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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Nelson v Westport Resources Ltd t/a Dri... [2008] NIIT 695_08IT (17 September 2008) URL: http://www.bailii.org/nie/cases/NIIT/2008/695_08IT.html Cite as: [2008] NIIT 695_8IT, [2008] NIIT 695_08IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 695/08

CLAIMANT: Gemma Nelson

RESPONDENT: Westport Resources Ltd t/a Driver Hire Belfast

DECISION

The unanimous decision of the tribunal is that the claimant is entitled to the total sum of £2800 compensation for the following claims: unfair dismissal; failure to provide written statement of main terms and conditions of employment; and failure to provide written reasons for dismissal. The claims for: holiday pay; notice pay; breach of the right to be accompanied; and an itemised pay statement are dismissed.

Constitution of Tribunal:

Chairman: Mrs Ó Murray

Members: Mr E Miller

Mr I Carroll

Appearances:

The claimant appeared in person.

There was no appearance by the respondent.

The claims

1. The claimant's claims were for unfair dismissal; failure to pay notice pay; failure to pay holiday pay; breach of her right to be accompanied to a disciplinary hearing; failure to provide written reasons for her dismissal; failure to provide a written statement of terms and conditions of employment; and failure to provide an itemised pay statement.
2. As the respondent failed to lodge a response to the claimant's claim, the case was listed for a hearing on liability and remedy.

Sources of evidence

3. The tribunal had before it the claim form, the claimant's bundle of documents and heard evidence from the claimant.

The issues

4. The issues for the tribunal were as follows:

(1) Was the claimant dismissed and if so was it for one of the fair reasons outlined in the Employment Rights (NI) Order and was it fair in all the circumstances?

(2) Did the respondent follow the statutory disciplinary and dismissal procedures?

(3) Did the respondent breach the claimant's contract by failing to pay notice pay?

(4) What was the claimant's holiday entitlement, whether under the Working Time Regulations or under contract, and what was the outstanding holiday pay due on termination?

(5) Did the respondent provide written reasons for dismissal?

(6) Was a written statement of terms and conditions provided to the claimant?

(7) Did the right to be accompanied arise and was it breached?

(8) Did the respondent provide an itemised pay statement and if not what was the remedy?

Facts found

5. The claimant was born on 1 June 1985 and was employed by the respondent company and its predecessors from 11 April 2005 until 22 February 2008. The EDT was 22 February 2008 being the end of the notice period which was served by the claimant at home.
6. The claimant's gross pay at the date of termination was £280 per week and her net pay was £225 per week ie £975 net per month.
7. The claimant signed a contract on her first day at work but was never provided with a copy of the contract and has not been provided with a copy of the contract despite repeated requests.
8. The contract covered the holiday entitlement which was 20 days leave in the year, not including holidays for New Year's Day, Easter Monday and Tuesday, Christmas Day, Boxing Day and May Day. The holiday year was set out in the contract as running from the beginning of January until the end of December and the number of holidays had been changed before the start of the holiday year in 2008 to 25 days leave on top of the aforementioned public and bank holidays. In the years prior to the termination of her contract, the claimant was paid in full for all holidays taken.
9. The claimant worked as a recruitment consultant for the respondent company whose business was that of a recruitment agency. Business was very busy indeed in January and February 2008 because of the amount of work coming into the business and because the business was short staffed. One member of staff had left in the first week in January and things were so busy that a part-time employee had to raise his hours to assist with the work load. Despite this, the claimant and her colleagues were dealing with an ongoing heavy workload.
10. The claimant had applied for a job with another company and that company had written a letter to the claimant's manager at the respondent's premises seeking a reference.
11. On Friday 15 February 2008 the reference request letter arrived at the respondent company and was opened by one of the Directors, Colin Geddis. The claimant was unaware of this until she was asked by her manager to attend a meeting with Mr Geddis that afternoon. Just before the meeting the claimant's manager advised her that he thought the meeting was to discuss the reference request that had come in. The claimant went into the meeting assuming that Mr Geddis wanted to see her to question her as to why she felt she wanted to leave.
12. At the meeting Mr Geddis asked the claimant what the letter was about and the claimant said that she had applied for another job. Mr Geddis then announced that the claimant was being made redundant as of that day and told her to leave immediately. When the claimant asked for a reason he said that her work was "not up to scratch". The claimant's work had never been criticised before this encounter with Mr Geddis. Mr Geddis then said that the claimant was being given one week's notice which she would serve by remaining at home.
13. The claimant returned to speak to Mr Geddis that same day to ask if she was entitled to more than one week's notice. Mr Geddis then produced her contract and said that she was entitled to one week's notice under the contract. The claimant then asked for a copy of her employment contract and Mr Geddis replied: "You will get all that is owed to you, your notice pay and any holidays you are still owed".
14. After the claimant left the respondent's premises on 15 February 2008, she received weekly payments into her bank account from the respondent for the following five weeks. Each payment was approximately £225 except for the last payment which was £357.24. There has been no indication from the respondent as to the breakdown of the figures nor the reason for the payment despite repeated requests by the claimant to clarify the nature of the payments. The claimant's query in relation to payments received relate to the four payments dating from 29 February to 20 March 2008. The total sum received during this period was £1,034.77.
15. As the claimant has received no breakdown of the figures which have been paid, she does not know whether she was paid for outstanding holiday pay, or notice pay. She also does not know if a figure was paid for the alleged redundancy.
16. No written reasons for dismissal were given despite the claimant's requests for such reasons.
17. The claimant took a total of two days' holidays in the leave year 2008, namely New Year's Day and another day in January.
18. The respondent has provided no pay slips to the claimant in relation to the payments made from 15 February to 20 March, that is for the six weeks' payments that were put into the claimant's account. The claimant requested copies of payslips in her letter of 2 April 2008.
19. The claimant commenced work with her new employer on 3 March 2008 and her current net earnings amounted to £975.73 per month that is 73p more per month than she earned with the respondent.

The Law

Unfair dismissal

20. The law on unfair dismissal is set out in the Employment Rights (Northern Ireland) Order 1996 as amended (referred to below as "the ERO"). The right not to be unfairly dismissed is set out at Article 126 of the ERO and at Article 130 are listed the potentially fair reasons for dismissal, two of which are capability and redundancy. It is for the employer to show that the dismissal fell within one of the fair reasons and it is for the tribunal to determine whether the dismissal was fair in all the circumstances.
21. Under Article 130(A) of the ERO an employee is deemed to be automatically unfairly dismissed if the employer failed to comply with the statutory disciplinary and dismissal procedures set out in the Employment (Northern Ireland) Order 2003. In summary, the procedures require an employer who is contemplating disciplinary measures or dismissal against an employee to set out the position in writing and invite the employee to a meeting to discuss the proposed action. The meeting must take place at a reasonable time and place and the outcome must be communicated to the employee who must be advised of his or her right to appeal. If the right to appeal is exercised, there must be another meeting and the outcome must be notified in writing to the employee.
22. If failure to follow the statutory procedure is because the employer is at fault, the tribunal must increase the compensatory award for unfair dismissal by 10% and may increase that award by a percentage up to 50%. The tribunal need not award a percentage increase at all if it would cause injustice to the employer. (Article 159 of the ERO and Article 17 of the Employment Order (NI) 2003). The amount of the basic award for unfair dismissal where the statutory procedures have not been complied with by the employer, must amount to a minimum award of 4 weeks' pay unless the tribunal determines that such an increase would result in injustice to the employer.

Notice pay

23. Article 118 of the ERO sets out the minimum statutory notice requirement which is one week's notice for each year of continuous employment if the employee has been employed for 2 years or more. If a claimant believes that she has received less than the statutory minimum notice her remedy is for breach of contract. The tribunal's jurisdiction for claims involving breach of contract is set out in the Industrial Tribunals Extension of Jurisdiction Order (NI) 1994.
24. Article 129 of the ERO sets out the calculation of the effective date of termination ("the EDT"). Where termination of the contract was by notice, the EDT is the date on which that notice expired.

Holiday pay

25. The Working Time Regulations (Northern Ireland) 1998, as amended, set out the statutory entitlement to paid holidays. In the claimant's case her entitlement was 24 working days per annum from October 2007. Article 14(2) of the Working Time Regulations outlines the employee's rights to payment in lieu of untaken holidays on termination of employment if termination takes place part way through the holiday year. If an employer fails to pay any holiday pay due under that provision, the employee can make a complaint under Article 30(5) and if the tribunal finds that complaint to be well founded, it must order the employer to pay the employee the amount it finds to be due to him or her.
26. Any holiday entitlement in excess of the 24 working days is governed by the claimant's contract and is pro-rated according to when in the leave year the employee leaves work.

Written reasons for dismissal

27. The right to receive written reasons for dismissal is outlined at Article 124 of the ERO. If the claimant requests such written reasons within 14 days of the EDT and the employer does not provide the written reasons, the tribunal must award two weeks' pay under Article 125.

Written statement of terms and conditions

28. Under Article 33 and 43 of ERO, an employee is entitled to be given a statement of her main terms and conditions of employment. The employee may apply to the Industrial Tribunal under Article 43 of ERO if no such statement is provided. Under Article 27 of the Employment (Northern Ireland) Order 2003, the Industrial Tribunal must award a minimum of two weeks' pay for breach of this obligation by the employer and may award up to four weeks' pay. The tribunal need not award any sum under this heading if there are exceptional circumstances which would make an award or increase unjust or inequitable. (Article 27(5)).

Itemised pay statement

29. Under Article 40 of ERO an employee has the right to an itemised pay statement. Failure to provide such a statement gives the employee the right to apply to the tribunal for it to determine what particulars ought to have been included or referred to in such a statement. The tribunal may make a declaration to that effect under Article 44. There is no provision for an award of compensation for breach of this obligation.

The right to be accompanied

30. The right to be accompanied is set out in the Employment Relations (NI) Order 1999 at Article 12 which states at 12(1) as follows:

"This Article applies where a worker –

(a) is required or invited by his employer to attend a disciplinary or grievance hearing, and

(b) reasonably requests to be accompanied at the hearing."

31. If the right to be accompanied arises and the employer fails to comply with its duty, the employee can make a complaint to the Industrial Tribunal under Article 13 of the Employment Relations (Northern Ireland) Order 1999 and the tribunal must award two weeks' pay if it finds such a complaint to be well founded.

Conclusions

32. The tribunal finds that the claimant has clearly proved that she was dismissed. The tribunal is not satisfied that the dismissal was for redundancy nor was it for the claimant's poor performance. The tribunal finds rather, that the employer sacked the claimant unjustifiably simply because Mr Geddis was annoyed that the claimant appeared to be about to leave to join another company.
33. As the tribunal has found that the dismissal was not for redundancy, any payments made by the respondent cannot amount to a redundancy payment. They cannot therefore be treated as payments for redundancy which might fall to be deducted from the basic award under Article 156(4) (b) ERO. (Boorman v Allmakes Ltd 1995 IRLR553).They are therefore treated as ex gratia payments by the employer which the tribunal may set off against the basic award if there is evidence that they were paid to cover that entitlement. (See Chelsea Football Club and Athletic Co Ltd v Heath 1981 ICR 323). The tribunal has no such evidence before it, given that the respondent has persistently refused to provide a breakdown of the figures to the claimant, and the tribunal has therefore decided not to deduct it from the basic award.
34. Basic award: No statutory procedures were followed in the dismissal and the claimant is therefore entitled to four weeks' gross pay for her basic award as the basic award would have been a lower figure than that, due to her short service with the employer.
35. Compensatory award: The claimant is entitled to compensation for loss of statutory industrial rights in the sum of £250. She would also be entitled to be compensated for any loss occurring between the EDT of the 22 February 2008 and Friday 29 February as she started her new job on Monday 3 March 2008.
36. The position on giving credit for ex gratia payments from the employer is different when the tribunal considers the sums payable for the compensatory award than for the basic award. From the Babcock case mentioned above and from the case of Rushton v Harcros Timber and Building Supplies Ltd 1993 ICR 230 the principle is that the tribunal must always take the ex gratia payment into account as against the compensatory award. The effect of this that the payments made by the respondent in this case extinguish the compensatory award as outlined in the calculation below.
37. The claimant believed that she might have an ongoing loss of wages. The claimant's evidence was that she received £225 net per month and by the tribunal's calculation the claimant therefore earned £975 per month in her old job. As she received £975.73 in her new job she actually had a small gain per month. The tribunal therefore finds no ongoing loss.
38. Written statement of main terms and conditions: The claimant is entitled to compensation for the respondent's failure to provide a written statement of terms and conditions. The respondent failed to provide a copy of the contract despite repeated requests and because of this persistent refusal without any possible excuse, the tribunal has decided to award the maximum four weeks' pay:
39. Notice pay: The claimant was entitled to the minimum statutory notice of two weeks. It is clear from the figures that the claimant was paid for the week that she spent at home serving the one week's notice that the employer had given her. The tribunal finds the payment on 29 February 2009 of £225.92 should be credited in relation to the second week's notice that should have been paid. As the burden was on the claimant to prove that she did not receive a week's pay for that week's notice and it appears to the tribunal that the payment on 7 March 2008 related to the week after the week that she was at home, the tribunal finds that there is no sum due for notice pay.
40. Holiday pay: The claimant left work eight weeks into the leave year and was therefore entitled to four days' leave under the Working Time Regulations calculated as follows: 8 weeks ÷ 52 weeks x 24 days = 3.69 days, rounded up to 4 days.

As she took one day's holiday her outstanding entitlement was 3 days. The tribunal has excluded the day she took for New Year's Day as it has not included the public and bank holidays in its calculation of holidays due as the claimant's evidence was that these holidays were additional to the 25 days she was due for 2008/2009. The additional 1 day's holiday under the contract ie the 25^th day, is also liable to be pro-rated and as the claimant left eight weeks into the holiday year no full or half days had accrued under contract.

41. The three days' holidays due are payable at net pay therefore the calculation is as follows: £225 net per week ÷ 5 = £45 per day x 3 = £135.00.
42. The burden is on the claimant to prove that she was not paid for the outstanding three days' holiday. The claimant was very candid in her evidence that she did not know whether she had been paid for holiday pay or not as she did not know what the figures related to and she repeatedly asked for a break-down of the figures so that she could see what she was being paid for. The final figure of £357.24 is £132.24 more than the weekly net pay. This figure is so close to the figure calculated by the tribunal for the outstanding holiday pay that the tribunal has drawn the inference that that part of the payments made by the respondent relates to unpaid holiday pay. The tribunal therefore makes no award for holiday pay as the claimant has failed to discharge the burden of proof of showing that it was not paid.
43. Written reasons for dismissal: The claimant is entitled to two weeks' gross pay.
44. Itemised pay statement: The tribunal's power is to make a declaration as to the breakdown of figures. There is insufficient information before us to provide a breakdown of figures and consequently the tribunal cannot make such a declaration and, unfortunately, has no power to award compensation under this heading. This part of the claim is therefore dismissed.
45. Right to be accompanied: The tribunal is not satisfied that the right to be accompanied arose in this case. It seems clear to the tribunal that Mr Geddis decided to dismiss the claimant on a whim. It cannot therefore be said that the claimant was invited to a grievance or disciplinary meeting and even if she had been, she did not request to be accompanied by anyone for the understandable reason that she could not have foreseen that she would be dismissed. The statutory test, however, stipulates that both requirements, namely the invitation to a disciplinary or dismissal meeting and the request to be accompanied, must be fulfilled. The tribunal finds that at least one, if not both, of the requirements were not satisfied and therefore must dismiss this aspect of the claim.
46. In summary the compensation calculation is as follows:

(i) Written reasons for dismissal

2 weeks x £280 gross = £560

(ii) Written statement of terms and conditions

4 weeks x £280 gross = £1,120

(iii) Unfair dismissal –

(i) Basic award 4 x £280 = £1,120

(ii) Compensatory award:

loss of statutory industrial rights - £250

(extinguished – see below)

(iv) Holiday pay –

3 days' holiday pay = £135

(extinguished – see below)

Payments made by the employer 29 Feb - 20 March 2008:

(a) 29 Feb – related to 1 week's notice spent at home £225.92

(not included in loss calculation)

(b) 7 March – second week's statutory notice £225.70

(credited against claim for notice pay for

5 working days between Friday 22 February

and Friday 29 February 2008)

(c) 17 March 2008 £225.91

(d) 20 March 2008 £357.24

_______

Total £583.15

Deduct statutory and industrial rights (£250.00)

Deduct holiday pay (£135.00)

This is the excess paid ex gratia by the employer: £198.15

47. The statutory uplift which the tribunal was minded to award was 50% given the very serious failure by the employer to follow any statutory procedures whatsoever. However, in accordance with the approach of the Court of Appeal in the case of Digital Equipment v Clements (No2) 1998 IRLR 134, the credit for ex gratia payments by the employer must be credited before any reduction or uplift. As the compensatory award has been extinguished by the ex gratia payments made by the employer, there is, unfortunately, no figure to be uplifted.
48. The total compensation award is therefore:

Basic award - £1120

Written reasons for dismissal - £560

Written statement terms and

conditions - £1120

________

Total compensation - £2800

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

Chairman:

Date and place of hearing: 15 August 2008 Belfast

Date decision recorded in register and issued to parties: