THE INDUSTRIAL TRIBUNALS

 	CASE REF:  815/11

CLAIMANT:			John Higgins

RESPONDENTS:	1.  Mervyn McAlister trading as The Marine Hotel 

	2.  McAlister Investments Limited trading as The Marine
                                                Hotel

DECISION

The Decision of the Industrial Tribunal is that the claimant was not employed by the first named respondent but by the second named respondent, a company in which the first named respondent was the managing director. Accordingly the title of the proceedings is ordered to be amended as above and the claim against the first named respondent is dismissed.  The claimant terminated his employment with notice to the second named respondent, after a period of “pay of” and accordingly is entitled to payment by the second named respondent of monies in respect of redundancy pay. The second named respondent is also ordered to pay £263.20 in respect of holiday pay outstanding at the date of termination of the claimant’s employment. The second named respondent is ordered to pay to the claimant the sum of £3,673.20.

Constitution of the Tribunal

Chairman (sitting alone):		Ms M Sheehan

Appearances: 

The claimant was represented at hearing by Mr A Higgins Barrister at Law instructed by Keown Solicitors.  

Mr McAlister had failed to enter a response and therefore was not entitled to appear at hearing.  

The Issues

1.	The main issues for the tribunal to decide were (a) who was the claimant’s employer at the effective date of termination of employment; (b) was the claimant eligible for redundancy payment by reason of being laid off; (c) the amount of any redundancy payment due in respect of same; (d) was the claimant entitled to holiday pay and if so the amount of same. 

The Facts

2.	The tribunal considered the claim form. There was also oral evidence given by the claimant and his partner Esther Dobbin.  A bundle of documents was produced at the hearing by the claimant’s representative which included various correspondences between the parties after the “lay off” period and the notice of intention from the claimant to the respondent to claim a redundancy payment. On the basis of the evidence received we make the following findings of fact.

3.	The claimant was employed initially at the Marine Hotel in July 1994, by a Mr C McGinn and Mr P Doolay. There were a number of uninterrupted transfers of his employment and by 2005 he had become assistant manager and the business was owned by the second named respondent McAlister Investments Limited trading as The Marine Hotel. At the time of commencement of his employment the claimant was aged 21 years of age and was 37 years of age when he terminated that employment. The claimant was never given a written statement of main terms and conditions of employment. 

4.	By 2006 the claimant was the assistant manager in the Leisure Centre of the Marine Hotel. The claimant was employed at the national minimum hourly rate of pay and normally worked 40 hours per week. The salary prior to the commencement of “lay off” on 23 December 2010 was weekly £220.00 before tax and national insurance. The weekly net wage was £188.00. 

5.	The claimant was advised verbally on 23 December 2010 that he was being placed on temporary lay off for an initial nine week period up to March 2011. By letter which was dated 23 December 2010, but not received until 30 December 2010, this “lay off” was confirmed in writing. The reason given was that the hotel would be temporarily closed with the intention of reopening in March 2011. The letter stated that the jobs of employees would remain open.  During this period the claimant was provided with no work by the respondent and received only five days guaranteed payment to cover the period of lay off. By letter dated 27 January 2011 the claimant gave notice to the first named respondent of his intention to claim a redundancy payment. The claimant wrote to Mervyn McAlister of McAlister Holdings because he believed at that time Mr McAlister was his employer. He received a letter dated 
1 February 2011, on The Marine Hotel headed notepaper, acknowledging his letter dated 27 January 2011. It advised “there are no available funds to meet your redundancy request”. It also indicated that McAlister Investments was “not trading at the current time”. By letter dated 15 February 2011 the claimant gave notice to terminate his contract of employment. He gave a week’s notice which expired on 
22 February 2011. A further letter dated 27 February 2011 was sent by the claimant to Mervyn McAlister complaining that his statutory redundancy payment was unpaid and seeking its payment together with monies in respect of outstanding holiday pay. 

6.	The claimant received no response from the first named respondent to his letters in February 2011 and submitted a claim to the Industrial Tribunal on 22 March 2011. In the claim form the claimant disclosed that he had claimed job seekers allowance. The claimant indicated he had not found alternative employment as of the 22 March 2011.  At hearing the claimant confirmed he signed on for jobseekers allowance from 7 January 2011 and received the sum of £65 a week. He had not been able to find alternative employment to date.

7.	No response to the claim was submitted by either respondent or by anyone on behalf of The Marine Hotel. In May 2011 there was publicity about the Marine Hotel being placed in receivership. A letter was received by the claimant in May 2011 from FGS McClure Watters advising they had been appointed Joint Administrative Receivers of McAlister Investments Limited trading as The Marine Hotel Ballycastle. They advised the claimant that they understood him to be employed by the above company and that “your employment ceased when The Marine Hotel and Country Club closed on 23 December 2010”. It enclosed a Form RP1 to be forwarded directly by the claimant to the Redundancy Payments Service.    

8.	There was no written statement of terms and conditions of employment ever received by the claimant but throughout his employment the holiday year had run from 1 April to 31 March. His annual entitlement was 28 days and prior to 23 December 2010 he calculated he had 7 days of entitlement outstanding.  

The Relevant Law and Decision

9.	The tribunal considered the provisions of Article 170 (1) (b) of the Employment Rights (Northern Ireland) Order 1996 (hereafter referred to as the 1996 Order) which states that an employer “shall pay a redundancy payment to any employee of his if the employee is eligible for a redundancy payment by reason of being laid off or kept on short time”. Employers do not have automatic right to lay off employees without pay. Their right depends on contractual provisions which can be incorporated into the contract of employment in a number of ways. It can be expressly written, included in a collective agreement, implied as a term through custom and practice or agreed by both parties to the contract. 

10.	There are certain conditions laid out in Part XII of the 1996 Order which the claimant must satisfy to protect his entitlement to a redundancy payment. The relevant provisions in respect of this claimant are found in Articles 182 – 185, 190,  198 and 199 of the 1996 Order. Article 183 to 185 inclusive sets out qualifying conditions that must be satisfied to protect that eligibility to redundancy payment. Article 185 of the 1996 Order provides “An employee is not entitled to a redundancy payment by reason of being laid off unless he terminates his contract of employment by giving such period of notice as is required for the purposes of this Article before the end of the relevant period”. The relevant period is defined in Article 185 (3) - in effect before the expiration of four weeks from service of the notice of intention to claim. The period of notice required in the circumstances where the employee is required by his contract of employment to give more than one weeks notice to terminate the contract is “the minimum period which he is required to give and otherwise one week”.  

11.	The date of termination is governed by Article 180 (2) (b) of the Employment Rights (Northern Ireland) Order 1996 and is the date the “termination takes effect”.  

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

13.	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.
   
Applying the Law to Facts Found

14.	The tribunal has determined that the first named respondent be dismissed from these proceedings as he was not the employer of the claimant at the relevant time in particular at the relevant date of termination of that employment. The claimant had received no written statement of terms and conditions naming his employer but in light of the correspondence produced from the Joint Administrative Receivers and the letter in response to the initial notice of intention to claim redundancy it appears to the tribunal on the balance of probabilities that the correct name of the claimant’s employer just prior to termination of that employment is McAlister Investments Limited trading as The Marine Hotel.

15.	The tribunal is not able to be satisfied on the evidence that the respondent had a right to “lay off” the claimant without pay. However the claimant did not raise an objection to same at the relevant time and did not treat it as a breach of his contract of employment. The claimant established that he is eligible for a redundancy payment by reason of “lay off” as provided for by Article 183 of the 1996 Order. The period of lay off commenced for this claimant on 23 December 2010 and the claimant had received notice that it would continue for 9 weeks taking it to March 2011. During the period of “lay off” the claimant received no payment other than the five days guarantee payments and job seekers allowance. While the respondent acknowledged the claimant’s notice of intention to claim redundancy the respondent’s response did not amount to a counter notice within the terms of Article 184 of the 1996 Order. 

16.	The claimant must give notice of resignation as required by Article 185 of the 1996 Order before “the end of the relevant period” – see Article 185 (1) of the 1996 Order. The period of notice to be given in this case was “the minimum period he was required to give, within the terms of his contract of employment and otherwise, is one week”. As there was no evidence of a contractual period the tribunal concluded that the period of notice to be given in this case was “one week”. The claimant sent one week’s notice of resignation on the 15 February 2011, thereby giving notice within three weeks of the ending of the seven day period available for the employer to give a counter notice thereby satisfying the conditions of Articles 183 and 185 (3) (a) of the 1996 Order.

17.	In all the circumstances of this case the tribunal determined that the date of effective termination for the claimant’s employment was 22 February 2011. 

18.	The tribunal considered the claimant’s claim for holiday pay and it is satisfied on a balance of probabilities that there was a sum due and owing in respect of seven days pay. The claimant’s weekly net wage was £188.00. On the basis of a five day week the daily rate was £37.60. The sum of money due in respect of seven days holiday leave accrued but not availed of amounts to £263.20. 

Award

19.	The tribunal considered Articles 17 to 20 and Articles 197 of the Employment Rights (Northern Ireland) Order 1996. There was no break in any of the claimant’s continuity of employment. The claimant had sixteen complete years of service, commencing when he was aged 21 years. This would have entitled the claimant to one week’s gross pay for each of the years service above the age of 21 and a half week’s wage for the year he was aged 21. Any redundancy payment as subject to the relevant statutory maximum weekly wage which is £380.00. The claimant is entitled to a payment representing fifteen and a half weeks gross pay – 15.5 x £220.00 = £3,410.00.

20.	The award in respect of holiday pay is £263.20. 

21.	The Employment Protection (Recoupment of Job Seeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996 do not apply to this decision. 

22.	This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing:   7 June 2011, Belfast.

Date decision recorded in the register and issued to the parties: