THE INDUSTRIAL TRIBUNALS

CASE REF:	2625/15

CLAIMANT:			Julie Ann Long

RESPONDENT:		North West Methodist Mission

DECISION 
                                                 
1.	The decision of the tribunal is that the claimant did not present her claim in relation to alleged unlawful deductions from wages in time in accordance with Article 55 of the Employment Rights (Northern Ireland) Order 1996.  The tribunal is satisfied that it was reasonably practicable for her to have done so, and therefore her claim on that issue must fail in its entirety and is dismissed.

2. 	The tribunal has further decided that the claimant presented her claims for unpaid holiday pay and unpaid notice pay within time, but that she has failed to establish that any such amounts are owed to her.  Both claims are therefore dismissed.

Constitution of Tribunal:

Employment Judge (sitting alone):		Employment Judge Browne

Appearances:

The claimant represented herself.

The respondent was represented by Mr T Daly, HR Manager for the respondent.

EVIDENCE AND FINDINGS

1.	The claimant alleges that the respondent unlawfully deducted wages, and failed to pay notice pay and holiday pay which she asserts were owed to her.  I am satisfied from the evidence that the claimant’s last pay was paid to her on 11th August 2015, and that her employment ended on 18th August, on which date she was informed by telephone. 

2. 	Article 55 (3) (b) of the Employment Rights (Northern Ireland) Order 1996, which deals with unlawful deductions from wages, states:

“ (2) 	Subject to paragraph (4), an industrial tribunal shall not consider a complaint under this Article unless it is presented before the end of the period of three months beginning with -

(a)	in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or

(b)	in the case of a complaint relating to a payment received by the employer, the date when the payment was received.

(3) 	Where a complaint is brought under this Article in respect of — —

(a)	a series of deductions or payments, or

(b)	a number of payments falling within paragraph (1)(d) and made in pursuance of demands for payment subject to the same limit under Article 53(1) but received by the employer on different dates,

the references in paragraph (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received.”

3. 	I am satisfied from this that the last alleged deduction or payment ought properly to be viewed as that made to the claimant on 11 August 2015.  By being informed on 18th August that she was no longer employed by the respondent, the claimant was on notice that, as of 11 August, the last alleged deduction had been made.  The respondent at paragraph 6.2 of its initial written response to the claim had raised the issue of a potential difficulty facing the claimant because her claim for unlawful deduction of wages was not received by the tribunal office until 16 November 2015, some four days after the three-month deadline had expired.  That this was a live issue was repeated in the Case Management Discussion record of proceedings, and the claimant was asked at the hearing by the tribunal for any material upon which the tribunal might be able to find that it had not been reasonably practicable for her to submit her claim within time.

4. 	The claimant stated at the hearing only that she had been in negotiation with the respondent after her fixed-term employment expired.  Whilst the tribunal is slow to exclude a party from recourse to seeking a remedy, this does not in the view of the tribunal amount to sufficient ground to render it as being ”not reasonably practicable” to lodge a claim.  The tribunal can find no other material in the documentation or in the oral evidence which could provide a ground for finding that it was not reasonably practicable for the claimant to have presented her claim in time.

5. 	The clamant since in or around June 2015 had on numerous occasions sought the advice of the Labour Relations Agency.  Such advice was sought by the claimant about the disparity between the hourly rate paid to the claimant and that paid to Catriona Lynch, whom the claimant was replacing for the duration of Ms Lynch’s maternity leave.  This disparity had started in June 2015, and seems to have been the catalyst for much that followed.  It would appear therefore that since around June 2015, the claimant had been aware of what she perceived as a shortfall in pay, and was setting the ground for a challenge.  She does not however appear to have addressed the issue of any responsibility placed upon her by the relevant legislation.

6. 	I am satisfied hat 18 August is the correct date from which time should run for the other claims of entitlement to unpaid holiday pay and notice pay, as those can properly be viewed as amounts which can only become payable upon the termination of a period of employment.  The claimant’s claims under those headings, also received by the tribunal office on 16th November, were therefore brought within time.

7. 	The claimant was employed by the respondent as its Finance Officer on a fixed term contract, to cover the maternity leave absence of Catriona Lynch, starting on 27 October 2014 and due to finish on 31 July 2015.  At the end of July 2015 there was an understanding between the claimant and respondent that, despite her reluctance, she might stay on for a short period of extra time in to August, due to the illness of Ms Lynch towards the end of her maternity leave.

8. 	I am satisfied from the evidence that the claimant was clear from the outset of her employment that it would be ending at or around the end of July 2015, regardless of the later discussion of extension in to August.  Those terms were made clear from the outset, and the whole point of her employment was known by her to be that of cover for the maternity leave of Ms Lynch.  That  therefore places her contract of employment outside the intended scope of Article 118 of the Employment Rights (Northern Ireland) Order 1996, since it was for a period of limited duration, due to end upon the projected return to work of Ms Lynch at the beginning of August 2015.   The terms of Article 118 would only have been engaged in the event that either party had sought to terminate the contract of employment before its scheduled expiry.  Her claim in that regard is therefore dismissed.

9. 	I am satisfied from the written and oral evidence that the calculations by Ms Lynch, based as they were on the hourly rate of £9.47, are correct. They were not challenged in cross examination by the claimant at the hearing, and the fact that Ms Lynch’s pay was set at £11.74 per hour does not give rise to any actionable cause upon which the claimant could properly base a claim.

10. 	The claimant sought to establish that she was owed holiday pay by the respondent. I am satisfied from the written and oral evidence that the respondent was correct in asserting that the claimant through her function of allocating payments, had in fact paid herself a full day’s pay upon returning from her frequent absences due to sickness or absence due to other personal difficulties. The claimant had informed the respondent that it was her intention to repay any amount technically overpaid by the claimant to herself.  There is no suggestion of any dishonesty in making these payments, but her use of this system was extremely ill-advised.  It was her stated intention to use her annual leave entitlement to offset much of the sickness absence, since due to her length of service she was not entitled to sick pay for the majority of days that she was absent.

11. 	I am satisfied from the written and oral evidence that the claimant had in fact used up her annual leave entitlement, and that she therefore was not owed any holiday pay by the respondent.  Her claim in that regard is also dismissed.

Employment Judge:

Date and place of hearing:  8 March 2016, Belfast.

Date decision recorded in register and issued to parties: