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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Soares v S & S Hygiene Ltd [2017] NIIT 01472_16IT (18 May 2017) URL: http://www.bailii.org/nie/cases/NIIT/2017/01472_16IT.html Cite as: [2017] NIIT 1472_16IT, [2017] NIIT 01472_16IT

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THE INDUSTRIAL TRIBUNALS

 

CASE REF:  1472/16

 

 

 

CLAIMANT:                          Adriano Rosario Soares

 

 

RESPONDENT:                  S & S Hygiene Ltd

 

 

 

DECISION

(A)       The claimant’s holiday pay claim is well-founded and it is ordered that the respondent shall pay to the claimant the sum of £429 in respect of holiday pay.

 

(B)       The claimant’s notice claim is well-founded.  However, I have made no award of compensation in respect of notice pay (because the claimant did not sustain any loss on account of the lack of notice).

 

(C)      The claimant’s redundancy pay claim is well-founded.  It is declared that the respondent is liable to make a redundancy payment of £804 to the claimant.

 

 

 

Constitution of Tribunal:

Employment Judge (sitting alone):       Employment Judge Buggy        

           

Appearances:

The claimant was represented by Ms Marina Brito.

The respondent was not represented.

 

REASONS

 

1.         The respondent company (“the Company”) was the contractor under a cleaning contract, in respect of the cleaning of the premises of Evron Foods at Portadown.  In February 2016, the Company ceased to operate, the relevant cleaning contract was terminated and it purported to dismiss the claimant.

 

2.         The claimant had been employed by the Company as a cleaner at the relevant Portadown premises since 2010.  He is still employed as a cleaner there.  When the Company ceased to trade, he was employed there, by FRC Recruitment Ltd, for a short period.  Since then, he has been employed there directly by Evron Foods Ltd.

 

3.         There clearly is a potential issue in this case as to whether there has been a “service provision change” (“SPC”) within the meaning of regulation 3 of the Service Provision Change (Protection of Employment) Regulations 2006 (“SPCR”) and, if so, whether, at the time of that SPC, this claimant was a person employed by the relevant transferor and assigned to a relevant organised grouping of employees that was the subject of that SPC.

 

4.         The claimant was very competently represented in these proceedings by Ms Brito. However, throughout the course of the claimant’s oral testimony in this case, there was a consistent lack of clarity on matters which were relevant to resolution of the potential issues which have been highlighted in the last paragraph above.  It may well be that that lack of clarity was not due to any fault on the part of the claimant.  Nonetheless, there was a lack of clarity.

 

5.         In those circumstances, I would not feel confident in concluding that FRC Recruitment Ltd or Evron Foods Ltd became a transferee, pursuant to a service provision change, of a “grouping” to which the claimant was assigned at the time of that SPC.

 

6.         Furthermore, I did not feel that it was necessary or appropriate for me to enquire into the SPC issues any further, in light, in particular, of the fact that nobody was present to give evidence on behalf of the Company in relation to that matter.  My understanding is that the Department for the Economy is not bound by this decision, in the event of the claimant making applications for payments in respect of holiday pay and/or redundancy pay.  (My understanding is that, instead, the Department would, in those circumstances, be free to arrive at its own conclusions on the question of whether there had been a relevant SPC, or relevant SPCs).  

 

7.         The claimant provided me with uncontroverted sworn testimony.  According to that testimony, he was employed for 16 hours per week; he was paid an hourly rate of £6.70; he was employed by the Company continuously from September 2010 until February 2016; and he was 48 years of age in February 2016.  I have accepted the accuracy of all of that testimony.     

 

8.         This Decision is based on the following information:

 

            Gross weekly pay:                                                    £107.20

 

            Net weekly pay:                                                        N/A

 

            Number of actual completed years of service:    5

 

            Age on date of dismissal:                                       48

 

            Multiplier (for redundancy pay):                            7.5

 

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

 

 

 

 

Employment Judge:

 

 

Date and place of hearing:      16 March 2017, Belfast.

 

 

Date decision recorded in register and issued to parties: