THE INDUSTRIAL TRIBUNALS

CASE REF:    7221/09

CLAIMANT:	Sheelagh Roberts

RESPONDENTS:	1.	Geoff Couston
2.	David Davidson
3.	Sheila Davidson
4.	NIMMS
5.	NIMMS Limited

DECISION

The unanimous decision of the tribunal is that the claims in respect of unfair dismissal and holiday pay are dismissed.

Constitution of Tribunal:

Chairman:	Mr N Kelly

Members:	Mr J Hall
	Mr J Patterson

Appearances:

The claimant appeared in person.

Mr Geoff Couston appeared in person.

NIMMS Limited was represented by Mrs Sheridan of Peninsula Business Services.

Mr David Davidson and Mrs Shelia Davidson did not appear and were not represented.

ISSUES

(1)	The issues for the tribunal to determine were:-

	(i)	Whether the claimant had been unfairly dismissed on the grounds of redundancy?

	(ii)	If so who was the correct respondent?

	(iii)	Whether the claimant was owed £1,240.00 in respect of 10 days holiday pay?

	(iv)	If so, who was the correct respondent?

RELEVANT FINDINGS OF FACT

(2)	One of the respondents, Mr David Davidson, owned and operated a press cuttings agency under the trade name “NIMMS”.  Mr Davidson was declared bankrupt on 15 January 2010.

(3)	The business, including its physical assets, was purchased from the Trustee in Bankruptcy by NIMMS Limited, which was a limited company incorporated on 22 October 2009.  As part of the business sale agreement, NIMMS Limited acknowledged its TUPE responsibilities for the employees of Mr Davidson, operating as NIMMS, who were in employment on 15 January 2010.  Those employees were listed in a Schedule to the agreement.  The claimant was not listed in that Schedule because she had been made redundant some six months previously.

(4)	The claimant had alleged that Mr Geoff Couston had become an owner or 
part-owner of the business before her redundancy took effect.  The tribunal, after hearing Mr Couston and the claimant, is satisfied, on the balance of probabilities, that Mr Couston, who had recently been made redundant and was the brother-in-law of Mr Davidson, had acted only as an unpaid consultant to Mr Davidson in the process leading up to the claimant’s redundancy and in the general running of the business in the period leading up to Mr Davidson’s bankruptcy.  Mr Couston denied that he had put any money into the business and there was no evidence that he had done so.  The claimant also alleged that there had been a partnership of some sort between Mr Couston, Mr Davidson and Mrs Shelia Davidson, Mr Davidson’s wife, at the time of her redundancy.  Again, there is no evidence that this was the case and it would appear that bankruptcy proceedings were issued only against Mr Davidson.  The tribunal was therefore satisfied that, at all relevant times, the claimant’s employer was Mr David Davidson and no one else.

(5)	Mr Geoff Couston acted as an advisor in relation to the claimant’s redundancy and gave evidence of the detailed procedure leading up to the decision to make the claimant redundant and the implementation of that redundancy.  There was no evidence that the redundancy had been carried out in contemplation of a TUPE transfer to NIMMS Limited.  The tribunal is satisfied that Mr Davidson, with the assistance of Mr Couston, was still trying to save the business when the claimant was made redundant in July 2009.

(6)	The tribunal is also satisfied that the dismissal was on the ground of redundancy and that the dismissal was procedurally and substantively fair.  The claimant was notified that she was at risk of redundancy and was invited to comment and make proposals.  There were three consultation meetings and she was afforded an appeal.  It was clear that her employer, Mr Davidson, was in serious financial difficulty in the summer of 2009 and that he had to make significant financial savings in the operation of his business.  HMRC were seeking payment of a sum in excess of £100,000.00 in respect of a previous failed IVA.  The tribunal is therefore satisfied that the claimant had been fairly made redundant by Mr Davidson on 9 July 2009 and the claim for unfair dismissal was therefore dismissed.

(7)	The claimant was advised in a letter of 15 June 2009 that:-

	“During the consultation period you will not be required to work.”

	The claimant had previously booked ten days holiday which she proceeded to take during a consultation period.  She did not cancel those days of annual leave and she did not raise the specific issue with Mr Davidson at the time.  Her later claim in this respect was that she should have been credited with those ten days annual leave and that she should have received payment in that respect on the termination of her employment.  There was no contractual or logical reason why this should have been the case and the tribunal dismisses the claim in respect of holiday pay.

Chairman:

Date and place of hearing:    4 and 5 October 2010, Belfast.

Date decision recorded in register and issued to parties: