THE INDUSTRIAL TRIBUNALS

CASE REF:	291/10

CLAIMANT:			Philip Smyth

RESPONDENT:	Hugh McGauran T/A McGauran Aggregate Crushing & Crusher Maintenance

DECISION
The unanimous decision of the tribunal is that the claimant is entitled to a statutory redundancy payment, the respondent failed to give the claimant proper notice, to pay him in lieu of his accrued holiday entitlement and, when proceedings were commenced, was in breach of his duty to provide a written statement of employment particulars. The respondent shall pay the claimant £4,300.00.

Constitution of Tribunal:
Chairman:				Ms M Bell
Members:				Mr P Archer
					Mr P Killen

Appearances:			
The claimant appeared in person.  
The respondent did not appear and was not represented.

1.	The claimant in his claim complained that he had not received notice in breach of his contract of employment, redundancy or outstanding holiday pay from the respondent after being advised by the respondent that he had no more work for the claimant and that the respondent failed to provide him with a statement of the main terms and conditions of his employment and itemised payslips.

2.	No response was presented by the respondent.
Issues

3.	The issues for the tribunal were:

-	What was the amount of a week’s pay for the claimant?
-	Is the claimant entitled to a redundancy payment?
-	Did the respondent give the claimant proper notice?
-	Did the respondent pay the claimant in lieu of accrued holidays?
-	Was the respondent in breach of his duty when proceeding commenced to provide a written statement of employment particulars?

Evidence

4.	The tribunal considered the claim, documents handed in by the claimant and heard the claimant’s oral evidence.

Findings of Fact

5.	The claimant who was born on 7 June 1982 commenced employment with the respondent on about 5 June 2001 as a quarry operative. The claimant’s normal working hours were 40 hours per week at £7 per hour, the respondent could require the claimant to work overtime and frequently did, but was not obliged to provide overtime hours which were paid at a higher rate. The claimant was subsequently promoted to quarry supervisor. The respondent did not provide the claimant with a written statement of employment particulars at any time. The claimant was paid £280.00 gross per week being £240.00 net for his normal working hours.

6.	The claimant did not take holidays in excess of his statutory minimum entitlement during his employment with the respondent. Between 5 June 2009 and termination of his employment the claimant took in total two weeks holidays from 6-14 June and one week in July 2009.

7.	Over a number of months prior to November 2009 the claimant became aware that work being done by the respondent was diminishing. On 6 November 2009 the respondent told the claimant that there was no more work and that he should ‘sign on’. The respondent wrote to the claimant on 9 November 2009 confirming that he had been laid off due to lack of money and orders and enclosed his P45.

8.	The claimant sent the respondent a grievance letter on 30 November 2009 as he had not received a redundancy payment or payment in lieu of notice. The respondent replied on 3 December 2009 confirming that entitlement to a redundancy payment was not in dispute, but cash flow was the reason for delay. The respondent also confirmed that holiday pay was due to the claimant. 

9.	The claimant has not received any payment from the respondent since termination of his employment in respect of redundancy, notice or holiday pay. 

The Law

A week’s pay

10.	Subject as provided therein, under Article 18 of The Employment Rights (Northern Ireland) Order 1996, 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.

Redundancy Pay

11.	Article 170 of the 1996 Order provides that an employer shall pay a redundancy
payment to any employee of his, if the employee is dismissed by the employer by reason of redundancy.  Circumstances in which an employee who is dismissed shall be taken to be dismissed by reason of redundancy are set out at Article 174 of the 1996 Order and include if the dismissal is wholly or mainly attributable to the fact that the requirements of that business for employees to carry out work of a particular kind have ceased or diminished or are expected to cease or diminish.

12.	Article 197 of the 1996 Order sets out how the amount of the redundancy payment shall be calculated.

Notice

13.	Under Article 118B of the 1996 Order an employer is required to give minimum notice to terminate the contract of employment of a person of not less than one week’s notice for each year of continuous employment if his period of continuous employment is two years or more but less than 12 years.

14.	Under the Industrial Tribunal Extension of Jurisdiction Order (Northern Ireland) 1994 an employee may bring a claim for damages for breach of his contract of employment or for a sum due under that contract, or any other contract connected with his employment, before an industrial tribunal if the claim arises out of or is outstanding on termination of his employment.

