THE INDUSTRIAL TRIBUNALS

CASE REF:	414/10

CLAIMANT:			Richard Croft (junior)

RESPONDENTS:		1.  Pembroke Services Limited (in liquidation)
2.  Department for Employment and Learning		

DECISION
The Department is not liable to make any payment to the claimant in respect of redundancy pursuant to Article 201 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”), and the appeal against the Department’s Article 227 statutory decision is dismissed  

Constitution of Tribunal:
Chairman (sitting alone):		Mr Paul Buggy

Appearances:
The claimant was represented by his father, Mr Richard Croft (senior).
The respondent Department was represented by Mr P Curran of its Redundancy Payments Branch.

REASONS

1.	At the end of this hearing, I issued my decision orally.  At the same time, I gave oral reasons for the decision.  Accordingly, what follows is by way of summary only.

2.	The claimant is deaf. Because of that deafness, he cannot speak.  Nevertheless, for several years, he has been fully involved in the world of work. On account of his deafness, he has been subject to many disadvantages.  However, with the support of his father, he has worked very hard to minimise those disadvantages.  In my view, the claimant and his father are entitled to considerable respect, and indeed to considerable admiration, because of those efforts.

3.	In these proceedings, the claimant makes a claim against Pembroke Services Limited, his former employer, in respect of a redundancy payment. However, that claim against the employer cannot be pursued without the leave of the High Court, because the employer is in liquidation. 

4.	In some situations, if an employer is either unwilling or unable to make a redundancy payment to a worker (who is entitled to such a payment from the employer) the State steps in to provide some basic assistance to the employee.  In such situations, the Department, acting as the statutory (or State) guarantor in respect of redundancy payment debts, may make a payment to the employee of an amount equivalent to the amount which is due to that employee  (under redundancy payments law) from the employer. If an employer is in liquidation, and if that employer owes notice pay to an employee, the Department must pay an amount to that employee in respect of that debt (in the Department’s role as the statutory guarantor in respect of certain employment debts).

5.	The claimant made an application to the Department for a payment of an amount equivalent to the amount of redundancy payment which the claimant asserts is due to him from Pembroke Services Limited.  That request was refused.  This was a hearing in respect of the claimant’s reference (appeal) in respect of that refusal.  The claimant also made an application to the Department for a payment in respect of notice pay which was allegedly also due from the employer. The Department refused to make any such payment this was also an appeal against that refusal.

6.	The Department opposed this appeal on two grounds.  

7.	First, the Department said that the claimant had lost his entitlement to claim a redundancy payment because he had not made a written application for such a payment within the relevant statutory time-limits. Although I was satisfied that the claimant had not made an application for a redundancy payment within the primary time-limit provided for in the 1996 Order,  I was also satisfied that it was just and equitable to extend the time-limit, particularly because of the communications difficulties which are one effect of the claimant’s deafness.  

8.	Secondly, the Department asserted that the claimant had not lost his job when   Pembroke Services sent him a letter of dismissal.  Instead, according to the Department, immediately after the claimant’s “dismissal” by Pembroke Services, he had become the employee of a new employer, and that that new employer was the transferee under a transfer of the undertaking (the entity) to which the claimant had been assigned immediately before the “dismissal”. According to the Department, the result was that the claimant had not lost his job and therefore he had not become entitled to a redundancy payment or to notice pay.

9.	I am convinced that the Department is right in its arguments in respect of the transfer of undertakings issue.  

10.	The claimant was employed at a car park at Belfast International Airport.  He was employed by Pembroke Services.  Pembroke Services purported to sack him, on the ground of redundancy, with effect from 30 April 2009.  However, the running of the relevant car park was taken over by a different company (a “new” company) with effect from that date.  The claimant was employed by the new company, with effect from 1 May 2009, without any employment gap, and at the same site (the same car park).  After 30 April 2009, the claimant continued to carry out the same job, at the same premises; and he continued to work on much the same type of vehicles, for the benefit of much the same range of customers.  

11.	Against that background, I am satisfied that there has been a transfer of undertakings, and that the claimant’s employment has been taken over by the transferee (Europ Car UK Limited).  Therefore, he has not lost his job.  Therefore, he is not entitled to a redundancy payment from Pembroke Services Limited, and he is not entitled to receive any pay in lieu of notice from Pembroke Services Limited.

12.	Accordingly, with regret, I conclude that the Department was right not to make any payment to the claimant in respect of redundancy pay, and that it was right not to make any payment to the claimant in respect of notice pay.  

13.	The current position is that the claimant still has a live claim against Pembroke Services Limited, in respect of a redundancy payment.  That claim cannot be pursued against the employer, because it is in liquidation, unless and until the consent of the High Court is obtained.

14.	I assume that Mr Croft senior and Mr Croft junior will both be of the view that there is no point in seeking the leave of the High Court, to continue the claim against the employer, in view of the outcome of these appeals.

15.	If the leave of the High Court has not been obtained by 31 March 2011, the claim against the employer may thereafter be struck out without further notice.  

Chairman:

Date and place of hearing:  11 November 2010, Belfast.		

Date decision recorded in register and issued to parties: