1361_07IT Kirkby v Ward Design [2008] NIIT 1361_07IT (05 June 2008)

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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Kirkby v Ward Design [2008] NIIT 1361_07IT (05 June 2008)
URL: http://www.bailii.org/nie/cases/NIIT/2008/1361_07IT.html
Cite as: [2008] NIIT 1361_7IT, [2008] NIIT 1361_07IT

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    THE INDUSTRIAL TRIBUNALS

    CASE REF: 1361/07

    CLAIMANT: Anthony Kirkby

    RESPONDENT: Ward Design

    DECISION

    The decision of the tribunal is that the claimant's claim in respect of unpaid contractual holiday pay is dismissed.

    Constitution of Tribunal:

    Chairman: Mrs A Wilson

    Members: Mr Copeland

    Ms Mulligan

    Appearances:

    The claimant did not appear nor was he represented.

    The respondent did not appear nor were they represented.

    Sources of Evidence

    The tribunal considered the originating claim form, the response, a bundle of documents provided by the claimant and a bundle of documents forwarded by the respondent.

    The Claim

    The claimant claims £1,270 in respect of unpaid holiday entitlement outstanding at the date of termination of his employment with the respondent.

    Findings of Relevant Fact

  1. The claimant was employed by the respondent as a land buyer from 13 November 2006 to 31 May 2007.

  2. The claimant had a contractual entitlement to 30 days paid holidays.

  3. The claimant's contract of employment provided as follows:

    4. "On termination of your employment

    You shall be entitled to annual holiday with pay, or pay in lieu thereof, proportional to your length of service in that holiday year less any holiday already taken. Where paid holidays have been taken in excess of accrued paid entitlement at the date of termination of employment such excess shall be deducted from monies due".

    The claimant's contract further provided:

    "The business closes down for holiday on certain days during the year and you are required to take part of your holidays at these times which are as follows Christmas/New Year period, Easter".

  4. The claimant's employment with the respondent was terminated by notice dated 1 May 2007 and termination was to take effect on the last working day in May 2007. The claimant was paid in full during the notice period.

  5. The claimant's pro rata holiday entitlement on termination of his employment was 16.36 days.

  6. The claimant took the following holidays during his employment:-

    7. December 2006 – 5 days (office closure at Christmas)

    January 2007 – 1 day (office closure at New Year)

    Personal holidays taken – 4.5 days

    April 2007 – 2 days (office closure at Easter)

  7. Following the claimant's receipt of the notice terminating his employment, the claimant e-mailed the respondent in the following terms on 4 May 2007:-

    8. "Notice period – Unless you have some specific reason for continuing my employment for another four weeks I would prefer to terminate my employment on 11 May, I am hardly likely to be motivated following this devastating news. This will give me next week to finalise the information on an appraisal of 48 Summer Hill Road so you can make a pre-auction bid. My contract states that I am entitled to one month's notice but I would be obliged if you could agree that my employment is terminated on that date and the balance is paid as pay in lieu of notice gross without deduction of tax or national insurance (PILON). This will not affect you as it will be my responsibility to deal with the Inland Revenue".

  8. Liam Ward of the respondent organisation e-mailed the claimant in the following terms on 21 May 2007:-

    9. "You said in your e-mail of 4 May that you wanted to terminate your employment on 11th. Since this was not authorised, I could regard this as absence without leave. However, given that you had some holiday entitlement outstanding, and as a gesture of goodwill, I am prepared to overlook this. I will continue to pay you in the normal way, being weekly on a Friday with PAYE deductions, until the end of the month. That will relate to the period of termination as set out in my letter".

  9. The claimant responded by e-mail of 23 May:-

    10. "You have now clarified the situation and I am pleased to note that you will still pay me up to the end of the month when I assume I will also receive my P45"

    raising no issue regarding the respondent's indication that the period between 11 May and 31 May would be offset as paid holidays as a gesture of goodwill.

  10. It is the claimant's case that he continued to work for the respondent throughout May 2007. It is the respondent's case that the claimant finished work on 11 May 2007. The claimant has furnished a schedule of work related e-mails passing between the parties up to 31 May. However in the absence of testimony from the claimant and considering the exchange of e-mails between 4 May and 23 May the tribunal find that the claimant finished work on 11 May.

    11. Decision

  11. The tribunal find that at 1 May 2007, the date upon which the claimant was given notice of termination of his employment the claimant had taken 12 1/2 days leave out of a pro rata leave entitlement of 16.36 days.

  12. The tribunal in reliance on the exchange of e-mails between the parties from 4 May to 23 May find that the period from 11 May 2007 to 31 May 2007 was treated by the respondent as holidays and that the claimant was paid on that basis as a gesture of goodwill.

  13. The tribunal find that the respondent did not accede to the claimant's request that pay for this period be treated as pay in lieu of notice and this was made clear in the e-mail of 21 May.

  14. The tribunal find that the claimant acquiesced with the respondent's proposals as set out in the e-mail of 21 May in treating the payment for the period from 11 May 2007 to 31 May 2007 as holiday payment in that he raised no issue with respect to this in his e-mail of 23 May.

  15. The tribunal find that even if the period between 4 May (being the date upon which the claimant expressed a desire to finish work on 11 May) and 21 May (being the date upon which the respondent replied to that request indicating a willingness to offset the period as paid holidays) were to be discounted in respect of holiday entitlement the period between 21 May and 31 May were paid on the basis that payment was offset in respect of holiday entitlement. This alone was sufficient to exceed the claimant's contractual entitlement to paid holidays.

  16. This claim is dismissed.

    17. Chairman:

    Date and place of hearing: 7 May 2008, Belfast.

    Date decision recorded in register and issued to parties:

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