Holidays

15.	The Working Time Regulations (Northern Ireland) 1998 as amended provide under Regulations 13 and 13A for a worker to have minimum leave in a year of 5.6 weeks from 1 April 2008.

16.	Regulation 13(3) (b) of the 1998 Regulations makes provision that a worker’s leave year for the purposes of this regulation begins, where there are no provisions in a relevant agreement which apply, if the worker’s employment began after 
23 November 1998, on the date on which that employment begins and each subsequent anniversary of that date.

17.	Under Regulation 14(2) of the 1998 Regulations where the proportion of leave taken by the worker is less than the proportion of the leave year which has expired, his employer shall make him a payment in lieu of leave in accordance with paragraph (3) therein which sets out a formula to be used in the absence of provision in a relevant agreement.

Failure to provide written statement of employment particulars

18.	Article 33(1) of the 1996 Order requires that where an employee begins employment with an employer the employer shall give to the employee a written statement of particulars of employment.

19.	Under Article 27(3) of The Employment (Northern Ireland) Order 2003, where the industrial tribunal makes an award to the employee in respect of the claim to which the proceedings relate (being any of those jurisdictions listed in Schedule 4) and when the proceedings were begun the employer was in breach of his duty to the employee under Article 33(1) of the 1996 Order the tribunal shall increase the award by the minimum amount, being equal to two week’s pay, and if it considers just and equitable in all the circumstances, increase the award by the higher amount instead, being equal to four week’s pay.  The jurisdictions listed in Schedule 4 include redundancy payments and breach of employment contract and termination.

Applying the Law to Facts Found

20.	The tribunal on consideration of all the evidence before it is satisfied on a balance of probabilities of the following:

A week’s pay

21.	On the claimant’s evidence his normal working hours were 40 per week at £7 per hour. The tribunal finds that the claimant’s remuneration in normal working hours did not vary with the amount of work done in the period and as such that under Article 18 of the 1996 Order his week’s pay was £280 gross and £240 net.

Redundancy Payment

22.	The claimant’s dismissal was by reason of a redundancy as defined in Article 174 of the 1996 Order, where the requirements of the respondent’s business for the claimant to carry out work of a particular kind have ceased or diminished  and the claimant is entitled to a redundancy payment calculated in accordance with Article 197 of the 1996 Order as follows;

3 years continuous employment x 0.5 x £280.00	= £420.00

Notice

23.	Article 118B of the 1996 Order implies a minimum notice requirement of eight weeks into  the claimant’s contract of employment with the respondent, the claimant having eight years continuous employment at his effective date of termination on 
6 November 2009. The claimant did not receive proper notice and is entitled to eight weeks net pay in lieu thereof, being £1,920.00.

Holidays

24.	There was no relevant agreement in place in respect of the claimant’s holidays. Applying Article 13 of the 1998 Regulations the claimant’s last holiday year began on 5 June 2009 ending on 6 November 2009 in which he would have been entitled to a minimum of 5.6 weeks paid holidays for a full year but as he worked five out of twelve months his pro rata entitlement would have been 2.33 weeks, less the two weeks holidays already taken by him, leaving a balance of 0.33 weeks. The claimant is accordingly entitled to holiday pay of:

£240.00 x 0.33 = £ 80.00

Failure to provide a written statement of particulars of employment

25.	The tribunal has made awards in respect of the claimant’s redundancy payment and breach of contract claims and finds that when the proceedings were begun on 
4 February 2009 the respondent was in breach of his duty to give the respondent a written statement of employment particulars and awards the claimant an amount equal to two weeks pay, being £480.00. 
		
Conclusion

26.	The tribunal finds that the claimant is entitled to a statutory redundancy payment, the respondent failed to give the claimant proper notice, to pay him in lieu of his accrued holiday entitlement and when proceedings were commenced was in breach of his duty to provide a written statement of employment particulars. The respondent shall pay the claimant £4,300.
Summary of Compensation Awarded

27.	Redundancy Payment 		 £1,820.00
Notice					 £1,920.00 
Holiday Pay 				 £     80.00
Failure to give written statement 	 £   480.00

	TOTAL				            £4,300.00
		
28.	This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1996.

	
Chairman:

Date and place of hearing:  7 June 2010, Belfast.	

Date decision recorded in register and issued to parties: