by agreement with management, to the employee to take time off in lieu and even then to a rather limited extent. It certainly did not create any free-standing or other contractual right to any payment of wages equivalent to such accrued time. There is no basis upon which to substantiate any claim on the part of the claimant in this regard and any such claim is dismissed by the tribunal.

 

10. It appears clear from the schedule of loss provided by the claimant in these proceedings that a portion of the claimant's claim consists of a significant sum in wages which the claimant contends is payable to her in the referenced period between 8 February 2018 and April 2018. From the evidence it is clear that the claimant was temporarily promoted to perform a specific job function for a time-limited (acting up) period. It was always anticipated that this period would come to a conclusion and that at the end of this period the claimant was to revert to her earlier pay and terms of contract. The tribunal notes the argument advanced by the claimant that the stated lack of formal notification in writing, in a timely fashion, provided an entitlement to the claimant to the benefit of continuing pay at the enhanced, acting up, level of remuneration. The tribunal's determination is that the claimant's argument in this respect must fail for a number of reasons. Firstly, there is clear evidence from a minuted meeting held on 8 February 2018 that the claimant attended this meeting and in the course of the meeting she reached agreement with a member of the respondent's senior management, Mr McGinn, that she would revert back to her original role. The claimant lays considerable stress upon the proposition that no specific date for this reversion back to her original role was specified; indeed that she did not receive the letter from the newly-appointed HR Director, Ms Doran, until approximately two months after that meeting had taken place. The meeting was held on 8 February 2018 and the letter was dated
9 April 2018 alluding to the reduced salary and terms. The letter stated that the changes had occurred with effect from 12 February 2018. The claimant, furthermore, lays considerable stress upon the 28 days' notice period for such a change to be confirmed in writing, as stated in the contract terms. For the respondent, it is contended that the claimant was very clearly advised in the course of the 8 February meeting of the reversion to the original contract terms and indeed she was quite relieved that this was taking place and she was entirely accepting of the reduction in remuneration as a direct consequence. The tribunal accepts evidence that the claimant was provided with minutes of the meeting that same day. The claimant also freely discussed this matter with her work colleagues at a lunch that day. A short time thereafter the claimant would certainly have noted the change in remuneration, expressly stated, from the pay records provided to her. The tribunal does not accept, as a matter of contract, in the light of the evidence of the agreement reached, that the claimant was entitled to receive a continuing enhanced level of remuneration, notwithstanding that in making this claim she places reliance upon the 9 April 2018 letter. There was clearly an agreement reached with senior management at the 8 February 2018 meeting. The tribunal does not accept that there is any persuasive evidence nor is there any contractual basis which the claimant is entitled to call in aid of her contention that she is entitled to enhanced pay throughout the foregoing period, as claimed. The tribunal finds nothing to support this aspect of the claim for an unlawful deduction of wages. Any such claim is dismissed by the tribunal.

 

11. A further and final dimension to the claimant's case, relates to the contention that throughout the period of time when she was in the acting up phase, the claimant accrued annual leave, which was then entitled to be paid upon conclusion of the contract. As mentioned, there is no dispute about the computation of the number of hours to be paid. The dispute is solely concerning the level of applicable remuneration. Here the respondent contends that, as a matter of law, any holiday pay outstanding upon the conclusion of the contract is to be properly paid on the basis of remuneration which applied at the time of conclusion of the contract. The claimant's contrary argument is that, in respect of the reference period, holiday entitlement upon conclusion of the contract is to be paid with reference to the rate of remuneration applicable at the time when the holiday entitlement arose. The respondent's representative referred the tribunal to the Northern Ireland Court of Appeal case of Patterson v Castlereagh Borough Council [NICA] 47. In the absence of a specifically detailed reference to the content of the report of that case by the respondent's representative, the tribunal did not find that case particularly helpful as it relates, primarily, to the issue of whether overtime is properly to be included in remuneration for the purposes of holiday pay calculation. This is not an overtime case, as such. Rather, it is a case where an employee was at one time receiving an enhanced level of pay on account of acting up duties and the employee then reverted to a lower level of remuneration towards the conclusion of the contractual period. The statutory provisions are however helpful. Article 17 of the 1996 Order is applicable where there are "normal working hours". That is so in this case. This statutory provision relates to the claimant as an employee when employed under the contract of employment in force on the calculation date.
Article 17 (2) provides that if the employee's remuneration for employment in normal working hours (whether by the hour or week or other period) does not vary with the amount of work done in the period, as in this case, the amount of a week's pay is the amount which is payable by the employer under the contract of employment in force on the calculation date if the employee works throughout his normal working hours in a week. Here the calculation date is the date the contract came to an end. For that reason the tribunal's determination is that the respondent correctly calculated remuneration for holidays with reference to the pay applicable at the calculation date, in other words the remuneration level which applied at the time of termination of contract. Accordingly, the claimant's claim in respect of any remuneration for holiday pay in excess of the figure paid to her by the respondent is not upheld by the tribunal and that claim is dismissed.

 

12. The foregoing being the case, none of the claimant's various claims are satisfactorily made out before the tribunal. These claims are accordingly dismissed by the tribunal, without further order.

 

 

 

 

 

 

 

Employment Judge:

 

 

Date and place of hearing: 6 March 2019, Belfast

 

 

Date decision recorded in register and issued to parties: