THE INDUSTRIAL TRIBUNALS

CASE REF:  9239/03

CLAIMANT:			Alison Fitzpatrick

RESPONDENT:		Patrick Hughes T/A Upper Crust Bakery

DECISION
The unanimous decision of the tribunal is that the tribunal does not have jurisdiction to deal with the claim since the claimant fails to satisfy the minimum prescribed period of employment of one year.

Constitution of Tribunal:
Chairman:		Mr Davey
Members:		Ms Galloway
Ms Hamilton

Appearances:
The claimant was represented by Mr S Martins of The Employment Law Service.
The respondent was represented by Mr B Gormley, Barrister-at-Law, instructed by Stephen Tumelty, Solicitor.
REASONS
 1.	According to the claimant’s originating application she had been employed as a manageress in the respondent’s bakery for some two and half years following which she was constructively dismissed by the respondent.  Although the nature of the relationship and the period of employment was not initially challenged by the respondent in his originating application, the question of whether or not the claimant had enjoyed the necessary employment relationship with the respondent at all, and, if so whether she had enjoyed that relationship for the period prescribed by Article 140 of the Employment Rights Order (Northern Ireland) 1996, was raised during the course of the proceedings.  As this was a jurisdictional issue the tribunal considered it proper that the matter should be ventilated before the tribunal and directed, with the agreement of the parties, that the matter be dealt with as a preliminary point.  The issue for the tribunal therefore was whether, at the relevant time or times, the claimant was in the employment of the respondent and, if so, whether she was, or had been, in his employment for the requisite period of one year.

 2.	Some of the facts were not in dispute.  The claimant had not, as stated in her originating application, been involved with the respondent during the course of the year 2000, but she had been working for him during the course of 2001.  At the time she had also been claiming income support.  Following an interview with the relevant Agency she had ceased working for the respondent.  On 25 February 2002 the claimant began working in the respondent’s premises once more.  On this occasion she was working under the auspices of a programme operated by the Department for Employment and Learning called “Worktrack”.  According to a letter from the Department dated 16 May 2007 her employer from 25 February 2002 until 25 August 2002 was Citywide Action, the organisation responsible for placing her with the respondent.  According to the Department Citywide Action was responsible for paying the claimant’s wages.  Again according to the Department the Worktrack programme was administered and delivered by a network of lead providers who had been contracted by the Department to employ eligible participants on a temporary basis for up to a maximum of 26 weeks.  According to the claimant’s departmental paperwork the claimant was, at the time of her placement which commenced on 25 February 2002, in receipt of income support, her lead provider was Citywide Action, and her involvement with Worktrack ended on 25 August 2002 when she was destined for full employment.  This information from the Department was supplemented and confirmed by the claimant’s sister who had arranged the placement.  She confirmed that payment of wages would have been by Citywide Action and, further, that Citywide Action was the appropriate channel through which complaints by both quasi employer and quasi employee could be dealt with.  Failure, for instance, by a quasi employee to come to work on time or at all could be dealt with by Citywide Action docking or stopping wages or by removing them from the programme altogether.

 3.	At this point in the chronology the evidence of the claimant and of the respondent diverged.  According to the claimant she must have told the respondent that the programme was finished and she continued in his employment.  According to the respondent he was aware that the Worktrack involvement lasted for 26 weeks and when he enquired about this the claimant indicated she was going onto another scheme to be arranged, again, by her sister.  The respondent made no other enquiry and indicated he could not keep her.  She continued as before with no question of any payment by him apart from expenses from time to time.  He never received any documentation as regards the claimant’s continuation on any work scheme and as far as he was concerned she was still working on instruction from Citywide Action who were responsible for her.

 4.	The tribunal found both the claimant and the respondent to be unsatisfactory witnesses.  The claimant had admitted that she had been working while claiming benefit prior to the periods in issue and had admitted lying to the authorities in that regard.  She had also given somewhat confused and inconsistent evidence about the nature and duration of her employment with the respondent prior to the periods in question.  The respondent, for his part, described behaviour which was either disingenuous or inconsistent as regards the claimant’s position.  If he really made no enquiry whatsoever about the claimant’s position after the cessation of her Worktrack scheme, despite the lack of any documentation of any kind, he would seem to have been remarkably lax.  If he really did believe, as he said, that he knew that control could be exercised by Citywide it was inconsistent of him not to go to Citywide at the change over stage and, indeed, later when he said he had a serious problem with the claimant as regards theft.  The tribunal did not find his explanation that he was not sure which scheme the claimant was on or that he felt that her sister might have been involved in any complaint to be convincing.

 5.	Fortunately as regards the position immediately post cessation of the claimant’s Worktrack involvement there was other evidence available.  The information from the Department indicated that the maximum period for Worktrack involvement was 26 weeks and the claimant had exhausted that period.  To be eligible for such a scheme it was necessary to have been in long-term receipt of job seeker’s allowance immediately prior to participation.  Clearly the claimant could not have satisfied this condition since she had been on the Worktrack scheme for the full 26 weeks at that time.  The claimant’s sister, whom the tribunal found to be an entirely credible witness, gave evidence that no additional scheme was arranged.  The claimant’s sister also gave evidence that the respondent was aware that the scheme would be ending and that he had, prior to that time, agreed to keep the claimant on.  The tribunal accepted this evidence.  

 6.	There was no dispute that the claimant continued to work in the respondent’s premises.  Her involvement with Worktrack ceased, according to the Department, on 25 August 2002 which was a Sunday.  The following day would have been the August bank holiday.  According to the claimant she did not, as she had done while she was on the Worktrack scheme, take Tuesdays off for attendance at college once the Worktrack scheme had ended.  The respondent accepted that she was actually at work on Wednesday 28 August 2002.  There was no dispute that she continued to work at the respondent’s premises until August 2003 when the relationship terminated.  Again there was a stark conflict of evidence as between the parties as to the circumstances in which that termination took place.

	According to the claimant in her originating application she had, during the course of her time with the respondent, been dealing with cash received and preparing bank lodgements.  On Thursday 14 August 2003 the respondent’s partner, Roisin Molly, came into the claimant’s place of work and asked where the money was.  Subsequently on Monday 18 August she was asked to have a discussion with the respondent in relation to an allegation that money was missing from the till.  He asked her to his house to have a look at a video tape which would incriminate her.  The respondent told her he would phone the police and assaulted her causing her physical harm.  The claimant’s originating application went on to say that the respondent did not sack her.  He had accused her of stealing money from the till.  She was frightened to return to her place of work.  

 7.	In direct evidence to the tribunal the claimant stated that she was sacked by the respondent on 18 August.  In cross examination and in response to questions from the tribunal the claimant stated on the Thursday (14th) of her final week he had mentioned to her that he thought his partner’s cousin was stealing money but had said nothing further to her until Monday 18 August.  On the Monday the respondent came down to the claimant’s work premises at about 12 o’clock and asked if she wanted to go to his house for a cup of tea.  When she got there his partner asked where was the money, the respondent said that the game was up and that he knew she had been stealing from him, that he had video and verbal evidence and was going to phone the police.  The claimant indicated that she was agreeable and that she would wait, whereupon the respondent subjected her to physical assault.  The claimant’s case was that this amounted to constructive dismissal.

 8.	The respondent, on the other hand, indicated that he had become concerned at reduced takings, a concern which had come to ahead in August 2003.  He had approached the claimant on Friday 15 August first thing and told her that he had video evidence of her stealing from him.  He said the police were going to be involved whereupon she pleaded with him not to do that and offered to repay.  He said that they would have to come to some arrangement about the amount and that the claimant must understand that she was sacked.  A meeting was arranged for Monday to agree the figures of repayment.  The respondent also gave evidence about a document allegedly signed by the claimant dated 15 August but as neither the original document nor either of the original witnesses to the document were brought before the tribunal, the tribunal attached no weight whatsoever to this document.

 9.	As has already been said the tribunal did not find either of the parties to be satisfactory witnesses.  However the events described by the respondent seemed to the tribunal to be infinitely more likely than those described by the claimant and more consistent with the one agreed fact namely that there was a problem about missing money as of 14 August.  It seems infinitely more likely to the tribunal that the respondent would, in the light of that problem, have been taking investigative action and, further, that he would have sacked the claimant immediately he had formed the conclusion that she was responsible.  The tribunal does not accept the claimant’s evidence that following that difficulty he had said nothing whatsoever until Monday morning when he had issued an invitation to come for a cup of tea.  The tribunal does not regard this as credible.

10.	The first issue for the tribunal is whether the claimant was employed by the respondent as of 25 February 2002.  In the tribunal’s view she was not.  The evidence of the Department that the lead provider, namely Citywide Action, was regarded as the claimant’s employer and was responsible for paying her, evidence which was confirmed by the claimant’s own sister, is indicative of the employment relationship being with Citywide Action if indeed there was any employment relationship at all.  When it is recognised that, in addition to paying the claimant, Citywide Action was also the organisation responsible for discipline and administration of the Worktrack scheme one is led to the conclusion that, during the operation of Worktrack scheme, the claimant, if she was employed by anyone, was employed by Citywide Action.  She may have been working at the respondent’s premises but she was not in his employment during that period.  Given that this was a government operated scheme this is, in fact, what one would expect.

11.	In the tribunal’s view the situation changed at the conclusion of the Worktrack scheme.  The tribunal accepted the evidence of the claimant’s sister that the respondent was aware of the ending of the scheme and had, prior to that occurring, agreed to keep the claimant on.  In the tribunal’s view that agreement amounted to a contract to employ the claimant as from the termination of the Worktrack scheme.  The Worktrack scheme terminated on 25 August 2002 and, accordingly, the respondent agreed to employ the claimant as from 26 August 2002.

12.	The question arose before the tribunal as to whether the starting date for computing the claimant’s period of employment should run from the date on which the contract of employment started or from the date when she actually started work.  On behalf of the claimant it was submitted that it should be from 26 August 2002.  On behalf of the respondent it was suggested that should be the date she actually started work though neither party was able to quote any authority on the point.  Counsel for the respondent was prepared to accept that if there was a contract under which the employee was due to start and could not do so then the contractual date might be the relevant date, though he pointed out that here there was, at best, an oral contract only.  In the tribunal’s view a contract whether oral or otherwise remains a contract.  The tribunal notes the decision of the EAT in General of the Salvation Army -v- Dewsbury 1984 IRLR 222 where it was stated that the phrase “starts work” is not intended “to refer to the undertaking of the full duties of employment: it is intended to refer to the beginning of the employee’s employment under the relevant contract of employment.”  That case involved the May bank holiday rather than the August bank holiday but the principle remains the same.  Accordingly, the tribunal finds that the claimant’s employment by the respondent commenced on 26 August 2002 despite the bank holiday.

13.	The next question for the tribunal was when the claimant’s period of employment ended.  As stated above the tribunal accepts the evidence of the respondent in relation to the termination of the employment rather than that of the claimant.  Accordingly the contract was terminated, summarily, on 15 August 2003.  Article 129 of the Employment Rights Order (Northern Ireland) 1996 provides that where the contract of employment is terminated by the employer and the notice required by Article 118 to be given by an employer would, if it had been duly given, expire on a date later than the effective date of termination (in this case 15 August 2003) then for the purposes of Article 140, which prescribes the minimum period of one year’s employment, the later date is the effective date of termination.  Accordingly, the effective date of termination for the purposes of computing the claimant’s period of employment is 22 August 2003.

14.	The prescribed period is “not less than one year”.  The normal rule is that where such a period appears in a statute it is dealt with by reference to the calendar and that rule is, in effect, incorporated into the legislation by Article 6 which, in paragraph (2), states that “where it is necessary to compute the length of an employee’s period of employment it shall be computed in months and years of twelve months.  The case of Pacitti Jones -v- O’Brien 1988 IRLR 888 was cited to the tribunal on the respondent’s behalf.  In that case the EAT, in discussing the meaning of the phrase “not less than one year” noted with approval the view adopted in West -v- Kneels Ltd that an employee whose employment commenced on 23 July 1984 had on 22 July 1985 been employed for one year.  It follows that an 
employee who starts work on 26 August 2002 will have one year’s service on 25 August 2003.  In this case the claimant’s period of service ended on 22 August 2003 and accordingly she fails to satisfy the minimum period required.  

Chairman:

Date and place of hearing:	16 July, 17 August, and 17 October 2007, Belfast.

Date decision recorded in register and issued to parties: