THE INDUSTRIAL TRIBUNALS

CASE REF:	720/13

CLAIMANT:			Lisa Louise Kearney

RESPONDENT:		Raymond Magill, Yew Tree Restaurant 

DECISION
The claimant has not suffered a loss arising from a breach of contract by the respondent and the claimant’s claim is dismissed. 

Constitution of Tribunal:
Chairman (sitting alone):		Ms M Bell

Appearances:			
The claimant appeared in person.  
The respondent appeared in person.

1.	The claimant in her claim sought payment in lieu of holidays accrued due on termination of her employment amounting to £1100. At hearing the claimant confirmed her claim was for 19 days holiday pay being £798 net. 

2.	The respondent in its response resisted the claimant’s claim on the basis that he was not informed on taking over the business that any holidays were due to the claimant, considered these should have been paid by the transferor and he had no way of estimating what the claimant was owed. 

Issues

3.	The issue for the tribunal was whether there had been a breach of contract by the respondent as a result of which the claimant had suffered a loss? 

Evidence

4.	The tribunal considered the claim, response, correspondence received from the claimant and heard oral evidence from the claimant and respondent.

Findings of Fact

5.	The claimant commenced employment as a chef in the Yew Tree Restaurant on 6 July 2010 where she was initially employed by a Mr McCrory. A relevant transfer of the business under The Transfer of Undertakings (Protection of Employment) Regulations subsequently took place to Mr William McCombe and then a further relevant transfer in January 2013 to the respondent, Mr McGill. 

6.	The claimant worked a five day week and was paid approximately £260 gross per week, being £210 net. 

7.	The claimant did not receive a written contract of employment.

8.	On the claimant’s undisputed evidence she was contractually entitled to 28 days paid holidays per year during the holiday year. The tribunal finds the claimant’s evidence credible that the holiday year ran from the start of April to end of March each year in line with the tax year.

9.	At the end of her first holiday year the claimant sought consent from Mr McCrory the owner/manager at the time to carry over her unused holidays into the 2011/2012 holiday year and was allowed to carry over no more than seven days holiday. After Mr McCombe took over the claimant did not seek specific consent to carry over unused days into the 2012/2013 holiday year but gave evidence that, ‘the whole staff thought they could carry over by not being told any different and not having a contract’ and considered she was entitled to carry seven unused days making her holiday entitlement for the 2012/2013 holiday year 35 days in total.

10.	The tribunal find credible the claimant’s evidence that she used fourteen days of her contractual paid holiday entitlement in the ten months of the 2012/2013 holiday year worked by her up to her resignation from employment on 
7 February 2013. 

11.	On the claimant’s evidence she received a payment of £500 from 
Mr McCombe on 31July 2013 prior to the hearing, paid in consideration of her not pursuing him further for any outstanding holiday pay.

The Law

12.	Under Regulation 4 of The Transfer of Undertakings (Protection of Employment) Regulations 2006 (as amended and subject as otherwise provided therein) on the completion of a relevant transfer all the transferor’s rights powers duties and liabilities in connection with any contract of employment transfer to the transferee.
 
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.

14.	Terms may be implied into a contract in a variety of ways including custom, whereby if a term is regularly adopted then it may be possible to assert that it has become customary and falls to be implied into every contract in that trade, or industry or area. Courts will not however lightly find a custom and the custom asserted must be reasonable, notorious and certain.

Applying the Law to Facts Found
  
15.	On the limited evidence before it the tribunal is not satisfied on balance that there was a reasonable notorious and certain custom of being allowed to carry up to seven unused days holidays over without permission and as such that there was a certain contractual term implied into the claimant’s contract of employment whereby the claimant was entitled to carry without permission seven days unused holidays from the 2011/2012 holiday year into the 
2012/ 2013 holiday year.

16.	The claimant worked approximately ten months of the 2012/2013 holiday year until her resignation and her balance pro rata holiday entitlement on termination of her employment was accordingly 9 days ( being 10/12 months x 28 days less 14 days taken) at £42 net per day amounting to £378.  Whilst at the time of presentation of her complaint to the tribunal the claimant’s claim for holiday pay from the respondent would have been well founded for the amount of £378, however  in light of the payment of £500 made to the claimant from the former owner of the restaurant on the morning of the hearing the tribunal finds the claimant has not suffered a loss as the result of a breach of contract by the respondent and accordingly dismisses the claimant’s claim.

Conclusion

17.	The claimant has not suffered a loss arising from a breach of contract by the respondent and the claimant’s claim is dismissed.

Chairman:

Date and place of hearing:  31 July 2013, Belfast.	

Date decision recorded in register and issued to parties: