King v McLaughlin (t/a Northside Opticians)  (Unfair Dismissal)  (16 January 2003)
THE INDUSTRIAL TRIBUNALS 

CASE REF NO:	01165/02

APPLICANT:	Nichola King

RESPONDENT:	Jeff McLaughlin t/a Northside Opticians

DECISION
The unanimous decision of the tribunal is that the applicant was unfairly dismissed for asserting a statutory right and she is awarded the sum of £1,416.00 by way of compensation.

Appearances:

Both parties appeared and gave evidence.

Extended Reasons
1.	It was agreed that the applicant was employed as an optical assistant by the respondent at premises in Northside Shopping Centre from 5 November 2001.  There was a conflict about the applicant’s final day of work.  It was agreed that the applicant had had time off at Christmas and New Year and was concerned about her entitlement to bank holidays on a pro rata basis.  She was employed to work 20 hours a week at the respondent’s premises.  She raised the issue with the respondent in relation to St Patrick’s Day and he told her that she would not be entitled to a holiday.  He said he was not going to pay her for any bank holidays at all unless the shop was closed.  The applicant was concerned and went to the Labour Relations Agency.  She was told that she had an entitlement to holiday payment or holidays in lieu if the full-time staff were going to be receiving them.  She relayed this information to the respondent, she also left a copy of the LRA guidance book with the respondent.  There was a conflict of evidence as to whether he read the book or not.  The Tribunal is satisfied that on the balance of probabilities that the respondent did not read the book on holidays and that he did say to the applicant that she was not getting any holidays.

2.	There was a discussion between the parties on Friday 19 March.  The applicant did not come to work on the Saturday and she said she had felt quite sick about the way he had treated her and talked to her.  She checked the rota and saw that she was to work on 

21 March.  She came to the premises and worked for the day while the respondent went to his premises at Carndonagh.  When he came back he took her into the office and said that the dispute had gone on long enough and he wrote out a cheque for a week’s pay and she understood that she was then dismissed.

2.	The respondent’s evidence differed in that he said that he had a heated discussion with the applicant on the previous Friday.  He stated that she issued an ultimatum to him that it was not worth her while working with him and that they agreed that she would finish on the Saturday night.  He asked her to return her uniform.  She did not appear on the Saturday and had phoned to say she was sick.  He expressed surprise that she had turned up for work on the following Thursday and then he gave her a cheque for the work done in the previous week.

3.	The Tribunal considered the evidence carefully as there was an obvious conflict in the version of events given by the parties.  The Tribunal does not accept that the applicant agreed to leave on the Friday evening.  The applicant is an intelligent person who enjoyed her work and was pursuing her rights through the auspices of the Labour Relations Agency.  It was obvious that the respondent had not checked on the position of bank holidays with the Labour Relations Agency before this dispute arose.  The Tribunal has seen the letter of offer made to the applicant on 30 October 2001 and in that it states that ‘your employment will commence starting Monday 5 November with hours to be confirmed.  Holiday entitlement will be four weeks per calendar year plus statutory bank holidays (pro rata).’  That was followed by a contract of employment which was signed and dated 7 December 2001 and in section 10 under annual holidays there is no specified procedure in relation to bank holidays.  It simply says the holiday year runs from 1 January to 31 December.  In view of the initial letter the Tribunal accepts that the applicant had an expectation to bank holiday leave and it was for this reason that she pursued it with the outside agency when the applicant refused to give her bank holiday leave.

4.	We are satisfied that if there had been an agreement as outlined by Mr McLaughlin, the respondent, the applicant would not have come to work on the following Thursday, the 21st, and in fact she would not have featured on a rota in the respondent’s premises.  The Tribunal accept that she did come for work on the Thursday and the respondent was ‘fed up’ with the idea that he may have to pay for bank holidays and he then dismissed her.  The Tribunal is satisfied that this dismissal was for asserting a statutory right to conditions of employment and as such it is an unfair dismissal within the provisions of Article 135 of the Employment Rights Order 1996 (as amended).

5.	The applicant stated that she looked for work and was not successful.  She did not produce any evidence as to any efforts that she had made to obtain work and the Tribunal accepts that some time in or around the summer of 2002 the applicant decided that she would pursue a college course to obtain a qualification in childcare.  The Tribunal has to consider what is just and equitable in terms of compensation and it is 

satisfied that a period of 3 months from the applicant’s dismissal would be just and equitable.  There is no entitlement to a basic award and the Tribunal accepts that the applicant was paid £114.00 net per week.  The award of compensation is £1,368.00.  The applicant is entitled to be paid for the day she worked on 21 March namely

8 hours at £6 per hour = £48.00
Total award =		  £1,416.00

This decision is a relevant decision under the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

____________________________________
M P PRICE
Vice President

Date and place of hearing:	16 January 2003, Londonderry

Date decision recorded in register and issued to parties: